Ex Parte Linderman

Patent Trial and Appeal Board

Sep 26, 2017

12822893 (P.T.A.B. Sep. 26, 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.
12/822,893 06/24/2010 Ryan Linderman 500623US 6709
145212 7590 09/28/2017
Ohl on /S»i 1 nnnwer EXAMINER
1940 DUKE STREET
ALEXANDRIA, VA 22314
BARTON, JEFFREY THOMAS
ART UNIT PAPER NUMBER
1757
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
patentdocket @ oblon. com
oblonpat @ oblon. com
tfarrell@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN LINDERMAN
Appeal 2016-002829
Application 12/822,8931
Technology Center 1700
Before WESLEY B. DERRICK, CHRISTOPHER L. OGDEN, and
DEBRA L. DENNETT, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals2 under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 2, 4—6, 8—19, 28—32, and 34—37 in the
above-identified application.3 We have jurisdiction pursuant to 35 U.S.C.
§ 6(b). We REVERSE.
1 According to Appellant, the real party in interest is SunPower Corporation.
See Appeal Br. 3, June 8, 2015.
2 Appeal Br.; Reply Br., Jan. 18, 2016.
3 Final Office Action, Nov. 6, 2014 [hereinafter Final Action]; Examiner’s
Answer, Nov. 16,2015 [hereinafter Answer],
Appeal 2016-002829
Application 12/822,893
BACKGROUND
Appellant’s invention relates to optimizing airflow through
optoelectronic systems. See Spec.4| 1. Figure llAofthe application
illustrates an embodiment, which is reproduced below as annotated by
Appellant:
Appeal Br. 8. Figure 11A depicts an apparatus with curved optical
concentrator optical elements 1104,1106, and 1114, photovoltaic receivers
1102,1108, and 1109, and airflow accelerators 1105, and 1113. See Spec.
197. The figure indicates various airflow pathways with dashed arrows.
Independent claim 1 is illustrative:
1. An apparatus to increase a speed of an airflow through a
heat exchanger, comprising:
a support frame;
a first curved optical element supported by the support
frame, the first curved optical element having a front reflective
side, a back side, a top edge, and a bottom edge;
4 Specification, June 24, 2010 [hereinafter Spec.].
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Application 12/822,893
a second curved optical element having a top edge and a
bottom edge, wherein the top edge of the first curved optical
element is spaced apart from the top edge of the second curved
optical element, and wherein the bottom edge of the first curved
optical element is spaced apart from the bottom edge of the
second curved optical element,
wherein the first and second curved optical elements are
exposed to the atmosphere and natural wind currents',
an optoelectronic device mechanically coupled to the
second curved optical element, the optoelectronic device
comprising a heat exchanger and a solar receiver, the solar
receiver having a first side configured to receive solar energy
and a second opposite side connected to the heat exchanger, the
heat exchanger including an air flow passage configured to
allow a flow of air to pass through the heat exchanger on the
second side of the solar receiver and in at least upward and
downward directions, the optoelectronic device mounted
relative to the first curved optical element such that light
reflected off of the front reflective side is directed to the first
side of the solar receiver; and
an airflow accelerator supported by the support frame
and mechanically coupled to the optoelectronic device, wherein
the airflow accelerator comprises a first surface configured to
guide the airflow towards the heat exchanger, the airflow
accelerator configured to guide at least a portion of the airflow
through a space between the second curved optical element and
the optoelectronic device.
Appeal Br. 28 (emphasis of key limitations added). Claim 11 is also
independent, and includes limitations similar to those highlighted in claim 1
above. See id. at 29—30.
The Examiner maintains the following grounds of rejection:
1. Claim 31 is rejected under 35 U.S.C. § 112, 1st paragraph, as
failing to comply with the written description requirement. See Final Action
7-8.
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Application 12/822,893
2. Claims 1, 2, 4—6, 8—19, 28—32, and 34—37 are rejected under
35 U.S.C. § 102(b) as being anticipated by Home.5 See id. at 8—28.
3. Claims 1, 2, 4, 6, 9-15, 17, 18, 28—32, and 34 are rejected under
35 U.S.C. § 102(e) as being anticipated by Wares.6 See id. at 29-43.
4. Claims 1, 2, 4—6, 8—19, 28—32, and 34—37 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Home in view of Pauli.7 See
id. at 44-46.
5. Claims 5, 8, 16, 19, and 35—37 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Wares. See id. at 46-48.
DISCUSSION
Rejection of claim 31 under 35 U.S.C. § 112, para. 1
Claim 31 depends from claim 1, and further recites “wherein the first
curved optical element and the second curved optical element are not
disposed inside a closed housing.” Appeal Br. 31. The Examiner finds that
“[t]he specification does not provide support for the absence of a closed
housing and neither recites that a housing is present or is not present.” See
Final Action 7—8. While noting that the Specification refers to the
atmosphere and natural wind currents, the Examiner finds that such exposure
“does not overlap completely in scope with the limitation that the curved
optical elements are not disposed in a closed housing, as the elements could
5 Home et al., US 2008/0251113 A1 (published Oct. 16, 2008).
6 Wares et al., US 2011/0120524 Al (published May 26, 2011).
7 Pauli, US 2005/0081909 Al (published Apr. 21, 2005).
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Appeal 2016-002829
Application 12/822,893
be exposed to the natural wind currents and the atmosphere in a closed
housing.” Answer 75—76.
Appellant argues that in light of the Specification, “a skilled artisan
would understand that the curved optical elements are disposed outside and
exposed to natural wind conditions and are therefore not disposed inside a
closed housing.” Appeal Br. 26 (emphasis omitted). We find this argument
persuasive. As Appellant correctly argues, see id., the Specification refers to
many examples to illustrate a device that is exposed to natural wind. See,
e.g., Spec. 3 (successful commercialization depends on reliable operation
at “a wide range of ambient temperatures and wind speeds.”), 31 (stating
that the invention “allow[s] for the matching of heat sink performance across
the array of receivers over a wide range of wind conditions and system
elevations”), 89 (referring to “simulated wind flow through the heat sinks”
and an “East-West field wind”), 90 (referring to the benefit of “any
technology that accelerates the natural wind and convective currents through
the heat sink”). The natural wind exposure as illustrated in the Specification
is incompatible with the device being isolated from natural wind currents
within a closed housing. Therefore, a person of ordinary skill in the art
would have recognized that Appellant invented a device that is not disposed
inside a closed housing. See Union Oil Co. of California v. Atl. Richfield
Co., 208 F.3d 989, 997 (Fed. Cir. 2000) (“The written description
requirement does not require the applicant ‘to describe exactly the subject
matter claimed, [instead] the description must clearly allow persons of
ordinary skill in the art to recognize that [he or she] invented what is
claimed.’” (citation omitted)). Therefore, we reverse the Examiner’s
rejection under 35 U.S.C. § 112, 1 st paragraph.
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Application 12/822,893
Rejections based on Horne
Figures 2 and 3 of Home are reproduced below:
FIG. 3
Figures 2 and 3 depict portions of a solar power concentrating unit, which
includes a curved mirror 120, a photoelectronic receiver unit 115 that
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Appeal 2016-002829
Application 12/822,893
includes optical element 116, photovoltaic cell 117, and heat sink 118, and
housing surfaces 111, 113,114,121,123, and 130. Home 43^46.
The Examiner states that “Home does not disclose that the housings
(111 and 121) are completely enclosed. The reference must be taken for all
that it teaches and Home does not disclose side panels on the housing 111
and 121.” Final Action 9. Thus, the Examiner finds that Home discloses the
limitation “wherein the first and second curved optical elements are exposed
to the atmosphere and natural wind currents.” See id. The Examiner also
interprets the “exposed to the atmosphere and natural wind currents”
limitation as merely intended use. See id. at 2.
Indeed, the Examiner determines that “all language directed to the
flow of air is constmed as intended use.” Id. at 10. Thus, the Examiner
finds that “the heat exchanger (118) includes air flow passages . . .
configured to allow a flow of air to pass through the heat exchanger on the
second side of the solar receiver and in at least upward and downward
directions.” Id. at 10. The Examiner identifies these airflow passages as
shown in annotated Figure 3 of Home, below:
Air flow passages
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Appeal 2016-002829
Application 12/822,893
Id. at 14. The annotated Figure 3 has labels pointing to ellipses over heat
sink 118. In another annotated version of Figure 3 (not reproduced here), the
Examiner identifies surface 114 and the bottom surface (unlabeled) as the
“airflow accelerator.” Id. at 13.
Appellant argues that Home’s Fig. 8 discloses closed side panels in
Fig. 8, and that nothing in Home discloses exposure to the atmosphere and
natural wind currents. See Appeal Br. 15—16. Appellant also argues that
“Home’s stmcture is incapable of guiding airflow through a space between
a second curved optical element and an optoelectronic device” because it is
an enclosed stmcture. Id. at 19. Also, Appellant argues that the Examiner
has not shown how the device is configured to guide airflow through a space
between the second curved optical element and the optoelectronic device.
See id.
We disagree with the Examiner’s interpretation of the airflow
limitations in independent claims 1 and 11 as merely intended use.
“Statements in the claims that define and limit the device are material
limitations, for purposes of. . . distinguishing from the prior art.” In re
Schreiber, 128 F.3d 1473, 1481 (Fed. Cir. 1997). In claims 1 and 11, the
stmcture of the claimed apparatuses is limited by the requirement that the
curved optical elements are exposed to the atmosphere and natural wind
currents, and the requirement that the airflow accelerator is configured to
guide airflow in a particular way. Thus, these limitations have stmctural
consequences and are not merely intended use.
A rejection under 35 U.S.C. § 102 requires that each claim element in
the prior art must be “arranged as in the claim.” Richardson v. Suzuki Motor
Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989). The Examiner has not shown
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Application 12/822,893
that the apparatus disclosed in Home is configured such that (1) the curved
mirrors would be exposed to natural wind currents, or (2) the “airflow
accelerator” identified by the Examiner guides airflow as recited in claims 1
or 11. Consequently, we reverse the Examiner’s rejection of claims 1 and
11. Because the Examiner’s rejection of the dependent claims under 35
U.S.C. § 102 does not cure this deficiency, we also reverse the Examiner’s
rejection of dependent claims 2, 4—6, 8—10, 12—19, 28—32, and 34—37 over
Home. We further reverse the Examiner’s rejection of claims 1, 2, 4—6, 8—
19, 28—32, and 34—37 under 35 U.S.C. § 103(a) as being unpatentable over
Home in view of Pauli, which relies on the same findings discussed above.
Rejections based on Wares
Figures 2 and 3 of Wares are reproduced below:
1 f
20 C y/' N'* A
''-■17 f/0 ■ , U • -j
'•\S 17 •'"
&'■
-i
H
2
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Appeal 2016-002829
Application 12/822,893
-< a of
fX. Sa*
4 .V x?/
26 -., f 7
Figures 2 and 3 depict, respectively, a sectional view of a photovoltaic
device and an enlarged three-dimensional view of a photovoltaic device.
See Wares Tflf 13—14. The device includes reflective element 17 comprising
reflective surface 16 and plate member 18. A photovoltaic assembly 20
comprises photovoltaic strip 30, cooling fins 40, and backing plates 36.
There is a convection gap 44 through fins 40. See id. 1135—40.
The Examiner identifies surfaces 16 as the first and second “optical
elements”, plate member 18 as the “airflow accelerator,” and photovoltaic
assembly 20 as the optoelectronic device in claim 1. See Final Action 30—
32; Answer 68. The Examiner also identifies convection gap 44 as the
“space between the second curved optical element and the optoelectronic
device.” Final Action 32—33. As with the Home-based rejections, the
Examiner states that “the limitations reciting air flow movement [are]
constmed as intended use.” Id. at 32.
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Application 12/822,893
Appellant argues that “Wares does not disclose a separate airflow
accelerator] that guides airflow between the reflector elements and the
receptors 30,” and “does not expressly or inherently disclose guiding at least
a portion of the airflow through a space between the second curved optical
element and the optoelectronic device, as recited in Claim 1Appeal Br.
23.
As discussed above, we disagree with the Examiner’s interpretation of
limitations in claim 1 relating to guiding airflow as mere intended use, as the
claimed structure must be configured to meet the functional air flow
requirements specified in the claim. Wares discloses that the underside of
each plate member 18 guides rising air through the cooling fins 40. See
Wares 140. However, the Examiner has not shown that airflow is directed
“towards the heat exchanger,. . . through a space between the second curved
optical element and the optoelectronic device” as required in claim 1, or the
equivalent limitation in claim 11.
The Examiner also points to a second embodiment in Wares, reflected
in Figure 11, as meeting the limitations of claim 1. See Answer 69—70.
According to the Examiner, this figure shows that “the airflow accelerator is
configured to guide at least a portion of the airflow through a space between
the second curved optical element and the airflow accelerator.” Id. at 70.
However, this finding does not correspond to the language of claim 1, which
requires airflow between the second curved optical element and “the
optoelectronic device.” See Appeal Br. 28. Thus, the Examiner has not
shown that either the embodiment in Figures 2 and 3, or the alternative
embodiment in Figure 11, discloses all the elements of claim 1. The
Examiner does not cure this deficiency in the rejection of claim 11 or the
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Appeal 2016-002829
Application 12/822,893
dependent claims under 35 U.S.C. § 102(e) over Wares, or the rejection of
claims 5, 8, 16, 19, and 35—37 under 35 U.S.C. § 103(a) over Wares. For the
above reasons, we reverse the Examiner’s rejections of claims 1, 2, 4—6, 8—
19, 28—32, and 34—37 over Wares.
DECISION
The Examiner’s decision is reversed.
REVERSED
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