Ex Parte Ding et al

Patent Trial and Appeal Board

Feb 15, 2017

13256753 (P.T.A.B. Feb. 15, 2017)

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.
13/256,753 09/15/2011 Haiping Ding PA-0010955-US 2520
87059 7590 02/17/2017
Cantor Colburn LLP - Carrier
20 Church Street, 22nd Floor
Hartford, CT 06103
EXAMINER
MALIK, RAHEENA REHMAN
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
02/17/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HAIPING DING, SONGTAO LI, and MICHAEL A. STARK
Appeal 2015-004183
Application 13/256,753
Technology Center 3700
Before: CHARLES N. GREENHUT, LYNNE H. BROWNE, and
PAUL J. KORNICZKY, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
3—10 and 13—15. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-004183
Application 13/256,753
CLAIMED SUBJECT MATTER
The claims are directed to a hybrid serial counterflow dual refrigerant
circuit chiller. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A dual refrigerant circuit chiller comprising:
a first refrigerant circuit including a first condenser and a first
evaporator;
a second refrigerant circuit including a second condenser and
a second evaporator,
a condenser assembly including the first condenser and the
second condenser interconnected in a series cooling fluid circuit,
the condenser assembly having a cooling fluid inlet in fluid
communication with the second condenser and a cooling fluid
outlet in fluid communication with the first condenser; and
an evaporator assembly including the first evaporator and the
second evaporator interconnected in a series fluid circuit and a
waterbox disposed intermediate the first evaporator and the
second evaporator, the evaporator assembly having a circuit fluid
inlet in fluid communication with the first evaporator and a
circuit fluid outlet in fluid communication with the second
evaporator, the first evaporator having a multiple pass circuit
fluid-to-refrigerant heat exchanger having an outlet in fluid
communication with the waterbox and an inlet in fluid
communication with the circuit fluid inlet of the evaporator
assembly, the second evaporator having a multiple pass circuit
fluid-to-refrigerant heat exchanger having an inlet in fluid
communication with the waterbox and an outlet in fluid
communication with the circuit fluid outlet of the evaporator
assembly, the circuit fluid inlet and the circuit fluid outlet
disposed at opposite longitudinal ends of the evaporator
assembly;
wherein the circuit fluid-to-refrigerant heat exchanger of the
first evaporator comprises a first three pass tube bundle heat
exchanger and the circuit fluid-to-refrigerant heat exchanger of
the second evaporator comprises a second three pass tube bundle
heat exchanger, the first three pass tube bundle heat exchanger
including a first pass, second pass and third pass, circuit fluid
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Application 13/256,753
flowing in the first pass in a first direction, circuit fluid flowing
in the second pass in a second direction opposite the first
direction, circuit fluid flowing in the third pass in the first
direction.
REJECTIONS
Claims 1, 3—6, 13, and 14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over MacBain (US 8,250,879 B2, issued Aug. 28, 2012)
and Moeykens (US 6,293,112 Bl, issued Sept. 25, 2001).
Claims 7—9 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over MacBain.
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over MacBain and Iritani (US 6,966,200 B2, issued Nov. 22, 2005).
OPINION
Claims 1, 3—6, and 13 are argued as a group, and claim 1 is
representative. In rejecting claim 1, the Examiner relies on MacBain as
disclosing the basic structure claimed except for the three pass arrangement
(Final Act. 3—4), for which the Examiner relies on Moeykens (Final Act. 4).
Appellants argue that “[i]f the evaporator of Moeykens was used instead of
that in MacBain, then the feature of the ‘waterbox disposed intermediate the
first evaporator and the second evaporator’ would be eliminated as
Moeykens using a single evaporator and a waterbox attached at each end of
the evaporator.” Br. 6. This is essentially an argument that no single
reference discloses the combination of a three pass evaporator and waterbox,
A conclusion of obviousness under § 103(a) does not require the claimed
invention, or any particular subcombination thereof, to be expressly
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Application 13/256,753
suggested in any one reference; the question is whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of the cited references. See In re Keller, 642 F.2d
413,425 (CCPA 1981).
As the Examiner points out, the proposed modification to include a
third pass according to the teachings of Moeykens does not involve
replacing the waterboxes of MacBain. Ans. 2—3. “It is well-established that
a determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements.” In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012). Appellants do not identify
any reason why elimination of the MacBain waterboxes would be necessary
to implement an additional pass as taught by Moeykens. Indeed, as the
Examiner points out, MacBain itself suggests substituting a two pass
arrangement with no mention of any incompatibility of such an arrangement
with the disclosed waterboxes. Ans. 2 (see MacBain, para. 38,1 col. 5,11.
31—49).
For the foregoing reasons, we sustain the Examiner’s rejection of
claims 1, 3—6 and 13.
Turning to claim 14, the point of contention involves the often-
disputed term “substantially.” Br. 7. When a term of degree is involved, it
must be determined whether the specification provides some standard for
measuring that degree so that one of ordinary skill in the art would
understand what is claimed when the claim is read in light of the
specification. Seattle Box Co. v. Indus. Crating & Packing, Inc., 731 F.2d
1 The Examiner cites to paragraph numbers of the Pre-Grant Publication (US
2010/0107683 Al, pub. May 6, 2010).
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Application 13/256,753
818, 826 (Fed. Cir. 1984). Appellants dispute that chamber 71 in Figure 10
of MacBain provides a flow passage that is “substantially vertical” (Br. 7),
but do not direct our attention to any standard for measuring what constitutes
“substantially” in the Specification. The extent of Appellants’ argument is
“[sjecond chamber 71 in Figure 10 of MacBain appears to be more
horizontal than vertical, and is certainly not substantially vertical as recited
in claim 14.” Br. 7. Appellants do not propose any particular construction
of “substantially” or direct our attention to any enlightening disclosure in the
Specification.
In the context of describing verticality, there are two plausible general
meanings for substantially: almost entirely, or significantly.2 “Where there
are several common meanings for a claim term, the patent disclosure serves
to point away from the improper meanings and toward the proper
meanings.” Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294,
1300 (Fed. Cir. 2003) (citation omitted). The term substantially is not
actually used in Appellants’ Specification. In regards to a waterbox passage,
the Specification employs the term “vertical” with regard to two
embodiments. First, similar to the original language of claim 14, the
embodiments of Figures 12 and 17 are described as having a chamber 153
that provides for “generally vertical” flow. Spec. para. 51.3 The
Specification also uses the term “vertical” without any modifier to describe
2 See, e.g.,
http://www.macmillandictionary.com/us/dictionary/american/substantially
and https://en.oxforddictionaries.com/defmition/substantially, (last visited
Feb. 6, 2017).
3 The chamber 153 of Figure 12 is also described as providing for “the
vertical transition.” Spec. para. 51. It is not clear the extent to which this
relates to a “flow passage” as recited in claim 14.
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Application 13/256,753
waterbox flow in an alternative embodiment, depicted in Figure 18. Id. In
light of these descriptions, one skilled in the art would understand
“substantially vertical” as falling somewhere between “generally vertical”
and “vertical.” Thus, Figures 12, 17, and 18 are informative as to how one
skilled in the art would understand the term “substantially vertical” when
read in light of the Specification.
Figure 12 shows flow chamber 153 wherein the flow, illustrated by a
curved arrow, is almost exclusively horizontal at first and then exclusively
vertical. Although the arrow depicting the flow does not turn again in
Figure 12, there would appear to necessarily be another almost exclusively
horizontal component necessary to fluidically communicate with tube
bundle 374.
Figure 17 illustrates flow through chamber 153 at two divergent paths,
each of which is about 45° from vertical, making them about as vertical as
they are horizontal. The transition to tube bundle 374 is not illustrated in
Figure 17. Figures 12 and 17 are schematic illustrations and are, therefore,
limited insofar as detailing the actual characteristics of the flow passage.
Figure 18 provides a more detailed view of a flow passage. Flow
moves from the top left to the bottom right as viewed in Figure 18. Flow
enters and exits essentially horizontally. Vertical movement appears to be
mainly effected by a diagonal portion that is about 45° from vertical, making
it about as vertical as it is horizontal.
In light of the disclosures discussed above, it seems clear that the
appropriate definition of substantially in this context must be “significantly
or considerably” as opposed to “almost entirely.” Interpreting “substantially
vertical” to mean almost entirely vertical, or as Appellants’ arguments
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Application 13/256,753
imply, more vertical than horizontal, would effectively exclude Appellants’
own embodiment depicted in Figure 18, which is described as having a
vertical flow passage. Claim interpretation excluding the preferred
embodiment is rarely, if ever, correct and would require highly persuasive
evidentiary support. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1583 (Fed. Cir. 1997). “Substantially vertical” allows for more deviation
than vertical and, in order to be consistent with the description of the
embodiment illustrated in Figure 18, must allow for a significant horizontal
aspect of the flow through the chamber.
Thus, we agree with the Examiner that, in light of the Specification,
MacBain’s chamber 71 “provides a substantially vertical flow passage.”
Ans. 3.
Turning to claim 7, the Examiner relies on the combined teachings of
the embodiments of MacBain depicted in Figures 4 and 9. Final Act. 7—8;
Ans. 3. Appellants argue
MacBain shows an embodiment where neither the condenser nor
the evaporator is bypassed (Figure 4) and another embodiment
where both the condenser and the evaporator are bypassed
(Figure 9) ... Thus, there is no disclosure in MacBain to use a
hybrid of Figure 4 and Figure 9.
Br. 8.
Again, there is no requirement in a § 103(a) rejection for every
element of the claimed subject matter to be found in a single embodiment of
a single reference. Ans. 3^4. MacBain, like Appellants, recognized a
benefit of locating connections at the waterboxes themselves—facilitating
access. Final Act. 7—8 (citing MacBain, paras. 4, 7 (col. 1,11. 26—34, 51—
62)); Ans. 3^4 (citing MacBain para 42 (col. 6,11. 3—11)). We agree with
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Application 13/256,753
the Examiner that it would have been obvious to one skilled in the art to
bypass the evaporator, condenser, or both, as desired to facilitate access as
needed based on the circumstances. See Id. We additionally note that claim
7 employs the transitional phrase, “comprising,” which connotes an open-
ended claim, and there does not appear to be any language actually
precluding more bypasses than those expressly recited. Accordingly, we
sustain the rejection of claim 7. Claim 10 is argued based only on
dependency therefrom. Br. 9.
DECISION
The Examiner’s rejections are affirmed.
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
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