Ex Parte Bushnell

Patent Trial and Appeal Board

Jun 7, 2018

12667290 (P.T.A.B. Jun. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/667,290 12/30/2009 Peter R. Bushnell
87059 7590 06/11/2018
Cantor Colburn LLP - Carrier
20 Church Street, 22nd Floor
Hartford, CT 06103
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.
48847US01 (U350015US) 5970
EXAMINER
VAZQUEZ, ANA M
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
06/11/2018 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER R. BUSHNELL
Appeal2017-004273
Application 12/667 ,290
Technology Center 3700
Before STEFAN STAICOVICI, BRANDON J. WARNER, and
FREDERICK C. LANEY, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Peter R. Bushnell ("Appellant") 1 appeals under 35 U.S.C. § 134(a)
from the Examiner's decision in the Final Office Action (dated May 17,
2016, hereinafter "Final Act.") rejecting claims 1, 2, 4, 5, 11-13, 15, and
16.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 Carrier Corporation is identified as the real party in interest in Appellant's Appeal
Brief (filed Oct. 17, 2016, hereinafter "Br."). Br. 1.
2 Claim 3, 6-10, and 14 are canceled. Br. 1.
Appeal2017-004273
Application 12/667,290
INVENTION
Appellant's invention relates to "the evaporator air management
system of a trailer refrigeration system." Spec., para. 1.
Claims 1, 11, and 15 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A trailer refrigeration system, comprising:
an evaporator section including an evaporator coil and an
evaporator fan;
an exterior section including a condenser coil and [a]
condenser fan disposed adjacent to the condenser coil, the
evaporator section coupled to the exterior section;
an engine driven generator for providing electrical power to
said evaporator fan and condenser fan;
wherein said evaporator fan comprises at least one axial fan
and an electric fan motor for drawing air through said
evaporator coil and discharging the air vertically upward along
an upward flow path, the axial fan and the electric fan motor
each having vertically aligned axes of rotation; and
a nozzle disposed in the evaporator section downstream of
said axial fan, the nozzle defining an airflow path substantially
90° from the upward flow path, wherein a nozzle shape
transitions from a circular to a wide aspect ratio rectangular
cross-section having a width to height ratio greater than 3 while
turning 90°;
wherein the condenser coil is located adjacent to the axial
fan and the electric fan motor.
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Application 12/667,290
REJECTIONS 3
I. The Examiner rejects claims 1, 2, 4, 5, 11, 13, and 16 under 35 U.S.C.
§ 103(a) as being unpatentable over Bolynn (US 3,412,571, issued
Nov. 26, 1968), Watanabe et al. (US 2005/0232765 Al, published
Oct. 20, 2005, hereinafter "Watanabe"), and Messmer et al. (US
6,168,518 Bl, issued Jan. 2, 2001, hereinafter "Messmer").
II. The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as being
unpatentable over Bolynn, Watanabe, Messmer, and Amr et al. (US
5,916,253, issued June 29, 1999, hereinafter "Amr").
III. The Examiner rejects claim 15 under 35 U.S.C. § 103(a) as being
unpatentable over Fischler (US 5,609,037, issued Mar. 11, 1997),
Watanabe, Messmer, and Carson et al. (US 4,365,484, issued Dec. 28,
1982, hereinafter "Carson").
ANALYSIS
Rejection I
Claims 1, 2, 4, 5, 13, and 16
Appellant does not present arguments for the patentability of claims 2,
4, 5, 13, and 16 apart from claim 1. See Br. 7. Therefore, in accordance
with 3 7 C.F .R. § 41.3 7 ( c )(1 )(iv), we select claim 1 as the representative
claim to decide the appeal of the rejection of these claims, with claims 2, 4,
5, 13, and 16 standing or falling with claim 1.
3 The rejection of claim 15 under 35 U.S.C. § 112, second paragraph, has
been withdrawn by the Examiner. See Advisory Action 2, dated Oct. 5,
2016.
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Application 12/667,290
Appellant argues that none of Bolynn, Watanabe, or Messmer
discloses the limitations of (1) "the evaporator section [being] coupled to the
exterior section" and (2) "wherein the condenser coil is located adjacent to
the axial fan and the electric fan motor." Br. 5-7.
Bolynn discloses a refrigeration system for a trailer 12 including an
interior air handling unit 14 having evaporator 19 and evaporator air fan 26,
and an exterior package 15, located under trailer 12, holding compressor 16,
condenser 17, condenser fan 23, electrical current generator 22, and internal
combustion engine 21. Bolynn, col. 3, 11. 19-46, Figs. 1, 5.
As such, with regard to the first disputed limitation, we agree with the
Examiner that Bolynn's evaporator section 14 is "coupled" to exterior
package 15 via the wall of trailer 12 or "the conduit in the refrigeration
system that facilitates the delivery of refrigerant from said evaporator
section (14) ... [to] said exterior section (15)." Examiner's Answer 3 (dated
Dec. 1, 2016, hereinafter "Ans.").
As to the second disputed limitation, Appellant's Specification does
not assign or suggest a particular definition to the claim term "adjacent" and,
therefore, it is appropriate to consult a general dictionary definition of this
non-technical word for guidance in determining the ordinary and customary
meaning of the claim term as viewed by a person of ordinary skill in the
art. See Comaper Corp. v. Antee, Inc., 596 F.3d 1343, 1348 (Fed. Cir.
2010). During examination, "claims ... are to be given their broadest
reasonable interpretation consistent with the specification, [ ] and ... claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Bond, 910 F.2d 831,
833 (Fed. Cir. 1990) (alteration in original) (citing In re Sneed, 710 F.2d
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Application 12/667,290
1544, 1548 (Fed. Cir. 1983). The words of the claim must be given their
plain meaning unless the plain meaning is inconsistent with the
Specification. In re Zietz, 893 F.2d 319, 321 (Fed. Cir. 1989). In this case,
we agree with the Examiner that an ordinary and customary meaning of the
term "adjacent" is "not distant : NEARBY." See https://www.merriam-
webster.com/dictionary/adjacent (last visited June 4, 2018); see also Ans. 3.
Such a meaning is consistent with Appellant's Specification, which in Figure
5 shows a condenser coil located nearby evaporator fan and motor 3 7, 3 8
and separated by a condenser fan. See Appellant's annotated Figure 5 on
page 8 of the Brief; see also Ans. 6.
We appreciate Appellant's position that "[u]nder no reasonable
interpretation can [Bolynn's] air handling unit 14 and package 15 be
considered 'adjacent."' Br. 6. However, Appellant does not point to any
portion of the Specification that indicates the term "adjacent" is being used
in such a manner that a person of ordinary skill in the art would not
reasonably view Bolynn's evaporator section 14 (evaporator fan and motor)
as located "nearby" exterior package 15 (condenser coil). Moreover, in light
of the Specification and the ordinary and customary meaning of the term
"adjacent," Appellant does not explain adequately why Appellant's
condenser coil is located "adjacent" evaporator fan and motor 37, 38,
whereas Bolynn's evaporator section 14 is not located "adjacent" exterior
package 15. In both situations, the condenser coil is separated from the
evaporator fan and motor (i.e., it is located near the evaporator fan and
motor) and no persuasive evidence from the intrinsic record is cited by
Appellant to demonstrate the Examiner unreasonably expanded the amount
of separation allowed by the term "adjacent."
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Application 12/667,290
Hence, for the foregoing reasons, we agree with the Examiner that
"due to the connection of package 15, and unit 14 in the trailer [ofBolynn],
the condenser coil (17), and the fan and electric fan motor (26) are
considered to be adjacent (neighboring; not distant) in order to provide
refrigerated air within the trailer." Ans. 6 (emphasis added).
Accordingly, for the foregoing reasons, we sustain the rejection of
claim 1 under 35 U.S.C. § 103(a) as unpatentable over Bolynn, Watanabe,
and Messmer. Claims 2, 4, 5, 13, and 16 fall with claim 1.
Claim 11
In addition to the arguments discussed supra (see Br. 7-10), which we
have not found persuasive, Appellant further argues that Bolynn fails to
disclose the limitation of "wherein a wall of the nozzle is positioned between
the electric fan motor and the condenser coil." Id. at 9.
We are not persuaded by Appellant's argument because as the
Examiner correctly states:
Bolynn discloses in Figures 1 and 5 ... the electric fan motor
(electric fan motor of fan 26) being located within the walls of
the nozzle. As can be seen from Figure 1 ... at least one of the
nozzle walls is located between the electric fan motor within
unit 14, and the condenser coil (17) positioned inside the
exterior section 15.
Ans. 9; see also id. at 10.
Accordingly, we also sustain the rejection of claim 11 under
35 U.S.C. § 103(a) as unpatentable over Bolynn, Watanabe, and Messmer.
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Rejection II
Appellant relies on the arguments discussed supra. See Br. 10.
Therefore, for the same reasons discussed above, we also sustain the
rejection of claim 12 over the combined teachings of Bolynn, Watanabe,
Messmer, and Amr.
Re} ection III
Appellant argues that the Examiner's modification of Fischler' s
system to include Watanabe's axial flow fan and motor to discharge the air
vertically (upward) "is directly contrary to the disclosure of Fischler." Br.
11. According to Appellant, the Examiner's modification "would increase
the height of the refrigeration unit and also require addition[ al] space to form
a return air path over the evaporator coil 118," such that "Fischler clearly
teaches against the modification proposed by the Examiner." Id. at 13.
We are not persuaded by Appellant's arguments because Appellant
does not point to any passage in Fischler that "criticize[ s ], discredit[ s ], or
otherwise discourage[s]" the use of Watanabe's axial flow fan and motor or
Messmer's nozzle. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(prior art does not teach away from claimed subject matter merely by
disclosing a different solution to a similar problem unless the prior art also
criticizes, discredits, or otherwise discourages the solution claimed).
Although we appreciate Appellant's concerns regarding the size of the
Fischler's refrigerating unit, as modified by Watanabe, we note that if there
are tradeoffs involved, such things do not necessarily prevent the proposed
combination. See Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165
(Fed. Cir. 2006) ("a given course of action often has simultaneous
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advantages and disadvantages, and this does not necessarily obviate
motivation to combine."); Winner Int 'l Royalty Corp. v. Wang, 202 F.3d
1340, 1349 n.8 (Fed. Cir. 2000) ("The fact that the motivating benefit comes
at the expense of another benefit, however, should not nullify its use as a
basis to modify the disclosure of one reference with the teachings of another.
Instead, the benefits, both lost and gained, should be weighed against one
another."). Even accepting Appellant's position that the size of Fischler's
refrigerating unit, as modified by Watanabe, may increase, we, nonetheless,
agree with the Examiner that the evidence shows providing Watanabe's
axial flow fan and motor to Fischler' s refrigerating unit would have been
recognized as affording the additional benefit of "allow[ing] a further
reduction in fluid noise." Final Act. 22 (citing Watanabe, para. 64).
Appellant has not identified any particular error in the Examiner's findings
and reasoning.
Furthermore, we do not agree with Appellant that in Fischler's
refrigerating unit, as modified by Watanabe, evaporator coil 118 would have
to be arranged vertically. 4 See Br. 13. For example, as the Examiner
correctly shows, Watanabe's axial flow fan and motor can be located at an
acute angle with evaporator coil 118. See Ans. 14--15. We note that such a
construction is similar to Bolynn's evaporator coil 19 and evaporator fan and
motor 26 that form an acute angle. See Bolynn, Fig. 4.
With respect to Messmer, Appellant makes a similar argument,
namely, that the Examiner's modification of Fischler's system to include
4 We note that Fischler employs the term "preferably" when stating, "the
evaporator blowers 119 are arranged to be substantially parallel to the
evaporator coil 118." Fischler, col. 7, 11. 10-20.
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Messmer's nozzle that transitions from a circular cross-section to a wide
aspect ratio rectangular cross-section "would increase the size of the
refrigerating unit" and, thus, "Fischler clearly teaches against the
modification proposed by the Examiner." Br. 14. According to Appellant,
the "nozzle of Messmer appears far too large to be incorporated into the
vehicle refrigeration unit of Fischler." Id. (citing Messmer, col. 3, 11. 25-
40).
We are not persuaded by Appellant's arguments because the
arguments are not responsive to the Examiner's stated rejection, as
obviousness does not require that all of the features of the secondary
reference be bodily incorporated into the primary reference. In re Keller,
642 F.2d 413, 425 (CCP A 1981 ). Here, the Examiner is not replacing
Fischler's nozzle 125 with the nozzle of Messmer, but, rather, is modifying
the shape of Fischler's nozzle 125 such that it transitions from a circular
cross-section to a wide aspect ratio rectangular cross-section. See Ans. 16.
Moreover, the Examiner is correct in that modifying Fischler's nozzle 125,
according to Messmer, would "avoid abrupt changes of direction in the
airflow through the nozzle." Final Act. 24 (citing Messmer, col. 3, 11. 56-
61). Appellant has not identified any particular error in the Examiner's
findings and reasoning.
Finally, with respect to the disclosure of Carson, Appellant contends
that it does not overcome the deficiencies of the Fischler, Watanabe, and
Messmer combination. Br. 14--15. However, as we do not find any
deficiencies with the combination of Fischler, Watanabe, and Messmer, we
likewise, sustain the rejection of claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Fischler, Watanabe, Messmer, and Carson.
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SUMMARY
The Examiner's decision to reject claims 1, 2, 4, 5, 11-13, 15, and 16
under 35 U.S.C. § 103(a) 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
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