Ex Parte Rafalovich et al

Patent Trial and Appeal Board

Jul 30, 2014

11780552 (P.T.A.B. Jul. 30, 2014)

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