Ex Parte GatleyDownload PDFBoard of Patent Appeals and InterferencesSep 14, 201110830695 (B.P.A.I. Sep. 14, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte WILLIAM STUART GATLEY JR. ____________________ Appeal 2010-001783 Application 10/830,695 Technology Center 3700 ____________________ Before: STEFAN STAICOVICI, KEN B. BARRETT, and CHARLES N. GREENHUT, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001783 Application 10/830,695 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from the rejection of claims 39-44, 46-54, and 56. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. The claims are directed to an exhaust dilution blower housing with remote air intake. Claim 39, reproduced below, is illustrative of the claimed subject matter: 39. A blower housing comprising: one side of the blower housing that is positioned in a single plane, the single plane of the one side of the blower housing facilitating mounting the one side of the blower housing on a flat surface having a flue opening of a heater with which the blower housing is used; a fan compartment inside the blower housing and positioned directly above the one side of the blower housing for stable support of the fan compartment when the one side of the blower housing is attached to the flat surface of the heater, the fan compartment having an enclosed interior volume; a fan inside the fan compartment interior volume; a motor on the blower housing, the motor being operatively connected to the fan for rotating the fan inside the fan compartment; a dilution compartment inside the blower housing and positioned on the one side of the blower housing, the dilution compartment having an interior volume that communicates with the fan compartment interior volume, the dilution compartment having a side wall that extends around the dilution compartment interior volume and forms a part of the one side of the blower housing, the side wall having a single dilution air intake opening though the side wall communicating the interior volume of the dilution compartment with an exterior environment of the blower housing, the side wall being dimensioned to extend around and be spaced outwardly from the flue opening of the heater when the one side of the blower Appeal 2010-001783 Application 10/830,695 3 housing is mounted on the flat surface of the heater whereby the dilution compartment interior volume is dimensioned sufficiently large to enable mixing of exhaust gas received in the dilution compartment interior volume from the flue opening with ambient air received in the dilution compartment interior volume through the dilution air intake opening, the side wall and the one side of the blower housing providing a continuous engagement with the flat surface of the heater around the flue opening when the one side of the blower housing is mounted on the flat surface of the heater whereby ambient air can enter into the dilution compartment interior volume only through the one dilution air intake opening in the side wall. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Windon Yetman Stewart US 5,255,665 US 5,697,330 US 6,398,512 B2 Oct. 26, 1993 Dec. 16, 1997 Jun. 4, 2002 REJECTIONS Claims 39 and 48 are rejected under 35 U.S.C. § 102(b) as being anticipated by Yetman. Ans. 4. Claims 40, 46-50, and 561 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Yetman and Stewart. Ans. 6. Claims 41-44 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Yetman and Windon. Ans. 7. 1 In the Final Rejection, “47” was inadvertently left out of the statement of rejection due to a typographical error. We do not regard the Examiner’s inclusion of claim 47 in the statement of rejection in the Answer as a new ground of rejection under 37 CFR § 41.39(a)(2). See MPEP § 1207.03. The Examiner discusses the limitations of claim 47 on pages 5-6 of the Final Rejection mailed Aug. 1, 2008. Appeal 2010-001783 Application 10/830,695 4 Claims 51-54 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Yetman, Stewart and Windon. Ans. 9. OPINION Appellant argues claims 39 and 48 as a group. App. Br. 6. We select claim 39 as the representative claim, and claim 48 will stand or fall with claim 39. See 37 C.F.R. § 41.37(c)(1)(vii). We agree with, and adopt as our own, the Examiner’s findings and conclusions regarding the rejection of claim 39 as anticipated by Yetman. See Ans. 4-6. In addition to Yetman’s draft inducer fan 68, the Examiner includes adapter fitting 70 as part of the structure interpreted as the claimed “blower housing.” Ans. 4. Appellant contends that “adapter fitting 70 spaces the blower housing 68 above the flat top surface of the heater 20.” App. Br. 6. This argument does not address the Examiner’s position. At best, this argument implies that only the draft inducer fan 68 and not the adapter fitting should be read as the claimed “blower housing.” Appellant does not point to any claim language or present persuasive arguments to show that the claim should be construed so narrowly. Appellant recognizes the Examiner’s position, stating that “[e]ven interpreting the Yetman adapter fitting 70 as part of the blower housing, the reference still does not identically show or suggest a blower housing having one side that is positioned in a single plane to facilitate mounting the blower housing on a flat surface of a heater.” App. Br. 6; Reply Br. 6. This argument, again, does not actually address the Examiner’s position. The Examiner interprets the lower end, as viewed in Figure 4, of the vertically oriented tubular body portion 72, at the inlet end 74 of the adapter fitting 70 as the “one side of the blower housing that is positioned in a single plane.” Appeal 2010-001783 Application 10/830,695 5 Ans. 7. This side of the adapter, shown in cross section in Figure 4, is an annular ring positioned only in the horizontal plane normal to the page as viewed in that figure. Yetman, col. 3, ll. 65-67; col. 5, ll. 12-19. Appellant does not point to any claim language or present persuasive arguments to show why the term “one side of the blower housing that is positioned in a single plane” should be interpreted to exclude such a structure. Appellant additionally contends that, arguably, Yetman “teaches mounting a blower housing on an end of a flue, not on a flat surface spaced outwardly from the flue.” App. Br. 7; Reply Br. 7. Yetman describes the adapter as coupling the upper end 26a of the flue 26 to the inlet 66 of the inducer fan 68. Col. 5, ll. 12-19. Yetman does not provide express details of the interaction between the upper wall 20 of the tank 12 and the adapter 70. Figure 2 indicates that the lower end of the tubular body portion 72 is in planar contact with, and thus “mounted” to the upper wall 20 of the tank. In any case, the claims are directed to a blower housing, not a heater or a heater in combination with a blower housing. Thus, the claims only require a blower housing capable of interacting with a heater in the manner described in the claim, e.g., having one side positioned in a single plane “facilitating mounting the one side of the blower housing on a flat surface having a flue opening of a heater with which the blower housing is used.” Whether Yetman’s adapter is coupled to the upper end of the flue or the upper wall of the tank is of no consequence. Yetman’s adapter has a planar surface matching that of the heater and therefore can be “attached to,” “mounted on,” or regarded as “facilitating mounting” therewith. Appellant also contends that “‘a fan compartment inside the blower housing and positioned directly above the one side of the blower housing for stable support of the fan compartment when the one side of a blower housing Appeal 2010-001783 Application 10/830,695 6 is attached to the flat surface of the heater[]’ … is not disclosed or taught by the Yetman reference.” Reply Br. 7. This argument is not persuasive because “directly above” could be reasonably interpreted to mean not horizontally offset as well as not vertically offset and the fan 68 of Yetman is not horizontally offset from the end of the tubular body interpreted by the Examiner as the “one side.” We do not find Appellant’s “teaching away” argument (Reply Br. 8) relevant to the question of whether Yetman anticipates claim 39. See Seachange Int’l., Inc. v. C-COR, Inc., 413 F.3d 1361, 1380 (Fed. Cir. 2005). For these reasons, we affirm the Examiner’s rejection of claims 39 and 48 as anticipated by Yetman. Appellant does not argue any specific limitations of claims 41-44 which depend from claim 39. Appellant merely contends that Windon does not cure the perceived deficiencies of Yetman argued with respect to claim 39. App. Br. 9-10. Since we found those arguments unpersuasive with respect to claim 39, we find them unpersuasive with respect to claims 41-44. We thus affirm the Examiner’s rejection of claims 41-44 as being unpatentable over Yetman and Windon. Appellant advances two different arguments with respect to claims 40, 46-50 and 562. The first concerns the Examiner’s application of Stewart to support the conclusion that it would have been obvious to modify Yetman to include a flange—a limitation appearing only in claim 40. App. Br. 7-8. The second concerns the Examiner’s application of Stewart to support the conclusion that it would have been obvious to provide the claimed circuitry compartment—a limitation appearing only in claims 47 and 49. App. Br. 8- 9. Appellant does not present any arguments pertaining to the specific limitations recited in claims 46 and 48, which depend from claim 39, or to 2 Appellant mistakenly includes cancelled claim 55. App. Br. 7. Appeal 2010-001783 Application 10/830,695 7 claims 50, and 56, which depend from claim 49. Since we find the second of Appellant’s arguments persuasive, but not the first, we group claims 40, 46 and 48 together and claims 47, 49 50, and 56 together for purposes of our discussion. Appellant contends that “adding a flange to the Yetman blower housing would result in a flange extending around the heater flue, not a flange that is positioned in a single plane to facilitate mounting the flange on a flat surface of a heater.” App. Br. 7. This argument is an extension of the argument we found unpersuasive, supra, concerning the alleged mounting of Yetman’s adapter on the flue as opposed to the upper surface of the heater. Appellant’s argument here is also in direct conflict with the teachings of Stewart. Stewart teaches radially extending flanges 18, 19 having bores 20 in order to secure and seal the blower housing 2 to the flat surface on the top of the water heater 30 with any variety of mechanical fasteners such as hex bolts 40. Col. 4, ll. 58-67, figs. 2, 3. Thus, the subject matter of claim 40 results from applying a known technique of providing radial flanges having bores to Yetman’s known device in order to achieve the predictable result of facilitating attachment of a blower housing to the top of a water heater with any variety of mechanical fasteners. We therefore agree with the Examiner that the subject matter of claim 40 would have been obvious to one having ordinary skill in the art. Incorporating Stewart’s flange does not require incorporation of the specific skirt structures 14, 15, thereby resulting in a structure that would not meet the limitations of claim 39, as Appellant suggests. App. Br. 7. Rather, such flanges could be attached directly to Yetman’s tubular body to arrive at the claimed subject matter. “Combining the teachings of references does not involve an ability to combine their Appeal 2010-001783 Application 10/830,695 8 specific structures.” In re Nievelt, 482 F.2d 965, 968 (CCPA 1973). For these reasons, we affirm the Examiner’s rejection of claims 40, 46 and 48. As to claims 47 and 49, the Examiner initially stated that Stewart’s auxiliary box 46 met the requirements of the circuitry compartment recited in claims 47 and 49. Final Rej. 5-6; Ans. 7, 12-13. The Examiner interprets the “wall of box 46 that extends down to the flange 18” as the claimed “at least one wall.” Id. In the Answer, for the first time, the Examiner states that the location of the box is merely a matter of design choice and amounts to the mere rearrangement of parts. Ans. 13. Stewart provides minimal discussion of the optional auxiliary box 46 and Figure 2 does not make it clear whether the wall cited by the Examiner is actually part of the box. The double broken lines in Figure 5 of Stewart seems to indicate that it is not. In any case, the wall referred to by the Examiner does not sufficiently encompass the interior volume of the box to be considered a wall that “extends around” it. Cf. App. Br. 4 (referencing walls 104, 106, 108 as forming a wall extending around the interior volume of circuitry compartment 102). Further, we find nothing in Stewart or the knowledge of one of ordinary skill in the art that would render it obvious to modify Yetman to include a circuitry compartment having the location and features claimed. Being “inside the blower housing” and having a wall that “extends around an interior volume” and “forms a part of the one side [in the single plane]” would require either putting the compartment within Yetman’s tubular body, which would be undesirable because it would block the flue or be exposed to exhaust gases, or making a major modification to Yetman’s tubular body to integrate the box into it. We find nothing in Stewart or the Examiner’s reasoning to support the conclusion that it would have been obvious to do the latter. Accordingly, we cannot sustain the Appeal 2010-001783 Application 10/830,695 9 Examiner’s rejection of claims 47, 49, 50, and 56. Since claims 51-54 depend from claim 49 and Windon, as applied by the Examiner, fails to cure this deficiency, we must also reverse the rejection of claims 51-54. DECISION The Examiner’s rejection of claims 39 and 48 as being anticipated by Yetman is affirmed. The Examiner’s rejection of claims 40, 46 and 48 as being unpatentable over Yetman and Stewart is affirmed. The Examiner’s rejection of claims 47, 49, 50, and 56 as being unpatentable over Yetman and Stewart is reversed. The Examiner’s rejection of claims 41-44 as being unpatentable over Yetman and Windon is affirmed. The Examiner’s rejection of claims 51-54 as being unpatentable over Yetman, Stewart and Windon 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)(1)(iv). AFFIRMED-IN-PART nlk Copy with citationCopy as parenthetical citation