Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s amendment filed on 04/07/2026 has been entered.
The rejection to claim 6 under 35 U.S.C 112(b) has been withdrawn
Claims 1 and 6 have been amended.
Claims 2-4 and 7-8 are as previously presented.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are:
Flickering unit in claims 1 and 7 with the function being to reflect light towards the flame imitation board. The specific structure recited within the original disclosure is that the flickering unit includes a shaft, a first motor, and a plurality of reflective plates in paragraph 18.
Light emitting device in claim 1. Light elements 41 appears to provide the structure in the disclosure.
Adjusting device in claims 1 with the function being to adjust the flame imitation
board. It is no longer invoked for claim 2 because of the recitation of structure that
performs the function of claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Lassen et al. (US Application 2020/0363028) hereafter referred to as Lassen in view of Li (US Application 2015/0369432).
In regards to claim 1, Lassen teaches an electric fireplace with a casing (Figure 1) including a receiving chamber or firebox cavity (103), a screen or transparent glass panel ([0046]) in front of an opening (108) of the cavity (103), a flickering unit or flicker element (140), a light emitting device or a flame simulating light source (130), a flame imitation board or a flame simulator element or flame screen (150).
Lassen does not teach an adjusting device to move the flame imitation board in the vertical position.
Li teaches an electric candle with a motorized adjustment device or lifting mechanism (Figure 4B, 402) for the raising and lowering of a luminous panel (104) for the purpose of raising or lowering the maximum height of the simulated flame ([0043]). While Li teaches flame flicker is achieved via the luminous panel (104) itself Li also indicates ([0061]) that the luminous panels can be turned on and off at any time with respect to the movement of the flame via the adjustment mechanism. i.e. the height of the maximum height of the flame can be adjusted via vertical movement of the luminous panel via the lifting mechanism.
It would be obvious to one of ordinary skill in the art to modify the device of Lassen to incorporate the teachings of Li by including a motorized adjustment device to raise and lower the flame imitation board in an attempt to increase the ambiance of the device by allowing the user to increase or decrease the total height of the simulated flames and change the shape of the flames by adjusting the height of the flame imitation board.
In regards to claim 5, Lassen teaches sidewalls (Figure 1, 106), two rectilinear lateral mounting plates (Figure 3, 124) disposed on the inner sides of the two sidewalls (Figure 1, 106) which abut two sides of the flame imitation board (150).
Claims 2-3 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Lassen in claim 1 further in view of Choo et al. (US Application 2016/0047594) hereafter referred to as Choo.
Regarding claims 2 and 3, the modified device of Lassen teaches all of the limitations of claim 1, and a motorized adjusting device includes an operating shaft and a motor, wherein the motor is connected to the operating shaft and configured to drive the operating shaft to rotate, that the operating shaft is pivotably received in the receiving chamber and extends in a horizontal direction (see Li).
However, it does not teach that the motorized adjusting device is designed for a longer horizontal usage with two gears, and two interlocking seats, wherein the two gears are securely mounted on two ends of the operating shaft, respectively, wherein the two interlocking seats are securely mounted on two sides of the flame imitation board, respectively, and wherein each of the two interlocking seats includes a rack meshed with one of the two gears.
Choo teaches it is known in larger home use devices that move up and down to utilize a rack and pinion (170 & 142) to designed to move vertically to have a rotating shaft (140) that has two gears or pinions (Figure 5A. 142) one on each end of the shaft (140) that are securely mounted on an interlocking seat or guide (150) which has a groove (152) that is vertically elongate which guides the protrusion (124) which includes a rack (170) meshed with the pinion (142).
It would be obvious to one of ordinary skill in the art to have modified the modified device of Lassen to incorporate the teachings of Choo to utilize a motorized adjustment device that is designed for a larger device. As evidenced by Li, this type of adjustment device achieves the predictable result of allowing an elongate member to be vertically adjustable and as such would be obvious to try.
Regarding claim 7, Lassen teaches an electric fireplace (100), where the receiving chamber or firebox cavity (103) includes a light shielded plate or a light channel shield (131) that is connected to the firebox cavity (103), where the flickering unit or flicker element portion (140) includes a shaft or rod (142), a motor ([0057]), and a plurality of reflective plates or flicker elements (144) are attached to the rod, where the rod is mounted in the firebox cavity (103), extending horizontally (Figure 2), is behind the screen or glass panel ([0046]), where the motor is connected to and able to rotate the rod ([057]) causing a change in reflection angle for the flicker elements (144).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Lassen in claim 3 further in view of Hart et al. (US Patent 8584612) hereafter referred to as Hart.
The modified device of Lassen teaches all of the limitations of claim 3 but does not teach the two positioning blocks and positioning switches of claim 4.
Hart teaches rotating cover for lighting that includes an arm linkage (Figure 8 & 9, 672) where the ends (673) which are equivalent to a positioning block would engage a stop by triggering a position switch (670) on each end which would signal the motor or rotary actuator (680) to stop and prevent the motor from over-driving the arm linkage (Column 5, lines 6-11).
It would be obvious for one of ordinary skill in the art at time of filing to modify the device of Lassen to include the teachings of Hart to prevent the motor from forcing the rack and pinion to go outside of the set bounds and causing the flame imitation board to move outside of the expected displacement.
Claims 1 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Lassen et al. (US Publication 2020/0363028) in view of Sun (US Publication 2012/0193041).
Regarding claims 1 and 6, Lassen teaches an electric fireplace with a casing (Figure 1) including a receiving chamber or firebox cavity (103), a screen or transparent glass panel ([0046]) in front of an opening (108) of the cavity (103) a flickering unit or flicker element (140), a light emitting device or a flame simulating light source (130), a flame imitation board or a flame simulator element or flame screen (150).
Lassen does not teach an adjusting device to move the flame imitation board in the vertical position or an upper mounting plate on the lower side of the top wall abutting an upper end of the flame imitation board.
Sun teaches that it is known in image displayers to use a pair of motors (13) to move an image display (15) up and down in order to move the displayed image (15) and to change the displayed image (15) as shown in figures 1 and 3, a plate or bracket ([0033]) that is mounted to hold up the top roller (12a). Using this type of system to move a transparent display allows for multiple different displays to be selected based on user preference ([0013 and 0014]).
It would be obvious to one of ordinary skill in the art at time of filing to have
modified the device of Lassen to incorporate the teachings of Sun to make the flame
imitation board one of multiple sheets attached to a motorized roll above and below the area of viewing. Doing so would allow the user to pick their desired fire display from multiple options, raise and lower the height of the flame by raising the display a small amount and/or choose a different display intended to be backlit.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over the modified device of Lassen in claim 7 further in view of Crowe (US Application 2017/0328575).
The modified device of Lassen teaches all of the limitations of claim 7 but does not teach a controller in electrical connection with the first motor and the second motor, wherein the controller is configured to control a rotating speed of the first motor and forward and reverse rotation and a rotating period of the second motor.
Crowe teaches it is known in electric fireplaces to have a controller or controls (Figure 1. 10) for controlling the operation of the electric fireplace (1) which includes the motors (Figure 5. 41, 61) and what direction, speed, and duration they rotate for ([0038]). The use of a controller allows for controlling of motors, lights and other electronics for the operation of the device ([0023]).
It would be obvious to one of ordinary skill in the art to include the controller of Crowe to the modified device of Lassen for the purpose of controlling the motors to control the operation of the electric fireplace of Lassen thereby allowing for easier control of the fireplace by a user.
Response to Arguments
Applicant's arguments filed 04/07/2026 have been fully considered but they are not persuasive.
In response to applicant's argument that the purpose of raising and lowering the display panel of Li is not to change a height of the plurality of light transmitting portions, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In response to applicant's argument that it would not be obvious to one of ordinary skill to use the teachings of Li to move the flame imitation board as opposed to moving the source of the light, Li teaches moving the display panel in order to change the appearance of the where the flame is, which relates to the flame imitation board as opposed to where the light is actually coming from, which would not change the location of the appearance of the flames.
In response to applicant's argument that Choo is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, It relates to the vertically moving shelfs which are pertinent to the particular problem of move an object, in this case the flame imitation board, in the vertical direction.
In response to applicant's argument that Choo does not teach, suggest or disclose an adjusting device to move the flame imitation board in the vertical direction, Choo teaches an adjusting device to move refrigerator shelving in the vertical direction, and one of ordinary skill in the art would recognize that the adjusting device of Choo could be used to move the flame imitation board in the vertical direction in the same manner.
In response to applicant's argument that Hart does not teach a flame imitation board or any vertical translation thereof, examiner never claimed that Hart taught a flame imitation board or any vertical translation thereof. Examiner claimed Hart taught a rotating cover for lighting that includes an arm linkage (Figure 8 & 9, 672) where the ends (673) which are equivalent to a positioning block would engage a stop by triggering a position switch (670) on each end which would signal the motor or rotary actuator (680) to stop and prevent the motor from over-driving the arm linkage (Column 5, lines 6-11).
In response to applicant's argument that Sun does not teach changing the height of the plurality of light transmitting portions, Sun teaches moving the transparency up and down with the top and bottom motors ([0026]) which is height and the vertical direction.
In response to applicant's argument that Lassen in view of Crowe does not teach the limitations of claim 8, the rejection of claim 8 was in view of the modified device of Lassen in claim 7 further in view of Crowe and therefore the references used were Lassen, Li, Choo, and Crowe, not just Lassen and Crowe.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Drew J Mitchum whose telephone number is (571)272-5610. The examiner can normally be reached 8-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, F Landrum can be reached at 571-272-5567. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.J.M./Patent Examiner, Art Unit 3761
/EDWARD F LANDRUM/Supervisory Patent Examiner, Art Unit 3761
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