Ex Parte Daniels et alDownload PDFPatent Trial and Appeal BoardJun 11, 201310564566 (P.T.A.B. Jun. 11, 2013) Copy Citation 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. 10/564,566 01/13/2006 Michael Daniels TFEL0001 2026 30438 7590 06/12/2013 SMYRSKI LAW GROUP, A PROFESSIONAL CORPORATION 3310 AIRPORT AVENUE, SW SANTA MONICA, CA 90405 EXAMINER PATEL, VINOD D ART UNIT PAPER NUMBER 3742 MAIL DATE DELIVERY MODE 06/12/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL DANIELS and PHILIP WILKIE ____________ Appeal 2011-002740 Application 10/564,566 Technology Center 3700 ____________ Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and ADAM V. FLOYD, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-002740 Application 10/564,566 2 STATEMENT OF THE CASE Michael Daniels and Philip Wilkie (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting under 35 U.S.C. § 103(a) claims 1-3, 12, 13, and 17 as unpatentable over Mills (US 4,677,281, iss. Jun. 30, 1987), Gordon (US 3,222,497, iss. Dec. 7, 1965), and Sopory (US 6,492,629 B1, iss. Dec. 10, 2002). Claims 4-11, 14-16, and 18-28 have been canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). INVENTION Claim 1 is representative of the claimed invention and reads as follows: 1. A heating cable comprising: a first conductor which extends along the length of the cable; a second conductor which extends along the length of the cable; a separation layer which extends along the length of the cable and is interposed between the first and second conductors; and an outer insulating jacket extending along the length of the cable and around the first and second conductors and the separation layer; wherein the first and second conductors are connected at a first end of the cable in series such that current can flow in both directions through the first and second conductors and when the first and second conductors are connected at a second end of the cable to an AC power supply equal currents flow in opposite directions through adjacent portions of the first and second conductors; and wherein the separation layer is formed such that the separation layer has a negative temperature characteristic, and the first conductor is formed such that the first conductor has a positive temperature characteristic. SUMMARY OF DECISION We REVERSE. Appeal 2011-002740 Application 10/564,566 3 ANALYSIS Independent claim 1 requires, inter alia, “equal currents flow in opposite directions through adjacent portions of the first and second conductors.” App. Br., Claims Appendix. Pointing to column 4, lines 29-37 and Figures 2 and 3 of Mills, the Examiner found that because the “Quadrac” of Mills conducts current in either direction, Mills discloses that, “equal currents flow in opposite directions through adjacent portions of the first and second conductors [14 and 12].” Ans. 4-5 and 10. The Examiner further opines that the periodical reversal of electrical charges in Mills’ AC current likewise constitutes “equal current[] flow in opposite directions.” Ans. 5-6 and 10-11. Although we appreciate the Examiner’s position that the “Quadrac” of Mills conducts electrical current in either direction, nonetheless, as noted by Appellants, independent claim 1 requires that the currents flowing in opposite directions through adjacent portions of the first and second conductors also be “equal.” App. Br. 9; see also Reply Br. 2. We could not find any portion in Mills and the Examiner has not pointed to any portion that discloses that the currents flowing through the first conductor 14 and the second conductor 12 are “equal,” as the Examiner contends. Thus, the Examiner has not made any finding as to the particular currents called for in independent claim 1, namely, “equal currents.” We further agree with Appellants that an “alternating current is only equal and opposite to itself.” Reply Br. 5. Hence, merely because an alternating current is opposite and equal to itself, does not show, without more, that the alternating currents flowing through the first conductor 14 and the second conductor 12 of Mills are also opposite and equal, as the Examiner contends. Gordon and Sopory do not remedy the deficiencies of Mills as described supra. See Ans. 10. Appeal 2011-002740 Application 10/564,566 4 As such, the Examiner’s legal conclusion of obviousness is not supported by facts, and thus, cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (holding that “[t]he legal conclusion of obviousness must be supported by facts. Where the legal conclusion is not supported by facts it cannot stand.”). Therefore, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 103(a) of claims 1-3, 12, 13, and 17 as unpatentable over Mills, Gordon, and Sopory. SUMMARY The decision of the Examiner to reject claims 1-3, 12, 13, and 17 is reversed. REVERSED mls Copy with citationCopy as parenthetical citation