Nortek Air Solutions Canada, Inc.

Patent Trials and Appeals Board

Mar 10, 2022

2021004892 (P.T.A.B. Mar. 10, 2022)

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. 14/187,413 02/24/2014 Philip Paul LePoudre 5991.037US1 4134 86245 7590 03/10/2022 Schwegman Lundberg & Woessner/NORTEK P.O. Box 2938 Minneapolis, MN 55402 EXAMINER ZERPHEY, CHRISTOPHER R ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 03/10/2022 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): SLW@blackhillsip.com USPTO@slwip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PHILIP PAUL LEPOUDRE Appeal 2021-004892 Application 14/187,413 Technology Center 3700 Before JILL D. HILL, CARL M. DEFRANCO, and LEE L. STEPINA, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4, 7-9, 14-26, and 28-31.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Nortek Air Solutions Canada, Inc. Appeal Br. 3. 2 Claims 5, 11-13, and 27 are withdrawn from consideration. Final Act. 1. Appeal 2021-004892 Application 14/187,413 2 BACKGROUND Appellant’s invention relates to evaporative cooling using a membrane energy exchanger. Claims 1, 15, and 22 are independent. Claim 1, reproduced below, illustrates the claimed subject matter: 1. An evaporative cooling system comprising: an evaporative cooler liquid-to-air membrane energy exchanger (LAMEE) disposed within a scavenger air plenum that is configured to channel a scavenger air stream, the evaporative cooler LAMEE comprising one or more semi- permeable membranes and being configured to direct water and the scavenger air stream through one or more separate channels divided by the one or more semi-permeable membranes, the evaporative cooler LAMEE being configured to exchange latent and sensible energy between the scavenger air stream and the water, without exchanging energy between the scavenger air stream and any other liquid; a first liquid-to-air heat exchanger (LAHE) disposed within a process air plenum that is configured to channel a process air stream; a fan disposed within the scavenger air plenum, the fan being configured to vary a rate of flow of the scavenger air stream to modify an amount of cooling of the process air stream; and a closed cooling liquid circuit that is configured to circulate the water between the evaporative cooler LAMEE and the first LAHE, wherein the evaporative cooler LAMEE is configured to utilize the scavenger air stream to evaporatively cool the water, and wherein the first LAHE is configured to receive the water from the evaporative cooler LAMEE and to allow the water to absorb heat from and cool the process air stream, and wherein the scavenger air plenum comprises a scavenger air inlet and a scavenger air outlet, wherein outside air enters the scavenger air inlet as the scavenger air stream, wherein the scavenger air stream is channeled through the scavenger air plenum and is discharged outside of an enclosed space through the scavenger air outlet, wherein the process air plenum Appeal 2021-004892 Application 14/187,413 3 comprises a process air inlet and a process air outlet, wherein return air from the enclosed space enters the process air inlet as the process air stream, and wherein the process air stream is channeled through the process air plenum and is discharged into the enclosed space through the process air outlet as conditioned supply air. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hood US 4,380,910 Apr. 26, 1983 Bock US 4,538,426 Sept. 3, 1985 Maeda US 5,943,874 Aug. 31, 1999 Fair US 7,389,652 B1 June 24, 2008 Bourne US 2005/0056042 A1 Mar. 17, 2005 Assaf US 2006/0042295 A1 Mar. 2, 2006 McCann US 2010/0181062 A1 July 22, 2010 Mahmud Khizir Mahmud et al., Performance testing of a counter-cross-flow run-around membrane energy exchanger (RAMEE) system for HVAC applications, Energy and Buildings 42 (2010) 1139-1147 Feb. 4, 2010 REJECTIONS I. Claims 1, 2, 8, 22-24,3 29, and 31 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCann and Mahmud. II. Claims 4 and 25 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, and Bock. III. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, and Fair. 3 The Examiner’s omission of claim 24 from the heading of Rejection I appears to be a typographical error because claim 24 is discussed in the body of the rejection. See Final Act. 2. Appeal 2021-004892 Application 14/187,413 4 IV. Claims 9 and 28 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, and Assaf. V. Claims 14-16, 19, 20, and 26 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, and Hood. VI. Claim 21 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, Hood, and Bock. VII. Claims 15, 17, 18, 20, and 26 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, and Maeda. VIII. Claim 30 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCann, Mahmud, and Bourne. OPINION Rejection I; McCann and Mahmud The Examiner finds that McCann discloses most of the claim limitations, including an evaporative cooler having a liquid-to-air energy exchanger (LAEE), but that McCann’s energy exchanger does not include one or more semipermeable membranes, and thus, is not a liquid-to-air membrane energy exchanger (LAMEE). Final Act. 2-4. The Examiner finds, however, that Mahmud discloses an energy exchanger system using a LAMEE having at least one semi-permeable membrane. Id. at 4. The Examiner considers that using Mahmud’s LAMEE in McCann’s cooling system would have been a simple substitution of one known evaporative cooler for another having predictable results for evaporative cooling. Id. at 4-5. Appellant argues that the Examiner’s proposed substitution would not have been simple nor predictable. Appeal Br. 13. Appellant argues, inter alia, that Mahmud uses a LAMEE in an energy recovery (ER) system that Appeal 2021-004892 Application 14/187,413 5 enhances a cooling system, and does not suggest that a LAMEE alone would operate as an evaporative cooler. Id. at 24. Specifically, Appellant asserts that Mahmud’s “RAMEE is employed as an ER system attached to and designed to enhance a different (of unspecified type) heating/cooling system.” Id. (citing Mahmud, Fig. 1). According to Appellant, the challenges and technical issues in ER systems, like Mahmud’s system, “are different than those associated with an evaporative cooling system functioning as the primary conditioning system for an enclosed space,” as in McCann. Id. The Examiner responds that, because McCann’s evaporative cooler and Mahmud’s LAMEE perform the same function, i.e., evaporation, the substitution would have been predictable. Ans. 6. The Examiner asserts that any technical challenges are addressed by Mahmud’s use of a LAMEE. Id. at 7. According to the Examiner, Mahmud’s LAMEE would perform as an evaporative cooler, because it is performing the function of evaporation. Id. at 8. In reply, Appellant asserts that whether Mahmud uses evaporatively cooling is not the issue; rather, the issue is whether Mahmud’s LAMEE is employed as an “evaporative cooler” carrying the primary air conditioning load for a building. Reply Br. 3. According to Appellant, Mahmud’s LAMEE is an add-on to its HVAC system and would similarly be understood as usable as an add-on to the evaporative cooler of McCann for energy recovery. Id. Appellant has the better position. Although we appreciate that both McCann’s cooling tower and Mahmud’s LAMEE perform evaporative cooling, the Examiner has not established adequately that McCann’s primary Appeal 2021-004892 Application 14/187,413 6 cooling tower and Mahmud’s closed system LAMEE are sufficiently similar that one of ordinary skill in the art would have substituted one for the other. Specifically, the Examiner does not adequately address Appellant’s argument that Mahmud’s LAMEE complements or improves performance of a heating and cooling system, whereas McCann’s evaporative cooling system functions as the primary conditioning system. Appeal Br. 23-24. Rather, in response to this argument, the Examiner simply asserts that, in Mahmud, the LAMEE’s “function is evaporation.” Ans. 8. However, that both systems generally employ evaporation does not necessarily make them interchangeable. Figure 1 of Mahmud depicts a LAMEE liquid loop flowing from a supply LAMEE to an exhaust LAMEE. Mahmud, 1140-1141, Fig. 1; see also Appeal Br. 24. Mahmud explains that the LAMEE “can be applied to pre-condition the outside air using the exhaust air before it enters the HVAC heating/cooling unit.” Id. at 1147. Thus, as depicted in Figure 1 of Mahmud, the air exiting the LAMEE enters “HVAC heating/cooling unit” before conditioned air enters the building space. Id. at Fig. 1. According to Mahmud, the LAMEE could be “a viable alternative of the existing ER devices.” Id. at 1147. By contrast, McCann discloses that cooling tower 54, upon which the Examiner relies (see Final Act. 3), is a primary cooling tower that receives pre-cooled air (B). McCann ¶ 54, Figs. 2, 4-5. In McCann, cooling tower 54 cools the water that enters a heat exchanger to cool the air that enters a building. McCann ¶ 53, Fig. 5. Based on how Mahmud and McCann describe their respective systems, there appears to be a difference between an ER system which complements/improves performance of a heating and cooling system, and the system of McCann in Appeal 2021-004892 Application 14/187,413 7 which the evaporative cooling system functions as the primary conditioning system. In view of this, absent persuasive evidence or argument from the Examiner, we find persuasive Appellant’s argument that the “ER system as disclosed by Mahmud is not the same as” the primary air conditioning system of McCann. Reply Br. 3. In this regard, the Examiner’s position that the substitution of one cooling system for the other would have been predictable is based on speculation regarding the predictability of substituting Mahmud’s LAMEE for McCann’s primary conditioning system. For these reasons, a preponderance of the evidence does not support the Examiner’s conclusion of obviousness. Accordingly, we do not sustain Rejection I. Rejections II-IV; McCann, Mahmud, Bock, Fair, and Assaf Claims 4, 7, and 9 depend from claim 1 and claims 25 and 28 depend from claim 22. The Examiner does not rely on Bock, Fair, or Assaf in any manner that would remedy the deficiency of the rejection based on McCann and Mahmud discussed in Rejection I. For the same reasons, we do not sustain rejections II-IV. Rejection V; McCann, Mahmud, and Hood Claims 14 and 26 Claims 14 and 26 depend from claims 1 and 22, respectively. The Examiner does not rely on Hood in any manner that would remedy the deficiency of the rejection based on McCann and Mahmud discussed in Appeal 2021-004892 Application 14/187,413 8 Rejection I. For the same reasons, we do not sustain the Examiner’s rejection of claims 14 and 26. Claims 15, 16, 19, and 20 Similar to claim 1, independent claim 15 recites, inter alia, “an evaporative cooler liquid-to-air membrane energy exchanger (LAMEE) disposed, within a scavenger air plenum that is configured to channel a scavenger air stream, the evaporative cooler LAMEE being configured to exchange latent and sensible energy between the scavenger air stream and water.” Appeal Br. 39 (Claims App.). The Examiner makes the same findings as to McCann and Mahmud, and again concludes that using Mahmud’s LAMEE in McCann’s cooling system would have been a simple substitution of one known evaporative cooler for another with predictable results with respect to evaporative cooling. Final Act. 9-10. The Examiner does not rely on Hood in any manner that would remedy the deficiency of the rejection based on McCann and Mahmud discussed in Rejection I. For the reasons discussed above, a preponderance of the evidence does not support the Examiner’s conclusion of obviousness. Accordingly, we do not sustain the Examiner’s rejection of claim 15, and claims 16, 19, and 20 which depend from claim 15. Rejection VI; McCann, Mahmud, Hood, and Bock Claim 21 depends from claim 15. The Examiner does not rely on Bock in any manner that would remedy the deficiency of the rejection based on McCann and Mahmud discussed in Rejection IV. For the same reasons, we do not sustain Rejections VI. Appeal 2021-004892 Application 14/187,413 9 Rejection VII; McCann, Mahmud, Maeda For claim 15, the Examiner makes the same findings as to McCann and Mahmud, and again concludes that using Mahmud’s LAMEE in McCann’s cooling system would have been a simple substitution of one known evaporative cooler for another with predictable results with respect to evaporative cooling. Final Act. 13-14. The Examiner does not rely on Maeda in any manner that would remedy the deficiency of the rejection based on McCann and Mahmud discussed in Rejection I. For the reasons discussed above for Rejection I, a preponderance of the evidence does not support the Examiner’s conclusion of obviousness. Accordingly, we do not sustain Rejection VII. Rejection VIII; McCann, Mahmud, Bourne Claim 30 depends from claim 22. The Examiner does not rely on Bourne in any manner that would remedy the deficiency of the rejection based on McCann and Mahmud discussed in Rejection I. For the same reasons, we do not sustain Rejection VIII. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed Appeal 2021-004892 Application 14/187,413 10 1, 2, 8, 22- 24, 29, 31 103 McCann, Mahmud 1, 2, 8, 22-24, 29, 31 4, 25 103 McCann, Mahmud, Bock 4, 25 7 103 McCann, Mahmud, Fair 7 9, 28 103 McCann, Mahmud, Assaf 9, 28 14-16, 19, 20, 26 103 McCann, Mahmud, Hood 14-16, 19, 20, 26 21 103 McCann, Mahmud, Hood, Bock 21 15, 17, 18, 20, 26 103 McCann, Mahmud, Maeda 15, 17, 18, 20, 26 30 103 McCann, Mahmud, Bourne 30 Overall Outcome 1, 2, 4, 7-9, 14-26, 28-31 REVERSED