Ex Parte Van Decker et al

Patent Trials and Appeals BoardJan 11, 2019

13566649 - (D) (P.T.A.B. Jan. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/566,649 08/03/2012 62008 7590 01/15/2019 MAIER & MAIER, PLLC 345 South Patrick Street ALEXANDRIA, VA 22314 FIRST NAMED INVENTOR Gerald W.E. Van Decker 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. Ol 780117COA 1052 EXAMINER FLANIGAN, ALLEN J ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 01/15/2019 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): patent@maierandmaier.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GERALD W.E. VAN DECKER and COLIN M. WATTS Appeal2017-001824 Application 13/566,649 Technology Center 3700 Before STEFAN STAICOVICI, WILLIAM V. SAINDON, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Gerald W.E. Van Decker and Colin M. Watts ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final decision rejecting claims 1-15, which are all the pending claims. Appeal Br. 2, 3. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). An oral hearing, scheduled for September 20, 2018, was waived. We AFFIRM. According to Appellants, the real party in interest is Renewability Energy, Inc. Appeal Br. 2. Appeal2017-001824 Application 13/566,649 CLAIMED SUBJECT MATTER Appellants' disclosed invention "relates generally to heat exchange devices," and, more particularly, "relates to coil-on-tube heat exchangers." Spec. ,r 2. Claim 1, reproduced below with emphasis added, is the sole independent claim appealed and is representative of the subject matter on appeal. 1. A method for heating fresh water using heat recovered from drain water, the method comprising: providing a center tube for receiving the drain water; providing a plurality of conduits for receiving the fresh water, the conduits of the plurality being helically wrapped in side-by-side relation along at least a portion of the length of the center tube, each of the plurality of conduits being in contact with the center tube to permit heat transfer therebetween; urging the drain water to flow through the center tube to thereby cause heat from the drain water to be transferred to the plurality of conduits via the center tube; and urging the fresh water to flow through the plurality of conduits to thereby heat the fresh water. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Cardone Nobile Kida us 4,304,292 us 5,791,401 JP 2005061771 A 2 Dec. 8, 1981 Aug. 11, 1998 Mar. 10, 2005 Appeal2017-001824 Application 13/566,649 REJECTION The following rejection is before us for review: Claims 1-15 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Nobile, Cardone, and Kida. Final Act. 2--4; Ans. 2-5. ANALYSIS Appellants present arguments against the rejection of independent claim 1 (see Appeal Br. 3-19), and rely on the same arguments for dependent claims 2-15 (see id. at 19). We select claim 1 as representative of the issues that Appellants present in the appeal of this rejection, with dependent claims 2-15 standing or falling therewith. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner determined that a combination of teachings from Nobile, Cardone, and Kida renders obvious the subject matter recited in claim 1. See Final Act. 2--4; Ans. 2-5. Appellants argue that the claimed method is in some way patentably distinct from the teachings of this combination of references, based on assertions that Nobile and Cardone are directed to a different problem than the recited method (see Appeal Br. 5-14 ), and that Kida predominantly discloses a different type of heat exchanger than that used in the recited method (see id. at 14--17). After careful consideration of the record before us, Appellants' arguments do not apprise us of error in the Examiner's factual findings from Nobile, Cardone, or Kida, which are supported by a preponderance of the evidence, or the Examiner's reasonable conclusion of obviousness, which is rationally articulated based on prior art teachings. In short, we sustain the Examiner's rejection based on the reasoned positions set forth therein and in 3 Appeal2017-001824 Application 13/566,649 light of the Examiner's thorough responses to Appellants' arguments. See Final Act. 2--4; Ans. 2-5, 6-11. In particular, Appellants do not dispute the Examiner's position that, at least with respect to the method recited in claim 1, Nobile and Cardone are essentially interchangeable, each disclosing helically-wrapped conduits that surround a central pipe to recover drain water heat, and each missing only the provision of a plurality of such conduits helically wrapped in side- by-side relation along at least a portion of the length of the center tube (Nobile and Cardone both disclose a single wrapped conduit). See Ans. 2-3. Further, Appellants do not identify error in the Examiner's reliance on an embodiment of Kida that discloses an arrangement where a plurality of conduits are helically wrapped in side-by-side relation along at least a portion of the length of the tube. See id. at 3--4. Although Appellants urge that the predominant disclosure of Kida's "actual invention" relates to a different type of heat exchanger (coil-in-tube rather than coil-on-tube) (Reply Br. 2-3; see Appeal Br. 14--17), this does not diminish the teachings from Kida relied on by the Examiner. As the Examiner explains in the Answer, Kida discloses (whether as known prior art or as Kida's "actual invention" is immaterial) alternative arrangements of a single wrapped helical coil (see Kida, Fig. 14; essentially the same as the arrangements of Nobile and Cardone) and a plurality of conduits helically wrapped in side-by-side relation along at least a portion of the length of the center tube (see Kida, Fig. 15). Ans. 2--4. As the Examiner logically reasons, because Kida discloses these two known alternatives for wrapped coil arrangements, "it would have been obvious for one of ordinary skill in the art at the time the instant invention was made to utilize the 4 Appeal2017-001824 Application 13/566,649 multiple helical pipe exchanger of Fig. 15 of Kida ... in the wastewater heat recovery method disclosed in either Nobile or Cardone." Id. at 4--5. Appellants do not apprise us of error in this reasoned conclusion. Moreover, as the Examiner correctly notes, where "a known device is 'altered by the mere substitution of one element [ or arrangement] for another known in the field, the combination must do more than yield a predictable result,"' or "'if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."' Ans. 5 ( quoting KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416-417 (2007)). Appellants have not provided factual evidence or persuasive technical reasoning to explain why modifying a single helically-wrapped conduit (as in Nobile or Cardone (or, for that matter, Kida's Fig. 14)) to include a plurality of helically-wrapped conduits in side-by-side relation (as in Kida's Fig. 15), as proposed by the Examiner (see Final Act. 2--4; Ans. 2-5), would yield anything other than a predictable result, or that doing so would be somehow beyond the level of ordinary skill in the art. After careful consideration of the evidence of record, Appellants' arguments do not apprise us of error in the Examiner's findings or reasoning in support of the conclusion of obviousness. Accordingly, we sustain the rejection of claim 1, and of claims 2-15 falling therewith, under 35 U.S.C. Â§ 103(a) as being unpatentable over Nobile, Cardone, and Kida. 5 Appeal2017-001824 Application 13/566,649 DECISION We AFFIRM the Examiner's decision rejecting claims 1-15 under 35 U.S.C. Â§ 103(a) as being unpatentable over Nobile, Cardone, and Kida. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6