Ex Parte TUMBER et al

Patent Trials and Appeals Board

Jun 28, 2019

13439437 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/439,437 04/04/2012
43446 7590
CASTELLANO PLLC
P.O. Box 1555
Great Falls, VA 22066
07/01/2019
FIRST NAMED INVENTOR
James William Howard TUMBER
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.
1402.001.0004 6208
EXAMINER
TEITELBAUM, DAVID J
ART UNIT PAPER NUMBER
3763
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 JAMES WILLIAM HOW ARD TUMBER
and AL TON WILLIAMS
Appeal2018-008243
Application 13/439,437
Technology Center 3700
Before ANNETTE R. REIMERS, JEREMY M. PLENZLER, and
FREDERICK C. LANEY, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James William Howard Tumber and Alton Williams ("Appellants")
appeal under 35 U.S.C. § 134(a) from the Examiner's decision to reject
under 35 U.S.C. § 103(a) claims 1, 3, 4, 6, 8, 9, 11, 12, 15-20, and 23 as
unpatentable over Combs (US 4,576,017, issued Mar. 18, 1986) and
Newman (US 6,295,830 Bl, published Oct. 2, 2001) and claims 2, 10, 21,
and 22 as unpatentable over Combs, Newman, and Yaddgo (US 6,381,981
Bl, issued May 7, 2002). Claims 5, 7, 13, 14, and 24 have been withdrawn
from consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2018-008243
Application 13/439,437
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to shipping containers (SC) for
shipping temperature sensitive goods, and SC systems that include
components to be positioned within a SC in various configurations for
superior payload temperature management." Spec ,r 2, Fig. 3. Claims 1, 9,
17, and 20 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A system comprising:
a payload container having at least a first face, and a
second face on an opposite side of the payload container from
said first face, said payload container being configured in size
and shape such that said payload container may be positioned
within and spaced from inside sidewalls of an insulated shipping
container, such that air is free to flow between outside sidewalls
of the payload container and the inside sidewalls of the insulated
shipping container;
a first horizontal spacing element in direct contact with the
first face of the payload container and between and directly
contacting and separating the payload container and at least one
first heat transfer element such that said payload container and
said first heat transfer element do not directly contact one
another, said first horizontal spacing element being configured
above the payload container to space the first face of the payload
container from the at least one first heat transfer element, such
that air flows freely between the first surface of the payload
container and all surfaces of the first heat transfer element and a
convection current is created across exposed surfaces of the at
least one first heat transfer element; and
a second horizontal spacing element positioned adjacent to
the second face of the payload container, on an opposite side of
the payload container from the first horizontal spacing element.
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Appeal2018-008243
Application 13/439,437
ANALYSIS
Obviousness over Combs and Newman
Claims 1, 3, 4, 6, 8, 9, 11, 12, 15-20, and 23
Independent claim 1 is directed to a system having a payload
container, heat transfer element, and horizontal spacing element configured
above the payload container to space the container from the heat transfer
element such that air flows freely between a first surface of the payload
container and all surfaces of the heat transfer element. Appeal Br. 31
(Claims App.). 1 The Examiner finds that Combs discloses the system of
claim 1 substantially as claimed except Combs fails to disclose the "first
horizontal spacing element being configured above the payload container to
space the first face of the payload container from the first heat transfer
element such that air flows freely between the first surface of the payload
container and all the surfaces of the first heat transfer element." Final Act.
2-3. 2
The Examiner finds that:
Newman teaches an insulated shipping container (i.e. 10 of
Newman) including a first horizontal spacing element (i.e. 18 of
Newman) ... such that air flows freely (i.e. via 22 of Newman)
between the first surface of a payload container (i.e. tope surface
of 23 of Newman) and all the surfaces of the first heat transfer
element (i.e. 17 ofNewman).
Id. at 3--4. The Examiner further clarifies his position on how Newman
meets the limitation by stating: "to clarify, as the dry ice, 17, sublimates the
gaseous dry ice/air mixture will flow freely around the exposed surfaces
1 Appeal Brief ("Appeal Br.") Claims Appendix ("Claims App."), filed Mar.
14, 2018.
2 Final Office Action ("Final Act."), dated July 14, 2017.
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Appeal2018-008243
Application 13/439,437
(below, via 22, above, and the sides of 17) of the dry ice until the dry ice is
depleted." Final Act. 4 (citing Newman 4:66-67) (emphasis omitted); see
also Ans. 18-19. 3
Appellants point out that "[t]he first horizontal spacing element 115 in
[Figure 3 of the subject application] allows air to contact and flow freely
across all surfaces of the at least one first heat transfer element 110."
Appeal Br. 10; see also id. at 8; Spec. ,r,r 72 ("According to non-limiting
example embodiments significantly all surface area of at least one HTE may
be exposed to air.") ( emphasis added), 73 ("HTEs [heat transfer elements]
110 arranged and configured with spacers therebetween 115 such that
significantly all surfaces of all HTEs may be in fluid communication with
air within the [ shipping container] SC.") ( emphasis added), 151, Fig. 3.
In contrast, Appellants contend that the cassette of Newman "does not
allow air to flow freely between the first surface of the payload container
and all surfaces of the heat transfer element," as required by claim 1.
Appeal Br. 21-24. In particular, Appellants contend that the "cassette" of
Newman "sits on the top edge of the cooler base, thereby stopping the flow
of air across the side and top surfaces of the heat transfer element of
Newman." Appeal Br. 22 (emphasis omitted).
According to Appellants, "[a]lthough the bottom of the cassette may
have some holes, the configuration of element 18, and the solid lid above the
cassette does not allow air to flow freely between the first surface of the
payload container and all surfaces of the [ at least one] heat transfer
element," as required by claim 1. Id. at 22-23. Appellants further contend
that Newman discloses "insulating panels that cover the top surface of the
3 Examiner's Answer ("Ans."), dated June 5, 2018.
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Appeal2018-008243
Application 13/439,437
[heat transfer element] HTE, which block the transfer of heat across the top
surface of the HTE." Reply Br. 5. 4
Newman discloses that:
FIG. 3 describes one embodiment of a CO2-insert. In this
embodiment, insert 16 is designed to fit snuggly within tote 10
by resting on ledge 15. The insert comprises four sidewalls
joined to one another and perforated floor 18 and cover 19. Insert
16 is designed to hold dry ice 17[5J (shown in FIG. 4), preferably
in snow or pellet form, and the sidewalls, floor and cover of the
insert are typically constructed of durable plastic, e.g.,
polypropylene. The cover of insert 16 comprises insulation liner
20 (typically polystyrene foam board).
Newman 4:37--46, Fig. 3. Newman also discloses that "FIG. 4 describes tote
[10] in a closed configuration with insert 16 resting on ledge 15, and
containing two standard size grocery sacks 23 (both shown in phantom
outline)." Id. at 4:47--49, Fig. 4. Newman further discloses that:
If the contents of the grocery bags are frozen food stuffs, then
insert 16 is positioned such that perforated floor 18 is opposite
the interior of tote 10 (as shown in FIG. 4). Perforations 22 allow
gaseous CO2 that sublimates from CO2 pellets 17 to circulate
about and to maintain these foods stuffs in a frozen state.
Id. at 4:62-67, Fig. 4.
Upon review of Newman's disclosure and Figures 3 and 4 of
Newman, perforations 22 of perforated floor 18 appear to allow air to flow
freely between the top surface of payload container 23 and the bottom
surface of heat transfer element 17. However, it is not clear from Newman's
4 Reply Brief ("Reply Br."), filed Aug. 6, 2018.
5 Figure 4 of Newman does not include reference number 17. Rather,
reference number 7 is used to represent dry ice in Figure 4 of Newman. See
Newman 4:41--42, 65----67, Fig. 4.
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Appeal2018-008243
Application 13/439,437
disclosure and/or Figures 3 and 4 of Newman, nor has the Examiner
provided sufficient evidence or technical reasoning to establish, that
perforations 22 of perforated floor 18 would necessarily allow air to flow
freely between the top surface of payload container 23 and all surfaces of
heat transfer element 1 7. In fact, insulating panels 20 of insert 16 of
Newman appear to block air from flowing freely between the top surface of
payload container 23 and at least the top surface of heat transfer element 17.
See Newman Fig. 4; see also Reply Br. 5. Thus, we agree with Appellants
that the Examiner fails to establish that Newman describes or illustrate that
air necessarily "flow[s] freely across all surfaces of [the] first heat transfer
element." Appeal Br. 23 ( emphasis added). As such, the Examiner fails to
establish by a preponderance of the evidence that the combined teachings of
Combs and Newman disclose the payload container system of claim 1.
Independent claims 9, 17, and 20 are directed to a system, kit, and
method of packing an insulated shipping container, respectively, and, similar
to claim 1, each of claims 9, 17, and 20 includes language directed to air
flowing freely between the payload container and all surfaces of the heat
transfer element. See Appeal Br. 32, 34, and 35 (Claims App.). The
Examiner relies on the same unsupported findings in Newman for claims 9,
17, and 20 as those discussed above for claim 1. See Final Act. 5-13. As
such, the Examiner's findings with respect to Combs and Newman are
deficient for claims 9, 17, and 20 as well.
Accordingly, for the foregoing reasons, we do not sustain the
Examiner's rejection of claims 1, 3, 4, 6, 8, 9, 11, 12, 15-20, and 23 as
obvious over Combs and Newman.
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Appeal2018-008243
Application 13/439,437
Obviousness over Combs, Newman, and Yaddgo
Claims 2, 10, 21, and 22
Claims 2, 10, 21, and 22 depend from claims 1, 9, and 20,
respectively. See Appeal Br. 31, 33, 35, and 36 (Claims App.). The
Examiner relies on the same unsupported findings in Newman as those
discussed above for claims 1, 9, and 20. See Final Act. 14--16. The
Examiner does not rely on the teachings of Y addgo to remedy the
deficiencies of Newman. Thus, for reasons similar to those discussed above
for claims 1, 9, and 20, we do not sustain the Examiner's rejection of claims
2, 10, 21, and 22 as obvious over Combs, Newman, and Yaddgo.
DECISION
We REVERSE the decision of the Examiner to reject claims 1, 3, 4, 6,
8, 9, 11, 12, 15-20, and 23 as unpatentable over Combs and Newman.
We REVERSE the decision of the Examiner to reject claims 2, 10, 21,
and 22 as unpatentable over Combs, Newman, and Yaddgo.
REVERSED
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