Ex Parte Junge

Patent Trial and Appeal Board

Mar 7, 2014

11457157 (P.T.A.B. Mar. 7, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte BRENT A. JUNGE
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Appeal 2012-000950
Application 11/457,157
Technology Center 3700
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Before MEREDITH C. PETRAVICK, GAY ANN SPAHN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1, 4, 6-8, 11, 13, and 14. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2012-000950
Application 11/457,157

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Claimed Subject Matter
Claims 1 and 8 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A refrigeration appliance comprising:
a cabinet having a first compartment and a second
separate compartment,
a refrigeration system including a compressor, an
evaporator and a condenser, the evaporator being associated
with the first compartment to lower a temperature of the first
compartment air,
a heat exchanger being exposed to the temperature of the
first compartment and having a surface area in the form of a flat
plate with a plurality of ribs exposed to second compartment
air,
an air moving device associated with the second
compartment to direct a flow of second compartment air over
the heat exchanger surface area and circulate the second
compartment air within the second compartment, the air
moving device arranged to operate at a speed to produce a
volume flow rate of air greater than 8 cfm and not greater than
about 25 cfm in the second compartment, the ribs on the plate
being oriented in a direction of air flow of the second
compartment air over the plate,
the cabinet, compartments and heat exchanger being
configured such that first compartment air is completely
isolated from second compartment air.

Claim 8 is similar to claim 1 in that it recites:
A refrigeration appliance comprising . . . a second fan in
air flow communication with the second compartment to direct
a flow of second compartment air over the heat exchanger
second surface area and circulate the second compartment air
within the second compartment, the second fan arranged to
operate at a speed to produce a volume flow rate of air in the
range of 20 to 25 cfm in the second compartment . . . .

App. Br., Clms. App’x.
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Application 11/457,157

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Rejections
Claims 1, 4, 7, 8, 11, and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wurtz (US 2,982,115, iss. May 2, 1961), Frohbieter (US
4,722,200, iss. Feb. 2, 1988), and Baker (US 5,588,484, iss. Dec. 31, 1996).
Claims 6 and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Wurtz, Frohbieter, Baker, and Stevens (US 3,359,751, iss. Dec. 26,
1967).

OPINION
The Examiner finds that Wurtz discloses an air moving device
(impeller) 94, a first compartment 20, a second compartment 24, and a heat
exchange surface area (drip pan) 30. Ans. 5. The Examiner finds that
Wurtz, as modified by Frohbieter’s teachings1, would not have resulted in an
“air moving device . . . arranged to operate at a speed to produce a volume
flow rate of air greater than 8 cfm and not greater than about 25 cfm in the
second compartment,” as recited in claim 1. Ans. 6. The Examiner relies on
Baker to help remedy this deficiency of Wurtz’s disclosure with regard to
claim 1. The Examiner finds that Baker discloses an air moving device that
operates at 40 cubic feet per minute (cfm). Id. Further, the Examiner
concludes:
In view of Baker[’s] . . . teaching, it would have been
obvious to one of ordinary skill in the art at the time of
invention to modify the fan [(air moving device)] of Wurtz to
operate at a given speed as described by Baker . . . in order to

1 The Examiner finds that Wurtz lacks, and Frohbieter teaches, “a flat plate
with a plurality of ribs, the ribs on the plate being oriented in a direction of
air flow of the second compartment air over the plate” and then modifies
Wurtz’s refrigerator appliance in view of Frohbieter’s teaching. Ans. 5-6.
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optimize the efficiency of the refrigeration system and provide a
uniform air flow throughout the refrigeration device. It would
have been obvious to one having ordinary skill in the art at the
time the invention was made to determine the optimal fan
operating speed, since it has been held that discovering an
optimum value of a result effective variable involves only
routine skill in the art.
Id. (citing In re Boesch, 617 F.2d 272 (CCPA 1980)) (emphasis added); see
also Ans. 14 (citing In re Aller, 220 F.2d 454 (CCPA 1955)). The Examiner
explains that:
. . . the fan speed is related to the cooling the efficiency of the
refrigerator. Thus, the variable is the fan speed and the result is
efficiency. By experimenting with different fan speeds, one of
ordinary skill in the art would be able to determine the optimal
speed with witch [sic, which] to operate the fan at to achieve
the highest efficiency from the system.
Ans. 14 (emphasis added).
However, the Examiner’s conclusion of obviousness, based on the
optimization of a result effective variable, is flawed for the following
reasons. See App. Br. 13-16, Reply Br. 7-8.
As discussed above, the Examiner supports the obviousness rejection
by citing to case law concerning the optimization of ranges, e.g., In re Aller.
Aller established two conditions for a conclusion of obviousness: 1) the
general conditions of the claim must be disclosed in the prior art and 2)
discovery of the optimum or workable range must be a matter of routine
experimentation for a person of ordinary skill in the art. Aller, 220 F.2d at
456 (citations omitted). Aller does not apply in this case at least because the
general conditions of the claim were not disclosed in the prior art.
First, the prior art does disclose an air flow moving device having a
volume flow rate range that overlaps with the air moving device’s claimed
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volume flow rate, i.e., “a volume flow rate of air greater than 8 cfm and not
greater than about 25 cfm in the second compartment” (App. Br., Clms.
App’x. (emphasis added)). As discussed above, the Examiner finds that
Wurtz, as modified by Frohbieter, does not disclose the claimed range.
Ans. 6. Although the Examiner offers as evidence the Appellant’s
acknowledgement that refrigerator appliances typically have volume flow
rates of 5 to 8 cfm (Ans. 13; see Spec. para. [0028])), due to Wurtz’s silence
concerning the volume flow rate of its air moving device it is unclear if it is
in the range of 5 to 8 cfm. Moreover, assuming Wurtz’s air moving device
does operate at a fan speed that produces a typical volume flow rate of 5 to 8
cfm, it is unclear where exactly within the range Wurtz’s air moving device
operates. As for Baker, its refrigerator fan system delivers at least 40 cfm of
air. App. Br. 13 and 15 (citing Baker, col. 1, ll. 56-57 and col. 3, ll. 64-65).
As such, the prior art, as applied by the Examiner, does not overlap with the
claimed range, i.e., “a volume flow rate of air greater than 8 cfm and not
greater than about 25 cfm in the second compartment.”
Second, “Baker does not teach or suggest the use of a fan to direct a
flow of air over a flat plate heat exchanger, with the air being circulated
through the second compartment of a refrigeration appliance.” App. Br. 13;
see App. Br. 16. As such, the modification of Wurtz’s air moving device 94
in view of Baker’s teachings is not based on an air moving device that
circulates air flow through a compartment of a refrigeration appliance.
Hence, it is unclear how Baker’s air moving device would help teach an air
moving device arranged to operate at a speed to produce a volume flow rate
of air in the claimed range.
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Additionally, the Examiner appears to support the further
modification of Wurtz in view of Baker by finding that increasing fan speed
increases air speed and improves the thermal efficiency of a heat exchanger.
See Ans. 13. More specifically, the Examiner determines “it is well known
in thermodynamics that an increased air speed across a heat exchanger will
result in the predictable result of increased heat transfer of the heat
exchanger, therefore improving the thermal efficiency of the heat
exchanger.” Ans. 13. This finding by the Examiner does not appear to
support the Examiner’s further modification of Wurtz in view of Baker,
because Baker teaches improving efficiency by using a fan that is different
than a conventional fan so that its fan operates at lower speeds of rotation to
meet performance standards. See Baker, col. 4, ll. 1-12. Accordingly,
Baker’s teaching concerning efficiency is not based on increasing fan speed
but decreasing fan speed and using a fan that is different than a conventional
fan.
Thus, the Examiner’s rejection of claim 1, and its dependent claims,
as unpatentable over Wurtz, Frohbieter, and Baker is not sustained.
The Examiner’s rejection of claim 8 is similar to the Examiner’s
rejection of claim 1. See Ans. 4-9. For similar reasons to those discussed
above with respect to the rejection of claim 1, we do not sustain the rejection
of claim 8, and its dependent claims, as unpatentable over Wurtz, Frohbieter,
and Baker.
As for the rejection of claims 6 and 13 over Wurtz, Frohbieter, and
Baker, in combination with Stevens, this rejection relies on the same
unsupported conclusion as discussed above. Additionally, the Examiner
does not point out how the teachings of Stevens might remedy the
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unsupported conclusion in the rejection of claims 1 and 8. Thus, we do not
sustain the rejection of claims 6 and 13, which depend from claims 1 and 8,
respectively, as unpatentable over Wurtz, Frohbieter, Baker, and Stevens.

DECISION
We REVERSE the rejections of claims 1, 4, 6-8, 11, 13, and 14.

REVERSED

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