Ex Parte Zelek et al

Board of Patent Appeals and Interferences

Aug 14, 2009

10883631 (B.P.A.I. Aug. 14, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte LEONARD G. ZELEK and ADRIAN A. BRUNO
__________

Appeal 2009-002299
Application 10/883,631
Technology Center 3700
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Decided: August 17, 2009
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Before ERIC GRIMES, LORA M. GREEN, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims 1-10, 12-23,
and 25-40, which are directed to a fuel tank enclosure for a barbecue gas
grill. The Examiner has rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appeal 2009-002299
Application 10/883,631

STATEMENT OF THE CASE
The Specification discloses “a fuel tank enclosure and support
apparatus for a fuel tank used in connection with a gas barbecue grill
assembly” (Spec. 2). Figure 7 of the Specification is shown below:

Figure 7 shows “a top plan view of the tank enclosure … showing the
door of the tank enclosure assembly in the [open] position” (id. at 4).
The Specification discloses that the
door 12 of the tank enclosure assembly 10 is moveable between
a first position … and a second position, as shown in FIG. 7. In
the first position, the fuel tank 63 is positioned generally within
the housing assembly 16 of the fuel tank enclosure assembly
10, and the door 12 is positioned generally adjacent the housing
assembly 16. In the second position, a portion of the door 12 is
positioned generally beyond a portion of the housing assembly
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16. Further, in the second position the fuel tank 63 is
positioned generally beyond a cavity 85 of the housing
assembly 16.
(Id. at 6:14-22.)
Claims 1-10, 12-23, 25-40 are on appeal.1 Claim 1 is representative
and reads as follows:
Claim 1: A fuel tank enclosure for a barbecue grill, comprising:
a door having a first wall and a second wall adjacent and transverse to
the first wall, the first and second walls being connected such that movement
of the first wall results in movement of the second wall without further
action by the user, and a fuel tank bracket connected to the second wall to
support the fuel tank, the door being moveable between a first position
wherein the fuel tank is stored for use, the second wall is disposed
substantially within the enclosure, and the first wall is substantially flush
with an outside surface of the enclosure, and a second position wherein the
fuel tank is accessible.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
• claims 1, 5, 6, 8, 12, 13, 22, 23, and 25-28 in view of Stephen2 and
Lambright;3 and
• claims 2-4, 7, 9, 10, 14-21, and 29-40 in view of Stephen,
Lambright, and Sieg.4
OBVIOUSNESS I
Issue
The Examiner has rejected claims 1, 5, 6, 8, 12, 13, 22, 23, and 25-28
under 35 U.S.C. § 103(a) as being obvious in view of Stephen and

1 Claims 11 and 24 are also pending but the Examiner has indicated that
they would be allowable if written in independent form (Answer 2).
2 Stephen et al., US 6,694,967 B2, Feb. 24, 2004.
3 Lambright, US 6,033,046, Mar. 7, 2000.
4 Sieg, US 6,148,668, Nov. 21, 2000.
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Application 10/883,631

Lambright. The claims have been argued in two groups: claims 5, 8, 12, 22,
23, and 25-28 stand or fall with claim 1 and claim 13 stands or falls with
claim 6. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Stephen discloses “a grill including a door 22
and a fuel tank cavity,” with a wall 23 and “a second wall 30 … transverse
to the first wall, a fuel tank bracket 48 connected to the second wall to
support the fuel tank, … wherein the door is moveable between first closed
and second open positions” (Answer 3). The Examiner finds that
“Lambright teaches a cabinet including … two perpendicular walls 62,50
moving in unison and providing support 74 on the outside wall” (id. at 4).
The Examiner concludes that “it would have been obvious to one of ordinary
skill in the art … to incorporate the door structure of Lambright into the
invention disclosed by Stephen, so as to maximizing [sic] storage and
enhanced [sic] structural support” (id.).
Appellants contend that the Examiner erred in concluding that the
combination of the cited references suggests the invention of claim 1
(Appeal Br. 10-22).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Stephen and Lambright suggest the
invention of claim 1?
Findings of Fact
1. Stephen discloses “a movable support apparatus for a fuel tank
used in connection with a gas barbecue grill assembly” (Stephen, col. 2, ll.
41-43).
2. Figure 9 of Stephen is shown below:
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Figure 9 shows “a top plan view of the support apparatus …, showing the
support apparatus in the first position [P1] and the second position [P2]” (id.
at col. 4, ll. 24-26).
3. Stephen discloses that the movable support apparatus (element 30)
“includes a housing member having opposed side walls, a back wall, and a
bottom wall. A bracket is affixed to an outer surface of the back wall and is
adapted to engage an opening of the fuel tank … [and] to secure the fuel
tank to the support apparatus” (id. at col. 2, ll. 43-48).
4. Stephen discloses that the “the support apparatus is operably
connected to the frame assembly of the gas barbecue grill assembly,” where
the frame assembly defines a cabinet positioned below the cooking chamber
of the barbecue grill (id. at col. 2, l. 61 – col. 3, l. 3).
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5. Stephen discloses that at “least one hinge is adapted to operably
connect the support apparatus to a portion of the cabinet, preferably a
portion of the vertical frame member” (id. at col. 3, ll. 3-5).
6. Stephen discloses that “the support apparatus is movable between a
first position, wherein the fuel tank is generally stored for use and a second
position, wherein the fuel tank is generally accessible. In the first position,
the support apparatus and the fuel tank are positioned generally within the
cabinet” (id. at col. 3, ll. 6-11).
7. Lambright discloses a “cabinet assembly having a plurality of door
assemblies including storage shelves. The door assemblies are pivotally
mounted in the cabinet assembly to provide access to the shelves … [and]
maximize storage space within the cabinet assembly” (Lambright, abstract).
8. Figures 9 and 10 of Lambright are shown below:

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Figures 9 and 10 show a plan view of one of Lambright’s cabinets
with the right-side door in the closed (Figure 9) and open (Figure 10)
positions (id. at col. 2, ll. 22-25).
9. Lambright discloses that the
first edge portion 68 of the second door member 62 is attached
to the second edge portion 58 of the first door member 50 at a
predetermined angle A that is about 90°. This attachment forms
a joint 162. … [T]op and bottom pivot hinges allow for the
pivotal movement of the first and second door members 50 and
62 from a closed position … to an open position as shown in
FIG. 10. This pivotal movement is represented by the arrow
164 as shown in FIG. 10.
(Id. at col. 4, ll. 34-48.)
10. Lambright discloses that the door assembly “has been found …
[to] provide a maximum of storage space for the cabinet” (id. at col. 4, ll. 51-
53).
Principles of Law
“[W]hen the question is whether a patent claiming the combination of
elements of prior art is obvious,” the answer depends on “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007).
The obviousness analysis “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” Id. at
418.
In determining whether references are from nonanalogous arts, the
question is whether the references are in the same field of endeavor or are
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reasonably pertinent to a particular problem. See In re Clay, 966 F.2d 656,
658 (Fed. Cir. 1992).
“The fact that the motivating benefit comes at the expense of another
benefit … should not nullify its use as a basis to modify the disclosure of
one reference with the teachings of another. Instead, the benefits, both lost
and gained, should be weighed against one another.” Medichem S.A. v.
Rolabo S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006).
Analysis
Claim 1 is directed to a fuel tank enclosure for a barbecue grill that
comprises a door having two connected, transversely oriented walls, and a
fuel tank bracket connected to one of the walls. Claim 1 also requires that
the door can be moved from a position in which the fuel tank is stored and
the wall with the fuel tank bracket is inside the enclosure, and the other wall
is flush with the outside surface of the enclosure, to a position in which the
fuel tank is accessible.
Stephen discloses a fuel tank enclosure for a barbecue grill that
comprises a cabinet having a support assembly for a fuel tank attached to it.
The support assembly can be moved between a first position, with the fuel
tank within the cabinet, and a second position, with the fuel tank outside the
cabinet and accessible.
Lambright discloses a door for a cabinet that comprises two
connected, transversely oriented walls. When Lambright’s door is closed,
one of the walls is within the cabinet and the other wall is flush with the
outside of the cabinet. In view of these disclosures, it would have been
obvious to one of skill in the art to modify Stephen’s fuel tank enclosure to
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support the fuel tank using a cabinet door as disclosed in Lambright, because
Lambright discloses a storage compartment comprising its door assembly.
The combination of Lambright’s door assembly with Stephen’s barbecue
grill is no more than the predictable use of prior art elements according to
their established functions. In addition, Lambright discloses that its
embodiment having two connected, transversely oriented walls maximizes
storage space, providing additional reason to combine it with Stephen’s fuel
tank enclosure.
Appellants argue that “[n]either Lambright nor Stephen teaches or
suggests a fuel tank bracket connected to a door” and that “Stephen shows a
tank (26) being supported by a structure (30 - movable support apparatus)
which is entirely independent from the door (22)” (Appeal Br. 11).
This argument is not persuasive. It is true that neither Stephen nor
Lambright expressly discloses a fuel tank bracket connected to a door, but
the prior art need not expressly disclose all of the features of an invention in
order to have made it obvious. Stephen discloses a support assembly for a
fuel tank that includes a bracket affixed to a wall of the support to secure the
fuel tank to the support (FF 3). Lambright teaches a cabinet door assembly
for general use, not specifically for fuel tank storage, and thus does not
disclose a fuel tank bracket. However, it would have been obvious to an
ordinarily skilled worker, when combining Lambright’s door assembly with
Stephen’s fuel tank enclosure, to include a fuel tank bracket attached to the
inside wall of Lambright’s door assembly because Stephen teaches that a
fuel tank bracket secures the fuel tank to a moveable support.
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Appellants argue that combining the cited references to arrive at the
invention of claim 1 is improper since it would change the principle of
operation of Stephen’s invention (Appeal Br. 11-14). Specifically,
Appellants argue that Stephen includes a door that is separate from the
support apparatus that supports the fuel tank (id. at 12), and that the
“independent operation of the door 22 and tank support apparatus 30 is
intentional and intended to prevent unexpected or undesirable movement of
the tank 26, such as movement of the tank 26 when the door 22 is opened or
closed” (id. at 13). Appellants argue that modification of Stephen’s door to
one as disclosed in Lambright would result in a door that would not be able
to prevent unintended or undesirable movement of the tank (id. at 14).
This argument is not persuasive. In accord with Medichem S.A. v.
Rolabo S.L., the benefits lost and gained by a particular suggested
modification must be appropriately weighed by one of skill in the art. Even
if modifying Stephen’s product to include Lambright’s door assembly would
increase the chances of undesirable movement of the fuel tank, a skilled
worker would have considered the combination obvious in view of
Lambright’s teaching that its door assembly maximizes storage space within
a cabinet.
Appellants also argue that Lambright is non-analogous art (Appeal Br.
14). However, both references are pertinent to the problem of storing items
within a cabinet and thus would reasonably be considered analogous art.
Appellants argue that Stephen and Lambright do not suggest a second
wall transverse to the first wall (Appeal Br. 17) because “rigidly connecting
the [support] apparatus 30 to the door” would result in the support wall of
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support apparatus 30 being substantially parallel to the door (id. at 18).
Appellants also argue that Stephen and Lambright do not suggest a first wall
that is substantially flush with an outside surface of the enclosure (Appeal
Br. 19) because fixing the support apparatus 30 to the door 22 would not
allow the door to be fully closed (id. at 20). Appellants also argue that,
because fixing the support apparatus 30 to the door 22 would not allow the
door to be fully closed, the combination would render Stephen’s product
inoperable (id. at 21-22). Along the same line, Appellants argue that the
combination would not meet the limitations of claim 6, because fixing the
support apparatus 30 to the door 22 would not allow the door to be fully
closed to substantially cover a front opening (id. at 23).
These arguments are not persuasive. The Examiner’s rejection is
premised on the obviousness of “incorporat[ing] the door structure of
Lambright into the invention disclosed by Stephen” (Answer 4), not
connecting Stephen’s support apparatus and door to each other. As
discussed above, the combination of Lambright’s cabinet door with
Stephen’s fuel tank enclosure would result in a cabinet door having a second
wall transverse to a first wall and a first wall that closes substantially flush
with an outside surface of the enclosure.
Conclusions of Law
The evidence of record does supports the Examiner’s conclusion that
Stephen and Lambright suggest the invention of claim 1.
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OBVIOUSNESS II
The Examiner has rejected claims 2-4, 7, 9, 10, 14-21, and 29-40
under 35 U.S.C. § 103(a) as being obvious in view of Stephen, Lambright,
and Sieg. The Examiner relies on Stephen and Lambright as discussed
above, and finds that “Sieg teaches a gas grill tank scale providing a means
of indicating the amount of fuel in a fuel tank for a barbecue grill” (Answer
5). The Examiner concludes that “it would have been obvious to one of
ordinary skill in the art … to incorporate Sieg’s teaching of the scale into the
invention taught by the combination, so as to provide a means of indicating
the amount of fuel left in the tank” (id.). We agree with the Examiner’s
findings and conclusion.
With respect to claims 2-4, 9, 10, 14-21, and 29, Appellants rely on
the arguments they presented with respect to the combination of Stephen and
Lambright (Appeal Br. 25). Those arguments are not persuasive, for the
reasons discussed above.
With respect to claims 7 and 38, Appellants argue that the references
do not support the rejection because “[i]f the support apparatus 30 were
fixed transverse to the door [in Stephen], as suggested by the Examiner, the
door 22 (i.e., first wall) would not be able to fully close (or substantially
cover the opening), since the tank 26 would hit the back wall 23 of the
cabinet 24 well before the door was closed” (Appeal Br. 26-27).
With respect to claims 30-34 and 38, Appellants argue that “[n]either
Lambright nor Stephen nor Sieg teaches or suggests a fuel tank bracket
connected to a door” (id. at 29). Appellants also argue that fixing Stephen’s
support apparatus and door together would render Stephen’s product
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inoperable (id. at 31) and that “[i]f the support apparatus 30 were fixed
transverse to the door, as suggested by the Examiner, the door 22 (i.e., first
wall) would not be able to fully close or become substantially flush with an
outside surface of the enclosure” (Appeal Br. 33). With respect to claims
30-40, Appellants argue that modifying Stephen’s product with Lambright’s
door assembly would change its principle of operation (id. at 33-36) and that
Lambright and Stephen are nonanalogous art (id. at 36-39).
These arguments are adequately addressed above.
With respect to claims 35-40,5 Appellants argue that “[n]either
Stephen, Sieg, nor Lambright disclose a movable tank support that is capable
of positioning the tank entirely outside of the housing when the door is in the
open position” (Appeal Br. 39).
This argument is not persuasive. As shown above in Figure 10 of
Lambright, when the door is open, the interior space of the door is outside of
the cabinet. Thus, modification of the Stephen fuel enclosure to include the
door of Lambright with a fuel tank mounted on the inside wall of

5 Claims 36-40 depend on claim 35, which reads as follows: “A fuel tank
enclosure for a barbecue grill assembly, comprising: a housing having a
cavity for a fuel tank; a door substantially covering an opening to the cavity
of the housing when the door is in a first position, the door being moveable
to a second position to provide access to the cavity of the housing, wherein
the door rotates about a generally vertical axis and has a bracket to support
the fuel tank, the bracket including a tank scale, wherein when the door
moves the tank bracket also moves without further action by the user,
wherein the tank is in an upright position and is disposed entirely outside of
the housing when the door is in the second position, wherein the door has an
aperture in a wall thereof to provide a first vent for the cavity, and wherein
the cavity has a second vent adjacent a bottom of the housing.”
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Lambright’s door assembly would result in a movable support member that
is capable of positioning the tank entirely outside of the housing, as required
by claim 35.
SUMMARY
We affirm the rejection of claims 1-10, 12-23, and 25-40 under 35
U.S.C. § 103(a) in view of the cited references.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

cdc

DAVID I. ROCHE
BAKER & MCKENZIE LLP
130 EAST RANDOLPH DRIVE
CHICAGO IL 60601
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