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
The amendments filed 11/20/2025 are entered. The previously filed objections are withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1, 2, 4, 9, 10, 13, 15, 19, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frink et al. (US 20040261780 A1; hereinafter, Frink) in view of Enders (DE 202004001073 U1) and Staller (US 20090053664 A1).
Regarding claim 1, Frink teaches a device (the patio heater shown in FIG. 1) including: a base (FIG. 1, base portion 100) supporting a fire platform (FIG. 1, the shell surrounding the burner 10) with a burner (FIG. 1, burner 10); a coupling (FIG. 1, the ring where the burner shell, the burner 10, the tray 80, and the outer tube 220 meet) on the fire platform surrounding the burner; a top rim (FIG. 1, the portion of the base portion 100 that meets the tray 80, which extends about the point where the tray 80 and burner 10 meet) on the base circumscribing the burner and the coupling; a tabletop (FIG. 1, tray 80) defining an opening (FIG. 1, the opening in the tray 80 through which the flame 15 extends) with a contour matching a contour of the top rim (FIG. 1, the contours of the various pieces are such that the surface of tray 80 and the rim of the burner 10 are continuous), and being selectively fitted to the base to create a table surface around the fire platform; and a fire column (FIG. 1, outer tube 220 and inner tube 210) fitted to the coupling such that flame from the burner travels into the fire column.
Frink fails to teach that the fire column is selectively fitted to the coupling. (Emphasis added.)
However, Enders teaches that the fire column is selectively fitted to the coupling (FIG. 1, the supporting column 2 may be detached and collapsed into the volume beneath).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by making the assembly collapsible for storage or transportation, as taught by Enders, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Enders with the motivation of making the assembly easier to store and transport.
Enders fails to teach that the burner and coupling are on the top of the fire platform at the same level therewith.
However, Staller teaches that the burner and coupling are on the top of the fire platform at the same level therewith (FIG. 2, catalytic heating chamber 110 and the associated fixing means are on top of a lower structure of the patio heater).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by disposing the burner on top of the lower housing, as taught by Staller, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Staller with the motivation of separating the burner space from the fuel holding space to safeguard against explosions.
Regarding claim 2, the combination of Frink, Enders, and Staller teaches that the fire column comprises an inner glass tube (Fink, FIG. 1, inner glass tube 210) containing combustion products from the burner surrounded by a spaced apart and concentrically arranged guard (Fink, FIG. 1, outer glass tube 220).
Regarding claim 4, the combination of Frink, Enders, and Staller teaches that the fire column further comprises a reflector (Fink, FIG. 1, top heat deflector 300) at a top thereof.
Regarding claim 9, the combination of Frink, Enders, and Staller teaches that the base contains a fuel supply and provides a set of controls for controlling flame from the burner (Fink, FIG. 1, the gas tank and the gas valve 20).
Regarding claim 10, the combination of Frink, Enders, and Staller teaches that the base provides storage accessible by a door on the base (Fink, FIG. 1, access door 60).
Regarding claim 13, the combination of Frink, Enders, and Staller teaches that the burner comprises a cup shaped burner (Fink, FIG. 1, the burner 10 is shaped like a cup).
Regarding claim 15, Fink teaches a device (the patio heater shown in FIG. 1) comprising: a fire platform base (FIG. 1, base portion 100) having an internal compartment (FIG. 1, the space behind the access door 60) for storing at least a fuel supply (FIG. 1, gas supply source 50); a fire platform (FIG. 1, the shell surrounding the burner 10) supported by the fire platform base; a burner (FIG. 1, burner 10) on the fire platform fueled from the fuel supply; a coupling (FIG. 1, the ring where the burner shell, the burner 10, the tray 80, and the outer tube 220 meet) on the fire platform for joining a fire column (FIG. 1, outer tube 220 and inner tube 210) in a position over the burner such that flame from the burner enters the fire column; and a circular rim (FIG. 1, the portion of the base portion 100 that meets the tray 80, which extends about the point where the tray 80 and burner 10 meet) circumscribing the fire platform and selectively supporting a tabletop (FIG. 1, tray 80) to surround the circular rim.
Frink fails to teach that the fire column is selectively fitted to the coupling. (Emphasis added.)
However, Enders teaches that the fire column is selectively fitted to the coupling (FIG. 1, the supporting column 2 may be detached and collapsed into the volume beneath).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by making the assembly collapsible for storage or transportation, as taught by Enders, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Enders with the motivation of making the assembly easier to store and transport.
Enders fails to teach that the burner and coupling are outside of the internal compartment.
However, Staller teaches that the burner and coupling are outside of the internal compartment (FIG. 2, catalytic heating chamber 110 and the associated fixing means are on top of a lower structure of the patio heater).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by disposing the burner on top of the lower housing, as taught by Staller, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Staller with the motivation of separating the burner space from the fuel holding space to safeguard against explosions.
Regarding claim 19, Fink teaches kit (the patio heater shown in FIG. 1) including: a fire platform base (FIG. 1, base portion 100) comprising: an internal compartment (FIG. 1, the space behind the access door 60) for storing at least a fuel supply (FIG. 1, gas supply source 50); a fire platform (FIG. 1, the shell surrounding the burner 10) supported by the fire platform base; a burner (FIG. 1, burner 10) on the fire platform fueled from the fuel supply; a coupling (FIG. 1, the ring where the burner shell, the burner 10, the tray 80, and the outer tube 220 meet) on the fire platform for selectively joining a fire column (FIG. 1, outer tube 220 and inner tube 210) in a position over the burner such that flame from the burner enters the fire column; and a circular rim (FIG. 1, the portion of the base portion 100 that meets the tray 80, which extends about the point where the tray 80 and burner 10 meet) circumscribing the fire platform and selectively supporting a tabletop (FIG. 1, tray 80) to surround the circular rim; the fire column, further comprising: a fire column base that joins to the fire platform and defines an opening over the burner when joined to the fire platform (FIG. 1, the bottom of the tube includes a base portion and an opening for the flames of the burner to enter through); an inner transparent tube (FIG. 1, inner tube 210 affixed to the fire column base over the opening in the fire column to receive flame from the burner; and a guard (FIG. 1, outer tube 220) affixed to the fire column base and concentrically surrounding the inner transparent tube; and the tabletop to surround the circular rim, the tabletop defining a central opening having a profile conforming to the circular rim (FIG. 1, the tray 80 surrounds the opening of the burner).
Fink fails to teach that the fire column base selectively joins to the fire platform. (Emphasis added.)
However, Enders teaches that the fire column base selectively joins to the fire platform (FIG. 1, the supporting column 2 may be detached and collapsed into the volume beneath).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by making the assembly collapsible for storage or transportation, as taught by Enders, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Enders with the motivation of making the assembly easier to store and transport.
Enders fails to teach that the burner and coupling are on the top of the fire platform at the same level therewith.
However, Staller teaches that the burner and coupling are on the top of the fire platform at the same level therewith (FIG. 2, catalytic heating chamber 110 and the associated fixing means are on top of a lower structure of the patio heater).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by disposing the burner on top of the lower housing, as taught by Staller, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Staller with the motivation of separating the burner space from the fuel holding space to safeguard against explosions.
Regarding claim 20, the combination of Frink, Enders, and Staller teaches that a cover that selectively covers the fire platform to create a continuous table surface in conjunction with the tabletop (Fink, FIG. 1, the pea gravel 85 covers the table and creates a continuous top surface).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frink, Enders, and Staller as applied to claims 1, 2, 4, 9, 10, 13, 15, 19, and 20 above, and further in view of Cheng (EP 1887280 A1).
Regarding claim 3, the combination of Frink, Enders, and Staller fails to teach that the guard comprises a wire guard.
However, Cheng teaches that the guard comprises a wire guard (“There may be a wire guard over the front of the shroud, to prevent people from touching the heating element.”).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by making the outer tube 220 include a wire guard extending between the top of the outer tube 220 and the top heat deflector 300, as taught by Cheng, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Cheng with the motivation of preventing insects, birds, and other animals from getting atop the column.
Claim(s) 5, 16, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frink, Enders, and Staller as applied to claims 1, 2, 4, 9, 10, 13, 15, 19, and 20 above, and further in view of Staller.
Regarding claim 5, the combination of Frink, Enders, and Staller fails to teach that the fire column further comprises an exhaust diffuser interposing the inner glass tube and the reflector.
However, Staller teaches that the fire column further comprises an exhaust diffuser (FIG. 2, diffuser plate 11) interposing the inner glass tube and the reflector.
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by including a diffuser plate near the top of the column to ensure equal heat distribution before hitting the deflector, as taught by Staller, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Staller with the motivation of ensuring equal heat distribution.
Regarding claim 16, the combination of Frink, Enders, and Staller teaches the fire column, wherein the fire column comprises: a fire column base that selectively joins to the fire platform and defines an opening over the burner when joined to the fire platform (Fink, FIG. 1, the bottom of the tube includes a base portion and an opening for the flames of the burner to enter through); an inner transparent tube (Fink, FIG. 1, inner tube 210) affixed to the fire column base over the opening in the fire column to receive flame from the burner; a guard (Fink, FIG. 1, outer tube 220) affixed to the fire column base and concentrically surrounding the inner transparent tube; an upper fire column cap affixed to the inner transparent tube and the guard and defining an opening to allow escape of combustion products from the inner transparent tube (Fink, FIG. 1, the top structure that sits between the top of the tubes and the deflector 300); and a top heat reflector above the perforated exhaust diffuser (Fink, FIG. 1, deflector 300).
The combination of Frink, Enders, and Staller fails to teach a perforated exhaust diffuser above the upper fire column cap.
However, Staller teaches a perforated exhaust diffuser above the upper fire column cap (FIG. 2, diffuser plate 11).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by including a diffuser plate near the top of the column to ensure equal heat distribution before hitting the deflector, as taught by Staller, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Staller with the motivation of ensuring equal heat distribution.
Regarding claim 17, the combination of Frink, Enders, and Staller teaches the tabletop to surround the circular rim (Fink, FIG. 1, the tray 80 surrounds the rim of the burner 10 and the tubes), the tabletop defining a central opening having a profile conforming to the circular rim (Fink, FIG. 1, the tray 80 surrounds the opening of the burner).
Claim(s) 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frink, Enders, and Staller as applied to claims 1, 2, 4, 9, 10, 13, 15, 19, and 20 above, and further in view of Colsman (DE 202018104894 U1).
Regarding claim 6, the combination of Frink, Enders, and Staller fails to teach that the fire column is selectively fitted to the fire platform via a key slot arrangement.
However, Colsman teaches that the fire column is selectively fitted to the fire platform via a key slot arrangement (FIG. 5, the column is held in place via keyhole-shaped latch openings 15).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by including key slot holes to facilitate the installation of the column of Enders, as taught by Colsman, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Colsman with the motivation of making installation easier.
Regarding claim 7, the combination of Frink, Enders, Staller, and Colsman teaches that the fire column further comprises a fire column base affixed to a transparent tube and defining an opening into the tube for flame from the burner (Fink, FIG. 1, the bottom of the tube includes a base portion and an opening for the flames of the burner to enter through).
Regarding claim 8, the combination of Frink, Enders, Staller, and Colsman teaches that the fire column base defines a plurality of key slots selectively fitted to a plurality of keys on the fire platform to join the fire column to the fire platform (Colsman, FIG. 5, there are multiple keys and key slots).
Claim(s) 11 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frink, Enders, and Staller as applied to claims 1, 2, 4, 9, 10, 13, 15, 19, and 20 above, and further in view of Ma (CN 211903336 U).
Regarding claim 11, the combination of Frink, Enders, and Staller fails to teach that the base comprises a plurality of adjustable legs.
However, Ma teaches that the base comprises a plurality of adjustable legs (FIG. 1, feet 19, which may be adjusted).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by including adjustable feet and wheels, as taught by Ma, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Ma with the motivation of allowing a user to place the heater on an uneven surface and easily roll it around.
Regarding claim 12, the combination of Frink, Enders, Staller, and Ma teaches that the base further comprises a set of wheels (Ma, FIG. 1, wheels 18).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frink, Enders, and Staller as applied to claims 1, 2, 4, 9, 10, 13, 15, 19, and 20 above, and further in view of Mooshammer (AT 521754 A1).
Regarding claim 14, the combination of Frink, Enders, and Staller fails to teach that the burner is covered by a grate.
However, Mooshammer teaches that the burner is covered by a grate (FIG. 3, grate 14a).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by including a grate over the intake of the burner 10, as taught by Mooshammer, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Mooshammer with the motivation of preventing debris from entering the combustion chamber.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fink, Enders, and Staller as applied to claims 5, 16, and 17 above, and further in view of Ma.
Regarding claim 18, the combination of Frink, Enders, and Staller fails to teach a set of wheel and at least one adjustable leg affixed to the fire column base.
However, Ma teaches a set of wheel and at least one adjustable leg affixed to the fire column base (FIG. 1, wheels 18, and feet 19, which may be adjusted).
At the time the invention was effectively filed, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Frink by including adjustable feet and wheels, as taught by Ma, with a reasonable expectation of success of arriving at the claimed invention. At the time the invention was effectively filed, it would have been obvious to one of ordinary skill in the art to have modified Frink with these aforementioned teachings of Ma with the motivation of allowing a user to place the heater on an uneven surface and easily roll it around.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 WILLIAM C. WEINERT whose telephone number is (571)272-6988. The examiner can normally be reached 9:00-5:00 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Steve McAllister can be reached at (571) 272-6785. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WILLIAM C WEINERT/Examiner, Art Unit 3762
/Allen R. B. Schult/Primary Examiner, Art Unit 3762