Ex Parte Sickles et al

Patent Trial and Appeal Board

Nov 13, 2017

13367726 (P.T.A.B. Nov. 13, 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.
13/367,726 02/07/2012 Willard SICKLES 3573B-000151-US 1053
27572 7590 11/15/2017
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
SAMUELS, LAWRENCE H
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
11/15/2017 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):
troymailroom @hdp. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLARD SICKLES, JEFFREY C. OLSON, and
JAMES KILGALLON
Appeal 2015-006317
Application 13/367,726
Technology Center 3700
Before JOHN C. KERINS, WILLIAM A. CAPP, and
BRENT M. DOUGAL, Administrative Patent Judges.
Opinion for the Board filed by DOUGAL, Administrative Patent Judge
Opinion Dissenting filed by CAPP, Administrative Patent Judge
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a non-final rejection of
claims 1—7. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appeal 2015-006317
Application 13/367,726
CLAIMED SUBJECT MATTER
The claims are directed to a method of mitigating stratification of
temperature within the interior of a mobile heated cabinet. Claims 1 and 7
are the independent claims on appeal. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method of mitigating stratification of temperature within
the interior of a mobile heated cabinet used to both (a) store food
at a stationary location and (b) store and transport food when
moved from the stationary location, said method including the
steps of:
providing an electric-powered heating device that heats
the interior of the cabinet;
providing an electric-powered air circulating device that
circulates air in the interior of the cabinet;
providing a connection for receiving, from an external
source, electrical power for the heating device and the air
circulating device, for use when the cabinet is performing the
storing function at a stationary location;
providing a self-contained source of electrical power
associated with the cabinet for powering the air circulating
device when the cabinet is performing the storing and
transporting function;
providing a switching mechanism for automatically
switching between a first mode, in which the air circulating
device draws electrical power from the connection for receiving
electrical power from the external source, to a second mode, in
which the air circulating device draws power from the self-
contained source of electrical power;
(a) when the cabinet is connected to the external power
source in the first mode, powering both the heating device and
air circulating device with the external power source, to thereby
mitigate stratification of temperatures within the cabinet by
mitigating accumulation of heated air at the top of the interior of
the cabinet; and
(b) when the cabinet is disconnected from the external
power source, automatically switching, using the switching
mechanism, from the first mode to the second mode, without
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Application 13/367,726
powering the heating device, to thereby mitigate stratification of
temperatures within the cabinet by mitigating accumulation of
heated air at the top of the interior of the cabinet when
performing the storing and transporting function.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Guth US 3,624,346 Nov. 30, 1971
Gordon US 3,895,215 July 15, 1975
Rodrigues US 6,693,260 B1 Feb. 17, 2004
Faries US 7,276,675 B2 Oct. 2, 2007
Yasugi US 2009/0193826 A1 Aug. 6, 2009
REJECTIONS
Claims 1 and 6 are rejected under 35 U.S.C. § 103(a) as being obvious
over Gordon and Guth.
Claims 2 and 7 are rejected under 35 U.S.C. § 103(a) as being obvious
over Gordon, Guth, and Yasugi.
Claim 3 is rejected under 35 U.S.C. § 103(a) as being obvious over
Gordon, Guth, Yasugi, and Rodrigues.
Claim 4 is rejected under 35 U.S.C. § 103(a) as being obvious over
Gordon, Guth, and Faries.
Claim 5 is rejected under 35 U.S.C. § 103(a) as being obvious over
Gordon, Guth, and Rodrigues.
OPINION
The Examiner finds that the food holding cabinet of Gordon teaches
much of the claimed method of claim 1. Non-Final Act. 2-4. In particular,
the Examiner finds that “Gordon . . . teach[es] the energizing of both the
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heating element and the fan/blowers when the device is connected to the
power cord” and “that the cabinaet (sic) can be used to transport items.” Id.
at 4. The Examiner then finds that Guth’s bowling ball bag “teaches that a
heating chamber can have either external or internal power (to work the fan
or the heating element) and that the fan/blower can be used either together or
separately with the heating element, either when hooked up to an exterior or
interior power source.” Id. The Examiner further determines that Guth
teaches “automatic switching” in order to “maintain the temperature.” Id.
The Examiner determines that
[i]t would have been obvious ... to provide Guth’s teachings of
an internal and external power source, with the teachings of
Gordon, a heating cabinet to maintain heat evenly [thoughout]
the cabinet, in order to move the cabinet, as Gordon teaches, and
still maintain the inner temperature.
Id. (emphasis added). And that:
it also would have been obvious to have both the heater and the
fan work when stationary and plugged in, but only the fans work
when in transit with an internal battery and self-contained fan, in
order to extend the time of maintaining the desired temperature
in the unit by conserving energy (by not also activating the
heating element, which would sap tremendous energy), and keep
the cabinet evenly heated, in accord with the purpose of Gordon.
Id. (emphasis added).
Appellants argue that Guth is non-analogous art and therefore not
properly combinable with Gordon. Appeal Br. 17. Appellants properly
identify the test for analogous art as whether 1) the art is “within the same
field of endeavor” or 2) “reasonably pertinent to the particular problem with
which the Appellants are involved.” Id. (citing In re Klein, 647 F.3d 1343
(Fed. Cir. 2011)).
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Application 13/367,726
Appellants identify Guth’s field of endeavor as “bowling ball bags”
and the invention’s as “mobile heated cabinets used to store and transport
food.” Id. This is not contested by the Examiner. See generally Ans. 12—
13.
Appellants then identify their particular problem as “mitigating
temperature stratification” (Appeal Br. 17—18), and more particularly as,
“preventing stratification of temperatures within a cabinet used to transport
food, when operating with a limited power supply” (Reply Br. 7 (citing
Spec. 1—5).). Appellants argue that “Guth is not directed to mitigating
temperature stratification, but rather to maintaining a temperature of a
bowling bag.” Appeal Br. 18 (citing Guth Abstract, col. 2:26—28).
Appellants further argue that the Examiner admits as much in stating that
“Guth teaches ‘automatic switching’ to maintain the temperature within the
bag.” Id. (citing Non-Final Act. 4).
Appellants explain:
Maintaining an ambient temperature within an enclosed space,
however, is a fundamentally different problem from mitigating
temperature stratification. At the most basic level, to maintain an
internal temperature within an enclosed space, a source of heat
must be provided to offset the loss of heat to the external
environment. . . .
. . . The switching mechanism of Claim 1 is not simply provided
to maintain a temperature.
Id.
Appellants and the Examiner appear to agree that the focus of Guth is
on maintaining a set temperature in the bag. The Examiner relies on this
teaching in rejecting the claim, and it is one of the reasons given for
combining Guth with Gordon. Non-Final Act. 4 (Guth teaches “automatic
switching” in order to “maintain the temperature.”); Ans. 13 (“Guth
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describes the mobility mechanism” that “heating elements and fans can be
switched on an[d] off to maintain temperatures when stationary and plugged
in or when in transit, taking energy from a battery.”). We agree with
Appellants that maintaining a set temperature is not “reasonably pertinent to
the particular problem with which the Appellants are involved,” as in fact
the claimed invention does not perform this function.1 Appeal Br. 17.
Thus, the Examiner’s finding that Guth is analogous art is
unsupported. For this reason, we do not sustain the Examiner’s rejections of
the claims which all rely on Guth.
DECISION
The Examiner’s rejections of claims 1—7 are reversed.
REVERSED
1 We do not agree with the dissent that our conclusion means that “Guth
cannot serve as analogous art unless it is directed to alleviating temperature
stratification.” See infra 8.
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OPINION DISSENTING
CAPP, Administrative Patent Judge
I disagree with my colleagues that the Examiner’s finding of
analogous art with respect to Guth is unsupported. I disagree that, in order
to be analogous to the subject problem, a reference must address heat
stratification.
“Two separate tests define the scope of analogous art: (1) whether the
art is from the same field of endeavor, regardless of the problem addressed,
and (2) if the reference is not within the field of the inventor's endeavor,
whether the reference still is reasonably pertinent to the particular problem
with which the inventor is involved.” In re Bigio, 381 F.3d 1320, 1325
(Fed. Cir. 2004). The “field of endeavor” test asks if the structure and
function of the prior art is such that it would be considered by a person of
ordinary skill in the art because of similarity to the structure and function of
the claimed invention as disclosed in the application.” Id. at 1325-26. “A
reference is reasonably pertinent... if it is one which, because of the matter
with which it deals, logically would have commended itself to an inventor's
attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed.
Cir. 1992). “If a reference disclosure has the same purpose as the claimed
invention, the reference relates to the same problem, and that fact supports
use of that reference in an obviousness rejection.” Id.
In the instant case, the Examiner finds that the problem here is
moving an object from one place to another while maintaining the
temperature of the contents at an elevated level. Ans. 13. I agree with the
Examiner’s position. The Examiner then further explains that: “Gordon
describes the mitigation of stratification of temperature and Guth describes
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the mobility mechanism.” Id. Again, I am fully in agreement with the
Examiner.
I am unable to agree with my colleagues that Guth cannot serve as
analogous art unless it is directed to alleviating temperature stratification.
For me, it is sufficient that Gordon already teaches alleviating temperature
stratification. Gordon, Abstract. In other words, the solution to the
“problem” of alleviating temperature stratification in the food services art is
already well known. Even lay persons that lack ordinary skill are familiar
with the concept that “hot air rises.” The solution to this problem is simple,
easy to understand, and easy to implement. One simply circulates the air
within the enclosed space so that the air within the enclosed space mixes at
the various stratification levels until it becomes of uniform temperature.
This requires, at most, mere elemental understanding of the concepts of
thermal convection and mechanical air circulation.
In my opinion, the real problem to be solved here is not heat
stratification in a food container, because that problem is already solved.
The real problem to be solved is taking a device that requires an energy
source to maintain an elevated temperature and making it mobile so that it
can be operated remotely. Once again, this problem is simple, easy to
understand, and readily overcome. One simply powers the device with a
battery while it is away from a building with an electrical outlet.
Guth heats an object in an enclosed space using battery power when
the object is removed from an external power source and further provides
that the enclosure can be connected to an external power source, when
available. Guth, Abstract. In my opinion, Guth is “reasonably pertinent”
because, to me, it “logically would have commended itself to an inventor's
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attention” in considering the problem of providing alternative sources of
electrical power depending on whether the container was proximate or
remote to an external power supply. Clay, 966 F.2d at 659.
I would affirm the obviousness rejection of claims 1—7 under 35
U.S.C. § 103(a) for the reasons stated in the Examiner’s well-reasoned
opinion.
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