Ex Parte Diem et al

Patent Trial and Appeal Board

Nov 16, 2018

12813818 (P.T.A.B. Nov. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/813,818 06/11/2010
60601 7590 11/16/2018
Muncy, Geissler, Olds & Lowe, P.C.
4000 Legato Road
Suite 310
Fairfax, VA 22033
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Johannes Diem
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.
1006/0 l 62PUS 1 7819
EXAMINER
RUSSELL, DEVON L
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
11/16/2018 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 JOHANNES DIEM,
EBERHARD PANTOW,
ULRICH MAUCHER,
PETER GESKES,
MARTIN KAEMMERER,
KLAUS IRMLER,
JENS HOLDENRIED, and
MICHAEL SCHMIDT
Appeal2018-000784
Application 12/813,818
Technology Center 3700
Before JENNIFER D. BAHR, MICHAEL L. HOELTER, and
LEE L. STEPINA, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner's final rejection of claims 1, 13, 14, 17-24, and 28-30. Final Act.
1 (Office Action Summary); Reply Br. 1. We have jurisdiction under
35 U.S.C. § 6(b). For the reasons explained below, we do not find error in
the Examiner's rejection of these claims. Accordingly, we AFFIRM the
Examiner's rejection.
Appeal2018-000784
Application 12/813,818
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to a device for exchanging heat
and to a motor vehicle with a device of this type." Spec.~ 3. Apparatus
claims 1, 14, and 24 are independent. Claim 1 is illustrative of the claims on
appeal and is reproduced below.
1. A device for exchanging heat between a first medium and
a second medium, the device comprising:
a plurality of plate pairs stacked one on top of another in a
stacking direction;
a first flow space, through which a first medium is adapted
to flow, arranged between two plates of at least one plate pair;
a second flow space, through which a second medium is
adapted to flow, arranged between two plate pairs adjacent to one
another;
a corrugated sheet, disposed in the first flow space, the
corrugated sheet defining parallel coolant channels, the coolant
channels being separated by individual partition walls, the
coolant channels having closed ends and comprising connecting
openings along the coolant channels for connecting adjacent
coolant channels, the coolant channels forming a continuous,
meandering coolant stretch,
wherein an orientation of the first flow space is different
from an orientation of the second flow space,
wherein the plurality of plate pairs are stacked such that
the first flow space and the second flow space are arranged
wherein the second flow space is outermost, and
wherein a direction of flow of exhaust gas is parallel and
opposite to a direction of flow of coolant.
REFERENCES RELIED ON BY THE EXAMINER
Abi-Akar et al.
Brost
Kawachi
US 2006/0124283 Al
US 7,631,688 B2
JP 2003314975
2
June 15, 2006
Dec. 15, 2009
Nov. 6, 2003
Appeal2018-000784
Application 12/813,818
THE REJECTION ON APPEAL 1
Claims 1, 13, 14, 17-24, and 28-30 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Brost, Kawachi, and Abi-Akar.
ANALYSIS
Appellants argue all the claims (i.e., claims 1, 13, 14, 17-24, and 28-
30) together, but also present additional separate arguments regarding
independent claim 24. App. Br. 8-13. We select independent claims 1 and
24 for review, with the remaining claims (i.e., claims 13, 14, 17-23, and 28-
30) standing or falling with their respective parent claim. See 37 C.F.R.
§ 41.37(c)(l)(iv). Our analysis of claims 1 and 24 follows.
With respect to both claims, the Examiner primarily relies on the
teachings of Brost for disclosing their limitations (see Final Act. 4, 5, 10,
11 ), but relies on Kawachi for disclosing "a corrugated sheet (32) disposed
in the flow space (Figs.)" with the sheet's "coolant channels having closed
ends (where the corrugated sheet abuts the plates; Fig. 5)." Final Act. 5; see
also id. at 11. Additionally, the Examiner relies on Abi-Akar for also
disclosing first and second flow spaces stating that it would have been
obvious "to choose to arrange the second [exhaust] flow spaces outermost,
as taught by Abi-Akar et al., in order to transfer as much heat as possible to
the first fluid (coolant)." Final Act. 6; see also id. at 12.
1 The rejection of all the claims under 35 U.S.C. § 112(a) "as failing to
comply with the enablement requirement" (Final Act. 2) has been
withdrawn. Ans. 2 ("It is noted that the claim amendments entered by the
4/10/17 Advisory Action overcame a 112 rejection.").
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Application 12/813,818
Appellants initially focus on the claim 1 limitation, "wherein the
second [exhaust] flow space is outermost,"2 acknowledging the Examiner's
reliance on Abi-Akar as "mak[ing] up for the deficiencies of Brost," and the
above stated reason for their combination. App. Br. 9-10. However,
Appellants assert that modifying Brost to have outermost exhaust flow
"would change the entire structure and principle of operation of Brost."
App. Br. 10. Appellants explain that in Brost, "the coolant layers are the
outermost layers so that they provide a cooling effect to the surrounded
exhaust layers" and that reversing this arrangement (i.e., with the exhaust
layers outermost) "would thus render Brost insufficient for its intended
purpose."3 App. Br. 10; see also Reply Br. 1, 2.
The Examiner disagrees, stating "[t]he purpose of Brost is to
exchange heat" and that rearranging "the coolant and exhaust layers, which
[Appellants have] not contested that Abi-Akar teaches, will not destroy any
of these goals." Ans. 4. This is because, as per the Examiner, the "coolant
and exhaust fluids will still perform efficient heat exchange." Ans. 4.
Brost is entitled "Flat Tube Heat Exchanger with Housing" and
describes "[a] heat exchanger including a stack of flat tubes." Brost Title,
Abstract. Appellants do not explain how arranging the tubes as stated by the
Examiner so that the exhaust tubes are outmost, would preclude heat
exchange from occurring. In other words, Appellants do not explain how
2 Claim 14 includes identical language whereas claim 24 includes the similar
limitation, "wherein an outermost layer at each end of the exhaust gas
evaporator comprises one of the exhaust gas layers."
3 "Appellants maintain that the essential structure of the claimed invention is
completely different from that of Brost." Reply Br. 1.
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Application 12/813,818
making this modification would "render Brost insufficient for its intended
purpose" of "exchang[ing] heat between the coolant and the exhaust layers."
Reply Br. 2; Ans. 4. Accordingly, we are not persuaded the Examiner has
erred by concluding that it would have been obvious "to choose to arrange
the second [exhaust] flow spaces outermost."4 Final Act. 6, 12.
Claims 1 and 24 also recite a corrugated sheet having coolant
channels with "the coolant channels having closed ends." Appellants
contend that Kawachi "fails to teach or suggest that the coolant channels
have closed ends." App. Br. 10. The Examiner disagrees and states that
Kawachi' s channels "have closed ends ( ends are closed where they abut
against the plates that encase them (see Figs. 4-5)." Ans. 6. Indeed, a
review of Figure 5 of Kawachi discloses elongated openings 33 that extend
longitudinally along opposite sides of the corrugations thereby permitting
fluid to travel in a serpentine manner through the corrugations. Hence, there
is merit to the Examiner's understanding of Kawachi that the ends of
Kawachi' s channels "have closed ends" where the ends of the corrugations
abut plates 21, 22. Ans. 6. Appellants fail to explain otherwise. As such,
we are not persuaded the Examiner erred in relying on Kawachi for
disclosing "coolant channels having closed ends" as recited.
Appellants also address the claim 1 limitation (acknowledged as
"similarly recited in independent claims 14 and 24") reciting "wherein a
direction of flow of exhaust gas is parallel and opposite to a direction of
4 The Examiner also states that "the rearrangement of the fluid pathways, as
taught by Abi-Akar ... does not destroy any of the purposes of Brost [and
that instead, Brost] merely offers an alternative optimization of the overall
device ... which are well-understood in the art." Ans. 5.
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flow of coolant." App. Br. 11; see also Reply Br. 2. Appellants contend
that Brost does not disclose this "parallel and opposite" limitation. 5 App.
Br. 11. Regarding the "parallel" component of this limitation, the Examiner
relies on the left-to-right "general flow path" depicted in Figure 2 of Brost.
Ans. 7. Indeed, although arrows 7 4 depict Brost' s coolant flow path as
"meandering" as recited, the coolant, nevertheless, enters on the left and
exits on the right. See Brost Fig. 2. Regarding the "opposite" component of
this limitation, the Examiner relies on Brost' s disclosure that this flow path
can be "for example, counter-current or co-current." Ans. 6; Brost 5:20. As
understood, both "counter-current" and "co-current" imply a "parallel" flow
path, with the "counter-current" description being an example of an
"opposite" flow path. See Ans. 6.
Appellants disagree stating that Brost "does not establish a counter-
current or co-current flow principle" because "Brost does not intend to
establish any specific flow principle." Reply Br. 3 (referencing Brost 5: 16-
20). Brost states:
The arrows 74 illustrate the flow path, although it should be
understood that the indicated flow path is merely an example
for illustration, and is not intended to establish a specific flow
principle, for example, counter-current or co-current.
Brost 5:16-20. As can be seen, Brost states that the illustrated exemplary
flow path (see Brost Fig. 2) "is not intended to establish a specific flow
principal," because it is to be understood that other flow principles are
possible. Nevertheless, Brost expressly discloses two such possibilities, i.e.,
5 Appellants also assert "that one of ordinary skill in the art would not have
modified Brost to arrive at the claimed invention because doing so would
change the entire structure and principle of operation of Brost." Reply Br. 2.
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"counter-current or co-current" flow principles. Thus, regarding the
disclosed "counter-current" flow principle, Appellants' arguments are not
persuasive that Brost fails to teach flow paths that are both "parallel and
opposite" as claimed.
Appellants also contend that Brost's flow path "is perpendicular" and
thus not "parallel and opposite" as recited. App. Br. 12. However, although
Brost's flow path "meanders" the same as Appellants' flow path, such
"meandering" does not alter the Examiner's finding that "the overall flow
path along the heat exchanging surfaces being parallel" with each other
(whether travelling counter-currently or co-currently). Ans. 7 (referencing
Brost Fig. 2).
Specifically regarding claim 24, Appellants emphasize that this claim
recites the exhaust channels and the coolant layers as "having entirely flat
outer surfaces," with the exhaust channels also "being devoid o(any
obstructions" therein. App. Br. 12. Appellants contend, Brost's "layers are
not entirely flat" because Brost' s "tubes 10 have cross-sectional widening
portions 24 formed in each tube." App. Br. 12; Reply Br. 3; see also Brost
Figs. Appellants further contend that "Brost fails to teach or suggest the
exhaust gas channels being devoid of any obstructions within the exhaust
gas channels." App. Br. 12; Reply Br. 3.
Regarding the limitation directed to "having entirely flat outer
surfaces," the Examiner explains, the "widenings 24 that [Appellants] states
he intended this limitation to target are only optional; see Col. 3:39-52[]."
Final Act. 11; see also Ans. 8. There is merit to the Examiner's finding that
widenings 24 are optional because Brost states:
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Application 12/813,818
It should also be understood, however, that while arranging an
additional part between the flat tubes 10 may be used to form
the channels instead of the cross-sectional widening 24 is
feasible, but in the most preferred form of this invention the
cross-sectional widening is used for this function.
Brost 3:41--46. Hence, while the use of widenings 24 is "the most
preferred," it is also possible to employ "an additional part between the flat
tubes 10" for such purposes. Thus, Appellants' reliance on widenings 24 as
causing Brost's tubes to fail the "entirely flat" limitation is not persuasive in
view of Brost's teaching of optionally being able to employ "an additional
part between the flat tubes 10" instead of widenings 24.
Regarding the limitation directed to "being devoid of any
obstructions," the Examiner also identifies where Brost teaches that "there
are no obstructions within the exhaust gas channels" and that "inserts 80 are
optional." Final Act. 11; Ans. 8 (both referencing Brost 5:51-59). This
referenced passage states, "[i]t should also be understood that the present
invention could also be used with heat exchangers in which such inserts
and/ or bypasses are not present in the tubes." Brost 5: 51-5 3. Appellants do
not argue otherwise. See Reply Br. 3--4.
Accordingly, and based on the record presented, we are not persuaded
of Examiner error. Consequently, we sustain the Examiner's rejection of
claims 1, 13, 14, 17-24, and 28-30 as being obvious over Brost, Kawachi,
and Abi-Akar.
DECISION
The Examiner's rejections of claims 1, 13, 14, 17-24, and 28-30 is
affirmed.
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Application 12/813,818
No time period for taking any subsequent action in connection with
this appeal (see 37 C.F.R. § 1.136(a)(l)) may be extended (see 37 C.F.R.
§ 1.136(a)(l)(iv)).
AFFIRMED
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