Ex Parte Graham

Patent Trial and Appeal Board

Feb 14, 2017

12806571 (P.T.A.B. Feb. 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.
12/806,571 08/17/2010 Thomas Graham 6401
7590
Francis C. Hand, Esq.,
c/o Carella, Byrne, Cecchi,
Olstein, Brody & Agnello
5 Becker Farm Road
Roseland, NJ 07068
EXAMINER
KING, BRIAN M
ART UNIT PAPER NUMBER
3744
MAIL DATE DELIVERY MODE
02/14/2017 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 THOMAS GRAHAM
Appeal 2015-0050841
Application 12/806,5712
Technology Center 3700
Before BIBHU R. MOHANTY, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1—11. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellant’s Appeal Brief (“Appeal Br.,” filed Oct.
17, 2014) and Reply Brief (“Reply Br.,” filed Apr. 2, 2015), and the
Examiner’s Answer (“Ans.,” mailed Mar. 11, 2015) and Final Office Action
(“Final Act.,” mailed June 11, 2014).
2 According to Appellant, the real party in interest is Component Hardware
Group, Inc. Appeal Br. 1.
Appeal 2015-005084
Application 12/806,571
BACKGROUND
According to Appellant, “[the] invention relates to a condensate
evaporator for [a] refrigeration apparatus [and more particularly] to a
condensate evaporator for large walk-in refrigerators.” Spec. 1.
CLAIMS
Claims 1—113 are on appeal. Claim 1 is illustrative of the appealed
claims and recites:
1. A condensate evaporator for refrigeration apparatus
comprising
a pan having a cavity for receiving condensate therein and
a pair of posts on an underside of said pan for pivoting of said
pan on a surface about a horizontal axis passing through said
posts towards one end of said pan under the weight of condensate
in said cavity;
a heater pad on said pan for heating condensate in said
cavity to a point of evaporation;
a plunger type push button switch mounted on said
underside of said pan at said end of said pan, said switch having
a movably mounted vertically disposed plunger for movement
between an extended position corresponding to a raised position
of said end of said pan relative to said surface and a retracted
position corresponding to a lowered position of said end of said
pan relative to said surface; and
an electrical circuit electrically connecting said heater pad
and said switch to an electrical supply whereby electrical power
is supplied to said heater pad with said plunger in said retracted
position thereof and electrical supply is interrupted to said heater
pad with said plunger in said extended position thereof.
3 Claims 12—14 are also pending in the application. However, those claims
are only objected to and the Examiner has indicated they contain allowable
subject matter. See Final Act. 9.
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Application 12/806,571
Appeal Br., App.
REJECTIONS
1. The Examiner rejects claims 1—4 and 8—114 under 35 U.S.C.
§ 103(a) as unpatentable over Canter5 in view of Hoffmann.6
2. The Examiner rejects claims 5 and 6 under 35 U.S.C. § 103(a) as
unpatentable over Canter in view of Hoffmann and Khan.7
3. The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Canter in view of Hoffmann, Khan, and
Mehlan.8
DISCUSSION
Rejection 1
Claim 1
With respect to claim 1, the Examiner finds that Canter discloses a
condensate evaporator including a pan, a heater within the pan for heating
condensate to the point of evaporation, and a switch. Final Act. 2 (citing
Canter Fig. 1; col. 2,11. 49—64). The Examiner acknowledges that Canter
does not disclose a heater pad or the combination of a pair of posts and a
plunger switch as claimed. Final Act. 3. However, the Examiner finds that
Hoffmann teaches a heating apparatus that may use multiple types of heaters
and includes the combination of posts and a weight sensitive plunger switch
4 The Examiner includes claims 5 and 6 and does not include claim 11 in
the heading for this rejection. Final Act. 2. However, the body of the
rejection makes clear that claims 1—4 and 8—11 are the rejected claims.
5 Canter, US 3,679,867, iss. July 25, 1972.
6 Hoffmann, US 5,072,095, iss. Dec. 10, 1991.
7 Khan, US 4,554,794, iss. Nov. 26, 1985.
8 Mehlan et al., US 4,509,339, iss. Apr. 9, 1985.
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Application 12/806,571
as claimed. Id. (citing Hoffmann Figs. 1, 2; col. 1,11. 40-47; col. 3,11. 45—
50). The Examiner concludes it would have been obvious to use a heater
pad and the combination of a pair of posts and a plunger switch in Canter’s
evaporator based on the teachings of Hoffmann because the proposed
modifications would be the substitution of one known element for another
that would have yielded predictable results. Final Act. 3^4.
We agree with and adopt the Examiner’s findings and conclusions
with respect to claim 1. See Final Act. 2-4; Ans. 9-12. As discussed below,
we are not persuaded of error by Appellant’s arguments.
Appellant first asserts that neither Canter nor Hoffmann disclose a pan
supported by two posts as claimed and indicates that the Examiner cannot
rely on Hoffmann for this claim requirement because Hoffmann discloses
three mounting feet in addition to the actuator switch. Appeal Br. 6.
However, without further explanation, Appellant’s assertion does not
persuade us of error because the claim does not preclude the presence of
another post on the underside of the pan, and more particularly, the claim
uses the open ended terminology “comprising of,” which allows for other
elements beyond those that are explicitly recited.
Second, Appellant argues that Hoffmann provides no teaching as to
how to determine the length of the actuator foot 7. Appeal Br. 6. Appellant
asserts that Hoffmann’s housing is supported by four points and “[tjhere is
no indication that the actuator foot 7 would be of a greater length than the
three feet 15.” Id. Without further explanation, it is not clear how this
alleged fact alone shows any error in the rejection of claim 1, which does not
include limitations regarding the length of the push button switch as
compared to the support posts. Appellant continues that “it is not seen how
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Application 12/806,571
the housing 3 could pivot about the two support feet 15 located at the far
right and the far left of Fig. 1 while depressing the actuator foot 7.” Id. at 7.
However, we agree with the Examiner that Hoffmann’s structure requires
that the actuator foot is depressed when an object is placed on the device,
and we find that such depression at least suggests that the device would
pivot on an axis between the posts on the far right and the far left of figure 1.
See Ans. 11.
Third, Appellant argues that the “proposed modification of Canter
would destroy the teachings of Canter.” Appeal Br. 8. In support, Appellant
asserts that Canter requires that the pan be in a horizontal plane to properly
operate in response to the level of water in the pan. Id. at 8—9. We agree
with the Examiner’s response to this argument. See Ans. 11—12. The
proposed modification would merely substitute one method of activating a
switch, i.e. by determining the level of water in the pan by volume in Canter,
with another method of activating a switch, i.e. by determining the level of
water in the pan by weight by using Hoffmann’s weight sensitive switch.
Finally, Appellant argues that neither Canter nor Hoffmann describes
or teaches a heater pad, and thus, the proposed combination would not result
in the claimed structure. Appeal Br. 8. However, this argument fails to
consider the rejection before us insofar as the Examiner first acknowledged
that the art does not expressly disclose a heater pad and found that the use of
a heater pad would have been obvious. Further, to the extent the Examiner
finds that Canter’s heater 20 may be considered a heater pad under the
broadest reasonable interpretation of the claim (see Ans. 12), we agree, and
we are not persuaded otherwise by Appellant’s arguments (see Reply Br. 7—
8). In particular, we are not persuaded that the Specification provides a
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Application 12/806,571
definition for the term heater pad that would distinguish it from the pad­
shaped heater provided by Canter.
Based on the foregoing, we sustain the rejection of claim 1. Appellant
does not present separate arguments with respect to claims 3 and 4, and thus,
we sustain the rejection of those claims for the same reasons.
Claim 2
Claim 2 depends from claim 1 and further requires “wherein said
switch has a deactivation point between said retracted position of said
plunger and said extended position of said plunger at which said electrical
circuit interrupts the electrical supply to said heater pad.” Appeal Br., App.
With respect to this claim, the Examiner finds, inter alia, that this
claim limitation is inherent in the operation of Hoffmann. Ans. 12—13. We
agree. Hoffmann’s Figure 2 depicts a warmer switch that may be used in
Hoffmann’s device. Hoffmann col. 2,11. 61—62. Figure 2 depicts a space
between the complete depression of the actuator foot and a complete
extension of the foot, and thus, there is necessarily a point at which the
switch is not activated and is also not in the completely extended or
completely depressed position. Thus, we are not persuaded of error with
respect to this rejection, and we sustain it.
Claim 8
With respect to claim 8, Appellant relies on arguments that are the
same or substantially the same as arguments set forth with respect to
claim 1. See Appeal Br. 11—12. We find those arguments equally
unpersuasive here. Thus, we sustain the rejection of claim 8.
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Application 12/806,571
Claim 9
With respect to claim 9, Appellant relies on arguments that are the
same or substantially the same as arguments set forth with respect to
claim l.9 See Appeal Br. 14—16. We find those arguments equally
unpersuasive here. Thus, we sustain the rejection of claim 9. For the same
reasons, we sustain the rejection of dependent claims 10 and 11.
Rejection 2
Claim 5 depends from claim 1 and further recites “wherein said pan
has a pair of flanges extending from said one end and further comprises a
housing mounted on and with said flanges to define a compartment
therewith.” Appeal Br., App. 2. The Examiner relies on the combination of
Canter and Hoffmann as set forth with respect to claim 1 and further relies
on Khan for the limitations added by this claim. Final Act. 8.
Appellant argues that providing Canter’s pan with flanges and a
compartment would serve no useful purposes and that “there is no teaching
in [Khan] that would motivate one of ordinary skill in the art to modify the
pan 10 of Canter with a pair of flanges” because the side walls 14 and 16 of
Khan are part of a mounting structure and are not on Khan’s receptacle 10.
Appeal Br. 12—13.
We are not persuaded of error. The rejection indicates that one of
ordinary skill in the art would be motivated to incorporate flanges into
Canter’s device in order to “support the receptacle and guide it to the
button.” We agree that one of ordinary skill in the art would have found it
9 To the extent Appellant indicates that the Examiner has not set forth a
statement regarding the rejection of claims 9—11 in the Final Action, we
disagree. See Final Act. 6—7.
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Application 12/806,571
obvious to incorporate flanges (guide bosses 34 in Khan) with a housing
including a pan (receptacle 10 in Khan) in order to support a receptacle and
guide it to the proper position. We also note that incorporating these
features into the combined device of Canter and Hoffmann would not
interfere with the use of a plunger switch as Khan specifically indicates that
the receptacle is designed to tilt when a certain amount of liquid is retained
in the receptacle. See Khan Fig. 7.
Accordingly, we are not persuaded of error and we sustain the
rejection of claim 5. Appellant does not provide separate arguments with
respect to claim 6, and thus, we sustain the rejection of claim 6 for the same
reasons.
Rejection 3
Claim 7 requires that the housing recited in claim 5 “is U-shaped and
is slidably mounted on said flanges.” The Examiner finds that “Mehlan
teaches a U-shaped intermediate bottom of a door where a plate can be
pushed onto or withdrawn from the shoulders in the horizontal direction
where this allows for ease of removal.” Final Act. 8. The Examiner
concludes that it would have been obvious to provide a U-shaped housing
that is slidably mounted as claimed “because it allows for ease of removal.”
Id. Further, in response to Appellant’s arguments, the Examiner states:
Mehlan teaches (Column 1, lines 60-65)... a u-shaped opening
at the side of the selling machine door which allows for the
removal or addition of an insulating support plate onto or
withdrawn from the shoulders. This is understood to be the same
as a u-shaped flange that supports the structure and allows for
removal of the structure if necessary. As Mehlan does teach this,
it can therefore have been shown to be obvious to combine
Canter/Hoffman with Mehlan.
Ans. 14.
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Application 12/806,571
Appellant’s argument does not persuade us of error in the rejection.
Appellant asserts that Mehlan does not include a u-shaped intermediate
bottom of a door and that the rejection “is not understood and is not
warranted.” Appeal Br. 13. However, the Examiner further explains the
rejection in the Answer and the cited portions of Mehlan discloses a U-
shaped intermediate bottom and indicates the ability of a support plate to
slide onto supporting shoulders in the device. See Ans. 14; Mehlan col. 1,
11. 61—65. Appellant’s argument does not point, with particularity, to any
error in the rejection of claim 7, particularly as clarified in the Answer.
Accordingly, we sustain the rejection of claim 7.
CONCLUSION
For the reasons set forth above, we conclude as follows.
We affirm the rejection of claims 1—4 and 8—11 under 35 U.S.C.
§ 103(a) as unpatentable over Canter in view of Hoffmann.
We affirm the rejection of claims 5 and 6 under 35 U.S.C. § 103(a) as
unpatentable over Canter in view of Hoffmann and Khan.
We affirm the rejection of claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Canter in view of Hoffmann, Khan, and Mehlan.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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