Ex Parte Fries et al

Patent Trial and Appeal Board

May 19, 2016

12400424 (P.T.A.B. May. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/400,424 0310912009
77407 7590 05/23/2016
Novak Drnce Connolly Bove+ Quigg LLP
1875 Eye St NW
Suite 1100
Washington, DC 20006-5409
FIRST NAMED INVENTOR
Benedikt Fries
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.
8369.117.USOOOO 3970
EXAMINER
RUSSELL, DEVON L
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
05/23/2016 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):
Peter.Lalos@novakdrnce.com
DCDocket@novakdrnce.com
re nee.tisdale@novakdrnce.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENEDIKT FRIES, AXEL LOFFLER, and
CHRISTOPHER REINKE
Appeal2014-003383
Application 12/400,424
Technology Center 3700
Before MICHELLE R. OSINSKI, MARK A. GEIER, and
GORDON D. KINDER, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Benedikt Fries et al. (Appellants) 1 appeal under 35 U.S.C. § 134 from
the Examiner's decision rejecting claims 18-24. Claims 1-17 are cancelled.
See Amendment (May 29, 2012), 3. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is Audi AG. App. Br. 2.
Appeal2014-003383
Application 12/400,424
THE CLAIMED SUBJECT MATTER
Claim 18, the sole independent claim on appeal, is reproduced below
and is representative of the claimed subject matter on appeal.
18. A radiator for a motor vehicle, comprising:
a body of graphite foam material, provided with at least
one passageway therethrough coated with a metallic material;
a pair of conduits embracing said body of graphite foam
material, each having an opening communicable with a fluid line
and an opening communicating with said passageway; and
means for retaining said conduits in embracing relation
with said body of graphite foam material disposed therebetween.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Udell
Rasmussen
Klett
Wu
Dupree
us 1,822,715
us 2,401,797
US 6,673,328B1
US 2007/0218284 Al
US 7,287,522 B2
REJECTIONS
Sept. 8, 1931
June 11, 1946
Jan. 6,2004
Sept. 20, 2007
Oct. 30, 2007
I. Claims 18, 19, 23, and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Klett, Wu, and Rasmussen. Non-Final Act. 2--4.
II. Claims 21 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Klett, Wu, Rasmussen, and Udell. Id. at 4.
III. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Klett, Wu, Rasmussen, and Dupree. Id. at 4--5.
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Application 12/400,424
OPINION
Rejection I
The Examiner finds that Klett teaches the limitations of independent
claim 1, except for "the passageways [being] coated with a metallic
material" and "the conduits embrac[ing] the graphite foam material or
hav[ing] retention means." Non-Final Act. 3. As to the coating of metallic
material, the Examiner finds that Wu teaches "that it is old and well-known
in the art to provide a layer of metal coating to ... graphite devices to heat
transfer surfaces" and concludes that it would have been obvious to a person
of ordinary skill in the art "to line the passageways of Klett with
electroplated copper instead of inserting pipes therethough in order to allow
for reduced pipe thicknesses and improved contact between the graphite and
passageway piping." Id. The Examiner points to Wu's express teaching that
"the metal coating enhances the heat dissipation power of the graphite
body." Id. at 6 (quoting Wu i-f 12). The Examiner also finds that "one of
ordinary skill in the art would recognize that a formed in place electroplated
copper lining has much improved thermal transfer properties to the inserted
linings of Klett." Ans. 5.
As to the conduits embracing the graphite foam material, the
Examiner finds that Rasmussen teaches "a means for retaining ... conduits
[ 40, 42] in embracing relation with ... porous material" in the form of
"plates 28 and 30 ... soldered to conduits 40, 42" and concludes that it
would have been obvious to a person of ordinary skill in the art "to provide
the radiator of Klett with embracing conduits, as taught by Rasmussen, in
order to make the radiator more compact." Non-Final Act. 3--4.
Appellants contend that
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Application 12/400,424
[n]one of the cited references either discloses or teaches
any such metallic coating in the coolant passageways of a body
of foam material in a radiator, and particularly do not disclose or
teach the combination of such a coolant passageway metallic
coating in a body of foam material and a ribbed face
configuration of a leading face of such body.
App. Br. 4. Appellants' contention merely acknowledges that no single
reference teaches or suggests the entire claim, but fails to address the
proposed combination as articulated by the Examiner. See In re Keller, 642
F.2d 413, 426 (CCPA 1981) ("[O]ne cannot show nonobviousness by
attacking references individually where, as here, the rejections are based on
combinations of references."); In re Merck &Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986).
Appellants also raise an additional argument in the Reply Brief that
was not presented in the Appeal Brief. See Reply Br. 2 (arguing that Wu
"does not teach a modification of K[l]e[]tt ... to arrive at the claimed
invention" because Wu's objectives are the elimination of graphite
dispersion and discoloration and the improvement of heat dissipation to
ambient air, rather than specifically the improvement of heat transfer in the
passageways and/or interstices of a porous body). This argument is not
timely, and Appellants do not present evidence or explanation to show good
cause why this argument should be considered by the Board at this time. See
37 C.F .R. § 41.41 (b )(2) ("Any argument raised in the reply brief which was
not raised in the appeal brief, or is not responsive to an argument raised in
the examiner's answer ... will not be considered by the Board ... unless
good cause is shown."). Even if this argument were timely, we do not find it
persuasive. Considering Wu's teaching that a "metal coating enhances the
heat dissipation power of the graphite body" (Wu i-f 12), we agree with the
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Application 12/400,424
Examiner that a person of ordinary skill would have recognized the
improved thermal transfer properties of a metallic coating (Ans. 5) and be
motivated to line Klett's passageways in the carbon foam block with a
metallic coating in place of inserting pipes through the passageways in order
to "reduce[] pipe thicknesses and improve[] contact between the graphite
and passageway piping" (Non-Final Act. 3). Appellants' argument does not
apprise us of error in these findings or conclusions by the Examiner.
For the foregoing reasons, we sustain the rejection, under 35 U.S.C.
§ 103(a), of claim 18, and claims 19, 23, and 24 for which Appellants rely
on the same arguments and reasoning, as unpatentable over Klett, Wu, and
Rasmussen.
Rejection II
The Examiner rejects claims 21 and 22 under 35 U.S.C. § 103(a) as
unpatentable over Klett, Wu, Rasmussen, and Udell. Non-Final Act. 4.
Claims 21 and 22 depend from independent claim 18. Appellants rely on the
same arguments and reasoning that we found unpersuasive for independent
claim 18 as described supra. See App. Br. 5. For the foregoing reasons, we
sustain the rejection, under 35 U.S.C. § 103(a), of claims 21and22 as
unpatentable over Klett, Wu, Rasmussen, and Udell.
Rejection III
Dependent claim 20 recites that the "body of graphic2 foam material
includes a face providing an undulating cross sectional configuration
including alternating ribbed and trough areas." App. Br., Claims App. The
Examiner acknowledges that the combination of Klett, Wu, and Rasmussen
2 Appellants state that they will seek to correct this typographical error so as
to correctly recite "graphite." Reply Br. 3, n. 1.
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Application 12/400,424
fails to teach "the undulating cross section of alternating ribs and troughs on
the outer surface," but finds that Dupree teaches "a carbon foam block heat
exchanger with an undulating cross section of alternating ribs (170) and
troughs (172) on the entire outer surface of the carbon block." Non-Final
Act. 4 (citations omitted) (citing Dupree, Abstract, Fig. 4 ). The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
"to provide ribs and troughs on the outer surface of the graphite radiator
block of Klett in view of Wu and Rasmussen, as taught by Dupree, in order
to increase turbulence and surface area." Id. at 4--5.
Appellants argue that Dupree's ridges "merely ... guide the heat
exchange medium along the periphery of the foam block," but "[s]uch ridges
do not face and receive therethough a coolant which is conducted to a
metallic coating in heat exchange relation as in the claimed invention."
App. Br. 4--5. Appellants state, in summary, that "Dupree ... does not teach
a face configuration of a foam body intended to guide a coolant into a heat
exchange relationship with a metal coated passageway of such a foamed
body." Id. at 5. Again, Appellants' argument improperly attacks Dupree
individually without addressing the Examiner's proposed combination which
is based on the device of Klett, as modified by the teachings of Wu,
Rasmussen, and Dupree. Appellants' argument does not persuade us of any
error in the Examiner's findings with respect to each reference of the
proposed combination or in the Examiner's underlying conclusion of
obviousness, for which the Examiner has articulated reasoning having
rational underpinnings.
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For the foregoing reasons, we are not persuaded of Examiner error
and we sustain the Examiner's rejection under 35 U.S.C. § 103(a) of claim
20 as unpatentable over Klett, Wu, Rasmussen, and Dupree.
DECISION
The Examiner's decision to reject claims 18-24 is 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).
AFFIRMED
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