Ex Parte Wilmot

Patent Trial and Appeal Board

Apr 13, 2016

12633158 (P.T.A.B. Apr. 13, 2016)

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.
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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
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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.
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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
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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
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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.
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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.
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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.
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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
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