Ex Parte Ouradnik et al

Patent Trials and Appeals Board

May 17, 2018

14226214 - (D) (P.T.A.B. May. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/226,214 03/26/2014
23409 7590 05/21/2018
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN A VENUE
Suite 3300
MILWAUKEE, WI 53202
FIRST NAMED INVENTOR
Zachary Ouradnik
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.
022233-2327-01 8227
EXAMINER
ARANT, HARRY E
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
05/21/2018 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZACHARY OURADNIK, KEITH DA VIS,
ISSAC DANDAN, KENNETH CORNELL,
BENJAMIN RANTA, and DANIEL RICHARDS
Appeal2017-008797
Application 14/226,214
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
LYNNE H. BROWNE, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Zachary Ouradnik et al. (Appellants) 1 appeal under 35 U.S.C. § 134
from the rejection of claims 1-3 and 5-20 under 35 U.S.C. § 103(a) over
Steeb (US 4,434,845, issued Mar. 6, 1984) and Emmerich (US 4,907,648,
issued Mar. 13, 1990). 2 We have jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify Modine Manufacturing Company as the real party in
interest. Br. 2.
2 Claim 4 has been cancelled.
Appeal2017-008797
Application 14/226,214
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Claims 1 and 16 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An air to air heat exchanger comprising:
first and second parallel arranged, spaced apart cooling air
flow passages extending from a cooling air inlet face to a cooling
air outlet face, the distance between the cooling air inlet face and
the cooling air outlet face defining a heat exchanger core depth;
a heated air flow passage arranged between the first and
second cooling air flow passages and extending over a first
percentage of the core depth, the heated air flow passage
extending from a heated air inlet face to a heated air outlet face
in a direction perpendicular to the core depth, the distance
between the heated air inlet face and the heated air outlet face
defining a heat exchanger core width;
a first thermally conductive separator between the first
cooling air flow passage and the heated air flow passage;
a second thermally conductive separator between the
second cooling air flow passage and the heated air flow passage;
a first structurally reinforced section arranged between the
first and second separators, extending from the heated air inlet
face to the heated air outlet face in the core width direction, and
extending from the cooling air inlet face in the core depth
direction over a second percentage of the core depth;
a second structurally reinforced section arranged between
the first and second separators, extending from the heated air
inlet face to the heated air outlet face in the core width direction,
and extending from the cooling air outlet face over a third
percentage of the core depth, wherein the sum of the first, second,
and third percentages of the core depth is greater than 100
percent; and
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a corrugated fin structure arranged between the first and
second thermally conductive separators in at least a portion of
the heated air flow passage.
DISCUSSION
Claims 1-3 and 5
In regard to claim 1, the Examiner finds that Steeb discloses an air to
air heat exchanger comprising a corrugated fin structure (ridges 11 and ribs
14) arranged between first and second thermally conductive separators
(sheet-metal plates 5) in at least a portion of a heated air flow passage (fluid
passages 3). Final Act. 2--4 (citing Steeb, Fig. 1 ). More particularly, the
Examiner finds that Steeb discloses a heat exchanger having all of the
limitations of claim 1 except for "the sum of the first, second, and third
percentages of the core depth is greater than 100 percent" in relation to the
dimensions of a heated air flow passage, a first structurally reinforced
section, and a second structurally reinforced section of the heat exchanger.
See id. The Examiner finds that Emmerich discloses a heat exchanger
comprising structurally reinforced sections (spacers 6) encompassing heated
air flow passages (hollow chambers 5, 7) to carry air flow. Id. at 4 (citing
Emmerich, Fig. 1; col. 3, 11. 35-37). The Examiner concludes that it would
have been obvious to modify the heat exchanger of Steeb to have the
structurally reinforced sections of Emmerich to allow air flow within a
structurally reinforced section and to improve efficiency in the system. Id.
at 4--5. The Examiner determines that the modified heat exchanger of Steeb
would result in "the sum of the first, second, and third percentages of the
core depth is greater than 100 percent," as claimed. Id. at 5.
Appellants contend that the extruded sections 8 of Steeb, which
comprise ridges 11 and ribs 14, are not corrugated fin structures. Br. 8.
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Application 14/226,214
Appellants argue that although Steeb refers to its extruded sections 8 as a
"corrugated structure," Steeb distinguishes it from prior corrugated
structures. Id. at 9 (citing Steeb, col. 1, 1. 68---col. 2, 1. 2). Appellants further
argue that an ordinary artisan would not consider the extruded section 8 of
Steeb as a corrugated structure because: 1) Merriam-Webster's Dictionary
defines "corrugated" as "having a wavy surface - used to describe thin
sheets of material (such as metal or cardboard) that have a surface in which
there are many folds that look like a series of waves," whereas Steeb's
extruded section 8 does not have a wavy surface and does not have a surface
in which there are many folds that look like a series of waves; and 2) an
ordinary artisan would understand that corrugated metal is made by shaping
sheet metal into a wave-like pattern and Steeb's extrusion section 8 is not
and cannot be manufactured by shaping sheet metal. Id. at 9--10.
Appellants' Specification does not define the term "corrugated," let
alone define it in a manner that precludes Steeb' s corrugations. 3 See
generally Spec. Nor do Appellants identify where the Specification's use of
this terminology is more consistent with their proffered narrow definition of
"corrugated" than to the broader definition of this term cited by the
Examiner. Ans. 22 ("Oxforddictionaries.com defines corrugated as 'shaped
into alternate ridges and grooves 11 '. "). In construing claim terms, we apply
"the broadest reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art, taking into
account whatever enlightenment by way of definitions or otherwise that may
3 As discussed supra Appellants acknowledge that Steeb discloses that the
extruded sections 8 of its heat exchanger are corrugated structures. Br. 8;
see also Steeb, col. 3, 11. 10-12, 37--41.
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Application 14/226,214
be afforded by the written description contained in [Appellant's]
specification." In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). In this
case, both of the proffered definitions are consistent with the Specification,
and thus both are reasonable interpretations in view thereof. The definition
proffered by the Examiner is broader than that presented by Appellants, and
therefore the broadest reasonable interpretation encompasses structures
meeting the Examiner's definition." Accordingly, it is the definition we
adopt. This definition does not preclude Steeb' s corrugations. Thus,
Appellants do not apprise us of error.
Appellants contend that Steeb does not disclose a fin because an
ordinary artisan would understand this term to mean "an extended surface
[that] is used specifically to enhance the heat transfer rate between a solid
and an adjourning fluid," whereas, according to Appellants, Steeb's ridges
and webs would negatively affect heat transfer. Br. 10-11.
The Examiner points out that Dictionary.com defines "fin" as "any
number of standing ridges on an ordinary hot object," and Steeb's element
11 meets this definition. Ans. 24. Further, Appellants do not provide any
persuasive argument or evidence to show that Steeb' s extruded section 8
would negatively affect heat transfer, especially to the point that the
extruded section could not function to transfer heat. Thus, Appellants'
argument does not apprise us of error.
Appellants also argue that Steeb teaches away from using a corrugated
fin structure. Br. 11. In support of this contention, Appellants argue that
Steeb discloses that its structure is more desirable than conventional
corrugated sheet metal designs. Id. at 12 (citing Steeb, col. 1, 1. 67---col. 2, 1.
14).
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This argument is unconvincing because, as discussed above, Steeb
discloses that its extruded section 8 is a corrugated fin structure. At best,
Steeb merely identifies disadvantages with conventional corrugated sheet
metal designs, and does not address other forms of corrugated fin structures.
Appellants contend that the Examiner's proposed modification of
Steeb' s heat exchanger would destroy its intended purpose. Br. 13. In
support of this contention, Appellants argue that using Emmerich's spacers,
which have openings and are made of plastic, would weaken Steeb' s
extruded sections 8 which are made of aluminum or a light alloy. Id.
Appellants' contention, however, does not address the rejection as
articulated by the Examiner because the rejection does not propose replacing
Steeb's aluminum or light alloy material with Emmerich's plastic material.
See Final Act. 4--5. Thus, Appellants do not apprise us of error.
For claims 2 and 3, Appellants' arguments are similar to those
addressed supra regarding claim 1. See Br. 14--15. For claim 5, Appellants
rely on arguments made with respect to claim 1. See Br. 13. Accordingly,
for the reasons discussed above, we sustain the Examiner's decision
rejecting claims 1-3 and 5.
Claims 6-7
Claim 6 recites "the sum of the first, second, and third percentages of
the core depth is at least 115%," and claim 7 recites "at least one of the
second and the third percentages of the core depth is at least 12%." Br. 30
(Claims App.). The Examiner acknowledges that Emmerich is silent as to
the length of its structurally reinforced sections (spacer 6). Final Act. 6.
The Examiner takes the position that the length of the structurally reinforced
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section affects the strength and rigidity of the heat exchanger, and therefore,
is a result effective variable. Id. (citing Emmerich, col. 3, 11. 31-33); see
also Ans. 26-27. As such, the Examiner determines that it would have been
obvious to modify the heat exchanger of Steeb to have the percentages of
core depth as claimed, to provide adequate strength and rigidity. Id.
Appellants contend that the rejection of claims 6 and 7 is in error
because the Examiner's proposed modification requires undue
experimentation because arriving at the claimed values would involve
stringent testing. Br. 15-1 7.
This argument is unavailing. Appellants do not further explain why
the modification requires undue experimentation and stringent testing.
Moreover, even if some experimentation and testing to arrive at the claimed
values would be needed, that does not negate the Examiner's determination
that the length of the structurally reinforced section is a result effective
variable. See In re Boesch, 617 F.2d 272, 276 (CCPA 1980) ("discovery of
an optimum value of a result effective variable in a known process is
ordinarily within the skill of the art").
For these reasons, the rejection of claims 6 and 7 is sustained.
Claims 8-20
Each of claims 8, 12, and 16 recites "a first wall extending from the
heated air inlet face to the heated air outlet face and extending from the first
separator to the second separator, a face of the first wall being aligned with
the cooling air inlet face." Br. 31-33 (Claims App.). Claims 9-11 depend
from claim 8, claims 13-15 depend from claim 12, and claims 17-20 depend
from claim 16. Id.
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The Examiner finds that Emmerich discloses the claimed first wall,
pointing to the area where welded seam 9 is shown in Emmerich's Figure 1,
annotated by the Examiner. Final Act. 7-8; see also id. at 10, 12, 14--15,
17-18.
Appellants contend that the Examiner incorrectly equates the welded
seam 9 of Emmerich to the claimed first wall because this particular
structure is a joint between a third wall and a fourth wall, and does not form
a wall. Br. 17-18; see also id. at 20, 25.
The Examiner responds that Dictionary.com defines "wall" as "the
outermost film or layer of structural material protecting, surrounding and
defining the physical limits of an object," which is met by the region in
Emmerich's Figure 1, as annotated by the Examiner. Ans. 27-28.
Appellants have the better position. The Examiner identifies the flat
linear surfaces in Emmerich's Figure 1 as corresponding to the claimed
second wall, third wall, and fourth wall, but identifies the vertical surface
where the area of the seam 9 is located as the claimed first wall. See Ans.
28. We agree with Appellants that the Examiner's determination that the
seam area equates to a wall is unreasonable. A person of ordinary skill in
the art would not view this area, which comprises four edges, each from a
layer that is joined to another, as constituting a wall.
For these reasons, the rejection of claims 8-20 is not sustained.
DECISION
The Examiner's rejection of claims 1-3 and 5-7 is AFFIRMED.
The Examiner's rejection of claims 8-20 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).
AFFIRMED-IN-PART
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