DELTA T, LLC

Patent Trials and Appeals Board

Jul 20, 2021

2020006660 (P.T.A.B. Jul. 20, 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.
16/265,461 02/01/2019 James M. DESMET 1527-533 CON II 5875
35161 7590 07/20/2021
DICKINSON WRIGHT PLLC - WASHINGTON, DC
1825 EYE ST., NW
SUITE 900
WASHINGTON, DC 20006
EXAMINER
SCHULT, ALLEN
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
07/20/2021 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):
dwpatents@dickinsonwright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES M. DESMET, CHRISTIAN R. TABER, and
DAVID R. BANKS
Appeal 2020-006660
Application 16/265,461
Technology Center 3700
Before JENNIFER D. BAHR, DANIEL S. SONG, and
MICHAEL L. WOODS, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 19–36. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). The Appellant identifies the real party in interest as
Delta T, LLC. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to an integrated thermal comfort control
system that utilizes circulating fans. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
19. A system for providing thermal comfort in a space
comprising a plurality of interconnected zones, comprising:
at least one fan positioned in each zone of the space, the at
least one fan comprising an overhead fan for circulating air
within the space and mounted to a ceiling in a room including the
space comprising the plurality of interconnected zones;
a first sensor for sensing an occupancy condition in at least
one of the zones; and
a controller adapted for controlling one of the at least one
fans independent of another of the at least one fans based on the
sensed condition in the at least one zone including the controlled
fan.
Appeal Br. 16 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Sayegh US 4,407,447 Oct. 4, 1983
Imaiida US 5,029,451 July 9, 1991
Mehta US 5,627,527 May 6, 1997
Parker US 5,996,898 Dec. 7, 1999
Hornback US 2005/0078837 A1 Apr. 14, 2005
Smith US 2009/0208333 A1 Aug. 20, 2009
Toy US 2010/0291858 A1 Nov. 18, 2010
Oexman US 2011/0010014 A1 Jan. 13, 2011
Aiken US 2011/0127340 A1 June 2, 2011
Fadell 2012/0125592 A1 May 24, 2012
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REJECTIONS
1. Claims 31 and 32 are rejected under 35 U.S.C. § 112 (pre-AIA),
second paragraph, as being indefinite. Final Act. 5.
The Examiner also rejects various claims under pre-AIA 35 U.S.C.
§ 103(a) as follows:
2. Claims 19–22, 24–26, 34, and 35 as being unpatentable over
Imaiida in view of Parker. Final Act. 7.
3. Claim 23 as being unpatentable over Imaiida in view of Parker
and Fadell. Final Act. 9.
4. Claim 27 as being unpatentable over Imaiida in view of Parker
and Toy. Final Act. 10.
5. Claim 28 as being unpatentable over Imaiida in view of Parker
and Mehta. Final Act. 10.
6. Claim 29 as being unpatentable over Imaiida in view of Parker
and Oexman. Final Act. 11.
7. Claim 30 as being unpatentable over Imaiida in view of Parker
and Hornback. Final Act. 11.
8. Claims 31 and 32 as being unpatentable over Imaiida in view of
Parker and Aiken. Final Act. 12.
9. Claim 33 as being unpatentable over Imaiida in view of Parker
and Smith. Final Act. 13.
10. Claim 36 as being unpatentable over Imaiida in view of Parker
and Sayegh. Final Act. 13.
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OPINION
Rejection 1: Indefiniteness
The Examiner rejects claims 31 and 32 as being indefinite, due to the
terms “particular individual” and “a device” recited in claims 31 and 32,
respectively. Final Act. 5.
Claim 31
Claim 31 recites “[t]he system of claim 19, wherein the sensor is
adapted for detecting the presence of a particular individual.” Appeal Br. 18
(Claims App.). According to the Examiner, “[t]he term ‘particular
individual’ . . . has multiple interpretations which renders the claim
indefinite.” Final Act. 5. Specifically, the Examiner explains that the
recited sensor “can sense the particular individual the same as any other
individual, or the sensor can identify who the particular individual is and
sense that.” Final Act. 5.2
The Appellant argues that the rejection is improper and that the
Examiner’s interpretation that “the sensor can identify who the particular
individual is and sense that” is the correct interpretation.” Appeal Br. 8
(citing Non-Final Action 5 (Jan. 27, 2020)). We agree with the Appellant
that this rejection is improper because the plain and ordinary meaning of the
limitation “a particular individual” is not amenable to multiple
interpretations. The Examiner’s assertion that “particular individual” can be
interpreted such that the sensor “can sense the particular individual the same

2 The Examiner also states that “[f]or the purposes of examination,
‘particular individual’ has been construed to be that the sensor can recognize
the specific person.” Final Act. 5.
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as any other individual,” improperly renders the term “particular”
meaningless. Therefore, we reverse this indefiniteness rejection of claim 31.
Claim 32
Claim 32 recites “[t]he system of claim 19, further including a device
carried by an individual and adapted for being detected by from [sic] the
sensor.” Appeal Br. 18 (Claims App.). According to the Examiner, the
recitation “a device” renders the claim indefinite because it invokes 35
U.S.C. § 112, sixth paragraph, but the Specification “fails to disclose the
corresponding structure, material, or acts for performing the entire claimed
function and to clearly link the structure, material, or acts to the function.
There is no further structure present in the claims for this function of being
carried and being detected by the sensor.” Final Act. 5.
The Appellant argues that the Specification “expressly discloses the
corresponding structure for ‘the device’ so that one of ordinary skill in the
art would recognize the structure for performing the claimed function,” and
in particular, discloses that “a person may have a device, such as a smart
phone.” Appeal Br. 9 (citing Spec. ¶ 983, i.e., Spec. 21). Thus, the
Appellant asserts that “when claim 32 is read in light of the specification,
one skilled in the art would understand what is claimed.” Reply Br. 2.
The Appellant’s argument is unpersuasive. The cited portion of the
Specification teaches that “a person (P) may have a device (D), such as a
smart phone, adapted to communicate with either the fan (110) in a
particular zone, or with the master controller (160) (but potentially limited to
control of a particular fan or fans in the associated zone).” Spec. 21.

3 The Appellant cites to the corresponding publication US 2019/0162433 A1
(pub. May 30, 2019).
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Accordingly, the disclosed device, i.e., smart phone, is used to communicate
with, and control the fan/controller, but is not detected by the sensor as
recited by claim 32. Thus, the Examiner is correct that although the
Specification does disclose a device, “there is no mention of any devices
performing the corresponding function [of] being detected by the sensor,”
and that the disclosed devices are “mentioned in a different context for a
different purpose.” Ans. 13.4 Accordingly, because the Appellant’s
argument does not persuade us of error, we affirm the Examiner’s
indefiniteness rejection of claim 32.

Rejection 2: Imaiida in View of Parker
The Examiner rejects claims 19–22, 24–26, 34, and 35 as being
unpatentable over Imaiida in view of Parker. Final Act. 7. As to
independent claim 19, the Examiner finds that Imaiida discloses a system
having a ceiling fan positioned in each of a plurality of interconnected zones
of a space as claimed, but fails to disclose a sensor for sensing an occupancy
condition in at least one of the zones, or a controller adapted for controlling
a fan independent of another fan based on the sensed condition in the at least
one zone as claimed. Final Act. 7 (citing Imaiida Fig. 9).
The Examiner finds that Parker discloses a fan with a sensor and a
controller, and further finds that such “sensors of [P]arker attached to each
fan would control each fan in accordance with the specific sensor attached to
it via the control system in Parker.” Final Act. 8 (citing Parker Fig. 6). The

4 The Examiner does not reject this claim based on lack of written
description.
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Examiner concludes that it would have been obvious to one of ordinary skill
in the art to modify the system of Imaiida:
by adding sensors and local controllers to each ceiling fan, as
taught by Parker, with a reasonable expectation of success of
arriving at the claimed invention . . . with the motivation of
allowing the ceiling fans to operate even when the HVAC
system does not need to supply airflow allowing the system to
better circulate air when people are present and allow for a
more comfortable environment.
Final Act. 8 (emphasis added).
We agree with the Examiner’s findings and conclusion, and address
the Appellant’s arguments. The Appellant argues that the prior art does not
“contemplate[] controlling the fan in at least one zone independent of
another fan based on the sensed condition” considering that Imaiida “fails to
disclose a sensor or a controller,” and that “Parker only discloses turning a
single ceiling fan on and off based on a passive infrared sensor sensing room
occupancy.” Appeal Br. 10–11.
We initially note that the Appellant’s assertion as to Imaiida is
incorrect in that Imaiida actually does disclose a controller. See Imaiida, col.
5, ll. 49–58 (“wherein means for starting and stopping the fan in
synchronization with the start and stop of the conditioning air generator is
provided in an operation control device of the conditioning air generator.”);
see also Ans. 15 (the rejection finds that “Imaiida does not teach a controller
adapted for controlling a fan independent[ly]. This is not merely stating that
no controller exists in Imaiida (which is obviously incorrect), but instead
that no controller performing the claimed control is found in Imaiida.”). The
rejection set forth modifies the apparatus of Imaiida to “add[] sensors and
local controllers to each ceiling fan, as taught by Parker.” Final Act. 8.
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In addition, the Appellant’s argument is unpersuasive because it
essentially attacks Imaiida and Parker individually. “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, 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,
425 (CCPA 1981). As the Examiner explains:
with the controllers of Figure 6 of Parker placed on the EACH
fan [of Imaiida], both fans have the respective controller and
sensors of Parker. Therefore, each fan in their separate zone is
controlled based on the sensor data in that specific zone thereby
being independent of the other fan’s zone because they are
collecting and controlling based on completely different, local
data.
Ans. 13.
The Appellant also argues that “the Examiner fails to provide any
reason based on a rational underpinning for modifying the Imaiida reference
to utilize a sensors and local controllers for each fan.” Appeal Br. 11.
However, the Examiner’s articulated reason of “allowing the ceiling fans to
operate even when the HVAC system does not need to supply airflow
allowing the system to better circulate air when people are present and allow
for a more comfortable environment” is based on rational underpinnings.
Final Act. 8; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(“there must be some articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness.”).
The Appellant also argues that the reason articulated by the Examiner
in modifying the system of Imaiida “does not qualify as an articulated
reason for combining the references,” and that the rejection “is merely
speculating about a proposed benefit of the combination without citing any
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substantial evidence to support the combination.” Appeal Br. 11–12.
According to the Appellant, the asserted benefit “is completely absent in the
cited references and the only motivation in the record for combining those
references in the manner proposed by the Action is found in the present
application.” Appeal Br. 12. However, notwithstanding the fact that the
reason for the proposed combination need not be explicitly set forth in the
applied art, we agree with the Examiner that “circulating air while people are
present to create a more comfortable environment is literally the point of
Parker and one of ordinary skill in the art would certainly be motivated to
add that functionality to the fans of Imaiida.” Ans. 14; see Parker, col. 1, ll.
22–25.
The Appellant further argues that because Imaiida discloses starting
and stopping the fan synchronously with the start and stop of the air
conditioner, it teaches away from the proposed combination. Appeal Br. 12.
However, we agree with the Examiner that:
the combination does not change the primary function of
Imaiida, but merely adds an addition[al] mode/feature to the
ceiling fans. If the HVAC system is turned on, the ceiling fans
are still synchronously activated . . . [and] while the HVAC
system is not required to change the temperature or other
condition of the air, circulation of the air is still beneficial and
having the controller/sensors of Parker on EACH fan would
allow for that additional feature of being able to circulate
airflow while users are present while not changing the primary
operation of Imaiida.
Ans. 14. Accordingly, if the HVAC system is off and a condition
warranting circulation is not present, such as lack of occupancy, the fans
may be turned off. Thus, we do not agree with the Appellant that Imaiida
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teaches away from providing such additional functionality provided by the
proposed modification to Imaiida.
Therefore, in view of the above, we affirm the Examiner’s rejection of
independent claim 19. Except for specific arguments directed to various
dependent claims addressed below, the Appellant relies on dependency for
patentability of dependent claims 20, 25, 26, and 34. Accordingly, claims
20, 25, 26, and 34 fall with claim 19. Appeal Br. 12.
Claim 21
Claim 21 depends from claim 19 and recites “wherein the controller
comprises a master controller for controlling each fan in the space.” Appeal
Br. 16 (Claims App.). The Appellant argues that “if Imaiida does not
disclose the controller recited in claim 19, it cannot disclose that the
controller is a master controller as recited in claim 21.” Appeal Br. 13.
However, as discussed above, the assertion of the Appellant as to Imaiida
lacking a controller is incorrect. The Appellant also submits new arguments
in its Reply Brief seeking to distinguish the recited “master controller” from
the controller of Imaiida. Reply Br. 4. However, we decline to consider
such belated arguments submitted without a showing of good cause for the
delay. 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief
which was not raised in the appeal brief . . .with not be considered by the
Board . . . unless good cause is shown.”). Therefore, we affirm this rejection
as to claim 21.
Claim 22
Claim 22 depends from claim 19 and recites “further including an
individual controller for controlling at least one of the fans.” Appeal Br. 17
(Claims App.). The Appellant argues that because of its dependency on
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claim 19, claim 22 requires more than one fan, and that because “Parker only
discloses a single ceiling fan . . . it cannot possibly disclose an individual
controller for each of the fans.” Appeal Br. 13. However, as the Examiner
explains, the Appellant argues Parker individually, and in the rejection “[t]he
control/sensor system of Parker is applied to EACH fan of Imaiida, thereby
giving them independent control based on their respective local data
collected from their own sensors.” Ans. 15.
The Appellant further argues that the rejection is improper because
“claim 19 recites a controller, while claim 22 recites an individual controller.
The Examiner appears to point to the same controller in Parker as both of
these elements, which is improper.” Appeal Br. 13. However, the basis of
the Appellant’s distinction between “a controller” and “an individual
controller” is not clarified by any limitation that distinguishes structure or
function therebetween. In particular, the recited “controller” of claim 19 is
“for controlling one of the at least one fans independent of another,” while
the recited “individual controller” of claim 21 is “for controlling at least one
of the fans.” Appeal Br. 16–17 (Claims App.). Accordingly, it is not
apparent that there is any distinction between the controllers in these claims
so as to distinguish the controllers provided by the proposed combination of
Imaiida and Parker.5 Moreover, to any extent that an “individual controller”
is separate from a “controller,” we further observe that making elements of a
device integral or separate is generally considered to be an obvious design
choice and does not render an invention patentable unless such construction
is for an unobvious purpose or results in an unobvious effect. See In re

5 We note that the Examiner did not reject this claim as being indefinite.
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Larson, 340 F.2d 965, 968 (CCPA 1965); In re Fridolph, 309 F. 2d 509, 512
(CCPA 1962). Therefore, in view of the above, we also affirm the rejection
of claim 21.
Claim 24
Claim 24 depends from claim 19 and recites “further including an
HVAC system for conditioning the space, said HVAC system controlled by
the controller.” Appeal Br. 17 (Claims App.). The Appellant argues that
“[a]gain, the Examiner admits that Imaiida does not teach a controller in
claim 19, so it cannot disclose that the HVAC system is controlled by the
controller that is admittedly lacking.” Appeal Br. 14. However, this
argument is unpersuasive for reasons already discussed above in that Imaiida
discloses a controller. See Ans. 15.
Claim 35
Claim 35 depends from claim 19 and recites “wherein the controller is
adapted to activate or shutdown a fan in any zone depending upon a sensed
thermal and/or occupancy condition.” Appeal Br. 19 (Claims App.). The
Appellant argues that “nowhere does Parker even remotely contemplate
activating or shutting down ‘a fan in any zone’ as it only discloses a single
fan in a single zone.” Appeal Br. 14–15. Again, the Appellant argues
Parker individually. Imaiida clearly discloses multiple fans, and thus,
multiple zones. Hence, the rejection of claim 35 is also affirmed.

Rejections 5, 7, and 8: Claims 28 and 30–32
As to claims 28 and 30–32, the Appellant does not proffer separate
arguments directed to the limitations of these claims, but relies on their
dependency on claim 19 for patentability, and also asserts that the
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Examiner’s application of the additional tertiary references in these
rejections does not remedy the deficiencies of the combination of Imaiida
and Parker. Appeal Br. 12. Accordingly, having found no deficiencies as to
the proposed combination of Imaiida and Parker, we affirm these rejections.

Rejections 3, 4, and 6: Claims 23, 27, and 296
These claims recite peripherally related features such as a hand held
device (claim 23) or an automated blind (claim 29), or the positioning of the
sensors (claim 27). Appeal Br. 17–18 (Claims App.). The Examiner relies
on various tertiary references in rejecting the claims, and reasons that the
proposed combination would have been obvious in order to make the system
“more convenient” or “more easily accessible.” Final Act. 10, 11. In
addition to relying on ultimate dependency on claim 19, the Appellant
simply argues that such reasons of convenience or accessibility “cannot
qualify as a proper motivation or reason to combine the reference
teachings.” Appeal Br. 13–14.
We do not agree with the Appellant. General considerations such as
convenience and accessibility can serve as a basis for modifying a prior art
apparatus. See Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H.
Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (implicit motivation to

6 For Rejections 3, 4, 6, 9, and 10 addressed here and below, the Appellant
fails to provide separate headings identifying the rejection being argued as
required by 37 C.F.R. § 41.37(c)(iv) (“Each ground of rejection contested by
appellant must be argued under a separate heading, and each heading shall
reasonably identify the ground of rejection being contested.”). Although we
overlook this deficiency in this case, the Appellant is advised that the Board
need not consider such improperly presented arguments.
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combine exists when the improvement is technology-independent and the
combination of references results in a product that is more desirable, for
example, because it is stronger, cheaper, cleaner, faster, lighter, smaller,
more durable, or more efficient). In that regard, the Examiner explains in
further detail how the proposed combination would improve convenience or
accessibility, and thus, would have been obvious to one of ordinary skill.
Ans. 15–16. The Appellant does not provide a persuasive rebuttal. Thus,
we agree with the Examiner’s assessments, and affirm the rejections of
claims 23, 27, and 29.

Rejection 9: Claim 33
Claim 33 depends from claim 19 and recites “wherein a user is
allowed to control the fan in the at least one zone by transmitting a code to
the controller.” Appeal Br. 18 (Claims App.). The Examiner rejects claim
33, finding that “Smith teaches a user is allowed to control the fan in the at
least one zone by transmitting a code to the controller.” Final Act. 13 (citing
Smith ¶ 112, ll. 4–11). The Examiner concludes that it would have been
obvious for one of ordinary skill in the art to have further modified Imaiida
“by making the user enter a code to be able to control the system, as taught
by Smith . . . with the motivation of preventing anyone except specific
people from messing with the HVAC controls.” Final Act. 13.
The Appellant argues that the Examiner relies on the remote control
of Smith for this teaching, but “the passage of Smith that the Examiner relies
upon . . . is silent regarding ‘transmitting a code.’” Appeal Br. 14. Although
the cited portion of Smith does not include the term “transmitting a code,”
the Examiner is correct that it teaches that “the user must enter a password to
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prevent setting from being unwantedly changed.” Ans. 16; see Smith ¶ 12,
ll. 4–11. We agree with the Examiner that “[s]ubmitting a password with the
remote control to the control system certainly qualifies as transmitting a
code.” Ans. 16. Accordingly, we affirm the rejection of claim 33.

Rejection 10: Claim 36
Claim 36 depends from claim 19, and recites, inter alia, that “the
controller is adapted for controlling an HVAC system.” Appeal Br. 19
(Claims App.). The Appellant argues that because “Imaiida does not
disclose the controller recited in claim 19, it cannot disclose that the
controller is adapted for controlling an HVAC system recited in claim 36.”
Appeal Br. 15. This argument is unpersuasive for the reasons discussed
above relative to claims 19 and 21. Ans. 15. Accordingly, we affirm the
rejection of claim 36.
CONCLUSION
The Examiner’s rejections are affirmed, except for the indefiniteness
rejection of claim 31, which is reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
31, 32 112 Indefiniteness 32 31
19–22, 24–
26, 34, 35
103(a) Imaiida, Parker 19–22, 24–
26, 34, 35

23 103(a) Imaiida, Parker,
Fadell
23
27 103(a) Imaiida, Parker,
Toy
27
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28 103(a) Imaiida, Parker,
Mehta
28
29 103(a) Imaiida, Parker,
Oexman
29
30 103(a) Imaiida, Parker,
Hornback
30
31, 32 103(a) Imaiida, Parker,
Aiken
31, 32
33 103(a) Imaiida, Parker,
Smith
33
36 103(a) Imaiida, Parker,
Sayegh
36
Overall
Outcome
19–36

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