Ex parte Huang

Board of Patent Appeals and Interferences

Feb 6, 2001

08955002 (B.P.A.I. Feb. 6, 2001)

The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 18

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte VINCENT M. S. HUANG
_____________
Appeal No. 2000-1337
Application 08/955,002
______________
ON BRIEF
_______________
Before McCANDLISH, Senior Administrative Patent Judge, and
McQUADE and GONZALES, Administrative Patent Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Vincent M. S. Huang appeals from the final rejection of
claims 1 through 13, all of the claims pending in the
application. We reverse.
The invention relates to a sealed cooktop burner. Claim
1 is illustrative and reads as follows:
1. A burner for a sealed cooktop comprising:
a burner head including a chamber enclosed by a
peripheral wall, the peripheral wall including a
plurality of burner ports communicating between said
Appeal No. 2000-1337
Application No. 08/955,002
2
chamber and the exterior of the head;
a burner cap over said burner head enclosing
said chamber and covering said ports;
a burner base for supporting the burner in a
cooktop opening;
a primary air flow passage in communication with
said chamber;
a plurality of bypass ports between said burner
head and at least one of said burner cap and said
burner base, adjacent to said burner ports and
covered by said cap, and
a secondary air flow passage independent of said
primary air flow passage in communication with said
plurality of bypass ports.
Claims 1 through 13 stand rejected under 35 U.S.C. § 112,
second paragraph, as failing to particularly point out and
distinctly claim the subject matter the appellant regards as
the invention. According to the examiner, these claims are
indefinite because:
[t]he term “ports” as used for example in line 3 of
claim 1 and in the specification is misdescriptive.
The portions 32 and 38 of the burner are considered
either recesses, grooves or passageways. In order
to form “ports”, other mating parts such as cap 40
must
mate with recesses 32. A port is considered to be a
hole as set forth in Webster’s Third New
International Dictionary.
Appeal No. 2000-1337
Application No. 08/955,002
3
The term “chamber” as used for example in line 2
of claim 1 in applicant’s specification appears
misdescriptive. To form a chamber, the cap 40
and/or base 50 must be mated with the burner head
20. A chamber is generally defined as an enclosed
space or cavity.
The “primary air flow passage” recited in line 8
of claim 1 for example which includes the venturi
passage 74 and chamber in the burner head leading to
discharge passages 32 is intangible and should be
defined by either the structure forming such or in
terms of means forming such.
The “secondary air flow passage”, at 118 and
leading to outlets at 112, is intangible and should
be defined by either the structure forming such or
defined in terms of means forming such. Note in
fig. 4, for example, that structure forming the
primary air flow
passage is common to structure forming the secondary
air flow passage and the structure connecting the
secondary air flow passage to the plurality of
bypass ports 120 is common to the structure forming
the recited “burner ports”. Note in support of such
that claim 4 recites that “a venturi support wall”
separates the primary flow passage form the
secondary flow passage.
Claim 2 is further misdescriptive in that the
fingers of the bu[r]ner head are not considered
“apertured” as recited. The portions 32 and 34 of
the burner head are considered recesses, grooves or
passageways. This appears to be consistent with the
dictionary definition presented by the applicant in
the amendment filed October 13, 1998 where in [sic:
wherein] an aperture is define as “A hole, gap,
slit, or other opening; an orifice.”
Appeal No. 2000-1337
Application No. 08/955,002
4
It is to be noted that applicant appears to be
using some of the structure from the embodiment of
Figs. 1-3 in the embodiment of Fig. 4 and it is not
clear from the description and drawings how the
burner head 20 of Figs. 1-3 with “ports” 32 and 38
mate[s] with the surrounding structure to provide
“bypass ports
120" and bypass passages 112 between the body 20 and
base 50 as set forth on page 10 of the
specification. The bypass passage 112 in Fig. 4 as
illustrated also appears to be open laterally to the
atmosphere [examiner’s answer, Paper No. 15, pages 3
through 5].
The appellant counters that one of ordinary skill in the
art would readily understand the claim limitations at issue
when read in light of their ordinary and accustomed meanings
and the underlying specification (see the main and reply
briefs, Paper Nos. 14 and 16).
The second paragraph of 35 U.S.C. § 112 requires claims
to set out and circumscribe a particular area with a
reasonable degree of precision and particularity. In re
Johnson, 558 F.2d 1008, 1015, 194 USPQ 187, 193 (CCPA 1977).
In determining whether this standard is met, the definiteness
of the language employed in the claims must be analyzed, not
in a vacuum, but always in light of the teachings of the prior
Appeal No. 2000-1337
Application No. 08/955,002
5
art and of the particular application disclosure as it would
be interpreted by one possessing the ordinary level of skill
in the pertinent art. Id. Unless the disclosure makes clear
that a special meaning was intended, words in a claim are
given their ordinary meaning in the usage of the field of the
invention; however, words of
ordinary usage must nonetheless be construed in the context of
the disclosure. See Toro Co. v. White Consolidated Industries
Inc., 199 F.3d 1295, 1299, 53 USPQ2d 1065, 1067 (Fed. Cir.
1999).
The examiner’s concern with the recitations of the
“ports” (claims 1, 6 and 9), the “chamber” (claims 1, 6 and 9)
and the “apertured” fingers (claim 2) appears to be that while
these terms are consistent with the undisputedly clear
descriptions thereof in the underlying specification, both the
claims and the specification are misdescriptive because they
are inconsonant with the ordinary and accustomed meaning of
the terms. The examiner apparently views these ordinary and
accustomed meanings as requiring ports, apertures and chambers
to be bounded or enclosed about their entire effective
Appeal No. 2000-1337
Application No. 08/955,002
These definitions are in accord with those advanced by the appellant1
and the examiner.
6
peripheries, whereas the ports, apertures and chambers
disclosed and claimed by the appellant are recesses, spaces or
cavities which are not bounded or enclosed about their entire
effective peripheries.
Webster’s New Collegiate Dictionary (G. & C. Merriam Co.
1977) defines the term “port” as meaning “an opening for
intake or exhaust of a fluid esp. in a valve seat or valve
face,” the
term “chamber” as meaning “a natural or artificial enclosed
space or cavity,” and the term “aperture” as meaning “an
opening or open space : HOLE.” These definitions are broad1
enough to cover the “ports,” “chamber” and “apertured” fingers
disclosed and claimed by the appellant. Thus, the appellant’s
specification and claims are not misdescriptive in the sense
urged by the examiner. Moreover, even if there was some
inconsistency here, the claims would nonetheless point out and
circumscribe the appellant’s invention with a reasonable
degree of precision and particularity since there is no real
question as to what the terms at issue mean when read in light
Appeal No. 2000-1337
Application No. 08/955,002
7
of the underlying disclosure.
The examiner’s criticism of the recitations of the
“primary air flow passage” (claims 1, 6 and 9) and the
“secondary air flow passage” (claims 1, 6 and 9) as being
“intangibles” is also unfounded. In the context of the
claimed cooktop burner, these air flow passages are simple,
straightforward and readily understood structural features.
Moreover, that these passageways
might share their delimiting structure with one another and/or
other elements of the burner does not pose any indefiniteness
problem.
Finally, the observations in the last paragraph of the
examiner’s explanation pertain to the adequacy of the
disclosure rather than the definiteness of the claimed subject
matter, and thus have no particular relevance to the rejection
at hand. To the extent that there is a problem with the
disclosure, the examiner is free to deal with it via an
appropriate objection and/or rejection under 35 U.S.C. § 112,
first paragraph.
In light of the foregoing, we shall not sustain the
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Application No. 08/955,002
8
standing 35 U.S.C. § 112, second paragraph, rejection of
claims 1 through 13.
The decision of the examiner to reject claims 1 through
13 is reversed.
REVERSED
HARRISON E. McCANDLISH )
Senior Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS AND
Administrative Patent Judge )
INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
jpm/vsh
Appeal No. 2000-1337
Application No. 08/955,002
9
RONALD M. NABOZNY
BROOKS & KUSHMAN
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075