Timothy S. O'Brien

Patent Trials and Appeals Board

Aug 2, 2019

13110465 - (D) (P.T.A.B. Aug. 2, 2019)

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.
13/110,465 05/18/2011 Timothy S. O'Brien 086090.0171 3517
5073 7590 08/02/2019
BAKER BOTTS L.L.P.
2001 ROSS AVENUE
SUITE 900
DALLAS, TX 75201-2980
EXAMINER
SANKS, SCHYLER S
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
ptomail1@bakerbotts.com
ptomail2@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TIMOTHY S. O’BRIEN
____________

Appeal 2018-0090991
Application 13/110,4652
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 9–16. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Our decision references Appellant’s Appeal Brief (“App. Br.,” filed July 6,
2018) and Reply Brief (“Reply Br.,” filed Sept. 25, 2018), and the
Examiner’s Answer (“Ans.,” mailed July 27, 2018), Advisory Action (“Adv.
Act.,” mailed Mar. 2, 2018), and Final Office Action (“Final Act.,” mailed
Nov. 2, 2017).
2 Appellant identifies Therma-Stor, LLC, as the the real party of interest.
App. Br. 2.
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Application 13/110,465

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CLAIMED INVENTION
Appellant’s claimed invention is directed to a split system
dehumidifier. Spec. 1.
Claim 9 is the sole independent claim on appeal, and is representative
of the claimed subject matter:
9. A split-system dehumidifier, comprising:
an evaporator unit located inside a structure and operable
to:
receive a pre-cooled airflow;
receive a flow of refrigerant; and
generate a cooled airflow by facilitating heat
transfer from the pre-cooled airflow to the flow of
refrigerant;
a heat exchange unit located inside the structure and
operable to:
receive the cooled airflow generated by the
evaporator unit;
receive an incoming airflow from within the
structure; and
generate the pre-cooled airflow from the incoming
airflow by facilitating heat transfer from the incoming airflow
to the cooled airflow, the heat transfer from the incoming
airflow to the cooled airflow transforming the received cooled
airflow into an outgoing airflow, wherein the outgoing airflow
has a relative humidity less than a relative humidity of the
cooled airflow and is warmer than the cooled airflow;
a supply fan located inside the structure and
positioned downstream of the evaporator unit and the heat
exchange unit, the supply fan operable to provide the outgoing
airflow to inside the structure, wherein the outgoing airflow is
not being reheated as it is being provided to inside the structure;
a remote condenser system located outside the structure
and operable to use ambient air from outside the structure to
cool the flow of refrigerant; and
a control unit operable to modulate the speed of the
supply fan based on a humidity within the structure such that
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Application 13/110,465

3
the supply fan is stopped when the humidity drops below a
lower limit.

REJECTIONS3
1. Claims 9–15 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Herzon (US 2008/0307803 A1, pub. Dec. 18, 2008), Stark
(US 5,913,360, iss. June 22, 1999) (hereinafter “Stark ’360”), and
US 2009/0165485 A1, pub. July 2, 2009) (hereinafter Stark ’485).
2. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Herzon, Stark ’360, Stark ’485, and Taras (US 2007/0033957 A1, pub.
Feb. 15, 2007).
3. Claims 9–15 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Herzon, Stark (US 5,816,315, iss. Oct. 6, 1998) (hereinafter “Stark
’315”), and Stark ’485.
4. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Herzon, Stark ’315, Stark ’485, and Taras.

ANALYSIS
Rejection 1
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claim 9 under 35 U.S.C. § 103(a) because Herzon
does not teach or suggest the claimed “control unit” that is “operable to
modulate the speed of the supply fan based on a humidity within the
structure such that the supply fan is stopped when the humidity drops below

3 The Examiner has withdrawn the rejections of claims 13 and 14–16 under
35 U.S.C. § 112(a) and (b). Adv. Act. 1–2.
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Application 13/110,465

4
a lower limit.” See App. Br. 16. The Examiner relies on Herzon as
disclosing the argued limitation. See Final Act. 5–6 (citing Herzon ¶¶ 45,
57, Fig. 2); see also Ans. 3–4.
Herzon relates to a system and method for controlling humidity,
heating, ventilaction, and air-conditioning (HVAC) equipment. Herzon ¶ 1.
Herzon describes that the equipment cycles on and off to control temperature
within a space. Id. ¶ 45. Herzon describes with reference to Figure 2 a
humidity-control routine that includes evaluating a humidity level (step 28).
Id. ¶ 57, Fig. 2. If the temperature exceeds a set point (step 25) and
humidity is not excessive (step 29), then the equipment continues to operate
at the same speed (step 26). Id. ¶ 58, Fig. 2. If the fan speed is not operating
at full or normal speed or had been reduced to reduce humidity, then the fan
speed is increased after it is determined that humidity is not excessive. Id.
In other words, rather than teaching to stop the fan when humidity
drops below a particular limit, as required by claim 9, Herzon teaches to
maintain or raise the fan to full speed when humidity is below the threshold
and to drop the fan speed when humidity exceeds a threshold. The
Examiner does not account for this discrepancy in the Answer, but instead
maintains the position that Herzon teaches stopping the fan when humidity
drops below a lower limit. Ans. 3, 11–12, 21–22.
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claim 9 and dependent claims 10–15 under 35 U.S.C. § 103
as unpatentable over Herzon, Stark ’360 and Stark ’485.
Rejection 2
The Examiner’s rejection of dependent claim 16 under 35 U.S.C.
§ 103 as unpatentable over Herzon, Stark ’360, Stark ’485, and Taras (i.e.,
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Application 13/110,465

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Rejection 2) does not cure the deficiencies in the Examiner’s rejection of
independent claim 9 under 35 U.S.C. § 103 as unpatentable over Herzon,
Stark ’360, and Stark ’485 (i.e., Rejection 1). Therefore, we do not sustain
Rejection 2 for the same reasons set forth above with respect to Rejection 1.
Rejection 3
Rejection 3, rejecting independent claim 9 and dependent claims 10–
16 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’315, and
Stark ’485, relies on the same erroneous findings set forth above with
respect to Rejection 1. See Final Act. 13–14 (citing Herzon ¶¶ 45, 57,
Fig. 2); see also Ans. 11–12.
Therefore, we do not sustain Rejection 3 for the same reasons
described above with respect to Rejection 1.
Rejection 4
The Examiner’s rejection of dependent claim 16 under 35 U.S.C.
§ 103 as unpatentable over Herzon, Stark ’315, Stark ’485, and Taras (i.e.,
Rejection 4) does not cure the deficiencies in the Examiner’s rejection of
independent claim 9 under 35 U.S.C. § 103 as unpatentable over Herzon,
Stark ’315, and Stark ’485 (i.e., Rejection 3). Therefore, we do not sustain
Rejection 4 for the same reasons set forth above with respect to Rejection 1.
DECISION
The Examiner’s rejections of claims 9–16 under 35 U.S.C. § 103 as
unpatentable are reversed.

REVERSED