Ex Parte Barnes et al

Board of Patent Appeals and Interferences

Jan 25, 2012

11366325 (B.P.A.I. Jan. 25, 2012)

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.
11/366,325 03/02/2006 Terry Wayne Barnes RSPI 0103 PUS 3910
22045 7590 01/25/2012
BROOKS KUSHMAN P.C.
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075
EXAMINER
LEO, LEONARD R
ART UNIT PAPER NUMBER
3785
MAIL DATE DELIVERY MODE
01/25/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte TERRY WAYNE BARNES,
NAVEEN BHOJRAJ, and COWLEY WENDELL PHILLIPS JR.
____________________

Appeal 2010-002692
Application 11/366,325
Technology Center 3700
____________________

Before ROMULO H. DELMENDO, DANIEL S. SONG, and
JOSIAH C. COCKS, Administrative Patent Judges.

COCKS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-002692
Application 11/366,325

2
A. STATEMENT OF THE CASE
This is a decision on appeal by Appellants under 35 U.S.C. § 134(a)
from a final rejection of claims 19 and 21-24. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.

References Relied on by the Examiner
Huddleston et al. (“Huddleston”) 5,711,369 Jan. 27, 1998
Petersen 2004/0251014 Dec. 16, 2004

The Rejections on Appeal
The Examiner rejected claims 19 and 21-24 under 35 U.S.C. § 103(a)
as unpatentable over Petersen.
The Examiner rejected claims 19 and 21-24 under 35 U.S.C. § 103(a)
as unpatentable over Huddleston.

The Invention
The invention relates to a method of manufacturing heat exchanger
manifolds. (Spec. 2:11-20.) Figures 3-6 are reproduced below and depict
one embodiment of the invention.

App
App

Fig
head
inclu
to he
tube
(Id. a
in m
(aper
7, re
Figu
at 9:
eal 2010-0
lication 11
ures 3-6 a
duri
As show
er tube 42
des moun
ader tube
, with the s
t 7:19-9:5
ounting re
tures 70 a
produced i
res 5 and 6
11-13) As
02692
/366,325
bove dep
ng differe
n in the fi
. (Spec. 7
ting, at mo
42 betwee
heet havin
.) By app
gion 48 an
nd 72 are n
nfra). (Sp
, the apert
shown in
ict axial en
nt stages
gures abov
:1-18.) Th
unting reg
n “gibs” 5
g a meltin
lication of
d an apert
ot labeled
ec. 9:13-1
ures are fo
Figure 7 (
3
d views o
of the man

e, a heat e
e describe
ion 48, an
4, 56 so as
g tempera
a “punch”
ure 72 is f
in Figure
7.) In the
rmed “con
below), ap
f a manif
ufacturin
xchanger
d manufac
insert she
to cover a
ture less th
64, an ap
ormed in i
s 3-6 but a
embodime
currently
ertures 70
old heat e
g process
manifold i
turing me
et 58 of fil
top of the
an that of
erture 70 i
nsert sheet
re labeled
nt shown
” by punch
and 72 ar
xchanger
.
ncludes a
thod
ler metal
header
the tube.
s formed
58
in Figure
above in
64. (Id.
e sized to

App
App

recei
Fig
melt
and
cool
tube
eal 2010-0
lication 11
ve second
ure 7 abo
manifold
The man
sheet 58 s
secondary
ing, the res
42 formin
02692
/366,325
ary tubes 7
ve depicts
of the he
ifold 68 sh
uch that it
tubes 74 a
ulting “br
g a seal th
4. (Id. at
a partial
at exchan
own in Fi
flows arou
t each ope
azed joint”
erebetwee
4
9:21-10:7
perspecti
ger depic

gure 7 abo
nd the co
ning 70. (
joins sec
n. (Id. at 1
.)
ve view o
ted in Fig
ve is subs
nnection o
Id. at 10:1
ondary tub
0:23-26.)
f the porti
ures 3-6 s
equently h
f mountin
5-23.) Up
es 74 and

on of the
upra.
eated to
g region 4
on
header
8
Appeal 2010-002692
Application 11/366,325

5
Claim 19 is illustrative and is reproduced below (App. Br. Claims
App’x. p. 1):
19. A method for manufacturing a manifold for a heat exchanger
comprising :

extruding a tubular body with a retainer;

providing a sheet on the tubular body in cooperation with the
retainer, the sheet having a melting temperature less than the tubular
body;

concurrently forming an aperture through the tubular body and
the sheet;

inserting a distal end of a second tubular body through the
aperture;

heating the manifold to a temperature greater than the melting
temperature of the sheet so that the sheet material seeps between the
second tubular body and the first tubular body aperture; and

cooling the manifold so that the insert brazes the second tubular
body to the first tubular body aperture.
B. ISSUE
Did the Examiner incorrectly determine that, in view of the teachings
of the prior art, it would have been obvious when constructing a heat
exchanger to form an aperture in a tubular body concurrently with an
aperture in a brazing sheet on the tubular body?
C. FINDINGS AND ANALYSIS
The Examiner rejected claims 19 and 21-24 over Petersen and
alternatively over Huddleston.
Appeal 2010-002692
Application 11/366,325

6
The rejection over Petersen
Claims 21-24 are ultimately dependent on, and are argued collectively
with, claim 19. Petersen discloses a heat exchanger which is composed of,
inter alia, a pair of opposed tubular bodies, termed “manifolds” in Petersen,
and a plurality of flat tubes connected between the manifolds. (Petersen
Abstract; Fig. 1.) The Examiner determined that Petersen discloses a
technique for forming its heat exchanger which accounts for all the features
of claim 19 with the exception of “concurrently forming an aperture through
the tubular body and the sheet.” (Ans. 3:11-22.) The Examiner, however,
reasoned that it would have been obvious to incorporate that feature when
forming Petersen’s heat exchanger. (Id. at 3:23-24.)
The Appellants challenge the Examiner’s rejection on three theories.
First, the Appellants contend that Petersen does not disclose that its brazing
sheet includes an aperture and thus the Examiner has allegedly not
accounted for forming an aperture in the sheet as required by claim 19.
(App. Br. 6:12-14.) Second, the Appellants contend that Petersen “expressly
discloses” adding its brazing sheet after holes in a manifold holes are formed
and thus Petersen “teaches away” from concurrently forming holes in the
manifold and the sheet. (Id. at 7:2-5.) Third, the Appellants contend that the
Examiner’s reason for determining obviousness is “irrational.” (Id. at 6:17-
19.)
We do not agree with any of the Appellants’ contentions. Petersen’s
Figure 3 is reproduced below and it depicts a cross-sectional view of a
manifold according to Petersen’s invention (Petersen 1:¶ 0011):
App
App

“extr
inclu
of lo
outer
also
whic
show
Peter
man
the e
conn
eal 2010-0
lication 11
Figure 3
As show
uded tube
des a flat
ngitudinal
wall 30 v
discloses t
h operate
n) extend
sen furthe
ifold, “inse
ntire assem
ection is o
02692
/366,325
above dep
n in Figur
,” houses c
outer wall
holes 35 (
ia a “punc
hat wall 3
to receive
ing along t
r explains
rtion of th
bly is hea
btained be
icts a cro
e 3 above,
hannels 1
30 over th
not shown
h die” so a
0 is provid
and clamp
he length
that after
e flat tube
ted in a br
tween the
7
ss–section

the manif
6, 17, and
e channels
in Figure
s to receiv
ed with lo
the edges
of the man
attachmen
s into the m
azing ove
flat tubes
of Peters
old, which
18 (id. at
(id. at 2:¶
3 above) m
e flat tube
ngitudinal
of a “braz
ifold. (Id
t of the bra
anifold”
n such tha
and the m
on’s man
is describ
1:¶ 0019) a
0022). A
ust be fo
s. (Id.) P
grooves 4
ing sheet”
. at 2:¶ 002
zing shee
is accomp
t “a reliabl
anifold.”

ifold.
ed as an
nd
number
rmed in
etersen
6, 47
(not
4.)
t to the
lished and
e
(Id.)

Appeal 2010-002692
Application 11/366,325

8
In light of the above-noted disclosure, and in particular, page 2,
paragraph 24 of Petersen, the Examiner reasoned that one with ordinary skill
in the art would have appreciated that holes must be formed in Petersen’s
brazing sheet so that the flat tubes may be inserted into the manifold after
attachment of the brazing sheet to the manifold. (Ans. 5:19-20.) The
Examiner’s reasoning is sensible and is not persuasively addressed by the
Appellants. That the flat tubes in Petersen are inserted into the manifold
after the manifold is equipped with a brazing sheet reasonably suggests that
the brazing sheet necessarily includes openings formed so as to receive the
flat tubes therethrough. We therefore reject the Appellants’ first contention
that the Examiner did not adequately account for the claim feature of an
aperture in a sheet from the teachings of Petersen.
With respect to the Appellants’ second and third contentions, the
Examiner determined that Petersen is silent as to how or when the holes in
the brazing sheet are formed (Ans. 5:12-13) but explained that one with
ordinary skill in the art would have understood that “only two possibil[ities]
exist in forming the apertures in the tubular body and brazing sheet: 1) one
at a time or 2) at the same time.” (Id. at 5:21-6:14.) In concluding that the
Appellants’ claims would have been obvious, the Examiner reasoned that a
skilled artisan would have recognized that forming Petersen’s tubular body
and brazing sheet apertures “simultaneously or concurrently,” i.e., at the
same time, is a technique providing “optimiz[ed] manufacture” and “would
simplify” the manufacturing process. (Id. at 5:13-18.) We agree with that
reasoning.
We do not discern, as is alleged by the Appellants, that Petersen
mandates that the holes in its manifold must necessarily be formed prior to
Appeal 2010-002692
Application 11/366,325

9
the clamping of the brazing sheet onto the manifold so as to “teach away”
from the concurrent aperture forming feature of the claims. It is apparent
from the record that openings must be formed in each of Petersen’s manifold
and its brazing sheet so as to receive flat tubes therethrough. Petersen
establishes that a “punch die” is a known and viable tool for providing an
opening of suitable size and shape to accomplish that purpose. Petersen
does not reasonably convey that there is an intrinsic temporal restriction in
applying its teachings in forming the apertures in the components of its heat
exchanger.
Although the Appellants are of the view that the Examiner’s reasoning
for concluding obviousness is “irrational” because “it merely states the
advantage of the claimed element as its reason for being obvious.” (App.
Br. 6:17-19), we do not agree. The Examiner’s approach to resolving
obviousness reasonably accounts for how a person of ordinary skill in the
art, who is also one of ordinary creativity, KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 421 (2007), would have proceeded in determining how to form the
necessary apertures in the brazing sheet and manifold components of a heat
exchanger. The Appellants do not meaningfully explain why they believe
that the selection of one technique that is more efficient or simpler, i.e.,
forming the apertures at the same time, from the limited number of available
aperture forming options is “irrational.”
Furthermore, we observe, as did the Examiner (Ans. 6:12-13), that the
record does not establish that there is any unexpected result arising from the
formation of apertures in a tubular body concurrently with an overlying
brazing sheet. Indeed, the Appellants do not make any argument in that
Appeal 2010-002692
Application 11/366,325

10
regard, much less provide evidentiary support for such an argument, such as
the declaration testimony of an expert witness.
On the record before us, we conclude that the Examiner adequately
established a prima facie basis for rejecting the Appellants’ claims as
obvious. Once a prima facie case of obviousness is established, the burden
shifts to the appellant to show non-obviousness through evidence of
secondary considerations or persuasive arguments. In re Huang, 100 F.3d
135, 139 (Fed. Cir. 1996); In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992). Here, the Appellants have not come forward with evidence of any
such considerations and we do not find the submitted arguments persuasive.
Accordingly, for the foregoing reasons, we sustain the Examiner’s
rejection of claims 19 and 21-24 as unpatentable over Petersen.
The rejection over Huddleston
The Examiner alternatively rejected claims 19 and 21-24 over
Huddleston. Because we conclude that those claims are properly rejected
based on the teachings of Petersen, we do not reach the merits of the
Examiner’s alternative prior art rejection.
D. CONCLUSION
We are not persuaded that the Examiner erred in concluding that, in
view of the teachings of the prior art, it would have been obvious when
constructing a heat exchanger to form an aperture in a tubular body
concurrently with an aperture in a brazing sheet on the tubular body.
E. ORDER
The rejection of claims 19 and 21-24 under 35 U.S.C. § 103(a) as
unpatentable over Petersen is affirmed.
Appeal 2010-002692
Application 11/366,325

11
We do not reach the merits of the rejection of claims 19 and 21-24
under 35 U.S.C. § 103(a) as unpatentable over Huddleston.

AFFIRMED

ack