Ex Parte WeberDownload PDFPatent Trial and Appeal BoardSep 14, 201814110241 (P.T.A.B. Sep. 14, 2018) Copy Citation 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 2 Appeal2017-006908 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. 3 Appeal2017-006908 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 4 Appeal2017-006908 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 5 Appeal2017-006908 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 6 Copy with citationCopy as parenthetical citation