Ex Parte Malisi

Patent Trial and Appeal Board

Nov 12, 2013

11991901 (P.T.A.B. Nov. 12, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MICHAELA MALISI
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Appeal 2012-000567
Application 11/991,901
Technology Center 3700
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Before MURRIEL E. CRAWFORD, JOHN W. MORRISON, and
HYUN J. JUNG, Administrative Patent Judges.

JUNG, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/991,901
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STATEMENT OF THE CASE
Michaela Malisi (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s rejections of claims 9-15. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
Sole independent claim 9, reproduced below, is representative of the
claimed subject matter:
9. A no-frost cooling device having an evaporator, a tubular
heating device and a housing for the evaporator and the tubular
heating device, with the tubular heating device including a
plurality of one piece contiguous substantially parallelly
extending tube sections, the cooling device comprising at least
two closely adjacent, parallelly extending tube sections
disposed at a first beginning portion and a second ending
portion of the tubular heating device.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Zearfoss
Malutich
Koch
US 2,685,780
US 2,688,794
US 3,393,530
Aug. 10, 1954
Sep. 14, 1954
Jul. 23, 1968
Cieslik US 2005/0109497 A1 May 26, 2005

REJECTIONS
The Appellant seeks our review of the rejections of:
claims 9 and 13 under 35 U.S.C. § 102(b) as anticipated by Koch;
claims 9 and 10 under 35 U.S.C. § 102(b) as anticipated by Zearfoss;
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Application 11/991,901
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claims 10-12 under 35 U.S.C. § 103(a) as unpatentable over Koch and
Cieslik; and
claims 13-15 under 35 U.S.C. § 103(a) as unpatentable over Zearfoss
and Malutich.

ANALYSIS
Anticipation by Koch
The Appellant disputes the Examiner’s finding that Koch discloses “a
tubular heating device . . . including a plurality of one piece contiguous
substantially parallelly extending tube sections.” App. Br. 4-5. In
particular, the Appellant argues that “flat glass defrost panel of Koch is
clearly not a tubular heating device” and that “the flat glass heater panel of
Koch does not include a plurality of one piece contiguous substantially
parallelly extending tube sections.” Id. at 5.
The Examiner responds that elements 46, 48 of Koch are cited as
disclosing the tubular heater. Ans. 11; see also id. at 4-5. The Examiner
determines that elements 46, 48 are “defined as ‘an electrical heater,’”
“tubular in nature (i.e. shaped like a tube),” “parallel and contiguous,” and
“made up of a plurality of one piece contiguous parallelly extending tube
sections.” Id. at 11-12 (citing Koch, col. 3, ll. 31-50 and fig. 5). The
Appellant further argues that “Koch fails to disclose two end parallel tube
sections on opposite sides of the tubular heating device are directly
connected by a tube bend” and that paragraph [0002] of the Specification
provides a distinction of the claimed invention over Koch. Reply Br. 3-4.
The Appellant’s arguments are not persuasive. The arguments do not
address why electrical heater 46 and heater portion 48 of Koch fail to
disclose the tubular heating device, as found by the Examiner. Also, claim 9
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Application 11/991,901
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does not require two end parallel tube sections on opposite sides of the
tubular heating device to be directly connected by a tube bend.
The Appellant argues that “Koch does not anticipate claim 13 for at
least the reasons given above with respect to claim 9.” App. Br. 5. The
argument for claim 13 is not persuasive for the reasons discussed supra.
Accordingly, we sustain the Examiner’s rejection of claims 9 and 13 under
35 U.S.C. § 102(b) as anticipated by Koch.
Anticipation by Zearfoss
The Appellant argues that Zearfoss does not disclose the combination
of “an evaporator, a tubular heating device and a housing for the evaporator
and the tubular heating device, with the tubular heating device including a
plurality of one piece contiguous substantially parallelly extending tube
sections.” App. Br. 6-7. The Appellant contends that “Zearfoss discloses an
indispensable element [heater 26]” and that “[w]ithout energizing heater 26,
the elements of Zearfoss that are identified in the grounds of rejection cannot
function as a heating device at all.” Id at 6.
The Examiner responds that Zearfoss discloses “an evaporator (12), a
tubular heating device (20) and a housing (12a) for the evaporator and the
tubular heating device, with the tubular heating device (12a) including a
plurality of one piece contiguous substantially parallelly extending tube
sections.” Ans. 13; see also id. at 6-7. The Examiner also states that “the
auxiliary circuit (20) of Zearfoss is a heater” and “is capable of providing
heat to the evaporator and is capable of removing all of the frost on the
evaporator.” Id. at 14. The Examiner further states that “a device or
apparatus maintains its functionality whether it is turned off or on just as
Appellant’s own heater only functions as a heater when power is supplied to
the leads.” Id.
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The Appellant’s arguments do not persuasively explain why Zearfoss
fails to disclose an evaporator, a tubular heating device, and a housing, as
determined by the Examiner. The Appellant’s argument that the auxiliary or
defroster circuit 20 requires electrical heater 26 does not identify reversible
error in the Examiner’s finding that the defroster circuit 20 discloses the
tubular heating device of claim 9. See also Zearfoss, col. 3, ll. 42-45 (stating
that the “auxiliary or defroster circuit 20 which parallels the evaporator
circuit 12 . . . is arranged in heat exchange relation with the evaporator body
12a”).
The Appellant also argues that “Zearfoss requires the use of a heating
element that is separate from, and located apart from, a tubular heating
device such as recited in claim 9 and therefore does not teach or suggest the
claimed tubular heating device.” App. Br. 6. The Examiner responds that
“features upon which [the Appellant] relies (i.e. a tubular heating device
requiring no separate heating element) [are] not recited in the rejected
claim(s)” and that “[t]here is nothing in the claim language that would
disqualify a tube conveying fluid heated from a separate heat source as a
tubular heating element.” Ans. 15.
We agree with the Examiner. The Appellant argues features that are
not recited by claim 9, and therefore, the Appellant’s argument is not
persuasive.
The Appellant argues that “Zearfoss does not anticipate claim 10 for
at least the reasons given above with respect to claim 9.” For the reasons
discussed supra, the argument for claim 10 is not persuasive. App. Br. 7.
Therefore, we sustain the Examiner’s rejection of claims 9 and 10 under 35
U.S.C. § 102(b) as anticipated by Zearfoss.
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Unpatentability over Koch and Cieslik
The Appellant argues that “independent claim 9, from which claims
10-12 depend[], is neither anticipated nor taught by Koch” and that the
“difference thereof is also not made up for by Cieslik.” App. Br. 7.
For the reasons discussed supra, the Appellant’s arguments do not
persuade us of error in the Examiner’s anticipation rejection based on Koch.
Thus, we sustain the Examiner’s rejection of claims 10-12 under 35 U.S.C.
§ 103(a) as unpatentable over Koch and Cieslik.
Unpatentability over Zearfoss and Malutich
The Appellant argues that “Zearfoss fails to disclose or teach the
combination of features recited in claim 9, from which claims 13-15
depend” and that the “addition of Malutich does not overcome the failure of
Zearfoss to teach those features.” App. Br. 7.
For the reasons discussed supra, we are not persuaded that Zearfoss
fails to disclose the combination of features recited by claim 9.
Accordingly, we sustain the Examiner’s rejection of claims 13-15 under 35
U.S.C. § 103(a) as unpatentable over Zearfoss and Malutich.

DECISION
The Examiner’s rejections of claims 9-15 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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