Ex Parte Leary et al

Patent Trial and Appeal Board

Mar 28, 2013

10664699 (P.T.A.B. Mar. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOHN LEARY, THOMAS J. SIEVERS, RUTH LI,
KEVIN McHENRY, DANE IMMEL and TJ DEJONG
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Appeal 2011-000370
Application 10/664,699
Technology Center 3700
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Before STEVEN D.A. McCARTHY, ANNETTE R. REIMERS and
CARL M. DeFRANCO, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
John Leary et al. (Appellants) appeal under 35 U.S.C. § 134(a) from
the Examiner’s decision to reject claims 1, 2, 4 and 6-25 under 35 U.S.C.
§ 103(a) as unpatentable over Christophers (EP 0350453 A1; published Jan.
10, 1990),1 Leuschner (US 3,711,681; issued Jan. 16, 1973) and Edey (GB
2157815 A; published Oct. 30, 1985).2 Claims 3 and 5 have been canceled.
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
Appellants’ invention relates to water heating devices and a method
for electrically heating water for use on an aircraft or other applications in
which similar requirements and limitations exist. Spec. para. [0002]; figs. 1-
2.
Claims 1 and 14 are illustrative of the claimed invention and read as
follows:
1. A water heating apparatus for use with a wash
basin on an aircraft, the apparatus comprising:
a tube made of good heat conductive material, said
tube comprising a plurality of coils with each coil
engaging or being close to an adjacent coil;

1 We derive our understanding of this reference from the translation
provided by the USPTO, mailed Aug. 20, 2010. All references to the text of
this document are to portions of the translation. Appellants refer to this
reference as Christophers (App. Br. 10), and the Examiner refers to this
reference as “EP” and “Ep 453’” (Ans. 3 and 5, respectively). For
consistency, we shall refer to the reference as “Christophers.”
2 Appellants refer to this reference as Edey (App. Br. 10), and the Examiner
refers to this reference as “GB 815’” and the “Uk patent” (Ans. 4 and 5,
respectively). For consistency, we shall refer to the reference as “Edey.”
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an electric heater extending along a substantial
length of said tube in good heat conductive relation with
the tube, said heater being positioned exterior to said tube
such that deposits do not form on said heater, said heater
comprising coils with each heater coil being adjacent a
pair of adjacent tube coils but not encircling an axis of
said tube; and
said substantial length of said tube defining a
volume of less than that required to contain
approximately 14 ounces of water such that a user on the
aircraft can obtain a supply of heated water having a
volume of less than approximately 14 ounces before the
water heater begins heating a new supply of heated
water.

14. A method of heating small volumes of water for
intermittent usage in a wash basin on an aircraft, said
method comprising:
providing a tube to be connected to a water outlet,
said tube being made of good heat conductive material;
providing an electric heater in good heat
conductive relation with the tube, said tube and said
electric heater being in contact over a length that defines
a volume of less than that required to contain
approximately 14 ounces of water such that a user on the
aircraft can obtain a supply of heated water having a
volume of less than approximately 14 ounces before the
water heater begins heating a new supply of heated
water.

ANALYSIS
Claims 1, 2, 4, 6-13, 17 and 19-25
Independent claims 1 recites a water heating device that includes a
tube having “a plurality of coils.” App. Br., Claims Appendix. Similarly,
independent claim 19 recites an aircraft sink water heater including a water
tube having “a spiral configuration to define a series of water tube coils.”
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Id. The Examiner found that Christophers discloses a water heating device
including “a coiled tube heater.” Ans. 5; see also id. at 8.
Appellants argue that “Christophers [does] not teach coils, let alone a
plurality of coils.” App. Br. 15. Specifically, Appellants argue that (1)
Christophers discloses “four spaced U-shaped members connected to a
common inlet and a common outlet;” and (2) “the heated water flowed
through the U-shaped members [of Christophers] in parallel.” Id. As such,
Appellants take the position that the U-shaped members of Christophers are
not coils because “the flow [does] not circulate from one U-shaped member
to the next in a serpentine manner [i.e., in series].” Id.
Claims are to be given their broadest reasonable interpretation
consistent with the specification, reading claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We
note that Appellants’ Specification does not expressly define the term “coil”3
or otherwise indicate that this term is used in a manner other than its
ordinary and customary meaning. However, Appellants’ Specification does
disclose that “water tube 10 [is] coiled in a relatively tight spiral creating a
series of coils.” Spec. para. [0012]; see also fig. 1. A person of ordinary
skill in the art would not have reasonably found the heating tubes 5 of
Christophers to be coiled tubes. In contrast, as correctly pointed out by
Appellants, the heating tubes 5 of Christophers are U-shaped heating tubes
arranged congruently one above the other. App. Br. 15; see also

3 An ordinary and customary meaning of the term “coil” is “1 : to wind into
rings or spirals.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed.
2005).

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Christophers, p. 3, ll. 5-7; fig. 1.
As such, we find that a reasonable interpretation of the term “coil,” in
light of the Specification, excludes an interpretation in which Christophers’
heating tubes 5 constitute “coiled” heating tubes, as the Examiner suggests.
Accordingly, the U-shaped heating tubes 5 of Christophers do not constitute
“a plurality/series of coils,” as required by the claims.
The Examiner relied on Leuschner for disclosure of an electric heater
4 extending along the longitudinal extent of the heating tube 3. Ans. 4-5.
The Examiner relied on Edey “for merely evidencing that heating of small
volumes of water is conventional.” Id. at 7. The Examiner did not rely on
Leuschner or Edey to cure the above-noted deficiency with Christophers.
Accordingly, for the foregoing reasons, the Examiner’s rejection of claims 1,
2, 4, 6-13, 17 and 19-25 under 35 U.S.C. § 103(a) as being unpatentable
over Christophers, Leuschner and Edey cannot be sustained.
Claims 14 and 18
Independent claim 14 recites a method of heating small volumes of
water including the step of “providing an electric heater in good heat
conductive relation with the tube, [the] tube and [the] electric heater being in
contact over a length that defines a volume of less than that required
to contain approximately 14 ounces of water.” App. Br., Claims Appendix.
Appellants argue that “Christophers did not teach an electric heater at
all, Leuschner did not teach the limited contact length and Edey taught an
internal heater that was not in contact with any tube.” App. Br. 19.
Appellants further argue that “the Examiner has not provided any
explanation of where the recited construction is taught or why one would
have been led to bridge this gap between the prior art and the claimed
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invention.” Id.
We are not persuaded by Appellants’ arguments because Appellants
appear to attack the teachings of Christophers, Leuschner and Edey
individually, rather than the combination of Christophers, Leuschner and
Edey. Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We agree with the Examiner that Christophers discloses the
limitations of claim 14 except the heater being in contact with the heating
tube over a length of the tube and the use of a heating volume of less than 14
ounces. Ans. 3. We further agree with the Examiner that Leuschner
discloses a heating element (heater) 4 that extends “along the longitudinal
extent of [i.e., is in contact over a length of] the [heating] tube [3].” Id. at 4;
see also Leuscher, col. 2, ll. 9-15; figs. 1-2. Consequently, we also agree
with the Examiner that “it would have been obvious to modify [Chistophers]
to use a longitudinally extending heating element in contact with a flow
through tube, [as taught in Leuschner] to more effectively heat the fluid in
the tube.” Id. Moreover, we note that Chistophers discloses that “an electric
heating coil or a heating rod can be installed into at least one of the heating
tubes 5, whose electrical connections are run to a circuit and switchbox 12
located on the side.” Christophers, p. 3, ll. 18-20
We further agree with the Examiner that both Leuschner and Edey
disclose heating of small volumes of water. Ans. 5-7; see also Leuschner,
col. 1, ll. 34-36, col. 2, ll. 18-21; Edey, col. 1, ll. 26-32, fig. 1. The
Examiner reasoned that “[d]epending on the operator of the device, very
small volumes of water can be heated, depending on the amount entered into
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the tube.” Ans. 6. The Examiner further reasoned that
one of ordinary skill in the art would have found it
well within the level of ordinary skill in the art to
design the tube volume and heater of such length
to heat the desired amount of water. If the
intended volume of water to be heater is 1 cup or
3 cups, the artisan would find proper motivation
in the applied references to heat the designated
amount of water.
Id.
Consequently, the Examiner provided a reason with rational underpinnings
to support the conclusions of obviousness. Appellants have not provided
any persuasive evidence of error regarding the Examiner’s stated reasoning
or conclusions of obviousness.
Accordingly, for the foregoing reasons, the rejection of independent
claim 14 under 35 U.S.C. § 103(a) as unpatentable over Christophers,
Leuschner and Edey is sustained. Appellants do not present any arguments
for dependent claim 18 separate from those presented above for independent
claim 14. App. Br. 20. Accordingly, the rejection of claim 18 under 35
U.S.C. § 103(a) as unpatentable over Christophers, Leuschner and Edey is
likewise sustained.
Claims 15 and 16
Dependent claim 15 requires the method step of “providing [the] tube
. . . with coils.” App. Br., Claims Appendix. Claim 16 depends from claim
15. As discussed above, the U-shaped heating tubes 5 of Christophers do
not constitute “coils.” In addition, as discussed above, the Examiner did not
rely on Leuschner or Edey to cure the above-noted deficiency with
Christophers. Therefore, for the foregoing reasons, the rejection of claims
15 and 16 under 35 U.S.C. § 103(a) as unpatentable over Christophers,
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Leuschner and Edey cannot be sustained.

DECISION
The decision of the Examiner is affirmed as to claims 14 and 18 and
reversed as to claims 1, 2, 4, 6-13, 15-17 and 19-25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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