Ex Parte PRULLDownload PDFPatent Trials and Appeals BoardJun 28, 201913897083 - (D) (P.T.A.B. Jun. 28, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/897,083 05/17/2013 38513 7590 ROBERT E. HOW ARD P.O. BOX 10345 EUGENE, OR 97440 07/01/2019 FIRST NAMED INVENTOR GREGORY G. PRULL 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. 4793 EXAMINER SHIRSAT, VIVEK K ART UNIT PAPER NUMBER 3762 MAIL DATE DELIVERY MODE 07/01/2019 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 GREGORY G. PRULL Appeal2019-000540 1 Application 13/897 ,083 2 Technology Center 3700 Before PHILLIP J. KAUFFMAN, JEREMY M. PLENZLER, and ALYSSA A. FINAMORE, Administrative Patent Judges. FINAMORE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner's decision to reject claims 1-3, 6-8, and 11-18. We have jurisdiction under § 6(b ). We reverse. 1 We reference herein the Specification filed May 17, 2013 ("Spec."), Final Office Action mailed February 10, 2016 ("Final Act."), the Substitute Appeal Brief filed December 9, 2016 ("Br."), and the Examiner's Answer mailed April 6, 2017 ("Ans."). 2 Appellant identifies Gregory G. Prull as the real party in interest. Br. 1. Appeal2019-000540 Application 13/897,083 CLAIMED SUBJECT MATTER Claims 1 and 13 are independent. Independent claim 1 is illustrative of the claimed subject matter, and we reproduce it below, emphasizing the limitation at issue. 1. An open flame control device for weed control compnsmg: an open framework flame containment structure having a front side, a back side, an upper end, and an open lower end; at least one flame producing burner located within said flame containment structure adjacent said upper end thereof and configured to direct a flame and hot gases generated thereby towards and out of said open lower end of said flame containment structure; a porous metal fabric liner surrounding the inside of said flame containment structure and attached thereto, said porous metal fabric liner extendingfrom an area adjacent the bottom of said at least one flame producing burner to an area adjacent to the bottom of said flame containment structure, said porous metal fabric liner configured to capture and contain said flame and hot gases generated by said at least one flame producing burner and direct them out of said open lower end of said flame containment structure; at least one metal flame reflector located adjacent said lower end of said flame containment structure and occupying a portion of said back side thereof; and means allowing a user to move said device into killing proximity to weeds. Br., Claims App. (emphasis added). REJECTIONS The Examiner rejects the claims on appeal as follows: claim 16 under 35 U.S.C. § 112(b) as indefinite; 2 Appeal2019-000540 Application 13/897,083 claims 1-3, 11, 12, and 18 under 35 U.S.C. § 103 as unpatentable over Newson3 and Ihlenfield4; claims 6-8 under 35 U.S.C. § 103 as unpatentable over Newson, Ihlenfield, and Murakami 5; and claims 13-17 under 35 U.S.C. § 103 as unpatentable over Newson, Murakami, and Ihlenfield. 6 ANALYSIS Indefiniteness Claim 16 recites the "device of claim 13 wherein said metal flame reflector occupies about one-half of the back side portion of said basket." Br., Claims App. The Examiner determines the relative term "about" renders claim 16 indefinite because it is unclear what extent the flame reflector is encompassed by "about one-half." Final Act. 3. A claim is indefinite when it contains words or phrases whose meaning is unclear to a person of ordinary skill in the art. Ex parte McAward, 2017 WL 3669566 at *5 (PTAB Aug. 25, 2017) (citations omitted). In particular, "[t ]he use of the word 'about,' avoids a strict numerical boundary to the specified parameter. Its range must be interpreted 3 US 2005/0143259 Al, published June 30, 2005. 4 US 4,657,506, issued Apr. 14, 1987. 5 US 3,367,318, issued Feb. 6, 1968. 6 Although the heading of this rejection lists only claims 13-16 (Final Act. 8), the Examiner addresses claim 17 in the body of the rejection (id. at 10). Accordingly, we understand the rejection includes claim 17, which is consistent with Appellant's understanding of the rejection (Br. 13), and we treat the omission of claim 1 7 from the heading as a harmless oversight. 3 Appeal2019-000540 Application 13/897,083 in its technologic and stylistic context." Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995). It is appropriate to look to what purpose the limitation that includes the word "about" serves for guidance as to how broadly or narrowly the limitation is to be construed. Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1368 (Fed. Cir. 2008) (interpreting the phrase "greater than about 30 µm" in terms of the purpose described for the size limitation in the written description). Appellant points out the Specification teaches that "[a]s best seen in Fig. 6, metal reflector 60 covers approximately Yz of the inside surface of the basket 20 adjacent the bottom, thereby preventing flames, heat and exhaust gases from exiting behind the basket 20 and only to a portion of each side." Br. 5 (quoting Spec. 6:20-22). The Examiner replies "'approximately Yz' is no more definite than about one half since defining relative terminology in terms of other relative terminology does not provide clarity or insight into how the limitation should be interpreted." Ans. 10. Although we agree with the Examiner that "approximately" does not provide clarity as to the scope of "about," the Examiner does not address whether the function described in quoted portion of the Specification, i.e., "preventing flames, heat and exhaust gases from exiting behind the basket 20 and only to a portion of each side" (Spec. 6:21-22), would provide such clarity to a person of ordinary skill in the art. Accordingly, the Examiner has not shown persuasively that the meaning of the claim term "about" is unclear so as to render claim 16 indefinite. Therefore, we do not sustain the rejection of claim 16. 4 Appeal2019-000540 Application 13/897,083 Obviousness The Examiner finds Newson discloses substantially all of the limitations of independent claim 1. Final Act. 4--5. As depicted in Figure 2 of Newson, a device for killing or controlling weeds includes metal cylinder 1 defining a chamber having open end 4. Newson ,r 22. Heat shield 10 surrounds an upper portion of metal cylinder 1. Id. ,r 24. Gas burner outlets 5 heat air supplied through compressed air line 11 to a temperature of 450° C to 750° C. Id. ,r,r 23-24. The Examiner acknowledges Newson does not disclose "a porous metal fabric liner ... configured to capture and contain said flame and hot gases generated by said at least one flame producing burner and direct them out of said open lower end of said flame containment structure," as recited in independent claim 1, and relies on Ihlenfield for teaching this limitation. Final Act. 4--5. Ihlenfield describes a gas burner used in a furnace. Ihlenfield 1 :4---6. As depicted in Figure 1, the burner includes tube 40; cylindrical metal support member 22 surrounding tube 40 to form annular space 53; and woven metal fabric 35 surrounding cylindrical support member 22. Id. at 1:55-58, 2:4---6, 15-17, 24--27. Combustion occurs on the outer surface of woven metal fabric 35. Id. at 2:27-33. The Examiner then determines it would have been obvious to provide Newson's metal cylinder 1 with a woven metal fabric, such as that taught by Ihlenfield, "in order to allow some combustion to take place along the side of the burner tube, in order to destroy tall plants both along their length and at their roots." Final Act. 5. Appellant persuasively challenges the Examiner's proposed combination. Br. 8-9. As Appellant asserts, a porous metal fabric liner added or substituted for the purpose of allowing 5 Appeal2019-000540 Application 13/897,083 combustion to take place along the side of the burner tube would not have been "configured to capture and contain said flame and hot gases generated by said at least one flame producing burner and direct them out of said open lower end of said flame containment structure," as recited in independent claim 1. Id. at 9. In view of the foregoing, we do not sustain the rejection of independent claim 1 and claims 2, 3, 11, 12, and 18 depending therefrom. The rejections of the remaining claims suffer from the same deficiency as the rejection of independent claim 1. Final Act. 6-10. Accordingly, for the same reason as independent claim 1, we do not sustain the rejections of claims 6-8 and 13-1 7. DECISION The Examiner's decision to reject claim 16 under 35 U.S.C. § 112(b) is reversed. The Examiner's decision to reject claims 1-3, 6-8, and 11-18 under 35 U.S.C. § 103 is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation