Brian Cothren et al.

Patent Trials and Appeals Board

Sep 26, 2019

14465562 - (D) (P.T.A.B. Sep. 26, 2019)

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.
14/465,562 08/21/2014 Brian Cothren A1099.10CIP 9283
138988 7590 09/26/2019
Driver McAfee Peek & Hawthorne, P.L.
One Independent Dr.
Suite 1200
Jacksonville, FL 32202
EXAMINER
OSWALD, KIRSTIN U
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
09/26/2019 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):
dboswell@dmphlaw.com
ipdocket@dmphlaw.com
tsaitta@dmphlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRIAN COTHREN and WILLIAM QUILLEN
____________

Appeal 2017-011817
Application 14/465,5621
Technology Center 3700
____________

Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–11. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.

1 The Appeal Brief does not identify a real party in interest, pursuant to
37 C.F.R. § 41.37(c)(1)(i). We note that the present application is
designated as a continuation-in-part of US 13/398,962 (issued as US
9,435,554) (see Spec. 1, ll. 4–6), which is assigned to Athletic Recovery
Zone, LLC, according to documents filed with the USPTO, Reel/Frame
027721/0826 (received Feb. 17, 2012).
Appeal 2017-011817
Application 14/465,562

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ILLUSTRATIVE CLAIM
1. An outdoor heating and cooling system creating an
open temperature-controlled zone comprising:
an air conditioning apparatus producing conditioned air;
a wall member;
a deck member extending from said wall member, said
deck member adapted to support personnel on said deck
member;
a lower air outlet, an upper air outlet and a central air
intake disposed between said lower and upper air outlets; said
central air intake being below said upper air outlet and above
said lower air outlet; said lower air outlet, said upper air outlet
and said central air intake being in communication with said air
conditioning apparatus;
wherein said air conditioning apparatus delivers
conditioned air to said upper and lower air outlets and said
conditioned air is expelled from said upper and lower air
outlets;
wherein the combination of said deck member and said
wall member define an open front, ends and top, and wherein
said conditioned air expelled from said lower and upper air
outlets is drawn through said central air intake and returned to
said air conditioning apparatus, reconditioned by said air
conditioning apparatus, and redelivered to and expelled from
said lower air outlet and said upper air outlet, such that an open
temperature-controlled zone of said conditioned air is defined.
CITED REFERENCES
The Examiner relies upon the following references:
Reed et al. US 3,745,305 July 10, 1973
(hereinafter “Reed”)
Ward et al. US 4,775,001 Oct. 4, 1988
(hereinafter “Ward”)
Johnson US 2011/0100592 A1 May 5, 2011
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Application 14/465,562

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REJECTIONS
I. Claims 1–6 are rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Ward.
II. Claims 1–11 are rejected under 35 U.S.C. § 103 as unpatentable
over Reed and Johnson.
FINDINGS OF FACT
The findings of fact relied upon, which are supported by a
preponderance of the evidence, appear in the following Analysis.
ANALYSIS
Rejection I
In rejecting independent claim 1 as anticipated by Ward, the Examiner
relies upon Ward’s “second vent 43” (see Ward col. 4, ll. 8–12) as teaching
the claimed “lower air outlet” of independent claim 1. Final Action 2;
Answer 17.
The Appellants argue that the rejection is erroneous, because Ward’s
“second vent 43” is an inlet — not an “outlet,” as claimed:
The Examiner . . . has misread the Ward et al. reference.
Element 43 of Ward et al. is not a lower air outlet, it is instead
the opposite — an “inlet vent” (col. 4, lines 59–60; col. 5, line
17). Ward et al. describes this vent as: “The second vent 43 is
provided in the side of the terminal unit 41 and allows air 37 to
be drawn from the under floor space 17 . . .” (col. 4, lines 7–
10). Arrow 37 in Figs. 2, 3 and 4 clearly shows the direction of
air flow through inlet vent 43.
Appeal Br. 16.
In response, the Examiner states:
[E]lement 43 operates as an air outlet, as the air reclaimed into
passageway 14 and 17 and passes under 10 to enter into 43 to
then exit into the HVAC terminal 41. Thus, 43 serves as an air
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Application 14/465,562

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outlet. Further, the office regard as 42 and 43 as the air outlet
from under floor 10 into the space.
Answer 17.
The Appellants contend that Ward’s element 43 operates in a manner
consistent with the “plain meaning” of the word “outlet” as “a vent member
that expels air from the physical structure of the apparatus into the open or
ambient atmosphere.” Reply Br. 22 (citing Ward col. 4, ll. 8–15).
Notably, the Specification refers to an “outlet” as a portal through
which air flows away from an HVAC apparatus into a zone that is the
subject of temperature/HVAC regulation. See, e.g., Spec. 10, l. 22–11, l. 2
(“The HVAC apparatus 25 forces conditioned air through the air delivery
conduits 26 to the lower air outlet 20 and the upper air outlet 21, where the
conditioned air is expelled by the seating system to create a temperature-
controlled zone 30”) (emphasis added). By contrast, as the Appellants point
out (Reply Br. 2–3), Ward’s element 43 does not expel air from an HVAC
apparatus into the ambient atmosphere; rather, Ward’s “second vent 43”
draws air into the inlet chamber 49, from where it is subsequently expelled
into an “air conditioned space”:
Room air terminals 41 are provided at various locations
throughout the air conditioned area and comprise a housing
mounted in the floor and designed to replace one tile of the
raised floor system, the housing having an inlet vent 44 in its
upper surface to draw return air 36 from th[e] conditioned space
into an inlet chamber 49. The second vent 43 is provided in the
side of the terminal 10 unit 41 and allows air 37 to be drawn
from the under floor space 17 and mixed in the inlet chamber
49 with the return air from the air conditioned space. The air

2 Because the pages of the Reply Brief are not numbered, we treat the page
bearing the title as the first page, with the following pages numbered
sequentially thereafter.
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Application 14/465,562

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from the inlet chamber 49 is then blown into an outlet chamber
51 by a fan 46 and the mixed air 35 is then expelled via a vent
42 into the air conditioned space.
Ward col. 4, ll. 3–15 (emphasis added).
Because the Examiner does not adequately show Ward to meet
independent claim 1’s “lower air outlet” limitation, we do not sustain the
rejection of independent claim 1, along with dependent claims 2–6, under
35 U.S.C. § 102(a)(1).
Rejection II
Independent claims 1, 7, and 11 (along with their respective
dependent claims) stand rejected as obvious over Reed and Johnson.
In regard to claim 1, the Appellants argue, in part, that the
combination of references fails to teach or suggest claim 1’s “central air
intake” that is “disposed between said lower and upper air outlets; said
central air intake being below said upper air outlet and above said lower air
outlet.” See Appeal Br. 19–21.
In the Final Office Action, the Examiner states that Reed teaches a
“lower air outlet” and an “upper air outlet,” but concedes that Reed fails to
teach the claimed “central air intake.” Final Action 5–6. Instead, according
to the Examiner, the “central air intake” is taught by Johnson’s element 17
(called an “air return conduit” in the reference, ¶ 22). Id. at 6. The
Examiner states: “Johnson teaches a central air intake (17) disposed
between a lower air outlets (23); said central air intake (17) above said lower
air outlet (23).” Id.
Disputing the rejection, the Appellants ague:
[T]here is nothing “central” about the air return conduit 17 of
Johnson. As clearly illustrated in Fig. 5, the air return conduit
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17 is laterally disposed relative to the lower air outlets 23 of the
deck member 20. . . .
Most importantly, Johnson fails to suggest positioning a
central air intake below an upper air outlet and above a lower
air outlet.
Appeal Br. 20.
Disagreeing with the Appellants’ position, the Examiner responds, in
the Answer, stating:
Appellants . . . rely on the argument that 17 of Johnson is
not “central.” However, the claim never gave a specific
description to “central” in any plane, axis or exact position
relative to the system and thus is merely an adjective to
describing the [“]intake.” Further, 17 of Johnson is central
relative to the outlets 12 of Johnson and vertical element 15 as
seen in Figure 5. Thus, under the broadest reasonable
interpretation 17 is central as it is in between 12 and 15 and
thus central.
Answer 19.
Yet, the claimed “central air intake” must satisfy a particular
configuration of specific claim elements — “disposed between said lower
and upper air outlets; said central air intake being below said upper air outlet
and above said lower air outlet.” (Emphasis added). As the Appellants
point out, this arrangement is not shown in the Examiner’s reliance on the
position of Johnson’s element 15:
The Examiner states that “17 of Johnson is central
relative to the outlets 12 of Johnson and vertical element 15”.
Element 15 is a post holding up a canopy 14 (paragraph [0023],
3rd line). This statement is therefore meaningless with regard to
the claim limitation.
Reply Br. 4 (emphasis added). Accordingly, the combination of Reed and
Johnson presented in the rejection does not satisfy claim 1’s limitation of a
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“central air intake” limitation that is “disposed between said lower and upper
air outlets.”
Independent claims 7 and 11 require essentially the same
configuration of a “central air intake,” a “lower air outlet,” and an “upper air
outlet,” as claim 1. Accordingly, for essentially the same reasons discussed
above, the combination of Reed and Johnson relied upon in the rejection (see
Final Action 9–11, 12–14) does not satisfy the respective “central air intake”
limitations of claims 7 and 11.
Therefore, we do not sustain the rejection of independent claims 1, 7,
and 11, along with dependent claims 2–6 and 8–10 under 35 U.S.C. § 103.
DECISION
We REVERSE the Examiner’s decision rejecting claims 1–6 under
35 U.S.C. § 102(a)(1).
We REVERSE the Examiner’s decision rejecting claims 1–11 under
35 U.S.C. § 103.
REVERSED