12842821 (P.T.A.B. Mar. 14, 2017)

Ex Parte Deng

Patent Trial and Appeal BoardMar 14, 2017

12842821 (P.T.A.B. Mar. 14, 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. 12/842,821 07/23/2010 David Deng ZR990-17065 4869 22884 7590 03/16/2017 MTDDT FTON Rr RFT ITT TNOFR EXAMINER 401 S. 4th Street, Suite 2600 CAHILL, JESSICA MARIE (2600 Brown & Williamson Tower) LOUISVILLE, KY 40202 ART UNIT PAPER NUMBER 3753 NOTIFICATION DATE DELIVERY MODE 03/16/2017 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): U S PTOmail @ middreut. com US PTOmail @ middletonlaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID DENG Appeal 2015-002769 Application 12/842,821 Technology Center 3700 Before EDWARD A. BROWN, LEE L. STEPINA, and FREDERICK C. LANEY, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2015-002769 Application 12/842,821 CLAIMED SUBJECT MATTER The claims are directed to a dual fuel heater or heating source with a nozzle. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A dual fuel heating source comprising: a burner; and a nozzle having a body, the body defining an outlet opening, an inlet, and a wall forming an inner chamber, the wall shaped to direct flow between the inlet and the outlet but otherwise the inner chamber being an open chamber without obstruction between the inlet and the outlet; said outlet in fluid communication with said inlet, said outlet defining a flow area and configured to direct a flow of fuel to said burner; wherein a first position of said nozzle defines a first and a second position of the nozzle defines a second minimum cross- sectional flow area smaller than the first minimum cross- sectional flow area. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Ferri US 2,986,002 May 30, 1961 Ward US 2005/0167530 A1 Aug. 4, 2005 Deng US 2008/0153044 A1 June 26, 2008 REJECTIONS1 (I) Claims 1—4, 6—12, and 14—19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Deng and Ferri. 1 The Examiner withdrew a rejection of claim 20 under 35 U.S.C. § 112, second paragraph, as indefinite. Ans. 9; see also Final Act. 2—3. 2 Appeal 2015-002769 Application 12/842,821 (II) Claims 5, 13, and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Deng, Ferri, and Ward. OPINION Each of independent claims 1,11, and 20 is directed to a dual-fuel heater or heating source and recites, among other elements, a nozzle. See Br. 9—10. The dispositive issue in this Appeal is whether Ferri, which is relied upon in both of Rejections (I) and (II), is analogous art. See Br. 4—8. Specifically, the Examiner finds that Deng discloses most of the features recited in claims 1,11, and 20, but does not disclose “a nozzle with a first position different from a second position with two different minimum cross- sectional flow areas,” as recited by claim 1, and similar features recited by claims 11 and 20. Final Act. 4, 6, 8. However, the Examiner finds that Ferri remedies these deficiencies. Final Act. 4, 6—8. The Examiner finds that Ferri is analogous art, stating: Ferri may state that the application relates to an exhaust nozzle for jet propulsion devices. However, there is no requirement that such a sentence in the application completely defines the invention’s field of endeavor. Ferri’s field of endeavor relates to nozzle construction and fluid flow through a nozzle (see col. 1, lines 46-55). It’s application is in jet propulsion devices, but it is more broadly in the field of nozzle fluid flow. Second, Ferri is reasonably pertinent to the particular problem of which the inventor is involved. The Applicant’s invention is related to changing fluid flow through a nozzle. Ferri relates to adjusting fluid flow through a nozzle (see col. 3, lines 12-45). Adv. Act. 2 (dated May 14, 2014). Appellant contends that the Final Rejection and Advisory Action fail to clearly state what the Examiner believes to be the field of endeavor of the claimed invention. Br. 5. Appellant further contends that Ferri relates to the 3 Appeal 2015-002769 Application 12/842,821 field of aircraft engines, whereas Appellant’s claimed invention relates to the field of dual fuel heating sources. Br. 5. As for whether Ferri is reasonably pertinent to the problem faced by the inventor, Appellant asserts that the claimed invention addresses the problem of using different fuels in a heater. Br. 6. Appellant further asserts that Ferri addresses the problem of controlling the direction of flow exiting a nozzle of relatively short length in order to maximize the thrust produced by a jet engine. Br. 6—7. Additionally, Appellant asserts that the Examiner’s statement of the “problem” is actually a statement of what the invention is related to, not a statement of a problem. See Br. 7—8. In response, the Examiner states: Ferri is reasonably pertinent to the problem of fluid flow in a nozzle. Ferri teaches a nozzle configuration that improves fluid flow through the nozzle. Applicant’s problem involves nozzle improvements. Therefore, Ferri is reasonably pertinent to the field of endeavor and is analogous art. Ans. 10. We do not agree with Appellant’s contention that the Advisory Action does not articulate what the Examiner finds to be the field of endeavor of the claimed invention. As noted above, the Examiner finds that Ferri is from the same field of endeavor as the claimed invention, and the Examiner then states that “Ferri’s field of endeavor relates to nozzle construction and fluid flow through a nozzle.” Adv. Act. 2. Nonetheless, we agree with Appellant that Ferri is not from the same field of endeavor as the claimed invention. Appellant’s claimed invention relates to dual-fuel heaters for household items (see, e.g., Spec. 12)—Ferri relates to jet engines and is silent as to dual-fuel capability (see, e.g., Ferri, 1:14-45). At a more specific level, Appellant’s claimed invention relates to 4 Appeal 2015-002769 Application 12/842,821 dual-fuel heaters having an adjustable nozzle structure to properly bum different types of fuel (see, e.g., Spec. 1182)—Ferri relates to nozzles of a jet engine shaped in such a way as to maximize axial thmst (see, e.g., Ferri, 2:44—3:11). At neither level of specificity do we understand these fields of endeavor to be the same. The mere fact that claim 1 requires, and Ferri discloses, a nozzle, does not mean that Ferri, which is unrelated to a dual fuel heater, is from the same field of endeavor as the claimed invention. Indeed, it is always the case that each reference cited in an obviousness rejection is relied upon for disclosing something required by the claim, but whether a reference discloses that for which it is cited is not the test for whether the reference is analogous art. As for whether Ferri is reasonably pertinent to the problem faced by the inventor, we agree with Appellant that the Examiner’s statement that “Ferri is reasonably pertinent to the problem of fluid flow in a nozzle” does not identify a problem. See Br. 7—8; see also Ans. 10. Rather, this statement is effectively another statement of a field of technology.2 The field of “fluid flow in a nozzle” is too encompassing to be considered the field of endeavor of the claimed invention when Appellant’s claimed invention relates to dual fuel heaters, not merely to a nozzle, which is a subcomponent. Accordingly, we agree with Appellant that Ferri is non-analogous art to the inventions recited in claims 1,11, and 20. Thus, we reverse the Examiner’s rejection of claims 1—4, 6—12, and 14—19 as unpatentable over Deng and Ferri and the 2 That this is a statement of the field of technology is underscored by the Examiner’s statement that “Ferri teaches a nozzle configuration that improves fluid flow through the nozzle. Applicant's problem involves nozzle improvements. Therefore, Ferri is reasonably pertinent to the field of endeavor and is analogous art.” Ans. 10 (emphasis added). 5 Appeal 2015-002769 Application 12/842,821 Examiner’s rejection of claims 5—13, and 20 as unpatentable over Deng, Ferri, and Ward. DECISION The Examiner’s decision to reject claims 1—20 is reversed. REVERSED 6