DETAILED ACTION
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 .
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 use the word “means,” and are 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 “means” coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Claim limitation “control means” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “means” coupled with functional language “selectively activating only one of said radiator heater and misting nozzles at a given time” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claims 1-5 and 7-11 have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof. Note claim 6 includes enough structure to perform the claimed function and is therefore note being interpreted under 35 USC 112(f).
Claim limitation “means for detecting an inflow of air to the heater and preventing activation of said heater if no inflow of air is detected” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “means” coupled with functional language “detecting an inflow of air to the heater and preventing activation of said heater if no inflow of air is detected” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
Since the claim limitation(s) invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, Claim 7 has been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof. interpreted under 35 USC 112(f).
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
Control means→ a manually operable device remote from said housing with a control element for individually selecting heat, mist and off conditions for said device
means for detecting an inflow of air to the heater and preventing activation of said heater if no inflow of air is detected → air flow proving switch 34
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim Objections
Claim 2 is objected to because of the following informalities: in line 3, the word, “selective” should be replaced with the word, “selected”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by EP1760398 to Pages et al., hereinafter referred to as Pages, (see English language translation provided herewith).
In reference to claim 1, Pages discloses the claimed invention including:
an overhead mountable temperature-control appliance comprising:
a housing (4 and 10 collectively comprise the housing);
a fuel-fired (note gas burner and solenoid supply gas implies that the heater is fuel fired) infrared (implied by the disclosure of radiant heat) radiator heater (11/12) disposed within the housing;
a series of water supplied misting nozzles (20, see underlined portion of page 2 of the English language translation where one or more nozzles are disclosed), mounted on the housing (4); and
control means (31/32) for selectively activating only one of said radiator heater and misting nozzles at a given time (see underlined portion of page 3 of the English language translation where operating the misting unit alone is disclosed).
In reference to claim 2, Pages discloses the claimed invention including:
the radiator heater comprises a fuel/air plenum (5) and a radiator element mounted (11/12) on the plenum for generating radiant heat when selected and supplied with fuel and air.
In reference to claim 6, Pages discloses the claimed invention including:
the control means comprises a manually operable device (3) remote from said housing with a control element for individually selecting heat (31), mist and off conditions (32) for said device.
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 3-5, 8, 10, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Pages in view of US9,709,265 to Sutherland et al., hereinafter referred to as Sutherland.
In reference to claim 3, Pages and Sutherland disclose the claimed invention.
Pages fails to disclose the radiator element is made of porous foam metal.
Sutherland teaches that in the analogous art of residential gas burners, that it is a known method to provide the heat radiating element with a metal foam matrix burner (22). This is strong evidence that modifying (the base reference) as claimed would produce predictable results (i.e., high radiation heat transfer, a wide operating range, even heat transfer and flame temperatures, as well as increased flame stability with lower combustion zone temperatures, which leads to a reduction in NOx and CO formations, see column 1, lines 29-34). Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify Pages by Sutherland such that the radiator element is made of porous foam metal, since all claimed elements were known in the art, and one having ordinary skill in the art could have modified the prior art as claimed by known methods with no changes in their respective functions and the combination would have yielded a predictable result of high radiation heat transfer, a wide operating range, even heat transfer and flame temperatures, as well as increased flame stability with lower combustion zone temperatures, which leads to a reduction in NOx and CO formations.
In reference to claim 4, Pages and Sutherland disclose the claimed invention.
Pages as modified supra fails to disclose the radiator element is semi-cylindrical. However, there is no evidence of record that the shape of the radiator element being semi-cylindrical as opposed to fully cylindrical is significant in any way nor would it appear to do anything more than what is predictable in the art (i.e. radiate heat energy in a desired direction). Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify the radiator element of Pages and Sutherland such that, the radiator element is semi-cylindrical since it has been held that a change in shape that does not produce a significant result is a matter of design choice, see MPEP 2144.04(IV)(B).
In reference to claim 5, Pages and Sutherland disclose the claimed invention.
Pages as modified supra fails to disclose the combination of the plenum (5) and radiator element when mounted together is substantially cylindrical. However, there is no evidence of record that the combination of the plenum and radiator element when mounted together being substantially cylindrical is significant in any way nor would it appear to do anything more than what is predictable in the art (i.e. radiate heat energy in a desired direction). Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify the radiator element of Pages and Sutherland such that, the combination of the plenum and radiator element when mounted together is substantially cylindrical since it has been held that a change in shape that does not produce a significant result is a matter of design choice, see MPEP 2144.04(IV)(B).
In reference to claim 8, Pages and Sutherland disclose the claimed invention.
Pages discloses a fuel fired patio heating appliance with misting capability for evaporative cooling comprising:
a housing (4 and 10 collectively comprise the housing) mountable over a gathering area;
a burner assembly (11/12) disposed within the housing for directing radiant heat from the housing toward the gathering area and comprising a burner element (11/12) having an element oriented to radiate heat downwardly toward the gathering area, see figure 1;
an ignitor device (6) associated with the burner element for igniting a fuel air mixture supplied to said burner; and
an array of misting nozzles (20, see underlined portion of page 2 of the English language translation where one or more nozzles are disclosed) carried by the housing;
a fuel supply for the burner (implied by the disclosure of gas);
a water supply (21/22) for the misting nozzles; and
control means (31/32) for selectively operating one of said burn and missing nozzles at any given time, (see underlined portion of page 3 of the English language translation where operating the misting unit alone is disclosed).
Pages fails to disclose the burner element having a foam metal burner element. Sutherland teaches that in the analogous art of residential gas burners, that it is a known method to provide the heat radiating element with a foam metal burner element (22). This is strong evidence that modifying (the base reference) as claimed would produce predictable results (i.e., high radiation heat transfer, a wide operating range, even heat transfer and flame temperatures, as well as increased flame stability with lower combustion zone temperatures, which leads to a reduction in NOx and CO formations, see column 1, lines 29-34). Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify Pages by Sutherland such that the radiator element is made of porous foam metal, since all claimed elements were known in the art, and one having ordinary skill in the art could have modified the prior art as claimed by known methods with no changes in their respective functions and the combination would have yielded a predictable result of high radiation heat transfer, a wide operating range, even heat transfer and flame temperatures, as well as increased flame stability with lower combustion zone temperatures, which leads to a reduction in NOx and CO formations.
In reference to claim 10, Pages and Sutherland disclose the claimed invention.
Pages is silent regarding the composition of the fuel supply to said burner. However, Sutherland teaches that natural gas is a material known to be suitable for the intended purpose of fuel for a radiant heater, see column 1 lines 41-49. Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to select natural gas as the fuel for the burner of Pages, since it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination, see MPEP 2144.07.
In reference to claim 11, Pages and Sutherland disclose the claimed invention.
Pages as modified supra does not disclose the burner element is substantially cylindrical and the foam metal radiator element is substantially semi-cylindrical. However, there is no evidence of record that the burner element being substantially cylindrical and the foam metal radiator element is substantially semi-cylindrical is significant in any way nor would it appear to do anything more than what is predictable in the art (i.e. radiate heat energy in a desired direction). Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify the radiator element of Pages and Sutherland such that, burner element is substantially cylindrical and the foam metal radiator element is substantially semi-cylindrical since it has been held that a change in shape that does not produce a significant result is a matter of design choice, see MPEP 2144.04(IV)(B).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Pages in view of US2018/0259223 to Reed et al., hereinafter referred to as Reed.
In reference to claim 7, Pages and Reed disclose the claimed invention.
Pages fails to disclose a fan for suppling air to the heater when selected and means for detecting an inflow of air to the heater and preventing activation of said heater if no inflow of air is detected
However, Reed teaches that it is a known method in the art of fuel fired heating appliances to provide the heater with a fan (30) for suppling air to the heater when selected and means (switch/sensor 55/57) for detecting an inflow of air to the heater and preventing activation of said heater if no inflow of air is detected [0055 & 0060]. This is strong evidence that modifying Pages as claimed would produce predictable results (i.e., ensure that the air flow to the burner surface is sufficient to support stable ignition). Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify Pages by Reed such that the heater included a fan for suppling air to the heater when selected and means for detecting an inflow of air to the heater and preventing activation of said heater if no inflow of air is detected since all claimed elements were known in the art, and one having ordinary skill in the art could have modified the prior art as claimed by known methods with no changes in their respective functions and the combination would have yielded a predictable result of ensuring that the air flow to the burner surface is sufficient to support stable ignition.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Pages in view of Sutherland, and in further view of US 2021/0190322 to Wortman et al., hereinafter referred to as Wortman.
In reference to claim 9, Pages, Sutherland, and Wortman disclose the claimed invention.
Pages discloses the housing has an open bottom (as seen in figure 1);
said radiator element (11/12) being mounted within the housing in a fashion to direct radiate heat therefrom downwardly and outwardly toward a gathering area, see figure 1.
Pages fails to disclose the housing is made of steel. However, Wortman teaches that steel is known to be suitable for the intended purpose of radiant heater housings, see [0049]. Accordingly, it would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed, to modify the housing of Pages such that the housing was made of steel, since it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination, see MPEP 2144.07.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US2008/0006263 to Seichei directed towards a hybrid radiant heater and mister combination.
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/CASSEY D BAUER/ Primary Examiner, Art Unit 3763
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