Ex Parte Ishimori et al

Patent Trial and Appeal Board

Oct 31, 2018

14343271 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/343,271 03/06/2014 Takashi Ishimori
22850 7590 11/02/2018
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
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.
431074US71X PCT 1475
EXAMINER
FLANIGAN, ALLEN J
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
11/02/2018 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):
patentdocket@oblon.com
OBLONPAT@OBLON.COM
iahmadi@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TAKASHI ISHIMORI, AMANE YAMAMOTO,
and AK.IO OOSA WA
Appeal2018-002238
Application 14/343,271
Technology Center 3700
Before LISAM. GUIJT, NATHAN A. ENGELS, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
MARSCHALL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1 and 3. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants are the Applicants, Hino Motors, Ltd. and Sankyo Radiator Co.,
Ltd., which the Appeal Brief identifies as the real parties in interest. Appeal
Br. 2.
Appeal2018-002238
Application 14/343,271
THE CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a heat exchanger tube usable
for a heat exchanger of, for example, an EGR [ exhaust gas recirculation]
cooler." Spec. ,r 1. Claims 1 and 3 are independent, and claim 1 is
reproduced below.
1. A heat exchanger tube comprising:
a flat tube body shaped like a plurality of cylindrical
tubes arranged mutually proximately along a plane and
connected together at mutually proximate portions of the
cylindrical tubes as communicating po 1 tions; and
cylindrical portions corresponding respectively to said
cylindrical tubes of said flat tube body, said cylindrical portions
being concaved into grooves on outer peripheries of the
cylindrical portions to thereby provide swirling-flow-
forming protrusions on inner peripheries of the cylindrical
portions along spiral trajectories coaxial with central axes of
said cylindrical portions so that swirling flows of heat medium
may be individually formed in said respective cylindrical
portions,
wherein each of the cylindrical portions has a circular
cross-section, and
wherein neighboring cylindrical portions are shaped to
have the swirling-flow-forming protrusions directed along
mutually reversed spiral trajectories.
Appeal Br. 16 (Claims App.).
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Application 14/343,271
THE REJECTIONS
Appellants seek review of the Examiner's rejection of claims 1 and 3
under 35 U.S.C § 103 as unpatentable over Usui, 2 Tsujita, 3 Gueguen, 4 and
Blomgren. 5
ANALYSIS
The Examiner found that "enhancing heat transfer efficiency via
induced swirling or secondary flow or turbulence is a long-standing goal of
heat transfer tubing and heat exchanger designers." Final Act. 2. As to
U sui, the Examiner found that it discloses a flat profile tube for EGR cooler
applications. Id. (citing Usui, Figs. 9, 10). The Examiner further found that
U sui discloses "the use of spirally shaped spring inserts 26a that engage the
rounded interior surfaces" of its walls to improve heat transfer efficiency.
Id. As to Tsujita, the Examiner found that it discloses a heat exchanger for
EGR cooling that employs cylindrical tubes and use of a spiral wire 17
inside the tubes to generate turbulence via swirling flow to enhance heat
transfer efficiency similar to that in Usui. Id. at 3. The Examiner further
found that Tsujita discloses an alternative embodiment in Figure 8, where
the circular walls are spirally fluted "to mimic the effect of a spiral rod
insert." Id. The Examiner found that Tsujita shows the equivalence
between spiral fluting forming spiral protrusions on the inside of a tube and
spiral/rod inserts inside the tube, and determined that it would have been
2 JP 2008-232142 (A), published Oct. 2, 2008 ("Usui").
3 U.S. Patent Pub. No. 2003/0111210 Al, published June 19, 2003
("Tsujita").
4 U.S. Patent Pub. No. 2003/0102114 Al, published June 5, 2003
("Gueguen").
5 U.S. Patent No. 8,573,290 B2, issued Nov. 5, 2013 ("Blomgren").
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Appeal2018-002238
Application 14/343,271
obvious to apply Tsujita's spiral fluting to Usui because it involves "no more
than the obvious substitution of one known element for another with
predictable results." Id. In the alternative, the Examiner found that it would
have been obvious to form Tsujita's circular, spiral-fluted tubes in Figure 8
in a "flattened, bulged profile as in Figs. 9 and 10 ofUsui." Id. The
Examiner determined that the combination again would have been obvious
because it amounts "to no more than the substitution of one known heat
exchange tube profile for another with predictable results." Id.
Regarding the limitations in claims 1 and 3 directed to creating swirls
in opposite directions in adjacent tubes, the Examiner found that although
Usui discloses the directions as the same, there are only two possible options
when considering adjacent tubes (they either face the same direction or
opposite), and the Examiner determined that it would have been obvious to
select opposite directions. Id. at 3--4. The Examiner also found that even if
other options are available, there are a finite number of such options, not an
infinite number as Appellants assert. Ans. 7. The Examiner also relied on
Gueguen and Blomgren as supporting the finding that swirl-inducing ribs are
known. Final Act. 4. The Examiner further found that Blomgren discloses
ribs in adjacent passages facing in the opposite direction "so as to induce
alternating clockwise and counterclockwise swirling flow in the adjacent
flow passages." Id. The Examiner determined that it would have been
obvious to try "oppositely angling the protrusions taught in Tsujita et al. in
the bulged portions 23a-2 ofUsui as a known alternative to achieve similar
beneficial results with respect to increased heat transfer efficiency." Id. at
4--5; see also Ans. 11.
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Appeal2018-002238
Application 14/343,271
Appellants first argue that Tsujita's spiral wire rod 17 and the spring
inserts 26 of U sui are not formed by grooves on the outer peripheries of the
cylindrical portions, as claimed. Appeal Br. 8.
We disagree. The Examiner did not propose retaining Tsujita's spiral
wire rod 17 in the proposed combination. Instead, the Examiner relied on
Tsujita's spiral fluting, as shown in Figure 8, as the Tsujita structure retained
in the proposed combination. Final Act. 2; Ans. 6; see Tsujita ,r 51
( disclosing, with reference to Figure 8, that "a plurality of streaks ... of
spiral protrusions 14 and 15 are formed by spirally indenting the tube 3
from outside ... so that pressed portions from outside provide the plurality
of streaks of spiral protrusions 14 and 15 on the inner periphery of the tube
3).
Appellants next argue that the Examiner failed to explain adequately
why one would have sought to convert U sui' s "racetrack shape of the flat
heat transfer tube" into a circular shape. Appeal Br. 8; Reply Br. 3.
Appellants acknowledge that the Examiner "mentions" Tsujita's Figure 8,
but argues that the Examiner's findings nevertheless "hinge on the
embodiments in Tsujita and Usui that utilize the spiral fluiting [sic] 17 and
the spring insert respectively." Appeal Br. 8. 6
6 Appellants expand on arguments regarding the spiral protrusions 14 shown
in Figure 8 in the Reply Brief, but those arguments were available at the
time of filing the Appeal Brief and were not made by Appellants. See Reply
Br. 4---6. The arguments are untimely, and therefore waived. See 37 C.F.R.
§ 41.41(b)(2); see also Exparte Borden, 93 USPQ2d 1473, 1474 (BPAI
2010) (informative) ("[T]he reply brief [is not] an opportunity to make
arguments that could have been made in the principal brief on appeal to
rebut the Examiner's rejections, but were not.").
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Appeal2018-002238
Application 14/343,271
We again disagree because the rejection expressly relies on Tsujita's
Figure 8 and the "spiral fluting" 14/15 disclosed therein. Final Act. 3; Ans.
6; see also Tsujita ,r,r 50-51 ( describing "spirally indenting" circular tube 3
to form spiral protrusions 14, 15 on inner periphery of tube 3). Appellants
fail to address adequately the Examiner's findings regarding this
embodiment of Tsujita, as well as the Examiner's alternative determination
that it would have been obvious to modify Tsujita's circular tubes by
employing U sui' s bulging, flattened structure. See Final Act. 3. This
approach avoids the alleged problems of modifying U sui' s "racetrack"
approach. We are not apprised of error in the Examiner's determination that
the combination of Usui and Tsujita teaches or suggests a "flat tube body
shaped like a plurality of cylindrical tubes" and the "cylindrical portions
being concaved into grooves on outer peripheries of the cylindrical portions
to thereby provide swirling-flow-forming protrusions on inner peripheries of
the cylindrical portions" as claimed.
Regarding the limitations directed to swirling flow protrusions along
"reversed spiral trajectories" ( claim 1) or "slanted ... in opposite directions
so that the swirling flows of the heat medium of adjacent cylindrical portions
swirl in opposite directions" ( claim 3), Appellants argue that it would not be
obvious to try such a configuration due to the large number of potential
configurations. Appeal Br. 9--1 O; Reply Br. 7-8. Appellants also argue that
neither Gueguen nor Blomgren disclose the claimed swirling flow. Appeal
Br. 10-12; Reply Br. 8-10. Regarding Blomgren, Appellants argue that the
corrugations 13a, 13b in Blomgren's Figure 4a do not create the claimed
swirling flow because "the flow of the fluid is substantially straight and in
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Appeal2018-002238
Application 14/343,271
the same direction across the width of the corrugated heat transfer surface
10." Appeal Br. 11; see also Reply Br. 9-10.
We are not apprised of error in the Examiner's findings that
Blomgren's structures meet the claim limitations and inherently create the
claimed flow. At the outset, it does not appear that Appellants contest the
Examiner's finding that Blomgren's corrugations, with adjacent corrugations
facing in opposite directions, meet the structural requirements of the claims.
Instead, Appellants focus on the alleged inability of the corrugations to
create the claimed swirling flow because Blomgren does not expressly state
that it creates that flow. See Appeal Br. 11; Reply Br. 9. Although
Blomgren does not discuss the flow created, Appellants' arguments do not
refute adequately the Examiner's finding that "the same swirling
phenomenon will inherently manifest itself in the passages of Blomgren."
Ans. 11. The mere fact that the air, generally speaking, flows upward in
Blomgren's Figure 4a, as Appellants contend, does not establish that the
corrugations 13a, 13b do not create the claimed swirling flows within that
generally upward flow. See Appeal Br. 12. Appellants' assertions are not
supported by any citation to Blomgren or further analysis, and amount to
unsupported attorney arguments that fail to explain why fluid impinging on
the corrugations 13a, 13b would not result in a swirling flow in opposite
directions. Moreover, Appellants do not contest the Examiner's finding that
spiral flows were well known and would be induced by Tsujita's spiral
flutes-in that sense Blomgren merely introduces the concept of creating
spiral flows in opposite directions by facing adjacent obstructions in
opposite directions. We see no error in the Examiner's use of Blomgren in
this regard.
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Application 14/343,271
Based on the foregoing, we sustain the rejection of claim 1. Appellant
raises substantially the same arguments with respect to claim 3, and we
sustain the rejection for the same reasons discussed above. See Appeal Br.
13-14; Reply Br. 10; Final Act. 2-5.
DECISION
We affirm the decision of the Examiner to reject claims 1 and 3 under
35 U.S.C. § 103(a) as unpatentable over Usui, Tsujita, Gueguen, and
Blomgren.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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