Ex Parte Vistakula

Patent Trial and Appeal Board

Jan 11, 2017

12527757 (P.T.A.B. Jan. 11, 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.
12/527,757 08/19/2009 Kranthi K. Vistakula DHA-002 7944
51414 7590 01/13/2017
GOODWIN PROOTFR T T P
EXAMINER
PATENT ADMINISTRATOR JENKINS, PHILLIP S
100 Northern Avenue
BOSTON, MA 02210 ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
01/13/2017 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):
PATENTBOS @GOODWINPROCTER.COM
PSOUSA-ATWOOD@GOODWINPROCTER.COM
GLENN.WILLIAMS@GOODWINPROCTER.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KRANTHI K. VISTAKULA
Appeal 2015-002826
Application 12/527,757
Technology Center 3700
Before WILLIAM A. CAPP, GEORGE R. HOSKINS, and
SEAN P. O’HANLON, Administrative Patent Judges.
O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kranthi K. Vistakula (Appellant)1 appeals under 35 U.S.C. § 134 from
the Examiner’s January 21, 2014 final decision (“Final Act.”) rejecting
claims 1, 2, 4, 6—8, 12, 17, and 19-24.2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Dhama Innovations
PVT. Ltd. Br. 2.
2 Claims 3, 5, 9—11, 13—16, 18, and 25—32 are canceled. Br. 11—14 (Claims
App.).
Appeal 2015-002826
Application 12/527,757
SUMMARY OF INVENTION
Appellant’s claimed invention is directed to “a system and process for
heating or cooling the body that can be incorporated into a variety of apparel
items.” Spec. 2:32—33. Claim 1, reproduced below from page 11 (Claims
Appendix) of the Appeal Brief, is illustrative of the claimed subject matter:
1. A system for heating or cooling a body of a user, the
system adapted to be incorporated into an apparel item and
comprising:
a thermoelectric unit having a cooling surface and a
heating surface, the cooling surface being thermally insulated
from the heating surface;
a heat sink thermally coupled to the thermoelectric unit;
and
a wicking material disposed on the heat sink and
configured to receive a liquid and evaporate the liquid to a
surrounding atmosphere, the wicking material selected from the
group consisting of cotton, a wicking fiber, a candle wick, a
super absorbent, and a sponge.
REJECTIONS
Claims 1, 4, 6—8, 12, 17, 19, 21, 23, and 24 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Arnold (US 2008/0141681 Al,
published June 19, 2008).
Claims 2, 20, and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Arnold and Gerard (US 3,498,077, issued Mar. 3, 1970).
ANALYSIS
Obviousness Based on Arnold
Appellant argues for patentability of claims 1, 4, 6—8, 12, 17, 19, 21,
23, and 24 together as a group. Br. 6—9. We select independent claim 1 as
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Application 12/527,757
representative of this group, and claims 4, 6—8, 12, 17, 19, 21, 23, and 24
stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Arnold discloses a system substantially as
claimed in independent claim 1, including a thermoelectric unit having a
cooling surface and a heating surface, and a heat sink. Final Act. 2—3 (citing
Arnold Title, Abstract, || 49, 90, 93, 111, Figs. 1 A, 15, 17). The Examiner
finds that “Arnold fails to explicitly disclose a wicking fiber disposed on the
heat sink (103) and configured to receive a liquid and evaporate the liquid to
a surrounding atmosphere,” but finds that because Arnold discloses an
embodiment “where a cooling system is integrated into under garments and
exercise suits,” “the cooling system of Arnold is likely water resistant and at
least capable of receiving liquid.” Id. at 3 (citing Arnold 137). The
Examiner further finds that “[i]t is generally known” that athletes “use
cotton or a wicking fiber material as their top layer (i.e. a cotton shirt, tank,
etc.) in order to wick sweat [caused by exercise] away from the body and
thence evaporate to the atmosphere” and that “athletes often spray
themselves (i.e. their bodies) with cold water when exercising in very warm
climates in order to cool their bodies.” Id. The Examiner expounds that
“Big Fogg is a vendor which has supplied mist/spraying machines to
sidelines of NFL football games for the past 12 years” and that “the
spray/mist machines cool athletes down by spraying/misting water on the
dressed bodies of said athletes.” Ans. 6. The Examiner determines that
claim 1 is obvious because the claim “requires only for a user to wear
[Arnold’s] cooling system as a base layer in his/her midsection (i.e.
abdomen) while wearing a cotton t-shirt and while spraying himself/herself
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Application 12/527,757
with water from a water bottle when high levels of heat are experienced
during exercise,” and “a cotton t-shirt and water are routine and relatively
inexpensive and readily available, and will assist in dissipating heat away
from the user’s body.” Final Act. 4.
Appellant traverses, arguing first that “the Examiner’s apparent
reliance on official notice without documentary evidence ... is
impermissible.” Br. 7 (citing MPEP § 2144.03). We are not persuaded by
this argument. In the Examiner’s Answer, the Examiner relies on
misting/spraying machines used during professional football games, citing a
particular vendor as providing such machines “for the past 12 years,” and
asserting that use of such machines has been televised. Ans. 6. Continuing,
the Examiner finds that such use includes “spraying/misting water on the
dressed bodies of. . . athletes.” Id. We agree with the Examiner that “the
situation where an athlete’s wicking shirt/apparel is sprayed with water in
order to help cool the athlete is old and well known” {id. at 7), and Appellant
has failed to persuasively convince us otherwise. We note that Appellant did
not contest the findings and reasoning set forth in the Examiner’s Answer.
Appellant next argues that “a person is not a thermoelectric unit or the
equivalent, and a cotton t-shirt on a person is not a wicking material on a
heat sink or the equivalent, as required by” claim 1. Br. 7. Thus, Appellant
continues, the rejection “fails to disclose a wicking material disposed on a
heat sink of a thermoelectric unit.” Id. We find these arguments
unpersuasive because they do not address the rejection as set forth by the
Examiner. The Examiner relies on Arnold as disclosing the recited
thermoelectric unit (thermoelectric cooler module 104) and heat sink (heat
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Application 12/527,757
sink block or strip 103). Final Act. 2—3 (citing Arnold Figs. 1A, 17). The
Examiner further relies on Arnold as disclosing that its device can be
integrated into undergarments. Id. at 3 (citing Arnold 137). The Examiner
finds that it is well known for athletes to wear cotton shirts as a top layer.
Id.', see also Ans. 6—8. Based on these findings, the Examiner determines
that it would have been obvious to a skilled artisan to wear Arnold’s device
as an undergarment and a cotton shirt as an outer layer, in which case the
cotton shirt would be a wicking material disposed on Arnold’s heat sink.
Final Act. 3^4. Appellant’s arguments do not address the Examiner’s
findings or reasoning, and, therefore, fail to apprise us of error.
Appellant next asserts that “Arnold’s goal is to achieve cooling ‘with
no . . . sprays’ or ‘moving parts’ (e.g., fans),” and argues that “Arnold
therefore provides no motivation for and instead teaches away from the
Examiner’s proposed combination.” Br. 8 (citing Arnold | 89). We are not
persuaded by these arguments. Initially, we note that the Examiner did not
rely on Arnold as the source of motivation to include the use of a cotton shirt
as an outer layer over an undergarment incorporating Arnold’s device. See
Final Act. 3^4. Moreover, while Arnold does disclose that “an active
cooling technology with no fans, sprays or crystals may be achieved”
(Arnold 1 89 (emphasis added)) and that the need for fans and sprays may be
“eliminate[d] or m/wce/<7/” {id. 132 (emphasis added)), Appellant does not
direct us to, nor does our review reveal, any teaching in Arnold prohibiting
the inclusion of fans or sprays into its device. Notably, the Examiner relies
on the embodiment disclosed in Figure 17, which includes fan 1730. A
“teaching away” requires a reference to actually criticize, discredit, or
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Application 12/527,757
otherwise discourage the claimed solution. See In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004). This, Arnold does not do.
Finally, Appellant argues that the “Examiner ignores relevant
structural limitations in the claims (e.g., a wicking material disposed on a
heat sink)” and relies on “hindsight reconstruction.” Br. 8. We are not
persuaded by these arguments. As explained above, the Examiner finds that
the well-known use of a cotton shirt as an outer layer over an undergarment
incorporating Arnold’s personal heat-control device satisfies the claim 1
requirement of a wicking material disposed on the heat sink of a
thermoelectric unit. Thus, the Examiner has not ignored this recitation of
claim 1. To the extent that Appellant argues the Examiner improperly used
hindsight, the argument is unpersuasive where the Examiner states a
rationale for the modification that we determine is supported adequately by
sufficient facts. See In re Cree, 818 F.3d 694, 702, n.3 (Fed. Cir. 2016). For
the reasons explained above, such is the case here.
Accordingly, for the foregoing reasons, we sustain the Examiner’s
rejection of claims 1, 4, 6—8, 12, 17, 19, 21, 23, and 24 as being unpatentable
over Arnold.
Obviousness Based on Arnold and Gerard
With respect to the rejection of claims 2, 20, and 22, Appellant relies
only on the arguments presented above in regards to the rejection of claim 1.
Br. 9. Accordingly, for the same reasons as discussed above, we also sustain
the rejection of claims 2, 20, and 22 as being unpatentable over Arnold and
Gerard.
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DECISION
The Examiner’s decision to reject claims 1, 2, 4, 6—8, 12, 17, and 19—
24 is 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)(l)(iv).
AFFIRMED
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