Ex Parte KRIETZMAN

Patent Trial and Appeal Board

Sep 21, 2018

15051087 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/051,087 02/23/2016
36790 7590 09/24/2018
TILLMAN WRIGHT, PLLC
POBOX49309
CHARLOTTE, NC 28277-0076
FIRST NAMED INVENTOR
William Drew KRIETZMAN
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.
3001.360 8377
EXAMINER
KOSANOVIC, HELENA
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
09/24/2018 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 WILLIAM DREW KRIETZMAN 1
Appeal2018-001341
Application 15/051,087
Technology Center 3700
Before: BENJAMIN D. M. WOOD, NATHAN A. ENGELS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellant identifies Chatsworth Products, Inc. as the real party in interest.
App. Br. 3.
Appeal2018-001341
Application 15/051,087
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 2-
12 and 14--24. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
THE INVENTION
The claims are directed to a header panel assembly for preventing air
circulation above electronic equipment enclosure. Claims 2, 21, and 23 are
independent. Claim 2, reproduced below, is illustrative of the claimed
subject matter:
2. A hot/cold aisle containment system,
compnsmg:
a frame structure adapted to be at least partially
covered by one or more panels to define an interior
space, the frame structure including a first vertical
member, a second vertical member, and a horizontal
member, wherein the horizontal member is supported
directly by the first and second vertical members;
at least one electronic equipment enclosure
installed at least partially within the frame structure
such that the first and second vertical members are on
opposite sides of the at least one electronic
equipment enclosure and the horizontal member of
the frame structure extends from one side of the at
least one electronic equipment enclosure to the other;
and
a header panel assembly installed between, and
supported by, a top of the at least one electronic
equipment enclosure and the horizontal member of
the frame structure to prevent circulation of air above
the enclosure, the header panel assembly including a
main panel and at least one seal;
wherein the at least one seal includes a first seal
disposed along the lower edge of the main panel and
adapted to be held in place between the bottom of the
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Appeal2018-001341
Application 15/051,087
main panel and a top surface of the at least one
electronic equipment enclosure.
Abramson
Hoeft
Hall
Cottuli
Caveney
REFERENCES
us 2,766,861
us 7,656,660
US 2009/0173017 Al
US 2011/0271610 Al
US 2012/0181906 Al
REJECTIONS
Oct. 16, 1956
Feb.2,2010
July 9, 2009
Nov. 10, 2011
July 19, 2012
Claims 23 and 24 are rejected under 35 U.S.C. § 112(a) for failing to
comply with the written description requirement.
Claims 2-5, 7-9, 12, 14, 16-19, 21, and 22 are rejected under
35 U.S.C. § 103 as unpatentable over Hall and Caveney.
Claims 10 and 19 are rejected under 35 U.S.C. § 103 as unpatentable
over Hall, Caveney, and Hoeft.
Claims 11 and 20 are rejected under 35 U.S.C. § 103 as unpatentable
over Hall, Caveney, and Official Notice taken.
Claims 6 and 15 are rejected under 35 U.S.C. § 103 as unpatentable
over Hall, Caveney, and Abramson.
Claim 23 is rejected under 35 U.S.C. § 103 as unpatentable over
Cottuli.
Claim 242 is rejected under 35 U.S.C. § 103 as unpatentable over
Cottuli and Caveny.
2 Although the Examiner initially describes this rejection as applying to
claim 23, it is clear from the Examiner's discussion that claim 24 is the
subject of the rejection. See Final Act. 9-10.
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Application 15/051,087
ANALYSIS
Claims 23 and 24-Rejectedfor Failing to
Comply with Written-Description Requirement
Claim 23 recites a "frame structure" comprising, e.g., "a rigid,
uninterrupted horizontal member." Claim 24 depends from claim 23. The
Examiner finds that the Specification "does not describe[] the horizontal
member as ... rigid and uninterrupted." Final Act. 2.
Appellant responds that "the horizontal component of the recited
frame structure is described as a 'beam' in Appellant's written description,"
and that "'beam' is defined as 'a long, sturdy piece of squared timber or
metal used to support the roof or floor of a building."' App. Br. 9 ( citing
Oxford English Dictionary). According to Appellant, "[i]mplicit in [the]
definition [ of 'beam'] are certain physical attributes, such as the fact that a
beam is a rigid and unitary structure that is commonly used to provide
support to other structures." Id. Appellant further argues that"[ w ]hen
considered in light of Figure 2 of Appellant's disclosure, which illustrates
the horizontal beam as a single, rigid structure extending from one vertical
support post to the other, it is believed to be clear that the recited horizontal
member being both 'rigid' and 'uninterrupted' receives adequate support in
Appellant's written description." Id. at 9-10.
We sustain this rejection. The requirement that the horizontal
member be "uninterrupted" is a negative claim limitation because it excludes
from the scope of the claim any "interruptions" in the member. "[NJ egative
claim limitations are adequately supported when the specification describes
a reason to exclude the relevant limitation." Inphi Corp. v. Netlist, Inc., 805
F.3d 1350, 1355 (Fed. Cir. 2015) (quoting Santarus, Inc. v. Par Pharm.,
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Application 15/051,087
Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012)). The mere absence of a positive
recitation in the originally filed description is not basis for an exclusion.
MPEP § 2173.05(i). Further, "[a]ny claim containing a negative limitation
which does not have basis in the original disclosure should be rejected under
35 U.S.C. § 112(a) or pre-AIA 35 U.S.C. § 112 first paragraph." Id.
The Specification does not describe a reason to exclude interruptions
in the horizontal member of the frame structure. Indeed, the Specification
does not use the terms "uninterrupted" or "interruption." Accordingly,
under Inphi, the Specification does not adequately support the
"uninterrupted" limitation.
Claims 2-5, 7-9, 12, 14, 16--19, 21, and 22-
Rejected as Unpatentable over Hall and Caveney
Independent claim 2 requires the header panel assembly to include a
main panel and at least one seal, the at least one seal including "a first seal
disposed along the lower edge of the main panel." Independent claim 21
contains a similar limitation. The Examiner relies on Hall to teach all of the
limitations of claims 2 and 21 except for the requirement that the header
panel include a main panel and a first seal disposed along the lower edge of
the main panel. App. Br. 3--4. The Examiner finds that Caveney teaches a
header assembly with seals located on the top and sides of a main panel, and
that "[h ]aving another seal on the bottom [ of the main panel] would be a
duplication of parts," which "does not distinguish over the prior art, unless a
new and unexpected result is produced." Final Act. 4 (citing In re Harza,
274 F.2d 669 (CCPA 1960)). Appellant responds that "the 'mere
duplication of parts' rational does not make sense," because "[c]laim 2 does
not require the existence of a second seal." App. Br. 12.
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Application 15/051,087
We agree with Appellant that the Harza rationale does not apply to
this case. Claim 2 does not merely recite the duplication of seals disclosed
in the prior art, it requires the placement of a seal in a location that is
different than the location of Caveney's seals. Further, that location-the
lower edge of a main panel----differs in a material way from the locations
where Caveney teaches to place seals. Caveney teaches that the lower edge
of lower fixed panel 302 is bolted to the top of cabinet 46, whereas the top of
upper panel 304 and the sides of panels 302 and 304---where Caveney's
seals are located-are not bolted to any structure. Caveney ,r,r 103-106.
Instead, it appears that the top edge is meant to press up against the ceiling
and the side edges press up against adjacent vertical panels, the seals helping
to reduce the mixing of hot and cold air across those connections. Caveney
thus implies that because panel 302 is securely bolted along its lower edge, a
seal along the lower edge is not necessary. Therefore, placing a seal along
that lower edge would not constitute the mere duplication of Caveney's
seals. At best, Caveney teaches placing a seal along any panel edge that is
not firmly attached to another structure. But since neither Caveney nor Hall
teaches a header panel assembly with a main panel that is not firmly attached
along the lower edge, the combination of Hall and Caveney would still not
meet the claim language.
Because we are not persuaded that the Examiner's application of
Harza to this case is correct, we do not sustain this rejection.
Claims 6, 10, 11, 15, 19, and 20---Rejected as
Unpatentable over Hall, Caveney, and Additional References
Each of claims 6, 10, 11, 15, 19, and 20 depends either from either
claim 2 or 21. The Examiner relies on the analysis discussed above, based
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Application 15/051,087
on Harza, in finding these claims unpatentable. Final Act. 6-8. The
additional references are not relied on to cure the deficiency in this analysis.
Accordingly, for the reasons discussed above, we do not sustain the rejection
of claims 6, 10, 11, 15, 19, and 20.
Claim 23-Rejected as Unpatentable over Cottuli;
Claim 24-Rejected as Unpatentable over Cottuli and Caveney
Claim 23 recites, e.g., a "frame structure adapted to be at least
partially covered by one or more panels to define an interior space, the frame
structure including a first vertical member, a second vertical member, and a
rigid, uninterrupted horizontal member" that is "supported directly by the
first and second vertical members." Claim 24 depends from claim 23. The
Examiner finds that that "unnumbered vertical member next of door 402"
depicted in Figures 1 7 and 18 of Cottuli corresponds to the first vertical
member. Final Act. 8. For the second vertical member, the Examiner relies
on the "opposite side" of the first vertical member that is "not shown" but
"necessarily present, because the aisle is enclosed." Id. (citing Cottuli ,r 101,
Figs. 17, 18). For the rigid, uninterrupted horizontal member, the Examiner
relies on support member/bracket 340 of ceiling bracket assembly 1 Od
depicted in Figure 13b. Final Act. 8. According to the Examiner, support
member 340 "is supported directly by the first and second vertical
members." Id. ( citing Cottuli ,r 101 ).
Appellants respond that "support bracket 340 of Cottuli is not in any
way involved with the frame structure of the enclosure system," but "is part
of the suspended ceiling assembly that is designed to rest on top of, or be
suspended above, a row of cabinets." App. Br. 18-19 (citing Cottuli ,r 93).
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Application 15/051,087
We agree with Appellant Cottuli's element 340 depicted in Figure 13b
is not described as part of the equipment rack and aisle configuration
depicted in Figures 17 and 18. As such, the Examiner has not adequately
explained the finding that support member 340 is directly supported by the
elements in Figures 17 and 18 that the Examiner identifies as the first and
second vertical members. Accordingly, we do not sustain this rejection.
DECISION
For the above reasons, we affirm the Examiner's rejection of claims
23 and 24 under 35 U.S.C. § 112(a) for failing to comply with the written-
description requirement. We reverse the Examiner's rejections of claims 2-
12 and 14--24 as unpatentable under 35 U.S.C. § 103.
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-IN-PART
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