Ex Parte Vancak

Patent Trial and Appeal Board

Sep 10, 2014

11248215 (P.T.A.B. Sep. 10, 2014)

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.
11/248,215 10/13/2005 John Vancak 2547 US 1008
38392 7590 09/10/2014
GEORGE A. SEABY
SEABY & ASSOCIATES
250 CITY CENTRE AVNUE
OTTAWA, ON K1R6K7
CANADA
EXAMINER
BLUM, GEORGE R
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
09/10/2014 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 JOHN VANCAK
____________________

Appeal 2012-003002
Application 11/248,2151
Technology Center 3700
____________________

Before HUBERT C. LORIN, BART A. GERSTENBLITH, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

1 Appellant is identified as the real party in interest. Br. 1.
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Application 11/248,215

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–3.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
According to the Specification, Appellant invented a radiant heater
assembly, which may be used outside such as on a patio (Spec. 1, ll. 7–8; 3,
ll. 3–5). Claims 1 and 2 are independent claims. We reproduce below
claim 1, as illustrative of the claims on appeal.
1. A variable input, radiant tube heater
comprising a housing; a burner in said housing; a
reflector connected to a first end of said housing; a
burner tube in said housing; a gas inlet line for
introducing fuel into said burner; a blower attached
to a second end of said housing for blowing air
into said housing; a 24 volt motor in said blower
for operating the blower; a gas pressure regulator
in said gas inlet line for regulating the flow of fuel
to the burner; and a transformer remote from said
heater for supplying 24 volt power to said blower
motor.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Rozzi (US 5,429,112, iss. July 4, 1995) and Kibourian (US 5,168,860, iss.
Dec. 8, 1992);

2 Our decision will refer to Appellant’s Specification (“Spec.,” filed
October 13, 2005) and Appeal Brief (“Br.,” filed April 21, 2011), as well as
the Examiner’s Answer (“Ans.,” mailed September 13, 2011).

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claim 2 is rejected under 35 U.S.C. § 102(b) as anticipated by
Kawamoto (US 4,870,947, iss. Oct. 3, 1989); and
claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Kawamoto and Berkhof (US 4,406,400, iss. Sept. 27, 1983).

ANALYSIS
Independent claim 1
Independent claim 1 requires, among other limitations, “a 24 volt
motor in said blower for operating the blower.” Br., Clms. App’x.
Appellant argues that:
As admitted by the Examiner, Rozzi does not
disclose the blower motor structure or the power
supply claimed in claim 1 of this application.
While it is agreed that the Rozzi blower would be
operated by a motor, there is nothing in Rozzi or
Kibourian to suggest the use of a 24-volt motor in
the Rozzi blower for operating the blower, as
claimed in claim 1.
. . .
The Kibourian patent does not relate to a radiant
tube heater and . . . there would be no reason to
combine the teaching of Kibourian with those of
Rozzi.
Id. at 11. As stated by the Examiner, however:
In this case, appellant acknowledges that the
“operation of household appliances using a 120
volt AC supply and suitable transformer and/or
rectifier unit is not new” (see appeal brief filed
4/21/11[,] page 12[,] lines 1–2). The Kibourian
reference is relied upon for this teaching and for
providing a motivation for using the stepped down
system – the explanation that using a low voltage
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fan allows the household appliance to be used
outdoors without regulatory approval (col. 3[,]
lines 50-56).
. . .
Appellant argues the prior art does not show a
voltage of 24 volts. However, this is considered an
obvious optimization of the prior art teaching to
use a transformer to step down the voltage to a
lower value for safety reasons. The selection of a
particular low voltage does not result in
unexpected benefits, and would operate in the
same manner as the prior art. Appellant has not
provided evidence as to unexpected results or
benefits from supplying the fan with 24 volts, and
there is no evidence the apparatus would operate
differently from the prior art.
Ans. 12, 13. Thus, contrary to Appellant’s argument, the Examiner does not
rely on Kibourian to teach a 24 volt motor, but instead relies on Kibourian to
teach that it would be obvious to operate Rozzi’s heater with a low voltage
motor, and the Examiner then states that the claimed low voltage of 24 volts
would have been obvious. We agree with the Examiner, and thus do not
find Appellant’s argument persuasive.
The Supreme Court has stated that in considering obviousness “the
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The Court
emphasized “the need for caution in granting a patent based on the
combination of elements found in the prior art,” and has affirmed that “[t]he
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combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 415–16.
In this case, using a low voltage motor as described by Kibourian in
the heater of Rozzi would have provided the predictable results noted by
Appellant (see Br. 11 (citing Spec. 3, ll. 6–11)) and by the Examiner (see
Ans. 12 (citing Kibourian, col. 3, ll. 54–56)). Further, Appellant does not
establish that any unexpected results would result from using a 24 volt
motor, which Appellant acknowledges was known. Thus, it appears that the
above advantages recognized by Kibourian would result from using a lower
voltage motor, such as a 24 volt motor. For these reasons, Appellant’s
argument is not persuasive.
Appellant also argues:
Claim 1 also contains the limitation that the
transformer is remote from the heater for
supplying 24 volt power to the motor. Kibourian
contains no indication where the transformer and
rectifier unit would be located. It is reasonable to
assume that the transformer and rectifier unit
would be mounted beneath the fan 61 in the
bottom of the column 51; otherwise assembly of
the barbeque would be unnecessarily complicated.
Thus, Kibourian does not teach or even suggest a
transformer remote from a heater as claimed in
claim 1.
Br. 12. Contrary to Appellant’s assertion, however, the Examiner does not
rely on Kibourian to teach the “transformer remote from said heater”
limitation. Rather, the Examiner states:
[T]his limitation is suggested by the Rozzi
teaching of having the power supply (57) inside a
modular unit (40) that is mounted adjacent to the
heater casing (see Figure 1). When modifying the
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Rozzi apparatus to include a transformer, the
transformer would obviously be mounted in a
location prior to the radiant tube heater, in order to
step down the voltage before it is supplied to the
heater.
Ans. 13–14. Appellant does not address these findings by the Examiner.
Thus, Appellant’s argument that Kibourian does not teach the “transformer
remote from said heater” limitation is inapposite as it does not respond to the
basis for the Examiner’s rejection. We therefore sustain the rejection of
claim 1.
Independent claim 2 and dependent claim 3
Independent claim 2 requires, among other limitations, “a reflector
connected to a first end of said housing.” Br., Clms. App’x. Appellant
argues that, “Kawamoto does not disclose a heater including a reflector
connected to a first end of a housing. Element (1) of Kawamoto is in fact a
burner tube similar to the burner tube (4) of the present invention.” Id. at 7.
In response, the Examiner states the following:
As discussed above, Kawamoto shows an inner
burner tube (6 is the combustion chamber of tube
16) inside a housing (23). Figure 2 shows attached
to one end of the housing (23) a reflector (1). The
reflector (1) receives the combustion gases from
the burner tube exhaust (see Figure 1), and is
capable of functioning as a reflector due to its U-
shaped curved structure and position proximate the
exhaust flames (see Figure 1). The [E]xaminer
notes that at least a portion of the heat produced
would necessarily be reflected back toward the
burner by the curved structure.
Ans. 8. Appellant has not identified anything structural to distinguish the
claimed reflector from Kawamoto’s element 1. The claimed reflector
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appears named as such because it functions to reflect heat. Given that
Appellant has not identified a structural difference nor rebutted the
Examiner’s finding that Kawamoto’s element 1 performs the function of
reflecting heat, the Examiner’s finding is supported by a preponderance of
the evidence. Thus, Appellant’s argument is not persuasive.
Independent claim 2 further requires “a blower attached to a second
end of said housing for blowing air into said housing.” Br., Clms. App’x.
Appellant argues, “Kawamoto does not disclose a blower attached to a
second end of a housing for blowing air into the housing. The blower (force
draft fan 11) of Kawamoto is remote from the housing of Kawamoto.” Id. at
8. In response, the Examiner states, “Appellant also argues that the blower
(11) of Kawamoto is not ‘attached’ to an end of the housing. However,
Figure 1 shows a duct attaching or connecting the blower to the housing
(23).” Ans. 9. Appellant has not identified any requirement in the
Specification or claim for a direct connection. Thus, the Examiner’s finding
that Kawamoto discloses this element of the claims based on an indirect
connection, i.e., the use of an intervening duct to connect the blower to the
housing, is supported by a preponderance of the evidence. Therefore,
Appellant’s argument is not persuasive.
Independent claim 2 further requires “an electrical control connected
to said valve operator for controlling operating of said valve operator.” Br.,
Clms. App’x. Appellant argues, “[w]hile Kawamoto teaches the use of
valves (13A and 13B) for controlling the flow of fuel into firing chambers,
no mention is made in Kawamoto of an electrical control connected to the
solenoid valves (13A and 13B) controlling operation of a valve operator, as
claimed in claim 2 of this application.” Id. at 8. In reply, the Examiner
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finds, however, “that in order to function, electric control must exist in order
to energize and de-energize the solenoid of the valve.” Ans. 9. Appellant
does not rebut, or even disagree with, the Examiner’s finding regarding the
existence of an electric control. Therefore, Appellant’s argument is not
persuasive.
For the reasons discussed above, we do not find Appellant’s
arguments that Kawamoto does not teach all of the limitations of claim 2 to
be persuasive. Thus, even assuming we agree with Appellant’s
characterization that “Kawamoto . . . relates to a radiant tube burner . . . used
to generate high heat in a furnace . . . [while] the radiant heater assembly of
the present invention is used to heat outdoor areas such as patios” (Br. 7),
Appellant does not point to anything, for example in the Specification or
claims, which precludes Kawamoto from reading on the claimed “variable
input, radiant tube heater” of claim 2. Therefore, we do not find this
argument persuasive.
Based on the foregoing, we sustain the Examiner’s rejection of
independent claim 2.
Claim 3 depends from independent claim 2, and thus requires all the
limitations of the independent claim. For the reasons discussed above, we
do not find Appellant’s arguments that Kawamoto does not teach the
limitations of claim 2 to be persuasive. See Br. 9.
Appellant further argues with respect to claim 3:
There is nothing in Kawamoto resembling the
elements of the valve operator of claim 3 including
the casing in a gas inlet line, a partition in the
casing dividing the casing into a pair of chambers
or a spring in a second of the chambers connected
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to a valve for regulating fuel pressure required to
open the valve.
Br. 9. This argument is not persuasive, however, because the Examiner
relies on Berkhof, rather than Kawamoto, to teach these limitations. See
Ans. 7.
Appellant also argues that Berkhof does not teach the limitations of
claim 3 (see Br. 9–10), and states, “[w]hile Berkhof discloses some elements
which are similar to applicant’s valve operator, the elements in question are
not arranged in the same manner as claimed in claim 3 of this application
. . . .” Id. at 10. In response, however, the Examiner points out,
Berkhof Figure 3 shows a pressure regulating
valve (6) including a partition (7) and a spring (9).
Berkhof teaches that the spring construction is
advantageous because it allows for the amount of
pressure to be adjusted by changing the spring
(col. 1, lines 40-44). It would have been obvious
to one of ordinary skill in the art at the time the
invention was made to modify the Kawamoto
apparatus in order to use a valve or pressure
regulator taught by Berkhof that allows for easy
adjustment (col. 1, lines 40–44).
In response to appellant’s argument that the prior
art does not show a valve “for receiving fuel from
a source and discharging fuel to said burner” and a
spring “for regulating fuel pressure[,]” a recitation
of the intended use of the claimed invention must
result in a structural difference between the
claimed invention and the prior art in order to
patentably distinguish the claimed invention from
the prior art. If the prior art structure is capable of
performing the intended use, then it meets the
claim. In this case, Kawamoto shows the valves
(13a, 13b) controlling flow of fuel to a burner
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(Figure 1), and Berkhof shows the spring
controlling the pressure of fluid flowing through
the valve (Figure 1).
Ans. 10–11.
The Supreme Court has stated that in considering obviousness “the
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
KSR, 550 U.S. at 418. The Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” and has affirmed that “[t]he combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results.” Id. at 415–16.
In this case, the Examiner includes well-known components that
function in a known manner, including a partition and a spring, from
Berkhof’s valve in Kawamoto’s valve. See Ans. 10–11. The combination
would yield the predictable result of allowing Kawamoto to control the flow
of fluid through the valve. Thus, the subject matter of claim 3 is obvious,
and Appellant’s arguments to the contrary are unpersuasive.

DECISION
The Examiner’s rejection of claims 1–3 under 35 U.S.C. §§ 102(b)
and 103(a) are AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
Appeal 2012-003002
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AFFIRMED

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