Ex Parte Schrock et alDownload PDFPatent Trial and Appeal BoardMay 22, 201712863122 (P.T.A.B. May. 22, 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. 12/863,122 01/06/2011 Derek W. Schrock 1455-0045US01 3683 137713 7590 05/24/2017 Potomac Law Group, PLLC 5335 Wisconsin Avenue Suite 440 Washington, DC 20015 EXAMINER LAU, JASON ART UNIT PAPER NUMBER 3743 NOTIFICATION DATE DELIVERY MODE 05/24/2017 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): patents @ potomaclaw. com eofficeaction @ appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DEREK W. SCHROCK and ANDREY V. LIVCHAK Appeal 2016-001088 Application 12/863,122 Technology Center 3700 Before JOHN C. KERINS, EDWARD A. BROWN, and LYNNE H. BROWNE, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Derek W. Schrock and Andrey V. Livchak (Appellants)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 29, 39—41, 45—50, and 54—56, which are the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 The real party in interest is identified as OY HALTON GROUP LTD. Appeal Br. 3. Appeal 2016-001088 Application 12/863,122 CLAIMED SUBJECT MATTER Independent claim 29, reproduced below, is representative of the claimed subject matter: 29. An exhaust enhancement apparatus for an exhaust hood, the exhaust hood having a plurality of edges which define a perimeter with a recess therein for capturing contaminated air from a cooking appliance, the exhaust enhancement apparatus comprising: a plenum, with a distribution channel, configured to be attached to and extend entirely along at least a front edge of the exhaust hood edges, the plenum having an inlet and a plurality of apertures extending along a length thereof; and an ambient air supply configured to supply the plenum inlet with a pressurized supply of ambient air, said exhaust enhancement apparatus producing at least one curtain jet by flowing the pressurized air through said distribution channel and out through the plurality of apertures, wherein the ambient air supply includes a fan module, containing a blower and an air inlet grill in a housing thereof, attached to the plenum, the exhaust enhancement apparatus is a self-contained unit constructed for retro-fit attachment as a unit to an exterior surface of the exhaust hood, the plenum being separate from the hood and attached external to the exhaust hood opposite the recess and extending along the front edge of the exhaust hood in a horizontal direction along a longitudinal dimension thereof as well as horizontally away from the recess in a direction perpendicular to said longitudinal dimension, the at least one curtain jet emanates from the plurality of apertures at a location spaced from the exhaust hood front edge, wherein the ambient air supply has a low profile and lies against an outer surface of the exhaust hood with the air inlet grill on an outwardly facing side thereof. Appeal Br. 17—18 (Claims App.). 2 Appeal 2016-001088 Application 12/863,122 EVIDENCE The Examiner relies upon the following evidence: Russell Imai Hulick US 4,467,782 Aug. 28, 1984 US 4,856,419 Aug. 15, 1989 US 5,831,822 Nov. 3, 1998 US 2006/0032492 A1 Feb. 16, 2006 US 2006/0254430 A1 Nov. 16, 2006 EP 1637810 A1 Mar. 22, 2006 Bagwell Nevarez Song REJECTIONS2 I. Claims 29, 39-41, 45^47, and 56 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bagwell, Song, and Hulick. II. Claims 48—50 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bagwell, Song, Hulick, and Imai. III. Claims 54 and 55 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bagwell, Song, Hulick, Nevarez, and Russell. 2 The Examiner indicates that “[t]he ground(s) of rejection set forth in the Office action dated 5/19/2014 from which the appeal is taken have been modified by the Advisory Action dated 9/4/2014.” Ans. 2. Although page 1 of the Advisory Action does not indicate whether the proposed amendments submitted after the final rejection on May 19, 2014, will or will not be entered, page 2 discusses amended claim 29 (incorrectly identified as claim 1) including the limitations of claim 51 added to claim 29 in the Second Amendment After Final dated August 19, 2014. See Advisory Act. 1—2. Thus, it appears that the proposed amendments were entered. This is consistent with the Examiner’s discussion at page 2 of the Advisory Action and indication of the modified rejections. This is also consistent with Appellants’ listing of the claims in the Claims Appendix. See also the Notice of Panel Decision from Pre-Appeal Review dated Oct. 2, 2014, indicating that claims 29, 39-41, 45—50, and 54—56 are rejected. 3 Appeal 2016-001088 Application 12/863,122 ANALYSIS Rejection I—Claims 29, 39—41, 45—47, and 56 As to claim 29, the Examiner finds that Bagwell discloses that its “exhaust enhancement apparatus is a self-contained unit constructed for retrofit attachment as a unit to the exhaust hood (‘. . . plenum 2310 would be installed in a wall-type hood . . . plenum 210 of Fig. 7B may be mounted in a backshelf hood. . [. Ans. 3 (citing Bagwell 1179). The Examiner explains that Figure 62A shows that the plenum 2310 has “a distinct outline thereby showing a separate structure.” Id. The Examiner finds that Bagwell fails to disclose a fan module . . . where the ambient air supply has an air inlet attached to the distribution channel and positioned on the exhaust hood facing outwardly when the distribution channel is attached to the exhaust hood . . . the distribution channel being positioned external to the exhaust hood recess and extending from the front edge of the exhaust hood in a horizontal direction such that the at least one curtain jet emanates from the plurality of apertures at a location spaced from the exhaust hood front edge .... Id. The Examiner finds that Song teaches a fan module containing a blower (710) attached to a distribution chamber and configured to supply the distribution channel inlet (800) with a pressurized supply of ambient air, wherein the ambient air supply has an air inlet (700) attached to the distribution channel and positioned on the exhaust hood facing outwardly when the distribution channel is attached to the exhaust hood. Id. (citing Song, Fig. 9). The Examiner provides an annotated Figure 4 of Song (see id. at 5), which the Examiner finds to disclose that the ambient air supply is a low profile fan (710) located within the plenum (230) and placed on the 4 Appeal 2016-001088 Application 12/863,122 outer surface of the exhaust hood, and wherein the air inlet of the fan is on an outwardly facing side of the outer surface of the exhaust hood. Id. at 4. The Examiner concludes that it would have been obvious to modify Bagwell to include a fan module attached to the distribution chamber and configured to supply the distribution channel inlet with a pressurized supply of ambient air, wherein the ambient air supply has an air inlet attached to the distribution channel and positioned on the exhaust hood facing outwardly when the distribution channel is attached to the exhaust hood, as taught by Song, to provide a motive force to create an air curtain for a more effective exhaust capture. Id. at 3^4. Claim 29 recites, inter alia, that “the exhaust enhancement apparatus is a self-contained unit constructed for retro-fit attachment as a unit to an exterior surface of the exhaust hood'1'’ (emphasis added). Appellants contend that claim 29 requires that the exhaust enhancement apparatus is self-contained and includes its own ambient air supply that supplies pressurized air to generate air jets without requiring modification of the pre existing exhaust hood. This is a discemable feature and therefore concretely limits the claimed structure. For example, a fan unit and plenum that share components with the hood itself for air flow would not be self-contained. For another example, fans built-into a hood would not be self-contained. Appeal Br. 9. Appellants argue that the applied prior art fails to suggest these limitations, which combine to facilitate the retrofit function. Id. at 10; see also id. at 10—11. The Examiner responds, with reference to Bagwell’s Figures 60, 62A, and 62B, and paragraph 179, that: a person of ordinary skill in the art would understand that Bagwell’s plenum is a separate unit from the hood and is 5 Appeal 2016-001088 Application 12/863,122 constructed for retro-fit; Bagwell states that its plenum would be installed on a generic wall-type/backshelf hood; the definition of retrofit is to install something on a pre-existing structure; and, therefore, “there is ample showing in Bagwell that the plenum is a separate part from the hood and is capable for retrofit onto preexisting hoods.” Ans. 9. Appellants respond that: [t]he Examiner erroneously asserts, at page 3, line 5, of the Examiner’s Answer, that Bagwell discloses “the exhaust enhancement apparatus is a self-contained unit constructed for retrofit attachment as a unit to the exhaust hood” based on paragraph 179 of Bagwell which states that “. . . plenum 2310 would be installed in a wall-type hood . . . plenum 210 of Fig. 7B may be mounted in a backshelf hood . .”. However, Claim 29 recites, inter alia, that the exhaust enhancement apparatus is a self-contained unit constructed for retrofit attachment as a unit to an external surface of the exhaust hood. The Examiner appears to ignore the recitation of “to an external surface” in the rejection of Claim 29. In stark contrast to the claimed arrangement, the cited portion of Bagwell discloses that the plenum would be installed in a hood. Bagwell thus fails to disclose Appellants’ particular arrangement in which the exhaust enhancement apparatus is a self-contained unit constructed for retro-fit attachment as a unit to an exterior surface of the exhaust hood, as recited in Claim 29. Reply Br. 2. Appellants’ contention that Bagwell does not disclose an exhaust enhancement apparatus constructed for retrofit attachment to an exterior surface of an exhaust hood is persuasive. Bagwell describes that “FIGS. 62 A and 62B illustrate the position of the plenum 2310 of FIG. 7A as would be installed in a wall-type (backshelf) hood 2370.” Bagwell 1179 (emphasis added); see also id. at Figs. 62A and 62B. Even assuming Bagwell’s plenum corresponds to “the plenum being separate from the 6 Appeal 2016-001088 Application 12/863,122 hood” recited in claim 29, Bagwell’s plenum is “installed in” the hood. Bagwell 1179 (emphasis added). Song discloses air spray means 700 and air direction guiding member 800 positioned within the interior of the apparatus. See Song generally, Figs. 4, 9. Even assuming Song’s spray means 700 corresponds to “an ambient air supply,” and guiding member 800 corresponds to “the plenum,” as claimed, both of these elements are located within the interior of the apparatus and do not appear to be separate and “attached external to the exhaust hood,” as required in claim 29. Accordingly, it is not apparent why, or how, one of ordinary skill in the art would attach Song’s air spray means 700 and air direction guiding member 800 to Bagwell’s plenum installed in the hood, so that they are all “constructed for retro-fit attachment as a unit to an exterior surface of the exhaust hood.” The Examiner also finds that “Song does not disclose an air inlet grill, and where the inlet grill is located on an outwardly facing side of the outer surface of the exhaust hood.” Ans. 4. The Examiner provides an annotated Figure 6 of Hulick (see id. at 6), which the Examiner finds “teaches a low profile exhaust fan . . . that lies against the surface of a wall . . . with an inlet grill... on an outwardly facing side of the outer surface” {id. at 5). The Examiner concludes that it would have been obvious to modify Bagwell to include a fan that lies against an outer surface with an air inlet grill on an outwardly facing side thereof, as taught by Hulick, and attach it to the outer surface of the exhaust hood. Id. Appellants reply that “the inner wall of Song relied upon by the Examiner cannot be equated with the claimed outer surface of the exhaust hood.” Reply Br. 4. 7 Appeal 2016-001088 Application 12/863,122 We agree with Appellants. The Examiner does not establish that Song discloses a fan on the outer surface of the exhaust hood. In contrast, Figures 4 and 9 show clearly that the blower fan is placed in the interior of the apparatus. See Song, Figs. 4, 9. The Examiner’s application of Hulick does not cure this deficiency. Thus, we do not sustain the rejection of claim 29 and dependent claims 39-41, 45—47, and 56 as unpatentable over Bagwell, Song, and Hulick. Rejection II—Claims 48—50 Claims 48—50 depend directly or indirectly from claim 29. The Examiner finds that the combination of Bagwell, Song and Hulick fails to disclose that flow of air “is adjusted based on the exhaust flow rate of the exhaust hood,” as recited in claims 48—50. Ans. 7. The Examiner concludes, however, that it would have been obvious to modify Bagwell in view of Imai to meet this limitation. Id. The Examiner’s application of Imai does not cure the deficiencies of the rejection of claim 29. Accordingly, we do not sustain the rejection of claims 48—50 as unpatentable over Bagwell, Song, Hulick, and Imai. Rejection III—Claims 54 and 55 Claims 54 and 55 depend directly or indirectly from claim 29. The Examiner finds that the combination of Bagwell, Song and Hulick fails to disclose that: the exhaust hood partially covers an appliance in a top-down view, the appliance having a movable platen, in said top-down view, the front edge of the exhaust hood is positioned between a forward edge of the platen and a rear edge of the platen when the platen is closed, and the at least one curtain jet is projected at an angle away from the exhaust hood recess such that the at 8 Appeal 2016-001088 Application 12/863,122 least one curtain jet clears a passes immediately adjacent to and clearing the forward edge of the platen when the platen is open. Id. at 7. However, the Examiner determines that it would have been obvious to modify Bagwell “where an exhaust hood partially covers an appliance in a top-down view, as taught by Russell, to provide a compact exhaust hood that allows a user to more readily access the sides and back of the grill for added convenience of cooking and cleaning” {id. at 8), and “where the appliance includes a movable platen, as taught by Nevarez, to provide a dual surface grill for faster cooking times” (id.). The Examiner’s application of Russell and Nevarez does not cure the deficiencies of the rejection of claim 29. Accordingly, we do not sustain the rejection of claims 54 and 55 as unpatentable over Bagwell, Song, Hulick, Russell, and Nevarez. DECISION We reverse the rejections of claims 29, 39-41, 45— 50, and 54—56. REVERSED 9 Copy with citationCopy as parenthetical citation