Ex Parte WilmotDownload PDFPatent Trial and Appeal BoardApr 13, 201612633158 (P.T.A.B. Apr. 13, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/633, 158 12/08/2009 26096 7590 04/15/2016 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 FIRST NAMED INVENTOR George E. Wilmot 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. PA-12418-US; 67010-351 5174 EXAMINER SCHERMERHORN, JON ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 04/15/2016 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): ptodocket@cgolaw.com cgolaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GEORGE E. WILMOT Appeal2014-003249 Application 12/633, 158 Technology Center 3700 Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT, Administrative Patent Judges. Hill, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE George E. Wilmot ("Appellant") appeals under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal2014-003249 Application 12/633, 158 CLAIMED SUBJECT MATTER Independent claims 1, 4, and 10 are directed to a heat exchanger. Claim 1, reproduced below, illustrates the subject matter on appeal. The key disputed limitations are highlighted. 1. A compound heat exchanger, comprising: a plurality of adjacent, continuous fins, each fin defining a channel having an associated channel axis, wherein a first portion of each channel extends along the axis, and a second, curved portion of each channel is tortuous in opposing directions about the axis, wherein said fins are continuous along the channel axis; and wherein each fin extends a full height of the heat exchanger along an entire axial length of the channel defined by the fin, wherein said height is not aligned with said axis. REJECTIONS 1 I. Claims 1---6 stand rejected under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Bilinovich (SU 1,121,579 A; pub. Oct. 30, 1984). II. Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Bilinovich and Zaffetti (US 7,353,864 B2; iss. Apr. 8, 2008). III. Claims 1-13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Bilinovich, Zaffetti, and one of Severson '755 (US 5,701,755; iss. Dec. 30, 1997), Severson '388 (US 5,911,388; iss. June 15, 1999), and Appellant's Admitted Prior Art ("APA"). 1 The rejection of claims 1-3 and 5-13 under 35 U.S.C. § 112, second paragraph, as being indefinite was withdrawn. Ans. 3. 2 Appeal2014-003249 Application 12/633, 158 IV. Claims 1---6 stand rejected under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C § 103(a) as obvious over Shitaya (JP 2006-138503 A; pub. June 1, 2006). V. Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Shitaya and Zaffetti or Nakada (US 6, 170,567B1; iss. Jan. 9, 2001). VI. Claims 1-13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Shitaya, Zaffetti or Nakada, and one of Severson '755, Severson '388, and APA. VII. Claim 4 stands rejected under 35 U.S.C. § 112, i-f 2, as indefinite. ANALYSIS Rejection I - Bilinovich Claims 1-3, 5, and 6 Regarding independent claim 1, the Examiner finds that Bilinovich teaches a heat exchanger including a plurality of adjacent, continuous fins in which a second, curved portion (3) of each channel is tortuous in opposing directions about the axis. Final Act. 4-5 (citing Bilinovich, Fig. 1 ). The Examiner also finds that the fins in Bilinovich extend the full height along the entire axial length of the channel defined by the fin "notwithstanding the presence of perforations 10." Id. at 5---6. Appellant argues that "it is abundantly clear from the Figures [of Bilinovich] ... that the fins only extend a full height of the channel at the cross coupling members 11, and do not extend the full height of the channel 3 Appeal2014-003249 Application 12/633, 158 at the perforations 10," and therefore the fins do not extend a full height of the heat exchanger along an entire axial length of the channel. Appeal Br. 4. The Examiner responds that each fin in Bilinovich extends the full height of the channel "and is continuous along the channel axis even though it has perforations (10) in it." Ans. 12. The Examiner finds that each fin in Bilinovich "has a top portion nearest plate 1 that extends continuously along the channel axis as well as a bottom portion nearest plate 2 that extends continuously along the channel axis," and, therefore, each of the fins formed by these continuous top and bottom portions extend a full height of the heat exchanger. Id. at 12. The Examiner asserts that Appellant's argument that fins including perforations do not extend the full height of the heat exchanger is not commensurate in scope with the claims because the "broadest reasonable interpretation of 'each fin extends a full height of the heat exchanger' does not preclude perforations (10) through the sidewalls of the fins (3)." Id. at 12. We are not persuaded by Appellant's arguments. As the Examiner correctly notes, claim 1 does not preclude the presence of perforations in the fins. To our knowledge, nothing in the definition of the claim term "fin" or claimed phrase "extends a full height" requires that a fin is limited to a perforation-free surface. Appellant's argument that the fins including perforations do not extend the full height is therefore not commensurate in scope with claim 1. For this reason, we sustain the rejection of claims 1-3, 5, and 6 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Bilinovich. 4 Appeal2014-003249 Application 12/633, 158 Claim 4 Regarding claim 4, the Examiner finds that Bilinovich teaches a heat exchanger in which the portion of each channel tortuous in opposing directions is an outlet for the fluid. Final Act. 6. The Examiner asserts that the limitation that the tortuous portion is an outlet "does not require that the portion of each channel that is tortuous in opposing directions ... must extend all the way to the edge of the heat exchange[r]." Id. The Examiner further finds that "the portion of each channel [in Bilinovich] that is tortuous in opposing directions ... will act as an outlet for the fluid whether that fluid enters at the top or bottom of the flow channels." Id. Appellant argues that "in order for a component to qualify as either an inlet or an outlet, it must either allow fluid in (in the case of an inlet) or allow fluid out (in the case of an outlet) of the heat exchanger." Appeal Br. 4. Appellant further argues that the portion of the channel that is tortuous in Bilinovich "is not located at either the inlet or the outlet" and "the only possible inlets and outlets ... are the parallel portions." Id. The Examiner responds that claim 4 does not preclude the outlet being defined by the curved portions of Bilinovich's fins 3, and that the outlet of Bilinovich's curved portion would then define an inlet to another straight portion. Ans. 13 (citing Bilinovich, Fig. 2). In other words, the Examiner asserts that claim 4 only requires the tortuous portion to be an outlet for the fluid to anything, including another portion of the channel. See id. We are not persuaded that the term "outlet" should be defined to exclude an outlet to another portion of the heat exchanger. Appellant's argument that claim 4 requires the tortuous portion of each channel to be an outlet for the heat exchanger is therefore not commensurate in scope with 5 Appeal2014-003249 Application 12/633, 158 claim 4. For this reason, we sustain the rejection of claim 4 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Bilinovich. Rejection II Rejection II additionally pertains to claims that depend from independent claim 1. Appellant argues that it would not have been obvious to remove the perforations of Bilinovich in light of Zaffetti. The Examiner has not proposed such a modification, and, therefore, Appellant's argument is inapposite. Appellant does not present any additional arguments for the patentability of the claims in these rejections. See Appeal Br. 7. Accordingly, we sustain this rejection for the same reasons that we sustain Rejection I. Rejection III Rejection III additionally pertains to independent claim 10 and claims 11-13 depending therefrom. Claim 10 also recites a plurality of rows of adjacent, continuous first fins in which a portion of each first channel is tortuous in opposing directions about the axis, and wherein each fin extends a full height of the heat exchanger. Appellant argues that claim 10 is paten tab le " [ fJ or the reasons discussed above," which pertained to claim 1. Appeal Br. 7. As discussed supra, Appellant's arguments regarding the patentability of claim 1 are not persuasive. Accordingly, we sustain Rejection III for the reasons set forth above regarding Rejection I. Rejection IV - Shitaya Regarding independent claims 1 and 4, Appellant argues that Shitaya fails to disclose a heat exchanger including a second, curved portion of each 6 Appeal2014-003249 Application 12/633, 158 channel that is tortuous in opposing directions about the axis. Appeal Br. 6. Appellant also argues that the device in Shitaya "includes only straight channel walls 12a, with corrugated protrusions ... [and] [t]he corrugations . . . do not make a curved portion of the channel." Id. Appellant further argues that "[t]he channels illustrated in Figure 3 of the JP reference are not curved in any capacity. Rather, each of the 'zigs' and 'zags' identified by the examiner occurs at a 90 degree angle, and thus cannot define a curve." Reply Br. 2. The Examiner responds that Figure 3 of Shitaya "clearly discloses [that] the curved (snake-like) portions 12c and 12d ... project from opposite sides of the fin portions 12a." Ans. 16. We are persuaded by Appellant's argument that the Examiner's finding is in error. The portions 12c and 12d which the Examiner finds correspond to the "curved portion" of each channel are not illustrated as curved. Appellant is correct that each of these protrusions "occurs at a 90 degree angle, and thus cannot define a curve." Reply Br. 2. For this reason, we do not sustain the rejection of claims 1---6 over Shitaya. Rejection V Rejection V additionally pertains to claims that depend from independent claim 1. The Examiner does not find that any of Zaffetti or Nakada cures the deficiencies of Shitaya, and we, therefore, do not sustain Rejection V for the reasons set forth above regarding Rejection IV. 7 Appeal2014-003249 Application 12/633, 158 Re} ection VI Claims 1-9 The Examiner does not find that any of Zaffetti, Nakada, Severson '755, Severson '388, or APA cures the deficiencies of Shitaya, and, therefore, we do not sustain the rejection of claims 1-9 for the reasons set forth above regarding Rejection IV. Claims 10--13 Regarding claim 10, which does not explicitly recite a "curved portion," the Examiner finds that Shitaya teaches a portion of each first channel "that is tortuous in opposing directions (shown at 12c and 12d in Figure 3)." Final Act 8. Appellant argues that "the channel defined by the channel walls 12a, is a straight channel that is entirely aligned with the channel axis A. "2 Appeal Br. 6. Appellant appears to be arguing that only portions 12a of the fins are part of the channel. See id. The Examiner responds that Figure 3 of Shitaya shows that "portions 12c and 12d ... project from the opposite sides of fin portions 12a ... to define a channel that undulates back and forth along the channel axis ... and is 'tortuous in opposing directions about the axis.'" Ans. 16. Appellant's argument is not persuasive. Claim 10 recites a plurality of continuous first fins, "each first fin defining a first channel having an associated first axis, wherein ... a portion of each first channel is tortuous in opposing directions about the axis." Appellant does not explain why the 2 The dictionary definition of tortuous is "marked by repeated twists, bends, or turns." http://www.merriam-webster.com/dictionary/tortuous (last visited April 11, 2016). This definition is consistent with the term's use in Appellant's Specification. 8 Appeal2014-003249 Application 12/633, 158 channel in Shi ta ya would only include portion 12a and not include any of the remaining fin, including 12c and 12d. Appellant likewise does not explain why the portion of Shitaya's channel including 12c and 12d is not "tortuous." As the Examiner correctly notes, the channel in Shitaya includes the entire piece shown in Figure 3. See Ans. 16. For this reason, we sustain the rejection of claims 9-12 over Shitaya, Zaffetti or Nakada, and one of Severson '755, Severson '388, and APA. Rejection VII Appellant does not argue against the rejection of claim 4 as indefinite (Appeal Br. 3-7; Reply Br. 1-2; see also Final Act. 4; Ans. 4--5), and we therefore summarily sustain Rejection VII. DECISION We AFFIRM the rejection of claims 1---6 under 35 U.S.C. § 102(b) as anticipated by Bilinovich. We AFFIRM the rejection of claims 1-9 under 35 U.S.C. § 103(a) as unpatentable over Bilinovich and Zaffetti. We AFFIRM the rejection of claims 1-13 under 35 U.S.C. § 103(a) as unpatentable over Bilinovich, Zaffetti, and one of Severson '755, Severson '388, and APA. We REVERSE the rejection of claims 1---6 under 35 U.S.C. § 102(b) as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Shitaya. We REVERSE the rejection of claims 1-9 under 35 U.S.C. § 103(a) as unpatentable over Shitaya and Zaffetti or Nakada. 9 Appeal2014-003249 Application 12/633, 158 We REVERSE the rejection of claims 1-9 under 35 U.S.C. § 103(a) as unpatentable over Shitaya, Zaffetti or Nakada, and one of Severson '755, Severson '388, and APA. We AFFIRM the rejection of claims 10-12 under 35 U.S.C. § 103(a) as unpatentable over Shitaya, Zaffetti or Nakada, and one of Severson '755, Severson '388, and APA. We AFFIRM the rejection of claim 4 under 35 U.S.C. § 112, i-f 2 as indefinite. 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 10 Copy with citationCopy as parenthetical citation