Ex Parte Benonysson

Patent Trial and Appeal Board

Mar 1, 2018

12066834 (P.T.A.B. Mar. 1, 2018)

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.
12/066,834 08/14/2008 Atli Benonysson 6495-0267WOUS 4543
35301 7590 03/05/2018
MCCORMICK, PAULDING & HUBER LLP
CITY PLACE II
185 ASYLUM STREET
HARTFORD, CT 06103
EXAMINER
RUSSELL, DEVON L
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
03/05/2018 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):
patentdocket @ ip-lawyers .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ATLI BENONYSSON
Appeal 2016-0001041
Application 12/066,8342
Technology Center 3700
Before MICHAEL C. ASTORINO, KENNETH G. SCHOPFER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1—4 and 6—14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Feb. 17,
2015) and Reply Brief (“Reply Br.,” filed Aug. 21, 2015), and the
Examiner’s Answer (“Ans.,” mailed June 24, 2015) and Non-Final Office
Action (“Non-Final Act.,” mailed June 16, 2014).
2 According to Appellant, the real party in interest is DANFOSS A/S.
Appeal Br. 2.
Appeal 2016-000104
Application 12/066,834
BACKGROUND
According to Appellant:
The invention concerns a heat exchanger with a housing
having arranged in it a primary side with a primary-side flow
path between an upstream connector and a downstream
connector and a secondary side with a secondary-side flow path
between an inflow connector and an outflow connector, wherein
the primary side and the secondary side stand in heat exchange
connection with one another along a heat exchange stretch with
a temperature sensor being arranged in the region of the outflow
connector.
Spec. 11.
REPRESENTATIVE CLAIM
Claim 1 is representative of the appealed claims and recites:
1. A heat exchanger with a housing, comprising:
a hot side with a hot-side flow path between an upstream
connector connected to a heater and a downstream connector;
a cold side with a cold-side flow path between an inflow
connector and an outflow connector;
wherein the hot side and the cold side stand in heat transfer
connection along a heat transfer stretch;
a first temperature sensor arranged in the cold-side flow
path in the region of the downstream connector for measuring a
first temperature of a fluid in the cold-side flow path;
a second temperature sensor arranged in the cold-side flow
path at the heat transfer stretch for measuring a second
temperature of the fluid in the cold-side flow path;
wherein both the first and second temperature sensors are
connected with an evaluation device;
wherein the second temperature sensor is connected with
a P controller, PI controller or P1D controller controlling a valve
that controls the flow through the hot-side flow path in
dependence on a temperature determined by the first temperature
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Application 12/066,834
sensor, with the second temperature sensor having an effect on
the amplification of at least one of a P, I or D control parameter
of the P controller, PI controller or PID controller.
Appeal Br. 19.
REJECTIONS
1. The Examiner rejects claims 1—4, 6, and 7 under 35 U.S.C. § 103(a) as
unpatentable over Weitman3 in view of Brunner.4
2. The Examiner rejects claim 8 under 35 U.S.C. § 103(a) as unpatentable
over Weitman in view of Brunner and Kirchberg.5
3. The Examiner rejects claims 9—14 under 35 U.S.C. § 103(a) as
unpatentable over Weitman in view of Brunner and Helin.6
DISCUSSION
Obviousness over Weitman and Brunner
Appellant groups claims 1—4, 6, and 7 together and presents
arguments only with respect to the rejection of claim 1. Accordingly, we
discuss the rejection of claim 1 below, and claims 2-4, 6, and 7 fall with
claim 1.
With respect to claim 1, the Examiner finds that Weitman discloses a
heat exchanger with a housing including a first side flow path, a second side
flow path, a first temperature sensor, and a second temperature sensor. Non-
Final Act. 3. The Examiner acknowledges that Weitman does not disclose
temperature sensors in the cold-side flow path in the heat transfer stretch or
3 Weitman, US 4,574,870, iss. Mar. 11, 1986.
4 Brunner, US 3,172,462, iss. Mar. 9, 1965.
5 Kirchberg, US 7,726,874 B2, iss. June 1, 2010.
6 Helin et al., US 2004/0134637 Al, pub. July 15, 2004.
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“that the controller uses P, PI, or PID control algorithms influenced by the
second temperature sensor.” Id. at 4. However, regarding the location of the
claimed temperature sensors in the cold-side flow path, the Examiner
concludes that it would have been obvious to rearrange the valve and
temperature sensors in the reverse configuration “in order to control for
highly variable sources of cold water instead of hot (e.g. on-demand, inline
water heaters) as such a rearrangement of parts would produce only expected
and predictable results.” Id. Further, the Examiner relies on Brunner as
follows:
Brunner discloses a heat exchanger wherein first (11, 9, or
53) and second (12 or 45) heat sensors (Fig. 1) are located in a
flow path. The second sensor (12 or 45) is located within the heat
transfer stretch (Fig. 1) in order to increase the response time of
the system (Col. 1, line 61-Col. 2, line 18) and influences the
parameters of a P or a PI controller (17 or 39). The signal input
to a proportional-integral calculator (e.g. 39) is inherently
amplified by the gain value of the proportional-integral
calculator to generate the P or I control value. Therefore, the
signal input (e.g. 11, 12, or 45) to the calculator (e.g. 17, 39) has
an effect on the amplification of the P or I parameter (e.g. 18,
40).
It would have been obvious to one of ordinary skill in the
art at the time of the invention to provide the heat exchanger of
Weitman with the second temperature sensor at the heat transfer
stretch and P or PI control, as taught by Brunner, in order to
increase the response time and accuracy of the system during
unexpected fluctuating flow or temperature input conditions.
Id. at 4—5.
Further, the Examiner finds that the equation that defines
proportional-integral control includes inputs that are multiplied by a gain
constant in order to generate the respective P, I, or D value. Ans. 10. Thus,
because the input (e.g., the second temperature sensor reading) is multiplied
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Application 12/066,834
by a constant, the Examiner concludes that the input necessarily has an
effect on the amplification of at least one of the P, I, or D parameter. Id.
As discussed below, we are not persuaded of reversible error by
Appellant’s arguments.
Appellant first argues that the “rejection based on Weitman is
deficient” at least because Weitman’s temperature sensors are not disposed
in the cold-side flow path as required by the claim. Appeal Br. 12.
Additionally, Appellant argues that “Weitman and Brunner do not teach or
suggest that the valve in the hot-side flow path is controlled by a controller
(P controller, PI controller or PID controller), as recited in claim 1.” Id. at
13. However, the rejection acknowledges these deficiencies, and the
Examiner concludes that the claimed configuration would have nonetheless
been an obvious “rearrangement of parts [that] would produce only expected
and predictable results.” See Non-Final Act. 4; see also Ans. 7—9.
Appellant’s arguments here do not address this conclusion, and thus, we are
not apprised of error by this argument.
Next, Appellant argues that it would not have been obvious to modify
Weitman to control the hot-side flow path instead of the cold-side flow path
“because such a modification would improperly change the principle of
operation of the Weitman system and render Weitman’s system inoperable
for its intended purpose.” Appeal Br. 12. In support, Appellant asserts that
“Weitman’s basic principle of operation is controlling the fresh water flow
(,i.e., cold-side flow) by adjusting valve position . . . such that [the
temperature relationship] is maintained at a constant.” Id. We are not
persuaded and agree with the Examiner’s response. See Ans. 8. Further, we
find that an intended purpose of Weitman is “to provide a method and
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apparatus for controlling the fluid flow through a heat exchanger” to
maintain operation substantially “at an optimal level. . . without the use of
making direct flow measurements.” Weitman col. 1,11. 50—58. Thus,
although Weitman discloses an embodiment in which the cold-side flow is
controlled, Weitman is ultimately concerned with maintaining operation
efficiency without making direct flow measurements. Appellant does not
persuade us that Weitman’s system would be inoperable with respect to this
purpose if the proposed modifications were made. Rather, although
Appellant points to one embodiment in which the cold-side flow is
controlled, we find that the same principles of heat exchange would apply
regardless of whether the hot or cold side flow is controlled based on the
temperatures recorded. See also Weitman col. 2,11. 33—37 (“As may be seen
heat exchanger 5 in this embodiment operates in the counter-current mode,
which is preferable in this embodiment, but the invention is advantageous
for use with all heat exchangers.”)
Next, Appellant argues “that Weitman and Brunner do not teach or
suggest that the second temperature sensor has an effect on the amplification
of at least one parameter ... of the controller . . . that controls the valve in
the hot-side flow path.” Appeal Br. 13. In particular, Appellant disagrees
with the Examiner’s finding that the input signal to the proportional-integral
calculator in Weitman is “inherently amplified by the gain value of the
proportional-integral calculator to generate the P or 1 control value.” Id.
(quoting Non-Final Act. 5). Appellant “submits that there is no reason why
the signal input. . . must necessarily be amplified by a gain value of the
proportional-integral calculator to generate the P or 1 control value.” Id. at
14. The Examiner responds that the second temperature is input into the
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equation that defines proportional-integral-derivative control and that all of
the inputs are modified by a gain constant (i.e., amplified) in order to
generate the P, I, or D value. Ans. 10. Thus, because the second
temperature is modified by the gain constant, the second temperature input
necessarily has an effect on the amplification of the P, I, or D control
parameter. We note that Appellant does not respond to the Examiner’s
findings on this issue, and we find that a preponderance of the evidence
supports the Examiner’s position. Thus, we are not persuaded of error by
Appellant’s argument.
Finally, we note that Appellant raises arguments in the Reply Brief
that were not previously raised. Without further explanation from
Appellant, we find that those arguments could and should have been raised
in the Appeal Brief. In particular, Appellant alleges for the first time in the
Reply Brief that each of the rejections before us are based on impermissible
hindsight. See Reply Br. 4—10. We decline to consider those arguments
here as Appellant has not shown good cause for presenting them in the
Reply Brief for the first time. See 37 C.F.R. § 41.41(b)(2).
Based on the foregoing, we are not persuaded of reversible error with
respect to the rejection of claim 1. Accordingly, we sustain the rejection of
claim 1. We also sustain the rejection of claims 2—4, 6, and 7, which fall
with claim 1.
Obviousness over Weitman, Brunner, and Kirchberg
With respect to claim 8, the Examiner finds that Weitman discloses a
method as claimed except that Weitman does not disclose temperature
sensors in the heat transfer stretch and an evaluation device determining a
temperature difference between the two flow paths. Non-Final Act. 6. With
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respect to the location of the temperature sensors, the Examiner relies on
Brunner as follows:
Brunner discloses the placement of temperature sensors
along the heat transfer stretch in heat exchangers (Figs. 1 and 2)
in order to increase the response time of the controlling device(s)
(Col. 1, line 61-Col. 2, line 18).
It would have been obvious to one of ordinary skill in the
art at the time of the invention to provide the first and/or second
temperature sensor of Weitman at the heat transfer stretch, as
taught by Brunner, in order to allow for a more responsive
control algorithm.
Id. Regarding the evaluation device, the Examiner relies on Kirchberg as
follows:
Kirchberg discloses an evaluation device which utilizes a
temperature difference calculated between two flow paths of a
heat exchanger (Col. 4:40-42) in order to detect fouling of the
device (e.g. abstract).
It would have been obvious to one of ordinary skill in the
art at the time of the invention to determine the temperature
difference between the two flow paths of Weitman in order to
detect fouling in the device.
Id.
As discussed below, we are not persuaded of reversible error by
Appellant’s arguments.
First, Appellant argues that the proposed combination, including the
proposal that Weitman’s temperature sensors be moved to the heat transfer
stretches based on Brunner, “would improperly change the principle of
operation of the Weitman system and render Weitman’s system inoperable
for its intended purpose.” Appeal Br. 15. Appellant reiterates that
“Weitman’s basic principle of operation is controlling the fresh water flow
... by adjusting valve position . . . such that [the temperature relationship] is
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maintained at a constant.” Id. Appellant asserts that this is accomplished by
measuring temperature at both cold and warm water inlets and outlets, and
not at the heat transfer stretches. Id. However, we find that Appellant does
not adequately explain why measuring the temperatures at different locations
would improperly change the principle of operation of Weitman. In
particular, we are not persuaded that the same general principles for
maintaining a constant temperature relationship would not apply if the
locations of the temperature measurements were changed. Further, as found
above, the intended purpose of Weitman is “to provide a method and
apparatus for controlling the fluid flow through a heat exchanger” to
maintain operation substantially “at an optimal level. . . without the use of
making direct flow measurements.” Weitman col. 1,11. 50—58. As
discussed above, we are not persuaded by Appellant’s argument that this
intended purpose would be defeated by the proposed modification.
Next, Appellant argues that the Examiner erred in concluding “that it
would have been obvious to determine a temperature difference between the
primary-side flow path and the secondary-side flow path as recited in claim
8 based on the teachings of Kirchberg.” Appeal Br. 15. In support,
Appellant asserts that Kirchberg only determines a temperature difference at
the inlet and outlet and not by means of sensors at the heat transfer stretch.
Id. We are not persuaded of error because Appellant argues only that
Kirchberg individually does not show measuring temperatures at the heat
transfer stretch to determine a temperature difference, whereas the rejection
relies on the combined teachings of Weitman, Brunner, and Kirchberg to
show that the determination of a temperature difference based on
measurements taken at the heat transfer stretch would have been obvious.
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Based on the foregoing, we are not persuaded of error in the rejection
of claim 8. Accordingly, we sustain the rejection of claim 8.
Obviousness over Weitman, Brunner, and Helin
With respect to this rejection, Appellant raises arguments only with
respect to claim 9. See Appeal Br. 16—18. Accordingly, we discuss only
claim 9 below, and claims 10—14 fall therewith.
With respect to claim 9, the Examiner relies on the findings set forth
above with respect to claim 1 and acknowledges that the combination of
Weitman and Brunner does not disclose that the heat exchanger is formed
from at least three bent sheets forming a honeycomb structure. Non-Final
Act. 7. With respect to this claim requirement, the Examiner finds that
Helin discloses a heat exchanger with the claimed structure, and the
Examiner concludes that it would have been obvious to use such a structure
with the combined teachings of Weitman and Brunner. Id. (citing Helin
Figs. 5-7).
As discussed below, we are not persuaded of reversible error by
Appellant’s arguments regarding this rejection.
Here, Appellant first argues that although Brunner teaches measuring
temperature in the heat transfer stretch, Brunner does not teach that the
sensors are disposed inside the flow paths at the heat transfer stretch.
Appeal Br. 16—17. Appellant asserts that “[pjlacing the temperature sensor
inside the cold-side flow path at the heat transfer stretch makes access to the
temperature sensor more difficult, which makes manufacturing and repairing
the heat exchanger more difficult.” Id. at 17. We are not persuaded of error.
First, we note that Appellant provides no evidence showing that the
placement of temperature sensors in the heat transfer stretch makes
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manufacturing and repair more difficult. Attorney argument is not evidence.
Second, although Brunner may not explicitly disclose that the temperature
sensors are disposed inside the flow paths, Brunner does disclose that the
temperature within the heat transfer stretch is measured. It is not clear to us
how the temperature could be measured without placing a sensor within the
flow path in the heat transfer stretch.
Next, Appellant argues that it would not have been obvious to move
the temperature sensors in Weitman to the heat transfer stretch inside a
honeycomb structure as claimed because moving the sensors “would require
boring through the plates or other alternative manufacturing techniques
which would make manufacture of the heat exchanger more difficult.”
Appeal Br. 17. We are not persuaded. Again, Appellant provides no
evidence that the proposed modification would create manufacturing
difficulties. Rather, we agree with the Examiner that the alleged difficulty
does not appear to be significantly more difficult than placing the sensors in
a pipe along some other portion of the heat transfer stretch or along the inlet
and outlet pipes. See Ans. 13. Further, the fact that the process of
manufacturing might be difficult is not alone sufficient to show that the
modification would not have been obvious. See id.
Based on the foregoing, we are not persuaded of error with respect to
the rejection of claim 9. Accordingly, we sustain the rejection of claim 9.
We also sustain the rejection of claims 10—14, which fall with claim 9.
CONCLUSION
We AFFIRM the rejections of claims 1—4 and 6—14 for the reasons
discussed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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