Ex Parte Hoffman et al

Patent Trial and Appeal Board

Mar 6, 2017

12000224 (P.T.A.B. Mar. 6, 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.
12/000,224 12/11/2007 Paul Hoffman 4882-A3 2853
29370 7590
ROBERT A. PARSONS
15615 North 71st Street
Suite 106
Scottsdale, AZ 85254
EXAMINER
ATKISSON, JIANYING CUI
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
03/08/2017 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):
rp@pgpct.com
ms@pgpct.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL HOFFMAN,
RALPH REMSBURG, and MATT REEVES
Appeal 2015-004563
Application 12/000,224
Technology Center 3700
Before LYNNE H. BROWNE, NATHAN A. ENGELS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants, Paul Hoffman et al.,1 appeal under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 2, 3, 5, 6, 71, 72, and 74—80.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and enter NEW GROUNDS OF REJECTION.
1 Appellants identify Amulaire Thermal Technology, Inc. as the real
party in interest. Appeal Br. 2.
2 Claims 1, 4, and 73 are cancelled, and claims 7—70 are withdrawn
from consideration. Id.
Appeal 2015-004563
Application 12/000,224
THE CLAIMED SUBJECT MATTER
The claims are directed to a non-linear fin heat sink. Claims 71, 74,
and 79 are the independent claims. Claim 71, reproduced below, is
illustrative of the claimed subject matter:
71. A non-linear fin heat sink, comprising:
a base and an upper lid arranged in a spaced apart
relationship, the base and the upper lid forming therebetween a
confined space having a height or distance between the base and
the upper lid, the confined space having a longitudinal dimension
and a transverse dimension, one side of the base and upper lid
defining a leading edge for fluids flowing into the confined space
and an opposed side of the base and upper lid defining a trailing
edge for fluids flowing out of the confined space;
a plurality of non-linear fins disposed on at least one of an
upper surface of the base and a lower surface of the lid within the
confined space, each fin having a height equal to or less than the
height of the confined space, a cross-sectional fin longitudinal
dimension corresponding to the longitudinal dimension of the
confined space and a cross-sectional fin transverse dimension
corresponding to the transverse dimension of the confined space;
and
each of the fins including a non-linear shape, a height and
a spacing from adjacent fins, at least two of the height, shape and
spacing of one group of adjacent fins of the plurality of non­
linear fins differing from the height, shape, and spacing of
another group of adjacent fins of the plurality of non-linear fins
so as to provide non-uniform cooling over at least one of the
upper surface of the base and the lower surface of the upper lid.
2
Appeal 2015-004563
Application 12/000,224
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Ward US 6,173,758 B1
Cannell US 6,729,383 B1
Dale US 6,807,059 B1
Lord US 7,027,300
REJECTIONS
The Examiner made the following rejections:
1. Claims 3, 5, 6, 71, 72, 74, 75, 77, 78, and 80 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Lord and Dale.
2. Claim 76 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lord, Dale, and Cannell.
3. Claims 2 and 79 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lord, Dale, and Ward.
Appellants seek our review of these rejections.
Jan. 16, 2001
May 4, 2004
Oct. 19, 2004
Apr. 11,2006
ANALYSIS
The Rejection of Claims 3, 5, 6, 71, 72, 74, 75, 77, 78, and 80
As Unpatentable Over Lord and Dale
For reasons discussed below, we sustain the Examiner’s rejection of
claim 3, 5, 6, 71, 72, 74, 75, 77, 78, and 80 under 35 U.S.C. § 103(a) in view
of (1) Lord and Dale, or (2) alternatively, Lord, Dale, and Cannell. Because
we rely on different reasoning than the Examiner, and to ensure that
Appellants are provided a fair opportunity to respond, we designate our
affirmance of the rejection of these claims as a NEW GROUND OF
REJECTION pursuant to 37 C.F.R. § 41.50(b).
3
Appeal 2015-004563
Application 12/000,224
Claims 71
The Examiner finds that Lord discloses all of the limitations of claim
71, except “Lord does not explicitly teach the plurality of fins having a non­
linear shape, and at least two of the height, shape and space of one group of
adjacent fins different from the height shape, and spacing of another group
of adjacent fins of the plurality of nonlinear fins.” final Act. 2—3. After
finding that Dale discloses this missing limitation, the Examiner determines
that it would have been obvious to modify “the shapes of the fins, and
placement of the fins as disclosed by Lord, to have a non-linear shape, and
varying height/shape/spacing between groups of fins as disclosed by Dale,
because non-linear shapes, staggering and spacing of fins, and varying
heights between groups of fins increase turbulence in the cooling flow,
which helps increasing cooling efficiency of the device.” Id. at 4—5 (citing
the figure 6A/6B embodiments in Dale).
Appellants contend that the Examiner’s rejection is erroneous for
several reasons, first, Appellants contend that the Examiner erroneously
construed the limitation requiring “at least two of the height, shape and
spacing of one group of adjacent fins of the plurality of non-linear fins
differing from the height, shape, and spacing of another group of adjacent
fins of the plurality of non-linear fins.” Appeal Br. 13—17. We agree with
Appellants that:
Two groups of “adjacent fins” are specifically claimed. Thus,
each group is composed of fins that are adjacent to each other.
Since each group includes a plurality of non-linear fins, the non­
linear fins in the ‘one group’ are adjacent to each other and the
non-linear fins in the ‘another group’ are adjacent to each other.
Nothing in the language of the claim in any way suggests or
could be interpreted to mean that fins in the ‘one group’ are
4
Appeal 2015-004563
Application 12/000,224
adjacent to fins in the ‘another group’. Clearly, when referring
to the ‘one group’ only adjacent fms within the ‘one group’ are
being considered. Also, when referring to the ‘another group’
only adjacent fms within the ‘another group’ are being
considered.
Thus, the phrase “the height, shape and spacing” of the
‘one group’ of adjacent fms of the plurality of non-linear fms can
only refer to the adjacent fms within the ‘one group’. . . . Any
reasonable interpretation (regardless how broad) of this language
can only arrive at the conclusion that the height, shape and
spacing within the ‘one group’ differs from the height, shape and
spacing within the ‘another group’.
Id. at 13—14.
Claim 1 compares the height, shape, and spacing of adjacent fms in
one group with the height, shape, and spacing of adjacent fms in another
group. As Appellants state, claim 71 requires that “the spacing characteristic
is between adjacent pins in a group and not between groups.” Id. at 16.
Referring to the Examiner’s annotated Figure 6A of Dale (Final Act. 5; Ans.
16), the Examiner’s comparison of Dale’s spacing si between two adjacent
fms in one group and spacing s2 between non-adjacent fms in two different
groups is unreasonable in light of the claim language and Specification.
As both Appellants and the Examiner agree, Figure 6 A of Dale
discloses the fin height in one group is different from the fin height in
another group. Appeal Br. 15; Final Act. 3—5. However, we agree with
Appellants that the fin spacing between adjacent fms in each respective
group is the same. Appeal Br. 13—17. Thus, Figure 6A of Dale does not
disclose the disputed limitation in claim 1.
We find, however, that Dale’s embodiments in Figures 7A and 7B
disclose two groups of fms (e.g., fms located in the left side group and right
side group in the figures) located on a spherical dome surface. See Dale,
5
Appeal 2015-004563
Application 12/000,224
6:55—66, Figs. 7A, 7B. Because the fins are perpendicular to the curved
dome, the fin heights increase from the lower to the upper portions of the
dome. Id. Thus, the lower fins in the left side group are shorter than the
upper fins in the right side group. Because the fins are perpendicular to the
curved surface and diverge as the pins extend away from the surface {id.),
the spacing between adjacent fins differs both (1) as the fins travel from the
center fin located at the top of the dome downwardly to the lower edge of
the dome, and (2) between the bottom and top of adjacent fins (i.e., narrower
spacing between the bottom of adjacent fins and wider spacing at the top of
adjacent fins). Thus, we find the embodiments in Figures 7A and 7B
disclose that the height and spacing of one group of adjacent fins (e.g., left
side group) differ from the height and spacing of another group of adjacent
fins (e.g., right side group), as recited in claim 71.
Alternatively, we find that Cannell discloses the height, shape, and
spacing of one group of adjacent fins (e.g., left side group in Figures 32—34)
differ from the height and spacing of another group of adjacent fins (e.g.,
right side group in Figures 32—34), as recited in claim 71. Cannell, for
example, discloses at least three embodiments where two groups having
adjacent fins have different heights, shapes, and spacing:
FIG. 32 is a diagrammatic side elevation view of another
inventive embodiment of a heat sink device, wherein the
turbulence-enhancing support pins are illustrated to be
characterized by nonparallel (oblique) orientations.
FIG. 33 is a diagrammatic top plan view of another
inventive embodiment of a heat sink device, wherein the
turbulence-enhancing support pins are illustrated to be
characterized by non-uniformity or randomness in terms of their
shapes, sizes, positions and overall arrangement.
6
Appeal 2015-004563
Application 12/000,224
FIG. 34 is a diagrammatic side elevation view of another
inventive embodiment of a heat sink device, wherein the
turbulence-enhancing support pins are illustrated to be
characterized by regionalization of the pin locations.
Canned, 10:5—18, Figs. 32—34; see, e.g., id. at 17:27—61. We determine that
it would have been obvious at the time the invention was made to one of
ordinary skill in the art to modify the shapes of the fins, and placement of
the fins as disclosed by Lord and Dale, to have a non-linear shape, and non-
uniform and random shapes, sizes, positions, overall arrangement, and
regionalization of fin locations between groups of adjacent fins as disclosed
by Canned, because non-linear shapes, staggering and spacing of fins, and
varying heights between groups of fins increase turbulence in the cooling
flow, which helps increasing cooling efficiency of the device. Id.
Second, Appellants contend that neither Lord nor Dale disclose “non-
uniform cooling over at least one of the upper surface of the base and the
lower surface of the upper lid,” as recited in claim 71. Appeal Br. 17—18.
Appellants argue that Lord provides uniform cooling due to its “linear array
of fin protrusions” and Dale’s uniform fin shape and spacing in the Figure
6A/6B embodiment provide “evenly distributed heat transfer.” Id. (citing
Dale, 6:40-45). Neither the Specification nor Appellants define “non-
uniform cooling,” but we understand that Appellants contend that non-
uniform cooling is provided by fins having at least two of the different fin
heights, shapes, and spacing, as recited in claim 71. Id. at 17—19; see also
id. at 21—22 (different fin heights, shapes, and spacing provide increased
transition from laminar to turbulent flow), 26—27 (different fin heights,
shapes, and spacing provides non-uniform cooling); Ans. 4—5. Based upon
Appellants’ explanation, Canned’s turbulent-enhancing support pins, the
7
Appeal 2015-004563
Application 12/000,224
non-uniformity or randomness of the fins’ shapes, sizes, positions,
regionalization, and the overall arrangement in Cannell and Dale (Figure 7A
and 7B embodiments), we find that Dale and Cannell disclose “non-uniform
cooling,” as recited in claim 71.
For the above reasons, we sustain the Examiner’s rejection of claim
71 under 35 U.S.C. § 103(a) in view of (1) Lord and Dale, or (2)
alternatively, Lord, Dale, and Cannell. Because we rely on different
reasoning than the Examiner, and to ensure that Appellants are provided a
fair opportunity to respond, we designate our affirmance of the rejection of
claim 71 as a NEW GROUND OF REJECTION pursuant to 37 C.F.R.
§ 41.50(b).
Claim 3
Appellants argue that, “[f]or all of the reasons stated above, claim 3 is
not obvious in view of any proper combination of Lord and Dale.” Appeal
Br. 19. As none of Appellants’ arguments are convincing, as discussed
supra, we sustain the Examiner’s rejection of claim 3 as unpatentable over
Lord and Dale, or alternatively, Lord, Dale, and Cannell. We designate our
affirmance a new ground of rejection because claim 3 depends from claim
71.
Claim 72
Appellants argue that the combination of Lord and Dale do not
disclose “at least some of fins of the plurality of non-linear fins have a
greater cross-sectional fin longitudinal dimension than the cross-sectional fin
transverse dimension,” as recited in claim 72. Id. at 19—20. Appellants
8
Appeal 2015-004563
Application 12/000,224
concede that (1) Lord discloses fins with a greater longitudinal dimension
than the transverse dimension, but contend that the fins are linear, not non­
linear, and (2) Dale discloses non-linear fins having many different shapes
(e.g., round, cylindrical, elliptical, fluted, spherical, knurled, helical, and
tapered). Appeal Br. 20; see, e.g., Dale, 2:64—3:3. Elliptical fins have a
greater longitudinal dimension than a transverse dimension. Appellants’
argument that Dale does not explain how the fins would be “situated” in the
heat sink is not commensurate with the scope of claim 72, and, contrary to
Appellants’ unsupported statements, Dale discusses how the fins are
“situated.” See, e.g., Dale, 6:26—54 (Figs. 6A/6B), 6:55—68 (Figs. 7A/7B).
We also find that Canned’s non-linear fins 38 have a greater cross-sectional
fin longitudinal dimension than the cross-sectional fin transverse dimension.
See, e.g., Canned, 10:5—18, 17:27—61, Figs. 32—34. We sustain the
Examiner’s rejection of claim 72 under 35 U.S.C. § 103(a) in view of (1)
Ford and Dale, or (2) alternatively, Ford, Dale, and Canned. We designate
our affirmance a new ground of rejection.
Claim 80
Claim 80 recites that fins with “higher aspect ratios are positioned
closer to the traidng edge for a portion of the longitudinal dimension of the
confined space.” Appedants argue that “[sjince Ford only discloses dnear
fins and Dale only describes round pins, neither disclosure nor teaching
suggest a changing aspect ratio. Further, since a changing aspect ratio is not
disclosed or taught, higher aspect ratios positioned closer to the traidng edge
could not possibly be suggested or inspired.” Appeal Br. 20. Appedants’
argument is not persuasive because, as the Examiner correctly states, Dale’s
9
Appeal 2015-004563
Application 12/000,224
disclosure is not limited to “round pins” and, in fact, discloses pins having
many different shapes (e.g., round, cylindrical, elliptical, fluted, spherical,
knurled, helical, and tapered) which have different aspect ratios. Ans. 19;
see, e.g., Dale, 2:64—3:3. We also find that Cannell’s turbulent-enhancing
support fins, and the non-uniformity or randomness of the fins’ shapes,
sizes, positions, regionalization, and overall arrangement in Cannell disclose
fins 38 with higher aspect ratios positioned closer to the trailing edge for a
portion of the longitudinal dimension of the confined space. See, e.g.,
Cannell, 10:5—18, 17:27—61, Figs. 32—34. We sustain the Examiner’s
rejection of claim 80 under 35 U.S.C. § 103(a) in view of (1) Lord and Dale,
or (2) alternatively, Lord, Dale, and Cannell, and designate our affirmance a
new ground of rejection.
Claim 74
Appellants argue that “all of the above arguments . . . applied to claim
71 apply equally to claim 74.” Appeal Br. 21. As none of Appellants’
arguments are convincing, as discussed supra, we sustain the Examiner’s
rejection of claim 74 as unpatentable over Lord and Dale, or alternatively,
Lord, Dale, and Cannell.
Independent claim 74 recites the groups of fins “provide an increased
transition from laminar fluid flow adjacent the leading edge to turbulent
fluid flow within the confined space.” Appellants explain that “by
incorporating different groups of fins an increased transition from laminar
fluid flow to turbulent fluid flow is produced. Again [Ajppellants believe []
it is clear that varying two of the three claimed characteristics achieves a
valid and substantial result.” Id. Appellants then contend that “[njeither
10
Appeal 2015-004563
Application 12/000,224
Lord nor Dale, individually or in any proper combination, teach different
groups of fins so that they cannot suggest different groups of fins providing
‘an increased transition from laminar fluid flow adjacent the leading edge to
turbulent fluid flow within the confined space.’” Id. at 22. Appellants,
however, do not address the Examiner’s findings that Lord’s and Dale’s
groups of fins
are capable of providing a laminar to turbulent flow (due
to the arrangement of the fins, which are not uniform over the
entire surface of the base, as shown by Lord, and staggered as
shown by Dale, airflow becomes non-uniform, thus increasing
the turbulence of the air flow as the air moves across the confined
space).
final Act. 7. Thus, Appellants do not show error by the Examiner.
With respect to the figure 7A/7B embodiment of Dale, the heat sink
varies two of the three claimed structural characteristics (i.e., height and
spacing), and, according to Appellants’ explanation (Appeal Br. 21—22),
such structural characteristics produce an increased transition from laminar
fluid flow adjacent the leading edge to turbulent fluid flow within the
confined space, as recited in claim 74.
With respect to Cannell, Cannell discloses, for example, an
“embodiment of a heat sink device, wherein the turbulence-enhancing
support pins are illustrated to be characterized by non-uniformity or
randomness in terms of their shapes, sizes, positions and overall
arrangement” and “by regionalization of the pin locations.” Cannell, 10:9—
18. Based upon Appellants’ explanation (Appeal Br. 21—22), the structural
characteristics of Cannell’s fins cause the incoming laminar flow at the
leading edge to transition to turbulent flow, as recited in claim 74.
11
Appeal 2015-004563
Application 12/000,224
For the above reasons, we sustain the Examiner’s rejection of claim
74 under 35 U.S.C. § 103(a) in view of (1) Lord and Dale, or (2)
alternatively, Lord, Dale, and Canned, and designate our affirmance a new
ground of rejection.
Claim 75. 77. 78. 5. 6
Claims 75, 77, 78, 5, and 6 depend from independent claim 74.
Appellants argue that “[f]or all of the reasons stated above, [claims 75, 77,
78, 5, and 6 are] not obvious in view of any proper combination of Lord and
Dale.” Appeal Br. 23—24. As none of Appellants’ arguments are
convincing, as discussed supra, we sustain the Examiner’s rejections of
claims 75, 77, 78, 5, and 6 as unpatentable over Lord and Dale, or
alternatively, Lord, Dale, and Canned, and designate our affirmance a new
ground of rejection.
The Rejection of Claim 76
As Unpatentable Over Lord, Dale, and Cannell
The Examiner finds that Lord and Dale do not disclose “each of the
fins of the plurality of non-linear fins is formed of thermally nonconductive
material,” as recited in claim 76. Final Act. 10. The Examiner also finds
that Canned disclose this missing limitation. Id.
Appellants contend that the Examiner’s rejection is erroneous for
several reasons. Appeal Br. 26—28. First, Appellants concede that Canned
discloses fins “characterized by non-uniformity or randomness in terms of
their shapes, sizes, positions and overall arrangement,” but argue that “no
specific shape is included in a large enough group to affect heat
12
Appeal 2015-004563
Application 12/000,224
distribution.” Id. at 26 (referring to Figure 32 of Canned). Appellants’
purported support for this argument (Dale, 6:51—55), however, contradicts
Appellants’ argument, stating that Canned “cools the baseplate uniformly
over the baseplate’s surface area,” and “[b]y virtue of its patterned pin
configuration, the present invention’s performance is uniform, consistent
and predictable.” Id. (citing Canned, 6:51—55). The cited portion of Canned
also is limited to “patterned pin configurations,” and does not refer to the
embodiments in Figures 32—35, for example, which disclose non-uniform or
random fin shapes, sizes, positions, and overall arrangement, and
regionalization of the pin locations. See, e.g., Canned, 10:5—18, 17:27—61,
Figs. 32—34. According to Appellants’ repeated explanations that “non-
uniform cooling” recited in the claims and Specification is achieved by
changing at least two of the fin height, shape, and spacing in different groups
of fins (see, e.g., Appeal Br. 17—19), and as discussed above with respect to
claim 71, Canned discloses non-uniform cooling. Appellants do not show
Examiner error, and Appellants’ contradictory arguments and statements are
not persuasive.
Second, Appellants contend that “nothing in the teachings of Lord,
Dale or Canned et al. would inspire one of ordinary skid in the art to include
the non-uniform or random shapes, sizes, and positions of the support pins
of Canned et al. in either the plenum of Lord or the heat sink of Dale, since
there is no guidance as to what advantages could be gained.” Id. at 27. The
Examiner, however, relies on Canned for teaching thermally non-conductive
material, not non-uniform or random shapes, sizes, and positions of the
support pins. Final Act. 10. Appellants’argument does not address the
13
Appeal 2015-004563
Application 12/000,224
rejection as articulated by the Examiner, and, thus, does not show error by
the Examiner.
Nevertheless, to address Appellants’ argument, in the alternate
rejection of claims 3, 5, 6, 71, 72, 74, 75, 77, 78, and 80 based on Lord,
Dale, and Canned, we determined that it would have been obvious at the
time the invention was made to one of ordinary skill in the art to modify the
shapes of the fins, and placement of the fins as disclosed by Lord and Dale,
to have a non-linear shape, and non-uniform and random shapes, sizes,
positions, overall arrangement, and regionalization of fin locations between
groups of adjacent fins as disclosed by Canned, because non-linear shapes,
staggering and spacing of fins, and varying heights between groups of fins
increase turbulence in the cooling flow, which helps increasing coodng
efficiency of the device. See, e.g., Canned, 10:5—18, 17:27—61, Figs. 32—34.
Third, Appedants adege that “any combination must obtain
predictable results and there must be a reasonable expectation of success.
Neither predictabidty nor reasonable expectation of success can be found in
any reasonable combination of the teachings of Lord, Dale and/or Canned et
al.” Appeal Br. 27. Appedants’ conclusory statement lacks any factual or
legal support or explanation, and is not persuasive.
Fourth, Appedants argue that the “thermady nonconductive fins of
Canned et al. cannot be combined with Dale because Dale’s whole invention
is in the way he welds ‘pin fins’ to a base. The plastic fins of Canned et al.
would make Dale’s invention inoperative.” Id. at 27—28. The Examiner,
however, determined that it would be obvious to modify
the thermady conductive fins as disclosed by Lord and Dale, to
be formed of a thermady nonconductive material, as disclosed by
Canned, because it provides an option for when non-metadic
14
Appeal 2015-004563
Application 12/000,224
material is desired, and reduces corrosion problems associated
with many thermally conductive materials, therefore increasing
the life of the device.
Final Act. 10 (emphasis added). Appellants arguments about Dale do not
address Lord and the rejection as articulated by the Examiner, and, thus, do
not show error by the Examiner.
Fifth, Appellants argue that
[sjince nothing in the teaching of Lord, Dale, and Cannell et al.
suggests providing two different groups of fins positioned to
provide ‘an increased transition from laminar fluid flow adjacent
the leading edge to turbulent fluid flow within the confined
space’, [Ajppellant believes nothing in any of the teachings could
suggest forming the groups of fins of thermally nonconductive
material.
Appeal Br. 28. Appellants’ argument is not persuasive because (1) it does
not explain why or how thermally nonconductive material affects a
transition from laminar flow to turbulent flow in the claimed heat sink, and
(2) it is not commensurate with the scope of claim 76, which does not recite
such a relationship. Appellants’ argument also is not persuasive for the
reasons discussed above with respect to claim 74, which recites the
laminar/turbulent flow limitation.
For the above reasons, we sustain the Examiner’s rejection of claim
76 under 35 U.S.C. § 103(a) in view of Lord, Dale, and Cannell. Because
we rely on different reasoning than the Examiner, and to ensure that
Appellants are provided a fair opportunity to respond, we designate our
affirmance of the rejection of claim 76 as a NEW GROUND OF
REJECTION pursuant to 37 C.F.R. § 41.50(b).
15
Appeal 2015-004563
Application 12/000,224
The Rejection of Claims 2 and 79
As Unpatentable Over Lord, Dale, and Ward
Appellants argue claims 2 and 79 as a group. Appeal Br. 28—31. We
select independent claim 79 as the representative claim, and claim 2 stands
or falls with claim 79. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants argue that the Examiner’s rejection of claim 79 is
erroneous for several reasons. First, Appellants argue that “[njeither Lord
nor Dale teach fins including a non-linear shape with the cross-sectional fin
longitudinal dimension divided by the cross-sectional fin transverse
dimension defining a cross-sectional ellipse aspect ratio,” as recited in claim
79. Appeal Br. 29. Appellants concede that (1) Lord discloses fins with a
greater longitudinal dimension than the transverse dimension, but contend
that the fins are linear, not non-linear, and (2) Dale discloses non-linear fins
having elliptical and other shapes (e.g., round, cylindrical, elliptical, fluted,
spherical, knurled, helical, and tapered). Appeal Br. 29, 16; see, e.g., Dale,
2:64—3:3.
Appellants’ argument that Dale’s description of elliptical fins does not
mention an “aspect ratio” is not persuasive. Appeal Br. 29; In re Bond, 910
F.2d 831, 832 (Fed. Cir. 1990) (There is no ipsissimis verbis test for
determining whether a reference discloses a claim element, i.e., identity of
terminology is not required.). Elliptical fins and other shaped fins have a
cross-sectional fin longitudinal dimension divided by the cross-sectional fin
transverse dimension defining a cross-sectional ellipse aspect ratio, as
16
Appeal 2015-004563
Application 12/000,224
recited in claim 79.3 We note, for example, that a round or circular fin has
an ellipse aspect ratio of 1:1.
Appellants’ argument that Dale does not explain how the fins would
be “oriented” in the heat sink is not commensurate with the scope of claim
79, and, contrary to Appellants’ unsupported statements, Dale discusses how
the fins are oriented. See, e.g., Dale, 6:26—54 (Figs. 6A/6B), 6:55—68 (Figs.
7A/7B).
Second, Appellants argue that “neither Lord nor Dale teach ‘the
aspect ratio of fins of the plurality of non-linear fins changing as the distance
of the fins of the plurality of non-linear fins from the leading edge of the
confined space increases.’” Appeal Br. 29. The Examiner, however, finds
that Ward discloses this limitation. Final Act. 13; Ans. 23—24. Referring to
Figure 2 of Ward, the Examiner finds that Ward’s “aspect ratio changes in
that the first row of fins, 28, has a higher ratio than the second row, 26, the
second row has a smaller ratio than the first and third row, etc), and fins with
higher aspect ratios (28) [are] positioned closer to the leading edge for at
least a portion of the longitudinal dimension.” Final Act. 13; Ans. 24.
(Ward’s “fins with higher aspect ratios (28) are positioned closer to the
leading edge (Vi) than fins with lower aspect ratios (26), in the direction of
entering airflow into the leading edge, where the fins with higher aspect
ratios increase (as well as decrease) along the longitudinal dimension”).
Appellants’ statement that Ward “only describe[s] and illustrate[s]
elliptical pins with a common ellipse aspect ratio (i.e. all identical, no
3 We find that Canned’s non-linear fins 38 also have a greater cross-
sectional fin longitudinal dimension than the cross-sectional fin transverse
dimension. See, e.g., Canned, 10:5—18, 17:27—61, Figs. 32—34.
17
Appeal 2015-004563
Application 12/000,224
change in aspect ratio) and round pins (all identical with no ellipse aspect
ratio)” is incorrect. Appeal Br. 30. Appellants do not explain why the round
pins do not have an ellipse aspect ratio as defined in claim 79, i.e., cross-
sectional fin longitudinal dimension divided by the cross-sectional fin
transverse dimension. The ellipse aspect ratio of Ward’s round pin 26 is 1:1.
Thus, the Examiner correctly finds that Ward discloses “fins with higher
aspect ratios closer to the leading edge for at least a portion of the
longitudinal dimension of the confined space,” as recited in claim 79.
For the above reasons, the rejection of claim 79 is sustained. Claim 2
falls with claim 79.
DECISION
For the above reasons, the Examiner’s rejection of claims 3, 5, 6, 71,
72, 74, 75, 77, 78, and 80 under 35 U.S.C. § 103(a) as being unpatentable
over Lord and Dale, or, alternatively, over Lord, Dale, and Cannell, is
AFFIRMED, and we designate our affirmance as a NEW GROUND OF
REJECTION pursuant to 37 C.F.R. § 41.50(b).
The Examiner’s rejection of claim 76 under 35 U.S.C. § 103(a) as
being unpatentable over Lord, Dale, and Cannell is AFFIRMED, and we
designate our affirmance as a NEW GROUND OF REJECTION pursuant to
37 C.F.R. § 41.50(b).
The Examiner’s rejection of claims 2 and 79 under 35 U.S.C. § 103(a)
as being unpatentable over Lord, Dale, and Ward is AFFIRMED.
37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
18
Appeal 2015-004563
Application 12/000,224
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to the
examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .
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: 37 C.F.R, $41.50(b)
19