14852279 - (D) (P.T.A.B. Feb. 27, 2020)

DeepWater Desal LLC

Patent Trials and Appeals BoardFeb 27, 2020

14852279 - (D) (P.T.A.B. Feb. 27, 2020)

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. 14/852,279 09/11/2015 Brent R. Constantz DWTR-005 1010 93726 7590 02/27/2020 EPA - BOZICEVIC FIELD & FRANCIS LLP BOZICEVIC, FIELD & FRANCIS 201 REDWOOD SHORES PARKWAY SUITE 200 REDWOOD CITY, CA 94065 EXAMINER MENON, KRISHNAN S ART UNIT PAPER NUMBER 1777 NOTIFICATION DATE DELIVERY MODE 02/27/2020 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): docket@bozpat.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRENT R. CONSTANTZ Appeal 2019-003087 Application 14/852,279 Technology Center 1700 ____________ Before JEFFREY T. SMITH, JEFFREY B. ROBERTSON, and MICHAEL G. McMANUS, Administrative Patent Judges. McMANUS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the Examiner’s decision to reject claims 1, 6, 9–11, 13, 15–22, and 43–47. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Deepwater Desal LLC. Appeal Br. 3. Appeal 2019-003087 Application 14/852,279 2 CLAIMED SUBJECT MATTER The present application generally relates to water cooling systems. Specification filed Sept. 11, 2015 (“Spec.”) 2. The Specification teaches that it “provides facilities having water cooling subsystems and multi-lumen conduits coupled thereto.” Id. The Specification further teaches that “[a]lso provided are methods of cooling facilities by, for example, receiving cool water into a water cooling subsystem of a facility and outputting warm water from the water cooling subsystem.” Id. The Specification additionally teaches that, “multi-lumen conduits include a conduit, e.g., a tube and/or a pipe, which includes a plurality, e.g., two or more, three or more, five or more, or ten or more, lumens therein through which one or more substances, e.g., water, may pass.” Id. at 19. A multi-lumen conduit is shown in Figure 3 of the application, reproduced below. Appeal 2019-003087 Application 14/852,279 3 Figure 3 “depicts a schematic diagram of a first facility 301 including a water cooling subsystem 310 and a multi-lumen conduit 302.” Id. at 9. The multi-lumen conduit 302 is taught to include an intake lumen 304 and a discharge lumen 305. Id. Claim 1 is illustrative of the subject matter on appeal and is reproduced below with certain limitations bolded for emphasis: 1. A facility comprising: a water cooling subsystem; a water desalination plant operably coupled to and configured to receive and desalinate output warm water from the water cooling system; and a multi-lumen conduit comprising a fluid conveying structure comprising: an intake lumen comprising an intake opening positioned in an ocean or sea and configured to receive cool water from the ocean or sea and convey the received cool water to the water cooling subsystem; and a discharge lumen operably coupled to the water desalination plant and comprising a discharge outlet configured to discharge a produced warm fluid from the water desalination plant into the ocean or sea, wherein the facility is a power plant or a data center comprising a server farm. Appeal Br. 38 (Claims App.) (emphasis added) (reformatted for clarity). Appeal 2019-003087 Application 14/852,279 4 REFERENCES The Examiner relies upon the following prior art: Name Reference Date Gordon US 2004/0206681 Al Oct. 21, 2004 Kidwell et al. (“Kidwell”) US 2007/0023163 Al Feb. 1, 2007 Clidaras et al. (“Clidaras”) US 2009/0295167 Al Dec. 3, 2009 Voutchkov US 2010/0237015 Al Sept. 23, 2010 Shimizu et al. (“Shimizu”)2 JP 01219360 A Sept. 1, 1989 REJECTIONS The Examiner maintains the following rejections: 1. Claims 1, 6, 9–11, 13, 15–22 and 43–47 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of copending Application Nos. 14/852,280; 14/773,293; 14/852,271; and 14/405,129 in view of Voutchkov or Kidwell. Final Action dated July 16, 2018 (“Final Act.”) 2–4. 2. Claims 1, 6, 9–11, 13, 15–22 and 43–47 are rejected under 35 U.S.C. § 103 as being unpatentable over Voutchkov in view of Kidwell or Shimizu and with further evidence from Clidaras or Gordon. Id. at 4–6. 2 The Examiner refers to Shimizu as “JP 01219360” or simply “JP.” Appeal 2019-003087 Application 14/852,279 5 DISCUSSION Rejection 1. We exercise our discretion not to address the Examiner’s provisional rejection of claims 1, 6, 9–11, 13, 15–22 and 43–47 on the ground of nonstatutory double patenting. See Ex parte Moncla, Appeal No. 2009-006448 (PTAB June 22, 2010) (holding that it is premature to address a provisional rejection) (designated precedential). Rejection 2. The Examiner rejects claims 1, 6, 9–11, 13, 15–22 and 43–47 as obvious over Voutchkov in view of Kidwell or Shimizu and with further evidence from Clidaras or Gordon. See Final Act. 4–6. In support of the rejection, the Examiner finds that Voutchkov teaches a co-located power plant and desalination plant where seawater is used as a coolant and then desalinated. Id. at 4. The Examiner finds, however, that Voutchkov does not teach a multi-lumen conduit having an intake lumen and a discharge lumen. Id. at 5. The Examiner relies on Kidwell or Shimizu as teaching the claimed multi-lumen structure. Id. at 5–6. The Examiner finds that Kidwell teaches a “double-pipe heat exchanger” which satisfies the “multi-lumen conduit” limitation. Id. at 5. The Examiner additionally finds that Shimizu “teaches double-pipe water intake/discharge system from the sea so that the discharged warm water does not raise the water temperature at depth.” Id. at 6. Figures 1 and 2 of Shimizu are reproduced below. Appeal 2019-003087 Application 14/852,279 6 Figure 1 (left) depicts offshore platform 1 where “drain pipe 8 [is] made larger in diameter than the intake pipe 6 [and] is concentrically arranged at the outside of an upper part of this intake pipe 6.” Shimizu, Abstract. Figure 2 (right) is understood to represent a cross-section of drain pipe 8 and intake pipe 6 across line II-II. The Examiner determines that it “would have been obvious to one of ordinary skill to use the teaching of [Shimizu] in the teaching of Voutchkov to mitigate any environmental issues” arising from discharge of warm water at depth. Final Act. 6. The Examiner finds that Clidaras describes the use of seawater to cool data centers and that the cooling water must be drawn from a sufficient depth to obtain constant water temperature throughout the year. Id. The Examiner finds that Gordon discloses desalination plants that intake seawater from a depth in or beneath the thermocline. Id. Appeal 2019-003087 Application 14/852,279 7 Appellant argues that the rejection is in error on several bases. Appeal Br. 7–36. Appellant separates the claims at issue into nine groups which are argued separately. We initially consider Appellant’s arguments regarding Group I (claims 1, 6, 9, 20, 22, 43–45, and 47). Id. at 7–17. Group I First, Appellant argues that Voutchkov fails to teach or suggest a multi-lumen conduit having “an intake lumen with an opening positioned in an ocean or sea for receiving cool water from an ocean or sea and conveying the cool water into the water cooling subsystem” as well as “a discharge lumen operably coupled to a water desalination plant to discharge produced warm fluid from the desalination plant into the ocean or sea” as required by claim 1. Id. at 8–12. This is not persuasive of error. The Examiner does not rely on Voutchkov as teaching all of the claim elements identified by Appellant. Answer 8 (“Voutchkov does not teach a multi-lumen conduit for the seawater intake and brine discharge as claimed.”). Rather, the Examiner relies upon several alternative secondary references, including Shimizu, as teaching a multi-lumen conduit including an intake and output both positioned in the sea. See Final Act. 6 (regarding Shimizu). Accordingly, Appellant’s argument is directed at a single reference rather than the combination posited by the Examiner. Patentability, however, cannot be established “by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Appeal 2019-003087 Application 14/852,279 8 Appellant additionally argues as follows regarding Shimizu: [Shimizu] also fails to disclose this element, where the same multi-lumen conduit has an intake lumen with an opening positioned in an ocean or sea, and configured to convey cool water to a data center or power plant and a discharge lumen with an outlet configured to discharge a warm fluid produced from a desalination plant distinct from the power plant or data center. Appeal Br. 17; see also Reply Br. 10. This is not persuasive of error. The Examiner finds that Voutchkov teaches the claim elements relating to the data center or power plant as well as the desalination plant while Shimizu (JP 01219360) teaches the multi-lumen conduit positioned in the sea. Thus, as above, Appellant argues against the reference individually rather than the combination as posited by the Examiner. Appellant further argues that Voutchkov lacks any “reason or explanation” that would guide one of skill in the art to modify the system of Voutchkov to include a multi-lumen conduit. Appeal Br. 12. The Examiner proposes that one of skill in the art would have had reason to combine the teachings of Voutchkov and Shimizu in order “to mitigate any environmental issues. Water is taken in and discharged at different levels in [Shimizu].” Final Act. 6. Thus, the Examiner determines that one of skill in the art would have had reason to use the multi-lumen structure of Shimizu in view of Shimizu’s teachings regarding mitigation of environmental issues. Appellant’s argument is not responsive to the rejection as written. Accordingly, Appellant has not shown error in the Examiner’s determination that the claims of Group I (claims 1, 6, 9, 20, 22, 43–45, and 47) are obvious over Voutchkov in view of Kidwell or Shimizu as informed Appeal 2019-003087 Application 14/852,279 9 by Clidaras or Gordon. In view of such determination, we need not consider the Examiner’s alternative bases of rejection of these claims. Group II Appellant additionally argues that the rejection of the claim of Group II (claim 10) is in error. Appeal Br. 17–20. Claim 10 depends from claim 1 and further requires that “the multi-lumen conduit is configured for simultaneous bi-directional fluid flow.” Id. at 38 (Claims App.). Appellant argues that Voutchkov does not teach a multi-lumen conduit and, therefore, does not teach a multi-lumen conduit configured for bi-directional flow. Id. at 18. This is not persuasive of error in the rejection because the Examiner does not rely on Voutchkov as teaching a multi-lumen conduit. Answer 11. Appellant additionally argues that Shimizu “fails to disclose this element, where same multi-lumen conduit with an intake with an opening positioned in an ocean or sea and a discharge outlet configured to discharge a warm fluid produced from a desalination plant, is configured for bi- directional fluid flow.” Appeal Br. 19. This is not persuasive of error. The Examiner finds that Voutchkov teaches the claim elements relating to desalination while Shimizu teaches the multi-lumen conduit positioned in the sea. Final Act. 4, 6; Answer 11. The Examiner finds that the multi- lumen conduit of Shimizu is “configured for simultaneous bi-directional flow.” Answer 11. This is consistent with Shimizu’s teaching that the concentric pipe arrangement will “keep off a temperature rise” (Shimizu, Abstract), which suggests heat exchange between the inner and outer lumen during simultaneous flow. Appellant has argued against the references Appeal 2019-003087 Application 14/852,279 10 individually but has not shown error in the combination as set forth by the Examiner. Group III Appellant additionally argues that the rejection of the claim of Group III (claim 11) is in error. Appeal Br. 20–22. Claim 11 depends from claim 1 and further requires that the intake terminus is at a location different from that of the discharge terminus. Id. at 38 (Claims App.). The Examiner finds that “both JP and Gordon clearly teach sufficient separation of discharge from the intake.” Answer 12 (citing Shimizu, Figure 1). Appellant presents arguments similar (often verbatim) to those set forth with regard to claim 10. As with regard to the rejection of claim 10, Appellant fails to identify error in the Examiner’s rejection because it argues against the references individually. Appellant does not dispute the Examiner’s finding that Shimizu teaches an intake terminus at a location different from that of the discharge terminus nor the Examiner’s stated reason to combine the teachings of Voutchkov and Shimizu. Accordingly, Appellant has not shown error with regard to the rejection of claim 11. Group IV Appellant additionally argues that the rejection of the claims of Group IV (claims 13 and 15) is in error. Appeal Br. 22–24. Claim 13 depends from claim 11 and further requires that “the intake terminus is positioned below the photic zone in a water source.” Id. at 38 (Claims App.). Claim 15 also depends from claim 11 and further requires that “the discharge terminus is positioned below the photic zone in a water source.” Id. Appeal 2019-003087 Application 14/852,279 11 Appellant argues that Voutchkov does not teach “a multi-lumen conduit with an intake lumen that includes an intake terminus and a discharge lumen with a discharge terminus, where the intake terminus and the discharge terminus are positioned below the photic zone in a water source.” Id. at 23. The Examiner does not rely on Voutchkov as teaching these claim elements. Final Act. 4–6. Accordingly, Appellant’s argument is not responsive to, and does not show error in, the rejection as written. Appellant similarly argues that Shimizu fails to teach a multi-lumen conduit where the intake and the discharge are “positioned below the photic zone in a water source, where the intake lumen of the multi-lumen conduit is configured to convey fluid to a power plant or data center, and the discharge lumen is configured to discharge a warm fluid produced from a desalination plant.” Appeal Br. 24. This argument is likewise not responsive to the rejection as drafted. Final Act. 4–6. Appellant cites to Wikipedia for a definition of “photic zone” as the “depth where the rate of carbon dioxide uptake, or equivalently, the rate of photosynthetic oxygen production, is equal to the rate of carbon dioxide production, equivalent to the rate of respiratory oxygen consumption, i.e. the depth where net carbon dioxide assimilation is zero.” Appeal Br. 23 (citing https://en.wikipedia.org/wiki/Photic_zone). Appellant does not otherwise offer argument specific to the “photic zone” limitation. Id. In the Final Action, the Examiner relies on Gordon as teaching “desalination plants which intake seawater from sufficient depth such as under thermocline, etc.” Final Act. 6. In the Answer, the Examiner similarly determines that Gordon “teaches [a] thermocline, below which the temperature of the water is significantly cooler than the surface layer.” Appeal 2019-003087 Application 14/852,279 12 Answer 12 (citing Gordon ¶¶ 125–127). Gordon teaches that “[t]he permanent thermocline exists from depths of about 200 m to about 1,000 m.” Gordon ¶ 125. Gordon further teaches an embodiment where “[t]he water intake member 2801 extends into or below thermocline region 2840 . . . . Further, the discharge ports 2852 are located above the thermocline region 2840.” Id. ¶ 157; see also id. ¶ 156. Appellant does not address the foregoing. See Appeal Br. 22–24; Reply Br. 14–16. Accordingly, Appellant has not shown error in this regard. Further, we note that the photic zone is approximately the uppermost 200 meters of an ocean or sea.3 Gordon teaches that one may take in cooler water from depths of 200 meters or greater (¶ 157), which is below the photic zone as required by claim 13. Gordon also teaches that “[i]n another embodiment (not pictured), the location of the water intake 2802 and the concentrate discharge ports 2852 may be reversed such that the water intake 2802 is located above the thermocline region 2840 in which the plurality of concentrate discharge ports 2852 is located.” Gordon ¶157 (emphasis added). This “reverse” embodiment would teach the requirement of claim 15 that “the discharge terminus is positioned below the photic zone in a water source.” In view of such teachings, Appellant has not shown error in the rejection of claims 13 and 15. Groups V–VII Appellant additionally argues that the rejection of the claims of Groups V (claim 16), VI (claim 17), and VII (claim 18) is in error. Appeal 3 See US 6,729,063 B1 col. 1, ll. 64–67. Appeal 2019-003087 Application 14/852,279 13 Br. 25–30. Claim 16 depends from claim 1 and further requires that “the intake lumen is substantially coaxial with the discharge lumen.” Id. at 39 (Claims App.). Claim 17 also depends from claim 1 and additionally requires that “the intake lumen is adjacent to the discharge lumen within the multi-lumen conduit.” Id. Claim 18 depends from claim 1 and further requires that “the intake lumen is positioned at least partially within the discharge lumen.” Id. The Examiner determines that “[t]he teaching of co-axial in JP and Kidwell encompass all these elements. In co-axial, the inner lumen is adjacent to the outer lumen.” Answer 13. The Examiner further determines that “[c]o-axial also makes one lumen within the other.” Id. These findings are supported by the record. Figure 2 of Shimizu is reproduced below. Figure 2 of Shimizu depicts drain (outflow) pipe 8 and intake pipe 6 arranged concentrically. Shimizu, Abstract. Shimizu teaches that “[a] drain pipe 8 [is] made larger in diameter than the intake pipe 6 [and] is concentrically arranged at the outside of an upper part of this intake pipe 6.” Id. Thus, Shimizu teaches an intake lumen that is coaxial with, adjacent to, and positioned within, the discharge lumen. On appeal, Appellant reiterates its arguments presented with regard to claim 1 and other claims. These arguments are not persuasive because they address the cited prior art references individually and do not address their combined teachings which form the basis of the rejection. See In re Merck & Co., 800 F.2d at 1091. Appeal 2019-003087 Application 14/852,279 14 Group VIII Appellant additionally argues that the rejection of the claim of Group VIII (claim 19) is in error. Appeal Br. 31–32. Claim 19 depends from claim 1 and further requires that “the discharge lumen is positioned at least partially within the intake lumen.” Id. at 39 (Claims App.). In the Answer, the Examiner determines that “[t]he teaching of co-axial in JP and Kidwell encompass” these elements. Answer 13. The Examiner further determines that “[c]o-axial also makes one lumen within the other.” Id. Appellant argues, inter alia, that neither Kidwell nor Shimizu teach a discharge lumen positioned within an intake lumen. Appeal Br. 31–32; Reply Br. 17–18. We find the Examiner’s showing to be inadequate with respect to claim 19. The Examiner has not referred us to any portion of any reference that specifies a discharge lumen positioned within an intake lumen. The Examiner’s determination that a teaching of a coaxial structure teaches one lumen within another is correct but insufficient. The Examiner does not cite to any teaching of a discharge lumen within an intake. Shimizu teaches the opposite structure. See Shimizu, Figs. 1 and 2. Accordingly, we determine that Appellant has shown error with regard to the rejection of claim 19 as obvious under 35 U.S.C. § 103. Group IX Appellant additionally argues that the rejection of the claims of Group IX (claims 21 and 46) is in error. Appeal Br. 33–36. Claim 21 depends from claim 1 and further requires that “the facility comprises a data center Appeal 2019-003087 Application 14/852,279 15 comprising a server farm and wherein the water cooling subsystem is configured to cool the server farm.” Id. at 39 (Claims App.). Claim 46 depends from independent method claim 22 and additionally requires that “the facility is a data center comprising a server farm and method comprises cooling the server farm with the water cooling subsystem.” Id. at 40. (Claims App.). The Examiner finds that Voutchkov teaches to use seawater or other water to cool a power plant “or other thermal generating source” where the water is heated by the thermal source and subsequently desalinated. Answer 13 (citing Voutchkov, Abstract, ¶ 28). The Examiner determines that Voutchkov teaches that “any source of waste heat can be used for the purpose of heating the feed water in desalination” and that a “data center is such a source of waste heat.” Id. at 13. The Examiner further determines that Clidaras teaches that a data center can be cooled using seawater. Id. More specifically, Clidaras teaches that Figure 6 “is a top view of a data center 602 that uses cooling water from an open natural body of water such as an ocean or ocean extension.” Clidaras ¶ 96. Also in reference to Figure 6, Clidaras teaches “the data center 602 includes a large number of computers installed in rows of computer racks 604.” Id. ¶ 97. This “large number of computers” is similar to the Specification’s definition of “sever farm” as “a collection of computer servers configured to accomplish server performance beyond the capability of a single computer.” Spec. 6. Appellant argues that Voutchkov teaches a water-cooled power plant (which generates power) rather than a data center (which consumes power). Appeal Br. 34–35; Reply Br. 19–20. As a consequence, Appellant argues, Appeal 2019-003087 Application 14/852,279 16 Voutchkov does not teach or suggest cooling a data center. Id. Further, Appellant argues that Voutchkov teaches that an “other thermal generating source” may be “energy recovery systems, such as heat recovery turbines” rather than a data center. Id. at 34. Appellant additionally argues that “[a]s Clidaras is cited only as evidence of water-based data centers cooled by seawater, Clidaras fails to make up for the deficiencies of Voutchkov in view of Kidwell or JP01219360.” Id. None of Appellant’s arguments are persuasive. Voutchkov teaches that one may achieve efficiencies by locating a desalination plant “near a power plant or other thermal generating source.” Voutchkov ¶ 28. A data center (including a server farm) is a thermal generating source. Further, Appellant’s argument that “a thermal generating source as disclosed in Voutchkov may be ‘energy recovery systems, such as heat recovery turbines’ (page 3, paragraph [0028])” (Appeal Br. 34) is not an accurate characterization of Voutchkov. Rather, Voutchkov teaches that use of “energy recovery systems, such as heat recovery turbines” is an additional way to increase the efficiency of the desalination process. Voutchkov ¶ 28. The cited teaching does not bear on the scope of “other thermal generating source.” Appellant’s final argument, that Clidaras “fails to make up for the deficiencies of Voutchkov” (Appeal Br. 34; Reply Br. 20) is unsupported. Clidaras teaches to use ocean water to cool a “data center 602 [which] includes a large number of computers installed in rows of computer racks 604.” Clidaras ¶ 97. Thus, Clidaras teaches the data center cooling argued to be absent from Voutchkov. Clidaras further teaches that equipment necessary for data center operations may include “racks of servers.” Id. ¶ 64. Appeal 2019-003087 Application 14/852,279 17 In view of all of the foregoing, Appellant has not shown error in the rejection of claims 21 and 46. CONCLUSION The Examiner’s rejection of claims 1, 6, 9–11, 13, 15–18, 20–22, 43– 47 as obvious over Voutchkov in view of Kidwell or Shimizu with further evidence from Clidaras or Gordon is affirmed. The Examiner’s rejection of claim 19 as obvious over Voutchkov in view of Kidwell or Shimizu with further evidence from Clidaras or Gordon is reversed. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6, 9–11, 13, 15–22, 43–47 103 Voutchkov, Kidwell, Shimizu, Clidaras, Gordon 1, 6, 9–11, 13, 15–18, 20–22, 43– 47 19 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). AFFIRMED-IN-PART Notice of References Cited Application/Control No. 14/852,279 Applicant(s)/Patent Under Patent Appeal No. 2019-003087 Examiner Art Unit 1777 Page 1 of 1 U.S. PATENT DOCUMENTS * Document NumberCountry Code-Number-Kind Code DateMM-YYYY Name CPC Classification US Classification A US- B US- C US- D US- E US- F US- G US- H US- I US- J US- K US- L US- M US- FOREIGN PATENT DOCUMENTS * Document NumberCountry Code-Number-Kind Code DateMM-YYYY Country Name CPC Classification N O P Q R S T NON-PATENT DOCUMENTS * Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages) U V W X *A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).) Dates in MM-YYYY format are publication dates. Classifications may be US or foreign. U.S. Patent and Trademark Office PTO-892 (Rev. 01-2001) Notice of References Cited Part of Paper No. 20170303 6,729,063 B1 05-04-2004 Markels, Jr.