Ex Parte Bott et alDownload PDFPatent Trial and Appeal BoardApr 30, 201410567496 (P.T.A.B. Apr. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ERICH BOTT, ROLAND ILLIG, and ANJA NIEDERGESASS ____________ Appeal 2012-005111 Application 10/567,496 Technology Center 3700 ____________ Before JOHN C. KERINS, STEFAN STAICOVICI and LYNNE H. BROWNE, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-005111 Application 10/567,496 2 STATEMENT OF THE CASE Erich Bott et al. (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 21-39. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ invention is directed to a vacuum cleaner configuration. Independent claim 21 is illustrative: 21. A vacuum cleaner comprising a housing and an exhaust opening that is fluidically connected to an overpressure side of a motor/blower unit which is surrounded by an insulating capsule and which is placed inside a blower housing via duct that has a duct section which is arranged while extending between the insulating capsule and the blower housing, wherein a first capsule part of the insulating capsule is joined to a portion of the blower housing while forming a single piece, wherein the housing part of the blower housing is a blower compartment cover on which a second capsule part of the insulating capsule is molded forming another single piece. THE REJECTIONS The Examiner has rejected claims 21-36 under 35 U.S.C. § 102(b) as being anticipated by Herron (US 4,970,753, issued Nov. 20, 1990). The Examiner has also rejected claims 37-39 under 35 U.S.C. § 103(a) as being unpatentable over Herron and Moshenrose (US 2005/0210628 A1, published Sep. 29, 2005). Appeal 2012-005111 Application 10/567,496 3 ANALYSIS Anticipation by Herron The Examiner finds that a U-shaped portion 42 of Herron meets the claim limitation calling for a first capsule part of an insulating capsule joined to a portion of the blower housing. Ans. 4. The Examiner further cites to column 2, lines 36-59 of Herron as disclosing a blower compartment cover having a second capsule part of the insulating capsule molded as a single piece. Id. The Examiner takes the position that “[t]he innermost section of the [top] cover, which would cover the capsule area (18), is part of the insulating capsule.” Ans. 5. The Examiner further explains, in this regard, that the top cover, even though not shown, “must inherently seal at the . . . inner capsule walls in order to force air from the motor through the baffle and out of the exhaust port at 48.” Ans. 7. As such, according to the Examiner, “[t]he cover meets the claimed limitation of a blower compartment cover and a second capsule part molded as another single upper piece.” Ans. 6. The Examiner’s position is not supported by a preponderance of the evidence. While Appellants provide a surrounding capsule in order to direct exhaust flow emanating from exhaust ports disposed at the rear portion of the blower, the exhaust ports 34 in Herron are positioned at the forward end of the blower motor. It does not appear that those exhaust ports are surrounded even by what the Examiner regards as the first capsule part, i.e., the U-shaped wall 42. See Herron, Figs. 1, 3. As such, the Examiner’s position that the top cover must have some element that “must inherently seal at the . . . inner capsule walls” (Id.) is, at best, speculative, and plainly does not amount to a showing that the top cover necessarily has a portion Appeal 2012-005111 Application 10/567,496 4 that meets the claim limitation requiring a second capsule part of an insulating capsule formed as a single piece with the blower compartment cover. Under principles of inherency, when a reference is silent about an asserted inherent characteristic, it must be clear that the missing descriptive matter is necessarily present in the thing described in the reference. Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991). The rejection of claims 21-36 is not sustained. Obviousness--Herron/Moshenrose The rejection of claims 37-39 as being unpatentable over Herron and Moshenrose relies on the same unsupported findings as were relied on in the anticipation rejection, and the Examiner does not rely on Moshenrose to cure those deficiencies. The rejection of claims 37-39 is not sustained. DECISION The rejection of claims 21-36 as being anticipated by Herron is reversed. The rejection of claims 37-39 as being unpatentable over Herron and Moshenrose is reversed. REVERSED mls Copy with citationCopy as parenthetical citation