Ex Parte Gentry et alDownload PDFBoard of Patent Appeals and InterferencesJul 30, 200710156917 (B.P.A.I. Jul. 30, 2007) Copy Citation The opinion in support of the decision being entered today is not binding precedent of the Board. UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte MATTHEW C. GENTRY AND KEITH W. HOVIS ____________ Appeal 2007-1801 Application 10/156,917 Technology Center 1700 ____________ Decided: July 30, 2007 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and LINDA M. GAUDETTE, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the Examiner’s final rejection of claims 14-21 and 45-50, the only claims pending in this application. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). Appeal 2007-1801 Application 10/156,917 We affirm. Appellants’ invention relates to reflux condensers employed at the top of distillation towers. Specification, p. 1, ll. 5-6. Independent claims 14 and 45 are illustrative of the invention: 14. A distillation unit comprising: an elongated upright distillation column having a lower end and an upper end and defining a fractionation zone extending between the lower and upper ends; and a reflux condenser positioned above and rigidly coupled to the upper end of the column and defining a condensing zone fluidly communicating with the fractionation zone via a condensing zone inlet, said condenser including a heat exchange tube bundle disposed in the condensing zone and comprising a plurality of upright elongated heat exchange tubes and a plurality of rod-type baffles for supporting the heat exchange tubes. 45. A distillation unit comprising: an elongated upright distillation column having a lower end and an upper end and defining a fractionation zone extending between the lower and upper ends; and a reflux condenser positioned above and rigidly coupled to the upper end of the column and defining a condensing zone fluidly communicating with the fractionation zone via a condensing zone inlet, said condenser including a U-tube bundle disposed in the condensing zone and comprising a plurality of upright elongated U-tubes, a plurality of rod-type baffles for supporting the U-tubes, and a plurality of vertically spaced baffle rings, each of said baffle rings being rigidly coupled to a respective baffle group of said baffles. 2 Appeal 2007-1801 Application 10/156,917 The references relied on by the Examiner are: Heere US 2,903,401 Sep. 8, 1959 Small US 4,413,394 Nov. 8, 1983 Gentry US 4,709,755 Dec. 1, 1987 The Examiner made the following rejection: Claims 14-21 and 45-50 under 35 U.S.C § 103(a) as unpatentable over Heere in view of Gentry and Small. ISSUE The Examiner contends that it would have been obvious to have modified the reflux condenser of Heere in view of Gentry and/or Small to achieve the invention as claimed. Appellants contend that one of ordinary skill in the art would not have looked to Gentry and Small because they relate to heat exchangers which operate in a different manner than Heere’s reflux condenser and, therefore, the Examiner’s motivation to combine the references can only be based on improper hindsight reasoning. The issue for us to decide is: Has the Examiner properly established motivation to combine the references within the meaning of 35 U.S.C. § 103? For the reasons discussed below, we answer this question in the affirmative. RELEVANT FINDINGS OF FACT 1) Heere discloses an apparatus which includes a reflux condenser in which vapor is condensed and returns by gravity as liquid. The condensed liquid is diverted by baffle and drip lip to a collection pocket. Col. 2, ll. 12-21. 3 Appeal 2007-1801 Application 10/156,917 2) Heere teaches that solvent vapors may have a corrosive effect inside the apparatus. Col. 1, ll. 41-44. 3) According to the present Specification, it is known in the art to employ, in a condenser, a U-tube bundle in which the individual tubes are supported relative to one another by a plurality of horizontally disposed plate-type baffles. Page 1, ll. 23-25. 4) Gentry discloses a U-tube bundle supported by a rod-type baffle for use in a heat exchanger. The baffle comprises a ring with a plurality of rods affixed thereto as parallel chords. According to Gentry, the baffle prevents channeling of shell side fluid between the legs of the tube bundle. Col. 2, ll. 54-61. 5) Gentry teaches that: “[i]n steam generators, the heating fluid passes on the inside of the tube bundle, and the fluid to be heated and vaporized flows around the outside of the tube bundle. Dry-out conditions commonly occur at the interfaces between the tubes and the support elements and also the tubes and the tube sheet are especially prone to dry-out conditions. Dry-out and high chemical concentrations in these crevices can cause tube denting and cracking and lead to premature failure of the tube bundle. Tube denting occurs when the carbon steel tube support element exhibits fast linear corrosion at the location where the tube passes through it. The corrosion product occupies a greater volume than the original support element metal and squeezes down on the tube, deforming it. If corrosion continues, gross deformation and eventual cracking of the support element and tube can result. Similar problems are seen in crevices between the tube and the tube sheet.” Col. 1, ll. 30-48. 4 Appeal 2007-1801 Application 10/156,917 6) Small relates to improvements in heat transfer capabilities of a tube bundle to be used in a shell and tube heat exchanger. Col. 1, ll. 9-11. 7) Small teaches that problems which can occur in plate-type baffle heat exchangers relate to excess space between the tubes and the openings in the plates through which the tubes pass. Col. 1, ll. 44-51. 8) Small discloses that heat transfer can be improved by employing rod baffles to support the tube bundle. See col. 5, ll. 5-25. ANALYSIS AND CONCLUSIONS The Examiner found that Heere discloses the invention as claimed with the exception of a plurality of rod-type baffles for supporting heat exchange tubes. Answer 3. The Examiner notes that Gentry and Small disclose a plurality of rod-type baffles for supporting heat exchange tubes, including a U-tube bundle. Answer 3. The Examiner concluded that it would have been obvious to one of ordinary skill in the art at the time of the invention to have substituted or replaced Heere’s plate-type baffle with Small or Gentry’s rod-type baffle. Answer 3. According to the Examiner, the motivation for such modification is the reasonable expectation of increasing heat transfer rates, reducing damages due to vibration, etc., based on the teachings of Small and Gentry. Answer 5. Appellants contend that one of ordinary skill in the art would not have been motivated to combine the teachings of Heere with Gentry and/or Small because “[t]here are clear and substantial differences between the reflux condensers disclosed in Heere and in the prior art and the heat exchangers disclosed in Gentry and Small.” Reply 3. In particular, Appellants explain 5 Appeal 2007-1801 Application 10/156,917 that the reflux condensers disclosed in Heere and in the prior art are operable to cause a component of a vapor flowing therethrough to condense from a gas to a liquid, and allow the liquid component to fall into a fractionation zone under force of gravity while allowing the vapor to escape the condenser. Reply 3. Appellants point out that the heat exchangers disclosed in Gentry and Small are not concerned with fractionation at all and are not operable to condense a component of a vapor and allow the condensed liquid to flow into a fractionation zone against the stream of the vapor while allowing the vapor to escape. Reply 3. The teaching of a reference is not limited to the specific invention disclosed. In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1337 (Fed. Cir. 2006). Thus, the motivation to modify or combine references is not limited to the reasons contemplated by the inventor. See KSR Int’l Co. Teleflex, Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007) (quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (“[A]nalysis [of whether the subject matter of a claim is obvious] need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”)). See also, In re Beattie, 974 F.2d 1309, 1312, 24 USPQ2d 1040, 1042 (Fed. Cir. 1992) (“As long as some motivation or suggestion to combine the references is provided by the prior art taken as a whole, the law does not require that the references be combined for the reasons contemplated by the inventor.”) In this case, the Examiner established that both Gentry and Small are reasonably pertinent to the problem of preventing tube damage and improving heat transfer in a U-tube bundle/baffle arrangement. See Findings 6 Appeal 2007-1801 Application 10/156,917 of Fact 4-8. Thus, while Heere’s reflux condenser and the heat exchangers of Gentry and Small may operate differently when in use, the tube bundle/baffle arrangement used in each of these devices is still subject to the same problems of corrosive damage and inefficient heat transfer. See Answer 6 (“The manner or method in which an apparatus is to be used is not germane to the issue of patentability of the apparatus itself.”). Accordingly, we find that the Examiner has established a prima facie case of obviousness for the reasons stated in the Answer. Appellants have failed to present persuasive arguments or evidence to overcome the Examiner’s showing of obviousness. The rejection of claims 14-21 and 45-50 under 35 U.S.C § 103(a) as unpatentable over Heere in view of Gentry and Small is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(vi)(effective Sept. 13, 2004). AFFIRMED cam 7 Appeal 2007-1801 Application 10/156,917 Richmond, Hitchcock, Fish & Dollar P O Box 2443 Bartlesville, OK 74005 8 Copy with citationCopy as parenthetical citation