Ex Parte Dumetz

Board of Patent Appeals and Interferences

May 7, 2004

09601237 (B.P.A.I. May. 7, 2004)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 28
UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte YVON DUMETZ
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Appeal No. 2004-0540
Application No. 09/601,237
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HEARD: APRIL 4, 2004
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Before ABRAMS, NASE and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1-4, 6
and 7, which are all of the claims pending in this application.
BACKGROUND
The appellant's invention relates to a flat tube for the circulation of fluid in a heat
exchanger, especially a radiator for cooling the engine of a motor vehicle, formed by a
strip of sheet metal folded so as to define a peripheral wall and an intermediate wall or
Appeal No. 2004-0540
Application No. 09/601,237
Page 2
1 We derive our understanding of the Nonogaki and Le Gauyer ‘221 references from the English
language translations obtained by the U.S. Patent Office (USPTO), copies of which are appended hereto.
spacer mechanically reinforcing the tube and dividing the interior thereof into two
longitudinal flow channels, the mechanical connection between the peripheral wall and
the spacer being provided partly by the continuation of the material of the strip and
partly by brazing (specification, page 1). A copy of the claims under appeal is set forth
in the appendix to the appellant's brief.
The examiner relied upon the following prior art references of record in rejecting
the appealed claims:
Potier 5,219,024 Jun. 15, 1993
Le Gauyer (Le Gauyer ‘832) 5,579,832 Dec. 3, 1996
Martins 5,765,634 Jun. 16, 1998
Nonogaki et al. (Nonogaki) Hei 6[1994]-123571 May 6, 1994
(Japanese Kokai patent application)
Le Gauyer (Le Gauyer ‘221) 2,735,221 Dec. 13, 19961
(French patent document)
The following rejection is before us for review.
Claims 1-4, 6 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Potier or Le Gauyer ‘832 in view of Nonogaki, Le Gauyer ‘221 or Martins.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the answer
(Paper No. 24) for the examiner's complete reasoning in support of the rejection and to
the brief and reply brief (Paper Nos. 23 and 25) for the appellant's arguments
thereagainst.
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Application No. 09/601,237
Page 3
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
Claim 1, the sole independent claim pending in this application, recites a flat tube
formed by a strip of sheet metal folded so as to define a peripheral wall and an interior
spacer mechanically reinforcing the tube and dividing the interior thereof into two
longitudinal flow channels which are open at at least one first end of the tube, the tube
including a body with a substantially constant elongate cross section and at least one
head region extending between the body and the at least one first end, wherein the
peripheral wall, but not the spacer, is deformed in such a way as to dilate the channels
in the width direction of the cross section and to shrink them toward the spacer in the
length direction of the cross section, wherein the spacer is formed by two marginal
zones of the strip which are brazed mutually face-to-face continuously along their entire
length.
Each of the primary references, Potier (note Figures 5 and 6) and Le Gauyer
‘832 (note Figure 2), relied upon by the examiner discloses a heat exchanger
comprising two rows of heat exchanger tubes. Like the tube recited in appellant’s claim
1, each of the tubes of Potier and Le Gauyer ‘832 has a body section of substantially
constant cross section and a head region which is dilated in the width dimension and
Appeal No. 2004-0540
Application No. 09/601,237
Page 4
shortened in the length dimension of the cross section relative to the cross section of
the body portion. Unlike appellant’s tube, however, each tube of Potier and Le Gauyer
‘832 defines only a single longitudinal flow channel, rather than being formed by a strip
of metal folded so as to define two longitudinal flow channels. In essence, two of the
tubes of Potier and Le Gauyer are needed to provide the two flow channels defined by
the tube recited in appellant’s claim 1.
Nonogaki (note Figure 4), Le Gauyer ‘221 (note Figure 3) and Martins disclose
heat exchanger tubes, with each tube being formed by a single strip of sheet metal
folded so as to define two longitudinal flow channels and a reinforcing spacer as called
for in claim 1. Le Gauyer ‘221 points out that a main drawback of heat exchangers that
bundle pairs of tubes is the requirement for insertion of tubes of the same pair in one
hole of the collecting plate, thereby complicating the assembly (translation, page 2).
The tubes of these references, however, appear to be of substantially constant cross
section and thus lack the header region having a cross section dilated in the width
dimension and shortened in the length dimension relative to a body portion.
In rejecting the claims, the examiner’s position is that it would have been obvious
to one of ordinary skill in the art to employ in Potier or Le Gauyer ‘832 a tube formed by
a strip of folded sheet metal having two longitudinal flow channels for the purpose of
ease of manufacture and assembly, as recognized by Nonogaki, Le Gauyer or Martins
(answer, page 6). Appellant points out that each of the secondary references,
Nonogaki, Le Gauyer ‘221 and Martins, is exclusively limited to flat tubes which maintain
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Application No. 09/601,237
Page 5
a constant symmetric cross section along their entire length and argues that the
examiner has failed to identify the proper motivation, much less any reasonable
expectation of success, for the proposed combination and that, even if one were to
attempt to deform the flat tubes of Nonogaki, Le Gauyer ‘221 or Martins, the integrity of
the marginal zones would be breached and the resultant structure would not be brazed
mutually face to face along the entire length of the marginal zones. See pages 5 and 6
of the brief.
We find ourselves in agreement with appellant. While Nonogaki, Le Gauyer ‘221
and Martins disclose tubes formed by a strip of sheet metal folded so as to form spacers
and two longitudinal flow channels, they teach nothing about varying the cross section
of the tube along its length. It is only with the benefit of hindsight derived by reading
appellant’s disclosure that one of ordinary skill in the art would have been motivated to
deform the tubes in the manner called for in appellant’s claim 1, without deforming the
spacer formed by the marginal zones, such that the marginal zones are brazed mutually
face-to-face continuously along their entire length. This, of course, is not a proper basis
for a rejection. See In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed.
Cir. 1992). We therefore shall not sustain the examiner’s rejection of claim 1, or claims
2-4, 6 and 7 which depend from claim 1.
CONCLUSION
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Application No. 09/601,237
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To summarize, the decision of the examiner to reject claims 1-4, 6 and 7 under
35 U.S.C. § 103 is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2004-0540
Application No. 09/601,237
Page 7
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