Ex Parte Kaellis

Board of Patent Appeals and Interferences

Apr 29, 2004

09680387 (B.P.A.I. Apr. 29, 2004)

1 In rendering our decision, we have considered Appellant’s arguments presented in the
Brief, filed May 5, 2003.
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written for publication and is not binding precedent of the Board.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. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex Parte JOSEPH KAELLIS
_______________
Appeal No. 2004-1037
Application No. 09/680,387
_______________
ON BRIEF
_______________
Before GARRIS, DELMENDO and JEFFREY T. SMITH, Administrative Patent
Judges.
JEFFREY T. SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Applicant appeals the decision of the Primary Examiner’s refusal to allow
claims 11, 12, 15, 18 and 20, all of the pending claims.1 We have jurisdiction under
35 U.S.C. § 134.
Appeal No. 2004-1037
Application No. 09/680,387
- 2 -
THE INVENTION
The Appellant’s claimed invention relates to a heat exchanger having a tube
bundle inside of a shell. The tubes have mini-vortex generators comprising ridge
members that encircle at least a portion of the exterior surface of tube. According to
Appellant, “[t]he mini-vortex generators function to abruptly interrupt the flow of the
shell fluid proximal to the exterior surface of the tube.” (Brief, p. 2). Claim 11 which
is representative of the invention is reproduced below:
11. A heat exchanger comprising:
(a) a shell;
(b) a tube bundle inside the shell, the tube bundle comprising a plurality
of substantially parallel tubes for passage of a first fluid, each tube
having a base diameter of between about 0.5" and about 1", at least a
portion of the tubes having on their exterior surface mini-vortex
generators comprising two or more ridge members that encircle at least a
portion of the exterior surface of a tube, the height of each ridge
member being between about 0.2 mm and about 1.0 mm, the spacing
between any two ridge members being between about 2 mm and about
40 mm;
(c) a sinuous baffle for supporting the tubes, the sinuous baffle
comprising a plurality of wiggle bar tube support members disposed
between the tubes;
(d) a tube inlet for passage of the first fluid into the tubes and a tube
outlet for passage of the first fluid out of the tube;
Appeal No. 2004-1037
Application No. 09/680,387
- 3 -
(e) a shell outlet for passage of a second fluid into the shell and exterior
of the tubes and a shell outlet for withdrawing a second fluid from the
shell, wherein the first and second fluid are passed either countercurrent,
co-current, or in multi-pass substantially parallel flow, and when the
fluids are at different temperatures, a transfer of heat occurs between the
fluids.
As evidence of unpatentability, the Examiner relies on the following
references:
Pettigrew 3,837,397 Sept. 24, 1974
McClintock 4,588,027 May 13, 1986
THE REJECTION
The Examiner rejected claims 11, 12, 15, 18 and 20 under 35 U.S.C. § 103(a)
as obvious over the combination of McClintock and Pettigrew. (Answer, pp. 3-4).
OPINION
Upon careful review of the respective positions advanced by Appellant and the
Examiner, we find ourselves in agreement with Appellant’s position in that the
Examiner has failed to carry the burden of establishing a prima facie case of
obviousness. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88 (Fed. Cir.
1984). Accordingly, we will not sustain the Examiner’s rejection. We will limit our
discussion to claim 11, the sole independent claim on appeal.
Appeal No. 2004-1037
Application No. 09/680,387
- 4 -
We find claim 11 is directed to a heat exchanger that comprise tubes wherein
the exterior surface of the tubes comprises two or more ridge members that encircle at
least a portion of the exterior surface of a tube. The height of each ridge member is
between about 0.2 mm and about 1.0 mm. The ridge members are spaced between
about 2 mm and about 40 mm. The heat exchanger also comprises a sinuous baffle
for supporting the tubes. The sinuous baffle comprises a plurality of wiggle bar tube
support members disposed between the tubes.
The Examiner rejects the subject matter of claim 11 over the combination of
McClintock and Pettigrew. According to the Examiner, McClintock teaches a heat
exchanger that comprises all of the components except for the height and spacing of
the ridge members and the sinuous baffle (Answer, p. 3). The Examiner relied on
the Pettigrew reference for teaching a heat exchanger with sinuous baffles which
minimize the spacing of the tubes. (Answer, p. 3). The Examiner concluded that it
would have been obvious to use a sinuous baffle to minimize the spacing of the tubes
in the heat exchanger of McClintock. The Examiner also concluded that it would
have been obvious to employ any ridge spacing to achieve a desired pressure drop or
heat transfer efficiency. Further, the Examiner concluded that it would have been
obvious to optimize the height of McClintock’s ridge members. (Answer, p. 4).
Appeal No. 2004-1037
Application No. 09/680,387
- 5 -
We reverse. We agree with the Appellant, Brief page 7, that the fins (ridge
members) of McClintock serve a different purpose. The fins of McClintock function
to interlock with the rod serrations creating tension and compression forces to support
the tubes in place and prevent vibration. (Col. 2, ll. 33-36). The Examiner has not
directed us to evidence that the optimization of the height of the fins of McClintock
for preventing vibration would necessarily result in the creation of mini-vortex
generators as required by claim 11.
We also agree with Appellant that a person of ordinary skill in the art would
not have been motivated to combine the teachings of the McClintock and Pettigrew
references. (Brief, pp. 9-11). The Examiner asserts that there is no difference
between the claimed wiggle bar tube support member and the sinuous baffle disclosed
by Pettigrew. (Answer, p. 6). We do not agree. McClintock uses the serrated rods
(21) to interlock with the fins on the tubes for support and to prevent vibration. The
Examiner has not addressed whether the combination of McClintock and Pettigrew
would employ a sinuous baffle that has serrations. The Examiner also has chosen not
to address the Appellant’s argument, Brief, page 11, that if McClintock’s rods had
sinusoidal waves that the rods could not be inserted or rotated to engage with the fins
of the tubes.
Appeal No. 2004-1037
Application No. 09/680,387
- 6 -
For the foregoing reasons and those stated in the Brief, we determine that the
Examiner’s conclusion of obviousness is not supported by facts. “Where the legal
conclusion [of obviousness] is not supported by facts it cannot stand.” In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Appeal No. 2004-1037
Application No. 09/680,387
- 7 -
CONCLUSION
The rejection of claims 11, 12, 15, 18 and 20 under 35 U.S.C. § 103(a) over
the combination of McClintock and Pettigrew is reversed.
REVERSED

BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
ROMULO H. DELMENDO ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JEFFREY T. SMITH )
Administrative Patent Judge )
JTS:psb
Appeal No. 2004-1037
Application No. 09/680,387
- 8 -
Sheldon & Mak, Inc.
225 South Lake Avenue
9th Floor
Pasadena, CA 91101