Ex Parte Carlson et al

Patent Trials and Appeals Board

May 8, 2019

13050716 - (D) (P.T.A.B. May. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/050,716 03/17/2011 Andrew Carlson
26222 7590 05/10/2019
FISH & RICHARSON P.C.
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
16113-0137002 3127
EXAMINER
A VILES BOSQUES, ORLANDO E
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
05/10/2019 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):
P ATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW CARLSON, WILLIAM WHITTED,
JIMMY CLIDARAS, WILLIAM HAMBURGEN,
GERALD AIGNER, and DONALD L. BEATY
Appeal 2018-008519
Application 13/050,7161
Technology Center 3700
Before JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and
BRUCE T. WIEDER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 17-19, 35-42, and 44-49. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 "The real party in interest in this appeal is Google LLC." Appeal Br. 4.
Appeal 2018-008519
Application 13/050,716
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants' invention "relates to systems and methods for
providing cooling for areas containing electronic equipment, such as
computer server rooms and server racks in computer data centers."
Spec. ,-J 2. Claim 17, the sole independent claim, is representative of the
subject matter on appeal and is reproduced below.
17. A system for providing cooled air to electronic
equipment, comprising:
an evaporative cooling water source, the evaporative
cooling water source comprising a compressorless cooling
water source;
a water-to-water heat exchanger in fluid communication
with the evaporative cooling water source;
an air-to-water heat exchanger in fluid communication
with the water-to-water heat exchanger to receive a supply of
cooling water from the water-to-water heat exchanger and
positioned to receive heated air from a group of electronic
devices that are mounted in racks in a data center that
comprises a human-occupiable workspace adjacent an open
side of the racks;
one or more fans positioned to circulate ambient air from
the human-occupiable workspace, through the open side of the
racks, across the group of electronic devices to heat the ambient
air with heat from the group of electronic devices, and deliver
the heated air to the air-to-water heat exchanger; and
a control system operable to maintain the supply of
cooling water to the air-to-water heat exchanger from the water-
to-water heat exchanger at a temperature at between 10-35
degrees Celsius, and above a dew point of the heated air that
exits the group of electronic devices that are mounted in racks,
enters one or more common warm-air plenums, and enters the
air-to-water heat exchanger at a temperature between 48-98
degrees Celsius.
Appeal Br., Claims App.
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Appeal 2018-008519
Application 13/050,716
Rejections
I. Claims 17-19, 35-42, and 44-49 are rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement.
II. Claims 17-19, 44, 45, and 48 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Belady et al. (US 2005/0235671 Al, pub.
Oct. 27, 2005) ("Belady"), Kobayashi et al. (US 4,313,310, iss. Feb. 2,
1982) ("Kobayashi"), and Bean, Jr. (US 7,165,412 Bl, iss. Jan. 23, 2007)
("Bean").
III. Claims 35-37 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Belady, Kobayashi, Bean, and Han et al. (US 4,689,967,
iss. Sept. 1, 1987) ("Han") and Shih (US 4,123,796, iss. Oct. 31, 1978).
IV. Claim 38 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Belady, Kobayashi, Bean, Han, Shih, and Bash et al.
(US 2004/0020226 Al, pub. Feb. 5, 2004) ("Bash").
V. Claims 39 and 42 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Belady, Kobayashi, Bean, Han, Shih, and Johnson et al.
(US 2004/0099747 Al, pub. May 27, 2004) ("Johnson").
VI. Claims 40, 41, 46, and 49 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Belady, Kobayashi, Bean, Han, Shih, Johnson, and
Friedrich et al. (US 2003/0193777 Al, pub. Oct. 16, 2003) ("Friedrich").
VII. Claim 47 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Belady, Kobayashi, Bean, and Glicksman et al. (US 4,269,796, iss.
May 26, 1981) ("Glicksman").
ANALYSIS
Rejection I
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Appeal 2018-008519
Application 13/050,716
Claim 17 recites:
a control system operable to maintain the supply of
cooling water to the air-to-water heat exchanger from the water-
to-water heat exchanger at a temperature at between 10-35
degrees Celsius, and above a dew point of the heated air that
exits the group of electronic devices that are mounted in racks,
enters one or more common warm-air plenums, and enters the
air-to-water heat exchanger at a temperature between 48-98
degrees Celsius.
Appeal Br., Claims App.
The Appellants argue that the Examiner's finding that "air that exits
the group of electronic devices that are mounted in racks, enters one or more
common warm-air plenums, and enters the air-to-water heat exchanger at a
temperature between 48-98 degrees Celsius," as recited in independent
claim 17, complies with the written description requirement of§ 112, first
paragraph. See Appeal Br. 12-15. Specifically, the Appellants argue that
the Specification (including paragraphs 35, 36, 40, and 41) and Figure 1
demonstrate possession of the limitation at issue because one of ordinary
skill in the art would understand that there would be little to no change in the
temperature of the heated air that enters the plenums 104a, 104b and then
air-to-water heat exchangers 112a, 112b. See id. at 13-14; Reply Br. 1-2.
Figure 1 is reproduced below:
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Appeal 2018-008519
Application 13/050,716
FIG, 1
"[Figure] 1 is a schematic diagram showing a system for cooling a computer
data center." Spec. ,i 17.
The airflow cycle of the Appellants' invention includes a cycle that
starts and ends at racks 102b. See id. at Fig. 1. The cycle includes a path
that passes sequentially through warm-air plenum 104b, attic 105, fan 110,
plenum 108, and cooling coils 112b (i.e., air-to-water heat exchanger). See
id. This path is similar to the subject matter in the limitation at issue. The
Specification describes, "the temperature of the air exiting the equipment
and entering the warm-air plenum [104b] may be ... 48, 50, 54, 58, 62, 66,
70, 74, 78, 82, 86, 90, 94, or 98 °C" (Spec. ,i 36) and "control mechanisms
may be used to maintain a constant temperature in ... plenums 104a, 104b[,]
and attic 105" (id. ,i 41 ). See Appeal Br. 13. From the foregoing, we
determine that one of ordinary skill in the art would understand that the
temperature of the air exiting warm-air plenum 104b can be maintained in
attic 105. In other words, the Specification describes that the temperature of
the air prior to reaching fan 110 may be 48-98 degrees Celsius.
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Appeal 2018-008519
Application 13/050,716
The Examiner finds that "[t]he fan motor and any heat transfer
occurring in the duct may change the temperature of the air prior to entering
the air-to-water heat exchanger." Ans. 6 ( emphasis added). Here, the
Examiner suggests that air temperature may change in fan 110 and plenum
108. In response, the Appellants assert that:
a person of ordinary skill in the art would immediately
recognize that the air temperature across a return duct or
channel does not change significantly from the time the air
enters the duct to the time immediately before the air enters the
cooling coil, despite it passing through an attic or a fan.
Reply Br. 2. We are persuaded by the Appellants' response. Although it is
possible that air temperature may change in fan 110 and plenum 108 before
reaching cooling coils 112b, this does not suggest that one of ordinary skill
in the art would understand the change to be significant. And, the Examiner
does not explain why the change would be significant. Stated otherwise, the
Examiner fails to adequately support the determination that the Specification
does not reasonably convey to one of ordinary skill in the art that the
described system for a cooling data center - operating as under normal
circumstances - includes a change in air temperature in either fan 110 or
plenum 108 before reaching cooling coils 112b, such that the change is
beyond the limits of claimed range, i.e., between 48-98 degrees Celsius.
Therefore, we determine that the Examiner fails to adequately support
the finding that "air that exits the group of electronic devices that are
mounted in racks, enter[ s] one or more common warm-air plenums, and
enters the air-to-water heat exchanger at a temperature between 48-98
degrees Celsius," as recited in independent claim 17, fails to comply with
the written description requirement of§ 112, first paragraph.
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Application 13/050,716
Thus, we do not sustain the Examiner's rejection of independent
claim 17 and claims 18, 19, 35-42, and 44-49, which depend therefrom.
Rejections II-VII
The Appellants argue that the Examiner's rejection of independent
claim 1 7 relies improperly on official notice by "simply assuming that one
of ordinary skill in the art would substitute the cooling water source of
Belady ( or any other reference) is not capable of such instant and
unquestionable demonstration as to defy dispute." Appeal Br. 18; see Reply
Br. 3. The Appellants' argument is persuasive.
The Examiner's rejection includes the following statement, which
pertains to the ultimate conclusion of obviousness:
Therefore, the Examiner takes Official Notice, that it would
have been obvious to one of ordinary skill in the art at the time
the instant invention was made to have modified the invention
of Belady by having an evaporative cooling water source, the
evaporative cooling water source comprising a compressorless
cooling water source (a cooling tower; regarding claim 18), a
water to water heat exchanger in fluid communication with the
evaporative cooling water source, and have the air-to-water heat
exchanger in fluid communication with the water to water heat
exchanger to receive supply of cooling water from the water to
water heat exchanger and to have one or more fans positioned
to circulate ambient air from the human-occupiable workspace,
through the open side of the racks, across the group of
electronic devices to heat the ambient air with heat from the
group of electronic devices, and deliver the heated air to the air-
to-water heat exchanger, as it is known in the refrigeration,
which will yield the predictable results of cooling water for air
conditioning purposes and then circulating the air to remove
heat from electronic components, with reasonable expectations
of success. For evidence of an evaporative cooling system for
air conditioner, not relied upon for the instant rejection refer to
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Application 13/050,716
Weng (previously cited on PT0-892 of February 4, 2015; and
see the prior art to Johnson used in claim 46 which teaches the
use of fans to produce airflow in a data center cooling servers,
the reference to Johnson is also presented in this rejection as
evidence, not being relied upon for the rejection of claim 17).
Final Act. 5 (italics in original, underline added); see also Ans. 8 ("[T]he
rejection later on states that the Examiner takes Official Notice that it would
have been obvious to one of ordinary skill in the art at the time the instant
invention was made to have modified the invention of Belady.").
The foregoing statement makes plain that the Examiner takes official
notice to more than just a well-known fact, but also takes official notice as a
rationale to modify Belady's invention. Here, the Examiner's rejection uses
official notice improperly as the conclusion of obviousness. See also
MANUAL OF PATENT EXAMINING PROCEDURE ("MPEP") § 2144.03
"Reliance on Common Knowledge in the Art or 'Well Known' Prior Art")
(9th ed., Rev. 8, Jan. 2018). To the extent that the Examiner supports the
conclusion of obviousness, the Examiner cites to Figure 3 of Weng2 and/or
claim 46 of Johnson. However, we fail to understand how the citations
individually or in combination support the conclusion of obviousness.
Thus, we do not sustain the Examiner's rejection of the sole
independent claim 17 before us, and claims 18, 19, 44, 45, and 48, which
depend therefrom, as unpatentable over Belady, Kobayashi, and Bean. The
remaining rejections, based on Belady, Kobayashi, and Bean in combination
with one or more of Han, Shih, Bash, Johnson, Friedrich, and Glicksman
rely on the same deficiency as discussed above. The deficiency is not cured
2 The Examiner appears to be referencing Weng (US 2003/0037905 Al, pub.
Feb. 27, 2003).
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Application 13/050,716
by the additional findings and reasoning of the remaining rejections. Thus,
we do not sustain the rejections of claims 35-42, 46, 47, and 49.
DECISION
We REVERSE the Examiner's decision rejecting claims 17-19, 35-
42, and 44-49.
REVERSED
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