Ex Parte Hallac et al

Patent Trial and Appeal Board

Sep 26, 2016

12376794 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/376,794 0210912009
9748 7590
LAITRAM, L.L. C.
LEGAL DEPARTMENT
200 LAITRAM LANE
HARAHAN, LA 70123
09/28/2016
FIRST NAMED INVENTOR
Abdulkadir Hallac
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2527.1 1246
EXAMINER
WARD, THOMAS JOHN
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
jcronvic@laitram.com
cbishop@laitram.com
dgwalker@laitram.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABDULKADIR HALLAC and
MICHAEL W. BUMGARDNER
Appeal2014-005664
Application 12/376,794
Technology Center 3700
Before JENNIFER D. BAHR, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Abdulkadir Hallac and Michael W. Bumgardner (Appellants) appeal
under 35 U.S.C. § 134(a) from the Examiner's decision as set forth in the
Final Action, dated May 22, 2013. The Final Action purports to reject
claims 1-16, and Appellants appear to assume that claims 1-16 stand finally
rejected. See Final Act. 1 (Office Action Summary, PTOL-326); Appeal Br.
3, 8-9. However, for reasons explained more fully in footnote 1 below, we
do not discern, on the basis of the record before us, a pending rejection of
claim 10 or claim 15, and, thus, do not consider a rejection of claim 10 or
claim 15 to be before us for review in this appeal. We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.
Appeal2014-005664
Application 12/376,794
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A T-junction microwave applicator comprising:
a rectangular main waveguide of uniform width
comprising a first arm and a second arm extending in opposite
directions along a main axis from a central junction to distal
end walls, each end wall having a port;
a conveyor disposed to convey material to be heated along
the main waveguide entering through one of the ports and exiting
out the other port;
a junction arm extending perpendicularly from the main
waveguide at the junction through which electromagnetic energy
is supplied to the main waveguide, wherein the junction arm
forms a three-arm T junction with the first and second arms of
the main waveguide;
wherein the main waveguide includes a conductive ridge
disposed opposite the junction arm and extending in length
through and past the junction along the lengths of the first and
second arms of the main waveguide between the end walls to
achieve uniform heating across the width of the main waveguide
along its length.
2
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Application 12/376,794
REJECTIONS 1
I. Claims 11 and 14 stand rejected under 35 U.S.C. § 112, fourth
paragraph. 2
1 The Final Action does not include a rejection of claims 10 and 15. The
Non-Final Action, dated January 18, 2013, which immediately preceded the
Final Action from which the present appeal is taken, included a rejection of
claims 10and15 as anticipated by Edgar (US 3,794,874, iss. July 31, 1973).
Non-Final Act. 3. However, the Examiner's remark on page 11 of the Final
Action that "[w]ith regards to arguments concerning claims 10 and 15,
[DeGroot] is introduced to overcome deficiencies," suggests that the
Examiner no longer believes Edgar anticipates the subject matter of claims
10 and 15 and that the omission in the Final Action and the Answer of the
rejection of claims 10 and 15 as anticipated by Edgar was not inadvertent.
To the extent that this remark may hint at a rejection of claims 10 and 15
based on a combination of Edgar and DeGroot, the Examiner does not
explicitly present such a rejection, much less articulate the basis of such a
rejection with sufficient specificity to permit any meaningful review thereof.
The Answer states that "[c]laims 10 and 15 are rejected under 35 U.S.C.
[§] 103(a) as being unpatentable over Focht (US 4,275,283) in view of
DeGroot ... (US 7,034,266)." .,A .. ns. 8. Hmvever, as already indicated, no
such rejection is contained in the Final Action; further, no such rejection is
indicated in the Advisory Action, dated August 13, 2013; and the
Examiner's Answer does not issue such a rejection in compliance with the
requirements of37 C.F.R. § 41.39(a)(2) (providing that "[fJorpurposes of
the examiner's answer, any rejection that relies upon any Evidence not relied
on in the Office action from which the appeal is taken (as modified by any
advisory action) shall be designated by the primary examiner as a new
ground of rejection" and requiring the examiner to "obtain the approval of
the Director to furnish an answer that includes a new ground of rejection").
Thus, a rejection of claims 10 and 15 as unpatentable over Focht and
DeGroot is not before us for review. See 37 C.F.R. § 41.39(a)(l) (stating
that "[a]n examiner's answer is deemed to incorporate all of the grounds of
rejection set forth in the Office action from which the appeal is taken (as
modified by any advisory action and pre-appeal brief conference decision)."
2 The Examiner states that "[t]he amendments [of] 22 July 2013 overcome
the [35 U.S.C. §] 112 rejection of claims 11 and 14." Ans. 12. However,
the Examiner did not enter this Amendment. Advisory Act. (PTOL-303),
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Application 12/376,794
IL Claims 1, 8, and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Edgar and Wong (US 5,047,738, iss. Sept. 10,
1991).3
III. Claims 2 and 4-7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Edgar, Wong, Sensiper (US 2,584,162, iss. Feb.
5, 1952), and Carr (US 3,806,837, iss. Apr. 23, 1974).
IV. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Edgar, Wong, Sensiper, Carr, and Kimrey (US 5,543,605, iss.
Aug. 6, 1996).
V. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Edgar, Wong, and Naumann (US 4,324,965, iss. Apr. 13,
1982).
VI. Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Edgar and Sensiper.
VII. Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Edgar, Sensiper, and Carr.
VIII. Claims 11 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Edgar and Wong.
dated Aug. 13, 2013. Moreover, although the Examiner does not repeat this
rejection in the Answer, the Examiner does not expressly withdraw the
rejection. Thus, in the interest of completeness, we review this rejection as
part of the present appeal. In the event that the Examiner has reconsidered
the decision denying entry of the Amendment filed July 22, 2013, and
decided to enter the Amendment, the Examiner may wish to clarify this
point upon return of jurisdiction of this application to the Examiner.
3 Claim 16 is omitted from the statement of this rejection on page 3 of the
Final Action and on page 3 of the Answer. However, the detailed
explanation of the rejection addresses claim 16. Final Act. 4; Ans. 3.
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Application 12/376,794
DISCUSSION
Rejection I
The stated basis of the Examiner's rejection of claims 11 and 14 under
35 U.S.C. § 112, fourth paragraph, is that these claims are "of improper
dependent form for failing to further limit the subject matter of the claim
upon which it depends, or for failing to include all the limitations of the
claim upon which it depends," and that "[ c ]laim 14 is dependent upon a
preceding claim." Final Act. 2.
We do not discern in this statement any cogent indication of an
impropriety in claim 11 or claim 14. The Examiner does not identify any
limitation in claim 10, from which claim 14 depends, that is not included in
claim 14, nor does the Examiner identify any limitation in claim 14, from
which claim 11 depends, that is not included in claim 11. Further, the
Examiner does not identify any element in either claim 11 or claim 14
lacking antecedent basis. Appellants surmise that the Examiner's rejection
may be taking issue with the fact that claim 11 depends from a claim (i.e.,
claim 14) having a chronologically higher claim number than claim 11,
rather than from a claim previously set forth, as provided in 35 U.S.C. § 112,
fourth paragraph. For the reasons presented by Appellants on page 5 of their
Appeal Brief, we do not sustain the rejection. 4
4 We leave it to the Examiner to take appropriate action as provided in the
Manual of Patent Examining Procedure (MPEP) to address the claim
numbering/claim dependency issue raised in the rejection. See MPEP
§ 608.0l(n) I. F, 9th ed., Rev. 7, November 2015. The Examiner's statement
on page 12 of the Answer that "[t]he amendments [of] 22 July 2013
overcome the [35 U.S.C. §] 112 rejection of claims 11 and 14" suggests that
the Examiner recognizes that any perceived informality with the numbering
or dependency of claims 11 and 14 may be overcome by renumbering claims
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Application 12/376,794
Rejection II
The Examiner acknowledges that Edgar does not disclose the main
waveguide (waveguide tunnel means 14, 16) "includ[ing] a conductive
ridge" as called for in claims 1 and 8. Final Act. 3--4. The Examiner finds
that Wong discloses rectangular ridged waveguide hybrid 10 having ridges
26 and 28 extending along the entire length thereof. Id. at 4. The Examiner
also finds that Wong teaches that "such a configuration allows for reducing
the cost and complexity of manufacturing or fabricating the waveguide
hybrid." Id. The Examiner determines that "[i]t would have been obvious to
modify the tunnel means 14 and 16 of Edgar to include ridged waveguide
hybrid 10 of Wong ... to provide a waveguide which allows for reducing
the cost and complexity of manufacturing or fabricating." Id. at 4-5
(boldface omitted). The Examiner further explains that "[t]he key element
from Wong ... which is being used with Edgar is the elongated ribs 26."
Advisory Act. 2. According to the Examiner, Edgar's tunnel means "can be
adapted with the hybrid of Wong ... would indeed prevent leakage of
energy from the oven chamber [sic]," and "[t]he combination of Edgar and
Wong ... would achieve uniform heating across the width of the main
waveguide along its length." Id.
Appellants argue that "Edgar clearly teaches away from using [a]
rectangular waveguide whose dimensions 'are uniform throughout' for the
tunnel means (14, 16), as in Wong." Appeal Br. 5 (citing Edgar, col. 3, 11.
34--45). Appellants also contend that Edgar uses a smaller-dimension top
portion of its tunnel means to prevent energy leakage from oven enclosure
11 and 14, as would commonly be done by an examiner upon allowance of
an application.
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12 and that Wong's rectangular waveguide ofunifonn width is not designed
to prevent leakage. Id. at 5-6. In addition, Appellants submit that the
Examiner provides no detail as to how one could adapt Wong's four-port
hybrid to accommodate Edgar's conveyor belt. Id. at 6. Appellants add that
the addition of Wong's ridge 26 to Edgar's tunnel would not prevent
microwave leakage, even if the ridge is the only portion of Wong's hybrid
device that the Examiner proposes to add to Edgar. Id. Thus, according to
Appellants, combining Wong's hybrid "with Edgar's applicator would
render Edgar's tunnel unsatisfactory for its intended purpose of preventing
microwave leakage." Id.
Appellants also argue that one of ordinary skill in the art would not
consider Wong's hybrid (which has ridges, a central wall interrupted by a
coupling window, and a capacitive button) to be less complex or costly than
Edgar's waveguide tunnel means 14, 16. Id. Thus, according to Appellants,
one of ordinary skill in the art would not have been prompted to replace
Edgar's waveguide tunnel means 14, 16 for the reason articulated by the
Examiner in the rejection - namely, to reduce the cost and complexity of
manufacturing or fabricating. Id. Moreover, Appellants submit that one of
ordinary skill in the art would not have been prompted to incorporate even
just Wong's ridge into Edgar's waveguide tunnel means, which would
"change the cutoff frequency of the two waveguide paths to increase
bandwidth, for the purpose of creating uniform heating," as reasoned by the
Examiner in the Advisory Action. Id.
We agree with Appellants on all of these points. It is not apparent,
nor does the Examiner adequately explain, why one having ordinary skill in
the art would consider Wong's hybrid to be less complex or costly to
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Application 12/376,794
fabricate than Edgar's waveguide tunnel means 14, 16. Further, even if the
Examiner's rejection proposes merely to incorporate the ridges of Wong into
Edgar's waveguide tunnel means 14, 16, we agree with Appellants, for the
reasons that follow, that a person having ordinary skill in the art would not
have been prompted, in view of the combined teachings of Edgar and Wong,
to do so.
Edgar is concerned with preventing, or at least minimizing,
microwave energy leakage through the open ends of the tunnel means.
Edgar, col. 1, 11. 36--41; col. 2, 11. 15-18; col. 3, 11. 24-29, 40--45. To do so,
Edgar provides an upper waveguide portion in each of the waveguide tunnel
means having a reduced width that is as near as possible to half the
wavelength (A.c/2) of escaping radiated energy, so that the cutoff frequency
wavelength (Ac) of the upper waveguide portion matches the wavelength of
the escaping energy. Id., col. 1, 11. 29-31; col. 2, 11. 18-23; col. 3, 11. 29-33.
Wong teaches providing a ridge on the floor of the waveguide to lower the
cutoff operating frequency of the waveguide. Wong, col. 4, 11. 4-6. Wong
teaches that providing such a ridge increases the cutoff wavelength (Ac) of a
rectangular waveguide of width a from 'Ac=2a (without the ridge) to A.c=2a to
6a (with a ridge), depending on the size of the ridge. Id., 11. 9-18. Thus,
providing a ridge enables a reduction in the overall size and weight of the
waveguide hybrid. Id., 11. 20-21. A person having ordinary skill in the art
would not wish to reduce the cutoff frequency of Edgar's waveguide. To the
contrary, Edgar intentionally increases the cutoff frequency (i.e., decreases
the cutoff wavelength) of the waveguide by providing a reduced-width upper
waveguide portion. Moreover, the Examiner does not direct us to any
evidence that supports the Examiner's statement in the Advisory Action that
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Application 12/376,794
providing ridges in Edgar's waveguide tunnel means would promote more
uniform heating. See Reply Br. 2 (submitting that "the purpose of the
tunnels of Edgar ... is to prevent leakage of microwave energy - not to heat
the product uniformly in the tunnels").
For the above reasons, the Examiner fails to establish that the
combined teachings of Edgar and Wong render obvious the subject matter of
independent claims 1 and 8. Thus, we do not sustain the rejection of claims
1 and 8, or claim 16, which depends from claim 1, as unpatentable over
Edgar and Wong.
Rejections 111-V
In rejecting claims 2-7, which depend either directly or indirectly
from claim 1, and claim 9, which depends directly from claim 8, the
Examiner does not articulate any additional findings or reasoning that would
cure the aforementioned deficiency in the combination of Edgar and Wong.
Accordingly, we do not sustain the rejection of claims 2 and 4-7 as
unpatentable over Edgar, Wong, Sensiper, and Carr; the rejection of claim 3
as unpatentable over Edgar, Wong, Sensiper, Carr, and Kimrey; or the
rejection of claim 9 as unpatentable over Edgar, Wong, and Naumann.
Rejections VI and VII
Claim 10, from which claims 12 and 13 depend, recites, in pertinent
part, "a rectangular main waveguide extending ... in width from a first side
wall to a second side wall" and "a rectangular waveguide segment ...
having a first pair of opposite outer walls continuous with the first and
second side walls of the main waveguide to form opposite inverse T-shaped
side walls of the applicator." Appeal Br. 15 (Claims App.). Appellants
argue that "Edgar does not disclose ... a rectangular waveguide segment
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Application 12/376,794
having a first pair of opposite outer walls continuous with side walls of a
main waveguide to form opposite inverse T-shaped side walls of an
applicator." Appeal Br. 9; see also id. at 10, 11 (relying on this argument in
contesting the rejections of claims 12 and 13).
We agree with Appellants, and, further, note that the Examiner does
not rely on Sensiper or Carr for any teaching that would overcome this
deficiency in Edgar. See Final Act. 8-9; Ans. 8, 10. The Examiner reads
the claimed "rectangular main waveguide" on Edgar's waveguide tunnel
means 14, 16 or waveguide section 52. Ans. 14 (citing Edgar, Fig. 1 ).
Notably, however, the Examiner does not articulate any findings addressing
a rectangular waveguide segment having a pair of opposite outer walls
continuous with side walls of the main waveguide to form opposite inverse
T-shaped side walls, as required in claims 12 and 13. See Final Act. 8-9;
Ans. 8, 10, 14. Accordingly, we do not sustain the rejection of claim 12 as
unpatentable over Edgar and Sensiper or the rejection of claim 13 as
unpatentable over Edgar, Sensiper, and Carr.
Rejection VIII
The rejection of claims 11 and 14 suffers from the same deficiency in
the combination of Edgar and Wong as the rejection of claims 1, 8, and 16,
discussed above. Thus, for the same reason, we do not sustain the rejection
of claims 11 and 14 as unpatentable over Edgar and Wong.
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Application 12/376,794
DECISION
The Examiner's decision rejecting claims 1-9, 11-14, and 16 is
reversed.
REVERSED
11