Ex Parte Czamara et al

Patent Trial and Appeal Board

Jul 31, 2017

12751209 (P.T.A.B. Jul. 31, 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.
12/751,209 03/31/2010 Michael P. Czamara 5924-17500 1232
35690 7590 08/02/2017
MEYERTONS, HOOD, KIVLIN, KOWERT & GOETZEL, P.C.
P.O. BOX 398
AUSTIN, TX 78767-0398
EXAMINER
TRPISOVSKY, JOSEPH F
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
patent_docketing@intprop.com
ptomhkkg @ gmail .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL P. CZAMARA and
OSVALDO P. MORALES
Appeal 2016-000459
Application 12/751,209
Technology Center 3700
Before: CHARLES N. GREENHUT, JILL D. HILL, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1—27. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2016-000459
Application 12/751,209
CLAIMED SUBJECT MATTER
The claims are directed to a compressed air cooling system for a data
center. Claim 1, reproduced below, is illustrative of the claimed subject
1. A system for removing heat from components in a computer
room of a data center, comprising:
one or more air storage containers configured to hold
compressed air;
one or more air compressors configured to supply
compressed air to at least one of the one or more air storage
containers; and
one or more plenums in fluid communication with the at
least one of the one or more air storage containers, wherein:
each of the one or more plenums is a chamber
configured to receive compressed air from the at least one
of the one or more air storage containers, wherein
compressed air received by the chamber of the plenum
expands to at least partially decompress while inside the
chamber before being discharged out of the chamber;
at least one plenum of the one or more plenums is
configured to discharge air out of the at least one plenum
to supply the discharged air to the computer room in order
to remove heat from the components; and
each computer component from which heat is
removed by the air in the at least one plenum is located
outside the at least one plenum.
The prior art relied upon by the Examiner in rejecting the claims on
matter:
REFERENCES
appeal is:
Widegren
Vinson
Manole
Noteboom
Cichanowicz
US 2006/0123804 A1 June 15, 2006
US 2007/0074525 A1 Apr. 5, 2007
US 2007/0240433 A1 Oct. 18, 2007
US 2008/0305733 A1 Dec. 11, 2008
US 2010/0024445 A1 Feb. 4, 2010
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Application 12/751,209
REJECTIONS
Claims 1—5, 7, 8, 11—17, 19, 20, 22—24, and 26 are rejected under 35
U.S.C. §103(a) as being unpatentable over Cichanowicz and Widegren.
Claims 6, 21, and 25 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cichanowicz, Widegren, and Noteboom.
Claims 9, 10, and 27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cichanowicz, Widegren, and Manole.
Claim 18 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Cichanowicz, Widegren, and Vinson.
OPINION
Claims 1, 12, and 23 are independent. Appellants argue claims 1, 3,
4, 5, 7, 8, and 11 together. Appeal Br. 6. We select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(l)(iv). Appellants also argue
claims 2 and 13 together. Appeal Br. 31. We select claim 2 as
representative. Appellants then argue claims 12, 14—17, 19, 20, and 22
together and claims 23, 24, and 26 together. Id. at 35, 44. However, in
arguing claims 12, 14—17, 19, 20, 22—24 and 26, Appellants merely repeat
the arguments from independent claim 1 for independent claims 12 and 23.
Thus, these claims also stand or fall with claim 1. Finally, Appellants
acknowledge the rejection of claims 6, 9, 10, 18, 21, 25, and 27, but rely on
the arguments made for their respective independent claims. Id. at 87—88.
Thus, we address claims 1 and 2 below.
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Appeal 2016-000459
Application 12/751,209
Claim 1
The Examiner relies on Cichanowicz for the majority of features of
claim 1. Final Act. 2—3. The Examiner further determines that “although
Cichanowicz does not explicitly disclose a plenum, the air must have some
sort of plenum to guide the air along the flow path” and that “flow paths 16,
19 and 32 transfer compressed air from the storage containers to the
computer room and are a partially enclosed space that can be used to
distribute air [thereby] meeting the limitation of a plenum.” Id. at 2. At the
same time, the Examiner also finds that Widegren teaches a plenum and
further that “Widegren teaches it is known for an air conditioning device to
have a chamber (17, 22) that receives and partially decompresses
compressed air while inside the chamber before being discharged out of the
chamber (para. 23)” as is required by the plenum in claim 1. Id. at 3.
As the plenum of Widegren is also used to control the temperature and
volume of the cooling air, the Examiner determines it would be obvious “to
replace the optional heat exchanger (30, para. 48 of Cichanowicz)” with the
“the expansion chamber and mixing plenum of Widegren” “because this
increases the amount of preconditioned air available from the compressed air
and allows for temperature adjustment of the air supplied to the computer
components.” Id.
Issue I1
Appellants argue that
Cichanowicz does not teach or suggest the presence or use of one
or more plenums in fluid communication with the at least one of
the one or more air storage containers, where each of the one or
1 Appellants’ brief divides their arguments over the rejection of claim 1 into
five sections, for convenience we maintain their divisions herein.
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Application 12/751,209
more plenums is a chamber configured to receive compressed
air from the at least one of the one or more air storage
containers, where compressed air received by the chamber of
the plenum expands to at least partially decompress while
inside the chamber before being discharged out of the
chamber, as recited in Appellants’ claim 1.
Appeal Br. 7.
Appellants state that “[t]he rejection relies upon Cichanowicz to teach
these aspects of Appellants’ claim” (id.) and thus, Appellants’ entire
argument under Issue I discusses only Cichanowicz and ignores Widegren.
Id. at 7—16.
As noted above, the Examiner finds that both Cichanowicz and
Widegren teach a plenum, and further finds that they both teach the
highlighted aspects of claim 1. Final Act. 2—3. Further, both Cichanowicz
and Widegren disclose discharging compressed air into a region of the
system to thereby expand the compressed air prior to some other use,
including using the air for cooling purposes (thereby suggesting a similarity
in purpose, if not in structure). See e.g., Cichanowicz 110 and Widegren |
23. Cichanowicz does not discuss in detail the structure where this
expansion occurs, while Widegren does. Compare e.g., Cichanowicz 138,
Figs. 1A, Fig. 1 and Widegren 123, Fig. 1. Though we agree with
Appellants that a mere pipe (Appeal Br. 9) would not be understood by one
of skill in the art to be a plenum, Appellants do not provide any argument,
under Issue I, why Widegren’s structure 17/22 would not be understood to
be a plenum. Thus, even if the disclosure of Cichanowicz is not sufficient to
teach a plenum this would not overcome the rejection based on the teachings
of Widegren.
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Issue II
Appellants next argue that there is no reason to combine Cichanowicz
and Widegren, and that doing so would “would change the principle of
operation of Cichanowicz’s mechanism and render it unsatisfactory for its
intended purpose.” Appeal Br. 16 (emphasis omitted). It is argued that this
is because the combination “must have the ability to add heat to cooling
stream 26 in the manner of a heat exchanger.” Id. at 17.
We are not persuaded by Appellants’ argument because it too
narrowly defines the principle of operation of Cichanowicz. The “principle
of operation” referred to by Appellants relates to the “basic principles” under
which the prior art device was designed to operate. In re Ratti, 270 F.2d
810, 813 (CCPA 1959) (“This suggested combination of references would
require a substantial reconstruction and redesign of the elements shown in
[the primary reference] as well as a change in the basic principles under
which the [primary reference] construction was designed to operate.”)
(emphasis added). Under Ratti, “a change in the basic principles” refers to
change that is fundamental in scope so as to relate to scientific or technical
principles under which the invention is designed to operate.
Appellants have not identified any disclosure in Cichanowicz that
would give any indication that the inclusion of a heat exchanger is one of the
“basic principles” under which Cichanowicz’s device was designed to
operate. As disclosed in Cichanowicz, passing the cooling flow through a
heat exchanger 30 is merely optional. Cichanowicz 148. Still further,
mixing warm air with cool air as taught by Widegren serves the same
purpose of the heat exchanger 30. See Ans. 17. Therefore, in Appellants
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words, the combination has “the ability to add heat to cooling stream 26”
and we are not informed of error in the Examiner’s rejection. Appeal Br. 17.
Appellants also argue that
The alleged benefits of the Office’s replacement of
Cichanowicz's heat exchanger 30 with elements 17 and 22 of
Widegren, namely increasing the volume of and adjusting the
temperature of air being delivered to Cichanowicz’s data center,
would cause an unacceptable loss of pressure of the pressurized
air supplying Cichanowicz’s high-pressure air jets.
Appeal Br. 21.
Without persuasive evidence, these statements are merely attorney
argument. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence.”). Thus,
we are not informed of error in the Examiner’s rejection.
Issue III
Appellants argue that “[tjhere is no evident deficiency in
Cichanowicz’s heat exchanger 30 that would suggest some benefit to be
gained by replacing it with a combination of Widegren’s expansion chamber
17 and mixing chamber 22 in order to adjust the temperature of cooling air.”
Appeal Br. 22. The Examiner stated that the combination “allow[s] for air
temperature adjustment and an increase in the volume of preconditioned air
that can be supplied to the computer components in the data center (6).”
Final Act. 3. Thus, the combination provides the benefits of temperature
control, as well as the additional benefit of control of the volume of air flow
apart from merely the previously compressed air.
The Supreme Court instructs us that in “rejections on obviousness
grounds . . . there must be some articulated reasoning with some rational
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underpinning to support the legal conclusion of obviousness.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)). This legal requirement does not impose any
additional requirement to identify some shortcoming of a prior-art device
that an Examiner concludes it would have been obvious to modify.
Appellants next argue that the combination “would have the
undesirable effect of a substantial twofold reduction of the pressure of the
cooling air Cichanowicz provides to the data center.” Appeal Br. 22.
Appellants base these arguments on the need to “significantly increase the
volume of cooling air being delivered to Cichanowicz’s data center (as
proposed by the Office).” Id. Appellants do not identify why the rejection
is based on the significant increase in volume to the point where the air
pressure would not be enough to “remain adequate to deliver critical or
choked flow across an orifice in a series of high-pressure cooling jets that
will discharge cooling air on the surface of microprocessors in the data
center.” Id. at 22—23. Arguments presented in an appeal must address the
grounds of rejection set forth by the Examiner. 37 C.F.R. § 41.37(c)(l)(iv).
Further, without persuasive evidence, these statements are merely attorney
argument.
Appellants next argue that
a mixing of outside ambient air with the air in Cichanowicz’s
final data center inlet cooling stream 26 would be provided by
Widegren’s mixing chamber 22, not by Widegren’s expansion
chamber 17, so the purported benefit of significantly increasing
the volume of cooling air being delivered to Cichanowicz’s data
center could be achieved without Widegren’s expansion chamber
17.
Appeal Br. 23.
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Application 12/751,209
As noted previously, both Cichanowicz and Widegren disclose
discharging compressed air into a region of the system to thereby expand the
compressed air prior to some other use, including using the air for cooling
purposes (thereby suggesting a similarity in purpose, if not in structure). See
e.g., Cichanowicz 110 and Widegren 123. But, Cichanowicz does not
discuss in detail the structure where this expansion occurs, while Widegren
does. Compare e.g., Cichanowicz 138, Figs. 1 A, Fig. 1 and Widegren 123,
Fig. 1. The Examiner notes that
Widegren further teaches the expansion chamber 17 is capable
of reducing the air temperature to as low as -90 to -100 °C and
mixing chamber 22 allows a controlled amount of ambient air
to mix with the expanded air to adjust the preconditioned air to
a desired temperature, generally about 5 °C.
Ans. 17 (citing Widegren 124). Thus, the expansion chamber 17 and the
mixing chamber 22 are both used to control the temperature of the air flow.
The Examiner’s rejection and reason to combine focuses on both
temperature control and air flow volume control. Thus, Appellants
arguments over only a portion of the reason to combine do not inform us of
error in the rejection.
Issue IV
Under Issue IV, Appellants first repeat certain arguments addressed
above and then argue that these prior arguments evidence improper
hindsight in the rejection and that the claim has not been “considered as a
whole.” App. Br. 24. Other than citing the arguments discussed
previously, Appellants offer no additional evidence or reasoning to support
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these arguments. Thus, we are not informed of error in the Examiner’s
rejection for the reasons previously discussed.
Issue V
Appellants next argue that Cichanowicz and Widegren are non-
analogous art to each other. Appeal Br. 30. Our reviewing court has held
that analogousness may be established when a reference is analogous art to
the claimed invention, regardless of whether the references are analogous to
each other. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Thus,
Appellants’ discussion outlining the differences in the preferred
embodiments between Cichanowicz and Widegren (Appeal Br. 25—30) does
not inform us as to why Cichanowicz or Widegren are non-analogous to the
claimed invention.
The Examiner determines that “[b]oth Cichanowicz and Widegren
teach expanding compressed air for supplying cooled air for cooling in an air
conditioning system and are in the field of applicant’s endeavor.” Ans. 19
(citing In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992).
Appellants reply that “[t]he field of endeavor of Appellant’s invention
is data center cooling,” but do not otherwise address the test for non-
analogous art. Reply Br. 15. Rather, Appellants again focus entirely on the
differences in the preferred embodiments between Cichanowicz and
Widegren. Thus, we are not informed of error in the rejection.
Claim 2
Claim 2 depends from claim 1 and adds, inter alia: “at least one
compressed air storage chamber in fluid communication between the at least
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one plenum . . . and the at least one of the one or more air storage
containers.” The Examiner finds that Widegren teaches a compressed air
storage chamber 17 that meets the limitations of the claim, except that is
“does not teach an air storage container.” Final Act. 4. The Examiner
further finds that “Cichanowicz teaches compressed air storage containers
and therefore the combination meets the limitations of the claim.” Id.
The Examiner provides no reason why it would be obvious to modify
Widegren’s chamber 17 to be an air storage container. See id. Nor does the
Examiner suggest modifying one of Cichanowicz’s compressed air storage
containers to function as Widegren’s chamber 17. See id. “[Rejections 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.” KSR Int 7 Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)). Accordingly, we do not sustain the rejection of
claim 2, as the Examiner provides no reasoning for the further modification
that Widegren’s chamber 17 be an air storage container. For these same
reasons, we do not sustain the rejection of claim 13.
DECISION
The Examiner’s rejections of claims 1, 3—12, and 14—27 are affirmed.
The Examiner’s rejection of claims 2 and 13 is reversed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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