Ex Parte Abrahamian et al

Patent Trial and Appeal Board

Oct 24, 2017

11340115 (P.T.A.B. Oct. 24, 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.
11/340,115 01/26/2006 David J. Abrahamian IRND-973 8321
123446 7590 10/26/2017
Ingersoll-Rand Company
Taft, Stettinius & Hollister LLP
One Indiana Square
Suite 3500
Indianapolis, IN 46204-2023
EXAMINER
SCHERMERHORN, JON
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
10/26/2017 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):
taft-ip-docket @ taftlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID J. ABRAHAMIAN and
KEVIN M. CONROY
Appeal 2015-004431
Application 11/340,115
Technology Center 3700
Before BIBHU R. MOHANTY, MEREDITH C. PETRAVICK, and
JAMES A. TARTAL, Administrative Patent Judges.
MOHANTY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1, 2, 4, 7, 9, 15, and 33—46, which are all the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF THE DECISION
We AFFIRM-IN-PART.
Appeal 2015-004431
Application 11/340,115
THE INVENTION
The Appellants’ claimed invention is directed to heat exchangers of
the fm-and-tube type with an improved louver configuration (Spec., para. 1).
Claim 1, reproduced below, is representative of the subject matter on appeal.
1. A heat exchanger, comprising:
a plurality of rows of tubes intersecting a plurality of
substantially planar fins, each of the fins comprising:
a first side;
a second side opposite the first side;
an upstream bank of louvers configured to direct fluid only
from the first side of the fin to the second side of the fin as the fluid
passes along the fin past at least a first row of the plurality of rows of
tubes, wherein all of the upstream bank of louvers are angled in a first
sloping direction and protrude from both the first and second sides;
a first plurality of stiffening breaks disposed in the upstream
bank of louvers, wherein the first plurality of stiffening breaks
comprises a first plurality of converging stiffening breaks followed by
a first plurality of diverging stiffening breaks, wherein all of the first
plurality of stiffening breaks are disposed on both the first side and the
second side of the fin;
a downstream bank of louvers adjacent the upstream bank of
louvers, wherein the downstream bank of louvers is configured to
direct fluid only from the second side of the fin to the first side of the
fin as the fluid passes along the fin past at least a second row of the
plurality of rows of tubes, wherein all of the downstream bank of
louvers are angled in a second sloping direction and protrude from
both the first and second sides, wherein the first and second sloping
directions are opposite from one another; and
a second plurality of stiffening breaks disposed in the
downstream bank of louvers, wherein the second plurality of
stiffening breaks comprises a second plurality of converging stiffening
breaks followed by a second plurality of diverging stiffening
breaks, wherein all of the first plurality of stiffening breaks are
disposed on both the first side and the second side of the fin.
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Appeal 2015-004431
Application 11/340,115
THE REJECTIONS
The following rejections are before us for review1:
1. Claims 1, 2, 4, 7, 9, 15, 33—42, and 44-46 are rejected under 35
U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement and show possession of the invention.
2. Claim 43 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kase et al., (JP 03031693 A, Jun. 28, 1989; hereinafter “Kase”); in
view of Kato et al., (US Patent 5,170,842, issued Dec. 15, 1992; hereinafter
“Kato”); Obosu (US 5,752,567, issued May 19, 1998); Lu, (US 4,550,776,
issued Nov. 5, 1985); andlto etal., (JP 55-118596 Mar. 5, 1979; hereinafter
“Ito”).
1 The Answer at page 2 lists the rejection of claims 1, 2, 4, 7, 9, 33, 34, 37,
and 39-42 under 35 U.S.C. 103(a) as being unpatentable over Kase et al. (JP
03031693 A), Kato et al. (U.S. Patent No. 5, 170,842) and Obosu (U.S.
Patent No. 5,752,567). This listing of the rejection is taken to be an error as
the rejection was not listed in the Final Rejection mailed April 18, 2014.
Also, the Answer was not signed by the Technology Director designating
this rejection as an approved new grounds of rejection. Further, the Answer
and Final Rejection both indicate that these same claims would be allowable
if rewritten or amended to overcome the rejection under 35 U.S.C. § 112,
first paragraph, indicating that no rejection under 35 U.S.C. § 103(a) is
pending (Ans. 9, Final Rej. 4). Regardless, the affirmance of the rejection of
these claims under 35 U.S.C. § 112, first paragraph made in this Decision
would make this rejection moot.
3
Appeal 2015-004431
Application 11/340,115
FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence.2
ANALYSIS
Rejection under 35 U.S.C. § 112, first paragraph3
The Examiner has rejected claim 1 under 35 U.S.C. § 112, first
paragraph, as failing to provide support in the Specification for the claim
limitation that the plurality of “stiffening breaks are disposed on both the
first and second side of the fin” (Ans. 7, 9, 10, Final Rej. 3).
In contrast, the Appellants argue that this rejection of claim 1 is
improper because the Specification provides support for the claim limitation
at paras. 13—16 and Figs. 2—6 (App. Br. 12—16, Reply Br. 2). The
Appellants argue that one of ordinary skill in the art would understand that
the stiffening breaks are disposed on both the first and second sides of the
fin in light of paras. 13—16 and Figs. 1—4 of the Specification (App. Br. 4).
The Appellants also argue that para. 14 describes the banks on the first and
second sides as a “mirror image” and that the banks of the first and second
sides of the fin are “the same or nearly the same” providing the required
2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
3 We refer to the Specification filed Jan. 26, 2006 (“Spec.”); Final Office
Action mailed Apr. 18, 2014 (“Final Rej.”); Appeal Brief filed Sept. 18,
2014 (“App. Br.”); Examiner’s Answer mailed Jan. 9, 2015 (“Ans.”); and
the Reply Brief filed Mar. 9, 2015.
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Appeal 2015-004431
Application 11/340,115
support. The Appellants provide additional arguments in the Appeal Brief at
pages 12—16 and Reply Brief at page 2.
An applicant shows possession of the claimed invention by describing
the claimed invention with all of its limitations using such descriptive means
as words, structures, figures, diagrams, and formulas that fully set forth the
claimed invention. Lockwood v. American Airlines, Inc., 107 F.3d 1565,
1572 (Fed. Cir. 1997). Here, the Specification makes a distinction between
the embodiment shown in Figures 1 and 2, and the embodiment shown in
Figures 3 and 4 (Spec, paras. 6—9). In paragraph 13 while it is stated that as
illustrated, the louvers all extend above and below a fin, there is also
described variations where they extend from only the top or only from the
bottom (one side, emphasis added). Regardless, the louvers shown in Figure
2 do not include the “stiffening breaks” so there is no disclosure as to how
these would be placed on those louvers themselves. Further, in paragraph 14
it is stated that the dimensions of the louver in a bank in Fig. 2 “is the same,
or nearly the same” with the description of “nearly” leaving variations open
to some degree. Here, there is no specific disclosure that the plurality of
“stiffening breaks are disposed on both the first and second side of the fin”.
While para. 18 of the Specification does disclose modifications may
be made, the particular claimed limitation for “stiffening breaks [that] are
disposed on both the first and second side of the fin” is not set forth using
such descriptive means that fully set forth the claimed invention. For these
above reasons the rejection of claim 1 is sustained. The Appellants have
provided the same arguments for the remaining claims and the rejection of
these claims is therefore sustained as well.
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Appeal 2015-004431
Application 11/340,115
Rejection under 35 U.S.C. § 103(a)
The Appellants argue that the rejection of claim 43 is improper
because the cited prior art fails to disclose or suggest the stiffening breaks
directly along first and second angled lines “to define a first plurality of X-
shaped stiffening breaks spaced directly between pairs of adjacent first
curved perimeters in the first plurality of louvers” (App. Br. 20, 21, Reply
Br. 3, 4).
In contrast, the Examiner has determined that the claimed “X-shaped”
stiffening breaks are shown by Lu at Figure 2, Ito at Fig. 2, and Kato at
Fig. 1 (Ans. 11, 12).
We agree with the Appellants. Here, Fu and Ito each at Figure 2 do
not disclose “a first plurality of X-shaped stiffening breaks spaced directly
between pairs of adjacent first curved perimeters in the first plurality of
louvers.” While Kato at Figure 1 does disclose X-shaped stiffening breaks
in general, here, the cited combination of Kase, Kato, Obosu, Fu, and Ito to
meet the limitations of the claim lacks articulated reasoning with rational
underpinnings to sustain the rejection without impermissible hindsight. For
these reasons the rejection of claim 43 is not sustained.
CONCFUSIONS OF FAW
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 1, 2, 4, 7, 9, 15, 33—42, and 44-46 under 35 U.S.C. § 112,
first paragraph.
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Appeal 2015-004431
Application 11/340,115
We conclude that Appellants have shown that the Examiner erred in
rejecting 43 under 35 U.S.C. § 103(a) as unpatentable over Kase, Kato,
Obosu, Lu, and Ito.
DECISION
The Examiner’s rejection of claims 43 is reversed.
The Examiner’s rejection of claims 1, 2, 4, 7, 9, 15, 33—42, and 44-46
is sustained.
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-IN-PART
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