Roger Pellenc

Patent Trials and Appeals Board

Nov 13, 2020

14009498 - (D) (P.T.A.B. Nov. 13, 2020)

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.
14/009,498 12/26/2013 Roger Pellenc 1811-416 9862
24106 7590 11/13/2020
Egbert Law Offices, PLLC
1001 Texas Ave., Suite 1250
Houston, TX 77002
EXAMINER
LETTMAN, BRYAN MATTHEW
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
11/13/2020 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):
KMCDANIEL@EGBERTLAWOFFICES.COM
MAIL@EGBERTLAWOFFICES.COM
USPTO@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROGER PELLENC
____________

Appeal 2020-001867
Application 14/009,498
Technology Center 3700
____________

Before BRETT C. MARTIN, WILLIAM A. CAPP, and LEE L. STEPINA,
Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 24–35, 37–41, 43, and 44. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies PELLENC (SOCIETE ANONYME) as the real party
in interest. Appeal Br. 5.
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Application 14/009,498
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THE INVENTION
Appellant’s invention relates to portable electric blowers. Spec. ¶ 1.
Claim 24, reproduced below, is illustrative of the subject matter on appeal.
24. A stand-alone electric blower apparatus comprising:
an air guide assembly comprising:
a tubular suction nozzle with an air inlet;
a tubular exhaust pipe with an air outlet; and
a tubular central part arranged between said tubular suction
nozzle and said tubular exhaust pipe, said tubular central part
housing a functional assembly, said functional assembly
comprising:
an electric motor adapted to be driven by a current source;
at least one axial impeller driven in rotation by said electric
motor, said axial impeller defining an axial fan;
an exterior housing;
an interior housing positioned axially within said exterior
housing;
a plurality of air rectifiers connecting said exterior housing
and said interior housing, said plurality of air rectifiers
defining cooling air circulation channels; and
an electronic board connected to said electric motor for
changing power settings of said electric motor; and
a pair of half-shells fastened to said air guide assembly and
surrounding said exterior housing, said tubular suction nozzle
and said tubular exhaust pipe being respectively fastened to said
tubular central part by said pair of half-shells.

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THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Ponczek US 3,439,204 Apr. 15, 1969
Miner US 4,884,314 Dec. 5, 1989
Meyer US 5,538,074 July 23, 1996
Pellenc (US) US 2007/0108944 A1 May 17, 2007
Pal US 2012/0243177 A1 Sept. 27, 2012
Pellenc (WO) WO 2010/020720 A1 Feb. 25, 2010
The following rejections are before us for review:
1. Claims 24, 26, 30–32, 34, and 35 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Ponczek and Pal.
2. Claims 25 and 33 are rejected under 35 U.S.C. § 103 as being
unpatentable over Ponczek, Pal, and Miner.
3. Claim 27 is rejected under 35 U.S.C. § 103 as being unpatentable
over Ponczek, Pal, and Meyer.
4. Claims 28 and 29 are rejected under 35 U.S.C. § 103 as being
unpatentable over Ponczek, Pal, Meyer, and Miner.
5. Claims 37–41 are rejected under 35 U.S.C. § 103 as being
unpatentable over Ponczek, Pal, Meyer, Miner, and Pellenc (WO).
6. Claims 43 and 44 are rejected under 35 U.S.C. § 103 as being
unpatentable over Ponczek, Pal, and Pellenc (US).
OPINION
Appellant argues independent claim 24 and does not separately argue
the remainder of the pending claims, all of which depend, directly or
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indirectly, from claim 24. Appeal Br. 16–21. We will consider the
arguments for claim 24 and the remaining claims will stand or fall therewith.
See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Ponczek discloses the invention substantially
as claimed except for an electronic control board being part of the functional
assembly as claimed, for which the Examiner relies on Pal. Final Act. 2–5.
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time of the invention to modify the apparatus
of Ponczek with the electronic board location of Pal to achieve the claimed
invention. Id. According to the Examiner, a person of ordinary skill in the
art would have done this to cool the controller. Id.
Appellant argues that the electronic board of Pal is not part of a
“functional assembly” as claimed. Appeal Br. 16. In response, the
Examiner finds that Ponczek teaches exterior housing 26, interior housing 25
positioned axially therein, air rectifiers 28 connecting the interior and
exterior housings, and where the air rectifiers 28 define cooling air
circulation channels. Ans. 13 (citing Ponczek Fig. 2, col. 48–62).
Appellant’s argument is not persuasive. Claim 24 recites a functional
assembly that includes a motor, an impeller, an exterior housing, an interior
housing, and air rectifiers. Claims App. As shown in Figure 2, Ponczek
features a motor and fan unit 19. Ponczek, col. 3, ll. 28–62. Inner
member 25 forms a housing and mounting means for a motor. Id. Outer
member 26 acts as a mounting member for the complete motor and fan
assembly. Id. Cooling vanes 28 are provided between and integrally
connected to members 25 and 26. Id. Vanes 28 dissipate heat from the
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motor. Id. col. 3, ll. 60–62. Motor and fan unit 19 may be considered to be
a “functional assembly” within the meaning of claim 24.
The Examiner relies on Pal as disclosing the electronic board
limitation of claim 24. Final Act. 4–5. As shown in Figure 3, Pal features
cooling assembly 10 which includes an assembly of electronic components
disposed within inner housing 16 which, in turn, is disposed in outer
housing 18. Pal ¶¶ 19–22, Fig. 3. Electronic components 38, 38a are
disposed proximate inner housing 16 where they are cooled from air flow
passing through air passage 20 and flow path 28. Id. Stator 34 is disposed
proximate inner housing 16. Id. Stator 34 may be considered to be an “air
rectifier” within the meaning of claim 24. Id. Electronic component 38 is a
printed circuit board and constitutes an electronic board within the meaning
of claim 24. Id. Pal’s cooling assembly 10 constitutes a functional assembly
within the meaning of claim 24.
In view of the foregoing, the Examiner’s finding that the combination
of Ponczek and Pal discloses a functional assembly that includes all of the
various elements of claim 24 is supported by a preponderance of the
evidence. Similarly, the Examiner’s findings that the combination contains
cooling channels and connections as claimed is supported by a
preponderance of the evidence.
Next, Appellant contends that it is “unclear” whether Pal’s electronic
board would serve to change the power settings of the fan. Appeal Br. 18.
“Pal lists a number of electronic components, but there is no explicit
mention of changing the power settings of the fan, as required by Claim 24.”
Id. In response, the Examiner finds that, apart from a blower, there is
nothing else in Pal to which the disclosed power control components could
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control. Ans. 13. Thus, according to the Examiner, it is implicit that the
disclosed control elements are used to control the disclosed blower. Id. The
Examiner further finds that the disclosed transformers, by definition, change
the power settings of the blower. Id.
We have considered the competing positions of Appellant and the
Examiner. The Examiner has stated a reasonable basis for believing that
Pal’s electronic board controls the power setting of the fan. Appellant
provides no evidence that it performs some other function. “[W]here the
Patent Office has reason to believe that a functional limitation asserted to be
critical for establishing novelty in the claimed subject matter may, in fact, be
an inherent characteristic of the prior art, it possesses the authority to require
the applicant to prove that the subject matter shown to be in the prior art
does not possess the characteristic relied on.” In re Swinehart, 439 F.2d
210, 213 (CCPA 1971). In the absence of any evidence from Appellant to
rebut the Examiner’s position, we resolve this issue of fact in favor of the
Examiner’s position.
Next, Appellant challenges the Examiner’s findings regarding the pair
of half shells limitation of claim 24. Appeal Br. 19. “[T]he ‘pair of half
shells’ . . . carries out functions and achieve advantages neither taught or
suggested by the prior art . . . .” Id. In response, the Examiner points out
that the alleged advantages touted by Appellant are not recited in the claims.
Ans. 14.
Appellant’s argument is not persuasive. Ponczek teaches the use of
half-shells. Ponczek, col. 3, ll. 9–14, Figs. 2, 4 (elements 15, 16). Appellant
admits that “using two half shells is a common way to assemble a three-
dimensional molded plastic structure.” Appeal Br. 20. It is well settled that
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an otherwise obvious improvement or advantage over the individual
references found in the prior art, without more, does not confer patentability
on an invention. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 422 (2007)
(explaining that a person of ordinary skill in the art would have seen the
benefits of combining the prior art in the manner achieved by the claimed
invention).
Because the desire to enhance commercial opportunities by
improving a product or process is universal—and even
common-sensical—we have held that there exists in these
situations a motivation to combine prior art references even
absent any hint of suggestion in the references themselves.
Dystar Textilfarben GmBH & Co, v. C.H. Patrick Co., 464 F.3d 1356, 1368
(Fed. Cir. 2006).
Finally, Appellant argues that Ponczek’s half shells do not fasten a
tubular exhaust pipe to a central part, as claimed. Appeal Br. 20. In
response, the Examiner states that Ponczek’s rings 29 are disposed at the
ends of member 26. Ans. 14 (citing Ponczek col. 3, ll. 70–72). The
Examiner maintains that tubular exhaust pipe 29 of Ponczek is held in
positioned by half shells 15, 16. Id. We have reviewed Figures 1–4 of
Ponczek, together with the column 3 passage cited by the Examiner. The
Examiner’s position is supported by preponderance of the evidence.
We have considered Appellant’s remaining arguments and find them
to be without merit. We sustain the Examiner’s unpatentability rejection of
claims 24–35, 37–41, 43, and 44.

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CONCLUSION
Claims
Rejected
§ References Affirmed Rev’d
24, 26, 30-32,
34 35
103 Ponczek, Pal 24, 26, 30-32,
34 35

25, 33 103 Ponczek, Pal, Miner 25, 33
27 103 Ponczek, Pal, Meyer 27
28, 29 103 Ponczek, Pal, Meyer, Miner 28, 29
37-41 103 Ponczek, Pal, Meyer,
Miner, Pellenc (WO)
37-41
43, 44 103 Ponczek, Pal, Pellenc (US) 43, 44
Overall
Outcome
24-35, 37-41,
43 44

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED