Airia Leasing Inc.

Patent Trials and Appeals Board

Feb 22, 2021

2020004147 (P.T.A.B. Feb. 22, 2021)

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.
14/016,519 09/03/2013 Peter Karl GRINBERGS 274-7 6759
24336 7590 02/22/2021
TUTUNJIAN & BITETTO, P.C.
401 Broadhollow Road, Suite 402
Melville, NY 11747
EXAMINER
DUONG, THO V
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
02/22/2021 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):
docketing@tb-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER KARL GRINBERGS, WILLIAM KWAN, and
GERARD REIGER
Appeal 2020-004147
Application 14/016,519
Technology Center 3700

Before BRETT C. MARTIN, JEREMY M. PLENZLER, and
CARL M. DEFRANCO, Administrative Patent Judges.

PLENZLER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 3–5, 7, 8, 14, 17, 19, 23, 24, 26, 29, 30,
and 32. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE and enter a NEW GROUND OF REJECTION in
accordance with 37 C.F.R. § 41.50(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Airia Leasing Inc.
Appeal Br. 3.
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Application 14/016,519

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CLAIMED SUBJECT MATTER
The claims are directed to a heat exchanger. Claim 4, reproduced
below, is illustrative of the claimed subject matter:
4. An apparatus, comprising:
a core configured for use in an energy exchanger, the
core including a plurality of stacked and spaced planar plate
pairs including a top plate and a bottom plate, the core
supporting a first fluid flow from a first inlet to a first outlet and
a second fluid flow from a second inlet to a second outlet, each
plate having a middle section between substantially parallel
outside edges;
a plurality of fluid directing rails spaced apart at intervals
between the outside edges throughout the middle section of
each plate, the fluid directing rails being substantially parallel to
the outside edges of the plate and being configured to provide
counter current energy exchange in the core such that the first
fluid flow and the second fluid flow are opposite to each other
in areas proximate to the fluid directing rails; and
a plurality of dimples formed in the plurality of stacked
and spaced planar plate pairs, the plurality of dimples being
arranged to generate substantially counter current flow between
the first fluid flow and the second fluid flow, the plurality of
dimples including instances of the plurality of dimples of the
top plate are configured to protrude into the fluid flow, which
rests against instances of the plurality of dimples protruding
into the bottom plate, to establish gaps, and the gaps are
operative for providing spacing between the bottom plate and
the top plate, thereby allowing for condensate drainage from
any one of the first fluid flow and the second fluid flow in any
plate orientation.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Zebuhr US 4,043,388 Aug. 23, 1977
Endou US 6,155,338 Dec. 5, 2000
Kammerzell US 2009/0114369 A1 May 7, 2009
REJECTIONS
Claims 3–5, 7, 8, 14, 17, 19, 23, 24, 26, 29, and 30 are rejected under
35 U.S.C. § 102(b) as being anticipated by Zebuhr.
Claims 3–5, 7, 8, 14, 17, 19, 23, 24, 26, 29, 30 and 32 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Endou and
Kammerzell.
OPINION
New Ground of Rejection – Indefiniteness
Claims 4 and 23 are independent. Each claim recites a “core
including a plurality of stacked and spaced planar plate pairs including a top
plate and a bottom plate,” with “the core supporting a first fluid flow from a
first inlet to a first outlet and a second fluid flow from a second inlet to a
second outlet” in some unspecified way. There is no recitation of any
particular structure of the plate pairs that defines fluid flow paths for the first
and second fluid flow or where the inlets and outlets are located.
The claims additionally recite “fluid directing rails spaced apart at
intervals between the outside edges throughout the middle section of each
plate” that are “substantially parallel to the outside edges of the plate and . . .
configured to provide counter current energy exchange in the core such that
the first fluid flow and the second fluid flow are opposite to each other in
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areas proximate to the fluid directing rails.” The claims also include
“dimples being formed in the plurality of stacked and spaced planar plate
pairs . . . arranged . . . to generate substantially counter current flow between
the first fluid flow and the second fluid flow.”
That is, the claims generally require a core with plate pairs, where the
core (in some unspecified way without reference to the plate pairs)
“supports” flow from first and second inlets to first and second outlets, fluid
directing rails on each plate (in some unspecified way) that cause the first
and second flows to be opposite one another, and dimples arranged on the
plate pairs (in some unspecified way) that generate counter current flow
between the first and second fluid flows.
We are left to infer that adjacent plate pairs have fluid directing rails
oriented in the same manner as one another. We have no guidance as to
where the dimples are located on the various plates or how they are
arranged, other than that they are “arranged to generate substantially counter
current flow.” The claims are silent as to where the first and second inlets
and outlets are located relative to any particular plate/plate pair, let alone any
detail as to how these inlets and outlets are arranged relative to the fluid
directing rails or dimples. The claims are essentially a collection of
elements that are not sufficiently interrelated in a manner to reasonably
understand what is required by the recited structure. Indeed, it is a major
point of dispute between Appellant and the Examiner as to whether the prior
art dimples and rails meet the claim limitations. See, e.g., Appeal Br. 13–15.
A claim is properly rejected as indefinite if, after applying the
broadest reasonable interpretation in light of the specification, the metes and
bounds of a claim are not clear because the claim contains words or phrases
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Application 14/016,519

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whose meaning is unclear. In re Packard, 751 F.3d 1307, 1310 (Fed. Cir.
2014) (per curiam); see also Ex parte McAward, Appeal No. 2015-006416,
2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential) (adopting the
approach for assessing indefiniteness approved by the Federal Circuit in
Packard). Based on our review of the record, we are left to wonder what is
required to meet the claim language. We decline to resort to speculation or
assumptions, particularly where, as explained below, the written description
and drawings are so unclear. Accordingly, we determine that the claims are
sufficiently unclear to warrant a rejection under 35 U.S.C. § 112, second
paragraph, as being indefinite. Appellant has the opportunity to resolve
ambiguities during prosecution. See, e.g., McAward, at *6–7.
For the reasons set forth above, we reject claims 3–5, 7, 8, 14, 17, 19,
23, 24, 26, 29, 30, and 32 under 35 U.S.C. § 112, second paragraph, as being
indefinite.
Moreover, even looking to the Specification, we cannot clearly
discern the structure required to meet the claim language, as the written
description is vague and the drawings provide little help to understand the
recited structure due to their lack of clarity. That is, even reading limitations
into the claims from the Specification results in an unacceptable lack of
clarity.
Appellant identifies Figures 2, 3A–D, reproduced below, as
illustrating the features recited in the claims.2 Appeal Br. 5–7.

2 The poor resolution of the figures is not due to our reproduction, but,
rather, is present in the drawings as filed by Appellant. Appellant also
identifies Figures 4A–D as illustrating the features recited in the claims, but
we note that the species of Figures 1–3E was elected during prosecution.
See Non-Final Act. dated July 5, 2016.
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Figure 2 “is a modelled representation of an ideal fluid flow pattern in a
core.” Spec. ¶ 16.
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Figures 3A–D “are illustrations of a planar plate core according to one
embodiment.” Spec. ¶ 17. In the embodiment of Figures 3A–D, we see
dimples 30, but no rails 16.
The only discussion of fluid directing rails with respect to the above
embodiment is found in paragraph 27 of the Specification. Paragraph 27,
which references Figure 2, simply states that “[t]he core 18 is designed to
provide counter current heat exchange in a middle region of the core 18,”
which “can be achieved with extended length fluid directing rails 16
arranged in a middle of the core 18, defined as being between dotted lines 19
of the core 18.” Although seen in the “modelled representation of an ideal
fluid flow pattern” of Figure 2, it is unclear how these relate to the dimples.
Indeed, it is unclear where both the dimples and rails exist, or how each is
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configured to provide “counter current energy exchange” or arranged to
provide “counter current flow.”
Figure 3E, reproduced below, “is a modelled simulation of fluid flow
for the core of Figs. 3A-3D.” Spec. ¶ 18.

As noted above, Figure 3E illustrates a fluid flow pattern provided by the
plate arrangement of Figures 3A–D. According to the Specification,
“[w]arm air enters 10 from the top left side of the planar plate core 29 and
exits from the bottom right side” and “[t]he cold air flow 12 enters from the
top right side and exits through the bottom left side of the planar plate core
29.” Spec. ¶ 29. The Specification further explains that “the planar plate
core 29 is effectively counter flow near the outside edges while the flow near
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the center of the core essentially goes straight from the inlet to the outlet”
and “[t]he hot and cold fluid angles approach each other at approximately
120 degrees rather than at 180 degrees.” Id. It appears that the dimple
pattern shown above in Figures 3A–D is the same at the outer edges and at
the center of the plates. That is, the fluid flow pattern must not only be
dependent on the arrangement of the dimples, but also the location of the
fluid inlets and outlets, as well as the particular region where the dimples are
located. Yet, even the discussion noted above provides little detail as to how
the actual plate structure is arranged to achieve the fluid flow pattern noted
above.
Anticipation and Obviousness Rejections
Because we determine the claims to be indefinite, and addressing the
limitations of the claims would require speculation on our part, we do not
reach the merits of the anticipation and obviousness rejections related to
claims 3–5, 7, 8, 14, 17, 19, 23, 24, 26, 29, 30, and 32. Instead, we reverse
those rejections. See In re Aoyama, 656 F.3d 1293, 1300 (Fed. Cir. 2011)
(holding that the Board erred in affirming an anticipation rejection of
indefinite claims); In re Steele, 305 F.2d 859, 862 (CCPA 1962) (holding
that the Board erred in affirming a rejection of indefinite claims under 35
U.S.C. § 103(a), because the rejection was based on speculative assumptions
as to the meaning of the claims). It should be understood, however, that our
decision in this regard is based solely on the indefiniteness of the claimed
subject matter, and does not reflect on the adequacy of the prior art evidence
applied in support of the rejection.
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CONCLUSION
The Examiner’s rejections are reversed. We enter a new ground of
rejection based on indefiniteness.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed New
Ground
3–5, 7, 8,
14, 17, 19,
23, 24, 26,
29, 30
102(b) Zebuhr 3–5, 7, 8,
14, 17,
19, 23,
24, 26,
29, 30

3–5, 7, 8,
14, 17, 19,
23, 24, 26,
29, 30, 32
103(a) Endou,
Kammerzell
3–5, 7, 8,
14, 17,
19, 23,
24, 26,
29, 30,
32

3–5, 7, 8,
14, 17, 19,
23, 24, 26,
29, 30, 32
112, second
paragraph
Indefiniteness 3–5, 7,
8, 14,
17, 19,
23, 24,
26, 29,
30, 32
Overall
Outcome
3–5, 7, 8,
14, 17,
19, 23,
24, 26,
29, 30,
32
3–5, 7,
8, 14,
17, 19,
23, 24,
26, 29,
30, 32

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Application 14/016,519

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TIME PERIOD FOR RESPONSE
Section 41.50(b) provides “[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM
THE DATE OF THE DECISION, must exercise one of the following two
options with respect to the new grounds of rejection to avoid termination of
the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
REVERSED; 37 C.F.R. § 41.50(b)