Ex Parte Weber

Patent Trial and Appeal Board

Sep 14, 2018

14110241 (P.T.A.B. Sep. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/110,241 01/06/2014
42798 7590 09/14/2018
FITCH, EVEN, TABIN & FLANNERY, LLP
120 South LaSalle Street, Suite 2100
Chicago, IL 60603-3406
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Steffen Weber
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.
8953-131666 2433
EXAMINER
SHIRSAT, VIVEK K
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
09/14/2018 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 STEFFEN WEBER
Appeal2017-006908
Application 14/110,241
Technology Center 3700
Before EDWARD A. BROWN, BRANDON J. WARNER, and
SEAN P. O'HANLON, Administrative Patent Judges.
O'HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Steffen Weber ("Appellant") 1 appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 1, 2, 4, 5, and 8, which are all
of the pending claims, under 35 U.S.C. § 103(a) as being unpatentable over
Galtz (US 4,688,718, issued Aug. 25, 1987) and Allen (US 6,293,232 Bl,
1 The Appeal Brief identifies W ebasto SE as the real party in interest.
Appeal Br. 1.
Appeal2017-006908
Application 14/110,241
issued Sept. 25, 2001). We have jurisdiction over this appeal under 35
U.S.C. § 6(b). We AFFIRM.
SUMMARY OF THE INVENTION
Appellant's claimed invention is directed to an evaporator burner for a
mobile heating device. Spec. 1:3. Claim 1, the sole independent claim, is
reproduced below from page 8 (Claims Appendix) of the Appeal Brief:
1. An evaporator burner for a mobile heating device,
compnsmg:
a combustion chamber surrounding a combustion space
for converting fuel with combustion air;
an evaporator receiving portion for receiving an
evaporator body for evaporating liquid fuel, the evaporator
receiving portion being arranged at a rear side of the
combustion space;
a burner cap which closes the combustion space at the
rear side of the evaporator receiving portion and which is
connected to the combustion chamber; and
a fuel pipe for supplying fuel to the evaporator body, the
fuel pipe opening into the evaporator receiving portion;
wherein the burner cap and the evaporator receiving
portion are formed as separate components and are arranged
spatially spaced from each other; and
wherein the fuel pipe is thermally coupled to the burner
cap and the burner cap is provided with an air heat exchanger
comprising a plurality of heat exchanger fins for cooling the
burner cap over which supplied combustion air is guidable
during operation.
ANALYSIS
The Examiner finds that Galtz discloses an evaporator burner
substantially as recited in claim 1, including, inter alia, a combustion
chamber ( combustion pipe 5) surrounding a combustion space ( combustion
chamber 6), an evaporator receiving portion ( carrier means 3), and a burner
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Application 14/110,241
cap ( cover 8) that closes the combustion space. 2 Final Act. 3--4. The
Examiner finds that Allen discloses an internal combustion engine having a
combustion chamber (main cylinder chamber 26) with a cap (manifold or
cylinder head 16) provided with an air heat exchanger in the form of cooling
fins (fins 17), and reasons that it would have been obvious to one of ordinary
skill in the art to modify Galtz's burner "by including cooling fins on the
burner cap as taught by Allen in order to cool the burner cap and fuel intake
manifold." Id. at 4 (citing Allen 6:34--37).
Appellant traverses, first arguing that "Fig. 1 of Galtz actually shows
that it is the evaporator accommodation (shown as carrier means 3) that
forms the back wall of the combustion space, of combustion chamber 6."
Appeal Br. 4 (citing Galtz 4:4--5). According to Appellant, "cover 8 of
Galtz merely forms an additional structure arranged behind the already
closed combustion space" and "combustion chamber 6 is closed by
evaporator receiving portion 3, and [is] not closed by cover 8." Id. at 5; see
also Reply Br. 2-3.
As noted above, however, the Examiner relies on Galtz's combustion
pipe 5 to correspond to the recited combustion chamber and Galtz' s
combustion chamber 6 to correspond to the recited combustion space. Thus,
Appellant's arguments regarding a different "combustion space" within
combustion chamber 6 in Galtz are not responsive to the rejection as set
forth by the Examiner. Additionally, we note that Galtz expressly supports
the Examiner's interpretation that cover 8 closes combustion chamber 6 (i.e.,
the Examiner-defined combustion space): "The burner unit 2, via a fuel
2 Parentheticals refer to the terminology of the cited references.
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Application 14/110,241
supply pipe 7, is preferably supplied with liquid fuel that is led through a
cover closing the combustion chamber." Galtz 4:6-9 (emphasis added).
The cover referred to is cover 8, which the Examiner relies on to correspond
to the recited burner cap. See Galtz 5:28-30 ("burner unit 2 comprises the
cover 8, the fuel supply pipe 7 and the carrier 3 with the absorbent body 4
arranged on it"), Fig. 1. Thus, we are not persuaded by Appellant's
arguments.
Appellant also "submits that Galtz teaches a burner for a heater, while
Allen relates to a combustion engine," and argues that "the technologies of
Galtz and Allen are non-analogous" and, therefore, "one skilled in the art
would not have combined an arrangement of cooling ribs disclosed with
reference to a combustion engine (in which released heat is undesired) to a
heater (where efficient use of released heat is desired)." Appeal Br. 6.
Appellant further argues that "Allen is not 'reasonably pertinent to the
particular problem with which the applicant was concerned'." Id.
A reference qualifies as prior art for a determination under § 103
when it is analogous to the claimed invention. In re Clay, 966 F.2d 656, 658
(Fed. Cir. 1992).
Two separate tests define the scope of analogous prior art:
( 1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is
not within the field of the inventor's endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citing In re Deminski,
796 F.2d 436, 442 (Fed. Cir. 1986)). "A reference is reasonably pertinent
[to a problem an applicant attempts to solve] if ... it is one which, because
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Application 14/110,241
of the matter with which it deals, logically would have commended itself to
an inventor's attention in considering his problem." Clay, 966 F.2d at 659.
Regarding the scope of analogous art:
The Supreme Court's decision in KSR International Co. v.
Teleflex Inc., 550 U.S. 398 (2007), directs us to construe the
scope of analogous art broadly, stating that ''familiar items may
have obvious uses beyond their primary purposes, and a person
of ordinary skill often will be able to fit the teachings of
multiple patents together like pieces of a puzzle." Id. at 402
( emphasis added).
Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010).
Here, Appellant purports to recognize a shortcoming with known
mobile heating devices in that, when the heating device is turned off, liquid
fuel remaining in the fuel supply pipe can be adversely affected by the high
temperature of the burner combustion chamber, causing polymerization of
fuel components that can result in deposits in the fuel pipe. See Spec. 1 :24--
2: 5. "These deposits can lead to an increase in flow resistance in the fuel
pipe and ultimately to plugging of the fuel supply." Id. at 2:5---6. Appellant
addresses this problem by including a "burner cap [that] is provided with an
air heat exchanger for cooling the burner cap over which supplied
combustion air is guidable during operation." Id. at 2:20-22.
The Examiner finds that Allen is directed to a similar problem of
removing heat from a fuel supply line, stating "Allen recognizes that cooling
the intake manifold is necessary, despite the resultant heat loss in order to
prevent prevaporization of the fuel which would lead to inconsistent rates of
fuel delivery and vapor lock." Final Act. 2. Appellant does not address this
statement, and, therefore, fails to apprise us of error in the Examiner's
finding that Allen is analogous art. The arguments Appellant does present
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Application 14/110,241
regarding what combinations one skilled in the art would or would not have
made are presented in conclusory fashion with no supporting evidence or
persuasive technical reasoning, and thus fail to apprise us of error. See
Appeal Br. 6; see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
(holding that attorney arguments or conclusory statements are insufficient to
rebut a prima facie case of obviousness).
In the Reply Brief, Appellant presents for the first time additional
arguments alleging Allen to be non-analogous art. See Reply Br. 3--4 ( citing
Ans. 6: 1-2, 8-9). Although Appellant cites to the Examiner's Answer, the
same rationale was presented by the Examiner in the Final Office Action.
Compare Ans. 5-6, with Final Act. 2. Appellant's new arguments,
therefore, are untimely and will not be considered, in that Appellant fails to
make a good faith showing why they could not have been timely presented
in the Appeal Brief. See 37 C.F.R. § 4I.41(b)(2).
Accordingly, we sustain the rejection of claim 1, and its claims 2, 4, 5,
and 8, which are not argued separately, as being unpatentable over Galtz and
Allen.
DECISION
The Examiner's decision to reject claims 1, 2, 4, 5, and 8 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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