Ex Parte Lindell et al

Patent Trial and Appeal Board

Aug 28, 2018

13570798 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/570,798 08/09/2012
23409 7590 08/30/2018
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN A VENUE
Suite 3300
MILWAUKEE, WI 53202
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Eric Lindell
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
022233-2308-00 1046
EXAMINER
FLANIGAN, ALLEN J
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
08/30/2018 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC LINDELL and GIRISH MANTRI
Appeal 2018-000131
Application 13/570,798
Technology Center 3700
Before JAMES P. CALVE, BENJAMIN D. M. WOOD, and
WILLIAM A. CAPP, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Modine Manufacturing Company as the real party in
interest. Appeal Br. 2.
Appeal 2018-000131
Application 13/570,798
THE INVENTION
Appellants' invention relates to heat exchanger tubes. Spec. ,r 1.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A tube for a heat exchanger, comprising
a first cylindrical section extending from a first tube end;
a second cylindrical section extending from a second tube
end opposite the first tube end;
a flat tube section located between the first and second
ends, the flat tube section comprising two broad and flat,
spaced apart parallel sides joined by two relatively short sides;
a first transition region located between the first cylindrical
section and a first end of the flat tube section proximal to the
first cylindrical section; and
a second transition region located between the second
cylindrical section and a second end of the flat tube section
proximal to the second cylindrical section, the intersections of
each of the first and second transition regions and each of the
broad and flat sides defining curvilinear paths.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Murray
Melnyk
Mansson
Shitaya
us 3,391,732
us 4,546,824
us 4,589,481
JP 01131891 A
July 9, 1968
Oct. 15, 1985
May 20, 1986
May 24, 1989
The following rejections are before us for review: 2
1. Claims 1---6, 11-15, and 18-20 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Shitaya.
2 A rejection of claim 19 under 35 U.S.C. § 112, second paragraph, as
indefinite for failing to particularly point out and distinctly claim the subject
matter which the inventor regards as the invention has been withdrawn by
the Examiner. Br. 5; Adv. Action, mailed Feb. 16, 2017.
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Appeal 2018-000131
Application 13/570,798
2. Claim 10 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shitaya and Melnyk.
3. Claims 7, 8, 16, 17, and 21 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Shitaya and Mansson.
Claim 1
OPINION
Anticipation of Independent Claims 1 and 12
by Shitaya
The Examiner finds that Shitaya discloses all of the elements of
claim 1. Final Action 3. In particular, the Examiner finds that the transition
regions between the cylindrical tube ends and the medial flat portion define
curvilinear paths where they intersect. Id.
Appellants argue a single point in traverse of the Examiner's
rejection, namely, that Shitaya fails to disclose curvilinear paths as claimed.
Appeal Br. 5-7. Appellants argue that "[i]t is not clear" if Shitaya discloses
curvilinear paths. Id. at 6. "The perspective view drawings of Shitaya do
not clearly illustrate the intersection between the flat tube section and the
transition region." Id. ( emphasis added). In response, the Examiner insists
that the drawings of Shitaya depict essentially the same level of detail as
Appellants' originally filed drawings. Ans. 5.
Figure 2 of Shitaya is shown above. The illustration depicts a tube
with cylindrical portions at the extreme ends and with a flat portion
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Appeal 2018-000131
Application 13/570,798
juxtaposed between the ends. There are discemable transition regions
between the cylindrical portions and the flat portion. Id. Having reviewed
the drawings of Shitaya, we are of the opinion that the Examiner's finding of
fact is supported a preponderance of the evidence. See In re Caveny, 761
F.2d 671, 674 (Fed. Cir. 1985) (preponderance of the evidence is the
standard that must be met by the PTO in making rejections). To the extent
that Appellants argument regarding what Shitaya does not "clearly
illustrate" seeks to impose a burden of proof on the Examiner that goes
beyond a mere preponderance of the evidence, we decline to impose such a
standard. 3
We sustain the Examiner's anticipation rejection of claim 1.
Claim 12
Claim 12 is an independent claim that differs in scope from claim 1 in
that it does not require curvilinear paths in the transition region. Claims
App. Appellants argue, once again, that "[i]t is not clear" that Shitaya
discloses the claimed invention. Br. 7. "The perspective view drawings of
Shitaya do not clearly illustrate the region between the flat tube section and
the cylindrical ends." Id. Having reviewed the drawings of Shitaya,
including Figure 2 depicted hereinabove, we determine that Appellants'
argument lacks evidentiary support in the record. See Shitaya, Fig. 2.
Shitaya discloses an embodiment that is cylindrical at each end with a flat
portion between such ends. Id. The drawing clearly shows a transition
between the cylindrical portion and the flat portion.
3 The "preponderance of the evidence" standard requires an Examiner to
reject a claim if, in view of the prior art and the evidence of record, it is
more likely than not that the claim is unpatentable. See MPEP § 706. That
standard is met here.
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Appeal 2018-000131
Application 13/570,798
In view of the foregoing, we sustain the Examiner's anticipation
rejection of claim 12.
Dependent Claims 2-11 and 13-21
These claims depend, directly or indirectly, from either claim 1 or
claim 12. Claims App. Appellants do not argue for the separate
patentability of these claims but rely, instead, solely on their dependency
from claims 1 and/or 12 as imparting patentability. Br. 8. These claims fall
with claims 1 and 12 such that we sustain the Examiner's rejection of
claims 2-11 and 13-21. See 37 C.F.R. § 4I.37(c)(iv) (failure to separately
argue claims).
DECISION
The decision of the Examiner to reject claims 1-21 is 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)(l)(iv).
AFFIRMED
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