Ex Parte Edwards et alDownload PDFPatent Trial and Appeal BoardNov 29, 201713888791 (P.T.A.B. Nov. 29, 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. 13/888,791 05/07/2013 Jesse W. Edwards 1242-018C 8149 27820 7590 12/01/2017 WITHROW & TERRANOVA, P.L.L.C. 106 Pinedale Springs Way Cary, NC27511 EXAMINER COX, ALEXIS K ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 12/01/2017 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): patents @ wt-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JESSE W. EDWARDS, ROBERT JOSEPH THERRIEN, and M. SEAN JUNE Appeal 2016-004928 Application 13/888,791 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-004928 Application 13/888,791 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 4, 6-21, and 23-30. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE CLAIMED SUBJECT MATTER The claims are directed to a refrigeration system using thermoelectric coolers (TECs) and a control scheme for efficiently maintaining a set-point temperature in the system. Spec. 2, 6. Claims 1, 26, and 27 are independent. Br. 19, 23-24 (claims app’x). Claim 26, reproduced below, is illustrative of the claimed subject matter: 26. A system comprising: a plurality of thermoelectric coolers; and a controller associated with the plurality of thermoelectric coolers, the controller configured to: receive temperature data indicative of a temperature of a chamber; and selectively control two or more subsets of thermoelectric coolers in the plurality of thermoelectric coolers based on the temperature of the chamber such that each in a first subset of thermoelectric coolers from the two or more subsets of thermoelectric coolers operates at or near the point where the coefficient of performance is maximized (QcoPma*) by providing a current or voltage with amplitude corresponding to QcoPma* (Icop max, V cor max) where the temperature of the chamber is within a steady state range including a set point temperature. REFERENCES Ghoshal US 2003/0111516 A1 June 19,2003 Busier US 2008/0098750 A1 May 1,2008 Chaparro Monferrer US 2008/0236175 A1 Oct. 2, 2008 2 Appeal 2016-004928 Application 13/888,791 REJECTIONS Claims 1—4, 6-21, and 23-30 stand rejected under 35 U.S.C. § 112, second paragraph, as indefinite. Final Act. 2. Claims 1—4, 6-21, and 23-30 stand rejected under 35 U.S.C. § 112, second paragraph, for failing to claim the subject matter that the inventors regard as the invention. Id. at 3. Claims 1, 2, 4, 6-21, and 23-30 stand rejected under 35 U.S.C. § 102(b) as anticipated by Busier. Id. at 6. Claims 1, 2, 4, and 6-30 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Busier and Ghoshal. Id. at 11. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Busier and Chaparro Monferrer. Id. at 13. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Busier, Ghoshal, and Chaparro Monferrer. Id. at 14. ANALYSIS Claims 1—4, 6—21, and 23—30—Unpatentable Under 35 U.S.C. § 112(b) as Indefinite The Examiner separately addresses independent claim 1 and dependent claim 18 under this rejection, contending that such claims are indefinite. Final Act. 2-3. We address each claim separately. Claim 1 In finding claim 1 indefinite, the Examiner asserts, “the current notation on line 11 appears to be intended to be a mathematical function, where Q is a function of both I and V.” Final Act. 2. The Examiner further states: 3 Appeal 2016-004928 Application 13/888,791 As best understood by the examiner in view of the specification and previous interviews with the attorneys, QcoPma* is intended to mean the maximum coefficient of performance available for the currently required heat load. Conventional notation for this would be COPQmax, instead of Qcoiv»«v. Additionally, as now recited in the claims, the maximum coefficient of performance is a function of at least one of current and voltage, but not necessarily both. Final Act. 2-3. Appellants respond that QcoPmax “is clearly defined in the Specification and in claim 1 as ‘the point where the coefficient of performance is maximized.’” Br. 9. (citing claim 1). According to Appellants, operating each TEC in a first subset of TECs “‘at or near’ Qcop max' is accomplished by “providing a current or voltage with amplitude corresponding to Qcop max” i.e., Icop max or Vcop max. Br. 9 (citing Spec., Fig. 2). Thus, Appellants assert that the notation “is not ‘intended to be a mathematical function, where Q is a function of both I and V.’” Br. 9 (quoting Final Act. 3). The Examiner has not persuaded us that claim 1 is indefinite, and we decline to sustain this rejection. Section 112(b) states that “[t]he specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the invention or a joint inventor regards as the invention.” 35 U.S.C. § 112(b). “[A] patent is invalid for indefmiteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus, Inc. v. BiosigInstruments, Inc., 134 S. Ct. 2120, 2124 (2014). Having reviewed the language of the claim in light of the Specification, we are not persuaded that claim 1 is indefinite. According to 4 Appeal 2016-004928 Application 13/888,791 the Specification, Qcoiv»«v refers to the cooling capacity of a TEC when the TEC is operating at peak coefficient of performance (COPmax), and the TEC operates at this peak when it is provided with a specific input current identified as Icopmax.1 See, e.g., Spec. ^ 53 (“As illustrated in Figure 2 . . . the efficiency, or COP, of the TEC is maximized when the current Icop max is provided to the TEC such that the TEC operates as Qcopma*.”)- Thus, operating a TEC “at or near the point where the coefficient of performance is maximized (QcoPma*) by providing a current or voltage with amplitude corresponding to QcoPmax (IcoPmax, Vcop max)” as recited, means operating the TEC to achieve its cooling capacity when operating at its maximum COP, which is accomplished by providing the TEC with a specific input current or voltage. Claim 18 Here, the Examiner addresses the claim phrase “a reject side of the heat exchanger” stating that this phrase “is not one commonly used” and hence is “unclear.” Final Act. 3. However, “[a]s best understood by the examiner,” this phrase refers to “the side of the heat exchanger [] from which heat is radiated and conducted.” Final Act. 3. Claim 18 depends from claim 17, which depends from claim 1. Br. 21-22. Claim 17 additionally recites “wherein selectively controlling the two or more subsets of thermoelectric coolers further comprises: determining if the temperature of the chamber exceeds a maximum 1 The Specification does not specifically discuss Vcop max. We assume for purposes of this appeal that the Specification adequately describes, from the perspective of one of ordinary skill in the art, controlling a TEC at or near QcOPmax by providing a Vcop max. 5 Appeal 2016-004928 Application 13/888,791 allowable temperature for the chamber.” Br. 21-22. Claim 18 additionally recites, “wherein selectively controlling the two or more subsets of thermoelectric coolers further comprises: determining if a temperature at a reject side of the heat exchanger exceeds a maximum allowable temperature for the reject side of the heat exchanger.” Br. 22. Although the Specification does not expressly define “a reject side of the heat exchanger,” it refers to a “reject side of the heat exchanger 104” as the “hot side” of heat exchanger 104 in thermoelectric refrigeration system 100. Spec. 44, 69. Thus, the Specification would inform one of ordinary skill in the art with reasonably certainty that “reject side of the heat exchanger” refers to the “hot side of the heat exchanger.” Spec. ^ 69. Because we are not persuaded that claims 1 and 18 are indefinite, we also are not persuaded that claims 2—4, 6-17, 19-21, and 23-25—which ultimately depend from claim 1 or claim 18—are indefinite. The Examiner has not specifically explained why independent claims 26 or 27, or the claims that depend from them, are indefinite. Accordingly, we also do not sustain the Examiner’s rejection of claims 26-30 as indefinite. Claims 1—4, 6—21, and 23—30—Unpatentable Under 35 U.S.C. § 112(b) for Failing to Claim the Subject Matter that the Inventors Regard as the Invention The Examiner separately addresses independent claim 1 and dependent claim 12 under this rejection, contending that such claims fail “to set forth the subject matter which ... the applicant(s) regard as their invention.” Final Act. 3-5. We address each claim separately. 6 Appeal 2016-004928 Application 13/888,791 Claim 1 The Examiner contends that during an Examiner Interview, the Examiner was informed that the actual invention requires “the amount of current supplied [to be] varied in order to optimize the coefficient of performance.” Final Act. 3. But, according to the Examiner, claim 1 requires that “the provided current or voltage must have an amplitude corresponding to the current or voltage which would yield the maximum coefficient of performance under some predetermined steady state condition.” Final Act. 4. The Examiner thus concludes, “the invention is different from what is defined in the claim(s) because as currently recited, the amplitude of the supplied current or voltage need not change.” Final Act. 3. Appellants respond by “apologizing] for any misunderstandings during the interview,” and clarify that for the method of the invention “[t]he amount of current supplied is not varied in order to optimize the coefficient of performance.” Br. 10. Thus, “claim 1 corresponds in scope with that which the Appellants] regard as the invention.” Br. 11. In the Answer, the Examiner refers to Appellants’ remarks in an August 21, 2014 Amendment, in which Appellants summarize the substance of the August 7, 2014 Examiner Interview, as indicating “that the examiner’s understanding of the invention [based on the August 7, 2014 interview] is correct.” Ans. 3. We do not sustain this rejection. First, Appellants did not adopt or indicate agreement with the Examiner’s understanding of the invention in the August 21, 2014 Amendment Remarks. Instead, Appellants merely summarized the Examiner’s understanding. See Aug. 21, 2014 Amend. 10. Further, Appellants, in the Brief submitted in the instant Appeal, clarify that the invention, as they regard it, does not require varying input current or 7 Appeal 2016-004928 Application 13/888,791 voltage. Thus, Appellants have clarified what the inventors regard as their invention, which is consistent with the Examiner’s understanding of claim 1. Accordingly, based on the record as it currently stands, we are not persuaded that there is any inconsistency between what claim 1 requires and what the inventors regard as their invention. Claim 12 Claim 12 indirectly depends from claim 1, and additionally recites, “wherein activating the one or more additional subsets of thermoelectric coolers further comprises increasing a capacity of the one or more additional subsets of thermoelectric coolers from Qcoiv»«v to a value up to or equal to Qmax.” Br. 21. The Examiner asserts, “[t]he capacity of a thermoelectric cooler or subset of thermoelectric coolers is a fixed amount” and “cannot be changed,” as claim 12 requires. Final Act. 4. The Examiner further asserts that “there is no disclosure of the addition of more thermoelectric units to increase the capacity of a subset of thermoelectric coolers, and the addition of more thermoelectric units is the only way to increase the actual capacity of the subset of thermoelectric units.” Final Act. 4-5. The Examiner does not provide any support for the notion that one of ordinary skill in the art would understand that the “capacity” of an individual TEC “is a fixed amount” that “cannot be changed.” Conversely, the Specification consistently describes “cooling capacity” as varying with input current. Spec. 53, 55, Fig. 1. When a patent “‘repeatedly and consistently’” characterizes a claim term in a particular way, it is proper to construe the claim term in accordance with that characterization. See, e.g., Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1318 (Fed. Cir. 2014); ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1374-75 (Fed. Cir. 8 Appeal 2016-004928 Application 13/888,791 2009). Thus, we are not persuaded that claim 12 is separately unpatentable under 35 U.S.C. § 112(b). Because we are not persuaded that claims 1 and 12 fail to set forth the subject matter that Appellants’ regard as their invention, we also are not persuaded that claims 2—4, 6-11, 13-21, and 23-25—which ultimately depend from claim 1—are indefinite. The Examiner has not specifically explained why independent claims 26 or 27, or the claims that depend from them, further fail to set forth the subject matter that Appellants regard as their invention. Accordingly, we also do not sustain the Examiner’s rejection of claims 26-30. Claims 1, 2, 4, 6—21, and 23—30—Anticipated by Busier Claim 1 requires “operating each thermoelectric cooler in a first subset of thermoelectric coolers from the plurality of thermoelectric coolers at or near the point where the coefficient of performance is maximized (QcoPma*) by providing a current or voltage with amplitude corresponding to QcOPmax (IcoP/?/(3x, VcoP///<7.v) when the temperature of the chamber is within a predefined steady state range including the set point temperature.” Br. 19. Independent claims 26 and 27 contain similar limitations. Br. 23-24. The Examiner finds that Busier discloses all of the limitations of claim 1. Final Act. 6-7. Regarding the above cited limitation, the Examiner asserts that “energy conservation is a goal of the invention, see paragraph [0015], and energy conservation with the same performance requires attempting to reach the maximum COP.” Final Act. 6. According to the Examiner, “for any given embodiment or system created using Busier, there exists a predefined steady state range and set of conditions for the set point temperature and external temperature for which the voltage and current 9 Appeal 2016-004928 Application 13/888,791 supplied in the pulse width modulation of Busier will cause the optimum coefficient of performance for the system of Busier.” Final Act. 6-7; see Ans. 5-6. Appellants respond, “[Reducing the pulse width [as Busier teaches] is not the same as operating at or near Qcoiv»«v as the efficiency of the PWM system will be equal to the efficiency of the on-state.” Br. 13. Appellants further assert that “there is no discussion in Busier of the efficiency of the TECs in a steady state range, let alone is there a teaching in Busier to operate each TEC in a subset of TECs at or near Qcopmax when the temperature of the chamber is within a steady state range.” Br. 14. We are not persuaded that Busier anticipates claims 1, 2, 4, 6-21, and 23-30, and decline to sustain this rejection. Specifically, we are not persuaded that Busier discloses the above quoted limitation. Busier does not teach operating TECs at or near QcoPma* by providing Icopmax or Vcop/»«v. Instead, Busier uses Pulse Width Modulation to drive the TECs. Busier ^ 52, Fig. 5. And while Busier does teach that energy conservation is a goal of the invention, which suggests maximizing the efficiency of Busier’s system, the claims are directed to operating individual TECs at Qcopma*, not to operating any given system at maximum efficiency. See, e.g., Br. 19 (claim 1, reciting “operating each thermoelectric cooler in a first subset of thermoelectric coolers ... at or near . . . QcoPma*”)- The Examiner has not provided evidence or persuasive argument that maximizing the efficiency of a heat-exchanger system that uses TECs requires—or is even achieved by— operating “each [TEC] in a first subset of [TECs]” at Qcopma*. 10 Appeal 2016-004928 Application 13/888,791 Claims 1, 2, 4, and 6 30—Unpatentable over Busier and Ghoshal As an alternative to the anticipation rejection discussed above, the Examiner also rejects claims 1, 2, 4, and 6-30 as unpatentable over Busier and Ghoshal. FinalAct.il. According to the Examiner, this rejection is based on the Examiner’s alternative interpretation of claim 1, i.e., that it requires “[vjarying or modulating the amplitude of the current or voltage.” Final Act. 11. The Examiner asserts that “Ghoshal explicitly discloses an equation which is used to determine the amount of current and or voltage which will result in the maximum coefficient of performance,” and that “Ghoshal explicitly takes the derivative of the equation in order to determine the optimum amount of current to feed to the Peltier device [TEC] for a given set of conditions and materials.” Final Act. 12 (citing Ghoshal 28, 30). The Examiner determines that it would have been obvious to one of ordinary skill in the art “to use the equation of Ghoshal with information from the system of Busier, including expected average temperature conditions and so forth, in order to determine the optimum amount of current to use in the pulse width modulated cooling of Busier and thereby reduce the amount of energy used in the system.” Final Act. 12-13. We are not persuaded that claims 1, 2, 4, and 6-30 are unpatentable over Busier and Ghoshal. First, as stated above, claim 1 does not require varying current or voltage to achieve a maximum coefficient of performance, but rather requires providing a specific Icop max or V cop max to do so. Second, it is not clear from the Examiner’s characterization of Ghoshal that it teaches how to determine a specific Icop max to achieve a QcoPmax. Specifically, the Examiner asserts that Ghoshal “determine[s] the optimum amount of current to feed [] the [TEC] for a given set of conditions and 11 Appeal 2016-004928 Application 13/888,791 materials.’ '’ Final Act. 12 (emphasis added). This suggests that Ghoshal teaches that the optimum current changes as conditions change, which is not the same as determining an Icopmax for a specific TEC. For these reasons, we do not sustain the Examiner’s rejection. Claim 3—Unpatentable over Busier and Chaparro Monferrer or, Busier, Ghoshal, and Chaparro Monferrer Claim 3 depends from claim 1. Br. 19. The Examiner’s rejection of claim 3 as unpatentable over Busier and Chaparro Monferrer relies on its finding that Busier anticipates claim 1. Final Act. 13. Because we are not persuaded that Busier anticipates claim 1, we are also not persuaded that claim 3 is unpatentable over Busier and Chaparro Monferrer. Likewise, the Examiner’s rejection of claim 3 as unpatentable over Busier, Ghoshal, and Chaparro Monferrer relies on its finding that claim 1 is unpatentable over Busier and Ghoshal. Final Act. 14. Because we are not persuaded that claim 1 is unpatentable over Busier and Ghoshal, we are also not persuaded that claim 3 is unpatentable over Busier, Ghoshal, and Chaparro Monferrer. DECISION For the above reasons, the Examiner’s rejections of claims 1—4, 6-21, and 23-30 are reversed. REVERSED 12 Copy with citationCopy as parenthetical citation