Ex Parte Schwerer et al

Patent Trial and Appeal Board

Jul 18, 2017

12920651 (P.T.A.B. Jul. 18, 2017)

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.
12/920,651 10/05/2010 Peter Schwerer OST-101084 7149
22876 7590 07/20/2017
FACTOR INTELLECTUAL PROPERTY LAW GROUP, LTD.
1327 W. WASHINGTON BLVD.
SUITE 5G/H
CHICAGO, IL 60607
EXAMINER
SULLENS, TAVIA L
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
07/20/2017 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):
jmerritt@factoriplg.com
ysolis @factoriplg.com
c schroeder @ factoriplg .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER SCHWERER and PETER OBSTFELDER
Appeal 2016-003820
Application 12/920,651
Technology Center 3700
Before JILL D. HILL, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Peter Schwerer and Peter Obstfelder (“Appellants”) appeal under 35
U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—14.1 In the
Answer, the Examiner enters amended grounds of rejection of all claims.
Ans. 2—10. We understand the rejections from the Final Action are
withdrawn in favor of these amended rejections. See Ans. 2 and 11. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants submit the real party in interest is Eisenmann AG. Br. 3 (filed
June 2, 2015).
Appeal 2016-003820
Application 12/920,651
THE CLAIMED SUBJECT MATTER
Appellants’ invention relates to a dryer for a painting facility. Claims
1 and 14 are independent. Claim 1, reproduced below with italics added, is
illustrative of the claimed subject matter.
1. A dryer for a painting facility
a) having a dryer housing, in which heated air is circulated;
b) having an exhaust air line for removing exhaust air from
the dryer housing;
c) having a thermal combustion device, which is
connected to the exhaust air line and which serves for thermal
post-treatment of the exhaust air from the dryer housing and for
providing heating air to a heat exchanger;
d) the heat exchanger being set up to supply the dryer
housing with heated fresh air; and
e) at least one heater for heating the air circulated in the
dryer housing being associated with the dryer housing, wherein
f) a combustion air supply of the at least one heater is
connected in a communicating manner to the dryer housing and
is configured to intervene in a supporting manner with regard to
a preheating and partial thermal treatment of the exhaust air from
the dryer housing such that the thermal combustion device is
capable of being deliberately under-dimensioned in capacity to a
part-load of the capacity of the dryer, only.
REJECTIONS2’3
1) Claims 1—7, 9, and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Watanabe (US 5,868,562, issued Feb. 9, 1999), or in the
2 In the Answer, the Examiner withdrew an objection to claim 13 and
withdrew a rejection of claims 1—14 under 35 U.S.C. § 112, second
paragraph, as being indefinite. Ans. 11.
3 Appellants filed an Amendment After Final Action on Dec. 31, 2014 that
was entered by the Examiner in the Advisory Action mailed January 26,
2015. Ans. 2 and 11. The Appeal is taken from the Final Action mailed
Nov. 3, 2014 as modified by the January 26, 2015 Advisory Action. See
Ans. 2; see also Br. 9. See also 37 C.F.R. § 41.39(a)(1).
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Appeal 2016-003820
Application 12/920,651
alternative, over Watanabe and Pastschenko (DE 197 35 322 Al, published
Feb. 18, 1999).4
2) Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Watanabe and Devillard (US 4,164,819, issued Aug. 21, 1979), or, in
the alternative, over Watanabe, Pastschenko, and Devillard.
3) Claims 11—13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Watanabe and Pastschenko.
4) Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Watanabe, or in the alternative, over Watanabe and Pastschenko.
DISCUSSION
Rejection 1
Obviousness based on Watanabe
The resolution of this rejection revolves around the limitation in claim
1 of “f) a combustion air supply of the at least one heater is connected in a
communicating manner to the dryer housing.” Appellants assert that “none
of the heating devices 19a, 19b, or 19c in Watanabe comprises a combustion
air supply in communication with the dryer housing (a temperature increase
zone la and first and second heat retaining zones lb and lc).” Br. 15.
The Examiner states that Watanabe discloses a combustion air supply
of the heater in communication with the dryer housing and that:
To the extent that Appellant may have meant that the combustion
air supply of the at least one heater should be connected in a
communicating manner from the dryer (which relationship
Examiner notes is not recited in the currently presented claims 1
and 14), Examiner notes that this arrangement of combustion air
4 The Examiner and Appellants’ use of “Patschenko” is a typographical
error. See Ans. 2; see also Br. 12.
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Appeal 2016-003820
Application 12/920,651
supply from the dryer is discussed in the rejection with respect to
claim 4.
Ans. 14.
We agree with Appellants that Watanabe does not have a combustion
air supply of a heater connected in a communicating manner to the dryer
housing. Appellants’ Specification discloses that “combustion air line
34 . . . leads into a schematically illustrated burner 36 of the heating unit
16,” and “the exhaust air from the dryer housing 12 flowing in through the
combustion air line 34” is burnt (combusted) with natural gas in burner 36.
Spec. 13,11. 11—18. The term “a combustion air supply of the at least one
heater,” read in light of the Specification, is, thus, a supply of air to the
heater that is used in the combustion process in the heater. In support of the
rejection of claim 1, the Examiner states, “see lines #20, OA', and RA'
directing a supply of combustion air that has passed through the combustion
heater portions #19a, #19b, and #19c of heaters #Ha, #Hb, #Hc into dryer
#1.” Ans. 3. However, none of lines #20, OA', and RA'are a combustion
air supply to a heater, as we have construed this term, and as understood by
one of ordinary skill in the paint dryer art. Each of these lines flow gases
into dryer housing 1 from the exits of heaters Ha, Hb, and He, where the
gases have been combusted. See Watanabe, Fig. 1. The Examiner does not
direct us to any disclosure in Watanabe of a supply of combustion air to any
of the heaters Ha, Hb, or He that is connected in a communicating manner
with dryer housing 1.
The Examiner’s discussion of combustion air in the rejection of claim
4 fails to remedy the deficiency discussed above. For claim 4, the Examiner
finds that Watanabe’s air supply line has “a combustion air flow (see
exhaust stream #PA leading to burner #b of combustion heater portion #19a
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Appeal 2016-003820
Application 12/920,651
of heater #Ha) and a second exhaust air partial flow serving as a useful air
flow (see exhaust air stream #PA" directly useful to form stream #RA' in
heater #Ha).” Ans. 5—6; see also Watanabe Fig. 1. We reproduce Figure 1
of Watanabe below.
FI G. 1
Figure 1 of Watanabe is view of a paint drying furnace.
Watanabe describes flow PA as a return gas flow from “radiator
panels 7, in which radiating surfaces 7a are heated by passing a heat source
hot gas through inner gas passages ip to radiate heat from the radiating
surfaces 7a to the painted objects 2 [in dryer 7].” Watanabe, col. 5,11. 12—
15. Although flow PA comes from Watanabe’s dryer housing, flow PA is
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Application 12/920,651
not connected in a communicating manner to the dryer housing.5 Whereas
hot gas supply openings 4 of Watanabe open into dryer 1 to supply gas RA'
to the dryer (see Watanabe, col. 5,11. 2—9), flow PA is contained in closed
passages ip and in circulating gas passage 20 to provide radiant heat and,
thus, does not open into dryer housing 1. We do not discern, nor does the
Examiner point to any portion of Watanabe that discloses that flow PA
opens into dryer 1.
Although flow RA' is supplied to the dryer 1 through gas supply
openings 4, the Examiner does not explain adequately how flow RA' is a
combustion air supply of the heater. As seen in Figure 1 of Watanabe,
reproduced above, flow PA upon leaving radiator panel 7 is split into
combustor supply air PA and into flow PA" prior to heating device 19a.
That is, flow PA" is not a supply to heating device 19a, but is added to flow
RA downstream of heating device 19a to form flow RA'. See Watanabe,
col. 5,11. 49—57; Fig. 1. Thus, although flow PA" is useful in forming flow
RA' (see Ans. 6), the Examiner does not explain adequately how either flow
PA" or flow RA' is a combustion air supply to the heater. Therefore, the
Examiner has not adequately established that any of flow PA, flow PA", or
flow RA' is a combustion air supply to the heater connected in a
communicating manner to the dryer. For these reasons, we do not sustain
the rejection under 35 U.S.C. § 103(a) of claims 1—7, 9, and 10 as
unpatentable over Watanabe.
5 A plain and ordinary meaning of the term “communicate” is “to open into
each other.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2005).
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Appeal 2016-003820
Application 12/920,651
Obviousness Based on Watanabe and Pastschenko
The Examiner’s alternative rejection of claims 1—7, 9, and 10 as
unpatentable over Watanabe and Pastschenko is deficient for the same
reasons stated above, because the Examiner’s use of Pastschenko does not
remedy the deficiencies of Watanabe discussed above. See Ans. 4—5. Thus,
we do not sustain the alternative rejection of claims 1—7, 9, and 10.
Rejection 2
The Examiner rejects claim 8 as unpatentable over Watanabe and
Devillard, or, in the alternative, Watanabe, Pastschenko, and Devillard. Ans.
6—7. Claim 8 depends from claim 1. Br. 20 (Claims App.). The Examiner
does not cite to Devillard to cure the factual deficiencies of Watanabe stated
above in the rejection of claim 1. Ans. 6—7. Therefore, we do not sustain
the rejection of claim 8 for the same reasons stated above for claim 1.
Rejection 3
The Examiner rejects claims 11—13 as unpatentable over Watanabe
and Pastschenko. Ans. 7—8. Claims 11 and 13 depends from claim 1 and
claim 12 depends ultimately from claim 1. Br. 21 (Claims App.). The
Examiner does not direct us to any additional disclosure in Watanabe or
Pastschenko in the rejection of claims 11—13 that would cure the defects in
the rejection of claim 1. Ans. 8. We, thus, do not sustain the rejection of
claims 11—13 for the same reasons stated for claim 1.
Rejection 4
Claim 14 contains the same limitation as claim 1 that “a combustion
air supply of the at least one heater is connected in a communicating manner
to the dryer housing.” Br. 22 (Claims App.). The Examiner rejects claim 14
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Appeal 2016-003820
Application 12/920,651
based on Watanabe, or in the alternative, based on Watanabe and
Pastschenko and uses the same findings and reasoning with respect to
Watanabe, as for claim 1. Ans. 9. The Examiner does not rely on
Pastschenko to cure the deficiencies in Watanabe discussed above for claim
1. Appellants make the same arguments for claim 1 in support of claim 14.
Br. 14—16. We, therefore, do not sustain the rejection of claim 14 for the
same reasons stated above for claim 1.
DECISION
The Examiner’s decision rejecting claims 1—14 is reversed.
REVERSED
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