Ex Parte Brunner et al

Patent Trial and Appeal BoardOct 25, 2017

13457974 (P.T.A.B. Oct. 25, 2017)

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. 13/457,974 04/27/2012 Steffen BRUNNER 1006/0229PUS1 6380 60601 7590 10/25/2017 Muncy, Geissler, Olds & Lowe, P.C. 4000 Legato Road Suite 310 FAIRFAX, VA 22033 EXAMINER FLANIGAN, ALLEN J ART UNIT PAPER NUMBER 3744 MAIL DATE DELIVERY MODE 10/25/2017 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte STEFFEN BRUNNER, PETER GESKES, JENS HOLDENRIED, KLAUS IRMLER, and MICHAEL SCHMIDT1 ____________ Appeal 2016-006213 Application 13/457,974 Technology Center 3700 ____________ Before WILLIAM A. CAPP, BRANDON J. WARNER, and ANTHONY KNIGHT, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the final rejection of claims 1–3, 5, 9–12, 14, 16, and 17.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, BEHR GMBH & CO. KG is the Real Party in Interest. Appeal Br. 2. 2 Appellants have cancelled claim 15. Appeal Br. 5, 8, 13. Appeal 2016-006213 Application 13/457,974 2 THE INVENTION Appellants’ invention relates to an evaporator for use in recovery of thermal energy from the exhaust system of a motor vehicle. Spec. ¶¶ 3, 5. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. An evaporator for an exhaust gas system of a motor vehicle, the evaporator comprising: a plate sandwich structure that has multiple fluid-guiding plate elements stacked on top of each other for guiding a first fluid; and at least one rib arranged between two plate elements and configured to guide a second fluid; wherein each plate element has a flow channel plate unit and first and second cover plates, the flow channel plate unit having at least one flow channel plate provided with flow channels in order to guide the first fluid from an inlet to an outlet, wherein the first cover plate contacts upper surfaces of the at least one flow channel plate and the second cover plate contacts bottom surfaces of the at least one flow channel plate, such that the at least one flow channel plate is positioned between the first and second cover plates and the first and second cover plates cover the flow channels. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: The following rejections are before us for review: 1. Claims 1–3, 5, 9–12, 14, 16, and 17 are rejected under 35 U.S.C. § 102(b) as anticipated by Ware. Ware Wakita Yin Braun US 3,229,764 US 7,219,720 B2 US 2010/0084120 A1 US 2010/0096101 A1 Jan. 18, 1966 May 22, 2007 Apr. 8, 2010 Apr. 22, 2010 Appeal 2016-006213 Application 13/457,974 3 2. Claims 1–3, 5, 9–12, 14, 16, and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Ware and Wakita. 3. Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Ware and Braun or, in the alternative, Ware, Wakita, and Braun. 4. Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Ware and Wakita, or in the alternative, over Ware, Wakita, and Yin.3, 4, 5 OPINION Anticipation by Ware Appellants argue claims 1–3, 5, 9–12, 14, 16, and 17 as a group. Appeal Br. 9–12. We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Ware discloses every limitation of claim 1. Final Action 3. In particular, the Examiner finds that Ware satisfies the limitations directed to cover plates contacting upper and lower 3 In the Final Action, the Examiner rejected claim 15 over the cited art. Final Action 4. Subsequently, Appellants cancelled claim 15 and, essentially, incorporated the subject matter of claim 15 into claim 14. See note 2 supra. The Examiner maintains the rejection as a rejection of newly amended claim 14. 4 In the Final Action, then-pending claim 15 was rejected under 35 U.S.C. § 112, second paragraph, as indefinite. Final Action 2. Subsequent to the Final Action, claim 15 has been cancelled. See note 2 supra. 5 In the Final Action, claim 14 was rejected under 35 U.S.C. § 112, fourth paragraph as being an improper dependent claim. Final Action 2. Subsequently, Appellants amended claim 14. See note 3 supra, Claims App. It appears to us that the Examiner no longer maintains this rejection. See generally Answer. Appeal 2016-006213 Application 13/457,974 4 surfaces of a flow channel plate. Id.6 The Examiner finds that such contact is implicitly disclosed in Ware. Id. Appellants argue that Ware fails to disclose that sheets 25 contact fin members 26. Appeal Br. 9. Appellants argue that, if fins 26 contact both upper and lower sheets 25, it would interfere with the fluid flow depicted by arrows in Figure 3 of Ware. Id. 10. In response, the Examiner reiterates that both the top and bottom of fins 26 contact sheets 25. Ans. 6. According to the Examiner, a person of ordinary skill in the art would understand that the construction taught in Ware implicitly involves direct contact between sheets 25 and every other element adjacent to them in the stack, including the “air side” fins 28, frame elements 20, 22, 24, and fins 26, to allow brazing of the layers in a unified stack. Id. The Examiner states that the typical construction involves forming all of these components from sheets of copper, aluminum, or the like, clamping them in a jig, and furnace brazing so that intimate contact is established between all of the elements, including the crests of fins 26 and 28 with sheets 25. Id. at 6–7. The Examiner explains that such contact facilitates structural rigidity. Id. at 7. Addressing Appellants’ direction of flow argument, the Examiner takes the position that Ware’s fins 26 are lanced sheet metal fins. Id. at 8. The Examiner cites US Patent 7,703,505 to So as evidence of corrugated sheet metal strips that permit directional fluid flow as depicted in Figure 3 of Ware. Id. The Examiner essentially takes the position that Appellants’ interpretation of Ware would result in an inoperable device. Id. at 7–8. The 6 In the Final Action, the Examiner incorporates by reference certain factual findings from “the Previous Office Action.” Id.; See Non-Final Office Action dated December 31, 2014. Appeal 2016-006213 Application 13/457,974 5 Examiner states that using fins that do not extend the full height of the space between sheets 25 would cause the fluid to bypass the fins, thereby defeating their purpose to exchange heat. Id. at 8. Moreover, according to the Examiner, such a design would result in a fatally weak structure. Id. In reply, Appellants argue that it is not necessary for every element to be brazed to sheets 25. Reply Br. 4. According to Appellants, the fins would be brazed solely to a sheet positioned on the lower crest of the fins, but not the upper crest. Id. Appellants maintain their position that the fins must be shorter in height than the space between sheets 25 so that the fluid can flow as depicted in Figure 3. However, Appellants make no attempt to rebut the Examiner’s position that fins 26 are arranged in a “lanced” configuration that would allow the fluid to circulate as shown in Figure 3, but nevertheless be brazed to both the upper and lower sheets 25. Ware discloses a compact brazed plate fin type heat exchanger. Ware, col. 1, ll. 8–12. Ware features a plurality of fin members 26 with refrigerant passage 10 to increase the heat transfer efficiency. Id. col. 1, ll. 63–72. Figure 3 shows the direction of refrigerant flow through the heat exchanger as an oval, race-track pattern around partition member 24 disposed longitudinally in refrigerant passage 10. Id. Fig. 3, col. 2, ll. 20–24, 40–63, col. 2, l. 70 – col. 3, l. 6. The manner of construction is described as follows: As mentioned beforehand, the disclosed heat exchanger is a brazed heat exchanger. As is well known in the art, the enumerated elements are stacked, clamped, and brazed in any suitable manner such as a salt bath. It should be noted that header blocks 14 . . . not only serve as distribution members but also serve to strengthen the heat exchanger during clamping and Appeal 2016-006213 Application 13/457,974 6 brazing so that the securing pressure on the stack does not collapse the heat exchanger. Id. col. 3, ll. 7–14. Ware shows an arrangement of corrugated fins 26 disposed in refrigerant passage 10. Id. Fig. 2. Ware is silent regarding whether the fins are brazed onto sheets 25 at both the top and the bottom. The fins, however, are necessarily configured in a manner that permits the refrigerant fluid to circulate as shown in Figure 3. The Examiner and Appellants each propose alternative interpretations of Ware to fill in the gap of this silence. Appellants propose that the fins do not extend to touch upper sheet 25, so that refrigerant flows over the top of the fins. The Examiner maintains that the fins are lanced so as to permit the refrigerant circuit to flow through the fins. In view of the lack of definitive, explicit disclosure in Ware on this issue, the question before us is whether the Examiner’s position is supported by a preponderance of the evidence. In re Caveny, 761 F.2d 671, 674 (Fed. Cir. 1985) (preponderance of the evidence is the standard that must be met by the PTO in making rejections). We find persuasive the Examiner’s explanation that circulating the fluid above truncated tops of fins 26 would defeat the purpose of having fins, which is to place the fins in contact with the fluid to facilitate heat exchange. Ans. 7–8. The Examiner’s analysis provides a sound basis for the Examiner’s belief that fins 26 are employed in a lanced configuration with the fins contacting both upper and lower sheets 25. This is sufficient to shift the burden to Appellants to show otherwise. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (“when the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant Appeal 2016-006213 Application 13/457,974 7 has the burden of showing that they are not”). In our opinion, Appellants have failed to carry their burden of rebutting the Examiner’s position. Accordingly, we sustain the Examiner’s anticipation rejection of claims 1–3, 5, 9–12, 14, 16, and 17. Unpatentability of Claims 1–3, 5, 9–12, 14, 16, and 17 over Ware and Wakita. As an alternative to the ground of anticipation by Ware, the Examiner combines Ware with Wakita and relies on Wakita as explicitly disclosing the contact limitation that Appellants argue is missing in Wakita. Appellants argue that a person of ordinary skill in the art would not make the proposed combination as it would eliminate Ware’s partition member 24 and the desired flow pattern shown in Ware Figure 3. Appeal Br. 12. This argument is unpersuasive. Wakita “must be read not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The obviousness inquiry does not ask “whether the references could be physically combined but whether the claimed inventions are rendered obvious by the teachings of the prior art as a whole.” In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc). We agree with the Examiner that Wakita discloses explicitly what the Examiner previously found is disclosed implicitly in Ware, namely, contact of cover plates at both the top and bottom of a flow channel plate. Final Action 3, Ans. 4–5. We sustain the Examiner’s unpatentability rejection of claims 1–3, 5, 9–12, 14, 16, and 17. Appeal 2016-006213 Application 13/457,974 8 Unpatentability of Claim 12 over Ware and Braun, or Ware, Wakita and Braun Appellants do not argue for the separate patentability of claim 12 apart from arguments presented with respect to claim 1 which we have previously considered and found unpersuasive. We sustain the unpatentability rejection of claim 12 over Ware, Wakita, and Braun. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue claims). Unpatentability of Claim 14 over Ware and Yin, or Ware, Wakita, and Yin Appellants do not argue for the separate patentability of claim 14 apart from arguments presented with respect to claim 1 which we have previously considered and found unpersuasive. We sustain the unpatentability rejection of claim 14 over Ware, Wakita, and Yin. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue claims). DECISION The decision of the Examiner to reject claims 1–3, 5, 9–12, 14, 16, and 17 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED