Ex Parte Oshitani et al

Patent Trials and Appeals Board

May 31, 2019

12867025 - (D) (P.T.A.B. May. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/867,025 08/10/2010 Hiroshi Oshitani
27572 7590 06/04/2019
Harness Dickey (Troy)
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
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.
404 lJ-001724/US/NP 6748
EXAMINER
TADESSE, MARTHA
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
06/04/2019 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):
troymailroom@hdp.com
sto-ptomail@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HIROSHI OS HIT ANI, KENICHI FUJIWARA,
HARUYUKI NISHIJIMA, ETSUHISA YAMADA,
TOORU IKEMOTO, and YOUHEI NAGANO
Appeal2017-009192
Application 12/867,025
Technology Center 3700
Before BART A. GERSTENBLITH, AMEE A. SHAH, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 10-22 and 51---64, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Throughout this Decision, we refer to the Appellants' Appeal Brief
("Appeal Br.," filed Dec. 30, 2016), Reply Brief ("Reply Br.," filed June 14,
2017), and Specification ("Spec.," filed Aug. 10, 2010), and to the
Examiner's Answer ("Ans.," mailed May 24, 2017) and Final Office Action
("Final Act.," mailed Aug. 2, 2016).
2 According to the Appellants, the real party in interest is "DENSO
CORPORATION." Appeal Br. 4.
Appeal2017-009192
Application 12/867,025
STATEMENT OF THE CASE
The Appellants' "invention relates to an ejector-type refrigeration
cycle device, which has an ejector." Spec. ,r 2.
Claims 10, 11, and 59 are the independent claims on appeal. Claim 10
(Appeal Br. 35-36) is illustrative of the subject matter on appeal and is
reproduced below (with added bracketing for reference):
10. An ejector-type refrigeration cycle device comprising:
[ (a)] a first compression mechanism configured to
compress and discharge refrigerant;
[(b )] a radiator configured to cool high-pressure
refrigerant discharged from the first compression mechanism;
[ ( c)] a branch portion provided to branch a flow of the
refrigerant flowing out of the radiator;
[(d)] an ejector including a nozzle portion adapted to
decompress and expand the refrigerant of one stream branched
at the branch portion, a refrigerant suction port adapted to draw
the refrigerant by a high-speed flow of the refrigerant jetted from
the nozzle portion, and a diffuser portion adapted to pressurize
mix-refrigerant of the jet refrigerant and the refrigerant drawn
from the refrigerant suction port;
[ ( e)] a suction side decompression unit decompressing and
expanding the refrigerant of the other stream branched at the
branch portion;
[ ( f)] a suction side evaporator configured to evaporate the
refrigerant decompressed by the suction side decompression unit
and to cause the evaporated refrigerant to flow toward the
refrigerant suction port of the ejector;
[ (g)] a second compression mechanism disposed between
the suction side evaporator and the refrigerating suction port of
the ejector to draw the refrigerant flowing out of the suction side
evaporator, to compress the drawn refrigerant and then to
discharge the compressed refrigerant directly to the suction port
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Application 12/867,025
of the ejector, wherein the first compression mechanism and the
second compression mechanism are compressors;
[(h)] a first discharge capacity changing unit changing a
refrigerant discharge capacity of the first compression
mechanism;
[(i)] a second discharge capacity changing unit changing a
refrigerant discharge capacity of the second compression
mechanism; and
[ U)] a control device which controls the first discharge
capacity changing unit and the second discharge capacity
changing unit, wherein the first discharge capacity changing unit
and the second discharge capacity changing unit respectively
independently change the refrigerant discharge capacities of the
first compression mechanism and the second compression
mechanism, and
[(k)] wherein the control device controls a pressure
increasing amount in the first compression mechanism and a
pressure increasing amount in the second compression
mechanism to be approximately equal so as to increase
refrigerant pressure in a gas state in both the first and second
compression mechanisms in series; and
[(l)] a refrigerant discharge side of the second compression
mechanism is connected to the refrigerant suction port such that
the compressed refrigerant discharged from the second
compress10n mechanism is drawn into the ejector from the
suction port.
REJECTIONS 3
Claims 10, 12-20, 51-55, and 57 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Ikegami et al.
3 As stated in the Final Office Action, the Examiner relied upon Nakatani
(JP 2004-251558, pub. Sept. 9, 2004) for each of the rejections. Final.
Act. 2-22. In the Answer, the Examiner states "the rejection with regards to
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Application 12/867,025
(US 2007/0163293 Al, pub. July 19, 2007) ("Ikegami") and Takeuchi
(JP HI0205898A, pub. Aug. 4, 1998)4 ("Takeuchi '898").
Claim 21 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Ikegami, Takeuchi '898, and Yamada et al.
(US 2007 /0039349 Al, pub. Feb. 22, 2007) ("Yamada").
Claim 22 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Ikegami, Takeuchi '898, and Takeuchi et al.
(US 2007 /0039350 Al, pub. Feb. 22, 2007) ("Takeuchi '350").
Claims 11, 56, and 58---64 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Yamada and Takeuchi '898.
Nakatani et al. reference is no longer being maintained." Ans. 2. The
Examiner then responds to the Appellants' arguments raised in their Appeal
Brief. Id. at 2-18. Appellants argue that the Examiner's statement
constitutes a withdrawal of the entirety of each rejection because each
rejection was based, in part, on Nakatani. Reply Br. 1-3. We disagree.
Although inartfully stated, the Answer clearly reflects that the Examiner
maintains each rejection from the Final Office Action, although the
rejections no longer rely upon Nakatani. Therefore, we do find that the
Examiner's Answer withdrew each rejection in its entirety. Appellants also
argue that if the rejections are maintained without reliance upon N akatani,
they constitute new grounds of rejection and the Examiner erred by not
designated them as such. Id. at 1-2. The Answer states that new grounds "if
any" are listed under a new grounds subheading (Ans. 2), and no such
subheading exists. If the Appellants sought to contest the failure of the
Examiner to designate the rejections as containing new grounds, the proper
recourse was to request review of the Examiner's Answer "by way of a
petition to the Director under § 1.181 of this title within two months from
the entry of the examiner's answer and before the filing of any reply brief."
3 7 C.F .R. § 41.40( a). The Appellants have not filed such a petition; thus, we
do not consider the rejections as constituting new grounds. Cf Reply Br. 2.
4 An English machine translation in the record is relied on by the parties.
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ANALYSIS
Claims 10, 12-20, 51-55, and 57
The Appellants contend that the Examiner's rejection of independent
claim 10 is in error because the prior art does not teach "controlling the
pressure increasing amounts in the first and second compression
mechanisms to be approximately equal, as recited by claim 10,"
limitation (k). Appeal Br. 17 ( emphases omitted). After careful review of
the record, we agree that the Examiner has not adequately shown how the
prior art, alone or in combination, teaches this limitation.
The Examiner finds, in relevant part, that Ikegami does not disclose a
second compression mechanism and limitation (k) of controlling the
pressure increasing amounts in both compression mechanisms so as to be
approximately equal. Final Act. 3--4. The Examiner cites to Takeuchi '898
as teaching two compression mechanisms and "a control device (see [0018])
which controls the first discharge capacity changing unit and the second
discharge capacity changing unit" (id. at 4) and "a pressure increasing
amount in the first compression mechanism and a pressure increasing
amount in the second compression mechanism to be approximately equal so
as to increase refrigerant pressure in a gas state in both the first and second
compression mechanisms in series" (id. at 5). The Examiner notes that
Takeuchi '898 's controller "is capable of performing a pressure increasing
amount in the first compression mechanism ( 11) and a pressure increasing
amount in the second compression mechanism (15) to be approximately
equal since both are controlled by the controller." Id. (emphasis omitted).
In response to the Appellants' arguments, the Examiner asserts that
Ikegami discloses
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a control unit (23) for performing various kinds of computations
and processing on the basis of control programs stored in the
ROM to control the operations of devices such as a first
discharge capacity changing means ( 11 a, electromagnetic
volume control valve, see [0054]-[0055], [0079] and [0082]).
Ikegami further discloses the controller controlling the operation
of the first compression mechanism ( 11 ), and the changing of the
first discharge volume or the changing of the first discharge
capacity by controlling the pressure Pc of the first compression
mechanism ([0054 ]-[0055]) for changing a refrigerant discharge
capacity of the first compression mechanism (11 ). That is, one
of ordinary skill in the art would recognize that Ikegami discloses
a controller (23) with the means to control a pressure increasing
amount in the first compression mechanism, as desired.
Ans. 3. The Examiner further cites to Takeuchi '898 at paragraphs 18
and 28 for teaching a controller that controls the operation of the first and
second compression mechanisms, changes the discharge capabilities by
changing the mechanisms' speeds, and controls a pressure increasing
amount in each mechanism by controlling the revolving speed of the second
mechanism according to the speed of the second mechanism whereby
increasing the speed will increase the pressure amount. Id. at 3--4. Thus, the
Examiner determines
one of ordinary skill in the art would recognize that Takeuchi
'898 discloses a controller (the control means, see [0018]) with
the means to control a pressure increasing amount (see [0028],
which states controlling the revolving speed of the second
compression mechanism 15 according to the revolving speed of
the first compression mechanism 11) in the first compression
mechanism ( 11) and the second compression mechanism ( 15), as
desired ( e.g. including a pressure increasing amount in the first
and second compression mechanisms being controlled to be
approximately equal).
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Id. at 4. After noting that the features of an apparatus "must be
distinguished from prior art in terms of structure, rather than function[;] See
MPEP 2114," the Examiner finds that "the functional limitation (i.e., control
logic includes controlling a pressure increasing amount in the first and
second compression mechanisms being controlled to be approximately
equal) can be performed, or at least capable of being performed, by the prior
art structure taught by Ikegami in view of Takeuchi '898." Id. at 4--5.
Ikegami discloses "an ejector refrigerant cycle device having an
ejector." Ikegami ,r 2. Ikegami discusses how generally, in an ejector
refrigerant cycle device, the vapor-liquid refrigerant's state and direction of
flow into the decompression means can affect the pressure of the refrigerant.
Id. ,r 18. When the refrigerant flows in a two-state phase on the downstream
side of the radiator, the pressure of the refrigerant is increased as compared
to when the refrigerant flows in a super-cooled state from the radiator. Id.
However, when a radiating means radiates the refrigerant's heat while the
decompression means decompresses refrigerant, the pressure of the
refrigerant is decreased. Id. Ikegami's ejector refrigerant cycle device
comprises, in relevant part, "a well-known swash plate type variable
displacement compressor capable of controlling a discharge volume variably
and continuously by a control signal from the outside is used as the
compressor 11." Id. ,r 53. By changing the discharge volume, the
compressor's discharge capacity can be adjusted. Id. ,r 54.
The changing of the discharge volume is performed by
controlling the pressure Pc of a swash plate chamber (not shown)
constructed in the compressor 11 to change a slant angle of a
swash plate thereby to change the stroke of the piston.
The pressure Pc of the swash plate chamber is controlled
by changing the ratio of a discharge refrigerant pressure Pd to a
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Application 12/867,025
suction refrigerant pressure Ps, which are introduced into the
swash plate chamber, using an electromagnetic volume control
valve 11 a driven by the output signal of an air-conditioning
control unit 23.
Id. ,r,r 54, 55. Ikegami further teaches control unit 23 of a well-known
microcomputer that "performs various kinds of computations and processing
on the basis of control programs stored in the ROM to control the operations
of the above-mentioned various kinds of devices lla, I2b, 17b, etc." Id.
,r 79. As such, Ikegami teaches valve 11 a controlling the ratio of discharge
refrigerant pressure to suction refrigerant pressure, thereby controlling the
pressure of the swash plate chamber and changing the discharge volume, and
controller 23 performing computations and processing to control operations.
Takeuchi discloses an air conditioner for vehicles. Takeuchi ,r 11.
The air conditioner has control system 10 with means to "perform various
kinds of control management." Id. ,r 18. Takeuchi discusses that in order to
have the nozzle efficiency at an optimum value, it is necessary to maintain
the refrigerant flow rate into the evaporator at a constant value, but the flow
rate is changed based on the revolving speed of the compressor. Id.
,r,r 27, 28. To correct for the revolving speed effect, Takeuchi
tr[ies] to lower the suction pressure of the compressor 11 by
controlling the revolving speed of the refrigerant pump 15
according to the revolving speed of the compressor 11 ... Since
it becomes largely about the suction specific volume bulk of the
compressor 11, the refrigerant flow rate sucked by the
compressor 11 is maintained at constant value ...
Id. ,r 28. As such, Takeuchi teaches a controller controlling the revolving
speed of the compressor to lower the suction pressure and control the
refrigerant flow rate at a constant value.
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Application 12/867,025
Although Ikegami teaches a mechanism, i.e., valve I la in
combination with controller 23, to control the ratio of refrigerant discharge
pressure to suction pressure to a desired value, we do not see where, and the
Examiner has not adequately explained how, Ikegami's mechanism controls
the pressure increasing amounts in the first and second compressor
mechanisms so as to be approximately equal or that the desired value would
be that the amounts are equal. And, although Takeuchi teaches a controller
that can perform various control management functions and can control the
suction pressure, we do not see where, and the Examiner has not adequately
explained how, Takeuchi's controller controls the pressure increasing
amounts in the first and second compressor mechanisms so as to be
approximately equal, as recited by claim 10. See Reply Br. 6-7. Further,
the Examiner does not explain how or why the combination of Ikegami and
Takeuchi teaches controlling the pressure increasing amounts on both
compressor mechanisms to be equal. Cf Ans. 5 ( describing the combination
of Ikegami and Takeuchi); see also Reply Br. 11.
In response to the Examiner's contention that Ikegami' s controller 23
alone or in combination with Takeuchi's controller 10 is capable of
performing this function of controlling the pressure increase amounts in both
compression mechanisms to be equal, and therefore meets the claim's
limitation (see Ans. 3-5), we disagree. In order to perform the claimed
function, the controller would have to be programmed to do so. That the
controller may be modified to perform that function is not enough; the
controller must be specified as performing the recited function. See Nazomi
Commc 'ns, Inc. v. Nokia Corp., 739 F.3d 1339, 1344 (Fed. Cir. 2014) (citing
Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1381 (Fed. Cir.
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Application 12/867,025
2011)); see also Reply Br. 4--5, 7-8. Here, neither Ikegami nor Takeuchi
discloses a controller programmed to perform the claimed function of
controlling the pressure increase amounts in both compressor mechanisms to
be equal, as recited. And the Examiner does not assert that, or provide
reasoning why, it would have been obvious to program Ikegami's or
Takeuchi' s controller to perform that function.
Based on the foregoing, we are persuaded of error in the Examiner's
rejection of independent claim 10 under 35 U.S.C. § 103(a), and we do not
sustain the rejection of claims 10, 12-20, 51-55, and 57.
Claims 21 and 22
For the rejections of dependent claims 21 and 22, the Examiner relies
on the same deficient finding of independent claim 10. Thus, for the same
reasons as for claim 10, we also do not sustain the rejections of the
dependent claims 21 and 22.
Claims 11, 56, and 58-64
The Appellants contend that the Examiner's rejection of independent
claims 11 and 59 is in error because the prior art does not teach "controlling
the pressure increasing amounts in the first and second compression
mechanisms to be approximately equal, as recited by claims 11 and 59."
Appeal Br. 30 ( emphases omitted). After careful review of the record, we
agree that the Examiner has not adequately shown how the prior art, alone or
in combination, teaches this limitation.
The Examiner finds, in relevant part, that Yamada does not disclose a
second compression mechanism and the limitation recited in both
independent claims of a control device that controls the pressure increasing
amounts in both compression mechanisms so as to be approximately equal.
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Final Act. 12-13. Similar to claim 10, the Examiner cites to Takeuchi '898
as teaching "a control device (see [0018]) which controls the first discharge
capacity changing unit and the second discharge capacity changing unit" (id.
at 13-14) and "a pressure increasing amount in the first compression
mechanism and a pressure increasing amount in the second compression
mechanism to be approximately equal so as to increase refrigerant pressure
in a gas state in both the first and second compression mechanisms in series"
(id. at 14). The Examiner notes that Takeuchi '898's controller "is capable
of performing a pressure increasing amount in the first compression
mechanism ( 11) and a pressure increasing amount in the second
compression mechanism ( 15) to be approximately equal since both are
controlled by the controller." Id. ( emphasis omitted).
In response to the Appellants' arguments, the Examiner "maintains
that the combined teachings of Ikegami et al. and Takeuchi '898 disclose all
the structural features of the claim and for reasons similar to the issues
discussed in subparagraphs 2-lA) to 2-16A) above." Ans. 16.
We note that the Examiner does not rely on Ikegami for any of the
limitations of claims 11 and 59. For the reasons provided supra, we find
unsupported the Examiner's findings that Takeuchi teaches a controller to
control the pressure increasing amounts in the first and second compressor
mechanisms so as to be approximately equal discloses an air conditioner for
vehicles. That is, although Takeuchi teaches a controller that can perform
various control management functions and can control the suction pressure,
we do not see where, and the Examiner has not adequately explained how,
Takeuchi' s controller controls the pressure increasing amounts in the first
and second compressor mechanisms so as to be approximately equal, as
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recited by the claims. See Reply Br. 6-7. And, that Takeuchi's controller
may be modified to perform that function is not enough; the controller must
be specified as performing the recited function, which Takeuchi does not
disclose. Cf Final Act. 6 ("one ... would also conclude that the controller
described in paragraph [0018] of Takeuchi '898 as modified can execute a
control that a pressure increasing amount in the first and second compression
mechanisms adjusts to be approximately equal based on a target program
memorized by the microcomputer, and the operation of the 1st compressor
11, the 2nd compressor 15, see paragraphs [0018]-[0020]."). Further, the
Examiner does not assert that, or provide reasoning why, it would have been
obvious to program Takeuchi' s controller to control the pressure as recited.
Based on the foregoing, we are persuaded of error in the Examiner's
rejection of independent claims 11 and 59 under 35 U.S.C. § 103(a), and we
do not sustain the rejection of claims 11, 56, and 58---64.
DECISION
The Examiner's rejections of claims 10-22 and 51---64 under pre-AIA
35 U.S.C. § 103(a) are REVERSED.
REVERSED
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