11714328 (P.T.A.B. Mar. 31, 2015)

Ex Parte Krumrei

Patent Trial and Appeal BoardMar 31, 2015

11714328 (P.T.A.B. Mar. 31, 2015)

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. 11/714,328 03/06/2007 Terry Lee Krumrei 920-1-9-1 4649 23898 7590 04/01/2015 VINCENT L. CARNEY LAW OFFICE P.O. BOX 80836 LINCOLN, NE 68501-0836 EXAMINER LAUX, DAVID J ART UNIT PAPER NUMBER 3743 MAIL DATE DELIVERY MODE 04/01/2015 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 TERRY LEE KRUMREI ____________ Appeal 2013-004524 Application 11/714,328 Technology Center 3700 ____________ Before EDWARD A. BROWN, ANNETTE R. REIMERS, and JILL D. HILL, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Terry Lee Krumrei (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–16, which are the only pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART and enter a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b). Appeal 2013-004524 Application 11/714,328 2 CLAIMED SUBJECT MATTER Claims 1 and 11 are independent. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A burnpot having a burnpot top opening, a movable bottom, a burnpot side wall, a burnpot bottom opening closed by a portion of the movable bottom, the burnpot side wall, burnpot top opening and movable bottom forming a combustion volume; said burnpot further comprising: a rotatable member having a plurality of positions into which the rotatable member may be rotated; said rotatable member having a horizontal axis of revolution; said rotatable member further including a plurality of supporting surfaces wherein said portion of the movable bottom closing said burnpot bottom opening is one of said plurality of supporting surfaces that is positioned by the rotation of said rotatable member to be an upper supporting surface; whereby products of combustion are temporarily supported by the upper supporting surface of the rotatable member to enable a body of combustible fuel to burn on its upper supporting surface; and a mounting structure positioned with respect to the rotatable member so that the surface of the rotatable member always closes the burnpot at the bottom end of the burnpot and extends sufficiently beyond an opening at the lower end of the burnpot to carry the products of combustion out of the burn pot when the rotatable member is rotated; a feeder positioned to drop unignited fuel into said burnpot through said burnpot opening; said burnpot sidewalls being shaped between the burnpot top opening and burnpot bottom opening to provide a smaller area in the burnpot top opening than in the burnpot bottom opening. EVIDENCE The Examiner relies upon the following evidence: Hobson, Jr. US 2,072,450 Mar. 2, 1937 Appeal 2013-004524 Application 11/714,328 3 Culp US 3,412,699 Nov. 26, 1968 Drisdelle US 6,336,449 B1 Jan. 8, 2002 REJECTIONS Appellant requests review of the following rejections: Claims 1–6 and 9–14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Drisdelle and Hobson, Jr. (hereinafter “Hobson”) Claims 7, 8, 15, and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Drisdelle, Hobson, and Culp. ANALYSIS Rejection of claims 1–6 and 9–14 over Drisdelle and Hobson Claims 1–6 and 9 The Examiner finds that Drisdelle discloses burnpot 10 (combustion chamber 10) including bottom opening 14 and feeder 56. Answer 3. The Examiner finds that Drisdelle does not disclose the claimed rotatable member. Id. The Examiner finds that Hobson discloses burnpot 7 including rotatable member 8 (rotatable cylindrical grate 8) and sidewalls 7’, 7” (plates 7’, 7”) shaped to provide a smaller area in the burnpot top opening than in the burnpot bottom opening. Id. at 4–5 (citing Hobson, Fig. 1); see also id. at 11. The Examiner concludes that it would have been obvious to combine Drisdelle’s combustion apparatus with Hobson’s burnpot with a rotatable bottom as an alternate means of removing ash from the burnpot, and as a simple substitution of one known element for another to obtain predictable results. Id. at 5. Appeal 2013-004524 Application 11/714,328 4 Appellant contends that Hobson’s air supply duct 7 is not a “burnpot,” as claimed. Br. 5–6. Appellant also contends that combustion takes place in main body 13 of the furnace and not in air supply duct 7. Id. at 6. The Examiner responds that Appellant does not provide a specific definition of the term “burnpot.” Answer 10. We agree. Appellant does not direct us to any disclosure in Appellant’s application that specifically defines “burnpot,” or any disclosure that precludes the Examiner’s determination that Hobson’s air supply duct 7 and rotatable grate 8 can be considered a burnpot, as claimed. In addition, Appellant does not provide any evidence to establish that “burnpot” has a well-known meaning in the art and which distinguishes the claimed “burnpot” from the structure disclosed in Hobson relied on by the Examiner. Further, the Examiner determines that Drisdelle and Hobson disclose all limitations of the claimed burnpot. Id. For these reasons, Appellant’s contention is not persuasive. Appellant also contends that, in Hobson, the bottom of the combustion chamber is smaller than its top. Br. 6. The Examiner responds that element 7 of Hobson is used to burn solid fuel with supplied air and also has sidewalls as claimed. Answer 10–11 (citing Hobson, p. 1, col. 2, ll. 34–37; p. 3, col. 1, ll. 54–58; Fig. 1). We note that Hobson discloses, “[t]his stream of air 55 will be initially heated through its contact with the rotating grate 8. This provides means of burning out of such combustible as may be left in the bed which lies on top of the grate.” See Hobson, p. 3, col. 1, ll. 54–58 (emphasis added). We thus agree with the Examiner that Hobson discloses that combustion occurs in air supply duct 7. Appeal 2013-004524 Application 11/714,328 5 According to Appellant, Hobson teaches away from the claim limitation, “said burnpot sidewalls being shaped between the burnpot top opening and burnpot bottom opening to provide a smaller area in the burnpot top opening than in the burnpot bottom opening.” Br. 6. In response, the Examiner acknowledges that Hobson discloses combustion chamber 13, but explains that the rejection is based on substituting Hobson’s rotatable burnpot in Drisdelle. Answer 11. As the Examiner does not rely on combustion chamber 13 of Hobson in the combination of teachings of Drisdelle and Hobson, Appellant’s contention is not persuasive. Appellant also contends that combining Hobson’s rotatable grate with the ash pan of Drisdelle would change the principle of operation of Drisdelle. Br. 7. In particular, Appellant contends that Drisdelle’s ash pan is located below the combustion chamber to catch ash that falls through the grate, whereas Hobson’s rotatable grate prevents free fall of ash particles to an ash pit. Id. According to Appellant, the principle of using the ash pan of Drisdelle to catch ash that falls through a grate would be lost or significantly altered by using Hobson’s rotatable grate. Id. The Examiner responds that both Drisdelle and Hobson disclose means for temporarily supporting fuel while the fuel burns until it turns to ash and is then removed. Answer 11. We agree with the Examiner. Drisdelle discloses, “[t]hese rods 20 are spaced such that a fresh fuel pellet 23 cannot fall through. However, once the pellet 23 has been substantially carbonized it is capable of falling through between the triangular rods 20. The inclined faces 22 facilitate the flow of loose ash downwardly through the grate.” Drisdelle, col. 5, ll. 29– 34. Thus, Drisdelle’s grate 18 also provides support of ash. Appellant’s Appeal 2013-004524 Application 11/714,328 6 contention that the Examiner’s combination of teachings would change the principle of operation of Drisdelle is not persuasive. Hence, we agree with the Examiner’s conclusion that it would have been obvious to one skilled in the art to modify Drisdelle’s system according to known methods by substituting the burnpot structure disclosed in Hobson. See Answer 11. Appellant fails to provide any persuasive argument or evidence in response to the Examiner’s articulated rejection to show that this substitution of known elements would have been uniquely challenging to a person of ordinary skill in the art and more than “the simple substitution of one known element for another” with predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Thus, we sustain the rejection of claims 1–6 and 9–14 over Drisdelle and Hobson. Claim 10 Appellant contends that Hobson discloses openings 28, which allow air to pass through them and are not “cutting members for fragmenting clinkers as the rotating member rotates.” Appeal Br. 8–9. In response, the Examiner clarifies the finding for Hobson in regard to claim 10. Answer 11–12. The Examiner explains that the “spoke portion” 40 (projections or ribs 40) of rotatable grate 8, not elements 28, are considered the “cutting members” in Hobson. Id. at 12. The Examiner finds that it is inherent that spokes 40, which come in contact with sidewall 7” act as cutting members to allow grate 8 to rotate. Id. We note that Hobson discloses, “projections or ribs 40 on the grate 8, conforming to the plates 11’ and 11”, form a suitable seal as will be seen from Figure 1.” See Hobson, p. 2, col. 1, ll. 22–24. Hobson also discloses, “[t]he projecting rib of the rotating grate 8 leaving the zone of the duct 1, Appeal 2013-004524 Application 11/714,328 7 exerts in combination with element 11” a shearing action on the particles thus tending to break up any large accumulations which may lodge in the bed next 63 to plate 1”.” See id. at p. 3, col. 2, ll. 61–67 (emphasis added). We agree with the Examiner’s finding that Hobson discloses “cutting members,” as claimed. Appellant does not provide any argument in response to the Examiner’s clarification of how Hobson is applied in the rejection. Thus, we sustain the rejection of claim 10 over Drisdelle and Hobson. Claims 11–14 Independent claim 11 is directed to a method of operating a heating apparatus. Claim 11 recites the step of “rotating the rotatable member when the coals have built to a predetermined level in the combustion chamber having a smaller cross-section, whereby the coals are removed.” Emphasis added. We note there is no antecedent basis for the recitation, “the combustion chamber having a smaller cross-section.” Consequently, the meaning of this language is unclear. For example, it is unclear what the combustion chamber has a smaller cross-section with respect to, or what portion of the combustion chamber has a smaller cross-section. Thus, we find that claim 11, and claims 12–14 depending from claim 11, are indefinite, and, therefore, fail to comply with the requirements of 35 U.S.C. § 112, second paragraph. We designate our rejection of claims 11– 14 under 35 U.S.C. § 112, second paragraph, as a new ground of rejection pursuant to 37 C.F.R. § 41.50(b) to provide Appellant with a full and fair opportunity to react. We do not reach the merits of the Examiner’s rejection of claims 11– 14 under 35 U.S.C. § 103(a) because, before a proper review of this rejection Appeal 2013-004524 Application 11/714,328 8 can be performed, the subject matter that claims 11–14 encompass must be reasonably understood without resort to speculation. We are unable to make a proper review of the prior art rejection without having to speculate on the meaning of the rejected claims. Thus, we are constrained to reverse the rejection under 35 U.S.C. § 103. See In re Steele, 305 F.2d 859, 862 (CCPA 1962) (A prior art rejection cannot be sustained if the hypothetical person of ordinary skill in the art would have to make speculative assumptions concerning the meaning of claim language.). Rejection of claims 7, 8, 15, and 16 over Drisdelle, Hobson, and Culp Claim 7 depends from claim 1 and recites, “further including a control system having means for moving from a first fuel feed setting to a second fuel feed setting in a controlled serial sequence.” Claim 8 depends from claim 7 and recites, “further including a delay time between the fuel feed settings to avoid a rapid change in rates of fuel feed.” The Examiner finds that Culp discloses a control system that provides the limitations recited in claims 7 and 8. Answer 10. The Examiner concludes that it would have been obvious to combine the burnpot of Hobson with Culp’s control system to provide a means for adjusting the speed of the rotatable bottom to ensure all of the fuel is consumed before the fuel is discharged from the combustion chamber. Id. Appellant contends that it would not have been obvious to modify a system with no disclosure of a delay time, as in Hobson, to provide a delay even though some systems may have an insignificant delay. Br. 13. This contention is not persuasive because it does not address the Examiner’s articulated rationale for combining the reference teachings noted above. Appeal 2013-004524 Application 11/714,328 9 Appellant also contends that Culp does not disclose a burnpot, and Culp’s feed control system is not disclosed in reference to a burnpot. Br. 13. However, the Examiner does not rely on Culp for disclosing a burnpot. Appellant’s contention is based on analyzing the applied references separately, ignoring the Examiner’s findings regarding what the references teach or suggest in combination. Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner finds that the combination of Drisdelle, Hobson, and Culp discloses all limitations of claims 7 and 8, and articulates reasons for combining the reference teachings. Whether or not any particular claim limitation is missing from a single applied reference is, therefore, irrelevant. As Appellant’s contentions do not apprise us of any error in the Examiner’s findings or articulated reasoning, we sustain the rejection of claims 7 and 8 as unpatentable over Drisdelle, Hobson, and Culp. Claims 15 and 16 depend from claim 11, and, thus, also fail to comply with the requirements of 35 U.S.C. § 112, second paragraph. We designate our rejection of claims 15 and 16 under 35 U.S.C. § 112, second paragraph, as a new ground of rejection under 37 C.F.R. § 41.50(b). For reasons discussed above, we reverse the Examiner’s rejection of claims 15 and 16 under 35 U.S.C. § 103(a) as unpatentable over Drisdelle, Hobson, and Culp. See In re Steele, 305 F.2d at 862. Appeal 2013-004524 Application 11/714,328 10 DECISION We AFFIRM the rejection of claims 1–6, 9, and 10, and REVERSE the rejection of claims 11–14, under 35 U.S.C. § 103(a) as unpatentable over Drisdelle and Hobson. We AFFIRM the rejection of claims 7 and 8, and REVERSE the rejection of claims 15 and 16, under 35 U.S.C. § 103(a) as unpatentable over Drisdelle, Hobson, and Culp. We enter a NEW GROUND OF REJECTION of claims 11–16 under 35 U.S.C. § 112, second paragraph, pursuant to 37 C.F.R. § 41.50(b). Regarding the affirmed rejections, 37 CFR § 41.52(a)(1) provides “Appellant may file a single request for rehearing within two months from the date of the original decision of the Board.” In addition to affirming the Examiner’s rejections of one or more claims, this decision contains a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b), which provides that “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. . . . Appeal 2013-004524 Application 11/714,328 11 Should Appellant elect to prosecute further before the Examiner pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek review under 35 U.S.C. § 141 or 145 with respect to the affirmed rejections, the effective date of the affirmance is deferred until conclusion of the prosecution before the Examiner unless, as a mere incident to the limited prosecution, the affirmed rejections are overcome. If Appellant elects prosecution before the Examiner and this does not result in allowance of the application, abandonment or a second appeal, this case should be returned to the Patent Trial and Appeal Board for final action on the affirmed rejections, including any timely request for rehearing thereof. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)