Ex Parte Rafalovich et alDownload PDFPatent Trial and Appeal BoardJul 30, 201411780552 (P.T.A.B. Jul. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALEXANDER PINKUS RAFALOVICH and ZIQIANG HU ____________ Appeal 2012-003279 Application 11/780,5521 Technology Center 3700 ____________ Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and THOMAS F. SMEGAL, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–7, 12, 14–16, and 21–24. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appellants, “[t]he real party in interest is General Electric Company” (App. Br. 2). Appeal 2012-003279 Application 11/780,552 2 Claimed Subject Matter Claims 1, 12, and 23 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A refrigerator comprising: a storage compartment defining therein an interior volume; a plenum having a first outlet, a second outlet and an inlet disposed between the first outlet and the second outlet, the plenum being in fluid communication with the interior volume through the first outlet, the second outlet and the inlet; and an evaporator disposed in the plenum, the evaporator comprising a plurality of coils, a first section with a first coil density which is disposed between the first outlet and the inlet, a second section with a second coil density which is disposed between the second outlet and the inlet, and a third section with a third coil density which is disposed between the first section and the second section and adjacent to the inlet, wherein each of the first coil density and the second coil density is greater than the third coil density. Rejections I. Claims 1–6 are rejected under 35 U.S.C. § 103(a) as unpatentable over Shearer (US 2,794,325, iss. June 4, 1957) and Occhipinti (EP 1 403 593 A2, pub. Mar. 31, 2004). II. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over Shearer, Occhipinti, and Holz (US 2003/0000241 A1, pub. Jan. 2, 2003). III. Claims 12, 14–16, 21, and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over Shearer and Holz. IV. Claims 22 and 24 are rejected under 35 U.S.C. § 103(a) as unpatentable over Shearer, Holz, and Chang (US 5,921,104, iss. July 13, 1999). Appeal 2012-003279 Application 11/780,552 3 ANALYSIS Rejections I and II The Appellants contend that the Examiner’s rejection of independent claim 1 is based on impermissible hindsight. See App. Br. 7–10, Reply Br. 4. The Appellants’ contention is persuasive. The Examiner’s rejection is based on a finding that Shearer’s evaporator has three sections: a first section (evaporator) 37, a second section (evaporator) 38, and a third section disposed between the first and second sections. Ans. 5, 6. The first section 37 and the second section 38 are depicted in Shearer’s Figure 3. The Examiner finds that first section 37 has a first coil density, which is correct, but second section 38 lacks a second coil density (id. at 5), which is incorrect. Both sections 37 and 38 are coils, and as such, both have coil densities. The Examiner identifies the third section by annotating Shearer’s Figure 3. Id. at 6. Notably, the identified “third section,” which appears to be a straight pipe, is not a coil. See Reply Br. 3. Contra Ans. 15 (the Examiner states, “clearly there is a coil between [(first section)] evaporator 37 and [(second section)] evaporator 38”). The Examiner also finds “Shearer fails to explicitly teach . . . a third section with a third coil density or wherein each of the first coil density and the second coil density is greater than the third coil density.” Id. at 5. To remedy this deficiency of Shearer with respect to the limitation of claim 1, the Examiner turns to Occhipinti’s disclosure. Id. The Examiner replaces Shearer’s evaporator, including its identified three sections, with Occhipinti’s heat exchanger 215, having a first coil section 210, second coil section 211, and third coil section 212. Id. (citing Occhipinti, fig. 5). More specifically, the Examiner concludes: Appeal 2012-003279 Application 11/780,552 4 [i]t would have been obvious to a person of ordinary skill in the art at the time of invention to modify Shearer with the teachings of Occhipinti to include a heat exchanger that can be used as an evaporator with three coil densities, that when installed with Shearer to replace the evaporator of Shearer, the first coil section would be disposed between the first outlet and the inlet, the second section would be disposed between the second outlet and the inlet, and the third section would be disposed between the first and second sections and adjacent to the inlet in order to create a refrigeration compartment that is able to store different types of food at different temperatures, due to the different coil densities and rates of heat transfer within the different coil densities. In this manner, items that need to be stored at different temperatures can be stored all within one compartment, reducing the footprint of the refrigerator. A person of ordinary skill in the art would have known to design the densities of the evaporator coils based on the cooling need desired within a refrigeration compartment, as the density is directly related to the rate of heat transfer and efficiency of the heat exchanger. Id. at 5–6 (emphasis added). In response, the Appellants correctly point out that fan 43 is located within passageway 18 between Shearer’s first section 37 and second section 38 and “there does not appear to be any coils between [the first section] 37 and [the section section] 38.” App. Br. 8; see Shearer, col. 2, ll. 69–72 and figs. 2, 3. The Appellants assert, “it is unclear from this reference [(Shearer)] whether there would be a reason for placing any coils at the location of fan/blower 43, much less a reason for making such coils have a lower coil density than those in evaporators[, i.e., first and second sections,] 37, 38.” Id. We agree with the Appellants’ assertion. In response the Examiner explains, “Shearer is not being used to teach any coil at the location of the fan/blower 43.” Ans. 15. However, because the Examiner’s reasoning is based on Occhipinti’s heat exchanger 215 Appeal 2012-003279 Application 11/780,552 5 replacing Shearer’s evaporator, then Occhipinti’s first coil section 210 would replace Shearer’s first section 37, Occhipinti’s second coil section 211 would replace Shearer’s second section 38, and Occhipinti’s third coil section 212 would replace Shearer’s third section. Accordingly, because Occhipinti’s coil is continuous Occhipinti’s third coil section 212 would be adjacent to fan 43. However, proximity of a coil to fan 43 is a consideration for Shearer’s refrigerated display case, as Shearer’s third section appears to displaced to the side to create space for fan 43 (see Shearer, figs. 2, 3). Hence, the viability of the placement of a coil in a space occupied in whole or in-part by fan 43 is questionable. Further, the Appellants persuasively argue that the reasoning for the replacement, proffered by the Examiner, “in order to create a refrigeration compartment that is able to store different types of food at different temperatures” (Ans. 6), “is actually simply a restatement of Appellants’ disclosed advantage[s].” Reply Br. 4; see Spec. paras. 24, 25. For the reasons discussed above, the Examiner’s reasoning does not show that a person of ordinary skill would reasonably be expected to replace the Shearer’s evaporators with Occhipinti’s heat exchanger 215 without the benefit of impermissible hindsight. Thus, the Examiner’s rejection of claim 1, and claims 2–6, which depend therefrom, as unpatentable over Shearer and Occhipinti is not sustained. The Examiner’s rejection of claim 7, which depends from claim 1, is based on Shearer and Occhipinti in combination with Holz and relies on the same flawed reasoning discussed above with regard to the rejection of claim 1. Thus, the Examiner’s rejection of claim 7 is not sustained. Appeal 2012-003279 Application 11/780,552 6 Rejections III and IV The Appellants contend that the Examiner’s rejection is based on impermissible hindsight. See App. Br. 10–12. Notably, the Appellants point out that “claims 12 and 23 only cool a single compartment (freezer and fresh food, respectively)” and that “the evaporator system of Holz cools two different compartments separated by a wall 12.” Reply Br. 5; see App. Br., Claims App’x. The Appellants’ contention is persuasive. For the rejection of claim 12, the Examiner finds “Shearer fails to explicitly teach a freezer compartment, . . . wherein [an] evaporator is used to cool the freezer compartment only.” Ans. 9 (emphasis added). To remedy this deficiency with regard to claim 12, the Examiner turns to Holz. Id. at 9–10. The Examiner finds Holz’s discloses “an evaporator . . . comprising a first section 14 and a second section 19” where “the first and second section [is] configured to provide different levels of cooling (paragraphs 23-24).” Id.; Holz, figs. 1, 2. However, as pointed out by the Appellants: Holz merely discloses using an evaporator 14 to cool the cooling compartment 13, and the evaporator 18 to cool the freezer compartment 17. In other words, Holz teaches using two evaporators to cool two separate compartments, respectively. However, nowhere does Holz disclose, teach or suggest using two sections of a single evaporator, which are configured to provide different levels of cooling to the same interior volume via a first outlet and a second outlet, as now expressly recited in claim 12 of the present application. App. Br. 11 (emphasis omitted). The Examiner then determines, without citing to either Shearer or Holz, “[t]he technique of operating different sections of an evaporator allows for more accurate temperature control within a compartment, due to the fact Appeal 2012-003279 Application 11/780,552 7 that the amount of refrigerant discharged to the sections of the evaporator can be controlled.” Ans. 10. The Examiner then appears to modify Holz’s disclosure, i.e., the secondary reference, by concluding: Furthermore[,] it would have been obvious to a person of ordinary skill in the art to utilize the evaporator as disclosed by Holz in a freezer compartment so that the evaporator is used to cool the freezer compartment only so that a temperature gradient may exist within the freezer compartment, resulting in a user to have the ability to cool items that do not need to be completely frozen and completely freeze items within the same compartment. This allows a user to store different types of food items within the same compartment, thereby reducing the footprint of the refrigerator. Id. However, the Examiner’s determination and modification of Holz, which results in a single compartment with a temperature gradient having the ability to cool items that do not need to be completely frozen and completely freeze items within the same compartment, is based upon reasoning that lacks adequate factual support. Moreover, the Examiner’s reasoning does not show that a person of ordinary skill would have reasonably expected to modify Shearer with the teachings of Holz to render subject matter of claim 12 obvious without the benefit of impermissible hindsight. Thus, the Examiner’s rejection of claim 12, and claims 14–16 and 22, which depend therefrom, as unpatentable over Shearer and Holz is not sustained. The Examiner’s rejection of claim 23 is similar to the rejection of claim 12. See Ans. 11–13. Thus, for reasons similar to those discussed above with regard to the rejection of claim 12, the Examiner’s rejection of claim 23 is not sustained. Appeal 2012-003279 Application 11/780,552 8 The Examiner’s rejection of claims 22 and 24, which depend from claims 12 and 23 respectively, is based on Shearer and Holz in combination with Chang and relies on the same inadequately supported findings and flawed reasoning discussed above with regard to the rejection of claims 12 and 23. Thus, the Examiner’s rejection of claims 22 and 24 is not sustained. DECISION We REVERSE the rejections of claims 1–7, 12, 14–16, and 21–24. REVERSED Klh Copy with citationCopy as parenthetical citation