Ex Parte Klein

Patent Trial and Appeal Board

Jun 14, 2017

12835619 (P.T.A.B. Jun. 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.
031445.00041 1620
EXAMINER
SAVANI, AVINASH A
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
12/835,619 07/13/2010
7590 06/14/2017
Attn: Craig A. Gelfound, Esq.
ARENT FOX LLP
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013-1065
Mark Klein
06/14/2017 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 MARK KLEIN
Appeal 2015-008111
Application 12/835,619
Technology Center 3700
Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 13—22. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
1 Throughout this opinion, we refer to the Appellant’s Appeal Brief
(“Appeal Br.,” filed Mar. 26, 2015), Reply Brief (“Reply Br.,” filed Sept. 2,
2015), and Specification (“Spec.,” filed July 13, 2010), and to the
Examiner’s Answer (“Ans.,” mailed July 2, 2015) and Final Office Action
(“Final Act.,” mailed Sept. 25, 2014).
2 According to the Appellant, the real party in interest is “IHP Lennox of
Nashville, Tennessee.” Appeal Br. 4.
Appeal 2015-008111
Application 12/835,619
STATEMENT OF THE CASE
The Appellant’s invention “relates to fireplaces, and more
particularly, to the reduction of air pollutants from wood burning fireplace
emissions,” such as by a hood. Spec. 1, 10, 11.
Claims 13 and 19 (Appeal Br. 15, 16 (App. I)) are the independent
claims on appeal, are illustrative of the subject matter on appeal, and are
reproduced below:
13. An air pollution reduction unit comprising:
a hood having an open top and an open bottom, the hood
comprising
a front surface,
a rear surface, and
first and second opposing side portions connecting
the front surface to the rear surface, the bottom of the hood
defining an intake opening;
an exhaust cleaner support unit having an open top and an
open bottom, the bottom of the exhaust cleaner support unit
disposed on the top of the hood and the top of the exhaust cleaner
support unit defining an exhaust opening; and
first and second adjustable hood supports, each hood
support extending from the first and second side portions,
respectively.
19. An air pollution reduction unit comprising:
a hood having an open top and an open bottom, the hood
comprising
a front surface,
a rear surface, and
first and second opposing side portions connecting
the front surface to the rear surface, where the bottom of
the hood defining an intake opening;
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Application 12/835,619
an exhaust cleaner support unit having an open top and an
open bottom, the bottom of the exhaust cleaner support unit
disposed on the top of the hood and the top of the exhaust cleaner
support unit defining an exhaust opening; and
a first flange at the exhaust opening, the first flange
extending inwards toward the exhaust opening.
REJECTIONS
Claims 13 and 19 stand rejected under pre-AIA 35 U.S.C. § 102(b) as
being anticipated by Bodmer (US 5,536,206, iss. July 16, 1996).
Claims 13—22 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Fleming (US 6,098,614, iss. Aug. 8, 2000) and
Dollinger (US 2,052,453, iss. Aug. 25, 1936).
ANALYSIS
Anticipation — Claims 13 and 19
Claim 13
Independent claim 13 requires, in relevant part, a hood with first and
second opposing side portions connecting a front surface of the hood to a
rear surface of the hood and from which extend adjustable hood supports.
Appeal Br. 15 (App. I). We agree with the Appellant that the Examiner does
not adequately show that Bodmer discloses these limitations. See Reply
Br. 3^4; Appeal Br. 9.
The Examiner finds that Bodmer discloses a hood 18 with front and
side portions 34 and 40 connecting the front and rear surfaces. Final Act. 3.
The Examiner appears to clarify the rejection in the Answer and finds that
Bodmer’s cylindrical hood would have “front and rear surface[s] and two
opposing side surfaces that connect the front and rear.” Ans. 6. The
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Application 12/835,619
Examiner finds that, as such, Bodmer’s hood supports 54 would be
“connected on the side surfaces/quadrants of the cylindrical duct.” Id.
However, we find persuasive the Appellant’s argument that the
flexible joints 34 and 40 with the support plates 54 of Bodmer are opposing
side portions connecting the front and rear surfaces of the hood and from
which extend supports, as required by the claims. Reply Br. 3^4; Appeal Br.
9. Bodmer discloses a duct fume collection and exhaust apparatus with a
pump and duct joined to a hood, as shown in Figure 1 (reproduced below).
Bodmer, col. 2,11. 20-29, col. 3,11. 7—9.
Fig. 1 showing the apparatus of Bodmer with a pump, duct, and hood.
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Application 12/835,619
As Figure 1 shows, flexible joints 34 and 40 interconnect the rigid
duct sections 36 and 42. Id. at col. 2,11. 54—64. Plates 54 and 56 comprise
the joint support mechanism for flexible joints 34 and 40. Id. at col. 4,
11. 32-45. Frusto conically-shaped hood 18 is connected to rigid duct 42 by
flexible duct 46. Id. at col. 3,11. 36—39,1. 66—col. 4,1. 2. Even assuming
Bodmer’s hood has “sides,” Bodmer does not explicitly or implicitly
disclose that opposing side portions of hood 18 connect the front and rear
surfaces of the hood, rather than being a continuous part of the surfaces.
Further, “hood supports” 54 appear to extend from the sides of rigid ducts 36
and 42 and not from hood 18. As such, we agree with the Appellant (Reply
Br. 3) that Bodmer does not describe first and second hood supports that
extend from the hood side portions connecting the front and back sides of
the hood.
Thus, we are persuaded that the Examiner erred in the rejection of
claimsl3 under 35 U.S.C. § 102, and we do not sustain this rejection of
claim 13.
Claim 19
Independent claim 19 requires, in relevant part, a hood with first and
second opposing side portions connecting a front surface of the hood to a
rear surface of the hood and a flange extending inwards towards the exhaust
opening. Appeal Br. 16 (App. I). We agree with the Appellant that the
Examiner does not adequately show that Bodmer discloses these limitations.
See Reply Br. 3-A; Appeal Br. 9.
The Examiner makes the same findings regarding the hood as recited
in claim 19 as with claim 13, discussed above. See Final Act. 4, Ans. 6. The
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Application 12/835,619
Examiner further finds that Bodmer discloses a flange 32 extending inwards
towards the exhaust opening. Final Act. 4.
As discussed above with regards to claim 13, we find persuasive the
Appellant’s argument that flexible joints 34 and 40 of Bodmer are not
opposing side portions connecting the front and rear surfaces of the hood, as
required by the claims. Reply Br. 2—\\ Appeal Br. 9. We also find
persuasive the Appellant’s argument that Bodmer does not teach a flange as
recited. Final Act. 10. Bodmer discloses a joint support bracket 32 that
supports rigid tube 30 and is attachable to a vertical wall or to a portable
console unit. Bodmer, col. 3,11. 46—50. The Examiner does not explain, and
we do not readily see, how joint support bracket 32 meets the claimed
flange.
Thus, we are persuaded that the Examiner erred in the rejection of
claimsl9 under 35 U.S.C. § 102. Therefore, we do not sustain this rejection
of claim 19.
Obviousness — Claims 13—22
Claims 13—18
The Appellant argues claims 13—18 as a group. See Appeal Br. 10.
We select independent claim 13 as representative of the group; dependent
claims 14—18 stand or fall with claim 13. See 37 C.F.R. § 41.37(c)(l)(iv).
We agree with the Appellant’s contention that the Examiner’s
rejection of claim 13 is in error because Fleming and Dollinger, alone or in
combination, do not teach or suggest the first and second hood supports that
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Application 12/835,619
extend from the front and side portions of the hood as claimed. See Appeal
Br. 11—12; Reply Br. 4.
The Examiner acknowledges that Fleming does not teach the supports
and relies on Dollinger’s frame 14 and holes 29 for meeting the claimed
supports. Final Act. 5. The Examiner appears to clarity the rejection in the
Answer and finds that “the ventilator, interpreted as the hood, has two
adjustable supports 14 which are adjustable as pointed out by the appellant,”
and “it was known to use adjustable supports for ventilating structures in
order to fit different sized areas.” Ans. 7.
We find persuasive the Appellant’s argument that “[tjhere is no
suggestion [in Dollinger] that such extensions have the strength necessary to
support a hood above a fireplace.” Reply Br. 4. Dollinger discloses that at
each end of a ventilator is an extension comprising a horizontally-positioned,
U-shaped, adjustable extension frame 14. Dollinger, col. 2,11. 30-40. The
extensions are provided “[i]n order to permit the mounting of the ventilator
into various size window frames.” Id. at col. 2,11. 30—33. The extension
frame has mounted to it a pair of fabric-covered vertical metal plates to
provide a flexible joint and prevent air leakage. Id. at col. 2,11. 37—60. As
such, Dollinger teaches that frame 14 is for mounting the ventilator and to
prevent air leakage. The Examiner has not adequately explained, and we do
not readily see, how the mounting frames of Dollinger are capable of acting
as supports.
Thus, we are persuaded that the Examiner erred in the rejection of
claim 13 under 35 U.S.C. § 103. Therefore, we do not sustain this rejection
of claim 13 of dependent claims 14—18, which stand with claim 13.
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Claims 19-22
The Appellant argues claims 19-22 as a group. See Appeal Br. 12.
We select independent claim 19 as representative of the group; dependent
claims 20—22 stand or fall with claim 19. See 37 C.F.R. § 41.37(c)(l)(iv).
We agree with the Appellant’s contention that the Examiner’s
rejection of claim 19 is in error because Fleming and Dollinger, alone or in
combination, do not teach or suggest a flange extending inwards toward the
exhaust opening as claimed. See Appeal Br. 12; Reply Br. 5.
The Examiner acknowledges that Fleming does not teach the flange
and relies on Dollinger’s bolts 8 for meeting the claimed flange. Final
Act. 5 (citing Dollinger col. 1,1. 30-col. 2,1. 70, Figs. 1, 4, 5). The
Examiner appears to clarity the rejection in the Answer and finds that
“[tjhere are also flanges when referencing the figures of Dollinger that
extend inwardly and outwardly as mentioned in the grounds of rejection.”
Ans. 7.
We find persuasive the Appellant’s argument that the Examiner does
not adequately explain or show how Dollinger’s “flanges could be construed
as being disposed at the exhaust opening and extending inwards toward the
exhaust opening or dispose at the exhaust opening and extending outwards
from the exhaust opening.” Reply Br. 5. Dollinger does disclose a flange 7
bent in from arm 6 that engages flange 2 at the rear of the ventilator with
stops for the arm provided for by bolts 8. Dollinger, col. 1,1. 55—col. 2,1. 5.
However, the Examiner does not explain, and it is not clear, how these
flanges teach the claimed inward-extending flange at the exhaust opening.
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Thus, we are persuaded that the Examiner erred in the rejection of
claim 19 under 35 U.S.C. § 103. Therefore, we do not sustain this rejection
of claim 19 of dependent claims 20—22, which stand with claim 19.
DECISION
The Examiner’s rejection of claims 13 and 19 under pre-AIA
35 U.S.C. § 102(b) is REVERSED.
The Examiner’s rejection of claims 13—22 under pre-AIA 35 U.S.C.
§ 103(a) is REVERSED.
REVERSED
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