Ex Parte Van Wyk et al

Patent Trial and Appeal Board

Nov 15, 2017

12883436 (P.T.A.B. Nov. 15, 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.
HSI14001USU 4863
EXAMINER
HERZFELD, NATHANIEL
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
12/883,436 09/16/2010
78298 7590
Jay M. Brown
JAY BROWN LAW FIRM
P.O. Box 1407
Cary, NC 27512
11/15/2017
Dennis Allen Van Wyk
11/15/2017 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 DENNIS ALLEN VAN WYK,
RUSSEL DUANE VAN WYK, and LESLIE JUDSON JONES
Appeal 2017-001498
Application 12/883,436
Technology Center 3700
Before: STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—8, 11, 12, 14, and 16—27.1 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Claims 9, 10, 13, and 15 are canceled. Appeal Br. 14 and 17 (Claims
App.)(filed Apr. 7, 2016).
Appeal 2017-001498
Application 12/883,436
CLAIMED SUBJECT MATTER
The claims are directed to a fluid heater. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A fluid heater, comprising:
a. an enclosed combustion chamber, being configured
for causing a controlled amount of air inflow into the enclosed
combustion chamber:
b. a fuel burner operatively coupled to the enclosed
combustion chamber;
c. a heat transfer section having
i. a first end coupled to the enclosed
combustion chamber,
ii. a second end,
iii. an inside wall,
iv. an outside wall having a closed cavity
therein,
V. a fluid input port coupled to the outside wall
of the heat transfer section and in fluid communication with the
closed cavity, and
vi. a fluid output port coupled to the outside wall
of the heat transfer section and in fluid communication with the
closed cavity;
e. a plurality of tubes, each one of the plurality of tubes
having an outside wall, an open first end, an opposite open
second end, and an open chamber extending between the open
first and second ends of the tube, wherein the plurality of the
tubes are mounted within the heat transfer section so that the
outside walls of the plurality of tubes and the inside wall of the
heat transfer section together define the closed cavity, and
wherein the open chambers of the tubes are in fluid
communication with the enclosed combustion chamber; and
f. a negative pressure source being coupled to the
second end of the heat transfer section and being in fluid
communication with each one of the plurality of the open
chambers of the tubes, and the negative pressure source being
configured for causing a controlled amount of air outflow from
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Application 12/883,436
the enclosed combustion chamber through the tubes of the heat
transfer section;
wherein the fluid heater is configured for maintaining a
selected amount of air in the enclosed combustion chamber, by
the enclosed combustion chamber being configured for causing
the controlled amount of the air inflow, together with the
negative pressure source being configured for causing the
controlled amount of the air outflow through the tubes of the heat
transfer section.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Olsen
Jones
Uchida
US 3,793,994 Feb. 26, 1974
US 6,032,616 Mar. 7,2000
US 2002/0162320 A1 Nov. 7, 2002
US 2008/0011245 A1 Jan. 17, 2008Donnelly
REJECTIONS
(I) Claims 1—8, 11, 12, 14, and 16—27 are rejected under 35 U.S.C.
§112, first paragraph, as failing to comply with the written description
requirement. Final Act. 3.
(II) Claims 1—4, 7, 8, 11, 12, 14, 18—20, and 23—27 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Jones, Olsen, and Uchida.
Final Act. 4.
(III) Claims 5, 6, 16, 17, 21, and 22 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Jones, Olsen, Uchida, and Donnelly. Final
Act. 16.
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Appeal 2017-001498
Application 12/883,436
OPINION
Rejection (I); 35 U.S.C. § 112, 1st — Written Description
The Examiner finds that “the limitations ‘maintaining a selected
amount of air in the combustion chamber’ and together with the negative
pressure source being configured for causing the controlled amount of air
outflow through the tubes of the heat transfer section’ are not found in the
original disclosure.” Final Act. 3—A. According to the Examiner, the
Specification only discloses “control[ling] an amount of excess air being
input to the combustion chamber,” and the Examiner examines the claims on
this basis. Final Act. 4.
Appellants assert that paragraphs 34 and 35 of the Specification
disclose controlling the amount of air inflow and that paragraphs 44, 54, and
59 disclose controlling the amount of air outflow, and that the inflow and
outflow are controlled together to maintain a selected amount of air in the
combustion chamber. Appeal Br. 7.
The Examiner responds that that the Specification does not support
“controlling an amount of airflow out of the enclosed combustion chamber
... in conjunction with the controlled amount of air inflow into the
combustion chamber.” Ans. 17. According to the Examiner, “causing a
controlled amount of air to be taken out is not the same as controlling the
amount of air to be taken out.” Id. The Examiner states that the
Specification does not support a vacuum source “configured to remove
different amounts of air out of the enclosed combustion chamber,” and only
supports “one fixed amount.” Id. at 18.
In reply, Appellants assert that the fluid heater maintains a selected
amount of air in the enclosed combustion chamber (ECC), by controlling the
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Application 12/883,436
excess air into the ECC. Reply Br. 3. Appellants contend that the negative
pressure source causes a controlled amount of air outflow from the ECC
because the vacuum source is turned on when a “predetermined RATE” of
airflow out of the ECC is detected. Reply Br. 3^4. According to
Appellants, because an airflow rate is an amount of airflow over a period of
time, the fluid heater will remove air from the ECC over varying periods of
time to attain the predetermined “RATE.” Reply Br. 4.
Appellants’ Specification states that, “before vacuum switch 76 opens
to allow current to pass to vacuum 38, a predetermined rate of air flow must
be detected at elongated cylinder second end 44.” Spec., 144. Although the
Specification does not state that air inflow works in conjunction with air
outflow, this must be the case, because the air inflow is what is causing the
air flow that is detected before air outflow begins. That is, air outflow does
not begin until a sufficient flow is detected and the sufficient flow is caused
by the air inflow. As such, the air inflow and air outflow work together. In
addition, because a rate of airflow out is detected, we agree with Appellants
that Appellants’ heater 10 “will remove air from the ECC over varying
periods of time” by comparing the detected rate to a predetermined rate.
Reply Br. 4. Thus, Appellants’ sensors are detecting different rates of air
outflow until a predetermined rate is exceeded, and this information together
with the air inflow information is provided to microcontroller 32, 132 to
control (maintain) a selected amount of air in the enclosed combustion
chamber. See Spec. Tflf 33—35 and 59; see also Reply Br. 2. Therefore, we
agree with Appellants that the Specification conveys with reasonable clarity
to those skilled in the art that, as of the filing date, Appellants were in
possession of the invention recited in claims 1—8, 11, 12, 14, and 16—27.
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Vas-Cath, 935 F.2d at 1563. Accordingly, we reverse the Examiner’s
rejection of claims 1—8, 11, 12, 14, and 16—27 as failing to comply with the
written description requirement.
Rejection (II); Obviousness based on Jones, Olsen, and Uchida
Claim 1 recites, in part,
wherein the fluid heater is configured for maintaining a selected
amount of air in the enclosed combustion chamber, by the
enclosed combustion chamber being configured for causing the
controlled amount of the air inflow, together with the negative
pressure source being configured for causing the controlled
amount of the air outflow through the tubes of the heat transfer
section.
Independent claims 11 and 20 include a substantially similar
limitation.
The Examiner finds that Jones discloses most of the limitations of the
independent claims, but relies on Olsen to teach an enclosed combustion
chamber, and relies on Uchida to control air inflow using valve 12 and
control air outflow using turbocharger 15 as a negative pressure source.
Final Act. 6—7 (citing Olsen Fig. 1 and Uchida, 43 and 51). The
Examiner concludes that it would have been obvious to modify Jones based
on the teachings of Olsen “in order to allow the fluid to be further heated by
the heat generated by the combustion chamber” and based on Uchida to
control combustion air introduction in order “to match the fuel introduction
to provide a proper stoichiometric combustion and to control the excess air
maintained in the combustion chamber in order to ensure a complete
combustion in the combustion chamber.” Final Act. 7.
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Application 12/883,436
Appellants argue that the inlet to Jones’ combustion chamber A is
exposed to atmosphere, and the Examiner does not describe how Jones open
ended combustion chamber A could be configured as recited. Appeal Br. 9
(citing Jones 2:23—25; Figs. 1 and 3). Appellants assert that, moreover,
Uchida’s turbocharger 15 is not a negative pressure source, because
turbocharger 15 boosts air intake pressure and is a positive pressure source.
Id. According to Appellants, the combined teachings of the references do
not suggest maintaining an amount of air in a combustion chamber by
controlling both the air inflow amount and the air outflow amount. Appeal
Br. 10. Appellants thus conclude that the Examiner “has not articulated
reasoning with some rational underpinning,” to arrive a fluid heater
configured as recited. Appeal Br. 8—9; see also Reply Br. 5.
In response, the Examiner notes that Uchida was relied upon for
maintaining a controlled amount of air in the combustion chamber by
controlling air inflow, and that Appellants do not argue this point. Ans. 20
The Examiner agrees that Uchida fails to disclose a negative pressure source
configured for causing a controlled amount of air outflow, because “a
turbocharger is a positive pressure source for boosting the air intake pressure
and temperature and not the air outflow.” Ans. 20. Nonetheless, the
Examiner finds that “Jones would also teach the negative pressure source
(vacuum pump C) causing a controlled amount of air outflow from the
enclosed combustion [chamber] as it also only has one setting,” similar to
Appellants. Id.
We agree with Appellants that the Examiner’s reasoning for the
proposed modification is not supported by rational underpinnings. As
Appellants note, Jones’ “combustion chamber A is a frusto-conical metal
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Application 12/883,436
housing 10 that has its large diameter end 12 exposed to the atmosphere.”
Jones 2:23—25; see also Appeal Br. 9. In Jones, vacuum C draws “hot
products of combustion created in the combustion chamber through the heat
transfer section B” (see Jones 2:17—20), and the Examiner does not explain
what is causing a controlled amount of air inflow into the chamber in the
modified Jones. Although we appreciate that the Examiner relies on
Uchida’s valve 12 to control airflow in (see Ans. 20), i.e., valve 12
“regulates the airflow” (see Uchida, para. 43), the Examiner does not point
to any element of Uchida that provides air inflow. As a valve only regulates
airflow, the Examiner does not explain adequately what causes air inflow
that works “together with” Jones’ air outflow. Nor does the Examiner
explain how controlling Jones’ air outflow relates to Uchida’s air inflow “to
provide a proper stoichiometric” air-fuel ratio. Final Act. 7. As such, the
Examiner’s modification is a substantial reconstruction without sufficient
reasoning, or adequate explanation of what is being changed. The Examiner
has not adequately established that the proposed modification would have
been obvious to one of ordinary skill in the art. Accordingly, we reverse the
Examiner’s rejection of claims 1—4, 7, 8, 11, 12, 14, 18—20, and 23—27 as
unpatentable over Jones, Olsen, and Uchida.
Rejection (III); Obviousness based on Jones, Olsen, Uchida, and Donnelly
Claims 5, 6, 16, 17, 21, and 22 depend from one of claims 1,11, and
20. The Examiner does not rely on the disclosure of Donnelly in any
manner that would remedy the deficiencies of Jones, Olsen, and Uchida with
respect to claims 1,11, and 20 as set forth above in Rejection (II). Thus, for
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Application 12/883,436
the same reasons, we reverse the rejection of claims 5, 6, 16, 17, 21, and 22
as unpatentable over Jones, Olsen, Uchida, and Donnelly.
DECISION
The Examiner’s rejection of claims 1—8, 11, 12, 14, and 16—27 as
failing to comply with the written description requirement is reversed.
The Examiner’s rejection of claims 1—4, 7, 8, 11, 12, 14, 18—20, and
23—27 as unpatentable over Jones, Olsen, and Uchida is reversed.
The Examiner’s rejection of claims 5, 6, 16, 17, 21, and 22 as
unpatentable over Jones, Olsen, Uchida, and Donnelly is reversed.
REVERSED
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