Leapfrog cited in Ex parte Toulouse
The relevant claim involved an element directed to a thermistor:
a thermistor sensitive to temperature and
electrically connected to the electronic
management module for transmitting temperature
information to the electronic management module
which is arranged to manage the temperature
information supplied by the thermistor in order to
determine an operating period of the fan after
ignition according to the temperature information;
wherein the thermistor is positioned
rearward of said fan.
Appellants argue that in all embodiments, [the prior art] Ohmori places the
thermistor forward of the fan 14 and that such placement is required “to
ensure overheating protection of critical components” all of which are
located forward of the fan.
Contrary to Appellants’ argument, the Examiner did articulate a
rational basis for locating the sensor rearward of the fan, namely, “to
monitor the cooling time of the combustion chamber.” Ans. 4. While
Appellants argue that placing the sensor rearward of the fan would render it
no longer able to accurately measure the combustion chamber temperature,
they have offered no evidence to support their argument. Likewise, while
Appellants argue against the Examiner’s finding that locating the sensor
rearward would not change the operating principle of Ohmori (i.e., to protect
against overheating), Appellants offer no evidence to the contrary.
Elsewhere, Leapfrog is cited:
Nevertheless, Ohmori discloses an electronic management module
which determines the operating period of the fan. Ans. 3-4. We conclude
that it would have been obvious to replace the electrical circuit of Ohmori
with a processor as it is obvious “to update [a known electro-mechanical
device] using modern electronic components in order to gain the commonly
understood benefits of such adaptation, such as decreased size, increased
reliability, simplified operation, and reduced cost.” Leapfrog Enterprises
Inc. v. Fisher-Price Inc., 485 F.3d 1157, 1161-62 (Fed. Cir. 2007).
Therefore, we sustain the rejection of claim 12 under 35 U.S.C. § 103(a) as
unpatentable over Ohmori and Walter. However, because our affirmance
relies on reasoning not specifically used by the Examiner, we denominate
our affirmance a new ground of rejection under 37 C.F.R. § 41.50(b).