Ex Parte Freese et al

Patent Trial and Appeal Board

Oct 30, 2013

10893662 (P.T.A.B. Oct. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte HEINZ WERNER FREESE,
THOMAS NAWROT, and GUNTER STEFFENS
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Appeal 2011-013240
Application 10/893,662
Technology Center 3700
____________

Before GAY ANN SPAHN, MICHELLE R. OSINSKI, and
HYUN J. JUNG, Administrative Patent Judges.

SPAHN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
rejection of claims 1, 3, 5-12, 25, 26, 28-33, and 35. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
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Claimed Subject Matter
The claimed subject matter relates to a “heating configuration for a
drier, particularly for a laundry drier.” Spec. 1, ll. 7-8. Claim 1, reproduced
below, is illustrative of the appealed subject matter.
1. A heating configuration, comprising:
a burner with a burner head;
a first heating channel having an inlet portion formed
with an inlet opening and an outlet portion formed with an
outlet opening;
a second heating channel having an inlet portion formed
with an inlet opening and an outlet portion formed with an
outlet opening;
said second heating channel having a cross-sectional area
greater than a cross-sectional area of said first heating channel,
said outlet portion of said first heating channel projecting into
said inlet portion of said second heating channel, and said
burner projecting into said first heating channel through said
inlet opening thereof;
a flow guide projecting downwardly from an upper part
of said first heating channel and at least partially defining said
outlet opening thereof and configured to downwardly deflect a
flow of gas flowing in a direction from said burner head
towards said outlet opening of said second heating channel; and
wherein said burner head is disposed in said first heating
channel in a position for heating gas in the first heating channel
to flow therethrough into the second heating channel.

Rejections
The following Examiner’s rejections are before us for review:
I. claims 1, 3, 6-12, 25, 26, 29-33, and 35 under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn (US 3,826,607, issued Jul. 30, 1974) and
Briggs (US 4,089,642, issued May 16, 1978); and

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II. claims 1, 3, 5-12, 25, 26, 28-33, and 35 under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn and Badry (US 5,636,933, issued Jun.
10, 1997).

OPINION
Rejection I – Obviousness based on Kuhn and Briggs
Claims 1, 3, and 6-12
Appellants argue claims 1, 3, and 6-12 as a group and we select
independent claim 1 as the representative claim. See Br. 9-11, 13-14; see
also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 3 and 6-12 fall with claim
1.
The Examiner finds that Kuhn substantially discloses the subject
matter of claim 1, but fails to disclose “the outlet of the first heating chamber
. . . include[s] a flow guide.” Ans. 5-6. To cure the deficiency of Kuhn, the
Examiner turns to Briggs for its disclosure of a first heating “channel (36)
includ[ing] an outlet (34), which is described as rimming a central aperture
(32) adjacent a combustion chamber and is ‘a conically convergent flange
portion 34 directed inwardly of the combustion chamber.’” Ans. 6 (citing
Briggs, col. 3, ll. 30-32). The Examiner explains that the above-quoted
description from Briggs “suggests that this shape, which is downwardly
directing at its top portion, converges and directs gas flow into the
combustion chamber,” and “the shape of this flow guide is considered to be
shown, at least in Fig. 3[,] as ‘inwardly deformed’ and also as ‘downwardly
inclined’, as it appears similar to the shape disclosed by [A]ppellant[s].” Id.
The Examiner concludes that it would have been obvious to one of ordinary
skill in the art “to modify the Kuhn heating chamber outlet with the shape
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taught by Briggs, in order to provide the expected and predictable result of
converging and directing gas flow into an adjacent chamber.” Ans. 7.
Appellants argue that “the Examiner fails to provide an adequate
rationale for combining the art,” because “[t]he Examiner does not provide
any articulated reasoning with a rational underpinning to support the legal
conclusion of obviousness.” Br. 9-10 (citing KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007), and In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)). More particularly, Appellants argue that the Examiner’s rationale
“of converging and directing gas flow into an adjacent chamber” is flawed,
because the present invention’s flow guide acts to “guide[] a gas flow into an
adjacent chamber in a manner such that the gas flow diverges from – as
opposed to converging with – another gas flow that is also entering the
adjacent chamber.” Br. 10. Since neither Kuhn nor Briggs discloses or
suggests a heating configuration providing diverging gas flows, Appellants
also argue that the Examiner’s combination of Kuhn and Briggs relies on
impermissible hindsight. Br. 11.
The Examiner responds that Appellants’ Specification discloses the
purpose of the flow guide is to improve mixing of supplementary air 21 with
the hot air or gases exiting the first heating channel in order to have a more
uniform temperature distribution over the cross-section of the second heating
channel 4. Ans. 12-13 (citing Spec. 4, l. 5 to Spec. 5, l. 7). The Examiner
notes that adding Brigg’s flow guide 34 to Kuhn’s heating configuration
would allow the modified heating configuration to “operate in the same
manner as [A]ppellant[s’] flow guide” by improving mixing to create a
uniform temperature distribution over the cross-section of Kuhn’s second
heating channel (housing portion 83). Ans. 14.
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We agree with the Examiner. Modifying Kuhn’s first heating channel
(housing portion 82) to include the flow guide (Briggs’ convergent flange
portion 34) at the outlet end thereof as taught by Briggs would concentrate
the hot air or gas outlet from Kuhn’s first heating channel (housing portion
82) to the center of Kuhn’s second heating channel (housing portion 83) to
delay the lofting of the hot air or gas in the second heating channel (housing
portion 83) so that mixing with the air 91 inlet from outside of the second
heating channel (housing portion 83) occurs later in the second heating
channel (housing portion 83). Similar to Appellants’ invention, the heating
configuration of Kuhn as modified by Briggs would achieve a uniform
temperature distribution over the cross-section of the second heating channel
(housing portion 83) of Kuhn as modified by Briggs. Thus, we are not
persuaded of Examiner error.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 3 and 6-12 which fall therewith, under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn and Briggs.
Claims 25, 26, and 29-33
Appellants argue claims 25, 26, and 29-33 as a group and we select
independent claim 25 as the representative claim. See Br. 9-14. Claims 26
and 29-33 fall with claim 25.
Independent claim 25 is directed to a heating configuration including,
inter alia, “the upper part of the outlet portion extending at a steeper overall
angle toward the outlet opening than the upper part of the mid-section
extent.” Br., Clms. App’x.
The Examiner makes similar findings for independent claim 25 as
those made for independent claim 1, and comes to the same conclusion of
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law. Ans. 5-7. Appellants set forth the same arguments for claim 25 as
those discussed supra for claim 1. Br. 9-11. For the same reasons as
discussed supra, we are not persuaded of Examiner error.
Appellants additionally argue that neither Kuhn nor Briggs teach or
disclose claim 25’s claimed feature quoted supra. Br. 11-12; see also Br.,
Clms. App’x. More particularly, Appellants argue that if Kuhn’s first
heating channel (housing portion 82) is modified to incorporate the flow
guide configuration of Briggs, the resulting heating configuration does not
satisfy the claim language of claim 25, “but, instead, comprises a conically
convergent flange portion 34 that . . . extends at a less steep angle toward the
outlet opening than the upper part of the mid-section extent of the first
heating channel.” Br. 12.
The Examiner responds that “Kuhn shows a duct (82) having a very
slight incline (Figure 2),” and “[t]his duct is regarded as the claimed ‘mid-
section extent’ as it forms the body of the duct having an inlet and an
outlet.” Ans. 14. The Examiner also responds that “Briggs discloses a flow
guide on the outlet of a duct having an overall steeper angle towards the
exit,” and “when the outlet of the Kuhn duct (82) [i]s modified to have the
shape taught by Briggs[,] the resulting outlet would have an end portion
(with the shape shown by Briggs) having an overall steeper angle than the
preceding duct portion (shown by Kuhn).” Id.
We determine the scope of the claims in patent applications not solely
on the basis of the claim language, but upon giving claims their broadest
reasonable construction in light of the specification as it would be
interpreted by one of ordinary skill in the art. See In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Since the present
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Specification does not assign or suggest a particular definition to the claim
term “steeper,” it is appropriate to consult a general dictionary definition of
the word for guidance in determining the ordinary and customary meaning
of the claim term as viewed by a person of ordinary skill in the art. See
Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). For
the claim term “steeper,” the ordinary and customary meaning of the root
word “steep” is “3 a : mounting or falling precipitously b : being or characterized by a rapid and intensive decline or
increase.” Merriam-Webster’s Collegiate® Dictionary, Tenth Edition, ©
1993. According to the Examiner’s proposed modification of Kuhn’s
heating configuration, the first heating channel (Kuhn’s housing portion 82)
would include Brigg’s convergent flange portion 34 at its outlet or smaller
end 85. The convergent flange portion 34 would either mount or fall
precipitously or be characterized by a rapid and intensive decline or increase
as compared to the slight taper of the first heating channel (Kuhn’s housing
portion 82). Thus, Kuhn’s modified heating configuration would satisfy the
“steeper” claim language of claim 25, and we are not persuaded of Examiner
error by Appellants’ argument.
Accordingly, we sustain the Examiner’s rejection of independent
claim 25, and claims 26 and 29-33 which fall therewith, under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn and Briggs.
Claim 35
Claim 35 depends from claim 25, and recites that “the mid-section
extent of the first heating channel is cylindrical.” Br., Clms. App’x.
The Examiner finds that “Kuhn shows the heating channel [82] to
have a slight taper instead of a cylindrical shape.” Ans. 7. The Examiner
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notes that “[t]he courts have held that the configuration of a container was a
matter of choice which a person of ordinary skill in the art would have found
obvious absent persuasive evidence that the particular configuration of the
claimed container was significant.” Id. (citing Manual of Patent Examining
Procedure (MPEP) § 2144.04 and In re Dailey, 357 F.2d 669 (CCPA
1966)). The Examiner concludes that it would have been obvious to one of
ordinary skill in the art “to modify the Kuhn apparatus by making the air
duct or heating channel in any desired shape to suit the application, as a
matter of obvious design choice.” Id.
Appellants argue that “the Examiner has not pointed to any hint or
suggestion in any prior art of record that would motivate a person of
ordinary skill in the art to change the configuration of Kuhn . . . and the only
motivation for such a change is based upon impermissible hindsight
reconstruction.” Br. 13.
Design choice applies when old elements in the prior art perform the
same function as the now claimed structures. See In re Kuhle, 526 F.2d 553,
555 (CCPA 1975) (use of claimed feature solves no stated problem and
presents no unexpected result and “would be an obvious matter of design
choice within the skill of the art”). In the present case, the Examiner’s
application of design choice to modify Kuhn’s slightly tapered housing
portion 82 to be cylindrical does not appear to alter the function of Kuhn’s
heating configuration. Since Appellants fail to set forth any reasons why the
differences between the claimed invention and the prior art would result in a
different function, we are persuaded that design choice is appropriate here
and we are not persuaded that the Examiner’s modification of Kuhn’s
slightly tapered housing portion 82 to be cylindrical is an impermissible
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hindsight reconstruction. See In re Chu, 66 F.3d 292, 298-99 (Fed. Cir.
1995).
Accordingly, we sustain the Examiner’s rejection of claim 35 under
35 U.S.C. § 103(a) as unpatentable over Kuhn and Briggs.

Rejection II – Obviousness based on Kuhn and Badry
Claims 1, 3, and 5-12
Appellants argue claims 1, 3, and 5-12 as a group and we select
independent claim 1 as the representative claim. See Br. 14-17, 19. Claims
3 and 5-12 fall with claim 1.
The Examiner finds that Kuhn substantially discloses the subject
matter of claim 1, but fails to disclose “the outlet of the first heating chamber
. . . include[s] a flow guide.” Ans. 8-9. To cure the deficiency of Kuhn, the
Examiner turns to Badry for its disclosure of “a heating device including a
first hot air duct (16) having an inlet and an outlet with a tapered flow guide
(see Figure 1, element 26),” wherein “[t]he first duct feeds air into a second
air duct (62), in the same manner as [A]ppellant[s’] invention.” Ans. 9. The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art “to modify the Kuhn heating chamber outlet with the Venturi shape
taught by Badry, in order to provide the expected and predictable result of
creating a pressure differential to improve air mixing.” Id. (citing Badry,
col. 4, ll. 59-67).
Appellants argue that “the Examiner fails to provide an adequate
rationale for combining the art,” because “[t]he Examiner does not provide
any articulated reasoning with a rational underpinning to support the legal
conclusion of obviousness.” Br. 15 (citing KSR Int’l Co. v. Teleflex Inc.,
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550 U.S. 398 (2007), and In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
More particularly, Appellants argue that the Examiner’s rationale to support
the proposed combination of Kuhn and Badry “concerning a Venturi effect
has no relation to the beneficial result sought by the heating configuration of
the present invention – namely, . . . to ensure a temperature distribution in a
heating channel that is as uniform as possible” by delayed mixing with
supplementary air. Br. 15-16. Appellants also argue that the Examiner’s
combination of Kuhn and Badry relies on impermissible hindsight. Br. 16.
The Examiner responds that “Badry explicitly teaches a Venturi shape
in order to . . . creat[e] a pressure differential to improve air mixing,” since
“as is known in the art, . . . a Venturi shape accelerates a flow and creates a
suction effect to draw air into the chamber.” Ans. 19-20 (citing Badry, col.
4, ll. 59-67). The Examiner notes that Kuhn’s primary objective “is to
introduce air into a second chamber with an ‘improved secondary air
intake,’” and “[t]he shape shown by Badry obviously serves to improve the
air intake by accelerating the flow at the outlet of the first conduit into the
second chamber.” Ans. 20 (citing Kuhn, col. 4, ll. 41-48). The Examiner
also responds that “[i]t is not necessary that the prior art suggest the
combination to achieve the same advantage of result discovered by
applicant,” and “[i]n this case, one of ordinary skill in the art would
understand the benefits of a Venturi outlet to improve mixing and accelerate
the airflow leaving the first duct.” Id. (citing MPEP § 2144.03 IV).
We agree with the Examiner because modifying Kuhn’s first heating
channel (housing portion 82) to include a flow guide (Badry’s venturi tube
26) at the outlet end thereof as taught by Badry would concentrate the hot air
or gas outlet from Kuhn’s first heating channel (housing portion 82) to the
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center of Kuhn’s second heating channel (housing portion 83) and thereby
delay the lofting of the hot air or gas in the second heating channel (housing
portion 83) so that mixing with the air 91 inlet from outside of the second
heating channel (housing portion 83) occurs later in the second heating
channel (housing portion 83). Similar to Appellants’ invention, the heating
configuration of Kuhn as modified by Badry would achieve a uniform
temperature distribution over the cross-section of the second heating channel
(housing portion 83) of Kuhn as modified by Badry. Thus, we are not
persuaded of Examiner error.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and claims 3 and 5-12 which fall therewith, under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn and Badry.
Claims 25, 26, 28-33, and 35
Appellants argue claims 25, 26, 28-33, and 35 as a group and we
select independent claim 25 as the representative claim. See Br. 14-19.
Claims 26, 28-33, and 35 fall with claim 25.
For independent claim 25, the Examiner makes similar findings to
those made for independent claim 1, and comes to the same conclusion of
law. Ans. 8-9 and 11. Appellants set forth the same arguments for claim 25
as those discussed supra for claim 1. See Br. 14-17. For the same reasons
as discussed supra, we are not persuaded of Examiner error.
Appellants additionally argue that neither Kuhn nor Badry teach or
disclose claim 25’s claimed feature of “the upper part of the outlet portion
extending at a steeper overall angle toward the outlet opening than the upper
part of the mid-section extent.” Br. 17-18; see also Br., Clms. App’x.
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For the same reasons as discussed above with respect to claim 25 and
the combination of Kuhn and Briggs, we are not persuaded by Appellants’
arguments that the combination of Kuhn and Badry fails to disclose the
above-quoted feature of claim 25.
Accordingly, we sustain the Examiner’s rejection of independent
claim 25, and claims 26, 28-33, and 35 which fall therewith, under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn and Badry.

DECISION
We AFFIRM the Examiner’s decision to reject: claims 1, 3, 6-12, 25,
26, 29-33, and 35 under 35 U.S.C. § 103(a) as unpatentable over Kuhn and
Briggs; and claims 1, 3, 5-12, 25, 26, 28-33, and 35 under 35 U.S.C.
§ 103(a) as unpatentable over Kuhn and Badry.
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

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