Ex Parte Gassen et alDownload PDFPatent Trial and Appeal BoardAug 21, 201812682440 (P.T.A.B. Aug. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 12/682,440 50811 7590 O""Shea Getz P.C. FILING DATE FIRST NAMED INVENTOR 07/12/2010 Heinz Gassen 08/23/2018 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. PA-120.00142-US 2905 EXAMINER 10 Waterside Drive, Suite 205 ARANT, HARRY E Farmington, CT 06032 ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 08/23/2018 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): uspto@osheagetz.com shenry@osheagetz.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HEINZ GASSEN and PETER LEWEKE Appeal 2017-011122 Application 12/682,440 Technology Center 3700 Before STEVEN D.A. McCARTHY, CHARLES N. GREENHUT, and SEAN P. O'HANLON, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1, 3---6, and 9--16. We have jurisdiction under 35 U.S.C. § 6(b ). We reverse. CLAIMED SUBJECT MATTER The claims are directed to a refrigerating system and method for controlling the same. Claim 1, reproduced below, with emphasis added, is illustrative of the claimed subject matter: 1. Refrigerating system having a refrigerant circuit comprising: Appeal 2017-011122 Application 12/682,440 at least one compressor, a condenser/gascooler, an intermediate pressure container, at least one evaporator and a respective expansion device before said at least one evaporator, and refrigerant pipes connecting said elements and circulating a refrigerant therethrough; a high pressure regulating device between the condenser/gascooler and the intermediate pressure container, expanding the refrigerant from a high pressure level to an intermediate pressure level; an intermediate pressure sensor sensing the intermediate pressure level; and a control unit controlling the high pressure regulating device; wherein the control unit is configured to set a maximum flow value F Max as a limit for a refrigerant flow through the high pressure regulating device, wherein the control unit is configured to compare the sensed intermediate pressure level to a fixed predetermined threshold value P1ntTh, wherein the predetermined threshold value P1ntTh is between a fixed reference intermediate pressure value P1ntRef, being the desired operating point of the intermediate pressure level, and a maximum allowable intermediate pressure value P1ntMax, wherein the control unit is configured, as a function of said comparison of the sensed intermediate pressure level to the predetermined threshold value P1ntTh, to set the maximum flow value F Max to less than a maximum flow value F TecMax that the high pressure regulating device technically supports, wherein the refrigerant circuit additionally comprises a high pressure sensor sensing the high pressure level, wherein the control unit is configured to set a desired actual flow value for the refrigerant flow through the high pressure regulating device based on the sensed high pressure level, wherein the desired actual flow value does not exceed the maximum flow value F Max. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Dimitroff Thuesen Lofland Sienel us 4,402,183 us 4,966,006 us 5,647,961 US 6,385,980 Bl 2 Sept. 6, 1983 Oct. 30, 1990 July 15, 1997 May 14, 2002 Appeal 2017-011122 Application 12/682,440 Martin Komatsu Okaza US 2004/0031280 Al Feb. 19, 2004 US 2006/0288732 Al Dec. 28, 2006 JP 2001-133058 A May 18, 2001 REJECTIONS Claims 1, 3-6, and 9-16 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Claims 1, 9, 10, 13, 15, and 16 1 are rejected under 35 U.S.C. § I02(b) as being anticipated by Okaza. Claim 3 is rejected under 35 U.S.C. § I03(a) as being unpatentable over Okaza and Dimitroff. Claim 4 is rejected under 35 U.S.C. § I03(a) as being unpatentable over Okaza and Komatsu. Claims 5 and 6 are rejected under 35 U.S.C. § I03(a) as being unpatentable over Okaza, Komatsu, and Thuesen. Claim 11 is rejected under 35 U.S.C. § I03(a) as being unpatentable over Okaza and Sienel. Claim 12 is rejected under 35 U.S.C. § I03(a) as being unpatentable over Okaza and Lofland. Claim 14 is rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Okaza and Martin. 1 A typographical error in the rejection statement included canceled claim 19 instead of claim 16, which is discussed in the body of the rejection. 3 Appeal 2017-011122 Application 12/682,440 § 112,first paragraph, rejection 2 OPINION The Examiner rejected independent claims 1 and 16 and their dependents under § 112, first paragraph, for failure to comply with the written description requirement because "[ n ]owhere in the specification as originally filed does it state that [predetermined threshold and reference intermediate pressure] values are fixed." Final Act. 3. New or amended claims which introduce elements or limitations which are not supported by the as-filed disclosure violate the written description requirement. See, e.g., In re Lukach, 442 F .2d 967 (CCP A 1971 ). Although there is no in haec verba requirement, the fundamental factual inquiry is whether the original disclosure, including the drawings, conveys with reasonable clarity to those skilled in the art that, as of the filing date sought, applicant was in possession of the invention as now claimed. See, e.g., Vas Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563--4 (Fed. Cir. 1991). Appellants, citing, among other things, Figure 3 of the disclosure, point out that PrntTo, the pressure threshold value, and PrntRef, the reference intermediate pressure value, are depicted as "fixed" over an interval of time. The Examiner does not provide any explanation, and we are not aware of any, as to why this disclosure does not suffice to adequately describe, and thus, demonstrate possession of, the subject matter of claims 1 and 16 including the "fixed" values mentioned. Accordingly, we do not sustain the Examiner's rejection under§ 112, first paragraph. 2 The Examiner did not respond to Appellants' arguments concerning this rejection, or indicate that this rejection has been withdrawn, in the Examiner's Answer. This rejection is presumed outstanding and under appeal. See 37 C.F.R. § 4I.39(a)(l). 4 Appeal 2017-011122 Application 12/682,440 Prior-art rejections All of the prior-art rejections before us hinge on the Examiner's finding that Okaza 3 discloses a control unit configured to perform ( claim 1 ), or performing ( claim 16), the functions emphasized above. For this disclosure the Examiner relies heavily on paragraph 49 of the machine translation of Okaza, which is reproduced below in its entirety. Specifically, it is good to, adjust the first pressure reducer and/, or the amount of decompression of the second pressure reducer for example, so that it may be subsided in the pressure range in which below the critical pressure of a refrigerant makes middle refrigerant pressure 0.8xroot (PhxPl) - 1.2xroot (PhxPl), if Ph and low stage lateral pressure are set to Pl for high rank lateral pressure. Paragraph 49 is not a model of clarity, but the Examiner regards the expression, "1.2xroot (PhxPl)" as the recited "fixed predetermined threshold value," and the expression "0.8xroot (PhxPl)" as the recited "fixed reference intermediate pressure." Final Act. 4. Appellants argue that "the lower and upper ends of the control range of Okaza are dependent on (e.g., are functions of) the momentary pressure values of the high pressure portion and the low pressure portion of the system (Ph and Pl). Hence, they are clearly not fixed values." (Br. 14). Appellants do not provide any specific citation in support of their assertion that Ph and Pl represent momentary pressures as opposed to fixed values. However, paragraph 6 of Okaza, although also not entirely clear, does seem to support Appellants' contention that these values represent sensed or measured values based on detected temperatures. See, e.g., Okaza Figure 1 (sensors 8-10). The Examiner does not dispute Appellants' assertion that Ph 3 Paragraph references to Okaza refer to the machine translation of record. 5 Appeal 2017-011122 Application 12/682,440 and Pl represent momentary detected pressures. Rather, the Examiner states, "The[] values [0.8xroot (PhxPl) and 1.2xroot (PhxPl)] are fixed relative to the high stage pressure and the low stage pressure." Ans. 2. 0.8xroot (PhxPl) and l.2xroot (PhxPl) represent, respectively, 80% and 120% of the geometric mean of Ph and Pl. Under the Examiner's interpretation, one skilled in the art would understand a mean or average to be "fixed" so long as it is fixed with respect to the things being averaged. Mathematical averages, including geometric means, are functions of their data set; they will always be the same if the data set remains the same. Thus, there is no need for one skilled in the art to describe such averages as fixed with respect to the things averaged. The Examiner's interpretation of the descriptive term "fixed" in this manner essentially deprives the term of having any meaning and is divorced from the Specification which, as discussed above, illustrates these values are fixed with respect to time. "[When giving claim] terms their broadest reasonable construction, the construction cannot be divorced from the specification." In re NTP, 654 F. 3d 1279, 1288 (Fed. Cir. 2011). Although a term not expressly defined in the Specification may have reasonable interpretations broader than those used to describe the preferred embodiments, where the Examiner departs from the ordinary usage of a term or the meaning of a term as used in the Specification it is incumbent upon the Examiner to provide some evidence, in the form of definitions or other instances of use in the art, or reasoning to explain why it is reasonable to expand or depart from the meaning of that term. As the Examiner has not done that in this case, the meaning of "fixed" as it is used in the Specification, to refer to fixed over a period of time, is the only reasonable understanding of the term that we are aware of and the one that we must employ for purposes of this prior art analysis. See In re Prater, 415 F .2d 6 Appeal 2017-011122 Application 12/682,440 1393, 1404---05, (CCPA 1969) ("'[R]eading a claim in the light of the specification,' to thereby interpret limitations explicitly recited in the claim, is a quite different thing from 'reading limitations of the specification into a claim,' to thereby narrow the scope of the claim by implicitly adding disclosed limitations which have no express basis in the claim."). As the Examiner makes no finding that the values 0.8xroot (PhxPl) and 1.2xroot (PhxPl), respectively regarded as the recited "predetermined threshold value" and "reference intermediate pressure" are fixed over a period of time, we do not sustain the Examiner's prior-art rejections on the basis set forth by the Examiner. DECISION The Examiner's rejections are reversed. REVERSED 7 Copy with citationCopy as parenthetical citation