Ex parte KATO et al.

Board of Patent Appeals and Interferences

Apr 26, 2000

08437808 (B.P.A.I. Apr. 26, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte SOICHI KATO and TAKASHI SUGITA
_____________
Appeal No. 1998-1425
Application 08/437,808
______________
ON BRIEF
_______________
Before CALVERT, FRANKFORT, and GONZALES, Administrative Patent
Judges.
CALVERT, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
and 2, all the claims in the application.
The claims on appeal are drawn to a method of
manufacturing flat tubes for a tube-stacking heat exchanger,
Appeal No. 1998-1425
Application No. 08/437,808
The examiner does not identify any particular portions1
of the application as constituting the AAPA; presumably she
intended to refer to the "Background of the Invention" section
on pages 1 and 2, as well as Figs. 9 and 10 (which are not
labeled "Prior Art" as required by Manual of Patent Examining
Procedure
§ 608.02(g)).
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and are reproduced in the appendix of appellants' brief.
The prior art applied in the final rejection is:
Kawase 4,852,233 Aug. 1,
1989
The admitted prior art disclosed in appellants' application
(AAPA).1
Claims 1 and 2 stand finally rejected under 35 U.S.C.
§ 103(a) as unpatentable over AAPA in view of Kawase.
The basis of the rejection, as stated on page 2 of the
final rejection (Paper No. 6), is:
AAPA teaches a method of making a heat exchanger
essentially as claimed but lacking a teaching of applying
the flux in the manner as claimed. AAPA does teach
applying flux to all of the surfaces, just not in the
same spraying manner. Kawase teaches applying a coating
to heat exchangers of the same type as claimed, however
the material applied is zinc rather than flux. However,
it is applied in the same manner as claimed for the same
purpose as claimed, i.e., uniform coverage. It would
have been obvious to one of ordinary skill in the art at
the time the invention was made to modify the method as
Appeal No. 1998-1425
Application No. 08/437,808
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taught by AAPA by applying the flux in the manner claimed
since this manner of application is old and well known in
the heat exchanger art for the purpose of uniform
application.
The examiner further states on pages 4 and 5 of the answer:
The only step which is missing from AAPA is the
step of applying the coating by spraying. AAPA
teaches applying the coating by brushing of
rolling. Kawase is used to teach only this,
applying the coating to a tube by spraying. The
particular direction the spray is facing and the
tube parts are facing would clearly be a matter of
mechanics, i.e., what direction is easiest for the
application. This would be true whether the method
were by brush, roll, or spraying.
After fully considering the record in light of the
arguments
presented in appellants' brief and reply brief, and in the
examiner's answer, we conclude that claims 1 and 2 are
patentable over the applied prior art.
As a general proposition, we consider that it would have
been obvious, in view of the AAPA's disclosure of applying
flux by brushing or rolling, to apply flux to the plate
material from which the tubes are to be formed by spraying,
spraying being a notoriously well known method of applying a
Appeal No. 1998-1425
Application No. 08/437,808
Also, although not applied by the examiner, we note that2
several of the references of record disclose spraying flux
onto heat exchanger parts prior to brazing. See, e.g.,
Saperstein et al. (Pat. No. 4,688,311), col. 5, lines 51 to
55, and Barten et al. (Pat. No. 5,322,209), col. 1, lines 28
to 35.
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coating. However, claims 1 and 2 require that the flux be2
sprayed in a particular manner, namely, that prior to forming
the tube the plate material be placed with its inner surface
facing downwardly and the flux material be sprayed upwardly to
flux the inner surface of the plate material as the plate
material passes over the flux material spray nozzle. We find
nothing in the applied prior art to support a finding that it
would have been obvious to have sprayed the flux material of
the AAPA in this manner. In the first place, while Kawase
does disclose an upwardly-directed nozzle 2 for spraying heat
exchanger tubes 1, we do not consider that this disclosure
would have taught or suggested the claimed flux spraying
method to one of ordinary skill because the Kawase apparatus
is used for the flame spraying of zinc (to prevent corrosion),
rather than for spraying flux. Second, we do not agree with
the examiner that Kawase applies the zinc "in the same manner
as claimed," because Kawase discloses spraying the tubes 1
Appeal No. 1998-1425
Application No. 08/437,808
All references herein to the brief are to the Amended3
Brief on Appeal filed on July 22, 1999.
5
after they have been formed (by extrusion), while claims 1 and
2 call for spraying the plate material before the tubes are
formed. As a result, in Kawase only the outer surface of the
tubes is sprayed, whereas in appellants' claimed process the
flux is sprayed on the inner surface of the plate material.
As appellants state on page 4 of the brief, "[i]n Kawase, it3
is impossible to spray the flux to the inner surface of a flat
tube because the extruded flat tube is already closed." Thus,
modifying the AAPA in view of the teachings of Kawase would
not result in the process recited in claims 1 and 2.
In the above-quoted excerpt from pages 4 and 5 of the
examiner's answer, the examiner seems to take the position
that, in effect, the particular spraying direction would have
been an obvious matter of choice. We disagree. As far as can
be gleaned from the AAPA, in the prior art method the flux
would be brushed or rolled onto an upwardly facing tube plate
inner surface. We perceive no suggestion or motivation in the
prior art for one of ordinary skill to invert the plate
material and then apply the flux from underneath. Also,
Appeal No. 1998-1425
Application No. 08/437,808
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spraying upwardly from below as recited in claims 1 and 2 is
not simply an arbitrary choice of direction but rather, as
disclosed in appellants' specification in the paragraph
bridging pages 4 and 5, as well as on page 9, last paragraph,
it is done in order to assure flux application to the entire
inner surface of the tube, with unnecessary extra flux
material dropping by its own weight.
Accordingly, the rejection of claims 1 and 2 will not be
sustained.
Conclusion
The examiner's decision to reject claims 1 and 2 is
reversed.
REVERSED
Appeal No. 1998-1425
Application No. 08/437,808
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IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN F. GONZALES )
Administrative Patent Judge )
IAC:lmb
YUSUKE TAKEUCHI
KANESAKA & TAKEUCHI
1423 POWHATAN STREET
ALEXANDRIA, VA 22314
Appeal No. 1998-1425
Application No. 08/437,808
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