Ex Parte Bercea et alDownload PDFPatent Trial and Appeal BoardAug 30, 201711660943 (P.T.A.B. Aug. 30, 2017) Copy Citation 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. 11/660,943 02/23/2007 Emil Bercea 65040-256104 7494 141164 7590 09/01/2017 Barnes & Thornburg LLP (ABB) 11 S. Meridian Street Indianapolis, IN 46204 EXAMINER CIRIC, LJILJANA V ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 09/01/2017 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): INDocket@btlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte EMIL BERCEA and BO ASTROM Appeal 2015-007879 Application 11/660,943 Technology Center 3700 Before JOHN C. KERINS, GEORGE R. HOSKINS, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Emil Bercea and Bo Astrom (“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—14.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 Appellants submit the real party in interest is ABB Technology AG. Appeal Br. 2. Appeal 2015-007879 Application 11/660,943 THE CLAIMED SUBJECT MATTER Claims 1 and 8 are independent and reproduced below. 1. A heat exchanger for a transformer, comprising: a heat exchanging element including: a feed element having a first opening; and a discharge element having a second opening, the heat exchanging element being configured for introducing a heat exchange medium feed current into the heat exchanging element via the feed element and discharging a heat exchange medium discharge current from the heat exchanging element via the discharge element; a first temperature measurement device arranged in the first opening for insertion in the heat exchange medium feed current for measuring a temperature of the heat exchange medium feed current; and a second temperature measurement device arranged in the second opening for insertion in the heat exchange medium discharge current for measuring a temperature of the heat exchange medium discharge current. 8. A heat exchanger for a transformer, comprising: a heat exchanging element including: a feed socket having a first opening; and a discharge socket having a second opening, the heat exchanging element being configured for introducing a heat exchange medium feed current into the heat exchanging element via the feed socket and discharging a heat exchange medium discharge current from the heat exchanging element via the discharge socket; a first temperature measurement device arranged in the first opening for insertion in the heat exchange medium feed current for measuring a temperature of the heat exchange medium feed current; and a second temperature measurement device arranged in the second opening for insertion in the heat exchange medium 2 Appeal 2015-007879 Application 11/660,943 discharge current for measuring a temperature of the heat exchange medium discharge current. REJECTIONS2 1) Claims 1—14 are rejected under 35 U.S.C. § 112, second paragraph as being indefinite. 2) Claims 6 and 13 are rejected under 35 U.S.C. § 112, second paragraph as being indefinite. 3) Claims 1 and 8 are rejected under 35 U.S.C. § 102(b) as anticipated by Rodriguez (US 4,512,387, issued Apr. 23, 1985). 4) Claims 4—6 and 11—13 are rejected under 35 U.S.C. § 103(a) as unpatentable over Rodriguez. DISCUSSION Rejection 1 The Examiner recites various elements of claims3 1 and 8 and deems the elements unclear but does not provide an explanation of the basis for the rejection. Final Act. 5. Appellants respond that “claims 1 and 8 are clear as written.” Appeal Br. 3. We do not sustain the rejection of claims 1—14 under 35 U.S.C. § 112, second paragraph, because the Examiner has not identified a reason why the claims are unclear. 2 Claims 2, 3, 7, 9, 10, and 14 are indicated to be allowable if rewritten to overcome the rejection under 35 U.S.C. § 112, second paragraph and to include all of the limitations of the base claim and any intervening claims. Final Act. 7. 3 This decision is based on the Claims Appendix filed January 30, 2015 in response to the Notice of Non-Compliant Appeal Brief mailed January 14, 2015. 3 Appeal 2015-007879 Application 11/660,943 Rejection 2 The Examiner separately rejects claim 6 and claim 13 under 35 U.S.C. §112, second paragraph because it is not “clear which of the previously recited ‘first temperature measurement device’ and ‘second temperature measurement device’ is intended to be referred to by the limitation ‘the temperature measuring device.’” Final Act. 5. Appellants do not address this rejection. See Appeal Br. 3. Appellants, thus, waive any argument of error, and we summarily sustain the rejection of claims 6 and 13. In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (holding that the Board did not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the applicant failed to contest the rejection on appeal); Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance without consideration of the substantive merits is appropriate where an appellant fails to contest a ground of rejection). Rejection 3 The dispute in this rejection is centered on the limitations in claims 1 and 8 of “a first temperature measurement device arranged in the first opening” and “a second temperature measurement device arranged in the second opening.” In claim 1, the first and second openings are provided in a feed element and a discharge element, respectively. In claim 8, the first and second openings are provided in a feed socket and a discharge socket respectively. For reasons discussed in detail below, the difference in reciting “elements,” on the one hand, and “sockets,” on the other hand, leads to a difference in the disposition of claims 1 and 8 for this rejection. 4 Appeal 2015-007879 Application 11/660,943 The Examiner finds that Rodriguez discloses a first temperature measurement device 60 arranged in a first opening in feed piping 41 and a second temperature measurement device 64 arranged in a second opening in discharge piping 42. Final Act. 6. Appellants are in agreement that the temperature measurement devices 60 and 64 are located in piping 41 and 42 but maintain that this is not all that the claim requires. Appeal Br. 6 (citing Rodriguez, Fig. 3). Appellants contend that the claim limitations do not read on Rodriguez because the temperature sensors in Rodriguez “are not located in the . . . heat exchanger 10 as required by . . . claim 1.” Appeal Br. 7. The Examiner responds that The claims as written merely require that the inventive heat exchanger comprise [s] a heat exchanging element which in turn includes the various claimed elements. Rodriguez . . . discloses a heat exchanger 10 for a transformer 30 where the heat exchanger 10 comprises “a heat exchanging element” including the various claimed elements. The circuit including piping 41 and 42 of Rodriguez ... is readable on the aforementioned “heat exchanging element.” Ans. 3. Claim 8 Appellants’ Specification provides that “feed socket 12 . . . has a first flange 18 provided, in particular, for direct connection to the power transformer or a connecting pipe of the coolant circuit.” Spec. 5,11. 23—28. The Specification also provides that “first opening 24 is disposed in the feed socket 12” “at the interface between the pipe section and the cooler element 16.” Id. at 6,11. 16—18. Appellants’ Figure 1 shows a flange at the left hand side of feed socket 12 with a portion of piping between the flange and cooler 16. Id. at Fig. 1. The Specification also provides that “a second opening 30 is disposed on a lowly point of the pipe section of the discharge socket 22.” 5 Appeal 2015-007879 Application 11/660,943 Id. at 7,11. 33—35. Based on the foregoing, we determine that the terms “feed socket” and “discharge socket” in claim 8 include the piping and flanges at the top and bottom of cooler 10 in Figure 1. Rodriguez discloses a heat exchanger 10 with flanges at the inlet 35 and outlet 34 connected to piping 41 and 42. Rodriguez, Fig. 2, 5:20-23. Rodriguez discloses water temperature sensors 60 and 64 located in piping 41 and 42. Id. at 6:7—8, Fig. 3. We do not sustain the rejection of claim 8 because a preponderance of the evidence does not establish that Rodriguez discloses “a first temperature measurement device arranged in the first opening” of the feed socket or “a second temperature measurement device arranged in the second opening” of the discharge socket, as we have construed those claim terms. It is apparent, from Figures 2 and 3 of Rodriguez, that sensors 60 and 64 are located in piping 41 and 42, not in sockets 34 and 35 of heat exchanger 10. See, e.g., Spec. 3:3—20 (“[t]he previously known pipe sections with, respectively, a temperature measuring instrument which, according to the previously known prior art, has been flange-connected to the heat exchanger, are thus dispensed with”). Claim 1 Claim 1 requires “a feed element having a first opening” and “a discharge element having a second opening.” Appellants do not offer a proposed construction of these terms to support the argument that Rodriguez does not anticipate claim 1 because “the temperature sensors are not located in . . . the heat exchanger.” Appeal Br. 7. As noted above, Appellants’ Specification discloses a first opening located in a pipe section leading to the cooler and a second opening located in the pipe section leading from the 6 Appeal 2015-007879 Application 11/660,943 cooler. Appellants do not direct us to any part of the Specification where temperature sensors are located “in” the heat exchanging element. See Appeal Br. 4—7. We determine that the broadest reasonable interpretation of the terms “a feed element having a first opening” and “a discharge element having a second opening” does not require that the first opening and second opening (where the temperature measuring devices are arranged) be located in the heat exchanging element. Claim 1 also requires “introducing a heat exchange medium feed current into the heat exchanging element via the feed element and discharging . . . via the discharge element.” Appellants do not adequately explain why the heat exchange medium feed current in Rodriguez is not introduced via piping 41 and discharged via piping 42. Appellants’ argument that Rodriguez does not disclose temperature measurement devices located in the heat exchanger, thus, does not apprise us of error in the rejection of claim 1. We sustain the rejection of claim 1. Rejection 2 Claims 4—6 depend from claim 1. Appeal Br. (Claims App. 1—2). Appellants argue that these claims are patentable for the same reasons as claim 1. Id. at 7. We sustain the rejection of claims 4—6 for the same reasons as stated for claim 1. Claims 11—13 depend from claim 8. Appeal Br. (Claims App. 2—3). In rejecting claims 11—13, the Examiner does not refer to any additional disclosure in Rodriguez to cure the deficiencies in the rejection of claim 8. Final Act. 7. We, therefore, do not sustain the rejection of claims 11—13. 7 Appeal 2015-007879 Application 11/660,943 DECISION The Examiner’s decision rejecting claims 1—14 under 35 U.S.C. §112, second paragraph is reversed. The Examiner’s decision rejecting claims 6 and 13 under 35 U.S.C. §112, second paragraph is affirmed. The Examiner’s decision rejecting claim 1 under 35 U.S.C. § 102(b) and claims 4—6 under 35 U.S.C. § 103(a) is affirmed. The Examiner’s decision rejecting claim 8 under 35 U.S.C. § 102(b) and claims 11—13 under 35 U.S.C. § 103(a) is reversed. 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)(l)(iv). AFFIRMED-IN-PART 8 Copy with citationCopy as parenthetical citation