Ex Parte Kerpicci

Patent Trial and Appeal Board

Apr 27, 2017

13003284 (P.T.A.B. Apr. 27, 2017)

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.
13/003,284 01/07/2011 Husnu Kerpicci 101670-0417326 7573
20350 7590 05/01/2017
KILPATRICK TOWNSEND & STOCKTON LLP
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
EXAMINER
ZERPHEY, CHRISTOPHER R
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
05/01/2017 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):
ipefiling@kilpatricktownsend.com
KT S Docketing2 @ kilpatrick. foundationip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HUSNU KERPICCI
Appeal 2015-007779
Application 13/003,284
Technology Center 3700
Before THOMAS F. SMEGAL, NATHAN A. ENGELS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Husnu Kerpicci (Appellant)1 seeks our review under 35 U.S.C. § 134
of the Examiner’s rejection2 under 35 U.S.C. § 103(a) of claims 1—4, 12—14,
and 16—18 as obvious over Smithey (US 2003/0102112 Al, pub. June 5,
2003) and Kreuzer (US 4,763,727, iss. Aug. 16. 1988); and of claims \-A
and 12—18 as obvious over Smithey and Malisi (WO 2007/031470 A2, pub.
Mar. 22, 2007).3 We have jurisdiction under 35 U.S.C. § 6(b).
1 According to Appellant, the real party in interest is Arcelik Anonim
Sirketi. Br. 2.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Final Office Action, dated June 25, 2014 (“Final Act.”).
3 Claims 5—11 have been canceled. See Amendment filed November 12,
2013.
Appeal 2015-007779
Application 13/003,284
We AFFIRM.
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. An evaporator (1) comprising a sheet (2) and a
MicroChannel tube (3) used in a cooling cycle, having arranged
channels (K) parallel to each other wherein refrigerant flows,
wherein the MicroChannel tube (3) is fixed on the sheet (2) by
bending around an axis (E) that is vertical to the sheet (2) to form
a bending portion (B) and on which the channels (K) are in line,
so only one of the channels (K) that are in line is in contact with
the sheet and one or more than one support member (4) fixed on
the sheet (2) and extending along the microchannel tube in the
bending portion (B).
ANALYSIS
Obviousness of Claims 1—4, 12—14, and 16—18 over Smithey and
Kreuzer
Appellant argues claims 1—4, 12—14, and 16—18 together in contesting
the rejection of these claims as obvious over Smithey and Kreuzer. See Br.
10—15. We select claim 1 as the representative claim for this group, and the
remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Appellant also presents a separate argument for claim 12 (Br. 16), which we
address infra.
Claims 1—4, 13, 14, and 16—18
The Examiner finds that Smithey discloses an evaporator comprising
a micro-channel tube as recited by claims 1 and 12, but “lacks a sheet and
supporting members.” Final Act. 2—3 (citing Smithey, Fig. 10). However,
the Examiner finds that Kreuzer discloses a sheet (1) “for mounting heat
exchanger structures (2) thereon with a supporting member (24) fixed on the
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Application 13/003,284
sheet and extending along the tube in a bending portion.” Id. at 3 (citing
Kreuzer, Figs. 1, 4; col. 4,11. 45^47; and col. 5,11. 1—7).4
Based on the foregoing, the Examiner determines that it would have
been obvious to have modified Smithey
by mounting the heat exchanger structure (viewed in fig 1) to a
sheet with the supporting members of Kreuzer, which places only
one of the channels (42) on the narrow edge in contact with the
sheet/support member (24 of Kreuzer), in order to provide
stmctural support to the heat exchanger and provide a thermal
contact for heat dissipation.
Id.
The Examiner also responds to Appellant’s contentions in the
Amendment filed June 6, 2017, that “Kreuzer fails to show the pipe 2 is
fixed to the sheet, but rather discloses the pipe is in or through the sheet,” by
explaining that “at the bend portions, which are the focus of the claims, the
pipe 2 ... is at said locations mounted to the plate rather than through the
plate.” Id. at 9 (citing Kreuzer, col. 4,11. 5—8; 45^47).5
While Appellant’s arguments in the Appeal Brief appear to be
extensive (covering pages 10-16), Appellant merely repeatedly contends
that “‘pipe 2’ of Kreuzer is not fixed on the sheet, but appears to be in or
through such a sheet,” so that “Kruezer does not teach the element of ‘the
microchannel tube (3) [is] fixed on the sheet (2),’” as recited by claim 1. Br.
11; see also Br. 12, 15.
4 Kreuzer identifies other panel heat exchangers where a coiled pipe is glued
on the carrier sheet. See Kreuzer, col. 1,11. 29-31.
5 Kreuzer also discloses portions of pipe 2 that are secured to (fixed on) plate
1 by riveted-on brackets 19. See Kreuzer, Figs. 6—8; col. 5,11. 14—19.
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However, we agree with the Examiner that Kreuzer “states ‘the
connecting arches 2d between the legs 2', 2", 2"', and 2"" be led out of the
plate,’” so that “Kreuzer clearly discloses the portion of the pipe at the
bend is on the sheet.” Ans. 9 (again citing Kreuzer, col. 4,11. 5—6).
Furthermore, Appellant has not disputed the Examiner’s assertion that the
bend portions of Kreuzer are on the sheet. See Br., generally.
Appellant rephrases the prior argument in contending that “the
combination of Smithey with Kreuzer would teach one of ordinary skill in
the art to have the Smithey heat exchanger structure (fig. 1). . . extending
through the sheet having a required slot as apparently taught by Kreuzer.”
Br. 12. However, the Examiner points out that “[t]he claim does not require
nor preclude the presence of slots within the sheet.” Ans. 9; see Br. 21,
Claim App. Thus, we agree with the Examiner that the presence of
additional structures in the prior art, such as the slots of Kreuzer, does not
undermine a rejection where the claim defines the invention using the open-
ended term “comprising.” See Exergen Corp. v. Wal-Mart Stores, Inc., 575
F.3d 1312, 1319 (Fed. Cir. 2009) (“The claim uses the term ‘comprising,’
which is well understood in patent law to mean ‘including but not limited
to.’” (quoting CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360
(Fed. Cir. 2007)).
Appellant also contends “the removal of the slot element from
Kreuzer would destroy that invention and/ or would teach away from a
combination yielding the present invention.” Br. 12. However, the
Examiner explains that “Smithey rather than Kreuzer is the primary
reference, so Smithey rather than Kreuzer is being modified” and that even if
“the slots of Kreuzer were present in the combination, the claims do not
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preclude the straight sections from being placed through the sheet as the
claim requires only the bending portions to be on the sheet.” Ans. 10.
Furthermore, the Examiner explains that “the combination does not propose
removing the slot sections from Kreuzer nor providing them to Smithey,” so
that “the rejection in no way is discussing, modifying, or relying on the slot
of Kreuzer; only the supports of the bend portions and the sheet itself were
proposed to be provided to Smithey.” Id.', see Final Act. 3.
We also find Appellant’s contention to be unpersuasive because it
appears to rely on the bodily incorporation of Kreuzer into Smithey.
However, the test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of a primary
reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981). “Rather, the test is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.” Id. (citations omitted). In addition, we
find using a portion of Kreuzer’s teachings is appropriate in that all of the
features of a secondary reference need not be bodily incorporated into the
primary reference. See In re Keller, 642 F.2d at 425.
We also agree with the Examiner that Kreuzer “provides the teaching
to support the bend portions of tubes to [be included with] the primary
reference of Smithey,” and that “Kreuzer does not teach away,... as
[Kreuzer] directly discloses mounting a heat exchanger to a sheet utilizing
supporting members at bending portions.” Ans. 10. As our reviewing court
explains, a reference does not teach away from claimed subject matter if it
does not “criticize, discredit, or otherwise discourage” investigation into the
claimed subject matter. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Thus, the test is what the combined teachings of the references would have
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suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d at
413.
Moreover, as pointed out supra, the Examiner relies on Kreuzer only
for teaching “mounting heat exchanger structures (2) thereon with
supporting member (24) fixed on the sheet and extending along the tube in a
bending portion.” See Final Act. 3. Appellant has not disputed this
assertion, and we find that a person of ordinary skill in the art would
overcome any potential difficulties with the proposed modification within
their level of skill. Thus, Appellant’s argument does not inform us of error.
Claim 12
Appellant again asserts the arguments presented against the rejection
of claim 1 over Smithey and Kreuzer, which we found not demonstrative of
error, and then recites additional limitations of claim 12, stating that the
“Office Action did not make a prima facie case of obviousness regarding
this claim.” Br. 16. However, pursuant to 37 C.F.R. § 41.37(c)(l)(iv), such
statements do not constitute a separate argument for patentability of claim
12. See In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the
Board had reasonably interpreted the same language in the prior rule under
37 C.F.R. § 41.37(c)(l)(vii) as requiring “more substantive arguments in an
appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art”).
For the foregoing reasons, we discern no error in the Examiner’s
findings and sustain the Examiner’s unpatentability rejection of claims 1—4,
12—14, and 16—18 over Smithey and Kreuzer.
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Obviousness of Claims 1—4 and 12—18 over Smithey and Malisi
Appellant argues claims 1—4 and 12—18 together in contesting the
rejection of these claims as obvious over Smithey and Malisi. Br. 16—19.
We select claim 1 as the representative claim for this group and the
remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Appellant also presents a separate argument for claim 12 (Br. 20), which we
address infra.
Claims 1—4 and 13—18
The Examiner continues to find that Smithey discloses an evaporator
comprising a micro-channel tube as recited by claims 1 and 12, but “lacks a
sheet and supporting members.” Final Act. 5—6 (citing Smithey, Fig. 10).
However, the Examiner finds that “Malisi discloses a sheet (25 of fig 5) for
mounting heat exchanger structures (22) with supporting members (32 and
31) fixed on the sheet and extending along the tube in a bending portion.”
Id. at 6.
Based on the foregoing, the Examiner determines that it would have
been obvious to have modified Smithey
by mounting the heat exchanger structure (viewed in fig 1) to a
sheet with the supporting members of Malisi, which places only
one of the channels (42) on the narrow edge in contact with the
sheet/support member (25 of Malisi), in order to provide
structural support to the heat exchanger and provide a thermal
contact for heat dissipation.
Id.
After first reproducing verbatim the Examiner’s rejection from pages
5 and 6 of the Final Action, Appellant purports to provide a translation of
portions of Malisi. See Br. 16—19. Interspersed with the selective
translations are contentions as to the teachings of Malisi, including that “it
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Application 13/003,284
appears that element 32 [of Malisi] does not attach the tube bends and the
evaporator [is] not shown in detail,” so that “element 32 is not defined in a
manner to allow one skilled in the art to be enabled or to combine that
element.” Br. 19. Appellant also contends that "Malisi is teaching away
from ‘extending along the microchannel tube in the bending portion (B)’ as
required by the claim,” so that “Malisi does not disclose at least this element
and/or does not enable element 32 relied on in the office action.” Id. Thus,
Appellant appears to misread the Examiner’s rejection which relies on pins
31, by which it is illustrated that heat exchanger 22 is fixed on sheet 25. See
Final Act. 6.
We have reviewed the Examiner’s response set forth in the Answer at
pages 11—12. Appellant has not apprised us of any error in those findings or
conclusions, and we find none. Therefore, we agree with, and adopt as our
own, the Examiner’s findings and conclusions of law.
Claim 12
Even though this rejection of claim 12 is based on the combination of
Smithey and Malisi, Appellant repeats verbatim the arguments previously
presented against the rejection of claim 1 based on Smithey and Kreuzer.
Compare Br. 16 and 20. Because Appellant has failed to address the
rejection of claim 12 over Smithey and Malisi as articulated by the
Examiner, Appellant does not identify any error by the Examiner.
For the foregoing reasons, we discern no error in the Examiner’s
findings and sustain the Examiner’s unpatentability rejection of claims 1—4
and 12—18 over Smithey and Malisi.
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DECISION
We AFFIRM the Examiner’s rejections.
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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