Ex Parte Marshall et al

Board of Patent Appeals and Interferences

Jan 15, 2009

11029994 (B.P.A.I. Jan. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN MARSHALL, JOE WAY,
KEITH LIPFORD and BRIAN LIPFORD
____________

Appeal 2009-0956
Application 11/029,994
Technology Center 3700
____________

Decided: January 15, 2009
____________

Before JAMESON LEE, RICHARD TORCZON and SALLY C. MEDLEY,
Administrative Patent Judges.

MEDLEY, Administrative Patent Judge.

DECISION ON APPEAL
A. Statement of the Case
ADS Inc. (“ADS”), the real party in interest, seeks review under
35 U.S.C. § 134(a) of a Final Rejection of claims 1, 3-6 and 8-18. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
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ADS’ invention is a kitchen ventilation duct degreasing system that
includes a conduit in communication with a water source and a cleaning
solution source. The conduit has a plurality of segments and a plurality of
nozzle blocks each including a plurality of nozzles. The conduit is
supported by a plurality of support arms. Each support arm is attached at
one end to the duct conduit and includes a distal roller and a spring
mechanism. (Spec. 10-12, 15-17; figs. 2, 9-14).
Representative claim 1, reproduced from the Claim Appendix of the
Appeal Brief, reads as follows:
A ventilation degreasing system for cleaning the interior
surfaces of a kitchen ventilation duct, comprising:
a duct conduit in fluid communication with a water
source, and a cleaning solution source, said duct conduit
comprising a plurality of conduit segments attached to a
corresponding plurality of nozzle blocks, each nozzle block
having a plurality of nozzles, the duct conduit extending
substantially the length of said ventilation duct;
a programmable controller connected to a plurality of
solenoid valves for controlling distribution of cleaning solvent
or water into said duct conduit and to said nozzles;
a drainage assembly for or capturing liquid run-off in
said kitchen ventilation duct during operation of said
degreasing system; and
a plurality of support arms for supporting said duct
conduit centrally in the kitchen ventilation duct, each of said
support arms being attached at one end to said duct conduit and
further comprising a distal roller at another end and a spring
mechanism for imparting lateral spring to said distal roller.

The Examiner relies on the following prior art in rejecting the claims on
appeal:
Fritz et al. (“Fritz”) 4,484,563 Nov. 27, 1984
Strause 5,235,963 Aug. 17, 1993
Way 5,860,412 Jan. 19, 1999
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Gallagher 6,817,356 Nov. 16, 2004

The Examiner rejected the following claims as unpatentable under 35
U.S.C. § 103(a):
claims 1, 5, 6 and 10 over Way and Strause;
claims 1, 3, 5, 6, 8, 10-16 and 18 Way, Strause and Gallagher;
claims 4, 9 and 17 over Way, Strause, Gallagher and Fritz.
B. Issues
Does ADS show that the Examiner erred in determining that the claims
are obvious on the basis that the prior art is non-analogous?
Does ADS show that the Examiner erred on the basis that the
combinations of prior art do not teach or suggest the claimed invention?
C. Findings of Fact (“FF”)
Way
1. Referring to figure 1 below [numbers from figure 1 inserted], Way
describes kitchen ventilation ducting [14] that includes nozzle means
[13] connected to a pressurized fluid supply and pump [19] by way of
piping [11] (i.e., multistage duct conduit). (Col. 7, ll. 18-34).
Figure 1, reproduced from Way’s figure 1, is reproduced below.
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Figure 1 depicts a kitchen ventilation duct with a cleaning system.
2. Referring to figure 2 below [numbers from figure 2 inserted], Way
describes rigid non-extensible frame members [23] with ducting
attachment means [22] and piping attachment means [21] that support
the piping [11] and position the nozzles [33] within the ducting [14].
(Col. 8, ll. 17-25).
3. Way describes that the frame members [23] pivot to vary the inclination
downward and outward from the piping attachment means [21] to
facilitate installation and bring each frame member [23] into a state of
compression with the ducting interior wall [43]. (Col. 8, ll. 26-37).
Figure 2, reproduced from Way’s figure 3, is reproduced below.
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Figure 2 depicts a duct conduit and support arms
within the kitchen ventilation duct.
4. Way also describes that although plain water is considered satisfactory,
a fluid detergent or other suitable agents added to the water may also be
considered desirable. (Col. 6, ll. 34-37).
Strause
5. Referring to figure 3 [numbers from figure 3 inserted], Strause
describes a cleaning system for cleaning a cooking exhaust duct [20]
that includes a cleaning liquid manifold [26] constructed to conform to
the internal perimeter of the duct [20]. (Col. 3, l. 65-col. 4, l. 21).
6. The manifold [26] includes nozzles [30] in fluid communication with a
cleaning liquid and at least one spring loaded roller [56] to ride against
the lateral and transverse walls [32],[34] of duct [20] and center the
manifold within the duct [20]. (Col. 4, ll. 21-29; col. 5, ll. 2-25).
7. The spring force exerted by the roller [56] is controlled by positioning
of clip [58]. (Col. 5, ll. 15-21).
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Figure 3, reproduced from Strause’s figure 4, is reproduced below.

Figure 3 depicts a cleaning manifold including spring
loaded rollers within a ventilation duct.
Gallagher
8. Gallagher describes a cooking exhaust hood [12] and an upper exhaust
duct [16] that includes upper and lower manifolds [35], [38] and
associated nozzles [38], [39]. (Col. 4, ll. 52-56; col. 5, ll. 14-23).
9. The upper and lower manifolds are connected to water feed pipe [40],
hot and cold water solenoid valves [41], [42], and a venturi injector [44].
(Col. 4, ll. 13-26).
Fritz
10. Fritz describes a kitchen ventilation hood [23] that includes a filter [23]
and a grease receptacle [110] for collecting grease. (Col. 1, ll. 32-66;
col. 6, l. 16-col. 7, l. 12; fig. 3).
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C. Principles of Law
“Two separate tests define the scope of analogous prior art: (1) whether
the art is from the same field of endeavor, regardless of the problem
addressed and, (2) if the reference is not within the field of the inventor's
endeavor, whether the reference still is reasonably pertinent to the particular
problem with which the inventor is involved.” In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004).
“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
In an obviousness analysis, it is not necessary to find precise teachings in
the prior art directed to the specific subject matter claimed because
inferences and creative steps that a person of ordinary skill in the art would
employ can be taken into account. KSR Int’l Co. v. Teleflex Inc., 127 S.Ct.
1727, 1741 (2007).
“In determining whether the subject matter of a . . . claim is obvious,
neither the particular motivation nor the avowed purpose of the [applicant]
controls.” Id. at 1741-42.
Argument of counsel cannot take the place of evidence lacking in the
record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977); see also In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
D. Analysis
Non-Analogous Art
ADS argues that Strause, Gallagher and Fritz are non-analogous art
because the references are unconcerned with the problems that the instant
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invention is designed to overcome. (Br. 7-8, 10, 13). Particular to Strause,
ADS argues that a laborious, messy, difficult and expensive process must be
undertaken when using Strause’s device. (Br. 8). Specific to Gallagher,
ADS argues that Gallagher’s device is incapable of washing the interior of a
kitchen hood and is directed to a device that attaches to the top of a hood to
extract grease from an exhaust air stream exiting from the hood which is a
different process from washing. (Br. 10).
ADS’ arguments are not persuasive because they fail to address whether
Strause, Gallagher or Fritz are from the same field of endeavor, regardless of
the problem to be solved. The Strause, Gallagher and Fritz references along
with the instant application are directed to eradicating grease from kitchen or
cooking exhaust ducts. (FF1s 1, 5, 8, 10). In addition, the Examiner directs
attention to the fact that the instant application and the applied references are
classified in the same class and subclass. (Ans. 7).
Rejection of Claims 1, 5, 6 and 10 over Way and Strause
Representative claim 1 is independent and recites “a plurality of support
arms . . . being attached at one end to said duct conduit and further
comprising a distal roller at another end and a spring mechanism for
imparting lateral spring to said distal roller.” ADS argues that Strause does
not describe duct centering arms including a spring mechanism. (Br. 9).
ADS’ arguments are not persuasive because the Examiner does not rely
on Strause for describing duct centering arms. Instead, the Examiner relies
on Way for describing duct centering arms [23] and attachment means [22].
(Final Rejection 2-3; Ans. 3-4, 8; FFs 1-3). The Examiner finds that Strause
describes a ventilation degreasing system that includes spring loaded rollers

1 FF indicates Finding of Fact.
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[56]. (Final Rejection 2-3; Ans. 3-4; FFs 5-6). The Examiner concluded
that it would have been obvious to one with ordinary skill in the art at the
time the invention was made to modify Way’s device by substituting
Strause’s rollers and spring mechanism for Way’s attachment means [22].
(Ans. 8). The Examiner finds the motivation to do so is found in Strause’s
teaching that using spring loaded rollers provides the advantage of allowing
the degree of force against the duct wall to be easily adjusted. (Ans. 8, FF
7). Attacking references individually cannot establish non-obviousness
when the rejection is based upon the teachings of a combination of
references.
For all these reasons, ADS does not sufficiently demonstrate that the
Examiner erred in determining that claims 1, 5, 6 and 10 are obvious.
Rejection of Claims 1, 3, 5, 6, 8, 10-16 and 18 over Way, Strause and
Gallagher
ADS argues that the combination of Way, Strause and Gallagher is
improper because the cited art must suggest that it can accomplish the
inventor’s results. (Br. 10-11). ADS’ arguments are unpersuasive because
ADS relies on a non-precedential BPAI decision in support of its argument.
More recently, the Supreme Court stated that it is not necessary to find
precise teachings in the prior art directed to the specific subject matter
claimed because inferences and creative steps that a person of ordinary skill
in the art would employ can be taken into account. The Supreme Court has
also instructed that neither the particular motivation nor the avowed purpose
of the applicant controls in the determination of obviousness.
ADS further argues that there is no inherent teaching, suggestion or
motivation to combine the teachings of the references, and if there was, the
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result would be incoherent and non-functional. (Br. 11). ADS argues that
there is no purpose or means for permanently installing the Gallagher
apparatus within a ventilation duct for automated duct washing since
Gallagher is a stand-alone extraction device installed above a cooking
device. (Br. 11). ADS further argues that one skilled in the art seeking to
permanently install an automated duct washing/degreasing system that
effectively cleans the hood with a cleaning solution would have no
motivation to consider Gallagher’s extraction system and no way to combine
it with Way’s and Strause’s duct degreasing systems. (Br. 11).
ADS arguments are not persuasive. The Examiner does not propose
permanently installing the Gallagher apparatus within a ventilation duct.
Instead, the Examiner finds that one of ordinary skill in the art would have
modified the combined Way and Strause device by including Gallagher’s
soap dispenser, not the entire device. (Final Rejection 4, Ans. 5). The
motivation for doing so is to remove grease and further sanitize the surfaces
on the inside of the ventilation shaft. (Final Rejection 4, Ans. 5).
Furthermore, ADS does not provide objective evidence to support their
argument that one skilled in the art would have no motivation or way to
combine the teachings of Gallagher with Way and Strause. Argument of
counsel cannot take the place of evidence lacking in the record
ADS also argues that the combination of Way, Strause and Gallagher do
not teach or suggest the following limitations recited in claims 1 and 6: (1)
“a duct conduit in fluid communication with a water source, and a cleaning
source” or “a multi-stage duct conduit in fluid communication with a water
source, a cleaning solution source”; and (2) “each of said support arms being
attached at one end to said duct conduit and further comprising a distal roller
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at another end and a spring mechanism for imparting lateral spring to said
distal roller” or “each of said support arms comprises distal rollers at each
end, and a spring mechanism for imparting lateral spring between said
rollers”. (Br. 11-12).
ADS’ arguments are unpersuasive. The Examiner finds that Way
describes a ventilation degreasing system including a multi-stage duct
conduit [11] in fluid communication with a water source [19] and support
arms [23] attached at one end to the duct conduit [11]. (Final Rejection 2-3;
Ans. 3-4, FFs 1-2). Although Way suggests using a cleaning solution, the
Examiner relies on Strause for describing a ventilation degreasing system
that includes a detergent dispenser and a duct supporting mechanism that
includes spring loaded rollers. (Final Rejection 2-3, Ans. 3-4, FFs 4-6).
Thus, as explained by the Examiner, the Way, Strause and Gallagher
references describe the disputed limitations of claims 1 and 6.
ADS further argues that Way, Strause and Gallagher do not teach or
suggest the following limitations of claim 11: (1) "a duct conduit in fluid
communication with a water source and cleaning solution source"; and (2) "a
hood conduit in fluid communication with said water source and cleaning
solution source, said hood conduit comprising a plurality of nozzle blocks
and associated nozzles supported inside said kitchen ventilation hood and
extending substantially the full length of said kitchen ventilation hood”.
As explained before, the Examiner relies on Way and Strause for
describing the duct conduit in fluid communication with a water source and
cleaning solution source. (Final Rejection 2-3; Ans. 3-4, FFs 1-2, 4-6). The
Examiner relies upon Gallagher for teaching dual valve assemblies [36], [39]
that clean the area directly above the hood and the ventilation shaft to
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remove as much grease as possible. (Final Rejection 4-5; Ans. 5). The
Examiner concludes that it would have been obvious to one with ordinary
skill in the art to modify the system of Way and Strause to duplicate Way’s
ducting assembly and also place it in an oven hood. (Final Rejection 4-5;
Ans. 5). Thus, as explained by the Examiner, the combination of Way,
Strause and Gallagher describe the disputed limitations of claim 11.
For all these reasons, ADS does not sufficiently demonstrate that the
Examiner erred in determining that claims 1, 3, 5, 6, 8, 10-16 and 18 are
obvious.
Rejection of Claims 4, 9 and 17 over Way, Strause, Gallagher and Fritz
ADS argues that the combination of references is improper because the
Examiner pieces together the references with no suggestion or motivation to
combine them. (Br. 13). ADS’ arguments are not persuasive because ADS
does not sufficiently explain how or why the Examiner erred. Moreover, it
is not necessary to find precise teachings in the prior art because inferences
and creative steps that one of ordinary skill would employ can be taken into
account.
ADS also argues that the combination of Way, Strause, Gallagher and
Fritz do not describe the same contested limitations of claim 1 discussed
above. (Br. 14). For the same reasons as explained above with respect to
the Way, Strause and Gallagher combination, the combination of Way,
Strause, Gallagher and Fritz describes the contested limitations of claim 1.
For all these reasons, ADS does not sufficiently demonstrate that the
Examiner erred in determining that claims 4, 9 and 17 are obvious.
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E. Conclusions of Law
Based on the Findings of Fact and the Analysis above, ADS fails to
sufficiently demonstrate that the Examiner erred in determining that the
claims are obvious on the basis that the prior art is non-analogous or that the
combinations of prior art do not teach or suggest the claimed invention.
F. Decision
The decision of the Examiner rejecting claims 1, 5, 6 and 10 over Way
and Strause; claims 1, 3, 5, 6, 8, 10-16 and 18 over Way, Strause and
Gallagher; and claims 4, 9 and 17 over Way, Strause, Gallagher and Fritz as
unpatentable under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with the
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

ack

cc:

OBER/KALER c/o Royal W. Craig
120 East Baltimore Street
Baltimore MD 21202