Fridgeland UK Limited

Patent Trials and Appeals Board

Sep 9, 2021

2021002500 (P.T.A.B. Sep. 9, 2021)

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.
14/783,636 10/09/2015 Paul McAndrew FRID-001N01US
327549-2010
1061
58249 7590 09/09/2021
COOLEY LLP
ATTN: IP Docketing Department
1299 Pennsylvania Avenue, NW
Suite 700
Washington, DC 20004
EXAMINER
SCHULT, ALLEN
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
09/09/2021 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):
zIPPatentDocketingMailboxUS@cooley.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PAUL McANDREW

Appeal 2021-002500
Application 14/783,636
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and
BRETT C. MARTIN, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5–14, 17, 19–21, 23, 25, 29, 31,
40–42, 44–47, and 51–66, which constitute all the claims pending in this
application. See Final Act 1 (Office Action Summary). Appellant’s counsel
presented oral argument on August 10, 2021. We have jurisdiction under
35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Aerofoil
Energy Limited.” Appeal Br. 3.
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We AFFIRM the Examiner’s rejections of these claims.
CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to improvements in [open-
fronted] refrigerators.” Spec. 1:3. Apparatus claims 1, 40, and 59 are
independent. Claim 1 is representative of the claims on appeal and is
reproduced below.
1. A refrigerator, comprising:
a body defining a storage space and an open front, the
open front providing access to the storage space;
an air curtain system including an air egress having an
outer edge, the air curtain system configured to produce an air
curtain over at least part of the open front;
a shelf disposed within the storage space, the shelf
having a front edge disposed on a first side of the air curtain;
and
an airfoil having a curved pressure surface facing the
storage space and a curved suction surface opposite the pressure
surface coupled to the shelf and extending across at least part of
the open front at least partially on a second side of the air
curtain such that at least a portion of the air curtain is disposed
between the front edge of the shelf and the airfoil, at least a
portion of the curved pressure surface of the airfoil being in a
plane defined by the shelf and spaced from the front edge of the
shelf, the curved pressure surface and the curved suction
surface of the airfoil collectively configured to straighten a flow
of the air curtain towards vertical.
EVIDENCE
Name Reference Date
Shibusawa et al.
(“Shibusawa”)
US 2008/0205040 A1 Aug. 28, 2008
Hahn et al. (“Hahn”) US 2008/0236182 A1 Oct. 2, 2008
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Nuttall et al. (“Nuttall”) US 8,729,429 B2 May 20, 2014
Sjödin WO 2012/112115 A1 Aug. 23, 2012
Name not listed2 JP 51150569 U Dec. 1, 1976
Makoto JP 2010-207564 Sept. 24, 2010
REJECTIONS
Claims 1, 7, 9–11, 13, 14, 20, 40, 46, 52, 53, 55, 59–62, 65, and 66 are
rejected under 35 U.S.C. § 102(a)(1) as anticipated by Makoto.
Claims 12, 29, and 51 are rejected under 35 U.S.C. § 103 as
unpatentable over Makoto (Fig. 8) in view of Makoto (Fig. 5).
Claims 1–3, 5–7, 9–14, 20, 29, 40–42, 44, 45, and 66 are rejected
under 35 U.S.C. § 103 as unpatentable over [569] and Makoto.
Claims 8 and 47 are rejected under 35 U.S.C. § 103 as unpatentable
over Makoto and Shibusawa.
Claim 8 is rejected under 35 U.S.C. § 103 as unpatentable over [569],
Makoto, and Shibusawa.
Claims 17, 19, 23, 31, 57, 58, 63, and 64 are rejected under 35 U.S.C.
§ 103 as unpatentable over Makoto and Nuttall.
Claims 17, 19, 23, and 31 are rejected under 35 U.S.C. § 103 as
unpatentable over [569], Makoto, and Nuttall.
Claim 21 is rejected under 35 U.S.C. § 103 as unpatentable over
Makoto and Hahn.

2 No applicant is listed in the English Language translation relied upon. The
Examiner refers to this reference as “[569]” (Final Act. 8) and Appellant
employs a similar abbreviation, i.e., “JP ‘569.” Appeal Br. 5. We refer to
this reference as “[569].”
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Claim 54 is rejected under 35 U.S.C. § 103 as unpatentable over
Makoto, Nuttall, and Hahn.
Claim 25 and 56 are rejected under 35 U.S.C. § 103 as unpatentable
over Makoto and Sjödin.
Claim 25 is rejected under 35 U.S.C. § 103 as unpatentable over
[569], Makoto, and Sjödin.
ANALYSIS
The rejection of: (a) claims 1, 7, 9–11, 13, 14, 20, 40, 46, 52, 53, 55, 59–62,
65, and 66 as anticipated by Makoto, and (b) claims 1–3, 5–7, 9–14, 20, 29,
40–42, 44, 45, and 66 as unpatentable over [569] and Makoto
Appellant presents arguments under a heading stating that
independent claims 1, 40, and 59 are allowable over Makoto and [569]. See
Appeal Br. 5. Yet, Appellant only addresses claim 1 thereunder stating,
“[t]he other independent claims include similar recitations and are allowable
for similar reasons.”3 Appeal Br. 10; see also Reply Br. 6 (“While claims 40
and 59 differ in scope from claim 1, they are allowable over the reference of
record for similar reasons.”). Accordingly, we select claim 1 for review.
See also 37 C.F.R. § 41.37(c)(1)(iv) (2019).
Appellant understands that claim 1 is rejected under both § 102
(anticipation) and § 103 (obviousness) stating, “[b]oth rejections of claim 1
rely on the Examiner’s allegation that Makoto discloses ‘a curved pressure
surface and [a] curved suction surface of [an] airfoil collectively configured
to straighten a flow of [an] air curtain towards vertical.’” Appeal Br. 5.
Appellant disagrees with the Examiner’s assessment of Makoto and, as

3 Appellant also separately addresses the rejection of dependent claim 9 (see
Appeal Br. 10) which we separately address below.
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support, Appellant “presented evidence in the form of an Expert
Declaration” to demonstrate “that Makoto does not disclose or suggest an
airfoil” having the recited curved surfaces that are “collectively configured
to straighten a flow of an air curtain towards vertical, as recited in claim 1.”
Appeal Br. 5; see also Reply Br. 4.
The Examiner challenges the usefulness of this Expert Declaration
because the calculations made and the conclusions reached “assume the
airfoil is an N-10 airfoil with a 13 degree angle of attack.” Ans. 21. As
expressed by the Examiner, “[t]here is simply no way that the level of
analysis performed in the affidavit can be ascertained from such a low
resolution figure that is not drawn to scale.” Ans. 22. In other words, while
Makoto “must be considered in its entirety,” the Examiner states that the
Declaration’s content “is far beyond what one of ordinary skill in the art can
reasonably understand from the Figure 8 of Makoto.” Ans. 22; see also id.
at 23. The Examiner further “notes that all conclusions of the affidavit are in
fact from specific dimensions and angles of attack that cannot be understood
from the Figures” and consequently, “all analysis of this Figure 8 is not
accurate to the actual disclosure of Makoto and is not convincing evidence
of Makoto not teaching the limitations.” Ans. 22.
Appellant disagrees on this point referencing both In re Oelrich, 579
F.2d 86 (CCPA 1978) and MPEP § 716.01(c)(III) stating that “[f]actually
based expert opinions on the level of ordinary skill in the art are sufficient to
rebut a prima facie case of obviousness.” Appeal Br. 5. Appellant further
references MPEP § 2125(I) stating “drawings must be evaluated for what
they reasonably disclose and suggest to one of ordinary skill in the art.”
Appeal Br. 9.
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It is noted that the submitted Expert Declaration acknowledges that
“Makoto does not specify the geometry of the feature identified by the
Examiner as an airfoil.” Declaration ¶ 5. Appellant contends that “in the
absence of dimensional information, a skilled artisan must make some
assumptions [to] evaluate the functionality of the Makoto device.” Reply
Br. 3. In other words, the Examiner is correct that “Figure 8 in Makoto is
not drawn to scale.” Final Act. 20. Appellant does not dispute this. See
Appeal Br. 9.
Despite not being drawn to scale, Appellant’s Expert Declaration
provides a graphical illustration of overlaying an airfoil having an N-10
profile onto Makoto’s Figure 8. See Declaration ¶ 7 and accompanying
illustration. Appellant contends that “[t]he N-10 profile used to model
Makoto was selected as the most reasonable airfoil shape based on the
disclosure.” Reply Br. 3; see also Declaration ¶ 5. Yet, as noted above,
there is no indication that Makoto’s Figure 8 (or any of Makoto’s figures)
were drawn to scale that might justify overlaying the figure to arrive at a
particular airfoil profile.
Paragraph 9 of the Expert Declaration provides another example
(again with illustration) of scaling Makoto’s Figure 8 to arrive at an angle of
attack of “approximately 13 degrees.” See also Reply Br. 4. This latter
illustration is replicated below.
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The above shaded overlay of Makoto’s Figure 8 has been presented
by Appellant to establish that Makoto’s angle of attack is “approximately 13
degrees.” Declaration ¶ 9.
Despite the justification presented by Appellant for extracting specific
geometries from a drawing admittedly not drawn to scale,4 our reviewing
court has provided instruction that scaling drawings not drawn to scale is an
act not to be undertaken. For example, Hockerson-Halberstadt, Inc. v. Avia
Group Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000), states that “patent
drawings do not define the precise proportions of the elements and may not
be relied on to show particular sizes if the specification is completely silent
on the issue” (italics added). Here, Makoto is “completely silent on the
issue” of being drawn to scale, and, as noted above, Appellant’s Expert
acknowledges same. See Declaration ¶ 5. In such a situation, Makoto’s
drawings are not to be used to extract “precise proportions of the elements
and may not be relied on to show particular sizes” (such as an airfoil profile
and an angle of attack) as did occur.

4 Appellant justifies such action stating, “FIG 8 of Makoto, relied on by the
Examiner in rejecting claim 1, shows what a skilled artisan would (and did)
reasonably conclude.” Reply Br. 4.
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Even should, for some reason, Appellant be permitted to scale
Makoto’s drawings, it should be understood by Appellant that the size and
orientation depicted in Figure 8 of Makoto may simply be accidental or
random, with no intention of this figure actually limiting the teachings of
Makoto to only that particular profile and/or orientation.5 Hence, the need to
investigate Makoto “as a whole,” as expressed by Appellant (Appeal Br. 9)
and not just one figure. See also Ans. 22 (“the reference must be considered
in its entirety”). However, in view of the overt scaling that was undertaken,
we agree with the Examiner’s assessment of Appellant’s Expert Declaration.
In other words, we agree that because the calculations made and conclusions
reached relied on data obtained by a method not sanctioned by our reviewing
court, this Declaration can be properly considered “not accurate to the actual
disclosure of Makoto and is not convincing evidence of Makoto not teaching
the limitations.” Ans. 22.
Further, and regarding Appellant’s “as a whole” contention mentioned
above with respect to Makoto, Appellant states that this should also include
“portions that would lead away from the claimed invention.” Appeal Br. 9.
We do not disagree. In the matter before us, Appellant addresses Paragraph
60 of Makoto, which discusses Figure 6 thereof and describes Makoto’s air
foil as being “inclined,” thus leading to a negative angle of attack as per
Appellant’s Expert Declaration. See Declaration ¶ 9; Appeal Br. 9 (“when
the reference is considered in its entirety, it is clear to a skilled artisan that
Makoto contemplates a structure with a negative angle of attack”).

5 Similarly, there is no indication that Appellant’s schematic drawings are to
likewise be understood as limiting Appellant’s disclosure to only that profile
and that angle of attack illustrated.
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Paragraph 21 of the Expert Declaration concludes, “the negative AoA [angle
of attack] selected by the Makato [sic.], causes a low pressure bubble on the
pressure side of the structure that actually causes air impacting the leading
edge to move away from the air curtain.” See also Reply Br. 5. Hence, as
per Appellant, Makoto’s device “does not perform in the same manner as the
claimed invention” (Appeal Br. 9; see also id. at 8), which requires the
pressure and suction airfoil surfaces to “collectively” straighten the flow
towards vertical. See also Reply Br. 5–6. In other words, and as per
Appellant, “as explained in the Expert Declaration, only a portion of
Makoto’s air curtain guide is configured to guide air back into the air
curtain” (Appeal Br. 8) due to the negative angle of attack.
However, if one were to actually address Makoto “as a whole,” as
asserted by Appellant above, one would also understand that Makoto
Paragraph 62 addresses Figure 7 thereof, which discusses the airfoil being
“substantially perpendicular ǀ vertical with respect to 23 A.” Thus, this
additional teaching directed to a perpendicular/vertical airfoil would render
moot that portion of Appellant’s contentions asserting/assuming that Makoto
only discloses a negative angle of attack, and the consequences arising from
such an angle of attack as expressed in the Expert Declaration. Furthermore,
Appellant does not explain how their curved air foil can satisfy the
limitations of claim 1, but Makoto’s curved air foil cannot (in the absence of
the Expert Declaration that improperly presumed certain parameters and
made calculations and conclusions based thereon). See also Ans. 23.
In rejecting claim 1, the Examiner relied on Figure 8 of Makoto,
which is discussed in paragraphs 63 and 64 thereof. See Final Act. 3, 9.
Paragraph 63 states that “air curtain guide 30 may be configured as a front
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wall 39” and that this front wall 39 “is a curved surface.” Paragraph 63
further states that “cold air flowing down from the [above] air curtain guide
30 . . . are moved along the curved surface of the front wall 39” and “into the
space (in the space 35).”6 Paragraph 64 explains further that “a cold air
curtain becomes easy to flow in into the space ǀ interval (space 35)” of each
shelf, which “improve[s] the guide effect of a cold airflow.” Paragraph 64
continues discussing the curved surfaces of “upper end 39A and the rear
surface 39C,” but also states that “the present invention is not limited to
this.”
Appellant contends that “Makoto does not disclose or suggest a
suction surface configured to straighten airflow” (the recited “suction
surface” corresponding to one of the elongated surfaces of Makoto’s airfoil).
Appeal Br. 5; see also Reply Br. 7. However, as support for this contention,
Appellant relies on the “Expert Declaration” (see Appellant’s Briefs
generally), which we discount for the reasons expressed above.7 In short,
without such reliance, Appellant does not make clear how Makoto fails to
teach a curved airfoil whose surfaces are “collectively configured to
straighten a flow of the air curtain towards vertical” as recited in claim 1.
Accordingly, and based on the record presented, we sustain the rejections of
independent claim 1.

6 Makoto’s space 35 is identified as the “cold air flow path[] that is open
vertically.” Makoto ¶ 51.
7 Furthermore, what Makoto describes as having been accomplished and
what the Expert Declaration ascertains Makoto actually accomplished (based
upon a scaling of Makoto’s Figure 8) appear to differ. Regardless, the
Expert Declaration does not detract from what Makoto describes as being
accomplish in Makoto’s Specification.
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Appellant also presents separate arguments regarding claim 9, which
depends directly from claim 1. Claim 9 includes the additional limitation of
first and second shelves having first and second airfoils “collectively
defining an open vertical passageway.” Appellant contends that “Makoto
does not disclose or suggest an open vertical passageway” because Makoto
discloses shelves that are mounted in such a manner as to result “in an
angled (non-vertical) passageway between the shelf fronts and air curtain
guides.” Appeal Br. 10 (referencing Makoto Fig. 1). The Examiner,
however, in rejecting claim 9 (whether under anticipation or obviousness)
referenced Figure 1 for disclosing multiple shelves, and relied on Figure 8 of
Makoto for teaching the recited vertical arrangement. See Final Act. 3–4,
10. As discussed above, Makoto is directed to “cold air flowing down from”
above with Makoto’s airfoils improving “the guide effect of a cold airflow.”
Makoto ¶¶ 63, 64. Appellant addresses only Figure 1 of Makoto (see
Appeal Br. 10), and not Figure 8 of Makoto or Makoto “as a whole.”
Appeal Br. 9.
Further, with respect to the rejection under Section 103, the Examiner
not only addressed Makoto Figure 8, but also “Figure 1 of [569].” Final Act.
10; see also Ans. 24 (“[569] clearly shows an absolute vertical
passageway”). Appellant does not explain how this Figure 1 of [569]
likewise fails to teach a vertical orientation.
Appellant does not address any other rejection expressed by the
Examiner, or any other reference but Makoto.8 Accordingly, and based on
the record presented, we sustain the Examiner’s rejections of these claims.

8 As noted above, Appellant’s sole statement regarding [569] is that “JP51-
150569 does not remedy the deficiencies of Makoto.” Appeal Br. 10.
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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 7, 9–11,
13, 14, 20,
40, 46, 52,
53, 55, 59–
62, 65, 66
102 Makoto 1, 7, 9–11,
13, 14, 20,
40, 46, 52,
53, 55, 59–
62, 65, 66

12, 29, 51 103 Makoto 12, 29, 51
1–3, 5–7, 9–
14, 20, 29,
40–42, 44,
45, 66
103 [569], Makoto 1–3, 5–7, 9–
14, 20, 29,
40–42, 44,
45, 66

8, 47 103 Makoto,
Shibusawa
8, 47
8 103 [569], Makoto,
Shibusawa
8
17, 19, 23,
31, 57, 58,
63, 64
103 Makoto, Nuttall 17, 19, 23,
31, 57, 58,
63, 64

17, 19, 23,
31
103 [569], Makoto,
Nuttall
17, 19, 23,
31

21 103 Makoto, Hahn 21
54 103 Makoto, Nuttall,
Hahn
54
25, 56 103 Makoto, Sjödin 25, 56
25 103 [569], Makoto,
Sjödin
25
Overall
Outcome
1–3, 5–14,
17, 19–21,
23, 25, 29,
31, 40–42,
44–47, 51–
66

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED