Ex Parte Hurlbert et al

Patent Trial and Appeal Board

Mar 20, 2013

10172662 (P.T.A.B. Mar. 20, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KATHRYN M. HURLBERT, WARREN
RUEMMELE, HAI D. NGUYEN, KAMBIZ K. ANDISH and
SEAN M. MCCALLEY
____________________

Appeal 2010-006600
Application 10/172,662
Technology Center 3700
____________________

Before: JOHN C. KERINS, JAMES P. CALVE and BEVERLY M.
BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-006600
Application 10/172,662
2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the rejections of claims
58-71, 73-84, 86-109 and 111-142. App. Br. 5. Claims 1-57, 72, 85 and
110 are canceled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claims are directed to an apparatus and method for extracting heat
from a device. Claims 58, 71, 84, 95, 109, 119, 129, 139 and 141 are the
independent claims. Claim 58 as reproduced below, is illustrative of the
claims on appeal.
Claim 58: An apparatus, comprising:
a cold plate, comprising:
a face sheet including a composite material and
comprising:
a plurality of joined panels; and
at least one cooling tube capable of transmitting a
cooling fluid therethrough attached to a lower surface of
the face sheet.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Becker
Kloote
Camarda
Fluegel
Rass
Warburton
US 2,799,481
US 2,896,271
US 4,838,346
US 5,667,168
US 6,367,683 B1
US 6,907,920 B2
July 16, 1957
Jul. 28, 1959
Jun. 13, 1989
Sep. 16, 1997
Apr. 9, 2002
Jun. 21, 2005

Appeal 2010-006600
Application 10/172,662
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REJECTIONS
Appellants seek review of the following rejections:
1. Claims 58-60, 62-70, 95-98, 100-108, 119-128 and 139 under 35
U.S.C. § 102(b) as being anticipated by Fluegel.
2. Claims 58, 61, 62, 66-68, 70, 71, 75, 79-81 and 83 under 35 U.S.C.
§ 102(e) as being anticipated by Warburton.
3. Claims 129, 130, 135, 136 and 138 under 35 U.S.C. § 102(b) as
being anticipated by Becker.
4. Claims 61, 71, 73-83 and 99 under 35 U.S.C. § 103(a) as being
unpatentable over Fluegel in view of Camarda.
5. Claims 84, 86-94, 109, 111-118 and 140-142 under 35 U.S.C.
§ 103(a) as being unpatentable over Fluegel in view of Rass.
6. Claims 133, 134 and 137 under 35 U.S.C. § 103(a) as being
unpatentable over Becker in view of Fluegel.
7. Claims 131, 132 and 139 under 35 U.S.C. § 103(a) as being
unpatentable over Becker in view of Kloote.

ANALYSIS
1. Rejection of Claims 58-60, 62-70, 95-98, 100-108, 119-128 and
139 under 35 U.S.C. § 102(b) by Fluegel

Independent claims 58 and 139
Claim 58 defines a cold plate having a face sheet formed from a
composite material and comprising a “plurality of joined panels.” Claim 58
further recites “at least one cooling tube capable of transmitting a cooling
fluid therethrough attached to a lower surface of the face sheet.”
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The Examiner found that Fluegel can be interpreted in two ways, and
each interpretation reads on the claimed subject matter since each
interpretation requires that the face sheet has a plurality of joined panels.
Ans. 8. The first interpretation provided by the Examiner is that the face
sheet comprises “a plurality of heat exchange modules (10), each module
consisting of a panel (20) and wherein the heat exchange modules (10) are
thermally joined with one another” (emphasis added). Ans. 8. According to
the Examiner, it is inherent that the panels are thermally joined with one
another based on the disclosure of Figures 1, 2 and 5 which teach “a
structure (group of heat exchange module 10) that comprise a plurality of
panels (20) thermally joined to one another to cover a[t] least one cooling
tube (14).” Ans. 8-9.
With respect to the Examiner’s first interpretation of a “plurality of
joined panels,” Appellants argue that the Examiner’s construction of the face
sheet as being the heat exchange modules 10 as a group, would not be
understood by a person of ordinary skill in the art to correspond to the
claimed “face sheet.” App. Br. 14. Appellants maintain that Figures 1 and 2
show that each module 10 includes one spreader plate 20, and that the
plurality of modules shown in Figure 1 are not joined together but are spaced
apart. Reply Br. 7. We agree with Appellants that Figures 1 and 2 show that
each heat exchange module includes one spreader plate and that the heat
exchange modules are not physically joined together, since each heat
exchange module is separated by the stringer 24 as shown in Figures 3 and
4. The Examiner’s finding that the panels 20 are joined as called for in
claim 58, because they are thermally joined by the heat exchange modules,
is an unreasonably broad interpretation of the term “joined.” Appellants
disclose that the panels 302 are joined by lap joints 402 as illustrated in
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Figure 4 or any known method using a thermally conductive joining material
such as brazing, soldering, or adhesive bonding. Spec. 7, lines 1-14; figs. 3-
7.
The second interpretation of Fluegel provided by the Examiner is that
the face sheet includes panels 20 and 22, which are joined together. Ans. 8.
The Examiner contends that the argument as to whether the fuselage skin
(22) is part of the heat exchange module (10) is irrelevant to the Examiner's
interpretation of the face sheet as comprising a plurality of joined panels (20,
22). Ans. 9. The Examiner relies on col. 4, ll. 35-40 of Fluegel as teaching
that the fuselage skin panel (22) is attached to the spreader plate panel (20)
and serves as a heat sink for the heat exchanger system. Id.
Appellants argue that Fluegel discloses that element 22 is a fuselage
skin, and does not teach that fuselage skin 22 is part of its apparatus. App.
Br. 15. Appellants point to column 4, lines 35-40 of Fluegel as teaching that
the spreader plate 20 is “mounted against fuselage skin 22,” and argue one
of skill in the art at the time of the present invention would understand that
spreader plate 20 was not joined to fuselage skin but merely mounted such
that spreader plate 20 was against fuselage skin 22. Reply Br. 8. We agree
with Appellants that the fuselage skin is structurally not part of the heat
exchange module, and that the spreader plate and fuselage skin do not form
a face plate comprising “a plurality of joined panels.” We do not sustain the
rejection of independent claims 58 and 139 under 35 U.S.C. § 102(b).

Independent Claims 95 and 119
Independent claim 95 and 119 each contain the limitations of a face
sheet and cooling tube defining a bore “having a cross-sectional width-to-
height aspect ratio of about 3 to about 1.”
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The Examiner found that Fluegel discloses in Figure 3 that the “tube
(14) has a cross sectional width to height ratio of about 3 to about 1.” Ans.
10. Appellants argue that by directly scaling the dimensions of the tube for
Figure 3 of Fluegel, the tube 14 appears to have a width-to-height ratio of
about 2 to about 1, which is different from the claimed ratio of about 3 to
about 1. App. Br. 19. The Examiner explained that “the relative term ‘about
3’ or ‘about 1’ does not require the ratio has to be exactly 3 or exactly 1, the
term ‘about 3’ can be interpreted as a number that is close or approximately
to 3, which can be 2 or greater than 2.” Ans. 10. Appellants maintain that
“one of ordinary skill in the art at the time of the invention would have
understood that ‘about 3’ corresponds to a number that is separated from 3
by less, and possibly much less, than 33% of 3.” Rep. Br. 10.
The Examiner has not established by a preponderance of evidence that
Fluegel teaches that the tube has a “cross-sectional width-to-height ratio of
about 3 to about 1” in Figure 3 or in the written description. While the
drawings can be relied on for what they disclose, in this case the Examiner
has not presented specific findings as to how the cross-sectional ratio was
calculated or determined on the basis of the Fluegel disclosure, whether in
Figure 3 or elsewhere. We do not sustain the rejection of independent
claims 95 and 119 under 35 U.S.C. § 102(b).

Dependent Claims 59, 60, 62-70, 96-98, 100-108, and 120-128
Each of claims 59, 60, 62-70, 96-98, 100-108 and 120-128 depends
directly or indirectly from one of independent claims 58, 95, 119 and 139,
and the rejection of these claims relies upon the same erroneous findings of
fact with regard to Fluegel.
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We therefore do not sustain the rejection of claims 59, 60, 62-70, 96-
98, 100-108 and 120-128 under 35 U.S.C. § 102(b).

2. Rejection of Claims 58, 61, 62, 66-68, 70, 71, 75, 79-81 and 83
under 35 U.S.C. § 102(e) over Warburton
Claims 58, 61, 62, 66-68, 70, 71, 75, 79-81 and 83 stand rejected
under 35 U.S.C. § 102(e), as being anticipated by Warburton. Independent
claims 58 and 71 each require the limitation of a cooling tube attached to a
lower surface of the face sheet.
The Examiner found that Warburton discloses in Figures 1-7 and
column 3, lines 25-30 an apparatus comprising a cold plate (10) having a
face sheet (12, 90) including a carbon-carbon composite material and
comprising a plurality of joined panels; at least one cooling tube (26), which
is capable of transmitting a cooling fluid therethrough attached to a lower
surface of the face sheet; a structure member or framework comprising an
upper skin (92) attached to the face sheet (90) and a lower skin (102); and a
core (106) attached between the upper skin and the lower skin; and a
fastener (18). Ans. 4-5.
Appellants argue that Warburton specifically teaches that the fluid
containment device 16, in the form of cooling tubes 26, is not fastened to
either panel 12 or 14, but rather is merely sandwiched between the panels.
App. Br. 20. Appellants contend that the tube of Warburton is not
“physically attached or joined” to either of the panels. App. Br. 23. We
agree. The Examiner is correct that Appellants disclose that flow tubes 202
may be attached to the face sheet 204 by any known method using a
thermally conductive joining material, such as brazing, soldering or adhesive
bonding and dependent claims 59 and 73 recite these types of physical
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attachment. Ans. 11. However, the Examiner’s determination that claims
58 and 71 encompass a non-physical, non-permanent attachment such as a
mere association of parts disclosed in Warburton is inconsistent with an
ordinary, customary meaning of “attached” and with what persons of
ordinary skill in the art would understand from reading Appellants’
Specification. Ans. 11.1
We find Appellants’ argument to be more persuasive and agree that a
tube that is not fastened to, but “merely sandwiched” between two panels
that themselves are fastened together, is not “attached” to either panel.
Accordingly, we do not sustain the rejection of claims 58, 61, 62, 66-
68, 70, 71, 75, 79-81 and 83 under 35 U.S.C. § 102(e).

3. Rejections under 35 U.S.C. § 102(b) over Becker
Claims 129, 130, 135, 136 and 138 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Becker. Independent claim 129 contains
the limitations of a face sheet and “a fastener defining a threaded bore” and
the fastener extends through the face sheet in order to attach an article to the
face sheet.
The Examiner found that Figure 3 of Becker shows that the threaded
bore (thread hole) is part of the fastener which extends through the face
sheet and is capable of attaching an article to the face sheet. Ans. 12.
Appellants argue that Becker discloses the use of cap screws 31 to tighten
the cover members 28 downwardly upon the shoulders. App. Br. 25.
Appellants contend that although the "hole" through which cap screw 31 is

1 Although the Examiner mistakenly stated claims 59 and 73, we recognize
that claims 59 and 73 refer to joining of the panels and not to joining of the
flow tube to the face sheet as set forth in claims 64 and 77.
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received may be threaded, Becker fails to disclose a fastener defining a
threaded bore. Id. We agree. The Examiner’s finding that Becker discloses
a fastener 31 with external threads does not establish by a preponderance of
evidence that Becker discloses a fastener with a threaded bore as recited in
claim 129.
Appellants separately argued dependent claims 135 and 136 which
were rejected solely as anticipated by Becker. Appellants did not separately
argue the patentability of claims 130 and 138. Since all of these claims
depend from independent claim 129, the rejection of such dependent claims
relies upon the same erroneous findings of fact with regard to Becker.
We do not sustain the rejection of claims 129, 130, 135, 136 and 138
under 35 U.S.C. § 102(b).

4. Rejection of Claims 61, 71, 73-83 and 99 under 35 U.S.C.
§ 103(a) over Fluegel and Camarda
Claims 61, 71, 73-83 and 99 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Fluegel in view of Camarda. Independent claim
71 contains the limitations that the face sheet comprises a plurality of joined
panels and includes at least one of a carbon-carbon composite material and a
metal-encapsulated carbon material. Claim 61 depends from claim 58 and
includes essentially the same limitations. The Examiner relied on the
findings discussed supra with regard to the anticipation rejection concerning
the “plurality of joined panels.” In addition, the Examiner found that
Fluegel discloses that the panels 20 are made of a carbon composite
material, but is not “specific to carbon-carbon material.” Ans. 6. The
Examiner then found that Camarda discloses in Figures 2-4 a cooling panel
having a panel 1 “made of [a] carbon-carbon composite material for . . .
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integrity at high temperature.” Id. Based on these findings, the Examiner
reasoned that it would be obvious to use Camarda's teaching in Fluegel's
device “for a purpose of obtaining a lightweight panel that is capable of
maintaining its structural integrity at high temperature.” Id.
Appellants argue that Fluegel fails to disclose that the face sheet
comprises “‘a plurality of joined panels’” as required by independent claim
71 and by claim 61. App. Br. 29. For this reason, Appellants submit that
the combination of Fluegel and Camarda cannot render the invention of
claims 61 and 71 as obvious. Id.
We agree with Appellants that the teachings of Camarda do not cure
the deficiency of Fluegel with regard to the limitation of “‘a plurality of
joined panels’” as discussed supra. Accordingly, we do not sustain the
rejection of Claims 61 and 71, or that of claims 73-83 which depend from
claim 71.
Claim 99 depends from claim 95 and includes the limitation of at least
one cooling tube defining a bore therethrough, the bore "having a cross-
sectional width-to height ratio of about 3 to about 1." Appellants argue that
Fluegel fails to disclose that the bore has a cross-sectional width to height
ratio of “about 3 to 1” as required by independent claim 95. App. Br. 29.
For this reason, Appellants submit that the combination of Fluegel and
Camarda cannot render the invention of claim 99 as obvious. Id.
We agree with Appellants that the teachings of Camarda do not cure
the deficiency of Fluegel with regard to the dimensional limitation for the
cooling tube bore of “‘about 3 to about 1’” as discussed supra.
Accordingly, we do not sustain the rejection of Claim 99.

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5. Rejection of Claims 84, 86-94, 109, 111-118 and 140-142 under
35 U.S.C. § 103(a) over Fluegel and Rass
Claims 84, 86-94, 109, 111-118 and 140-142 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Fluegel in view of Rass.

Claims 84 and 109
Independent claims 84 and 109 each contain the limitations that the
face sheet includes a plurality of joined panels and the soldering material
used to solder the cooling tube to the face sheet has a composition not
exceeding about 93 percent tin by weight, about 6 percent silver by weight
and about 4.5 percent titanium by weight. Claim 140 depends from claim
139 and includes essentially the same limitations. The Examiner found that
Fluegel “substantially discloses all of applicant's claimed invention as
discussed above except for the limitation that the tube joined to the panel by
a composition of a material at a range of temperature.” Ans. 6. The
Examiner further found that Rass “discloses (column 5, line 65- column 6,
line 67) a solder brazing material comprises of a composition not exceeding
93 percent tin by weight (0-50%), 0-10% of silver, 1-10% titanium and
forming a joint at a temperature of between 120 to 550C.” Ans. 6-7. Based
on these findings, the Examiner reasoned that it would have been obvious to
use Rass's teaching in Fluegel's device “for a purpose of providing good
wetting even on inherently poor wettable surfaces at a relatively low process
temperature.” Ans. 7. Appellants assert that Fluegel fails to disclose a face
sheet comprising a plurality of joined panels, “irrespective of the particular
method of joining, as discussed supra concerning the 102 rejection over
Fluegel.” App. Br. 30; Rep. Br. 12-13.
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We agree with Appellants that the teachings of Rass do not cure the
deficiency of Fluegel with regard to the limitation of “a plurality of joined
panels” as discussed supra. Accordingly, we do not sustain the rejection of
claims 84, 109 and 140, or that of claims 86-94, 111-118 depending from
either claim 84 or 109.

Claims 141-142
Appellants do not provide arguments contesting the Examiner’s
rejection of claims 141 and 142. Accordingly, we summarily affirm the
rejection of claim 141 and claim 142.

6. Rejection of Claims 133, 134 and 137 under 35 U.S.C. § 103(a)
over Becker and Fluegel
Claims 133, 134 and 137 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Becker in view of Fluegel.
The Examiner adopted the findings of Becker set forth in the earlier
rejection of independent claim 129 from which claims 133, 134 and 137
depend. Ans. 14. Appellants argue that claims 133, 134 and 137 require “a
fastener defining a threaded bore, [and] the fastener [extends] through the
face sheet [to attach] an article to the face sheet.” App. Br. 32. Appellants
argue that Becker fails to teach "a fastener defining a threaded bore, the
fastener extending through the face sheet for attaching an article to the face
sheet[, therefore] the rejection is prima facie deficient.” Id.
We agree with Appellants that the teachings of Becker fail to disclose
the limitation of “a fastener defining a threaded bore” as discussed supra
with regard to the rejection of claim 129 under § 102(b) by Becker.
Accordingly, we do not sustain the rejection of Claims 133, 134 and 137.
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7. Rejection of Claims 131, 132 and 139 under 35 U.S.C. § 103(a)
over Becker and Kloote
Claims 131, 132 and 139 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Becker in view of Kloote. Claim 139 is
independent, while claims 131 and 132 depend from independent claim 129.
The claims include the limitation of a plurality of panels joined by soldering,
brazing or adhesively bonding. The Examiner found Becker substantially
discloses all of Appellants' claimed invention as discussed supra “except for
the limitation that the panels are joined together at their edges by a lap joint
filled with adhesive.” Ans. 14. The Examiner also found that Kloote
“teaches (column 4, lines 37-73) that a plurality of panels are locked
together by an adhesive applying at their lap joint for a purpose of assuring a
tight moisture seal and providing a smooth continuous surface of the floor.”
Ans. 14-15.
Appellants argue that Kloote relates to enclosures for refrigerated
areas, and desires to inhibit the transfer of heat via the lap joints by joining
the lap joints using an epoxy resin. App. Br. 33-34. Appellants further
argue that Becker relates to a unit for heating a floor and in order to transfer
heat through its apparatus. Id. According to Appellants, “one of ordinary
skill in the art at the time of the invention would not have combined Becker
and Kloote, because Kloote's adhesive would have inhibited thermal transfer
through Becker's apparatus.” App. Br. 34. Appellants further argue that
“applying Kloote's adhesive to Becker's apparatus would likely have
rendered Becker's apparatus inoperable for its intended purpose.” Id.
Appellants contend that the Examiner has not provided a rationale, based on
the teachings of the cited references, for combining Becker and Kloote.
App. Br. 34; Rep. Br. 14.
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The Examiner countered that Becker and Kloote are in the same field
of endeavor, which is to build a floor of joined panels. Ans. 14. Further, the
Examiner noted that:
“[i]t is not believed that employing the lap joint as taught by
Kloote in place of a groove and tongue joint of Becker, would
destroy the invention of Becker or hinder the heat transfer of
the panels since most of the heat transfer performance will take
place through the surface of the panels not at their edges.”
Ans. 15.
The attorney arguments of Appellants regarding the combination of
Becker and Kloote do not apprise or persuade us of error in the Examiner’s
findings and conclusion of obviousness, which are supported by a
preponderance of evidence and a rational underpinning.
Accordingly, we sustain the rejection of claims 131, 132 and 139.

DECISION
The decision of the Examiner to reject claims 58-60, 62-70, 95-98,
100-108, 119-128 and 139 under 35 U.S.C. § 102(b) as anticipated by
Fluegel is reversed.
The decision of the Examiner to reject claims 58, 61, 62, 66-68, 70,
71, 75, 79-81 and 83 under 35 U.S.C. § 102(e) as anticipated by Warburton
is reversed.
The decision of the Examiner to reject claims 129, 130, 135, 136 and
138 under 35 U.S.C. § 102(b) as anticipated by Becker is reversed.
The decision of the Examiner to reject claims 61, 71, 73-83 and 99
under 35 U.S.C. § 103(a) over Fluegel and Camarda is reversed.
The decision of the Examiner to reject claims 84, 86-94, 109, 111-118
and 140 under 35 U.S.C. § 103(a) over Fluegel and Rass is reversed.
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The decision of the Examiner to reject claims 141-142 under 35
U.S.C. § 103(a) over Fluegel and Rass is affirmed.
The decision of the Examiner to reject claims 133, 134 and 137 under
35 U.S.C. § 103(a) over Becker and Fluegel is reversed.
The decision of the Examiner to reject claims 131-132 and 139 under
35 U.S.C. § 103(a) over Becker and Kloote 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)(1)(iv) (2011).

AFFIRMED-IN-PART

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