Ex Parte Kiesewetter et al

Board of Patent Appeals and Interferences

Jun 5, 2009

10913029 (B.P.A.I. Jun. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
____________________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
____________________ 6
7
Ex parte FRITZ KIESEWETTER and GEORG MAIER 8
____________________ 9
10
Appeal 2009-001062 11
Application 10/913,029 12
Technology Center 3700 13
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15
Decided:1 June 5, 2009 16
____________________ 17
18
Before WILLIAM F. PATE, III, JENNIFER D. BAHR, and 19
FRED A. SILVERBERG, Administrative Patent Judges. 20
21
SILVERBERG, Administrative Patent Judge. 22
23
24
DECISION ON APPEAL25

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE 1
Appellants appeal under 35 U.S.C. § 134 (2002) from a rejection of 2
claims 1-5, 7-19 and 21-23, which are all of the pending claims. Claims 6 3
and 20 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b) 4
(2002). 5
6
SUMMARY OF DECISION 7
We AFFIRM-IN-PART. 8
9
THE INVENTION 10
The Appellants’ claimed invention is directed to an exhaust muffler 11
for an internal combustion engine (Spec.1:4-7). Claim 1, reproduced below, 12
is representative of the subject matter on appeal. 13
1. An exhaust gas muffler for an internal combustion 14
engine, comprising: 15
a housing having an inlet for receiving exhaust gas from 16
said internal combustion engine, an outlet that leads from the 17
interior of said housing to the outside of the housing, and an 18
outer wall, wherein in the interior of said housing exhaust gas 19
flows along an inner surface of said outer wall in a first 20
direction of flow to said outlet, wherein said outlet and said 21
outer wall are configured such that said exhaust gas is adapted 22
to flow out of said outlet, to the outside of said housing, and is 23
deflected such that it flows over said outer wall approximately 24
in a counter direction to said first direction of flow, wherein 25
said exhaust gas that flows out of said outlet to the outside of 26
said housing draws in atmospheric air onto an outer surface of 27
said outer wall of said housing, wherein said exhaust gas flows 28
out of said outlet at an angle relative to said outer wall of said 29
housing, and wherein said angle and a flow velocity of said 30
exhaust gas are such that due to an underpressure resulting from 31
the inclination of the direction of flow of said exhaust gas 32
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relative to said outer wall of said housing, the atmospheric air is 1
adapted to be drawn in between said exhaust gas and said outer 2
surface of said outer wall of said housing to thereby effect an 3
active cooling of said outer wall of said housing via said drawn-4
in atmospheric air. 5
6
THE REJECTIONS 7
The Examiner relies upon the following as evidence of 8
unpatentability: 9
Lux US 4,164,989 Aug. 21, 1979 10
Nagai US 5,139,107 Aug. 18, 1992 11
12
The following rejections2 by the Examiner are before us for review: 13
1. Claims 1-5, 7, 8, 13, 14, and 21-23 are rejected under 35 U.S.C. § 14
102(b) as being as being anticipated by Lux. 15
2. Claims 9-12 and 15-193 are rejected under 35 U.S.C. § 103(a) as 16
being unpatentable over Lux in view of Nagai. 17
18

2 The Evidence Relied Upon section in the Examiner’s Answer (Ans. 2-3)
lists 11 patents while only 2 of the those patents, the patents to Lux and
Nagai, are applied against the claims. Therefore, only the patents to Lux and
Nagai are involved in this appeal.
3 The rejection of claims 9-12 and 15-19 set forth on page 8 of the
Examiner’s Answer (Ans. 8) refers to the patent to Kliewer. However, the
patent to Kliewer has neither been applied against the claims nor argued by
either the Appellants in the Appeal Brief or the Examiner in the Examiner’s
Answer. As the rejection is based upon the combination of Lux and Nagai,
the Examiner’s inadvertent reference to Kliewer ostensibly was intended to
be a reference to Lux, and we treat it as such.
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ISSUES 1
The issues before us are whether the Appellants have shown that the 2
Examiner erred in rejecting claims 1-5, 7, 8, 13, 14, and 21-23 over Lux, and 3
claims 9-12 and 15-19 over Lux in view of Nagai. These issues turn on 4
whether Lux discloses: (1) exhaust gas flowing out of the outlet opening at 5
an angle to the outer wall, wherein due to the inclination of the direction of 6
flow of the exhaust gas, atmospheric air is adapted to be drawn in between 7
the exhaust gas and the outer surface of the outer wall as called for in claim 8
1; (2) a counter current heat exchanger on the outer wall as called for in 9
claim 3; (3) exhaust gas flowing out of the outlet opening draws in 10
atmospheric air between the exhaust gas and the outer surface of the outer 11
wall, and a fin on the outer wall of the housing as called for in claim 21; (4) 12
exhaust gas flowing out of the outlet opening flows in a counter direction to 13
the exhaust gas inside the housing, and draws in atmospheric air between the 14
exhaust gas and the outer surface of the outer wall, wherein the exhaust gas 15
is branched off as called for in claim 22; and (5) the exhaust gas flow path in 16
a chamber being longer than the exhaust gas flow path in a channel as called 17
for in claim 23. 18
19
FINDINGS OF FACT 20
We find that the following enumerated findings are supported by at 21
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 22
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for 23
proceedings before the Office). 24
1. Lux discloses a muffler for a portable internal gas engine including 25
a chamber 10 defined by housing wall 12 and chamber wall 13, an 26
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inlet 11 for receiving exhaust gases, a discharge gas passage 14 1
wherein the exhaust gas flows in a first direction, an aperture 16 2
covered by a mesh screen 18 (fig. 1) in the chamber wall 13, a 3
bend 17 projecting upwardly from chamber wall 13, an outlet 4
opening 20 (col. 2, ll. 4-28), and a protective grate 21 (col. 2, ll. 5
29-31 and fig. 2). 6
2. Lux further discloses that the exhaust gases escape through the 7
outlet opening 20 and are able to pass at least approximately 8
parallel to the chamber wall 13 along a central surface thereof (the 9
exhaust gases flow in an opposite second direction) (col. 2, ll. 22-10
28 and fig. 2). 11
3. Lux still further discloses that the protective grate 21 is arranged 12
above and slightly spaced from the chamber wall 13, wherein the 13
grate 21 has a plurality of spaced transverse and longitudinal ribs 14
or fins arranged in spaced relationship to each other (col. 2, ll. 29-15
43). 16
4. Lux still further discloses that the exhaust gases prior to passing 17
through the grate 21 are subjected to a strong turbulence, wherein 18
the means for causing the turbulence are an edge 22 on the outer 19
edge of transverse wall 24 and a bulge 23 formed on chamber wall 20
13 (col. 2, ll. 44-64). 21
5. Lux still further discloses in a modification of the muffler that a 22
portion of cooling air 46 is delivered by a ventilator wheel of the 23
internal combustion engine between the chamber wall 13 and the 24
protective grate 21 (col. 4, ll. 6-16 and fig. 8). 25
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6. Nagai discloses a muffler for an internal combustion engine 1
containing two half shells 12a and 12b, a gas introducing tube 13, 2
and a pair of supporting tubes (pillars) 14, 15 (col. 3, ll. 8-9 and 3
24), wherein a cloth catalyst 27, 29 (col. 3, l. 65-col. 4, l. 6) is hung 4
between the tubes (pillars) 14, 15 so as to enclose tube 13 (col. 4, 5
ll. 38-46). 6
7. The ordinary meaning of the word “approximately” includes “to 7
come near to or be close to in position.” Merriam-Webster’s 8
Collegiate Dictionary (10th ed. 1996). 9
8. The ordinary meaning of the word “nearly” includes “almost but 10
not quite.” Merriam-Webster’s Collegiate Dictionary (10th ed. 11
1996). 12
13
PRINCIPLES OF LAW 14
“Anticipation is established only when a single prior art reference 15
discloses, expressly or under the principles of inherency, each and every 16
element of a claimed invention.” RCA Corp. v. Applied Digital Data Sys., 17
Inc., 730 F.2d 1440, 1444 (Fed. Cir. 1984). In other words, “[t]here must be 18
no difference between the claimed invention and the reference disclosure, as 19
viewed by a person of ordinary skill in the field of the invention.” Scripps 20
Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1576 (Fed. 21
Cir. 1991). It is not necessary that the reference teach what the subject 22
application teaches, but only that the claim read on something disclosed in 23
the reference, i.e., that all of the limitations in the claim be found in or fully 24
met by the reference. Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772 25
(Fed. Cir. 1983). 26
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“Section 103 forbids issuance of a patent when ‘the differences 1
between the subject matter sought to be patented and the prior art are such 2
that the subject matter as a whole would have been obvious at the time the 3
invention was made to a person having ordinary skill in the art to which said 4
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 5
(2007). The question of obviousness is resolved on the basis of underlying 6
factual determinations including (1) the scope and content of the prior art, 7
(2) any differences between the claimed subject matter and the prior art, (3) 8
the level of skill in the art, and (4) where in evidence, so-called secondary 9
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See 10
also KSR, 550 U.S. at 406-407 (“While the sequence of these questions 11
might be reordered in any particular case, the [Graham] factors continue to 12
define the inquiry that controls.”). 13
“[W]hen the PTO shows sound basis for believing that the products of 14
the applicant and the prior art are the same, the applicant has the burden of 15
showing that they are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). 16
"Where, as here, the claimed and prior art products are identical or 17
substantially identical, or are produced by identical or substantially identical 18
processes, the PTO can require an applicant to prove that the prior art 19
products do not necessarily or inherently possess the characteristics of his 20
claimed product." In re Best, 562 F.2d 1252, 1255 (CCPA 1977). 21
Claims are interpreted with an eye toward giving effect to all terms in 22
a claim. Bicon Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006). 23
A patent applicant is free to recite features of an apparatus either 24
structurally or functionally. In re Swinehart, 439 F.2d 210, 212 (CCPA 25
1971). 26
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(“[T]here is nothing intrinsically wrong with [defining something by 1
what it does rather than what it is] in drafting patent claims.”). Yet, 2
choosing to define an element functionally, i.e., by what it does, carries with 3
it a risk. In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). 4
[W]here the Patent Office has reason to believe that a functional 5
limitation asserted to be critical for establishing novelty in the claimed 6
subject matter may, in fact, be an inherent characteristic of the prior art, it 7
possesses the authority to require the applicant to prove that the subject 8
matter shown to be in the prior art does not possess the characteristic relied 9
on. See Swinehart at 213. 10
Things which may be done are not required to be done in the claims. 11
Therefore, these intended use statements cannot be regarded as structural 12
limitations and therefore not as positive limitations in a claim drawn to 13
structure. Intended use statements cannot be relied on distinguish a claim 14
from the prior art. In re Collier, 397 F.2d 1003, 1006 (CCPA 1968). 15
When construing claim terminology in the United States Patent and 16
Trademark Office, claims are to be given their broadest reasonable 17
interpretation consistent with the specification, reading claim language in 18
light of the specification as it would be interpreted by one of ordinary skill in 19
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 20
2004). 21
22
ANALYSIS 23
Rejection of claims 1-5, 7, 8, 13, 14, and 21-23 under 35 U.S.C. 102(b) as 24
being anticipated by Lux. 25
Lux discloses a muffler for a portable internal gas engine including a 26
chamber 10 defined by housing wall 12 and chamber wall 13, an inlet 11 for 27
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receiving exhaust gases, a discharge gas passage 14 wherein the exhaust gas 1
flows in a first direction, an aperture 16 covered by a mesh screen 18 (fig. 1) 2
in the chamber wall 13, a bend 17 projecting upwardly from chamber wall 3
13, an outlet opening 20, and a protective grate 21 (fig. 2) (Fact 1). Lux 4
further discloses that the exhaust gases escape through the outlet opening 20 5
and are able to pass at least approximately parallel to the chamber wall 13 6
along a central surface thereof (the exhaust gases flow in an opposite second 7
direction) (col. 2, ll. 22-28 and fig. 2) (Fact 2). Lux still further discloses 8
that the protective grate 21 is arranged above and slightly spaced from the 9
chamber wall 13, wherein the grate 21 has a plurality of spaced transverse 10
and longitudinal ribs or fins arranged in spaced relationship to each other 11
(col. 2, ll. 29-43) (Fact 3). Lux still further discloses that the exhaust gases 12
prior to passing through the grate 21 are subjected to a strong turbulence, 13
wherein the means for causing the turbulence are an edge 22 on the outer 14
edge of transverse wall 24 and a bulge 23 formed on chamber wall 13 (col. 15
2, ll. 44-64) (Fact 4). Lux still further discloses in a modification of the 16
muffler that a portion of cooling air 46 is delivered by a ventilator wheel of 17
the internal combustion engine between the chamber wall 13 and the 18
protective grate 21 (col. 4, ll. 6-16 and fig. 8) (Fact 5). 19
Regarding claim 1: Appellants contend that Lux does not disclose 20
exhaust gas flowing out of the outlet opening at an angle to the outer wall, 21
wherein due to the inclination of the direction of flow of the exhaust gas, 22
atmospheric air is adapted to be drawn in between the exhaust gas and the 23
outer surface of the outer wall as called for in claim 1 (Br. 11-14). We do 24
not agree with the Examiner’s finding (Ans. 11) that an angle of 0 degrees 25
reads on the limitation “wherein said exhaust gas flows out of said outlet at 26
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an angle relative to said outer wall of said housing,” as called for in claim 1, 1
lines 12-14 (Br. 23). The Examiner’s analysis has the effect of reading the 2
limitation out of the claim or making it superfluous. Claims are interpreted 3
with an eye toward giving effect to all terms in a claim. See Bicon Inc. at 4
950. We will not read the limitation out of claim 1. Lux discloses that the 5
exhaust gases escape through the outlet opening 20 and are able to pass at 6
least approximately parallel to the chamber wall 13 along a central surface 7
thereof (Fact 2). The ordinary meaning of the word “approximately” 8
includes “to come near to or be close to in position” (Fact 7) and the 9
ordinary meaning of the word “nearly” includes “almost but not quite” (Fact 10
8). We find that in using the terminology “at least approximately parallel,” 11
Lux contemplates exhaust gases escaping through the outlet opening 20 at a 12
non-zero, albeit small, angle with respect to the chamber wall 13. 13
Accordingly, we find that Lux discloses the limitation “wherein said exhaust 14
gas flows out of said outlet at an angle relative to said outer wall of said 15
housing,” as called for in claim 1, lines 12-14. 16
A patent applicant is free to recite features of an apparatus either 17
structurally or functionally. See In re Swinehart, 439 F.2d at 212. Yet, 18
choosing to define an element functionally, i.e., by what it does, carries with 19
it a risk. See In re Schreiber, 128 F.3d at 1478. We find that claim 1, which 20
is drawn to an exhaust gas muffler, does not specifically claim the exhaust 21
gas. Accordingly, the exhaust gas cannot be regarded as a structural 22
limitation and cannot be relied on to distinguish the claims from the prior 23
art. See In re Collier, 397 F.2d at 1006. “[W]hen the PTO shows sound 24
basis for believing that the products of the applicant and the prior art are the 25
same, the applicant has the burden of showing that they are not.” In re 26
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Spada, 911 F.2d at 708. We find that Appellants have not met their burden 1
of showing that in Lux’s muffler structure is incapable, for an appropriate 2
gas flow rate and velocity, of achieving the claimed result that air is drawn 3
between the exhaust gas and the outer surface of the outer wall. In fact, we 4
find that Appellants’ hood 12 appears to be very similar to Lux’s outlet 5
opening 20 since they both include an angled top surface being located over 6
an opening which receives the exhaust gas flowing in a first direction, 7
wherein the exhaust gas upon exiting the hood and outlet opening, 8
respectively, flows in a second opposite direction (Appellants’ fig. 2, and 9
Lux’s fig. 1 and Facts 1-2). Further, we previously found that Lux 10
contemplates exhaust gases escaping through the outlet opening 20 at a non-11
zero, albeit small, angle with respect to the chamber wall 13. Therefore, we 12
find that Lux’s muffler reasonably appears to have the capability to draw in 13
air between the exhaust gas and the outer wall (Facts 2 and 5), so as to shift 14
the burden to Appellants to show that it does not. Further, we find that the 15
words “from the inclination of the direction of flow of said exhaust gas 16
relative to said outer wall of said housing,” as called for in claim 1, lines 14-17
15 (Br. 23) do not explicitly associate the word “inclination” with and back 18
to the angle at which the exhaust gas flows relative to the outer wall of the 19
housing. Thus, we find that in Lux, the turbulence/mixing at 24, 25 (Fact 4) 20
satisfies that aspect of claim 1. We find that in Lux’s muffler, the capability 21
of the exhaust gas to draw in air is also due to the exhaust gas flow pattern 22
from the point the exhaust gas exits the outlet opening 20 until the point 23
where the exhaust gas passes through the grate 21 (Facts 2 and 4). As such, 24
Appellants have not shown the Examiner erred in finding that Lux discloses 25
the exhaust gas muffler as called for in claim 1, and claims 2, 4, 5 and 7-19 26
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which depend from claim 1. We affirm the rejection of claims 1, 2, 4, 5 and 1
7-19 under 35 U.S.C. § 102. 2
Regarding claim 3: Appellants contend that Lux does not disclose a 3
counter current heat exchanger on the outer wall as called for in claim 3. 4
We find that Lux discloses that the exhaust gases flow in a first direction in 5
discharge gas passage 14 and in an opposite second direction after the 6
exhaust gases exit the outlet opening 20 (Facts 1-2). As we previously 7
found in our discussion of claim 1, Lux’s exhaust gases appear to have the 8
capability to draw in air between the exhaust gases and the outer wall (Facts 9
2 and 5). We find that in Lux, the drawn in air would flow in the same 10
second direction as the exhaust gases when they exit the outlet opening 20. 11
Therefore, we find that in Lux, due to the exhaust gases flowing in a first 12
direction in discharge gas passage 14 and the drawn in air flowing in a 13
second opposite direction along the chamber wall 13, a counter current heat 14
exchanger is formed on the chamber wall. We conclude that Lux discloses a 15
counter current heat exchanger as called for in claim 3. Therefore, we 16
conclude that the Examiner did not err in rejecting claim 3 over Lux. We 17
affirm the rejection of claim 3 under 35 U.S.C. § 102. 18
Regarding claim 21: Appellants contend that Lux does not disclose 19
that exhaust gas flowing out of the outlet opening draws in atmospheric air 20
between the exhaust gas and the outer surface of the outer wall, and a fin on 21
the outer wall of the housing as called for in claim 21 (Br. 16-17). We find 22
that Lux discloses a fin on grate 21 (Fact 3), but not on the chamber wall 23
(outer wall) 13 as called for in claim 21. Therefore, we conclude that the 24
Examiner erred in rejecting claim 21 over Lux. We reverse the rejection of 25
claim 21 under 35 U.S.C. § 102. 26
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Regarding claim 22: Appellants contend that Lux does not disclose 1
that exhaust gas flowing out of the outlet opening flows in a counter 2
direction to the exhaust gas inside the housing, and draws in atmospheric air 3
between the exhaust gas and the outer surface of the outer wall (Br. 17-19), 4
wherein the exhaust gas is split into two portions (Reply Br. 5 and Br. 18) as 5
called for in claim 22. As we previously found in our discussion of claims 1 6
and 3, Lux’s exhaust gases appear to have the capability to draw in air 7
between the exhaust gases and the outer wall (Facts 2 and 5), and Lux’s 8
exhaust gases flow in a first direction in discharge gas passage 14 and in an 9
opposite second direction after the exhaust gases exit the outlet opening 20 10
(Facts 1-2). The Examiner’s analysis (Ans. 12) includes a Modified Fig. 2B, 11
which shows Lux’s exhaust gases split into two sections, a black first section 12
and a white second section. We do not agree with Appellants’ contention 13
(Reply Br. 5) and find that since the black first section and the white second 14
section are formed from different portions of Lux’s discharge passage 14 15
and bend 17, they may reasonably be considered a chamber and a channel, 16
respectively, as called for in claim 22. We observe, in this regard, that claim 17
22 does not require any separating structure disposed between the chamber 18
and the channel. We find that the exhaust gases in the black first section are 19
branched off from the exhaust gases in the white second section. We 20
conclude that Lux discloses that exhaust gas flowing out of the outlet 21
opening flows in a counter direction to the exhaust gas inside the housing, 22
and has the capability to draw in atmospheric air between the exhaust gas 23
and the outer surface of the outer wall, wherein the exhaust gas is split into 24
two portions, that is, branched off as called for in claim 22. Therefore, we 25
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conclude that the Examiner did not err in rejecting claim 22 over Lux. We 1
affirm the rejection of claim 22 under 35 U.S.C. § 102. 2
Regarding claim 23: Appellants contend that as can be seen in figure 3
2 of Lux, the exhaust gas flow path in the chamber is far shorter than the 4
exhaust gas flow path in passage 14 (Br. 19-20). As we previously found in 5
our discussion of claim 22, in the Modified Fig. 2B (Ans. 12), the black first 6
section and the white second section may reasonably be considered a 7
chamber and a channel, respectively. We find that since the chamber, the 8
black first section, is located on the outside of and extends farther to the left 9
than the channel, the white second section, the exhaust gas flow path in the 10
chamber is longer than the exhaust gas flow path in the channel. We 11
conclude that Lux discloses the exhaust gas flow path as called for in claim 12
23. Therefore, we conclude that the Examiner did not err in rejecting claim 13
23 over Lux. We affirm the rejection of claim 23 under 35 U.S.C. § 102. 14
15
Rejection of claims 9-12 and 15-19 under 35 U.S.C. § 103(a) as being 16
unpatentable over Lux in view of Nagai. 17
We find that Appellants have not contested the combinability of the 18
teachings of Lux in view of Nagai. We find that Appellants’ contentions 19
(Br. 10) regarding the rejection of claims 9-12 and 15-19 as being 20
unpatentable over Lux are not persuasive for the reasons set forth above in 21
our discussion of the rejection of claim 1 as being anticipated by Lux. 22
Therefore, we conclude that Appellants have not demonstrated that the 23
Examiner erred in rejecting claims 9-12 and 15-19 over Lux in view of 24
Nagai. Accordingly, we affirm the rejection of claims 9-12 and 15-19 under 25
35 U.S.C. § 103. 26
27
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CONCLUSIONS OF LAW 1
We conclude that the Appellants have not shown that the Examiner 2
erred in rejecting claims 1-5, 7, 8, 13, 14, 22 and 23 under 35 U.S.C. § 3
102(b) as being anticipated by Lux, and claims 9-12 and 15-19 under 35 4
U.S.C. § 103(a) as being unpatentable over Lux in view of Nagai. We 5
conclude that the Appellants have shown that the Examiner erred in rejecting 6
claim 21 under 35 U.S.C. § 102(b) as being anticipated by Lux. 7
8
DECISION 9
The decision of the Examiner to reject claims 1-5, 7, 8, 13, 14, 22 and 10
23 over Lux, and claims 9-12 and 15-19 over Lux in view of Nagai is 11
affirmed. The decision of the Examiner to reject claim 21 over Lux is 12
reversed. 13
No time period for taking any subsequent action in connection with 14
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007). 15
16
AFFIRMED-IN-PART 17
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mls 21
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ROBERT W. BECKER & ASSOCIATES 23
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