Ex Parte Cochran et al

Patent Trial and Appeal Board

Jun 28, 2018

12701920 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/701,920 02/08/2010 Robert W. Cochran
39313 7590 07/02/2018
CARL M. NAPOLITANO, PH.D.
ALLEN, DYER, DOPPELT, MILBRATH & GILCHRIST, P.A.
255 SOUTH ORANGE A VE., SUITE 1401
P.O. BOX 3791
ORLANDO, FL 32802-3791
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.
12871.13 1035
EXAMINER
OSWALD, KIRSTIN U
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
07/02/2018 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):
skemraj@addmg.com
jlong@addmg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT W. COCHRAN and RICARDO CRUZ
Appeal2017-001819
Application 12/701,920
Technology Center 3700
Before KEVIN F. TURNER, JEFFREY A. STEPHENS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 28-37, which
are all the claims pending in the application. We have jurisdiction under 35
U.S.C. § 6(b).
We reverse.
1 The real party in interest is identified as Earthlinked Technologies, Inc.
Appeal Br. 2.
Appeal2017-001819
Application 12/701,920
Claimed Subject Matter
Claim 28 is the only independent claim, and is reproduced below.
28. A refrigeration system comprising:
a compressor for compressing a refrigerant with a
lubricant entrained therein, the compressor having a compressor
inlet and a compressor outlet;
an active charge control (ACC) enclosing an interior
volume in which the refrigerant in a liquid phase is held up to a
liquid level, above which liquid level the refrigerant in the ACC
is in a vapor phase, the ACC having an ACC inlet and an ACC
outlet;
a compressor inlet conduit having an ACC end receiving
the refrigerant from the ACC outlet and a compressor end
delivering the refrigerant to the compressor inlet, the ACC and
compressor ends being above the liquid level of the ACC and a
lower portion therebetween being below the liquid level of the
ACC; and
a lubricant return line having a first end receiving the
refrigerant from the ACC below the liquid level and a second end
delivering the refrigerant to the lower portion of the compressor
inlet conduit.
Rejections
I. Claim 34 stands rejected under pre-AIA 35 U.S.C. § 112,
second paragraph, as being indefinite. Final Act. 2-3.
II. Claim 28 stands rejected under pre-AIA 35 U.S.C. § 102(b) as
anticipated by Zouck (US 1,899,378, issued Feb. 28, 1933). Final Act. 3--4.
III. Claims 28, 35, and 37 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Tilney (US 3,600,904, issued Aug. 24, 1971)
and Zouck. Final Act. 5---6.
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IV. Claims 29 and 30 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Tilney, Zouck, and Vetter (US 6,457,325 Bl,
issued Oct. 1, 2002). Final Act. 7-8.
V. Claims 31 and 32 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Zouck. Final Act. 9-10.
VI. Claim 33 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Zouck and Hallman (US 3,714,028, issued Jan. 30, 1973).
Final Act. 10-11.
VII. Claim 34 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Zouck and Gylland, Jr. (US 3,785,169, issued Jan. 15,
1974) ("Gylland"). Final Act. 11.
VIII. Claim 36 stands rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Tilney, Zouck, and Higgins (US 2,271,728, issued Feb. 3,
1942). Final Act. 12.
DISCUSSION
Rejection I
Claim 34 depends from claim 28 and recites "a heater connected to
the compressor and configured to operate during compressor off-cycles to
maintain the compressor warmer than the ACC." The Examiner determines
that the term "warmer" in claim 34 is a relative term that renders the claim
indefinite. Final Act. 2. The Examiner explains:
The term "warmer" is not defined by the claim, the specification
does not provide a standard for ascertaining the requisite degree,
and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention. Specifically, absent a
standard the term "warmer" is subjective. The conditions in
which one person skilled in the art at the time of invention may
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Application 12/701,920
consider to be "wanner" another person skilled in the art at the
time of invention may not. In tum, the metes and bounds of the
claim [are] unclear as currently presented.
Id. at 2-3.
We agree with Appellants that the Examiner's explanation is
insufficient to reject claim 34 as indefinite. Maintaining the compressor
"warmer" than the ACC is perhaps broader than maintaining the compressor
a specific amount warmer, see Appeal Br. 9, but we are not persuaded that a
specific threshold must be given in the claim or explained in the
Specification in order for one of skill in the art to understand the metes and
bounds of the claim.
In view of the foregoing, we do not sustain the rejection of claim 34
as indefinite under 35 U.S.C. § 112, second paragraph.
Rejections II and V-VII
Rejections II and V-VII each rely on the Examiner's finding that
Zouck discloses the compressor inlet conduit and lubricant return line
recited in claim 28. Final Act. 3--4, 9-11. For the reasons given below, we
agree with Appellants' argument that Zouck does not disclose these
limitations as claimed.
Appellants argue Zouck "fails to ... disclose a compressor inlet
conduit having a lower portion between ACC and compressor ends that is
below the liquid level of the ACC - and therefore also fails to ... disclose a
lubricant return line that connects to such a lower portion of a compressor
inlet conduit." Appeal Br. 12. Appellants acknowledge that Zouck's
conduit 7 has an end that receives refrigerant from evaporator 6 ( which the
Examiner finds is the claimed ACC) and a compressor end that delivers
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Application 12/701,920
refrigerant to the compressor, but explain that no portion of conduit 7 is
below the liquid level of the evaporator. Id. (citing Zouck Fig. 4).
Appellants contend the Examiner arbitrarily considers a section of Zouck' s
by-pass 10 as a portion of the conduit "so that it would have [a] portion
below the liquid level in the evaporator 6," and that the Examiner's rejection
"also necessitates the further arbitrary designation of a point along the by-
pass 10 as the second end of the lubricant return line." Id. at 13.
Having reviewed the Examiner's rejection and response in the
Answer, we agree with Appellants' arguments. It is apparent from the
Examiner's annotated figure at page 17 of the Answer that Appellants
accurately explain the rejection based on Zouck. The Examiner's annotated
figure is reproduced below.
·······--··-
The Examiner's annotated figure, based on Figure 4 of Zouck, shows a
refrigeration system with a by-pass line from the bottom of evaporator 6 that
connects with conduit 7 near the compressor, and also shows annotations
indicating the Examiner's findings with respect to the ACC outlets, the
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liquid level, first and second ends of the lubricant return line, and the
compressor inlet conduit with lower portion. Ans. 17. The Examiner's
position appears to be that all structural limitations of claim 28 are met
because Zouck' s conduit 7 connects evaporator 6 to the compressor above
the liquid level, conduit 10 connects to conduit 7 and extends below the
liquid level, and conduit 10 is connected to evaporator 6 below the liquid
level (through the portion of conduit designated 20). See Ans. 16-17.
The Examiner's findings are not consistent with how one of ordinary
skill in the art would have understood Zouck' s disclosure or interpreted
claim 28. Claim 28's compressor inlet conduit has one end that receives
refrigerant from the ACC outlet, another end that delivers refrigerant to the
compressor, and a lower portion between these two ends that is below the
liquid level of the ACC. The "lower portion" is a part of the compressor
inlet conduit, and it is also at least implied that refrigerant flows through the
lower portion in a direction from the ACC end towards the compressor end.
In contrast, Zouck's by-pass 10, which the Examiner finds is the claimed
"lower portion" of the compressor inlet conduit, is separate from conduit 7
and connects with it only at one end of by-pass 10. See Zouck Fig. 4.
Refrigerant does not flow from the ACC end of conduit 7 into by-pass 10
because the other end of by-pass 10 is connected to loop 20 of by-pass 10,
and the system is designed so that lubricant and refrigerant moves from the
bottom of evaporator 6 up by-pass 10 to conduit 7. See Zouck 3:68-104,
4: 124--5:7. Although Zouck may teach accomplishing a similar goal as
claim 28, and also considers the pressure at different points in the system in
order to ensure fluid flows in the correct direction without moving parts, see
id., Zouck's structure differs from claim 28, which was rejected as
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anticipated. For the dependent claims rejected as obvious based on Zouck,
the Examiner also does not explain why one of skill in the art would have
modified Zouck to use the same structure recited in independent claim 28.
In view of the foregoing, we do not sustain the rejection under 35
U.S.C. § 102(b) as anticipated by Zouck (Rejection II). For the same
reasons, we do not sustain the rejections under 35 U.S.C. § 103(a) of: claims
31 and 32 as unpatentable over Zouck (Rejection V); claim 33 as
unpatentable over Zouck and Hallman (Rejection VI); and claim 34 as
unpatentable over Zouck and Gylland (Rejection VII).
Re} ections III, IV, and VIII
The Examiner's obviousness rejections based on Tilney and Zouck
(set forth in Rejections III, IV, and VIII) suffer from the same deficiency
discussed above with respect to Zouck, except that Tilney is relied on as
showing the claimed compressor inlet conduit. See Ans. 17-19. Tilney's
tube 26 is not properly considered the claimed "lower portion" of the
compressor inlet conduit for the same reasons discussed above for Zouck' s
by-pass 10. See Ans. 19 (Tilney annotated Figure). Thus, we do not sustain
the rejections under 35 U.S.C. § 103(a) of: claims 28, 35, and 37 as
unpatentable over Tilney and Zouck; claims 29 and 30 as unpatentable over
Tilney, Zouck, and Vetter; and claim 3 6 as unpatentable over Tilney, Zouck,
and Higgins.
DECISION
We reverse the Examiner's rejection of claim 34 under 35 U.S.C.
§ 112, second paragraph. We also reverse the Examiner's rejection of claim
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28 under 35 U.S.C. § 102(b ), and the Examiner's rejections of claims 28-37
under 35 U.S.C. § 103(a).
REVERSED
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