Ex Parte Martin et al

Patent Trial and Appeal BoardNov 28, 2012

11387786 (P.T.A.B. Nov. 28, 2012)

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. 11/387,786 03/24/2006 Dennis Jay Martin EVA-0004 6448 23353 7590 11/28/2012 RADER FISHMAN & GRAUER PLLC LION BUILDING 1233 20TH STREET N.W., SUITE 501 WASHINGTON, DC 20036 EXAMINER ZEC, FILIP ART UNIT PAPER NUMBER 3785 MAIL DATE DELIVERY MODE 11/28/2012 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 DENNIS JAY MARTIN and DAVEY JOE VADDER ____________ Appeal 2010-011212 Application 11/387,786 Technology Center 3700 ____________ Before EDWARD A. BROWN, JAMES P. CALVE, and WILLIAM A. CAPP, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the rejection of claims 1-12 and 14-23. App. Br. 2. Claim 13 has been cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2010-011212 Application 11/387,786 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of the claimed subject matter on appeal: 1. A tube, comprising: a tube body forming a hollow passageway and having an approximate 180° bent U-shaped tube section defining an approximate 180° bent return bend and a pair of straight tube sections with respective ones of the straight tube sections connected to the approximate 180° bent U-shaped section at respective connection locations and extending generally parallel to one another to define an internal space disposed between and among the approximate 180° bent U-shaped tube section and the straight tube sections connected to the approximate 180° bent U-shaped tube section, the approximate 180° bent U- shaped tube section having a concavity formed thereinto with the concavity defining a portion of the internal space, the approximate 180° bent U-shaped tube section having an approximate 180° bent radially inner portion facing the internal space and an approximate 180° bent radially outer portion facing away from the internal space, the concavity formed into the approximate 180° bent radially inner portion of the approximate 180° bent U-shaped section and extending at least to and between the respective connection locations. REJECTIONS Claims 1-11, 22, and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over Bradley (US 5,799,725; iss. Sep. 1, 1998), Kroetch (US 3,724,256; iss. Apr. 3, 1973) and Jennings (US 2,650,636; iss. Sep. 1, 1953). Claims 12 and 14-20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Bradley, Merrill (US 4,755,331; iss. Jul. 5, 1988), Jennings, and Kroetch. Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Harman (US 6,644,079 B2; iss. Nov. 11, 2003), Kroetch, and Jennings. Appeal 2010-011212 Application 11/387,786 3 ANALYSIS Claims 1-11, 22, and 23 as unpatentable over Bradley, Kroetch, and Jennings. Appellants argue claims 1-11 as a group. App. Br. 11-13. We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner found that Bradley discloses a tube with a 180° U-shaped section and straight tube sections connected to the 180° U-shaped tube section but lacks a concavity formed into the 180° U-shaped tube section. Ans. 3. The Examiner found that Kroetch discloses a kinker (79, fig. 5) for creating a concavity on an inside portion of a U-shaped tube (32, fig. 9) to assist in making a smooth, even radius bend (col 3, ll. 48-50), and Jennings teaches a U-tube bend (T, fig. 6) with a depression 25 formed in the inner radial portion (col. 3, ll. 13-15) of a bend to prevent the formation of transverse creases or corrugations when tubing is bent to produce a smooth continuous bend (col. 3, ll. 37-44). Ans. 4. The Examiner determined that it would have been obvious to provide a concavity on the entire inside bent portion of a 180° U-shaped tube section of Bradley as taught by Kroetch and Jennings to assist in making a smooth, continuous, even radius bend without forming transverse creases or corrugations by uniformly distributing excess material to prevent distortions in the tube walls. Ans. 4, 26-27. The Examiner also found that such modification would be an obvious design choice. Ans. 4. Appellants argue that Bradley teaches an approximate 180° bent U- shaped section (without a concavity) and both Kroetch and Jennings teach a concavity formed in the inner radial portion of a tube, but the square, double-cavity tube of Kroetch appears in Figure 9 to be bent less than 90° and the round tube of Jennings appears in Figure 6 to be bent at Appeal 2010-011212 Application 11/387,786 4 approximately 90°, so combining these references results in an approximate 180° bent U-shaped section with a concavity formed in the inner radial portion that extends, at best, only approximately 90°. App. Br. 12; Reply Br 2. We agree with the Examiner that modifying Bradley based on teachings of Kroetch and Jennings that it is advantageous to form concavities along an inner bent portion of a bended tube to form a smooth, continuous bend with no corrugations by uniformly distributing the excess material would result in a U-shaped tube of Bradley having a concavity formed along the 180° bent radially inner portion between the straight tube sections to provide a smooth, continuous bend without corrugations. Applying such a known technique to a known device in the same or a different field of endeavor that is ready for improvement is likely obvious when the modification is within the level of ordinary skill in the art and yields predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The Examiner’s reason to combine teachings of Kroetch and Jennings with Bradley in this manner is supported by a rational underpinning of forming a groove or rib along the curved inner bent portion of a 180° U-shaped tube of Bradley to facilitate formation of a smooth, continuous, even radius bend without corrugations or transverse creases. Ans. 4, 26-27; see In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992) (references may be combined for reasons other than those that are contemplated by an inventor). Appellants have not persuaded us of error in the Examiner’s findings or the determination of obviousness. Appellants’ arguments also amount to individual attacks on the references where the Examiner has relied upon the combined teachings of Bradley, Kroetch, and Jennings to render obvious the claimed subject matter. Appeal 2010-011212 Application 11/387,786 5 Appellants also assert that it would not have been an obvious design choice to form a concavity into the entire 180° section of Bradley because the claimed structure and its function of transporting heat exchange fluid are different from Kroetch and Jennings, which do not transport heat exchange fluid through their tubes while the claimed concavity produces unexpected results by reducing pressure loss that normally occurs when heat exchanger fluid flows through a U-shaped tube section 56. Reply Br. 1-3 (citing Spec., para. [0055]). This argument is not persuasive where the combination of Bradley, Kroetch, and Jennings discloses a “tube” with a “concavity formed into the approximate 180° bent radially inner portion” as called for in claim 1. The intended use of the tube in a heat exchanger does not distinguish the claimed structure over the structure of the prior art. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). In addition, Appellants have not provided evidence of the results achieved by the claimed tube as compared to results achieved by the closest prior art to establish that the claimed structure achieves “unexpected” results. See In re Blauwe, 736 F.2d 669, 705 (Fed. Cir. 1984) (“Due to the absence of tests comparing appellants’ heat shrinkable articles with those of the closest prior art, we conclude that appellants’ assertions of unexpected results constitute mere argument and conclusory statements in the specification which cannot establish patentability.”); see also In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996) (even if a modification results in great improvement and utility over the prior art, it still may not be patentable if it was within the capabilities of a skilled artisan unless it produces a new and unexpected result that differs in kind, not merely degree from the results of the prior art). Appeal 2010-011212 Application 11/387,786 6 Claims 22 and 23 Independent claims 22 and 23 both call for a tube with a concavity formed into an approximate 180° bent inner-most radial U-shaped section and extending at least to and between the respective connection locations. The Examiner found that Bradley, Kroetch, and Jennings disclose this feature for the same reasons as claim 1. Ans. 11-15. Appellants argue that Bradley, Kroetch, and Jennings do not disclose this feature for the same reasons as claim 1 (App. Br. 13-15), and the Examiner’s reliance on design choice is rebutted by a showing of “unexpected results” (Reply Br. 3-4). These arguments are not persuasive for the reasons discussed supra for claim 1. Accordingly, we sustain the rejection of claims 1-11, 22, and 23. Claims 12 and 14-20 as unpatentable over Bradley, Merrill, Jennings, and Kroetch Appellants argue claims 12 and 14-19 as a group. App. Br. 16-18. We select claim 12 as representative. The Examiner found that Bradley discloses a tube with a hollow passageway and approximate 180° bent U- shaped tube section 28 with a pair of straight tube sections 22 connected to the approximate 180° bent U-shaped tube section at connection locations 26. Ans. 15-16 (citing fig. 3A). The Examiner found that Merrill discloses a serpentine tube body as called for in claim 12. Ans. 16. The Examiner found that Kroetch and Jennings disclose a concavity formed into an inside portion of a U-shaped tube and determined that it would have been obvious to provide this feature along the inner bent portions of the 180° U-shaped serpentine tube of Bradley and Merrill to provide a smooth, even radius bend without distortions or corrugations by uniformly distributing excess material in the tube walls. Ans. 17-18. Appeal 2010-011212 Application 11/387,786 7 Appellants argue that a skilled artisan would not combine the features of the prior art as the Examiner has done to arrive at the claimed invention because “the applied art teaches that a concavity can be formed, at best, into a tube bent at approximately 90°.” App. Br. 17. Appellants also argue that the assertion of obviousness based on design choice is rebutted by a showing of “unexpected results” of a decrease in pressure loss. Reply Br. 4. These arguments are not persuasive for the reasons set forth supra for claim 1. Claim 20 Independent claim 20 recites a heat exchanger with an inlet and outlet header, inlet and outlet connections, and a plurality of serpentine tube bodies with a plurality of straight tube sections and a plurality of approximate 180° bent U-shaped tube sections with a concavity formed into the approximate 180° bent radially inner portion. The Examiner found that Bradley discloses a heat exchanger comprising inlet and outlet headers 18, 20, inlet and outlet connections 19, 21 and a tube body with approximate 180° bent U-shaped tube sections. Ans. 21-22. The Examiner relied on Merrill to disclose a serpentine tube, and Kroetch and Jennings to disclose concavities in an inner bend of a U-shaped tube. Ans. 22-23. Appellants argue that the prior art does not disclose concavities formed into inner portions of approximate 180° bent U-shaped serpentine tube sections because “the applied art teaches that a concavity can be formed, at best, into a tube bent at approximately 90°.” App. Br. 18. Appellants also assert that the Examiner’s reliance on design choice is rebutted by a showing of “unexpected results.” Reply Br. 4. These arguments are not persuasive for the reasons discussed supra for claim 1. Accordingly, we sustain the rejection of claims 12 and 14-20. Appeal 2010-011212 Application 11/387,786 8 Claim 21 as unpatentable over Harman, Kroetch, and Jennings Independent claim 21 recites a method of forming a straight tube into an approximate 180° bent U-shaped tube. The Examiner found that Harman discloses this method but does not teach that the approximate 180° bent U- shaped tube section has a concavity formed therein. Ans. 24. The Examiner found that Kroetch and Jennings disclose forming ribs or grooves into inner portions of U-shaped tube sections to provide a smooth, continuous bend by preventing transverse creases or corrugations and determined that it would have been obvious to combine such features with Harman to make a smooth, continuous, even radius bend without transverse corrugations or creases by uniformly distributing material in tube walls. Ans. 25-26, 28-29. Appellants argue that none of the applied art discloses a concavity formed into an approximate 180° bent inner portion of an approximate 180° bent U-shaped tube section and extending at least to and between the respective connection locations as called for in claim 21. App. Br. 19-20. Appellants also argue that “the applied art teaches that a concavity can be formed, at best, into a tube bent at approximately 90°.” App. Br. 20. These arguments are not persuasive for the reasons discussed supra for claim 1. Accordingly, we sustain the rejection of claim 21. DECISION We AFFIRM the rejection of claims 1-12 and 14-23. 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 Appeal 2010-011212 Application 11/387,786 9 mls