Ex Parte Ouradnik et alDownload PDFPatent Trials and Appeals BoardMay 17, 201814226214 - (D) (P.T.A.B. May. 17, 2018) Copy Citation 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 2 Appeal2017-008797 Application 14/226,214 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. 3 Appeal2017-008797 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. 4 Appeal2017-008797 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). 5 Appeal2017-008797 Application 14/226,214 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 6 Appeal2017-008797 Application 14/226,214 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. 7 Appeal2017-008797 Application 14/226,214 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. 8 Appeal2017-008797 Application 14/226,214 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 9 Copy with citationCopy as parenthetical citation