Ex Parte Gatley

Board of Patent Appeals and Interferences

Sep 14, 2011

10830695 (B.P.A.I. Sep. 14, 2011)

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

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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
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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.
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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.”
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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
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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.
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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
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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
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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

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