Ex Parte Kopko et alDownload PDFPatent Trial and Appeal BoardAug 25, 201712726895 (P.T.A.B. Aug. 25, 2017) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/726,895 03/18/2010 William L. Kopko JOCI:0040/YOD/HEW 2181 75576 7590 08/28/2017 Johnson Controls, Inc. c/o Fletcher Yoder PC P.O. Box 692289 Houston, TX 77269 EXAMINER ZERPHEY, CHRISTOPHER R ART UNIT PAPER NUMBER 3744 MAIL DATE DELIVERY MODE 08/28/2017 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WILLIAM L. KOPKO and MUSTAFA K. YANIK ____________ Appeal 2016-0052851 Application 12/726,8952 Technology Center 3700 ____________ Before HUBERT C. LORIN, NINA L. MEDLOCK, and BRUCE T. WIEDER, Administrative Patent Judges. MEDLOCK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 3–8, 10–18, 21, and 23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our decision references Appellants’ Appeal Brief (“App. Br.,” filed October 15, 2015) and Reply Brief (“Reply Br.,” filed April 15, 2016), and the Examiner’s Answer (“Ans.,” mailed February 17, 2016) and Final Office Action (“Final Act.,” mailed May 11, 2015). 2 Appellants identify Johnson Controls Technology Company as the real party in interest. App. Br. 2. Appeal 2016-005285 Application 12/726,895 2 CLAIMED INVENTION Appellants’ claimed invention “relates generally to free cooling refrigeration systems” (Spec. ¶ 2). Claims 1, 10, and 18 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A refrigeration system comprising: a free cooling system configured to exchange heat between a cooling fluid and ambient air; a heat exchanger common with the free cooling system and a vapor-compression refrigeration system, the heat exchanger configured to receive a refrigerant and to transfer heat from the refrigerant to the cooling fluid, wherein the heat exchanger is disposed upstream of a condenser, and wherein the heat exchanger and the condenser are on a high-pressure side of the vapor-compression refrigeration system; a first circuit of the free cooling system, the first circuit extending from a load to an inlet of an ambient heat exchanger, through the ambient heat exchanger to an exit of the ambient heat exchanger, from the exit of the ambient heat exchanger through an evaporator of the vapor-compression refrigeration system, and back to the load from the evaporator; and a second circuit of the free cooling system, the second circuit extending from the exit of the ambient heat exchanger, through the heat exchanger common with the free cooling system and the vapor-compression refrigeration system, and to the inlet of the ambient heat exchanger. REJECTIONS Claims 1, 3–5, 7, 8, 10–18, 21, and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over Chambers (GB 2145217, pub. Mar. 20, 1985), Roberto (US 6,640,561 B2, iss. Nov. 4, 2003), and Jonsson (US 4,199,955, iss. Apr. 29, 1980). Appeal 2016-005285 Application 12/726,895 3 Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over Chambers, Roberto, Jonsson, and Sulzer (CH 392576, iss. May 31, 1965). ANALYSIS Independent Claims 1, 10, and 18 and Dependent Claims 3–5, 7, 8, 11–17, 21, and 23 Appellants argue claims 1, 3–5, 7, 8, 10–18, 21, and 23 as a group (App. Br. 6–12). We select independent claim 1 as representative. The remaining claims stand or fall with claim 1. See 37 C.F.R. §41.37(c)(1)(iv). In rejecting claim 1 under 35 U.S.C. § 103(a), the Examiner acknowledges that Chambers fails to disclose a heat exchanger upstream of a condenser, i.e., “a heat exchanger common with the free cooling system and a vapor-compression refrigeration system, . . . wherein the heat exchanger is disposed upstream of a condenser,” as recited in claim 1 (Final Act. 4). The Examiner cites Jonsson to cure the deficiency of Chambers (id. at 5). And the Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of Appellants’ invention “to have provided Chambers with a condenser downstream of the heat exchanger as taught by Jonsson in order to liberate excess heat from the refrigerant and allow the refrigeration cycle to function more efficiently” (id. (citing Jonsson, col. 3, ll. 15–20)). Appellants assert that the Examiner erred in rejecting independent claim 1 under § 103(a) because the hypothetical combination of Chambers and Jonsson, “at most, teaches or fairly suggests a heat exchanger common to a vapor-compression refrigeration cycle and a free cooling loop downstream of a water-cooled heat exchanger, rather than a common heat exchanger disposed upstream of a condenser,” as recited in claim 1 (App. Appeal 2016-005285 Application 12/726,895 4 Br. 8–9). Appellants ostensibly maintain that the combination of Chambers and Jonsson, thus, at best, teaches or suggests “adding the heat exchanger of Jonsson upstream of the ‘top heat exchanger in system 10’ of Chambers [i.e., the claimed ‘heat exchanger common between a free cooling system and a vapor-compression refrigeration system’]” (id. at 9).3 But Appellants offer no persuasive argument or technical reasoning to support that position. We also are not persuaded by Appellants’ further argument that “adding the heat exchanger of Jonsson downstream of the ‘top heat exchanger in system 10’ of Chambers would be superfluous, and thus, not obvious to one of ordinary skill in the art” (id. at 9–10). Appellants argue that positioning an additional heat exchanger downstream of the “top heat exchanger in system 10” would be superfluous because the “top heat exchanger in system 10” is already condensing the refrigerant flowing through the chiller 10 of Chambers” (id.).4 Yet, even assuming, that the Chambers heat exchanger condenses refrigerant flowing through chiller 10, positioning the Jonsson condenser downstream of the Chambers heat exchanger still would not be superfluous because, as the Examiner observes, the Jonsson condenser “may then serve to condense any remaining vapor refrigerant or provide subcooling,” both of which function to increase the efficiency of the refrigeration system (Ans. 15). 3 As Appellants observe, adding the Jonsson condenser upstream of the Chambers heat exchanger is inconsistent with the claim language (App. Br 9). It also is not what the Examiner proposed. 4 Appellants observe, “it appears that the chiller 10 of Chambers is a vapor- compression refrigeration cycle, and that the ‘top heat exchanger in system 10’ is a condenser” (App. Br. 10). Appeal 2016-005285 Application 12/726,895 5 Appellants also argue that the Examiner’s proposed modification of Chambers would not have been obvious because adding the heat exchanger of Jonsson downstream of the “top heat exchanger in system 10” of Chambers would not change the functional properties of the system and would add an extra component (and extra expense) to the system without any additional benefit (App. Br. 10–11). Yet Appellants do not dispute the Examiner’s finding that the additional heat exchanger provides additional heat dissipation and, therefore, increased efficiency and reduced compressor operating temperature (Ans. 15). To the contrary, Appellants concede that “adding the heat exchanger of Jonsson to the system of Chambers may possibly enhance efficiency of the system of Chambers” (Reply Br. 3). Appellants argue that the added expense of the heat exchanger outweighs any potential benefit and that adding a heat exchanger is inconsistent with Chambers’s intended purpose of constructing an air conditioning system that is relatively inexpensive (App. Br. 11; see also Reply Br. 3–4). But Appellants identify no evidence of record, short of attorney argument, to support that position. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney argument cannot take the place of evidence in the record). Moreover, even assuming arguendo that Chambers and Jonsson would not have been combined for economic reasons, this does not mean that the combination would have been non-obvious to a person of ordinary skill in the art. Appellants do not dispute that using a plurality of heat exchangers on the high pressure side of a refrigeration system is well-known (see Ans. 13). Nor do Appellants contend that there is any technical incompatibility to prevent the Examiner’s proposed combination of Appeal 2016-005285 Application 12/726,895 6 Chambers and Jonsson. “[T]he fact that the two disclosed apparatus would not be combined by businessmen for economic reasons is not the same as saying that it could not be done because . . . there was some technological incompatibility that prevented their combination. Only the latter fact is telling on the issue of nonobviousness.” Orthopedic Equip. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983). Finally, Appellants argue that the Examiner’s position is “clearly based on hindsight improperly gained from the present disclosure” and that “the examiner failed to produce at least an articulated reasoning with a rational underpinning to support the hypothetical combination of the discrete components of Chambers and Jonsson” (App. Br. 12). As described above, the Examiner provides articulated reasoning with some rational underpinning to support the obviousness conclusion. Specifically, the Examiner finds that it would have been obvious to provide Chambers with a condenser downstream of the heat exchanger, as taught by Jonsson, “in order to liberate excess heat from the refrigerant and allow the refrigeration cycle to function more efficiently” (Final Act. 4–5 (citing Jonsson col. 3, ll. 15–20)). It is clear from the record that the Examiner’s rejection is based on the disclosures of Chambers and Jonsson, and not on the disclosure of Appellants’ application. We are not persuaded that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner’s rejection of claim 1, and claims 3–5, 7, 8, 10–18, 21, and 23, which fall with claim 1. Appeal 2016-005285 Application 12/726,895 7 Dependent Claim 6 Claim 6 depends from independent claim 1. Appellants do not present any argument in support of the patentability of dependent claim 6 except to assert that Sulzer does not cure the alleged deficiencies of Chambers, Roberto, and Jonsson, and that claim 6 is allowable for the same reasons set forth with respect to claim 1 (App. Br. 12–13). We are not persuaded for the reasons set forth above that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner’s rejection of dependent claim 6. DECISION The Examiner’s rejections of claims 1, 3–8, 10–18, 21, and 23 under 35 U.S.C. § 103(a) are 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation