Ex Parte Watanabe et al

Patent Trial and Appeal Board

Feb 19, 2016

11662297 (P.T.A.B. Feb. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/662,297 0310912007 Y oshiaki Watanabe
38834 7590 02/23/2016
WESTERMAN, HATTORI, DANIELS & ADRIAN, LLP
1250 CONNECTICUT A VENUE, NW
SUITE 700
WASHINGTON, DC 20036
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.
071283 8325
EXAMINER
PETTITT, JOHN F
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
02/23/2016 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):
patentmail@whda.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte YOSHIAKI WATANABE
and SHINICHI SAKAMOTO
Appeal2013-009852
Application 11/662,297
Technology Center 3700
Before JENNIFER D. BAHR, MICHAEL L. WOODS, and
JAMES J. MAYBERRY, Administrative Patent Judges.
MAYBERRY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Y oshiaki Watanabe and Shinichi Sakamoto (Appellants) seek our
review under 35 U.S.C. § 134 of the Examiner's Final rejections of claims 1
and 6-9. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 2-5 have been canceled. Appeal Br. 2.
Appeal2013-009852
Application 11/662,297
CLAIMED SUBJECT MATTER
The claims are directed to a thermoacoustic device. Spec. i-f 1. Claim
1 is the sole independent claim and is reproduced below:
1. A thermoacoustic device comprising:
a loop tube in which a working fluid is sealed;
a plurality of first stacks, each comprising a plurality of
communication paths along a heat transportation direction and
which is provided between a first high-temperature side heat
exchanger and a first low-temperature side heat exchanger,
which are provided in the loop tube, wherein the first high-
temperature side heat exchanger of one of the first stacks faces
the first low-temperature side heat exchanger of another of the
first stacks, said one of the first stacks being adjacent to said
another of the first stacks, wherein the first stacks are provided
in vicinities of positions at which a phase of change in acoustic
particle velocity is the same as a phase of change in sound
pressure; and
a plurality of second stacks, each comprising a plurality
of communication paths along a heat transportation direction
and which is provided between a second high-temperature side
heat exchanger and a second low-temperature side heat
exchanger, which are provided in the loop tube, wherein the
second high-temperature side heat exchanger of one of the
second stacks faces the second low-temperature side heat
exchanger of another of the second stacks, said one of the
second stacks being adjacent to said another of the second
stacks, wherein the second stacks are provided in vicinities of
positions at which a phase of change in acoustic particle
velocity is the same as a phase of change in sound pressure,
in which self-excited standing and traveling waves are
generated by heating the first high temperature side heat
exchanger, and the second low-temperature side heat exchanger
is cooled by the standing and traveling waves, or in which self-
excited standing and traveling waves are generated by cooling
the first low-temperature side heat exchanger, and the second
high temperature side heat exchanger is heated by the standing
and traveling waves,
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wherein each of the first stacks has a structure same as
that of each of the second stacks,
wherein each of the first high-temperature side heat
exchanger of the first stacks is independently heated from an
energy source outside the loop tube, or each of the first low
temperature side heat exchanger of the first stacks is
independently cooled from an energy source outside the loop
tube.
Appeal Br. 27-28, Claims App.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ceperley
Wheatley
Bennett
Swift
Symko
Hagiwara
us 4,114,380
us 4,858,441
us 5, 165,243
us 6,032,464
US 6,574,968 Bl
JP 2000-008378 A
REJECTIONS2
Sept. 19, 1978
Aug. 22, 1989
Nov. 24, 1992
Mar. 7, 2000
June 10, 2003
Mar. 31, 2000
I. Claims 1 and 6-9 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
2 In the Final Action (mailed Sept. 6, 2012) and the Answer, with respect to
Rejections VII-XII, the Examiner appears to confuse claims 8 and 9. That
is, it appears that the Examiner intends to reject claim 8 based on the
disclosure in Wheatley and claim 9 based on the disclosure in Bennett. See
Final Act. 14--17; Answer 17-20. The Examiner finds that Bennett discloses
an electric power energy source (the subject matter of claim 9) and Wheatley
discloses a waste heat energy source (the subject matter of claim 8). See id.;
see also Appeal Br. 28-29 (providing the text of claims 8 and 9). We
consider this mistake a harmless typographical error as the Examiner makes
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IL Claims 1 and 6-9 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
III. Claims 1, 6, and 7 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Swift and Symko.
IV. Claims 1, 6, and 7 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ceperley and Symko.
V. Claims 1, 6, and 7 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hagiwara and Symko.
VI. Claims 1, 6, 7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Swift and Symko.
VII. Claims 1, 6, 7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Swift, Symko, and Bennett.
VIII. Claims 1, 6, 7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ceperley, Symko, and Bennett.
IX. Claims 1, 6, 7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hagiwara, Symko, and Bennett.
X. Claims 1 and 6-8 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Swift, Symko, and Wheatley.
XI. Claims 1 and 6-8 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ceperley, Symko, and Wheatley.
XII. Claims 1 and 6-8 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hagiwara, Symko, and Wheatley.
clear the subject matter from Bennett and Wheatley relied on in the
rejections. See Final Act. 14--17; Answer 17-20. Our listing of rejections
reflect a corrected identification of the claims in each of these rejections.
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ANALYSIS
Rejection I
Claim 1 recites, in relevant part, "wherein each of the first high-
temperature side heat exchanger of the first stacks is independently heated
from an energy source outside the loop tube, or each of the first low
temperature side heat exchanger of the first stacks is independently cooled
from an energy source outside the loop tube." Appeal Br. 27-28, Claims
App. (the "independent heating" limitation). The Examiner finds that the
above-quoted recitation constitutes new matter, as the Specification as
originally filed does not disclose the first heat exchanger being
independently heated or cooled. Final Act. 2-3.
Appellants argue that the Specification, as originally filed, supports
the "independent heating" limitation. Appeal Br. 8-9 (referencing
Specification paragraphs 23, 28, 45, and 46, Figures 1, 3, and 6). As an
initial matter, Appellants contend that the terms "independently heated" and
"independently cooled" should be construed to mean "independent channels
to heat or cool the heat exchangers." Id. at 8. The Examiner determines that
"independently" should be construed to mean "not contingent upon
something else"-the plain language meaning of "independently." Answer
20. We agree with the Examiner. Appellants fail to support their proffered
construction, including providing support for requiring independent
"channels." See, e.g., Reply Br. 4 (indicating that Figures 1, 6-8, and
paragraphs 23 and 46 of the Specification support their proffered
construction, without indicating how these disclosures support the
construction).
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Appellants argue that paragraph 23 of the Specification supports the
subject matter at issue, stressing that paragraph 23 discloses that the source
for heating first high-temperature side heat exchanger 4 is supplied from
outside the loop. Appeal Br. 9. The Examiner responds that "the only thing
that can be discerned from the [S]pecification is that there is heat provided
from an external source of heat to the high temperature side heat exchangers
(4). There is nothing in the [S]pecification that indicates how the heating of
these heat exchangers ( 4) are independent." Answer 21. We agree with the
Examiner that paragraph 23 of the Specification does not support the claim
limitation at issue, as it merely discloses an external source for heating or
cooling, not independence between heating or cooling the plates of the first
high-temperature side heat exchangers.
Appellants also argue that Figures 1, 6, 7, and 8 provide written
description support for the "independent heating" limitation. Appeal Br. 10.
Appellants explain that these figures depict "independent" arrows indicating
heating or cooling the heat exchanger plates. Id. Appellants recognize that
the Examiner finds that an inherent characteristic of heat exchangers is that
they are heated or cooled and "[b ]ecause of the description of the arrows in
the drawings, there are inherent structures to independently heat or cool the
heat exchangers of multiple first stacks." Appeal Br. 13-14. We are not
persuaded by Appellants' argument. As the Examiner correctly responds,
these figures depict, schematically, that heating or cooling occurs, not that
the heating or cooling of two plates are independently accomplished. See
Answer 22. Further, the Examiner's finding that an inherent characteristic
of heat exchanges is that they are heated or cooled does not instruct us that
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the depicted arrows show an inherent independence in this heating or
cooling.
Appellants further argue that paragraph 46 provides written
description support for the "independent heating" limitation. Appeal Br. 9-
10. Appellants emphasize that this paragraph states that "metal plates of
the heat exchangers 4, 5, 6, and 7 are selected to be heated or cooled."
Id. at 10. As Appellants explain, "[ s ]ince the disclosed device allows the
user to select heating or cooling the metal plates of the heat exchangers 4, 5,
6, and 7, one skilled in the art would understand that there is independent
channel to or from the heat exchangers 4, 5, 6, and 7 from outside of the
loop tube." Reply Br. 5.
We are not persuaded that paragraph 46 of the Specification supports
the recited subject matter at issue. This paragraph indicates that each of the
metal plates can selectively be heated or cooled-the paragraph fails to
disclose anything about the dependency or independency of this heating or
cooling. See Answer 22.
For the reasons above, we sustain the Examiner's rejection of claims 1
and 6-9 under 35 U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement.
Rejection II
The Examiner also determines that the "independent heating"
limitation is indefinite. Final Act. 3. The Examiner states that "there is no
discerning what 'independently heated' or 'independently cooled' must
mean since there is no telling what the heating or cooling must be
independent of." Id. The Examiner further states that the meaning of these
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phrases cannot be determined from the Specification, as the Specification
fails to describe the subject matter. Id. at 4 (referencing Rejection I).
Appellants repeat their position that "independently" as used in these
phrases, when read in light of the Specification, means "that each of the heat
exchangers have independent lines to heat or cool the heat exchangers from
the outside of the loop." Appeal Br. 14. Appellants also repeat their
position that Figures 1, and 6-8 and paragraph 23 of the Specification
support the "independent heating" limitation. Id. at 15.
In determining whether a claim is definite under 35 U.S.C. § 112,
second paragraph, "[t]he USPTO, in examining an application, is obliged to
test the claims for reasonable precision." In re Packard, 751F.3d1307,
1313 (Fed. Cir. 2014), cert. denied, 2015 WL 2340862 (May 18, 2015). As
our reviewing court has made clear:
during patent prosecution when claims can be amended,
ambiguities should be recognized, scope and breadth of
language explored, and clarification imposed. The issued
claims are the measure of the protected right. An essential
purpose of patent examination is to fashion claims that are
precise, clear, correct, and unambiguous. Only in this way can
uncertainties of claim scope be removed, as much as possible,
during the administrative process.
In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989) (citations omitted). We
agree with the Examiner that the "independent heating" limitation lacks the
requisite precision to be definite. Appellants contend that the phrases at
issue are definite and mean heat or cool through independent lines or
channels. See Appeal Br. 14. However, nothing in the Specification
supports reading into the claim limitation a requirement for individual lines
or channels. Without an express recitation of these individual lines or
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channels, or other language to more precisely define what the heating or
cooling must be independent of, claim 1 fails to satisfy the requirements of
Section 112, second paragraph.
Accordingly, we sustain the Examiner's rejection of claims 1 and 6-9
under 35 U.S.C. § 112, second paragraph, as being indefinite.
Rejection III
Appellants argue claims 1, 6, and 7 as a group. Appeal Br. 15-18.
We select claim 1 as representative of this group and claims 6 and 7 stand or
fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
In rejecting claim 1 under Rejection III, the Examiner finds that Swift
discloses much of the subject matter of claim 1, except for a plurality of first
stacks and a plurality of second stacks. Final Act. 4--5. The Examiner
further finds that Symko discloses the plurality of stacks. Id. at 5. The
Examiner reasons that "it would have been obvious ... to modify the driver
and refrigerator of Swift to each be provided as a plurality thereby providing
a plurality of adjacent first stacks and a plurality of adjacent second stacks
for the purpose of increasing the amount of thermal energy that may be
transferred." Id. at 5---6.
Appellants first argue that Symko fails to disclose that its plurality of
stacks are provided in a loop tube. Appeal Br. 16. The Examiner responds
that Swift, and not Symko, discloses the recited loop tube. Answer 28. In
reply, Appellants explain that, even if Swift discloses a loop tube, the
Examiner fails to provide an adequate basis to modify Swift with the
teachings of Symko because Symko does not disclose a loop tube or
independent heating or cooling. Reply Br. 21. Appellants argue that the
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Examiner's rejection "merely shows that each element of the claims are
independent know in the prior art." Id.
Appellants further explain that Symko discloses generating the
acoustic wave using drivers, not heat exchangers as in Swift, such that
"Symko is irrelevant in inputting heat from multiple heat exchangers."
Reply Br. 21-22. Appellants argue that there is no reasonable basis to
include Symko's plurality of stacks and ignore Symko's power source. Id.
at 22.
Appellants also contrast Symko' s structure to that disclosed in the
Specification's paragraph 45, where "each of the heat exchangers is
independently heated or cooled in such a way that each can be heated or
cooled by user's selection." Reply Br. 22; see also id. at 25 ("Symko's
structure cannot allow the user to select heating or cooling each stack.").
Appellants' arguments do not inform us of Examiner error. "Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(emphasis added). Appellants focus on Swift and Symko individually,
without considering the Examiner's combination. For example, the
Examiner finds that Swift generates an acoustic wave without need of
drivers such as disclosed in Symko---the Examiner relies on Symko for the
narrow teaching that a plurality of stacks provides greater thermal energy
transfer. See Final Act. 6. Although Appellants state that there is no reason
to modify Swift with this narrow teaching of Symko, they fail to inform us
of error in the articulated reason provided by the Examiner. See, e.g.,
Answer 28 ("Symko shows that replicating the stacks provides the obvious
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benefit of increasing the heat that can be pumped thermoacoustically. This
position is not challenged, addressed, or even acknowledged by the
Appellants.").
Further, Appellants' argument that "Symko's structure cannot allow
the user to select heating or cooling each stack" fails to persuade us of
Examiner error. See Reply Br. 25. Claim 1 does not require that a user
select heating or cooling each stack.
Appellants also argue that "[ n ]one of the references teaches or
suggests independently heating or cooling each of the heat exchangers from
an energy source outside the loop tubes." Appeal Br. 17. For the purposes
of the prior art rejections, the Examiner determines that the "independent
heating" limitation recites functional language such that the limitation is
found in the prior art if the prior art structure is inherently capable of
performing the function. See Final Act. 6; see also Answer 29 (explaining
that "the only supported interpretation of the claims is that the heat
exchangers are at separate locations and therefore the heat exchangers are
capable of the functional operation of being heated with differing amounts of
heat"). The Examiner finds that Swift's heat exchangers are inherently
capable of performing the functions recited in the "independent heating"
limitation. Final Act. 6.
"A patent applicant is free to recite features of an apparatus either
structurally or functionally. Yet, choosing to define an element functionally,
i.e., by what it does, carries with it a risk." In re Schreiber, 128 F.3d 1473,
1478 (Fed. Cir. 1997) (citation omitted) (emphasis added). Functional
language is not given patentable weight if the prior art structure can
inherently perform the function. See id. The Examiner has the burden to
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provide a "reason to believe that ... the claimed subject matter may, in fact,
be an inherent characteristic of the prior art." Id. at 1478. Once the
Examiner satisfies this burden, it shifts to Appellants to provide evidence to
the contrary. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). Here, the
Examiner provides a reason to believe that the subject matter of the
"independent heating" limitation is an inherent characteristic of Swift's heat
exchangers. See Final Act. 6. Appellants fail to meet their burden by
rebutting this finding.
Appellants further argue that the Examiner's finding regarding the
capability of a heat exchanger to perform the function of the "independent
heating" limitation is a product of hindsight, gleaned from Appellant's
Specification. Appeal Br. 17. The Examiner responds that the finding does
not rely "on the Appellant's disclosure to determine that the heating of the
heat exchangers of Swift is a functional use of the heat exchangers."
Answer 29. As the Examiner explains, this capability is taken from Swift.
Id. at 30. We agree with the Examiner that Swift's disclosure supports the
Examiner's finding and, as such, Appellants' argument does not persuade us
of Examiner error.
Appellants also argue that Symko is non-analogous art, as it is not
associated with loop tube technology. Reply Br. 24. We do not agree. To
be analogous art and qualify as prior art in an obviousness rejection, a
reference "must satisfy one of the following conditions: ( 1) the reference
must be from the same field of endeavor; or (2) the reference must be
reasonably pertinent to the particular problem with which the inventor is
involved." K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364, 1375 (Fed. Cir.
2012) (citation omitted). Here, Appellants too narrowly define the field of
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endeavor to loop-tube thermoacoustic devices without explaining why the
field of endeavor should be so narrowly defined. We find that Symco, like
Swift and the application on appeal, is directed to the field of thermoacoustic
devices for heating or cooling and, as such, is analogous art.
For the reasons above, we sustain the Examiner's rejection of claim 1,
and claims 6 and 7, which fall with claim 1, under 35 U.S.C. § 103(a) as
being unpatentable over Swift and Symko.
Rejections IV and V
In Rejections IV and V, the Examiner relies on Ceperley and
Hagiwara for disclosing the same claim elements of claim 1 as disclosed by
Swift in Rejection III. See Final Act. 7-13. That is, Ceperley and Hagiwara
disclose the subject matter of claim 1 except for a plurality of stacks. As
with Rejection III, the Examiner relies on Symko for teaching this
disclosure. See id.
Appellants incorporate their arguments for Rejection III in traversing
Rejections IV and V. Appeal Br. 18, 20. As discussed above in connection
with our analysis of Rejection III, these arguments fail to persuade us of
Examiner error.
Appellants further argue that there is no reasonable basis to modify
Ceperley with Symko. Appeal Br. 18-19. Appellants explain that Ceperely
discloses only a single set of first and second heat exchangers and Symko
fails to teach using heat energy from an outside source. Id. at 18.
Appellants make a similar argument with respect to Hagiwara. Id. at 20.
We find these arguments unpersuasive, as they attack the references
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individually without explaining why the Examiner's articulated reason to
modify Ceperely or Hagiwara by Simko is in error.
For the reasons above, we sustain the Examiner's rejections of claims
1, 6, and 7 under 35 U.S.C. § 103(a) as being unpatentable over Ceperley
and Symko (Rejection IV) and Hagiwara and Symko (Rejection V).
Rejection VI
In rejection VI, the Examiner further determines that the combination
of Swift and Symko renders claim 9 obvious. See Final Act. 14. Claim 9
depends from claim 1 and further recites "wherein the energy source is
electric power." Appeal Br. 29, Claims App. The Examiner finds that Swift
discloses an energy source to heat the heat exchanger that is electric power.
Final Act. 14.
Appellants do not address this rejection, other than referencing their
arguments with respect to Rejection III-arguments we find to be
unpersuasive of Examiner error. See Appeal Br. 20-21. Accordingly, we
sustain the Examiner's rejections of claims 1, 6, 7 and 9 under 35 U.S.C.
§ 103(a) as being unpatentable over Swift and Symko.
Rejections VIL VIIL and IX
In rejections VII, VIII, and IX, the Examiner further determines that
claim 9 is rendered obvious based on the combinations for Rejections III
(Swift and Symko ), IV (Ceperley and Symko ), and V (Hagiwara and
Symko) each in further combination with Bennett. Final Act. 14--15. The
Examiner finds that Bennett discloses an energy source to heat the heat
exchanger that is electric power. Id.
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Appellants argue that "Symko does not teach a structure to use heat
energy supplied from outside. Therefore, Bennett's teachings do not apply
to Symko." Appeal Br. 21-22. Appellants explain that Symko's teachings
are "totally different from Swift," such that Bennett does not remedy the
deficiency in the Examiner's combination with respect to claim 1. Reply Br.
30. This argument is unpersuasive of Examiner error. As the Examiner
correctly responds, Bennett modifies the teachings of Swift, Ceperley, and
Hagiwara with respects to an outside power source. Answer 32.
Appellants also argue that Bennett fails to disclose the "independent
heating" limitation. Appeal Br. 20, 22, 23. This argument is unpersuasive
of Examiner error, as the Examiner relies on Swift, Ceperley, and Hagiwara
for disclosing, inherently, this limitation. See Final Act. 6, 9, 12. As
discussed above in connection with our analysis of Rejection III, Appellants
fail to rebut this finding.
Accordingly, we sustain the Examiner rejection of claim 1, 6, 7, and 9
under 35 U.S.C. § 103(a) as being unpatentable over Swift, Symko, and
Bennett (Rejection VII); Ceperley, Symko, and Bennett (Rejection VIII);
and Hagiwara, Symko, and Bennett (Rejection IX).
Rejections X, XI, and XII
In rejections X, XI, and XII, the Examiner further determines that
claim 8 is rendered obvious based on the combinations for Rejections III
(Swift and Symko ), IV (Ceperley and Symko ), and V (Hagiwara and
Symko) each in further combination with Wheatley. Final Act. 15-17.
Claim 8 depends from claim 1 and further recites "wherein the energy
source is waste heat." Appeal Br. 28, Claims App. The Examiner finds that
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Wheatley discloses an energy source to heat the heat exchanger that is waste
heat. See Final Act. 15-17.
Appellants argue that "Symko does not teach a structure to use heat
energy supplied from outside. Therefore, Wheatley' s teachings do not apply
to Symko." Appeal Br. 24. This argument is unpersuasive of Examiner
error. The Examiner relies on Wheatley to modify the teachings of Swift,
Ceperley, and Hagiwara with respect to an outside power source. See Final
Act. 15-17.
Appellants also argue that Wheatley fails to disclose the "independent
heating" limitation. Appeal Br. 24, 25. This argument is unpersuasive of
Examiner error, as the Examiner relies on Swift, Ceperley, and Hagiwara for
disclosing, inherently, this limitation. See Final Act. 6, 9, and 12.
Appellants do not rebut this finding.
Accordingly, we sustain the Examiner rejection of claim 1 and 6-8
under 35 U.S.C. § 103(a) as being unpatentable over Swift, Symko, and
Wheatley (Rejection X); Ceperley, Symko, and Wheatley (Rejection XI);
and Hagiwara, Symko, and Wheatley (Rejection XII).
DECISION
We affirm the Examiner's rejection of claims 1 and 6-9.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015).
AFFIRMED
rvb
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