Ex Parte von Herrmann et al

Patent Trial and Appeal Board

Oct 24, 2014

11833967 (P.T.A.B. Oct. 24, 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.
11/833,967 08/03/2007 Pieter J. von Herrmann 00135/00001US 8832
41939 7590 10/27/2014
JEANNE E. LONGMUIR
2836 CORYDON ROAD
CLEVELAND HEIGHTS, OH 44118
EXAMINER
PEREIRO, JORGE ANDRES
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
10/27/2014 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 PIETER J. VON HERRMANN and DAVID FREDERICK
____________

Appeal 2012-009514
Application 11/833,967
Technology Center 3700
____________

Before JOHN C. KERINS, LISA M. GUIJT and MICHAEL L. WOODS,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pieter J. von Herrmann and David Frederick (Appellants) seek our
review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1,
2, and 4–19. Claim 3 is canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.

THE INVENTION
Appellants’ invention is directed to a radiant gas burner unit.
Independent claim 1 is illustrative:
Appeal 2012-009514
Application 11/833,967

2
1. An improved radiant gas burner unit comprising:

a base having a first and second long walls and two
shorter walls, with the long walls having a longer dimension
than the shorter walls, and the base supporting a substantially
flat radiant gas burner plate having openings therethrough, the
radiant gas burner plate forming an external surface of the base
supporting high temperature radiant gas combustion;

at least two mixing tubes, each having a central axis
aligned with the shorter walls, the mixing tubes partially
supported within the base spaced from one another, and having
two open ends, with the first open end positioned within the
base and the second open end extending through corresponding
openings formed through the first long wall of the base, said
openings having a diameter of approximately one inch or less,
such that the overall unit height is approximately 2 inches or
less;

gas supply outlets extending transversely with respect to
the first long wall and positioned along a gas supply at locations
aligned with and spaced from the second open ends of the
mixing tubes to receive a desired gas supplied by the gas supply
which is mixed with air at a predetermined desired ratio as the
air/gas mixture enters the mixing tubes and is substantially
evenly supplied to and through the openings of the radiant gas
burner plate to provide high temperature combustion along the
external surface of the base.

THE REJECTIONS
The Examiner has rejected:
(i) claims 1, 4, 5, 7–11, 15, and 19 under 35 U.S.C. § 103(a) as being
unpatentable over Kee (US 5,090,899, issued Feb. 25, 1992) in view of
Forniti (US 3,130,482, issued Apr. 28, 1964);
Appeal 2012-009514
Application 11/833,967

3
(ii) claims 2, 12–14, and 16–18 under 35 U.S.C. § 103(a) as being
unpatentable over Kee in view of Forniti and Cooper (US 4,608,012, issued
Aug. 26, 1986); and
(iii) claim 6 under 35 U.S.C. §103(a) as being unpatentable over Kee
in view of Forniti and Abalos (US 5,240,411, issued Aug. 31, 1993).
The Final Rejection dated October 13, 2010, includes an objection to
the Specification, directed to the alleged presence in paragraph 21 of an
embedded hyperlink and/or other form of browser-executable code. Final
Rej. 2. Appellants present arguments in the Appeal Brief traversing this
objection. Appeal Br. 7–8. The Examiner’s Answer does not repeat the
objection, but also does not identify that the objection has been withdrawn.

ANALYSIS
As a preliminary matter, we note that the Final Office Action dated
October 13, 2010, includes an objection to the Specification, directed to the
alleged presence in paragraph 21 of an embedded hyperlink and/or other
form of browser-executable code. Final Action 2. Appellants present
arguments in the Appeal Brief traversing this objection. Appeal Br. 7–8.
The Examiner’s Answer does not repeat the objection, but also does not
identify that the objection has been withdrawn. As such, it is unclear as to
whether the objection is maintained.
Regardless, it is not within our jurisdiction to determine the propriety
of the objection. It is not an appealable matter, but rather is a petitionable
matter. See In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (citing In re
Hengehold, 440 F.2d 1395, 1403–04 (CCPA 1971) (stating that there are
many kinds of decisions made by examiners that are not appealable to the
Appeal 2012-009514
Application 11/833,967

4
Board when they are not directly connected with the merits of issues
involving rejections of claims, and holding that “the kind of adverse
decisions of the patent examiner which are reviewable by the board of
appeals must be those which relate, at least indirectly, to matters involving
the rejection of claims”).

Claims 1, 4, 5, 7–11, 15, and 19--Obviousness--Kee/Forniti
The Examiner finds that Kee does not disclose a radiant gas burner
unit having a base having first and second long walls and two shorter walls,
with the two mixing tubes having central axes aligned with the shorter walls
and gas supply outlets extending transversely with respect to a first long
wall. Ans. 7. The Examiner takes the position that Forniti discloses a radiant
gas burner unit having a base with first and second long walls and two
shorter walls, with the mixing tubes and gas supply outlets oriented relative
to the longer and shorter walls in the same manner as claimed. Id. at 7–8.
From this, the Examiner concludes that it would have been obvious to
modify the burner unit of Kee to provide the longer and shorter walls, and
orient the mixing tubes and gas supply outlets in the claimed manner, in
order to provide a larger surface area for enhanced heating capacity. Id. at 8.
The Examiner provides an annotated version of Figure 1 of Forniti,
illustrating what is found to constitute the long and short walls of a base of a
radiant gas burner. Ans. 8. In that annotated view, the Examiner indicates
with lead lines and legends that the long and short walls are walls of what
Forniti terms a “supporting frame 12” into which “a series of horizontally
mounted gas burners 10 are arranged.” Id.; Forniti, col. 2, ll. 41–43.
Appeal 2012-009514
Application 11/833,967

5
Appellants maintain that the Examiner’s characterization of the
complete assembly of Forniti as a radiant gas burner is not accurate, pointing
to the passages from Forniti quoted above. Appeal Br. 9. Appellants
provide their own annotated version of Figure 1 of Forniti, identifying the
long and short walls of the individual radiant gas burner units mounted to the
supporting frame 12. Id. Appellants point out that those individual burner
units have their mixing tubes aligned with the longer walls, and the gas
supply outlets extending transversely with respect to a short wall, in the
same manner as the prior art burners illustrated in Figures 1 and 3 of the
instant application, and not as claimed. Id. at 9–10.
We do not believe that persons of ordinary skill in the art would
regard the entire assembly shown in Figure 1 of Forniti as a radiant gas
burner unit, as advocated by the Examiner. Although the Examiner asserts
that supporting frame 12 of Forniti meets the claim limitations calling for a
base having two long walls and two short walls, that “base” does not have a
substantially flat radiant gas burner plate forming an external surface
thereof. Rather, as evidenced by the Examiner’s own citation to Figures 2
and 3 of Forniti, which illustrate one of the plurality of burner units 10, as
teaching the use of a flat radiant gas burner plate, persons of ordinary skill in
the art would regard those individual burner units as the relevant structures
to be considered in assessing whether features thereof might or might not
have been obvious to combine with the teachings of Kee.
As noted by Appellants, those individual burner units do not have the
claimed orientations of their mixing tubes and gas supply outlets relative to
long and short walls of their bases. Beyond that, the Examiner has not
explained how or why persons of ordinary skill in the art would apply
Appeal 2012-009514
Application 11/833,967

6
teachings directed to the orientation of mixing tubes within burner units and
gas supply outlets relative to a supporting frame which appears to be nothing
more than a surrounding structural support, in considering modifications to
the Kee gas burner unit.
Accordingly, we do not sustain the rejection of claim 1 as being
unpatentable over Kee and Forniti. All of claims 4, 5, 7–11, 15, and 19
require the same limitations, and the rejection of those claims as being
unpatentable over Kee and Forniti is also not sustained.

Claims 2, 12–14, and 16–18 --Obviousness--Kee/Forniti/Cooper
Claims 2, 12–14, and 16–18 require the same limitations as are set
forth in claim 1 and discussed above. The Examiner does not rely on
Cooper to remedy the above-noted deficiencies in the combination of the
Kee and Forniti disclosures. The rejection of claims 2, 12–14, and 16–18 is
thus not sustained for the reasons identified above.

Claim 6--Obviousness--Kee/Forniti/Abalos
Claim 6 requires the same limitations as are set forth in claim 1 and
discussed above. The Examiner does not rely on Abalos to remedy the
above-noted deficiencies in the combination of the Kee and Forniti
disclosures. The rejection of claim 6 is thus not sustained for the reasons
identified above.

DECISION
The rejection of claims 1, 4, 5, 7–11, 15, and 19 as being unpatentable
over Kee in view of Forniti is reversed.
Appeal 2012-009514
Application 11/833,967

7
The rejection of claims 2, 12–14, and 16–18 as being unpatentable
over Kee in view of Forniti and Cooper is reversed.
The rejection of claim 6 as being unpatentable over Kee in view of
Forniti and Abalos is reversed.

REVERSED

mls