Louis Chiappetta et al.

Patent Trials and Appeals Board

Jul 10, 2020

2019006104 (P.T.A.B. Jul. 10, 2020)

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.
14/003,559 09/06/2013 Louis Chiappetta JR. 58530US02 (11-230-2) 1082
50791 7590 07/10/2020
BACHMAN & LAPOINTE, P.C. (UTC)
900 CHAPEL STREET
SUITE 1201
NEW HAVEN, CT 06510-2802
EXAMINER
ZEC, FILIP
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
07/10/2020 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 LOUIS CHIAPPETTA JR., PARMESH VERMA,
and THOMAS D. RADCLIFF
____________

Appeal 2019-006104
Application 14/003,559
Technology Center 3700
____________

Before HUBERT C. LORIN, NINA L. MEDLOCK, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–14 and 17–21, which are all the pending claims in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief
(“Appeal Br.,” filed February 11, 2019) and Reply Brief (“Reply Br.,” filed
August 12, 2019), and the Examiner’s Answer (“Ans.,” mailed June 11,
2019), and Final Office Action (“Final Act.,” mailed September 6, 2018).
Appellant identifies Carrier Corporation as the real party in interest (Appeal
Br. 2).
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CLAIMED INVENTION
Appellant’s claimed invention “relates to refrigeration” and, more
particularly, to “ejector refrigeration systems” (Spec. ¶ 3).
Claims 1, 11, 12, and 14 are the independent claims on appeal.2
Claim 1, reproduced below with bracketed notations and emphasis added, is
representative of the subject matter on appeal:
1. An ejector (300) comprising:
a primary inlet (40) for admitting a liquid or supercritical
or two-phase motive flow;
a secondary inlet (42);
an outlet (44);
a primary flowpath from the primary inlet;
a secondary flowpath from the secondary inlet;
a mixer convergent section (114) downstream of the
secondary inlet; and
a motive nozzle (100) surrounding the primary flowpath
upstream of a junction with the secondary flowpath and having
an exit (110),
wherein the ejector further comprises:
means (340) for introducing swirl to the motive
flow prior to mixing with a saturated or superheated vapor
or two-phase secondary flow from the secondary
flowpath; and

2 Claim 11 recites “[a] vapor compression system comprising: [. . .] the
ejector of claim 1.” The Examiner ostensibly characterizes claim 11 as a
dependent claim; yet, the claim appears to have been drafted in a
“shorthand” format to avoid rewriting the particulars of the apparatus of
claim 1, and not to further define the claimed apparatus recited in claim 1 ––
an indication that claim 11 is an independent claim. See Ex parte Porter,
25 USPQ2d 1144, 1145 (BPAI 1992). Claim 12 recites “[a] method for
operating the system of claim 11” — a similar indication that claim 12 is an
independent, rather than dependent, claim. This does not, however, affect
our analysis here.
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a control needle, wherein the means is selected from
the group consisting of:
[(option A)] the means mounted on the needle
to move therewith; and
[(option B)] the means through which the
control needle slides.
(Appeal Br. 17 (Claims Appendix)).
REJECTIONS
Claims 1–8, 11, 12, 14, 17, 18, and 21 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Applicant Admitted Prior Art (“AAPA”) and
Wittrisch (US 6,210,123 B1, issued Apr. 3, 2001).
Claims 9, 10, 19, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over AAPA, Wittrisch, and Alansary (US 2010/0276517 A1,
published Nov. 4, 2010).
Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
AAPA, Wittrisch, and Takeuchi et al. (US 2001/0025499 A1, published
Oct. 4, 2001) (“Takeuchi”).
ANALYSIS
Independent Claims 1 and 11 and Dependent Claims 2–8 and 21
We are persuaded, as detailed below, that the Examiner erred in
rejecting independent claims 1 and 11 under 35 U.S.C. § 103(a) (Appeal
Br. 8–13; Reply Br. 1–5).
Claim 1 is directed to an ejector comprising, inter alia, “means (340)
for introducing swirl to the motive flow” and “a control needle,” and recites
that “the means [for introducing swirl to the motive flow] is selected from
the group consisting of: [(option A)] the means mounted on the [control]
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needle to move therewith; and [(option B)] the means through which the
control needle slides.” Claim 11 recites a vapor compression system
comprising, inter alia, “the ejector of claim 1,” and, thus, includes language
identical to that of claim 1.
In rejecting claims 1 and 11 under 35 U.S.C. § 103(a), the Examiner
cites AAPA as disclosing substantially all the claim elements. But, the
Examiner acknowledges that AAPA fails to disclose a “means for
introducing swirl to the motive flow” (Final Act. 5). The Examiner cites
Wittrisch to cure the deficiency of AAPA (id. at 5–6). And the Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time of Appellant’s invention to modify the ejector of AAPA “to
add means for introducing swirl to the motive flow . . . wherein the means is
selected from a group consisting of the means through which the control
needle slides, as taught by Wittrisch, in order to rotate the motive fluid
within the nozzle and[,] thus[,] improve the efficiency of the pump” (id.).
Wittrisch is directed to a jet pumping device comprising an injection
nozzle for injecting a working fluid, and discloses, with reference to
Figures 3a and 3b, “a variant wherein the nozzle comprises[,] internally[,]
. . . means for rotating the working fluid stream” (Wittrisch at 3:35–38).
Wittrisch discloses that the rotation means can be achieved in multiple ways;
thus, for example, in Figure 3b, blades 22 are inclined in relation to
longitudinal axis 20 and fastened to a central core 23 so as to form a
stationary turbine that will force the working fluid to rotate around the
longitudinal axis (id. at 3:43–56). Figure 5b similarly shows a variant in
which the nozzle is internally equipped with a stationary turbine 22 and
outer blades 24 (id. at 5:35–38).
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The Examiner opines, with respect to option A, that the “means for
introducing swirl to the motive flow” of Wittrisch, i.e., Wittrisch’s stationary
turbine 22, “when combined with AAPA, would be placed on the [control]
needle (132)” of AAPA because:
based on the location of the needle in AAPA (prior to the mixing
area downstream of 110, FIG. 1), said means would have to be
placed at a location in the system prior to the mixing of the
motive and gaseous flow in order to provide the rotation to the
motive flow, which improves the efficiency of the pump
(Final Act. 6). And the Examiner concludes, with respect to option B, that
because:
the turbine (22, FIG. 5B) of Wittrisch is stationary (col 2,
lines 13–14), one of ordinary skill in the art would find it obvious
to slide the needle of AAPA through the turbine of Wittrisch, to
allow the vanes to be mounted prior to placing the system (22
and 23) into the annular space 3 (FIG. 3B) resulting in the
rotation of the motive fluid
(id. at 5–6).
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (quoted with
approval in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)).
The Examiner posits here that modifying AAPA to include a means
for introducing swirl to the motive flow would “improve the efficiency of
the pump” (Final Act. 5). Yet, the Examiner does not adequately explain
why or in what way the efficiency of the pump is improved. Nor does the
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Examiner adequately explain why a person of ordinary skill in the art would
have had an apparent reason to modify the ejector of AAPA to include
Wittrisch’s stationary turbine 22 in either of the claimed configuration
options, absent impermissible hindsight.
As to option A, the Examiner’s articulated reason, as described above,
for mounting Wittrisch’s stationary turbine 22 on the control needle 132 of
AAPA is that “said means would have to be placed at a location in the
system prior to the mixing of the motive and gaseous flow in order to
provide the rotation to the motive flow” (Final Act. 6). It, however, is not
readily apparent why placing the turbine “prior to the mixing of the motive
and gaseous flow” would necessarily involve mounting the turbine on the
control needle to move therewith, as opposed to some other configuration.
As to option B, the Examiner’s articulated reason for modifying the
ejector of AAPA to include Wittrisch’s stationary turbine 22 such that
AAPA’s control needle 132 slides through the turbine is “to allow the vanes
to be mounted prior to placing the system (22 and 23) into the annular
space 3” (Final Act. 6). But, we do not see why, and the Examiner does not
adequately explain why, allowing the vanes to be mounted prior to placing
the system into the annular space would necessarily involve the control
needle sliding through the turbine, as opposed to some other configuration.
Responding to Appellant’s arguments, the Examiner takes the further
position in the Answer that:
Wittrisch teaches means (turbine 22, FIG. 5B) through which the
control needle slides (central core 23, FIG. 3B) in order to force
the working fluid to rotate around the longitudinal axis (col 3,
lines 52–57). The central core is clearly interpreted as the needle
as it provides the necessary mounting surface, centrally located,
upon which the turbine is mounted (FIG. 3B).
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(Ans. 11). Yet, to the extent the Examiner relies on Wittrisch as disclosing
or suggesting the sliding configuration of claim 1 (i.e., option B), we agree
with Appellant (Reply Br. 2) that Wittrisch does not disclose that central
core 23, which the Examiner equates to the control needle, slides through
stationary turbine 22. See Wittrisch at 3:52–56 (describing blades 22
“fastened to a central core 23 so as to form a stationary turbine”) (emphasis
added).
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claims 1 and 11 under 35 U.S.C. § 103(a). For the same
reasons, we also do not sustain the Examiner’s rejection of dependent
claims 2–8 and 21. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992)
(“dependent claims are nonobvious if the independent claims from which
they depend are nonobvious”).
Independent Claim 12
Independent claim 12 recites “[a] method for operating the system of
claim 11” comprising four distinct method steps. The entire basis of the
Examiner’s rejection of claim 12 is that “it is rejected based on the rejection
of [the] apparatus as explained in the rejection of claim 11 above[,] and the
associated method steps, which follow directly from the use of the apparatus,
are rejected accordingly” (Final Act. 8).
We find that the Examiner has not established a prima facie case of
obviousness. Critically, the Examiner does not make any finding that the
prior art discloses the method steps recited in claim 12, which include, inter
alia, “passing said saturated or superheated vapor or two-phase secondary
flow of the refrigerant through the secondary inlet to merge with the motive
flow.” Nor does the Examiner articulate any reasoning with rational
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underpinning for modifying AAPA to arrive at the method recited in
claim 12. Specifically, the Examiner does not provide any explanation as to
why the claimed method steps “follow directly from the use of the
apparatus.”
Therefore, constrained by the record before us, we do not sustain the
Examiner’s rejection of claim 12 under 35 U.S.C. § 103(a).
Independent Claim 14 and Dependent Claims 17 and 18
Independent method claim 14 recites “[a] method for operating an
ejector” including “passing the motive flow over redirecting surfaces . . . the
redirecting surfaces are formed along vanes (242) selected from the group
consisting of: [(option A)] vanes (242) mounted to the control needle; and
[(option B)] vanes extending from a centerbody within which centerbody the
control needle slides.”
Claim 14 stands rejected based on substantially the same rationale
(regarding AAPA and Wittrisch) applied with respect to claim 1 (Final
Act. 8–9). In particular, the Examiner finds that Wittrisch’s turbine
blades 22 are equivalent to the claimed vanes, and the Examiner determines
that “one of ordinary skill in the art would find it obvious to slide the needle
of AAPA through the turbine of Wittrisch, to allow the vanes to spin
resulting in the rotation of the motive fluid” and “in order to rotate the
motive fluid within the nozzle and thus improve the efficiency of the pump”
(id. at 9).
It is not apparent why allowing the vanes to spin would necessarily
involve sliding the control needle through the stationary turbine. The
Examiner’s reasoning also does not take into account that Wittrisch’s
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stationary turbine 22 already forces the working fluid to rotate, i.e., without
apparent rotation of the turbine’s blades. See Wittrisch at 3:52–56.
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claim 14 and dependent claims 17 and 18.
Dependent Claims 9, 10, 13, 19, and 20
Each of claims 9, 10, 13, 19, and 20 depends, directly or indirectly,
from one of independent claims 1, 12, and 14. The rejections of these
dependent claims do not cure the deficiencies in the corresponding rejections
of independent claims 1, 12, and 14. Therefore, we do not sustain the
rejections under 35 U.S.C. § 103(a) of dependent claims 9, 10, 13, 19, and
20 for the same reasons set forth above with respect to the corresponding
independent claims.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8, 11, 12,
14, 17, 18,
21
103(a) AAPA, Wittrisch 1–8, 11, 12,
14, 17, 18,
21
9, 10, 19,
20
103(a) AAPA, Wittrisch,
Alansary
9, 10, 19,
20
13 103(a) AAPA, Wittrisch,
Takeuchi
13
Overall
Outcome
1–14, 17–
21
REVERSED