Ex Parte Pelonis

Board of Patent Appeals and Interferences

Sep 29, 2005

09996842 (B.P.A.I. Sep. 29, 2005)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KOSTA L. PELONIS
__________

Appeal No. 2005-2052
Application No. 09/996,842
___________

ON BRIEF
___________

Before TIMM, JEFFREY T. SMITH, and PAWLIKOWSKI, Administrative
Patent Judges.

PAWLIKOWSKI, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 from the
examiner’s final rejection of claims 1 through 7. A copy of
claim 1 is set forth below:
1. A portable heater comprising:

(a) a sealed radiator containing a diathermal fluid,
the radiator including a plurality of tubular radiator units,
the tubular radiator units having respective upper portions and
respective lower portions;

(b) at least one electric heating element positioned
within the sealed radiator;

(c) a fan positioned above the sealed radiator for
directing air on the upper portions of the tubular radiator
units, the fan being effective to cool the upper portions of the
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Application No. 09/996,842

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tubular units to enhance thermal convection of the diathermal
fluid within the tubular radiator units.

The examiner relies upon the following references as
evidence of unpatentability:
Woolley 2,075,323 Mar. 30, 1937
De’Longhi 4,870,253 Sep. 26, 1989

Claims 1 through 7 stand rejected under 35 U.S.C. § 103 as
being obvious over De’Longhi in view of Woolley.
On page 3 of the brief, appellants group the claims
together. We therefore consider claim 1 in this appeal. See 37
CFR § 41.37(c)(1)(vii)(September 2004); formerly 37 CFR
§ 1.192(c)(7)(2003). Also see Ex parte Schier, 21 USPQ2d 1016,
1018 (Bd. Pat. App. & Int. 1991).
We have carefully considered appellants’ brief1, the
examiner’s answer, and the evidence of record. This review has
led us to conclude that the examiner’s rejection is well
founded.

1 We use the Supplemental Appeal Brief filed on July 16, 2004.
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OPINION
I. THE 35 U.S.C. § 103 REJECTION OF CLAIMS 1 THROUGH 7 AS
BEING OBVIOUS OVER DE’LONGHI IN VIEW OF WOOLLEY

The examiner’s position for this rejection is set forth on
pages 3 through 6 of the answer. We refer to the examiner’s
position as set forth therein, as our own.
The examiner’s basic position is that De’Longhi teaches a
portable, sealed electrically-heated radiator containing a
diathermal fluid within tubular radiator units. The diathermal
fluid is heated by an electric heater 4, and thermoventilation
unit 6 is mounted adjacent the tubular units that enhances
thermal convection. Answer, pages 3-4.
The examiner recognizes that thermoventilation unit 6
(having fan 7) of De’Longhi is positioned at a location
different from the position of the fan as recited in appellants’
claim 1. That is, appellants’ claim 1 recites that the fan is
positioned above the sealed radiator.
The examiner relies upon Woolley for teaching to position
fans 19 above the radiator unit for directing air onto the
radiator units’ upper portions to enhance thermal convection.
The examiner refers to figure 1 of Woolley and page 1, column 2,
lines 27 through 42, in this regard. Answer, page 4.
The examiner concludes that it would have been obvious to
have positioned the fan above the tubular radiator unit in
De’Longhi, as taught by Woolley, in order to heat a maximum
volume of room air and more uniformly distribute heat throughout
the room. Answer, page 4.
With regard to the claim recitation of “enhancing thermal
convection of a diathermal fluid”, the examiner’s position is
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that this recitation is inherent in the combination of
references because mounting a fan above the tubular radiation
units of De’Longhi would inherently influence the temperature of
the diathermal fluid contained therein. The examiner states,
that therefore, such a fan mounting would inherently enhance
thermal convection of the fluid. Answer, pages 4-5.
Appellant’s position regarding the rejection is set forth
on pages 4 through 7 of the brief. Appellant argues that the
modification suggested by the examiner would destroy the utility
of De’Longhi’s invention. Appellant argues that moving the
thermoventilation unit 6 from the bottom of the apparatus of
De’Longhi, to the top of the apparatus of De’Lonhgi, would cause
the unit to no longer be rotated so as to direct heated air
substantially parallel and adjacent to the floor of the room.
Appellant argues that, instead, heated air would be directed
parallel to the floor, but at a height several feet above the
floor. Brief, page 6. We are not convinced by this argument
for several reasons. As pointed out by the examiner, Woolley
specifically teaches to project air downwardly over the heat
transferring surfaces of the radiator and discharge air at a
predetermined point near the floor of the room to positively
heat a maximum volume of room air and to more uniformly
distribute heat throughout the room. Hence, one of ordinary
skill in the art would adjust the fan to project air downwardly
over the heat transferring surfaces of the radiator to heat a
maximum volume of air and to provide uniform distribution of
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heat, as taught by Woolley.2 Such an arrangement would not
destroy the function of the apparatus of De’Longhi because an
object of the invention of De’Longhi is to achieve “uniform air
circulation”.3 See column 1, 41-44 of De’Longhi. We also refer
to the examiner’s response made on pages 9-10 of the answer.
Appellant also argues that when the air is directed
downwardly through the radiating elements, room air circulation
is likely to be reduced. Appellant argues that the proposed
modification would provide a weak stream directed in a plane
parallel to the floor, but in all directions. Brief, page 6.
We disagree. This assertion is contrary to the teachings of
Woolley, and we refer to our footnote 3 in this regard. Also,
as discussed, supra (and as discussed by the examiner on page 10
of the answer), the modification would project air downwardly
over the heat transferring surfaces of the radiator to heat a
maximum volume of air and to provide uniform distribution of
heat, as taught by Woolley.
We emphasize that an object of the invention of De’Longhi
is to eliminate the considerable long time to reach operating
temperature to heat a room by providing a mobile apparatus for
heating rooms which has a high yield together with the fact that
it can supply heat to the room immediately after its activation.
See column 1, lines 19 through 35. A thermoventilation unit is

2 The examiner states, on page 9 of the answer, that the relocating of
unit 6 of De’Longhi to the top of De’Longhi’s apparatus would allow
for the pivotal movement of the fan to remain intact.
3 Woolley teaches “positively heating a maximum volume of the room air,
and also most effectively distributing heat uniformly throughout the
room”. See page 1, column 1, lines 24-35. We are not convinced that
such function would impair providing uniform circulation of air in the
room, as asserted by appellant.
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used for delivery of warm air from the body in a direction
substantially orthogonal to the radiator.
Woolley teaches the use of fan 19, depicted in each of
figures 1 and 2. These fans are utilized so that air is
projected downwardly over the heat transfer surfaces of the
radiator and is discharged at a predetermined point near the
floor of the room or other space served by the radiator over
which the heating cabinet is placed, thereby positively heating
a maximum volume of the room air, and also most effectively
distributing heat uniformly throughout the room. See column 1,
lines 24 through 36 of Woolley.
Hence, De’Longhi and Woolley have similar objectives. That
is, the objective is heat a maximum volume of room air and
effectively distributing heat. One way of doing this, as
disclosed in De’Longhi, is to utilize a thermal ventilation unit
6 having a fan 7 which is able to deliver warm air in a
direction substantially orthogonal to the radiator 2. The
thermoventilation unit 6 can also be partially rotated about its
own axis to direct a flow of air either approximate to the grid
9 or partially against the portion 10 of the radiating element
cooperating to heat the diathermal oil contained therein so as
to accelerate the attainment of the optimum operating
temperature of the heater for the heating of the room. See
column 2, lines 43 through 50.
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Utilizing the unit 6 of De’Longhi in the manner taught by
Woolley would result in a heater with a fan that projects air
downwardly over the heat transferring surfaces of the radiator,
which is discharged at a predetermined point near the floor of
the room, thereby positively heating a maximum volume of room
air and also most effectively distributing heat uniformly
throughout the room. This would not destroy the objects of
De’Longhi, contrary to appellant’s assertion.
With regard to the aspect of a claim wherein the fan is
effective to cool the upper portions of the tubular units to
enhance thermal convection of the diathermal fluid within the
tubular radiator units, we agree with the examiner’s position
that this would be inherent. See the answer, pages 4, 5, and
12. The examiner provides a technical explanation that the air
flowing directly on and downwardly over the tubular units would
influence the temperature of the diathermal fluid contained
therein such that thermal convection is enhanced. In other
words, an effect that one of ordinary skill would appreciate.
On the otherhand, appellant provides mere attorney argument that
the effect on thermal convection depends on the factual
specifics such that the limitation is not met by merely
arranging the fan as suggested by the examiner. Brief, pages 6-
7. Mere attorney argument is not the kind of factual evidence
that can rebut the prima facie case of obviousness. See In re
Wood, 582 F.2d 638, 642, 199 USPQ 137, 140 (CCPA 1978); In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 368 (CCPA 1972)(“mere
lawyers’ arguments unsupported by factual evidence are
insufficient to establish unexpected results”).
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Finally, with regard to appellant’s argument the set of
resistors 8 of De’Longhi’s thermoventilation unit 6 would have
to be turned off, we agree with the examiner’s response to this
argument, made on page 11 of the answer, and incorporate it as
our own.
In view of the above, we affirm the 35 U.S.C. § 103
rejection of claims 1 through 7 as being obvious over the
De’Longhi in view of Woolley.

II. CONCLUSION
The art rejection is affirmed.
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR §
1.136(a)(1)(iv)(effective September 13, 2004; 69 Fed. Reg. 49960
(August 12, 2004); 1286 Off. Gaz. Pat. Office 21 (September 7,
2004)).

AFFIRMED

CATHERINE TIMM )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY T. SMITH )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
BEVERLY A. PAWLIKOWSKI )
Administrative Patent Judge )

BAP:hh
Appeal No. 2005-2052
Application No. 09/996,842

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