Ex Parte Cox et al

Patent Trial and Appeal Board

Feb 28, 2017

12869291 (P.T.A.B. Feb. 28, 2017)

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.
12/869,291 08/26/2010 Donald W. Cox WAH-09DV 7590
26875 7590 03/02/2017
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
PEREIRO, JORGE ANDRES
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
usptodock@whe-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD W. COX and
SYED MOHAMMAD SHIBLEE NOMAN
Appeal 2015-004195
Application 12/869,291
Technology Center 3700
Before: CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
THOMAS F. SMEGAL, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from rejections of claims 1
3, 5, 8, 11, and 22. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2015-004195
Application 12/869,291
CLAIMED SUBJECT MATTER
The claims are directed to a modulated power burner system and
method. Claim 1, reproduced below, with emphasis added, is illustrative of
the claimed subject matter:
1. A power burner system for use with a heating appliance
having an air circulating fan, the burner system comprising:
a burner tube;
a gas valve adapted to receive gas from a supply and to
provide gas to said burner tube, said gas valve adjustable to a
plurality of positions to provide gas at a controlled rate;
a variable speed combustion air blower operatively
coupled to said burner tube and adapted to mix air with the gas
from the supply; and
a control communicating with said gas valve and said
combustion air blower, said control operative to modulate said
gas valve and said combustion air blower to control gas flow
from said gas valve and air flow from said blower to maintain
substantially stoichiometric conditions of the air and gas flow
into said burner tube;
wherein said modulation is related to a speed of the air
circulating fan.
REJECTIONS
Claims 1, 2, 5, 8, 11 and 22 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wiker (US 2007/0006865 Al, pub. Jan. 11, 2007),
Sigafus (US 7,293,718 B2, iss. Nov. 13, 2007), and Goranson (US 7,109,447
B2, iss. Sept. 19, 2006).
Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Wiker, Sigafus, Goranson and Hodge (WO 2005/023006 A2, pub. Mar.
17, 2005).
Claims 4, 6, 7, 9 and 10 are objected to as being dependent upon a
rejected base claim, but the Examiner indicated they would be allowable if
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Application 12/869,291
rewritten in independent form including all of the limitations of the base
claim and any intervening claims.
OPINION
The central point of contention in this appeal is that “Wiker ’865 fails
to teach or suggest that modulation of the gas valve and combustion air
blower is related to [claiml], or based upon [claim 22], the speed of an air
circulating fan as claimed.” App. Br. 9. The Examiner’s position on this
point is clarified in the Answer (pp. 11—12) and reproduced below for
convenience.
Wicker ’865 discloses, at paragraph 0008, that “The control system
also modulates combustion air and heating gas to one or more burners
within the oven.” (Emphasis mine) Wicker ’865 further discloses, at
paragraph 0047, that “The burner assembly 42 includes an actuator 48 that
operates an air valve 50 that regulates the amount of air entering the burner
44 from a combustion air blower 52. The actuator 48 controls the position of
the air valve 50 based on signals received from other control instruments
and sensors (not shown) included in oven 10. A valve link 54 coordinates
the movement of the gas valve 56 with that of the air valve 50.” (Emphasis
mine) Clearly the control of the combustion air and the fuel supply is based
on other signals received by the controller. Further on, at paragraph 0052,
Wicker ’865 discloses two convection blowers (26, 27), each powered by a
blower motor (75) and wherein each blower motor may be equipped with a
dedicated speed controller. Also at paragraph 0052, Wicker ’865 states that
with the benefit of individual speed control, the blowers (26, 27) can be
individually accelerated and/or decelerated to optimize the burner firing.
Thereafter at paragraph 0060, Wicker ’865 states “For heating the oven 10 to
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Application 12/869,291
baking or self-cleaning temperatures, one or both of the blower motors
75 . . . start and routinely ramp up to a desired operating speed in a
programmable period of time. Programming the start-up time of convection
blower motors 75 makes firing of the burner 44 more reliable and promotes
better combustion, among other things. When the blowers 26, 27 are
turning, the burner 44 is initially fired with a minimum heat output and
ramped up to the baking or self-cleaning heat output over a period of time
by, for example, a programmable controller (not shown).” (Emphasis mine)
The foregoing makes clear that only after the convection blower(s) are
turning at a particular speed set by the controller, is the burner initially fired
with a minimum output and said burner is thereafter ramped up to the
baking or self-cleaning heat output (i.e., modulated). Therefore, Wiker ’865
discloses, teaches and suggest modulation of a gas valve and a combustion
air blower which is related to, or based at least in part on, a speed of an air
circulating fan. The cited portion of paragraph 60 of Wiker indicates that
“the burner 44 is initially fired with a minimum heat output and ramped up
to the baking or self-cleaning heat output over a period of time” and “[w]hen
the desired heat output has been achieved, the blower motors 75 are
accelerated to operating speed in a programmable period of time.” This
disclosure indicates that the speed of the circulation blowers 26, 27 is
adjusted as a function of the heat output. Appellants themselves
acknowledge the blowers’ speed is controlled based on oven conditions. See
App. Br. 10. Heat output, a component of oven conditions, is a function of
the air and gas supplied to the burner. Therefore, modulation of the air and
gas supplied to the burner, is at least “related to” the speed of circulation
blowers 26, 27. Most of Appellants’ arguments are directed toward
establishing that Wiker does not, or cannot modulate the gas and air for
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Application 12/869,291
combustion based on the speed of the circulating fans. This is not required
by claim 1. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations
not appearing in the claims cannot be relied upon for patentability).
Claim 22, on the other hand, requires a more specific relationship
between the combustion air and gas and the circulating fan speed than is
required by claim 1. That relationship is essentially the inverse of that just
described above with regard to Wiker, in that the gas valve and combustion
air blower modulation must be “based at least in part on” a speed of the air
circulating fan. Unlike claim 1, this language does not allow for the inverse
relationship.
The closest the Examiner comes to demonstrating that this limitation
of claim 22 is met by Wiker, is when the Examiner points out that Wiker
bases the heat output on whether the blowers 26, 27 are turning: “When the
blowers 26, 27 are turning, the burner 44 is initially fired with a minimum
heat output and ramped up . . . .” Ans. supra. Although Wiker provides an
example of a specific speed at which the blowers may be turning during
start-up (para. 60 (“For example, the speed of the blowers may be two-thirds
full speed during start-up”)), Wiker never indicates that this particular speed
is taken into account in determining how to modulate the air and gas
supplied for combustion—only whether or not they are turning. Thus, one
cannot fairly draw the conclusion from this disclosure that “only after the
convection blower(s) are turning at a particular speed set by the controller,
is the burner initially fired with a minimum output and said burner is
thereafter ramped up . . . .” See Ans. supra. (Examiner’s emphasis replaced
with ours). Therefore, one cannot reasonably conclude based on the cited
portion of Wiker that in Wiker’s device the combustion air and gas
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“modulation is based at least in part on a speed of the air circulating fan” as
required by claim 22.
The remaining portions of Wiker’s disclosure relied upon by the
Examiner are not specific enough to account for this deficiency. Generic
disclosures, such as Wiker’s suggestion that control should be “based on
other signals received,” (Ans. supra) will generally not satisfy more specific
claim limitations. MPEP § 2131.02. Further, while it is possible that, if
certain conditions are present, the speed of blowers 26, 27 may affect the
combustion stoichiometry, there is not enough information about the fluid
dynamic properties of Wiker’s oven to determine if this inherently happens.
Even if it does, as Appellants correctly point out (Reply Br. 16—17), Wiker
does not provide sufficient disclosure to demonstrate any appreciation or
accommodation for any such induced draft. See In re Rijckaert, 9 F.3d
1531, 1534 (Fed. Cir. 1993) (rejection reversed because alleged inherency
was based on what would result due to optimization of conditions, not what
was necessarily present in the prior art); see also, In re Robertson, 169 F.3d
743, 745 (Fed. Cir. 1999)(“To establish inherency, the extrinsic evidence
‘must make clear that the missing descriptive matter is necessarily present in
the thing described in the reference’”). None of the other references cited by
the Examiner are relied upon to cure this deficiency.
For the foregoing reasons we sustain the Examiner’s rejection of
claim 1 and reverse the Examiner’s rejection of claim 22. Dependent claims
not separately argued, or argued based only on dependency, fall with
independent claim 1.
DECISION
The Examiner’s rejections of claims 1—3, 5, 8 and 11 are sustained.
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The Examiner’s rejection of claim 22 is reversed.
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)(l)(iv).
AFFIRMED-IN-PART
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