Ex Parte LePoudre et alDownload PDFPatent Trial and Appeal BoardNov 20, 201713797062 (P.T.A.B. Nov. 20, 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. 13/797,062 03/12/2013 Phillip Paul LePoudre 5991.035US1 1076 86245 7590 11/22/2017 Schwegman Lundberg & Woessner/NORTEK P.O. Box 2938 Minneapolis, MN 55402 EXAMINER ALVARE, PAUL ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 11/22/2017 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@slwip.com SLW @blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PHILLIP PAUL LEPOUDRE, BLAKE NORMAN ERB, and KENNETH COUTU Appeal 2017-001502 Application 13/797,062 Technology Center 3700 Before: STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Phillip Paul LePoudre et al. (“Appellants”) appeal under 35 U.S.C. § 134(a) from a rejection of claims 1—3, 6, 7, 21, 24—26, 29, and 30.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Nortek Air Solutions Canada, Inc. is the applicant as provided in 37 C.F.R. § 1.46 and is identified as the real party in interest in Appellants’ Appeal Brief. Br. 5. Appeal 2017-001502 Application 13/797,062 THE CLAIMED SUBJECT MATTER Appellants’ claimed invention concerns a membrane support assembly for an energy exchange system for conditioning air in an enclosed structure. Spec. 12. Claim 1 reproduced below is illustrative of the claimed invention and reads as follows: 1. A membrane support assembly configured to be used with an energy exchanger, wherein the membrane support system is configured to be positioned within a fluid channel between first and second membranes, the membrane support assembly comprising: at least one support member configured to span between the first and second membranes, wherein the at least one support member is configured to support the fluid channel; and at least one turbulence promoter connected to and integrally molded and formed with the at least one support member as a single piece, wherein the at least one turbulence promoter is configured to promote fluid turbulence within the fluid channel, and wherein the fluid turbulence within the fluid channel enhances energy transfer between the fluid channel and the first and second membranes. THE REJECTIONS 1) Claims 1 and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Erb (WO 2011/161547 A2, published Dec. 29, 2011) and Connors (US 2007/0056894 Al, published Mar. 15, 2007). 2) Claims 1—3, 6, and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Dawson (US 7,093,649 B2, issued Aug. 22, 2006) and Connors. 3) Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over Dawson, Connors, and Al-Otaibi (US 2012/0298340 Al, published Nov. 29, 2012). 2 Appeal 2017-001502 Application 13/797,062 4) Claims 24—26 and 29 are rejected under 35 U.S.C. § 103(a) as unpatentable over Mahmud (Khizir Mahmud, DESIGN AND PERFORMANCE TESTING OF COUNTER-CROSS-FLOW RUN-AROUND MEMBRANE ENERGY EXCHANGER SYSTEM, thesis paper submitted Sept. 2009, hereinafter “Mahmud”) and Yasutake (US 4,729,428, issued Mar. 8, 1988). 5) Claims 24—26 and 29 are rejected under 35 U.S.C. § 103(a) as unpatentable over Mahmud and Dawson. 6) Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable over Mahmud, Yasutake, and Al-Otaibi. 7) Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable over Mahmud, Dawson, and Al-Otaibi. DISCUSSION Rejection 1; Obviousness based on Erb and Connors The Examiner finds that Erb discloses a membrane support system including a support member and a turbulence promoter, but does not disclose that the support member and turbulence promoter are molded as a single piece. Final Act. 3. However, the Examiner finds that Connors teaches a turbulence promoter integrally molded and formed with a support member as a single piece. Id. (citing Connors 147). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art to form Erb’s support member and turbulence promoter as a single molded piece “to provide fewer components for a less complicated fabrication.” Id. The Examiner notes that claim 1 is a product-by-process claim, and that (1) “forming in one piece an article which has formerly been 3 Appeal 2017-001502 Application 13/797,062 formed in two pieces and put together involves only routine skill in the art” (Final Act. 4 (citing MPEP 2144.04 V (B)), that (2) Appellants have the burden “to show an unobvious difference” {id.(citing MPEP 2113)), and that (3) “the ‘patentability of a product does not depend on its method of production,’” because “the final product existing after fabrication is compared to prior art for the purposes of patentability” {id., (citing In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985))). Appellants argue that paragraph 47 of Connors “suggests that the spacers 20 and 30 are already formed, and then a screen or a turbulence promoter may then be molded into the formed spacers 20 or 30.” Br. 13—14. Appellants assert that the claimed “turbulence promoter is integrally molded and formed with the at least one support member,” whereas in Connors, the spacers (support members) are “formed separately” and then molded with the turbulence promoters. Id. According to Appellants, “integrally molding and forming a turbulence promoter with a support member . . . provide[s] robust and strong structures,” and that “separate and distinct components that are assembled together (such as in Connors) have seams, disconnected joints, and the like therebetween that provide areas of weakness, which are typically more susceptible to breaking or otherwise disconnecting.” Id. (citing Schenckv. Nortron Corp., 713 F.2d 782 (Fed. Cir. 1983)). The Examiner responds that “[o]ne of ordinary skill would recognize that when a reference states that two components are molded into each other there exists a single, integral, component.” Ans. 23. The Examiner states that Connors’ molding “creates an integrally formed component as claimed.” Id. at 24. 4 Appeal 2017-001502 Application 13/797,062 We agree with the Examiner that Connors’ molding results in “a single, integral, component.” Ans. 23. Thus, in order to overcome the rejection, Appellants must show, with evidence or persuasive technical reasoning, that the molding of Connors results in a different component than is claimed. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (“[W]hen the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.”). Connors discloses that spacers 20, 30 and screens 50, 60 (turbulence promoters) are both manufactured (formed) by molding from polypropylene and other similar materials (see Connors H 41 and 44), and the Examiner finds that this molding “creates an integrally formed component.” Ans. 24. Although Appellants argue that Connors molding process will result in seams and areas of weakness (Br. 14), attorney argument is entitled to little, if any weight, in the absence of evidence in the record to support the argument. See e.g. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). We, thus, are not persuaded by Appellants’ argument that Connors does not form an integrally molded support member. Appellants next argue that because Connors has “an intervening screen 50 between the spacer 20 and the membrane 40, the spacer 20 does not span between two membranes.” Br. 15. Appellants assert that the combination of references does not disclose a turbulence promoter configured to span between the first and second membranes. Id. The Examiner correctly responds that the rejection relies on Erb, not Connors, for this limitation. Ans. 25. Appellants’ argument is not persuasive because it does not address why Erb’s support member that includes a turbulence 5 Appeal 2017-001502 Application 13/797,062 promoter is not configured to span between the first and second membranes as the Examiner finds. See Final Act. 2. Appellants next argue that Erb and Connors are non-analogous art, because they are in different fields of endeavor, and are not pertinent to a turbulence promoter that enhances energy transfer. Br. 16. The Examiner responds that Connors and Erb both relate to turbulence promotion and heat exchangers. Ans. 27. The Examiner notes, moreover, that one of ordinary skill in the art would understand that the turbulence promotion in Connors would be relevant to enhancing heat transfer. Ans. 27—28. We agree with the Examiner that both Connors and Erb are in Appellants’ field of invention, namely, energy exchange systems. See Spec. |15. Erb, similar to the present invention, relates to “an energy exchange system for conditioning air in ... a liquid-to-air membrane energy exchanger (LAMEE).” (See Erb 12; Spec. ]Hf 2-4.) Similarly, the device of Connors includes membranes that “may be used as a heat exchanger, to transfer heat between a fluid flow in the feed channel and a fluid flow in the filtrate channel” (Connors 149), and, thus, generally relates to an energy exchange system, and, therefore, is in Appellants’ field of endeavor. We have considered all of Appellants’ arguments and are not apprised of error in the Examiner’s factual findings or reasoning. We, thus, sustain the rejection of claim 1 and claim 21 depending therefrom under 35 U.S.C. § 103(a) as unpatentable over Erb and Connors. Rejection 2; Obviousness based on Dawson and Connors The Examiner finds that Dawson discloses a membrane support system including a support member and a turbulence promoter. Final Act. 6. 6 Appeal 2017-001502 Application 13/797,062 The Examiner specifically finds that Dawson’s flow control strips 72 are turbulence promoters because “it is old and well known that reduced sections induce turbulence within a system.” Id. (citing Huazhao (US 2010/0252243 Al, published Oct. 7, 2010) in support of this position). The Examiner states that Dawson does not disclose that the support member and turbulence promoter are molded as a single piece. Id. However, the Examiner finds that Connors teaches a turbulence promoter integrally molded and formed with a support member as a single piece. Id. at 7 (citing Connors 147). According to the Examiner, it would have been obvious to form Dawson’s support member and turbulence promoter as a single molded piece “to provide fewer components for a less complicated fabrication.” Id. Appellants argue that Dawson’s “flow diverters 38 are merely used to form a flow path through a heat exchanger,” but that Dawson does not suggest that “any portion of the flow diverters 38 are configured to generate turbulence in fluid flow,” because “Dawson does not even mention the terms ‘turbulence’ or ‘turbulent.’” Br. 17—18. The Examiner responds that Huazhao was used as a teaching reference to support the Examiner’s position that “reduced cross-section” portions create turbulence. Ans. 28—29 (citing Huazhao 147). The Examiner notes that “turbulence is produced from a velocity threshold of working fluid,” and that Dawson is capable of producing turbulence. Ans. 29. We agree with the Examiner. Huazhao discloses that “the portion having reduced cross-section area may be used to generate turbulent flow.” Huazhao 147. Dawson discloses that “flow control strips 72 include a plurality of reduced sections 74.” Dawson, 9:15—16. In light of Huazhao, Appellants do not provide persuasive technical reasoning why Dawson’s 7 Appeal 2017-001502 Application 13/797,062 reduced sections would not generate turbulent flow. In addition, Dawson’s flow diverters “create a serpentine flow path” and “control the amount of heat exchange medium that passes each flow control strip.” Dawson, 6:47— 51 and 9:15—19. We note that Appellants’ Specification describes that “turbulence promoters 404 generate unsteady airflow, eddies, vortices.” Spec. 1 65. Appellants, however, do not adequately explain why Dawson’s flow controllers are not turbulence promoters that would not similarly produce unsteady airflow, eddies or vortices. For these reasons, we are not persuaded by Appellants’ argument. Appellants also rely on the argument discussed supra that Connors’ components are not integrally molded. See Br. 18—19. For the reasons discussed above in connection with claim 1, Appellants’ attorney arguments are insufficient to show a difference between the component formed by Connor’s molding and the claimed component. Appellants next argue that the intervening screen of Connors prevents the spacer from spanning “between two membranes.” Br. 20. Appellants assert that the combination of references does not disclose a turbulence promoter configured to span between the first and second membranes. Br. 20-21. Appellants’ argument is not persuasive because the rejection is based on the Examiner’s finding that Dawson’s support member is configured to span between the first and second membranes. See Final Act. 5. Appellants also argue that Dawson and Connors are non-analogous art because they are in different fields of endeavor and are not pertinent to a turbulence promoter that enhances energy transfer. Br. 21—22. The Examiner responds that Connors and Dawson both relate to heat exchangers. 8 Appeal 2017-001502 Application 13/797,062 Ans. 34—35. The Examiner notes, moreover, that one of ordinary skill in the art would understand that the turbulence promotion in Connors would be relevant to enhancing heat transfer. Ans. 35—36. We agree with the Examiner that both Connors and Dawson are in Appellants’ field of invention, namely, energy exchange systems. See Spec. 115. Dawson “relates generally to flat heat exchanger plates for use in heat exchangers.” Dawson, 1:8—9. Similarly, Connors’device includes membranes that “may be used as a heat exchanger, to transfer heat between a fluid flow in the feed channel and a fluid flow in the filtrate channel.” Connors 149. Both references, thus, generally relate to an energy exchange system, and, therefore, are in Appellants’ field of endeavor. See Spec. 112— 6. For these reasons, we sustain the rejection of claim 1, and claims 2, 3, 6, and 21 depending therefrom, under 35 U.S.C. § 103(a) as unpatentable over Dawson and Connors. Rejection 3; Obviousness based on Dawson, Connors, and Al-Otaibi Claim 7 depends from claim 1. Br. 28 (Claims App.). Appellants rely on the same arguments for patentability of claim 7 as for the claim 1 rejection based on Dawson and Connors. Id. at 22. We sustain the rejection of claim 7 for the same reasons stated above for claim 1 in connection with Dawson and Connors. Rejection 4; Obviousness based on Mahmud and Yasutake Independent claim 24 recites, in part, “at least one turbulence promoter connected to the at least one support member, wherein the at least 9 Appeal 2017-001502 Application 13/797,062 one turbulence promoter promotes airflow turbulence within the air channel, and wherein the airflow turbulence within the air channel enhances energy transfer between the air channel and the first and second membranes.” Br. 29 (Claims App.). The Examiner finds that Mahmud’s energy exchange system includes an air channel supported by a membrane support assembly that includes “round spacers and air spacers.” Final Act. 12 (citing Mahmud, Figs. 2— 5(a)). The Examiner states that Mahmud’s round spacers are “capable of acting as turbulizers,” but relies on Yasutake as teaching a turbulence promoter connected to a support member. Id. The Examiner reasons that it would have been obvious to modify the support assembly of Mahmud to include a “turbulizer” for the purpose of “increasing the heat exchange capacity by disturbing the flow.” Id. at 13. The Examiner notes that, moreover, the term “turbulent flow” is functional language that “does not differentiate the claimed apparatus from a prior art apparatus satisfying the structural limitations of the claims, as is the case here.” Id. (citing MPEP 2114). Appellants argue that Yasutake does not disclose a turbulence promoter in an air channel, because Yasutake’s “turbulence production projections 20 and 21 are positioned within oil channels.” Br. 23. Thus, according to Appellants, because “nothing in Mahmud or Yasutake [] describes, teaches, or suggests turbulence promoters within an air channel . . . the proposed combination of Mahmud and Yasutake does not render claims 24—26 and 29 unpatentable.” Br. 24. The Examiner responds that Yasutake generally teaches turbulence promoters that apply to any fluid, including air, to enhance heat exchange 10 Appeal 2017-001502 Application 13/797,062 rates. Ans. 37. The Examiner notes, moreover, that Yasutake’s “turbulence promoters (connecting wall, 10 and ridges 35)” were relied upon for promoting turbulence by “disturbing] the flow of medium.” Ans. 37—38 (citing Yasutake, 6:23—27). Appellants’ arguments are not persuasive because Appellants do not explain why Yasutake’s ridges 35 on walls 10 that define air channels 3 are not turbulence promoters as the Examiner finds. See Yasutake, 6:23—27, Figs. 11—13; see a Iso Final Act. 12—13. Appellants’ Specification discloses that “turbulence promoters 404 generate unsteady airflow, eddies, vortices . . . and the mixing of air (as opposed to laminar flow).” Spec. 1 65. Appellants do not provide persuasive technical reasoning why Yasutake’s ridges that “disturb the flow of medium” (Yasutake, 6:23—27) do not likewise generate unsteady airflow, eddies, and vortices. As Appellants do not apprise us of error in the Examiner’s determination that Yasutake’s ridges are turbulence promoters, we sustain the rejection of claim 24. Appellants do not provide separate arguments for claims 25, 26, and 29, which depend from claim 24, and, thus, we sustain the rejection of these claims for the same reasons. See Br. 24. Rejection 5; Obviousness based on Mahmud and Dawson The Examiner finds that Mahmud discloses most of the limitations of claim 24 including a membrane support assembly having “round spacers and air spacers,” and states that Mahmud’s round spacers are “capable of acting as turbulizers.” Final Act. 15. Nonetheless, the Examiner relies on Dawson as teaching a turbulence promoter connected to a support member, and concludes that it would have been obvious to modify the support assembly 11 Appeal 2017-001502 Application 13/797,062 of Mahmud to include a turbulence promoter for the purpose of “increasing the heat exchange capacity.” Id. at 16. The Examiner notes that, moreover, the term “turbulent flow” is functional language that “does not differentiate the claimed apparatus from a prior art apparatus satisfying the structural limitations of the claims, as is the case here.” Id. (citing MPEP 2114). Appellants argue that Dawson’s flow diverters 38 “form a flow path through a heat exchanger,” and are not “configured to generate turbulence in fluid flow.” Br. 26. According to Appellants, because Dawson does not disclose “‘turbulence’ or ‘turbulent,’” Dawson does not disclose or suggest a turbulence promoter. Id. This argument is substantially the same as Appellants’ argument regarding Dawson in connection with rejection 2. See Br. 17—18. This argument is, thus, not persuasive for the reasons stated above in connection with rejection 2. Under the heading: “The proposed combination of Mahmud and Dawson does not describe, teach, or suggest a support member spanning between membranes,” Appellants discuss Dawson’s flow diverters 38 and argue that these elements are not turbulence promoters that span between the first and second membranes. Br. 25—26. In the rejection, however, the Examiner finds that the support member of Mahmud, not that of Dawson spans between membranes. Final Act. 15. Moreover, as discussed supra, Dawson’s flow controllers constitute turbulence promoters due to the reduced cross-sectional area. Appellants’ argument is, thus, not persuasive because it is not responsive to the rejection. We, thus, sustain the rejection of claim 24. Appellants do not provide separate arguments for claims 25, 26, and 29, which depend from claim 24, and we sustain the rejection of these claims for the same reasons. See Br. 26—27. 12 Appeal 2017-001502 Application 13/797,062 Rejections 6 and 7 Appellants do not present any separate argument contesting the rejection of claim 30 as unpatentable over the combination of Mahmud, Yasutake, and Al-Otaibi, and do not present any separate argument contesting the rejection of claim 30 as unpatentable over the combination of Mahmud, Dawson, and Al-Otaibi, and, thus, fail to apprise us of error. Br. 27. Therefore, we affirm these rejections of claim 30 under 35 U.S.C. § 103(a). DECISION The Examiner’s decision rejecting claims 1 and 21 as unpatentable over Erb and Connors is affirmed. The Examiner’s decision rejecting claims 1—3, 6, and 21 as unpatentable over Dawson and Connors is affirmed. The Examiner’s decision rejecting claim 7 as unpatentable over Dawson, Connors, and Al-Otaibi is affirmed. The Examiner’s decision rejecting claims 24—26 and 29 as unpatentable over Mahmud and Yasutake is affirmed. The Examiner’s decision rejecting claims 24—26 and 29 as unpatentable over Mahmud and Dawson is affirmed. The Examiner’s decision rejecting claim 30 as unpatentable over Mahmud, Yasutake, and Al-Otaibi is affirmed. The Examiner’s decision rejecting claim 30 as unpatentable over Mahmud, Dawson, and Al-Otaibi is affirmed. 13 Appeal 2017-001502 Application 13/797,062 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 14 Copy with citationCopy as parenthetical citation