Ex parte DUGAN

Board of Patent Appeals and Interferences

Apr 26, 1999

08392493 (B.P.A.I. Apr. 26, 1999)

Application for patent filed February 22, 1995. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JEFFREY S. DUGAN
____________
Appeal No. 98-1499
Application No. 08/392,4931
____________
ON BRIEF
____________
Before MEISTER, FRANKFORT, and GONZALES, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's refusal
to allow claims 1, 5, 6, 12, 13, 20 through 32, 34, 36, 39 and
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Application No. 08/392,493
2
42 through 47 as amended subsequent to the final rejection in
a paper filed February 4, 1997 (Paper No. 8). The above
enumerated
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Application No. 08/392,493
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claims are all of the claims remaining in the application,
claims 2 through 4, 7 through 11, 14 through 19, 33, 35, 37,
38, 40 and 41 having been canceled.
Appellant’s invention is directed to a plate-type heat
exchanger and to a method of exchanging heat utilizing such a
heat exchanger. Claims 1, 36, 42, 46 and 47 are
representative of the subject matter on appeal and a copy of
those claims may be found in the Appendix to appellant’s brief
(Paper No. 13).
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Takeshita et al. (Takeshita) 60-80083 May 7,
1985
(Japanese Kokai)
Kawaharada et al. (Kawaharada) 60-93291 May 25,
1985
(Japanese Kokai)
Claims 1, 27, 36, 42, 44, 46 and 47 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Takeshita.
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Application No. 08/392,493
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Claims 20 through 26, 28 through 32, 43 and 45 stand
rejected under 35 U.S.C. § 103 as being unpatentable over
Takeshita.

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Application No. 08/392,493
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Claims 5, 6, 12, 13, 34 and 39 stand rejected under
35 U.S.C. § 103 as being unpatentable over Takeshita in view
of Kawaharada.
Rather than reiterate the examiner's full statement of
the above-noted rejections and the conflicting viewpoints
advanced by the examiner and appellant regarding those
rejections, we make reference to the examiner's answer (Paper
No. 14, mailed July 29, 1997) for the examiner's reasoning in
support of the rejections, and to appellant’s brief (Paper No.
13, filed July 16, 1997) for appellant’s arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims,
to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
consequence of our review, we have made the determinations
which follow.
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Application No. 08/392,493
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Looking first to the examiner’s rejection of claims 1,
27, 36, 42, 44, 46 and 47 under 35 U.S.C. § 102(b) as being
anticipated by Takeshita, we note that the examiner has taken
the position (answer, pages 3-4) that
Regarding claims 1 and 36, Takeshita is believed
to meet the limitations of the first embodiment,
i.e. paragraph (i). The remaining embodiments
have been excluded, since embodiments they are
recited in the alternative. Similarly regarding
claims 42 and 46, the limitations of the first
embodiment are being read, and the remaining
embodiments have been excluded.
In addition, on page 7 of the answer, the examiner has
provided the explanation that
Applicant’s [sic] discloses two distinct
subchannels in a facial surface of a heat
exchange plate, where one only has a linear path
and the other is a meandering path composed of
plural linear paths and non-linear paths.
Similarly, Takeshita discloses one subchannel
having one linear path and the other subchannel
composed of plural parallel linear paths fluidly
connected by a perpendicular linear path.
Therefore, Takeshita anticipates the claims when
read in a similar convention as applicant’s
subchannels.
Since we find that the examiner’s understanding of both
the disclosed invention and the invention as claimed (e.g., in
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paragraph (i) of independent claims 1, 36, 42 and 46, and in
independent claim 47) is based on a misconception concerning
the nature of the heating and cooling fluid subchannel sets in
the face of each heat exchange plate, and that such error has
led to an inappropriate rejection of claims 1, 27, 36, 42, 44,
46 and 47 under 35 U.S.C. § 102(b) based on Takeshita, we will
not sustain this rejection.
Each of the claims on appeal define a heat exchanger
which includes a heat exchange plate or a plurality of heat
exchange plates, wherein each of the plates has a front facial
surface and (A) a first heating fluid facial subchannel set
comprising at least one heating fluid facial subchannel and
(B) a first cooling fluid facial subchannel set comprising at
least one cooling fluid facial subchannel, with the first
heating fluid facial subchannel set and the first cooling
fluid facial subchannel set being mutually aligned in a first
heat exchange relationship on the common facial surface. The
claims on appeal further set forth with regard to one
embodiment covered thereby (e.g., (i) of claims 1, 36, 42 and
46) that said first heating fluid facial subchannel set and
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said first cooling fluid facial subchannel set each have a
linear flow path and that said first heat exchange
relationship comprises a countercurrent, concurrent or
crosscurrent heat exchange relationship. Our review of
appellant’s disclosure indicates that this particular
embodiment of appellant’s invention is generally depicted in
Figure 1 of the application drawings and generally described
on pages 6, 7, 9, 10 and 22 through 25 of the specification.
Of particular interest to us is the paragraph bridging pages 9
and 10 of the specification, wherein appellant notes that
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in one embodiment of the heat exchanger of this
invention, one heating fluid facial subchannel
and one cooling fluid facial subchannel on a
common facial surface of a plate can be mutually
aligned in a first heat exchange relationship
and the disclosure at page 10, lines 15-17, that the heating
and cooling fluid subchannels on the common facial surface can
each have a "linear" flow path.
In contrast with the examiner’s determination quoted
above from page 7 of the answer, we understand the claims on
appeal to require, with regard to embodiment (i), that the
first heating fluid facial subchannel set and the first
cooling fluid facial subchannel set each have a linear flow
path, that is, that the entirety of the flow path associated
with each of the heating and cooling facial subchannel sets
in the common facial surface of a heat exchange plate must be
linear. Since we agree with appellant’s arguments on pages 4-
6 of the brief that Takeshita does not disclose or teach an
arrangement of heating and cooling fluid facial subchannel
sets which each have a linear flow path as required in the
claims before us on appeal (i.e., what appellant and the
examiner have each referred to as the "first embodiment"), we
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Application No. 08/392,493
In evaluating the claimed subject matter before us on2
appeal, we have construed the term "set" in accordance with
its common dictionary definition as being a collection of two
or more objects or articles to be used together.
10
will not sustain the examiner’s rejection of claims 1, 27, 36,
42, 44, 46 and 47 under 35 U.S.C. § 102(b) as being
anticipated by Takeshita.2
It follows from our above determinations with regard to
Takeshita that we will likewise not sustain the examiner’s
rejection of dependent claims 20 through 26, 28 through 32, 43
and 45 under 35 U.S.C. § 103 as being unpatentable over
Takeshita alone. Moreover, after reviewing the teachings of
Kawaharada, we will also not sustain the examiner’s rejection
of claims 5, 6, 12, 13, 34 and 39 under 35 U.S.C. § 103 as
being unpatentable over Takeshita in view of Kawaharada.
Simply stated, Kawaharada does not supply that which we have
noted above to be lacking in Takeshita, since Kawaharada shows
both the heating and cooling fluid facial subchannel sets in
each heat exchange plate (10) therein as being nonlinear.
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Application No. 08/392,493
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In summary, the decision of the examiner rejecting claims
1, 27, 36, 42, 44, 46 and 47 under 35 U.S.C. § 102(b) as being
anticipated by Takeshita is reversed, as is the examiner’s
decision rejecting claims 20 through 26, 28 through 32, 43 and
45 under 35 U.S.C. § 103 based on Takeshita alone. The
examiner’s decision rejecting claims 5, 6, 12, 13, 34 and 39
under 35 U.S.C. § 103 based on Takeshita and Kawaharada is
also reversed.
REVERSED
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
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Application No. 08/392,493
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CEF/sld
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Karen M. Dellerman
BASF Corporation
Sand Hill Road
Enka, NC 28728
Shereece
Appeal No. 98-1499
Application No. 08/392,493
APJ FRANKFORT
APJ
APJ
REVERSED
Prepared: July 27, 2000