TERAI, Nobuhiro et al.

Patent Trials and Appeals Board

Jan 22, 2020

14785930 - (D) (P.T.A.B. Jan. 22, 2020)

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.
14/785,930 10/21/2015 Nobuhiro TERAI 26H_102_TN 4329
23400 7590 01/22/2020
POSZ LAW GROUP, PLC
12040 SOUTH LAKES DRIVE
SUITE 101
RESTON, VA 20191
EXAMINER
SCHULT, ALLEN
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
01/22/2020 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NOBUHIRO TERAI, MINORU SHIBATA,
YASUHIRO MARUTA, SHIZUO SANJO, HIDENORI UNO, and
NOBUYA SAKIMOTO
____________

Appeal 2019-004541
Application 14/785,930
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHAEL J. FITZPATRICK, and
WILLIAM A. CAPP, Administrative Patent Judges.

Opinion Concurring filed by Administrative Patent Judge FITZPATRICK.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Office Action (dated July 13, 2018) rejecting claims 1–
5. We have jurisdiction over this appeal 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. Toyoda Gosei Co., Ltd. and Toyota Jidosha Kabushiki
Kaisha are identified as the real parties in interest in Appellant’s Appeal
Brief (filed Feb. 21, 2019). Appeal Br. 2.
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SUMMARY OF DECISION
We AFFIRM.

INVENTION
Appellant’s invention is directed “to a front defroster nozzle device
for a vehicle.” Spec. para. 1.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. A front defroster nozzle device including a narrow blow
opening formed in an instrument panel below a windshield
of a vehicle and extending in direction of vehicle width,
wherein
the blow opening is divided into a plurality of sections in
longitudinal direction of the vehicle, a first one of which is a
front blow-opening, which is adjacent to the windshield, and a
second one of which is a rear blow-opening, which is adjacent
to the front blow-opening and is further inside an interior of the
vehicle than the front blow-opening,
more of a current of air from the front blow-opening is
sent to left and right end portions of the windshield than to a
center of the windshield, and more of a current of air from the
rear blow-opening is sent to a central portion of the windshield
than to left and right end portions of the windshield,
a volume of air blown from the rear blow-opening per
unit time is larger than a volume of air blown from the front
blow-opening per unit time, and the front defroster nozzle
device includes a blow outlet, which is divided into the front
blow-opening and the rear blow-opening by a partition,
the rear blow-opening is configured such that air from the
rear blow-opening is primarily directed to a trapezoidal area
that is centrally located on the windshield, and the trapezoidal
area extends from lateral ends of the rear blow-opening to upper
corners of the windshield and is tapered such that a lower
section of the trapezoidal area is smaller than an upper section
of the trapezoidal area, in a lateral direction of the vehicle, and
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the front blow-opening is configured such that air from
the front blow-opening, most of which is sent to left and right
end portions of the windshield, is primarily directed to areas of
the windshield that are below the trapezoidal area.

REJECTIONS
I. The Examiner rejects claims 1–5 under 35 U.S.C. § 103 as
being unpatentable over Isao2 and Nihon.3
II. The Examiner rejects claim 4 under 35 U.S.C. § 103 as being
unpatentable over Isao, Nihon, and Fischer.4

ANALYSIS
Rejection I
Appellant does not present arguments for the patentability of claims
2–5 apart from claim 1. See Appeal Br. 11 (“Claims 2-5 depend on claim 1
and should be patentable at least for the reasons given above in the
discussion of claim 1 above.”). Therefore, in accordance with 37 C.F.R.
§ 41.37(c)(1)(iv), we select claim 1 as the representative claim to decide the
appeal of the rejection of these claims, with claims 2–5 standing or falling
with claim 1.
The Examiner finds that Isao discloses most of the limitations of
independent claim 1 including, inter alia, front-blow opening 21a, adjacent a
vehicle windshield and a rear-blow opening 22a, adjacent front-blow

2 Isao et al., JP 2000-233721 A, published Aug. 29, 2000. We derive our
understanding of this reference from the translation contained in the image
file wrapper of this application. All references to the text of this document
are to portions of the translation.
3 Nihon, JP 61-177907, published Nov. 6, 1986.
4 Fischer, US 5,934,988, issued Aug. 10, 1999.
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opening 21a and located further inside the vehicle, wherein front-blow
opening 21a is configured to blow air onto a trapezoidal central area “a” of
the windshield and rear-blow opening 22a is configured to blow air onto
right and left portions “b” of the windshield. Final Act. 3–4 (citing Isao,
Figs. 1, 7). The Examiner further finds that “Isao does not teach that the
front blow-opening sends air to the left and right and the rear-blowing
opening sends [air] to the central portion of the windshield.” Id. at 4.
Nonetheless, the Examiner finds that Nihon teaches front-blow openings 21–
23 configured to blow air onto right and left portions of a windshield and
rear-blow opening 24 configured to blow air onto a central portion of the
windshield. Id. (citing Nihon, Fig. 1).
Thus, the Examiner determines that “it would have been obvious for
one of ordinary skill in the art to have modified the teachings of Isao by
switching the front and rear blow-openings, as taught by Nihon” in order to
“hav[e] the rear-blow opening further away from the windshield so that it
has a more direct path to the top of the windshield, thereby defrosting the top
more quickly.” Id.
Appellant argues that because the volume of air blown from Isao’s
front blow-opening 21a and Nihon’s front-blow openings 21–23 is larger
than a volume of air blown from rear blow-opening 22a and 24, respectively,
the combined teachings of Isao and Nihon fail to disclose “that a volume of
air blown from the rear blow-opening is larger than a volume of air blown
from the front blow-opening.” Appeal Br. 6.
We are not persuaded by Appellant’s argument because it is not
commensurate with the Examiner’s rejection, where, in view of Nihon, “the
front and rear blow openings [21a, 22a] of Isao are reversed (the front
becomes the rear and the rear becomes the front, i.e. they switch places).”
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Advisory Act. 2.5 Hence, as the cross-sectional area of Isao’s blow-opening
21a is larger than that of blow-opening 22a (see id.), in the device of Isao, as
modified by Nihon, a volume of air blown from blow-opening 21a, which
constitutes a rear blow-opening, is larger than a volume of air blown from
blow-opening 22a, which constitutes a front blow-opening.
Appellant further argues that “it is not logical to move the central
openings 21a [of Isao] rearward to send more air to the top of the windshield
because that would deprive the bottom of the windshield of air flow.”
Appeal Br. 7. According to Appellant, “[i]f the front nozzle were shifted
rearward . . . the flow of air from the central nozzles 21a would be directed
to a higher location of the window glass 1, and the lower edge of the
windshield 1 of Isao would not receive air,” and, thus, “the [E]xaminer’s
proposed modification would leave the lower central part of the windshield 1
undefrosted.” Id. at 8.
Appellant’s arguments are not persuasive as such arguments amount
to attorney argument that cannot take the place of evidence in the record. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what
seems to follow from common experience is just attorney argument and not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness.”). We appreciate Appellant’s position that moving blow-
opening 21a rearward of blow-opening 22a would direct airflow to a
somewhat higher location on windshield 1. However, we are not persuaded
that such a location would not overlap a portion of Isao’s central part 1a of
windshield 1, and, thus, the lower edge of the windshield 1 of Isao, as
modified by Nihon, would still receive air, albeit at a lower level. See Isao,

5 Examiner’s Advisory Action, dated Sept. 25, 2018.
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paras. 19, 27, Fig. 1. The Examiner is correct that moving blow-opening
21a rearward of blow-opening 22a would still direct air to a central part of
windshield 1, i.e., central part 1a. Ans. 3–4.6 Appellant has not proffered
evidence or a line of reasoning tending to show that moving blow-opening
21a rearward of blow-opening 22a would have discouraged a skilled artisan
from making the combination to attain the potential advantage of providing a
“more direct path [of air] to the top of the windshield, thereby defrosting the
top more quickly.” See Final Act. 4. “The fact that the motivating benefit
comes at the expense of another benefit, however, should not nullify its use
as a basis to modify the disclosure of one reference with the teachings of
another. Instead, the benefits, both lost and gained, should be weighed
against one another.” Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340,
1349 n.8 (Fed. Cir. 2000).
Appellant also argues that “[i]f the rear nozzles 22a were shifted
forward, as proposed by the [E]xaminer,” such movement “would
undermine Isao’s purpose of using the outer nozzles 22a to clear frost from
the part of the side window 5 that is near the rear-view mirror 6.” Appeal
Br. 8–9 (citing Isao, Fig. 1).
We are not persuaded by Appellant’s argument because it is not
commensurate with the Examiner’s combination of Isao and Nihon, where,
in view of Nihon, Isao’s blow-opening 21a is moved rearward of blow-
opening 22a. See Final Act. 3–4. In other words, Isao’s blow-opening 22a
is not shifted forward, as Appellant asserts, but rather remains in the same
location, and, thus, air blown through blow-opening 22a continues to be
directed to side portions 1b of windshield 1, which clears frost from side

6 Examiner’s Answer, dated Apr. 10, 2019.
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window 5. See Isao, Fig. 1. Such an interpretation of the Examiner’s
rejection is consistent with the Examiner’s reasoning to modify Isao,
according to Nihon, namely, to provide a “more direct path [of air] to the top
of the windshield [1], thereby defrosting the top more quickly,” which is
provided by air blown through blow-opening 21a and not blow-opening 22a.
See Final Act. 4.
We are also not persuaded by Appellant’s assertion that in the
modification of Isao, according to Nihon, “the air will not be uniformly
distributed” because the airflows from nozzles 21a, 22a “will interfere with
one another” due to shifting of rear nozzles 22a forward and forward nozzles
21a rearward. See Appeal Br. 9.
Appellant’s argument does not address the Examiner’s modification
of Isao, according to Nihon. As discussed supra, in the Examiner’s
rejection, Isao’s blow-opening 21a is shifted rearward, whereas blow-
opening 22a is not shifted forward, as Appellant asserts, but rather remains
in the same location. As such, because blow-opening 22a is not shifted
forward in the combination of Isao and Nihon, we do not agree with
Appellant’s contention that part 1b of windshield 1 where air from blow-
opening 22a strikes the glass would be narrower. See Appeal Br. 9.
Accordingly, Appellant’s contention that in the modification of Isao,
according to Nihon, “the air will not be uniformly distributed” (see id.)
constitutes unsupported attorney argument. See In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984) (Arguments and conclusions unsupported by
factual evidence carry no evidentiary weight.).
Lastly, Appellant argues that “one of ordinary skill in the art would
not modify the ducts of Isao with those of . . . [Nihon] because . . . [Nihon]
shows the type of ducts that extend across the entire instrument panel, which
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is the type of duct that is described as problematic in the background section
of Isao.” Appeal Br. 10.
We are not persuaded by Appellant’s argument, because obviousness
does not require that all of the features of the secondary reference be bodily
incorporated into the primary reference. In re Keller, 642 F.2d 413, 425
(CCPA 1981). The artisan is not compelled to blindly follow the teaching of
one prior art reference over the other without the exercise of independent
judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed.
Cir. 1984). Here, the Examiner is not proposing to use the particular size of
Nihon’s front-blow openings 21–23 and rear-blow opening 24. See Ans. 5
(“The sizing of the respective ducts in Nihon is not brought into Isao.”).
Rather, the Examiner is employing “the relative forward and rearward
positioning” of nozzles aimed centrally and sideways at a windshield. See
id.
In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 103 of independent claim 1 as unpatentable over Isao and
Nihon. Claims 2–5 fall with claim 1.

Rejection II
Appellant relies on the same arguments discussed supra with respect
to the rejection of independent claim 1. See Appeal Br. 11.
Therefore, for the same reasons discussed above, we likewise sustain
the rejection under 35 U.S.C. § 103 of claim 4 as unpatentable over Isao,
Nihon, and Fischer.

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CONCLUSION

Claim(s)
rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5 103 Isao, Nihon 1–5
4 103 Isao, Nihon,
Fischer
4
Overall
outcome
1–5

No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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FITZPATRICK, Administrative Patent Judge, concurring.
I concur in the majority’s Decision to affirm the rejections of claims
1–5. I join most of the Decision with the exception of its treatment of
Appellant’s argument that “[i]f the rear nozzles 22a were shifted forward, as
proposed by the [E]xaminer,” such movement “would undermine Isao’s
purpose of using the outer nozzles 22a to clear frost from the part of the side
window 5 that is near the rear-view mirror 6.” Appeal Br. 8–9 (citing Isao,
Fig. 1).
The Decision characterizes the above-quoted argument as “not
commensurate with the Examiner’s combination of Isao and Nihon, where,
in view of Nihon, Isao’s blow-opening 21a is moved rearward of blow-
opening 22a [but] blow-opening 22a is not shifted forward.” Supra 6 (citing
Final Act. 3–4). I disagree with the Decision’s characterization of
Appellant’s argument and thus its conclusion that is not commensurate with
the Examiner’s rejection.
The Examiner concluded that, “[a]t the time the invention was
effectively filed, it would have been obvious for one of ordinary skill in the
art to have modified the teachings of Isao by switching the front and rear
blow-openings.” Final Act. 4 (emphasis added). The Examiner further
stated that “Nihon is used to show that the front and rear blow openings of
Isao are reversed (the front becomes the rear and the rear becomes the front,
i.e. they switch places).” Advisory Act. 2 (emphasis added). Thus,
Appellant’s argument is commensurate with the Examiner’s rejection.
Accordingly, we must resolve it on the merits.
The Examiner provides two responses to Appellant’s argument.
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First, the Examiner states that “[m]oving 22a forward would not stop
the airflow from being deflected to the side window in the bottom corner as
shown with Item 6. Therefore, the same area of the windshield would be
defrosted.” Ans. 4. I am not persuaded by this argument, as it appears to be
based purely on Examiner speculation and not evidence.
Second, the Examiner states that, one of ordinary skill in the art would
understand how to aim the modified outlets 22a at the same portion of the
windshield as they were aimed prior to the modification. Id. I find this
argument persuasive in light of the prior art of record as well as common
sense. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”).
Appellant replies that this second point by the Examiner cannot be
relied upon by the Examiner without forfeiting the reasoning underlying the
proposed modification of Isao. Appellant explains as follows:
It is inconsistent to say the motivation to modify Isao is to direct
more airflow to the top of the windshield while also saying it
would be obvious, after the modification, to aim the outlet to
cover the lower area of the windshield as it was before the
modification. If the outlet must be re-aimed to cover the lower
part of the windshield after the modification, then the motivation
to modify Isao cannot be to direct airflow to the top of the
windshield. The inconsistency of these arguments highlights the
non-obviousness of the combination and the lack of a teaching,
suggestion, or motivation in the prior art that would have led one
of ordinary skill to modify the prior art reference or to combine
prior art reference teachings to arrive at the claimed invention.
Reply Br. 3. Appellant is mistaken. The motivation cited by the Examiner
to direct airflow more directly at the top of the windshield (see Final Act. 4)
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is not mutually exclusive with a desire to maintain Isao’s airflow (from
separate outlets) at other portions of the windshield.
For the forgoing reasons, I concur in the Decision to affirm the
rejections of claims 1–5.