Ex Parte Kerler et alDownload PDFPatent Trial and Appeal BoardMar 16, 201612619566 (P.T.A.B. Mar. 16, 2016) Copy Citation 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. 12/619,566 11/16/2009 Boris KERLER 1006/0134PUS1 8854 60601 7590 03/17/2016 Muncy, Geissler, Olds & Lowe, P.C. 4000 Legato Road Suite 310 FAIRFAX, VA 22033 EXAMINER RUSSELL, DEVON L ART UNIT PAPER NUMBER 3744 MAIL DATE DELIVERY MODE 03/17/2016 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 BORIS KERLER, WOLFGANG SEEWALD, MARKUS RUEHL, CHRISTOPH WALTER, KARL-HEINZ STAFFA, MICHAEL GEIGER, MICHAEL KRANICH, INGO GEIGER, WOLFGANG GEIGER, and ALEXANDER SATRAPA ____________ Appeal 2014-002496 Application 12/619,566 Technology Center 3700 ____________ Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Boris Kerler et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1–9, 15–17, 19–21, and 26– 34. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2014-002496 Application 12/619,566 2 THE INVENTION Appellants’ invention relates to a heat exchanger. Claim 1, the sole independent claim is representative and is reproduced below: 1. A heat exchanger for a heating or air conditioning system for motor vehicles, the heat exchanger comprising: at least one inlet channel; at least one outlet channel; at least one collector that has at least two adjacent metal sheets or plates; and a flow device between the at least one inlet channel and the at least one outlet channel and comprising a first number of tubes through which a first medium is flowable and around which a second medium is flowable, wherein the first medium is distributed from the at least one inlet channel to the at least one collector and to the flow device and is conducted to the at least one outlet channel, and wherein at least one additional channel is provided for the distribution of a refrigerant, the at least one additional channel being connectable to the at least one inlet channel in a communicating manner via a second number of openings, wherein the second number of openings is at least one and is less than the first number of tubes. THE REJECTIONS The Examiner has rejected: (i) claims 1, 3–9, 15, 19, 20, and 26–34 under 35 U.S.C. 103(a) as being unpatentable over Demuth (US 2005/0039901 A1, published Feb. 24, 2005) and Reinke (US 5,910,167, issued June 8, 1999); and Appeal 2014-002496 Application 12/619,566 3 (ii) claims 16, 17, and 21 under 35 U.S.C. 103(a) as being unpatentable over Demuth, Reinke, and Rios (WO 2006/083426 A1, published Aug. 10, 2006). In the Final Rejection (mailed January 7, 2013), the Examiner also rejected claims 1, 3–9, 15–17, 19–21, and 26–34 under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention; and rejected claim 2 under 35 U.S.C. 103(a) as being unpatentable over Demuth and Rios. In an amendment after Final Rejection (submitted April 8, 2013), Appellants amended claim 1 and several dependent claims, and cancelled claim 2. In an Advisory Action (mailed April 16, 2013) the Examiner indicated that the April 8, 2013 amendment would overcome the 35 U.S.C. § 112, second paragraph, rejection and would be entered for purposes of appeal. Accordingly, we regard the amended claims as overcoming the rejection of claims 1, 3–9, 15–17, 19–21, and 26–34 under 35 U.S.C. § 112, second paragraph. We also regard claim 2 as having been cancelled. Thus, the rejection of claims 1, 3–9, 15–17, 19–21, and 26–34 under 35 U.S.C. § 112, second paragraph, and the rejection of claim 2 under 35 U.S.C. § 103(a), are not before us. ANALYSIS Claims 1, 3–9, 15, 19, 20, and 26–34--Obviousness--Demuth/Reinke Appellants argue claims 1, 3–9, 15, 19, 20, and 26–34 as a group. Appeal Br. 5–9. We take claim 1 as representative of the group, and claims 3–9, 15, 19, 20, and 26–34 stand or fall with claim 1. Appeal 2014-002496 Application 12/619,566 4 The Examiner finds that Demuth discloses most of the limitations of claim 1 including “an inlet chamber (20), and outlet chamber (21), a collector that has at least two adjacent metal plates (8, 12, and 16), a flow through device (i.e. tubes) (2 and 3), between the inlet and outlet channel,” and that “a first medium passes (through the flow device) and around which a second medium flows and a first number of openings.” Final Act. 5, citing Demuth, ¶¶ 69–73. The Examiner relies on Reinke as teaching an “inlet which has an additional channel (34) provided with openings (50 and 54).” Id., citing Reinke, col. 4, ll. 37–44. The Examiner concludes that it would have been obvious, to one having ordinary skill in the art, at the time the invention was made, to modify Demuth to include the additional channel of Reinke to “help improve the efficiency of the device.” Id., citing Reinke, col. 4, ll. 45–52. In the Answer, the Examiner states that “Reinke et al. teach that . . . adding the ‘at least one additional channel’ (i.e. injector) (34) would help to ‘achieve a more uniform distribution of refrigerant within the evaporator’ (i.e. heat exchanger).” Ans. 10, citing Reinke, col. 2, ll. 9–15 and col. 4, ll. 45–52. Appellants argue that “there is no apparent way to ‘modify’ Demuth with Reinke.” Appeal Br. 7; see also Reply Br. 3. Appellants assert that “[t]he only modification to Demuth that Reinke might suggest would be to insert a tube perpendicularly through Demuth’s collection chamber 20,” but that the Examiner fails to identify “a benefit that this modification is believed to provide in Demuth’s heat exchanger.” Id. Appellants thus argue that because “[t]he modification to Demuth that is being proposed has not been identified, and the only modification to Demuth that Reinke might Appeal 2014-002496 Application 12/619,566 5 suggest appears to serve no purpose,” therefore, “a prima facie case of obviousness has not been provided.” Id. Appellants also argue that the reason provided for modifying Demuth, as well as the passage in Reinke relied upon by the Examiner,1 have nothing to do with any modification being proposed. Appeal Br. 7, 8. Appellants assert that “Reinke discloses an evaporator that is allegedly an improvement over prior art evaporators,” but does not “suggest[] that a structure that improves evaporators, in which a change in state of a refrigerant must be controlled, would provide any benefit in a heat exchanger like the one disclosed in Demuth.” Id. at 7–8. Appellants’ thus argue that “Reinke suggests no change to Demuth that would ‘improve the efficiency’ of Demuth’s device in any manner.” Id. at 8. Appellants further assert that the passage in Reinke relied on by the Examiner, “is not tied to the feature that the Examiner is attempting to incorporate into Demuth (i.e., an additional channel communicating with a second number openings,)” and as such, “the Examiner’s rationale for supporting the proposed modification is not sufficiently related to the proposed modification.” Id.; see also Reply Br. 4. Appellants’ arguments are not persuasive because the Examiner’s proposed modification to Demuth, namely, including an additional channel at the inlet, benefits Demuth, just as it does Reinke, by providing a more uniform distribution of refrigerant, which improves efficiency. Specifically, Reinke teaches an evaporator that “includes an inlet header 20 in the form of an elongated tube, and that “inlet header 20, at equally spaced locations along its length, in a preferred embodiment, receives four refrigerant 1 Reinke, col. 2, ll. 9–14. Appeal 2014-002496 Application 12/619,566 6 injectors (additional channels) 30, 32, 34 and 36.” Reinke, col. 3, ll. 31–40. According to Reinke, this “new and improved inlet structure for an evaporator for a refrigerant . . . achieve[s] more uniform distribution of refrigerant within the evaporator” (id. at col. 2, ll. 12–15) and thus, “the invention achieves excellent distribution of incoming liquid refrigerant to improve the efficiency of operation” (id. at col. 4, ll. 46–48). In view of this, the Examiner has a sound basis for modifying Demuth’s supply (inlet) chamber 20 to include an additional channel, as taught by Reinke, and Appellants have not persuasively explained why Demuth could not be modified as the Examiner proposes nor why such modification, which improves efficiency, would not benefit Demuth. Moreover, Demuth teaches that “a uniform distribution between a plurality of flow paths is desirable.” Demuth, ¶ 20. Because Reinke teaches that an additional channel at the inlet achieves excellent distribution of incoming liquid refrigerant to improve the efficiency of operation, we are not persuaded by Appellants’ argument that Reinke suggests no change to Demuth that would improve the efficiency of Demuth’s device. See Appeal Br. 8. Appellants further argue that “the Examiner dismisses several features of the claimed invention as being recitations of ‘intended use,’” and that “the functional language recited in the claims should not be dismissed and should be provided patentable weight.” Appeal Br. 8–9; see also Reply Br. 4. Notwithstanding that Appellants do not point to any particular feature that distinguishes over the combined teachings of the references, the Examiner maintains that the Demuth device, as modified by Reinke is capable of performing any and all functions recited in claim 1. See Final Appeal 2014-002496 Application 12/619,566 7 Act. 5–6; Ans. 11. Appellants do not explain why the modified Demuth device would not meet the recited features, or would not be capable of performing any recited functions. Reply Br. 4. As such, we are not apprised of Examiner error on this point. In view of the foregoing, the rejection of independent claim 1 as being unpatentable over Demuth and Reinke is sustained. Claims 3–9, 15, 19, 20, and 26–34 fall with claim 1. Claims 16, 17, and 21--Obviousness--Demuth/Reinke/Rios Appellants rely solely on the reasons advanced for the patentability of claim 1 in asserting that claims 6, 17, and 21 are patentable. Appeal Br. 9. The rejection of claims 6, 17, and 21 is sustained for the same reasons set forth above with respect to claim 1. DECISION The decision of the Examiner to reject claims 1, 3–9, 15, 19, 20, and 26–34 under 35 U.S.C. § 103(a) as being unpatentable over Demuth and Reinke is affirmed. The decision of the Examiner to reject claims 16, 17, and 21 under 35 U.S.C. § 103(a) as being unpatentable over Demuth, Reinke, and Rios 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)(l)(iv). AFFIRMED Copy with citationCopy as parenthetical citation