Ex Parte Casterton et al

Patent Trial and Appeal Board

Apr 19, 2016

12696986 (P.T.A.B. Apr. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/696,986 01129/2010
23409 7590 04/21/2016
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN A VENUE
Suite 3300
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
Joel T. Casterton
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.
022230-2224-00 1076
EXAMINER
THOMPSON, JASON N
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
04/21/2016 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEL T. CASTER TON, KEVIN G. CLABOTS, and
KEVIN M. EPPERS
Appeal2014-002710
Application 12/696,986
Technology Center 3700
Before STEFAN STAICOVICI, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
10 and 13-16. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The claims are directed to a heat exchanger. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A heat exchanger comprising:
1 Claims 11, 12, and 17-19 are withdrawn. Final Act. l; Reply Br. 2.
Appeal2014-002710
Application 12/696,986
a casing having a first end and a second end;
a fluid flow path extending between the first end and the
second end;
a first plurality of heat exchange tubes defining a first
section of the fluid flow path, the
first plurality of heat exchange tubes having a first end
and a second end;
a first header plate rigidly attaching the first end of the
first plurality of heat exchange
tubes to the first end of the casing;
a second plurality of heat exchange tubes defining a
second section of the fluid flow path,
the second plurality of heat exchange tubes having a first
end and a second end;
a second header plate rigidly attaching the second end of
the second plurality of heat exchange tubes to the second end of
the casing; and
a third section of the fluid flow path fluidly connecting
the first and second sections of the fluid flow path, the third
section including a sealing plate, a first end, and a second end;
the sealing plate of the third section having one or more
apertures for the fluid flow path to pass therethrough;
the first end of the third section attached to the second
end of the first plurality of heat exchange tubes and movable in
at least one direction with respect to the casing and the second
plurality of heat exchange tubes while maintaining the fluid
flow path; and
the second end of the third section attached to the first
end of the second plurality of heat exchange tubes and movable
in at least one direction with respect to the casing and the first
plurality of heat exchange tubes while maintaining the fluid
flow path.
2
Appeal2014-002710
Application 12/696,986
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
L' Forgo ("Forgo")2
Murray
us 2,969,956
us 4,208,529
REJECTIONS
Jan.31, 1961
June 17, 1980
Claims 1-6 and 13-16 are rejected under 35 U.S.C. 102(b) as
anticipated by Murray.
Claims 1-10 and 13-16 are rejected under 35 U.S.C. 103(a) as
unpatentable over Murray and Forgo.3
OPINION
The Examiner finds that Murray discloses all the features recited in
claim 1. See Final Act. 2--4. With regard to the "third section" recited in
claim 1, the Examiner finds Murray discloses
A first end (defined by flange [tube sheet] 52) attached to
a second end of the first plurality of heat exchange tubes and
movable (flange [tube sheet] 52 is inherently capable of being
moved: e.g. due to vibrations or tightening flange connections)
in at least one direction with respect to the casing and the second
plurality of heat exchange tubes while maintaining the fluid flow
path.
2 Although the first-named inventor on this reference has the name
"L'Forgo," the Examiner and Appellants refer to this reference as "Forgo"
throughout the Final Action, Answer, Appeal Brief, and Reply Brief. We
maintain this terminology for clarity.
3 The Final Action (dated March 21, 2013) includes a heading listing claims
1---6 and 13-16 as unpatentable over Murray and Forgo. Final Act. 9.
However, the discussion beneath this heading makes clear that claims 1-10
and 13-16 are rejected as unpatentable over Murray and Forgo. See Final
Act. 12-13.
3
Appeal2014-002710
Application 12/696,986
Final Act. 3 (emphasis added). Similarly, the Examiner further finds
that tube sheet 51 of Murray corresponds to a second end (of the third
section), and "flange [tube sheet] 51 is inherently capable of being moved:
e.g. due to vibrations or tightening flange connections." Final Act. 3.
Appellants argue that tube sheets 51 and 52 are welded to tubes 38
and are bolted together via connecting plate 43. Appeal Br. 6. Therefore,
according to Appellants, the tube sheets 51 and 52 are not "movable" as
required by claim 1. Id. at 7-8. Appellants further contend that the
Examiner's interpretation of the term "movable" as used in claim 1 to
include vibrations of the tube sheets and tightening of the tube sheets is
inconsistent with Appellants' Specification. Id.
In response, the Examiner states:
since annular sealing gaskets (7 6) are located between the first
(52) and second (53) ends, the first (52) and second (53) ends are
at least partially movable in an axial direction with respect to at
least one casing element (e.g. one of 39, 56, or 65) and an
opposing set of tubes (38) when bolts (75) that hold the overall
assembly together are progressively tightened (or loosened)
(Murray: Col. 5, lines 55-67). As is known in the art, bolts are
configured to be further tightened, moving two elements closer
together, even after establishing a leak resistant seal (e.g.
providing additional torque).
Ans. 8.4 Thus, the Examiner maintains the finding that the ability to tighten
tube sheets 52 and 51 makes them movable. The Examiner further finds that
Figure 3 of Murray depicts a gap between tube sheets 51 and 52, and this
gap allows for movement due to thermal expansion. Ans. 8.
4 As Murray does not discuss any reference number "53," we understand the
Examiner to intend to refer to tube sheet 51 when discussing "second (53)
end," based on the context of this discussion. See also Final Act. 3
identifying tube sheet ("flange") 51 as the recited second end.
4
Appeal2014-002710
Application 12/696,986
Appellants' arguments are persuasive. Appellants' Specification
discusses the movability of the ends of flow transitioning structure 59.
Specifically, paragraph 22 of Appellants' Specification explains that gaskets
22 provide a sliding seal connection allowing for displacement of header 20
in the axial direction. See Appellants' Figs. 2 and 8a. Appellants'
Specification describes this arrangement as being in "contradistinction" to a
rigid attachment. See Specification i-f 45. Thus, we interpret the term
"movable" as used in claim 1 to require more than the ability to experience
vibrations or to be tightened.
Regarding the Examiner's finding that a gap exists between the ends
of tubes 38, as shown in Figure 3 of Murray, and that the presence of this
gap means that tube sheets 51 and 52 are movable, we note that Figure 3
also depicts gaskets 76 sandwiched between tube sheets 51 and 52. In other
words, the presence of the above-noted gap does not mean that tube sheets
51 and 52 are free to move. Rather, these tube sheets are each abutted
against seals 76. Thus, the Examiner's finding that a gap exists between
tubes 38 is relevant only to the extent that tube sheets 51 and 52 can be
tightened against seals 7 6 (and that the ability to tighten tube sheets 51 and
52 makes these components movable as recited in claim 1 ). However, as
discussed above, the Examiner's interpretation of the term "movable" to
include the ability to tighten is not consistent with Appellants' Specification
and thus is not reasonable. Accordingly, we do not agree with the Examiner
on this point, and we do not sustain the Examiner's rejection of claim 1 and
claims 2---6 depending therefrom as anticipated by Murray.
Claims 13-16
Independent claim 13 recites, in part, a "flow transitioning structure
permitting movement of the second end of the first plurality of heat
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Appeal2014-002710
Application 12/696,986
exchange tubes with respect to the first end of the second plurality of heat
exchange tubes in at least one direction while maintaining the fluid flow
path." Appeal Br. 16. The Examiner finds that Murray teaches a flow
transitioning structure "permitting relative movement between said ends
(flanges 51 and 52 are inherently capable of being moved relative to one
another: e.g. due to vibrations or tightening flange connections)." Final Act.
8 (emphasis added).
Appellants make similar arguments for the patentability of claim 13 as
those discussed above regarding claim 1. Appeal Br. 9.
For the reasons discussed above regarding the rejection of claim 1 as
anticipated by Murray, we do not sustain the Examiner's rejection of claim
13 or claims 14--16 depending therefrom as anticipated by Murray.
Rejection (II)
As an alternative to finding that Murray discloses a third section with
movable first and second ends as recited in claim 1, the Examiner relies on
Forgo to teach this feature. Final Act. 10. In this regard, the Examiner
reasons, "it would have been obvious to one with ordinary skill in the art at
the time of the invention to permit axial movement as taught by F org[ o] in
the heat exchanger as disclosed by Murray to accommodate for and relieve
thermal stresses." Final Act. 10 (citing Forgo, col. 4, 11. 4--38).
Appellants argue "neither Murray nor Forg[o] disclose[s] at least the
third section having a sealing plate and arranged to be movable as recited in
claim 1 while maintaining the fluid flow path." Appeal Br. 11. Rather,
Appellants assert,
The tightening plate 12 [of Forgo] is also coupled to an upper
end of the tubes la and tube plate 10. The tightening plate 12 is
secured to a frame 21 by a bracket 20 and rivets, and the tube
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Appeal2014-002710
Application 12/696,986
plates 10, 11 are secured to the tightening plate 12 (and to each
other) by bolts 17 and nuts 25.
Appeal Br. 11.
In response, the Examiner refers to plates 10, 11, and 12 of Forgo as a
"third section" with plate 10 corresponding to a first end and plate 11
corresponding to a second end. Ans. 12. The Examiner states, "the tubes
(1 a and 1 ), and subsequently the first and second ends attached to the tubes,
are capable of movement due to thermal stresses (Forg[6], Col 4, lines 4-
38)." Ans. 12 (emphasis added).
Forgo describes plate 12 as "rigidly connected to a mast or frame 21
forming part of a cooling tower by means of a bracket 20 and rivets 26."
Col. 4, 11. 6-8. We reproduce the Forg6's sole Figure below.
5
~ :~~
2 • '·111 .1::11 ·~·\ ··1
I l;jj! ~:
' 1111 '
I ·Wi 20 ' ;!
13.
7
Appeal2014-002710
Application 12/696,986
The Figure in Forgo depicts two juxtaposed banks of tubes 1 and la
connected to one another via plates 10, 11, and 12. See col. 2, 11. 46-54.
Claim 1 requires the ability to move the first end of the third section
with respect to (i) a casing and with respect to (ii) the second plurality of
heat exchange tubes. As shown in Forgo's Figure above, plate 12 is bolted
to plates 10 and 11 via bolts 7. Thus, none of these plates can move with
respect to either of the other plates. Further, the ends of tubes 1 and 1 a are
fixed within plates 11 and 10, respectively. See Forgo, col. 3, 11. 45--49.
Therefore, as plates 10, 11, and 12 are all fixed together, and tubes la and 1
are fixed to plates 10 and 11, respectively, none of plates 10 and 11 moves
with respect to the tubes. In other words, neither of the ends of the third
section ( 10 and 11 as found by the Examiner) moves with respect to the
tubes. Further, as plate 12 is fixed to mast 21, so are both of plates 10 and
11 (via bolts 7). Accordingly, nothing in the "third section" of Forgo, as
defined by the Examiner, is movable as required by claim 1.
The Examiner also finds, that "although only the sealing plate (12)
appears to be rigidly attached to a frame (21 ), any of the other elements that
comprise the third section (10, 11, and 12) are attachable to the frame (col.
4, lines 4-26)." Ans. 12. A preponderance of the evidence supports this
finding. See Forgo, col. 4, 11. 4--15 (explaining the function rigidly
connecting plate 12 to mast 21 and stating "[t]he same result can be obtained
by fixing either of the plates 10 or 11 to mast 21."). However, as plates 10,
11, and 12 are all bolted together via bolts 7, the fact that the mast may be
fixed to one of plates 10 and 11 rather than plate 12 does not change the
result discussed above. Accordingly, we do not sustain the Examiner's
rejection of claim 1 or claims 2-10 depending therefrom as unpatentable
over Murray and Forgo.
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Appeal2014-002710
Application 12/696,986
Claims 13-16
The Examiner's discussion of independent claim 13 as unpatentable
over Murray and Forgo (Final Act. 13-15) does not rely on the teachings of
Forgo and thus, suffers from the same deficiencies discussed above
regarding the rejection of claim 13 as anticipated by Murray. Accordingly,
we do not sustain the Examiner's rejection of claim 13 and claims 14--16
depending therefrom as unpatentable over Murray and Forgo.
DECISION
The Examiner's decision to reject claims 1-10 and 13-16 is reversed.
REVERSED
9