Ex Parte Markwart et al

Patent Trial and Appeal Board

Oct 30, 2017

11020617 (P.T.A.B. Oct. 30, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/020,617 12/23/2004 Michael Markwart 078.0153US 8404
96516 7590
LKGlobal (Airbus)
7010 E. Cochise Road
Scottsdale, AZ 85253
EXAMINER
NAMAY, DANIEL ELLIOT
ART UNIT PAPER NUMBER
3749
NOTIFICATION DATE DELIVERY MODE
11/01/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing @LKGlobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL MARKWART, KLAUS ARNOLD,
FRANK BRACKER, JENS LOHMAR, THOMAS SCHERER, and
TORSTEN SCHWAN
Appeal 2015-001230
Application 11/020,6171
Technology Center 3700
Before WILLIAM A. CAPP, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Markwart et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1,2, 4—7, and 13—17, which
constitute all the claims pending in this application,2 as unpatentable under
35 U.S.C. § 103(a) over Helm (US 6,216,981 Bl, iss. Apr. 17, 2001), Goode
(US 3,203,473, iss. Aug. 31, 1965), and Boissevain (US 2004/0216479 Al,
1 According to Appellants, the real party in interest is Airbus Operations
GmbH. Br. 2 (filed Mar. 25, 2014).
2 Claims 3 and 8—12 have been canceled. Br. 27, 28 (Claims App.).
Appeal 2015-001230
Application 11/020,617
pub. Nov. 4, 2004).3 We have jurisdiction over this appeal under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
INVENTION
Appellants’ invention “relates to an air dispersion system or air
distribution system, e.g. for homogenizing a thermal load dispersion or
distribution within a chamber, in particular, the heat dispersion or
distribution within a cabin of an aircraft.” Spec. p. 1.
Claims 1 and 17 are independent. Illustrative claim 1 reads as
follows:
1. An air dispersion system configured to disperse air in a
cabin of an aircraft having a first temperature zone, the system
comprising:
a main supply line in the cabin of the aircraft',
a plurality of air outlets connected via respective air
exhaust lines to the main supply line, each of the plurality of air
outlets having air nozzles for dispersing air therethrough at a
predetermined pressure;
at least one first air outlet of the plurality of air outlets
including a first heating element disposed in the at least one first
air outlet to temper air flowing out of the first outlet to a
predetermined temperature',
at least one second air outlet of the plurality of air outlets
not associated with a heating element;
wherein the at least one first outlet is arranged in at least
one first area of the first temperature zone having an
inhomogeneity of a thermal load distribution; and
3 Asa result of the cancellation of claim 11, which occurred after the
Final Action, the Examiner has withdrawn the rejections of claim 11.
Ans. 10.
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Application 11/020,617
wherein a volume of air flowing in the air dispersion
system remains essentially constant.
Br. 27 (Claims App.) (emphasis added).
ANALYSIS
Claims 1, 2, 4, 6, 7, and 13—17
Appellants argue several faults exist with the Examiner’s obviousness
determination of claim 1 in view of Helm, Goode, and Boissevain. Br. 11—
17. Although presented separately, Appellants make the same arguments for
claim 17. Id. at 20-25. There are no patentability arguments separately
made for claims 2, 4, 6, 7, and 13—16, instead Appellants rely on their
dependence from claim 1. Id. at 18. Therefore, in accordance with 37
C.F.R. § 41.37(c)(l)(iv), we select claim 1 as the representative claim to
decide the appeal of the rejection of these claims, with claims 2, 4, 6, 7,
and 13—17 standing or falling with claim 1.
Appellants first contend the Examiner erred by relying on Helm to
disclose “a main supply line in the cabin of the aircraft,” as claim 1 recites.
Br. 11. Although the Examiner finds manifold 38 of Helm is “a main supply
line” (Final Act. 3), the Examiner notes Helm is silent regarding the location
of manifold 38. Ans. 10. Nevertheless, the Examiner relies on Goode to
evidence skilled artisans recognized the aircraft cabin as a known location
for placing the main supply line. Id. at 13; Final Act. 4 (citing Goode Figs.
1,2). Appellants do not challenge this finding. As such, the Examiner’s
finding that it was known to have an air distribution system with “a main
supply line in the cabin of the aircraft” was supported by the combined
teachings of Helm and Goode. Appellants’ contention focusing on what
Helm alone teaches is, therefore, unpersuasive.
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Application 11/020,617
Second, the Examiner relies on the combination of Helm, Goode, and
Boissevain to show, “a plurality of air outlets connected via respective air
exhaust lines to the main supply line, each of the plurality of air outlets
having air nozzles for dispersing air therethrough at a predetermined
pressure; and at least one first air outlet of the plurality of air outlets
including a first heating element disposed in the at least one first air outlet to
temper air flowing out of the first outlet to a predetermined temperature,” as
claim 1 recites. Final Act. 3—5. Appellants question whether it is proper to
combine Helm with either Goode or Boissevain. Br. at 12—14. In addition,
even if the combination is proper, Appellants assert Goode and Boissevain
do not disclose each of the plurality of air outlets having air nozzles or a
heating element in the at least on first air outlet, which the Examiner finds
are missing from Helm. Id. at 12.
According to Appellants, Goode “teaches away” from the
combination and Boissevain is non-analogous art. Id. at 12—14. Regarding
Goode, which the Examiner finds discloses using air nozzles with air
dispersion outlets (Final Act. 4), Appellants point to the inadequacies and
insufficiencies Goode identifies with overhead-only heating systems “from
the standpoint of [the] amount of heat available for floor heating and the
control thereof.” Id. at 13 (quoting Goode, col. 1,11. 11—27). According to
Appellants, because Helm illustrates an overhead heating system, one of
skill in the art would not combine Helm with Goode. Id. (citing Helm,
Fig. 1). Appellants’ argument is unpersuasive, however, because Appellants
have not shown persuasively why such a teaching would amount to
criticizing, discrediting, or otherwise discouraging the use of air nozzles
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Application 11/020,617
within the outlets Helm discloses. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004).
Appellants assert Boissevain is non-analogous art because it “is
directed toward an air conditioner in a slab structure utilizing a gravel heat
exchanger and not toward an air dispersion system in a passenger cabin of an
aircraft.” Br. 14. The Examiner finds Boissevain is within the same field of
endeavor as the claimed subject matter; namely, “an air distribution &
heating system for an enclosed space.” Final Act. 10; Ans. 11. Appellants
do not challenge the Examiner’s characterization of the field of endeavor.
Even if Appellants’ argument could be understood as disputing the breadth
of the Examiner’s characterization because it is not limited to “a passenger
cabin of an aircraft,” we are not persuaded because the Specification
characterizes the field of endeavor broadly as “air dispersion system[s] or air
distribution systemfs].” Spec. p. 1. While we appreciate Appellants’point
that Boissevain clearly discloses a different means for conditioning the air
for dispersion, Appellants have not apprised us of any error with the
Examiner’s determination Boissevain likewise relates to an air dispersion
system for an enclosed space. Therefore, given the broad field of endeavor
the Specification identifies, Appellants have not shown persuasively the
Examiner erred in finding Boissevain to be analogous art.
Regarding Appellants’ assertion Goode and Boissevain do not
disclose each of the plurality of first air outlets having air nozzles or a
heating element, we do not agree. Appellants contend outlets 27 in Goode
only disclose “slits” instead of nozzles (Br. 14), but the Examiner responds
correctly that Goode, at column 2, lines 35—40, explicitly teaches outlets 27
are “nozzles.” Ans. 11.
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Application 11/020,617
Boissevain, Appellants contend, does not disclose disposing a heating
element in the claimed first outlet, although they concede it teaches fitting a
heater into an outlet to heat the air immediately before it leaves the air
dispensing system. Br. 15. We agree with the Examiner that this contention
is unpersuasive because it attacks what Boissevain alone teaches rather than
what it teaches in combination with Helm and Goode. See Ans. 12. It is
well established that non-obviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
Appellants’ third challenge alleges, “one of ordinary skill in the art
would not modify Helm to include ‘at least one second air outlet of the
plurality of air outlets not associated with a heating element’ as claimed in
Claim 1 as Helm teaches away from this modification.” Br. 15. As
support, Appellants identify the fact that Helm discloses a system that heats
all of the air dispersed from the outlets. Id. at 15—16 (citing Helm, col. 2,
11. 19—21, col. 3,11. 53—55, Fig. 1). Noticeably absent, however, is any
evidence from Helm criticizing, discrediting, or otherwise discouraging the
use of heaters within some air dispersion outlets and not using heaters in
others. While Helm may disclose a system that heats all of the dispersed air
the same, it does so without suggesting heaters in some, but not all, outlets
would somehow be at odds with an objective of the invention. See Helm,
col. 2,11. 19—21, col. 3,11. 53—55, Fig. 1. Furthermore, the Examiner
correctly notes Appellants have conceded “zoning a heating system by
providing heating equipment to specific zones and providing other zones
without heating equipment” was a recognized technique by skilled artisans
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Application 11/020,617
at the time of the invention. Ans. 12. Therefore, Appellants’ contention
Helm “teaches away” from using a heater in some outlets, but not in others,
is unpersuasive.
Appellants’ fourth argument is similarly unpersuasive. In Appellants’
words, “modifying Helm to include ‘at least one second air outlet of the
plurality of air outlets not associated with a heating element’ as claimed in
Claim 1 would render the environmental control system of Helm
unsatisfactory for its intended purpose.” Br. 16. Appellants, however,
provide no evidence or technical reasoning to demonstrate why this would
be the case. Appellants’ naked assertion that the Examiner’s modification
would render Helm unsatisfactory for it intended purpose has little, if any,
persuasive value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Furthermore, it is unclear how including heating elements in some,
but not all, air dispersion outlets inhibits the Helm system’s ability to control
the temperature of the air flowing into the interior of the aircraft. Appellants
appear to be arguing that the Examiner’s proposed modification would
require eliminating the heating elements Helm discloses, but this does not
appear to be necessary. Instead, additional heating elements may be
associated with some of the outlets into the cabin and not with other such
outlets, without altering the heaters 43 Helm discloses in the ductwork
upstream of the outlets, with the added heating elements in some outlets
providing additional control of the final air temperature flowing into specific
areas of the interior of the aircraft. As the Examiner notes, this
configuration provides the Helm system the ability to provide additional
control in those areas or zones that may require further heating of the air.
Ans. 12-13.
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Application 11/020,617
Appellants also state, “modifying Helm to include the manifold of
Goode and the heater of Boissevain would require a substantial
reconstruction and redesign of Helm, and is improper.” Br. 16. However,
Appellants rely solely upon attorney argument without any evidence or
technical reasoning, which has little persuasive value. See In re Geisler, 116
F.3d at 1470. In fact, Appellants wholly fail to explain what necessary
“reconstruction and redesign” would be necessary and why a skilled artisan
would view it so “substantial” that it evidences a skilled artisan would not
have considered it an obvious option. Accordingly, we do not find this
argument persuasive because it lacks evidentiary support and fails to apprise
us of error with the Examiner’s reasoning.
Lastly, Appellants argue the Examiner erred by finding Goode
discloses a first temperature zone having an inhomogeneity of thermal load
distribution. Br. 17. The Examiner disagrees, however, and notes
Appellants admit Goode “discloses inhomogeneity between a floor and
compartment space.” Ans. 13—14 (quoting Br. 17). The Examiner explains
further,
as shown in Fig. 2 and described in Col. 2, Ln. 35-Col. 3, Ln. 23
of Goode ('473), Thermostat 28 controls the temperature
discharged from Nozzles 27 in Manifold 26 at the ceiling level
zone of the cabin while Thermostat 30 controls the temperature
discharged from Nozzles 21 in Manifold 15 at the floor level
zone of the cabin.
Id. In view of the foregoing, Appellants fail to apprise us of any error with
the Examiner’s finding Goode discloses a first temperature zone having an
inhomogeneity of thermal load distribution, which we find a preponderance
of the evidence supports.
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Application 11/020,617
Therefore, for the foregoing reasons, Appellants have not shown
persuasively an error with the Examiner’s obviousness determination of
claim 1. As a result, we sustain the Examiner’s rejection of claims 1, 2, 4, 6,
7, and 13-17.
Claim 5
For claim 5, the Examiner cites Helm as disclosing a heating element
formed directly on an upstream side of the first air outlet. Final Act. 8.
Appellants assert this finding is not supported by a preponderance of the
evidence. Appeal Br. 18—19. We agree. In fact, in the Examiner’s Answer
addressing Appellants’ arguments for claim 1, the Examiner notes,
“Boissevain ('479) is relied upon to teach the locations of the heaters of
Helm ('981), teaching the placement of the heaters in the outlets as opposed
to in the ductwork as shown in Helm ('981).” Ans. 12. In addition,
consistent with the Examiner’s earlier finding only Helm discloses placing
heaters in the ductwork, Appellants point out correctly that Helm expressly
states, “electric heaters [43] are provided in supply ducts 39 and 41.”
Appeal Br. 18 (quoting Helm, col. 3,1. 55).
The Examiner also cursorily states, “the teaching of Helm ('981) in
view of Goode ('473) and Boissevain ('479) discloses the heating element
directly upstream of the outlet, as discussed above in the modification of
Helm ('981) by the teaching of Boissevain ('479).” Ans. 14. We note,
however, that the Examiner has not indicated a new ground of rejection is
being made in the Answer and the Examiner fails to indicate in the Final
Action that Boissevain is being relied upon to show the limitations of claim
5. Contrary to the Examiner’s representation, moreover, we are unable to
locate any previous discussion in the Answer where the Examiner explains
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how Boissevain discloses the heating element directly upstream of the outlet.
The Federal Circuit has stated, “rejections on obviousness grounds cannot be
sustained by mere conclusory statements.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006). While Boissevain may be a source of information that
would easily cure the above deficiencies with Helm, the Examiner has not
made sufficient factual findings for that in this record. Therefore, for the
foregoing reasons, we do not sustain the Examiner’s rejection of claim 5.
DECISION
We affirm the Examiner’s rejection of claims 1, 2, 4, 6, 7, and 13—17.
We reverse the Examiner’s rejection of claim 5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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