Ex Parte Mitchell et al

Patent Trial and Appeal Board

May 3, 2017

11702793 (P.T.A.B. May. 3, 2017)

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.
11/702,793 02/06/2007 Paul L. Mitchell 038423.00037 8789
26712 7590 05/05/2017
HODGSON RUSS LLP
THE GUARANTY BUILDING
140 PEARL STREET
SUITE 100
BUFFALO, NY 14202-4040
EXAMINER
FLANIGAN, ALLEN J
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
05/05/2017 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):
ipdocketing @ hodgsonrus s. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL L. MITCHELL, MICHAEL E. HEIDENREICH,
ROGER A. LOOMIS, JAMES R. HARRIS,
DAVID L. DAVIS, and DAVID E. LOLLAR
Appeal 2015-0040941
Application 11/702,7932
Technology Center 3700
Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and
MATTHEW S. MEYERS, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
16—18, 20-23, 25, 28—30, and 32-40. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Sept. 22,
2014) and Reply Brief (“Reply Br.,” filed Feb. 19, 2015), and the
Examiner’s Answer (“Ans.,” mailed Dec. 19, 2014) and Final Office Action
(“Final Act.,” mailed May 21, 2014).
2 According to Appellants, the real party in interest is Luvata Grenada LLC.
Appeal Br. 2.
Appeal 2015-004094
Application 11/702,793
BACKGROUND
According to Appellants, “[the] invention is directed to heat
exchanger fin collars, and more particularly to an improved fin collar for use
in a brazed plate fin heat exchanger.” Spec. 1,11. 9—11.
CLAIMS
Claims 16—18, 20-23, 25, 28—30, and 32^40 are on appeal. Claim 16
is the only independent claims and recites:
16. A heat exchanger, comprising:
at least one plate fin having a first side, a second side and
at least one round opening defined therein;
at least one fin collar disposed on the plate fin around the
at least one round opening, the fin collar having an upstanding
wall extending from the plate fin, the wall having a plurality of
slits defined therein, wherein there are three or more slits, the
plurality of slits spaced apart substantially around the entire
circumference of the collar;
at least one tube for conveying a pressurized fluid, the tube
being disposed through the opening in the plate fin and attached
to the fin collar by brazing to form a brazed tube-to-fm joint at
each of the slits;
a cladding layer; and
wherein said at least one fin collar is curved and has a
convex shape such that the at least one fin collar is outwardly
curved relative to said at least one tube.
Appeal Br. 17.
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REJECTIONS
1. The Examiner rejects claims 16—18, 20-23, 25, 28—30, and 363 under 35
U.S.C. § 103(a) as unpatentable over Hesse4 in view of Young5 and
Plumeri.6
2. The Examiner rejects claims 32—35 under 35 U.S.C. § 103(a) as
unpatentable over Hesse in view of Young, and Plumeri, and Goodrich.7
3. The Examiner rejects claims 37-40 under 35 U.S.C. § 103(a) as
unpatentable over Hesse in view of Young, and Plumeri, and Nash.8
DISCUSSION
With respect to claim 16, the Examiner finds that Hesse discloses a
heat exchanger with at least one plate fin, at least one fin collar with an
upstanding wall and a plurality of slits spaced around its circumference; and
a tube disposed through the opening in the plate fin and attached to the
collar. Final Act. 2—3. The Examiner acknowledges that Hesse does not
disclose a cladding layer, and the Examiner relies on Young to cure this
deficiency. Id. at 3. The Examiner also acknowledges that Hesse does not
disclose that the fin collar is outwardly curved relative to the tube. Id. For
this limitation the Examiner finds that Plumeri teaches fin collars with a
curved shape as claimed. Id. The Examiner concludes that it would have
been obvious to use an outwardly curved collar as in Plumeri “to enable
3 The heading for this rejection lists claims 31. See Final Act. 2. However,
this claim has been withdrawn. See Appeal Br. 19.
4 Hesse, US 5,117,905, iss. June 2, 1992.
5 Young et al., US 5,501,270, iss. Mar. 26, 1996.
6 Plumeri et al., US 2,656,808, iss. Oct. 27, 1953.
7 Goodrich et al., US 6,667,115 B2, iss. Dec. 23, 2003.
8 Nash, US 5,111,876, iss. May 12, 1992.
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Application 11/702,793
easier spacing of the fms on the tubes.” Id. at 4. The Examiner also
explains that replacing Hesse’s collars with Plumeri’s curved collars “would
involve no more than the substitution of one known fin collar forming
process for another fin collar forming process with predictable results.”
Ans. 6—7.
We have reviewed Appellants’ arguments regarding the rejection of
claim 16, and as discussed below, we are not persuaded of reversible error.
First, Appellants argue that the combination with Plumeri would
change the principle of operation of Hesse. Appeal Br. 4. In support,
Appellants assert that Hesse teaches an unbroken cylindrical surface over a
major portions of each collar’s axial length; that Plumeri teaches long
projections that have gaps over a majority of the axial length of the collar;
and that modifying Hesse with Plumeri’s collars will affect cladding and
heat transfer such that the combination would change the principle of
operation of Hesse. Mat 4—6. Appellants also assert that using Plumeri’s
collar in Hesse would also produce turbulence that affects heat transfer, and
“[sjuch changes to convective heat transfer will require a redesign of the
heat exchanger.” Reply Br. 8.
We are not persuaded. Although it may be the case that replacing
Hesse’s collars with Plumeri’s will affect heat transfer, we agree with the
Examiner that the principle of operation of the device would remain the
same, i.e. the device will continue to “operate under the same well-
understood principle of heat transfer.” Ans. 7. Further, Appellants have not
established why any change in the specific heat transfer properties of Hesse
would have required “a substantial reconstruction and redesign of’ the heat
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exchanger. Appeal Br. 7 (quoting In re Ratti 270, F.2d 810, 811—813
(CCPA 1959)).
Second, Appellants argue that the proposed combination would render
Hesse unsatisfactory for its intended purpose. Appeal Br. 8. Appellants
contend that Hesse teaches that outwardly curved fins as in Plumari increase
resistance to throughflow and that Hesse’s collars are designed to avoid this
increased resistance to throughflow. Id. at 8—11. In support of this
contention, Appellants rely on Hesse’s statements regarding Forgo.9 Hesse
states that Forgo discloses a heat exchanger with “shaped collars” that are
“distributed in the lamella surface in order to guarantee the spacing of the
lamellas from each other.” Hesse col. 1,11. 14—16. Hesse discloses that
Forgo’s collars create turbulence and an undesirable resistance to
throughflow. Id. at col. 1,11. 17—20. Hesse further describes that using a
firmer material in the lamella fins can lead to cracks in the rims of the
shaped collars, which will “interfere with heatflow, increase the resistance to
throughflow, encourage corrosion and thereby reduce the useful life of the
heat exchanger.” Id. at col. 1,11. 22—28.
We are not persuaded that these disclosures regarding Forgo indicate
that Hesse would be rendered unsatisfactory for its intended purpose by the
proposed combination with Plumari. Forgo discloses that its heat exchanger
ribs include “turbulence generators” that “consist of flaps, which are bent
out of the rib material.” Forgo Abstract. Thus, Forgo’s heat exchanger is
specifically designed to create the turbulence that Hesse seeks to avoid. In
contrast, Plumari is silent regarding the creation of turbulence and appears to
Forgo et al., DE 2,123,722, pub. Nov. 16, 1972.
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be more concerned with controlling the spacing between adjacent fms,
“especially when a substantial amount of spacing is desired, for instance,
when air circulation through the apparatus is caused by natural forces.”
Plumari col. 1,11. 7—14. Furthermore, Plumari discloses that “it is not
necessary to bend or curl the extremities of the projections” on the collar and
that the amount of bend or curl may be varied. Id. at col. 5,11. 3—15. We
find that this disclosure indicates that the bend or curl in the collars was
merely a design choice that can be varied as needed in the particular
application in which the heat exchanger is used. Thus, one of ordinary skill
in the art would understand that Plumari’s methods can be implemented to
include a curved collar in Hesse’s device without departing from any
intended purpose of Hesse, i.e., the curved portion may be minimized,
though not eliminated, in order to create a collar as claimed without
producing an undesirable level of turbulence. On this point, we note that in
determining whether there is an apparent reason to combine the known
elements in the way a patent claims we “can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)); see also id. at 421
(“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.”).
Finally, Appellants argue, for similar reasons, that Hesse teaches
away from the combination with Plumeri. Appeal Br. 11—15. In particular,
Appellants argue that “Hesse teaches that fms with an outwardly curved
shape are undesirable, prone to rupturing, and reduce useful life of the heat
exchanger.” Id. at 12. We are not persuaded that Hesse teaches away from
a combination with Plumeri. A reference may be said to teach away when a
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person of ordinary skill, upon reading the reference, would be discouraged
from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant. In re
Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994). “The fact that the motivating
benefit comes at the expense of another benefit, however, should not nullify
its use as a basis to modify the disclosure of one reference with the teachings
of another. Instead, the benefits, both lost and gained, should be weighed
against one another.” Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340,
1349 n. 8 (Fed. Cir. 2000).
Here, although Hesse discusses the disadvantages of using a collar as
in Forgo, we find that Hesse would not discourage a person of ordinary skill
in the art from using all curved collars. At best, Hesse might be said to teach
away from the use of a curved collar, as in Forgo, whose design creates
undesired turbulence. However, as discussed above, Plumeri indicates only
that the amount of curvature is a design choice to be considered with respect
to the spacing desired between the fins of the heat exchanger. Thus, one of
ordinary skill in the art would not be discouraged from combining Plumeri
with Hesse because Plumeri is not limited to collars designed to create
undesirable turbulence.
Based on the foregoing, we sustain the rejection of claim 16. Because
Appellants do not raise any separate arguments with respect to any of the
remaining claims, we also sustain the rejections of claims 17, 18, 20-23, 25,
28-30, and 32-40.
CONCLUSION
We AFFIRM the rejections of claims 16—18, 20-23, 25, 28—30, and
32-40 for the reasons set forth herein.
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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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