Ex Parte Samdan et alDownload PDFPatent Trial and Appeal BoardFeb 16, 201711722613 (P.T.A.B. Feb. 16, 2017) Copy Citation 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. 11/722,613 04/22/2009 Alphan Samdan 101670-0417279 1631 20350 7590 02/21/2017 KILPATRICK TOWNSEND & STOCKTON LLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 EXAMINER FEBLES, ANTONIO R ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 02/21/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipefiling@kilpatricktownsend.com jlhice@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALPHAN SAMDAN, GORKEM SUNER, AHMET DINCER, and ALTAN ALYANAK Appeal 2015-005527 Application 11/722,6131 Technology Center 3700 Before MICHAEL C. ASTORINO, BRADLEY B. BAYAT, and ALYSSA A. FINAMORE, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—12. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE Claimed Subject Matter Claims 1 and 12 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1 According to the Appellants, “Arcelik Anonim Sirketi a Turkish Joint Stock Company is a real party in interest.” Appeal Br. 4. Appeal 2015-005527 Application 11/722,613 1. A cooling device comprising one or more cooling cabinets where items to be cooled are stored, a door serving to close the cooling cabinet and allowing the user to access the items stored inside the cooling cabinet, a discharge pipe one end of which extends into the cooling cabinet and another end outside the cooling cabinet, and characterized by a valve, having a first flap valve opening into the discharge pipe, allowing the inflow of ambient air into the cabinet and a second flap valve on which the first flap valve is mounted, moving in the opposite direction of the opening direction of the first flap valve, providing the discharge of fluid in the cabinet out of the cabinet, opening and/or closing the discharge pipe, allowing the flow of the ambient air into the cooling cabinet thereby balancing the cabinet interior pressure and providing the discharge of fluid collected in the cabinet outside of the cabinet. Petitionable Matter The Appellants argue that “[t]he objections [of claims 1—12] . . . were never raised until the final office action and, therefore, should not be final.” Appeal Br. 13. However, this matter is re viewable by petition under 37 C.F.R. § 1.181 (see Manual of Patent Examining Procedure (MPEP) §§ 1002, 1002.02(c), and 1201) and is not within the jurisdiction of the Board. See also In re Mindick, 371 F.2d 892, 894 (CCPA 1967). See also Ans. 2. Rejections Claims 1—12 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bellini (US 7,107,780 B2, iss. Sept. 19, 2006) and Moore (US 1,040,730, iss. Oct. 8, 1912). Claims 11/9 and 11/10 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bellini, Moore, and Johnson (US 2,700,790, iss. Feb. 1, 1955). 2 Appeal 2015-005527 Application 11/722,613 ANALYSIS In reviewing the Examiner’s Answer and the Appellants’ Appeal and Reply Briefs it is apparent the Examiner and the Appellants are in dispute as to the meaning of the claimed term “flap valve” and whether Moore’s disk 5 corresponds to the claimed “flap valve.” See Ans. 3—5; Appeal Br. 18—21; Reply Br. 2^4. For the reasons discussed below, we agree with the Appellants’ definition of “flap valve” and determine that Moore’s disk 5 does not correspond to the claimed “flap valve.” At the outset, we note that the Specification lacks a definition of the term “flap valve,” but that the Appellants provide a dictionary definition of the term. Appeal Br. 19. In this case, the Appellants’ use of a dictionary is appropriate to determine the ordinary and customary meaning of the claim term as viewed by a person of ordinary skill in the art. See Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). The Appellants define “flap valve” as “a valve which opens and shuts upon one hinged side.” Appeal Br. 19 (citing Flap Valve Definition, The Free Dictionary.com Unabridged, http://www.theffeedictionary.com/_/dict.aspx?word=Flap+ valve); see Flap Valve Definition, The Free Dictionary.com Unabridged, http://www.thefreedictionary.com/flap+valve (last visited Feb. 9, 2017) (“(Mech.) a valve which opens and shuts upon one hinged side; a clack valve.”). The Appellants’ definition is consistent with the Specification and is understood as the broadest reasonable interpretation of the claim term in light of the Specification. In response, the Examiner provides a plain meaning of term “flap valve” as a “regulation of] flow by swaying (or back and forth movement).” Ans. 4. The Examiner supports the plain meaning of the term by providing 3 Appeal 2015-005527 Application 11/722,613 examples in the Appellants’ Specification (i.e., Figures 5 and 6) and stating that the proffered “plain meaning ... is not inconsistent with the [Specification.” Ans. 4. The Examiner, however, does not support the plain meaning of the term with a reference (e.g., a dictionary). And, although the proffered plain meaning appears to correctly appreciate a characteristic of the claimed “flap valve,” it appears to lack a complete definition. As such, we disagree with the Examiner’s proffered plain meaning of the term “flap valve” as the broadest reasonable interpretation of the claim term in light of the Specification. See also Reply Br. 2-4. Turning to the rejection of independent claims 1 and 12, the Examiner relies on Moore to teach the claimed first and second flap valves. See Final Act. 3^4. The Examiner appears to find that either a segment or all of disk 5 corresponds to at least one of the claimed first or second flap valves. See id. at 3—4, 6 (annotating Moore Fig. 1); Ans. 4—7 (annotating Moore Figs. 1—2). The Appellants contend that Moore’s disk 5 is not a “flap valve” because disk 5 does not open on one hinged side, i.e., it is not attached at one edge. See Appeal Br. 19, 20-21; Reply Br. 4. We agree with the Appellants’ contention. Moore discloses that “disk [5] is slightly deflected, as at 6, at a point to one side of the center of the disk.” Moore 1,11. 39-41; see id. at Fig. 2. The term “slightly deflected” refers to “disk [5] . . . extending] in part beneath and in part above ring 3.” Id. at 1,11. 36—37. Notably, disk 5 deflects at the axis of hinge 8. See id. at 1,11. 47—50. As such, disk 5 turns about hinge 8, which is located at a point to one side of the center of the disk. See id. at Fig. 2. And, Moore’s disk 5 being hinged at a point to the center of the disk does not correspond to being hinged upon a side of disk 5. 4 Appeal 2015-005527 Application 11/722,613 Therefore, Moore’s disk 5 does not correspond to the claimed “flap valve” and, as such, the Examiner’s finding to the contrary is not reasonably supported. Further, the Examiner’s reliance on Bellini’s disclosure and the additional reasoning associated with the rejection of claims 1 and 12 (see Final Act. 3—5) does not cure the deficiency in the Examiner’s finding. For the reasons provided above we do not sustain the Examiner’s rejection of independent claims 1 and 12 as unpatentable over Bellini and Moore. For the same reasons we do not sustain the Examiner’s rejection of dependent claims 2—11 as unpatentable over Bellini and Moore. The remaining rejection based on Bellini and Moore in combination with Johnson suffers from the same deficiency discussed above. See Final Act. 9—10. Thus, we do not sustain the rejection of claims 11/9 and 11/10 as unpatentable over Bellini, Moore, and Johnson. DECISION We REVERSE the Examiner’s decision rejecting claims 1—12. REVERSED 5 Copy with citationCopy as parenthetical citation