Ex Parte Capelle et al

Patent Trial and Appeal Board

Sep 10, 2018

12171392 (P.T.A.B. Sep. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/171,392 07/11/2008
58637 7590 09/12/2018
Shumaker, Loop & Kendrick, LLP
1000 Jackson Street
Toledo, OH 43604-5573
FIRST NAMED INVENTOR
Andreas Capelle
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.
FP135082US (205174) 2852
EXAMINER
THOMPSON, JASON N
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
09/12/2018 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):
c golupski@ slk-law. com
tlopez@slk-law.com
dmiller@slk-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREAS CAPELLE, OLIVER FISCHER,
PETER DIEHL, PETR SISPERA, and
JUERGEN NOTHBAUM 1
Appeal2018-000261
Application 12/171,392
Technology Center 3700
Before CHARLES N. GREENHUT, BENJAMIN D. M. WOOD, and
GEORGE R. HOSKINS, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants state that the real party in interest is Hanon Systems. App. Br.
1.
Appeal2018-000261
Application 12/171,392
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
2, 8-10, 13-25, and 27. Claims 3-7, 11, 12, and 26 have been canceled.
Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to a heat exchanger for an exhaust gas
recirculation system of an internal combustion engine. Spec. ,r 2. Sole
independent claim 1, reproduced below, with emphasis added, is illustrative
of the claimed subject matter:
1. A heat exchanger for an exhaust gas system of a
motor vehicle comprising:
a closed housing including at least one housing
cover and one housing case having an inner volume for
receiving a flow of a first fluid therein, wherein the inner
volume of the housing case is enclosed by an interior
surface of the housing case and the at least one housing
cover, wherein the housing case includes an inlet channel
and an outlet channel configured to receive the flow of
the first fluid therethrough;
a plurality of substantially U-shaped exchanger
tubes disposed in the inner volume of the housing case,
each of the substantially U-shaped exchanger tubes
including a first leg having a first end provided with an
inlet and a second leg having a second end provided with
an outlet, the inlet and the outlet configured to receive a
flow of a second fluid therethrough, wherein the first end
and the second end of the legs of each of the substantially
U-shaped exchanger tubes is disposed outside of the at
least one housing cover, and wherein at least one of the
inlet and the outlet of each of the substantially U-shaped
exchanger tubes is substantially parallel to at least one of
an inlet of the inlet channel and an outlet of the outlet
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Application 12/171,392
channel of the housing case, wherein the substantially U-
shaped tubes form a bundle connected in parallel in terms
of fluid flow; and
a baffle plate disposed within the bundle of the
substantially U-shaped exchanger tubes and the inner
volume of the housing case, wherein the baffle plate
extends between and is substantially parallel to the legs
of the substantially U-shaped exchanger tubes to guide
the flow of the first fluid through the inner volume of the
housing case, wherein a first end of the baffle plate is
directly connected to the at least one housing cover and
wherein a second end of the baffle plate is disposed
within the bundle of the substantially U-shaped
exchanger tubes and is configured to mechanically stiffen
the bundle of the substantially U-shaped exchanger
tubes.
Withers
Withers '304
Melnyk
Helberg
Shagoury
Dilley
REFERENCES
us 3,779,312
us 3,826,304
us 4,458,749
us 4,825,942
us 5,544,700
US 2004/0244958 Al
REJECTIONS
Dec. 18, 1973
July 30, 1974
July 10, 1984
May 2, 1989
Aug. 13, 1996
Dec. 9, 2004
Claims 1, 8-10, 13, 14, 22, and 25 are rejected under pre-AIA
35 U.S.C. § I03(a) as unpatentable over Shagoury and Melnyk.
Claims 2, 15-19, and 23 are rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Shagoury, Melnyk, and Dilley.
Claims 20 and 21 are rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Shagoury, Melnyk, and Withers.
Claim 24 is rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Shagoury, Melnyk, and Withers '304.
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Appeal2018-000261
Application 12/171,392
Claim 27 is rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Shagoury, Melnyk, and Helberg.
ANALYSIS
Claims 1, 8-10, 13, 14, 22, and 25-
Rejected as Unpatentable over Shagoury and Melnyk
Based on Appellants' arguments, App. Br. 8-12, we select claim 1 as
representative of the claims subject to this rejection, and decide the appeal of
this rejection on the basis of claim 1 alone. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 1 recites, inter alia, a "baffle plate" that is "configured to
mechanically stiffen the bundle of the substantially U-shaped exchanger
tubes." The Examiner asserts that Shagoury's shell divider 62 corresponds
to the claimed baffle plate. Final Act. 4--5, 14--15 (citing Shagoury Fig. 2).
According to the Examiner,
Shagoury discloses a baffle plate 62 having first and second ends
(Annotated figure 2: The first end of the baffle plate is connected
to the housing cover, and where the second end is opposite the
first end), where the second end of the baffle plate is indeed
positioned within the tube bundle of U-shaped tubes (Annotated
figure 2), and where the second end of the baffle plate is indeed
configured to mechanically stiffen the U-shaped exchanger tubes
(Annotated figure 2; The second end of the baffle plate is
connected to one of elements 42a which is mechanically coupled
to the tubes).
Id. at 14--15. 2 The Examiner characterizes the requirement that the baffle
plate be "configured to mechanically stiffen the bundle of U-shaped
exchanger tubes" as a functional limitation, and determines that Shagoury' s
2 The Examiner's annotated version of Shagoury Figure 2 is on page 6 of the
Final Action.
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Application 12/171,392
divider plate satisfies this limitation because it is capable of performing the
function. Id. at 15 (citing In re Mott, 557 F.2d 266 (CCPA 1977)); see also
Ans. 4 ("the baffle plate of Shagoury intrinsically 'mechanically stiffens the
bundle of the substantially U-shaped exchanger tubes' since the baffle plate
62 is connected to the U-shaped heat exchanger tubes (Figure 2) and the
baffle plate 62 is also connected to the closed housing").
Appellants dispute that Shagoury teaches the claimed baffle plate.
App. Br. 8-12. In particular, Appellants contend that "[n]owhere does
Shagoury disclose using the flow divider 62 ( or the associated baffles 42a)
to mechanically stiffen the flow tubes 40a, as required by the present
claims." Id. at 10. Appellants also assert that "there is no disclosure of any
'connection' between the baffles 42a or the shell divider 62 and the flow
tubes 40a," and it is "not possible to ascertain any such 'connection' in the
schematic, partly sectional view of the heat exchanger in Shagoury FIG. 2."
Reply Br. 3.
We are not apprised of Examiner error. Claim 1 requires a first end of
the baffle plate to be "directly connected to the at least one housing cover,"
and a second end of the baffle plate to be "configured to mechanically
stiffen" the U-shaped tubes. Appellants do not dispute the Examiner's
finding, Final Act. 5, that a first end of Shagoury's divider plate is directly
connected to at least one housing cover. Regarding the "configured to"
limitation, the Specification discloses that one configuration of the baffle
plate that mechanically stiffens the U-shaped tubes is for the baffle to also be
connected to the U-shaped tubes. Spec. ,r 55. The Specification does not
indicate that any special connection or anything more is required to provide
such stiffening.
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Application 12/171,392
We agree with the Examiner's finding that Shagoury's divider plate
62 is connected to Shagoury's U-shaped flow tubes 40a via baffles 42a. We
agree with the Examiner that Figure 2 of Shagoury is sufficient evidence of
such connection. Appellants do not provide any evidence or persuasive
argument supporting their contrary assertion that "is it not possible to
ascertain" that divider 62 is connected to tubes 40a via baffles 42a. With the
understanding that Figure 2 is a cross-sectional view of a three-dimensional
object, it is evident that Shagoury's shell divider 62 passes through three
baffles 42a, and abuts a fourth baffle. It is further evident that U-shaped
flow tubes 42a pass through baffles 42a. As a result, shell divider 62 is
mechanically connected to flow tubes 40a via baffles 42a, and movement of
the flow tubes would be constrained by this configuration. Although
Appellants point out that Shagoury does not expressly indicate that a result
of this mechanical connection is stiffening (App. Br. 10), Appellants do not
apprise us of any technical reasons why at least some stiffening would not
result from this connection having the structural features attributed to
producing stiffening according to Appellants' Specification (i-f 55). Thus, we
agree with the Examiner that the Shagoury's baffle plate 62 is reasonably
regarded as "configured to mechanically stiffen the bundle of the
substantially U-shaped flow tubes."
Because we agree with the Examiner that Shagoury discloses the
baffle plate according to claim 1, we sustain the Examiner's rejection of
claims 1, 8-10, 13, 14, 22, and 25 as unpatentable over Shagoury and
Melnyk.
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Application 12/171,392
Remaining Rejections
Appellants do not separately argue the patentability of any of the
dependent claims rejected as unpatentable over Shagoury, Melnyk, and
additional references. Accordingly, we sustain the Examiner's rejection of:
claims 2, 15-19, and 23 as unpatentable over Shagoury, Melnyk, and Dilley;
claims 20 and 21 as unpatentable over Shagoury, Melnyk, and Withers;
claim 24 as unpatentable over Shagoury, Melnyk and Withers '304; and
claim 27 as unpatentable over Shagoury, Melnyk, and Helberg.
DECISION
For the above reasons, the Examiner's rejection of claims 1, 2, 8-10,
13-25, and 27 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)(l )(iv).
AFFIRMED
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