Ex Parte Santucci

Patent Trials and Appeals Board

Mar 29, 2019

14592103 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/592,103 01/08/2015
96056 7590
Florek & Endres PLLC
1156 A venue of the Americas
Suite 600
New York, NY 10036
04/01/2019
FIRST NAMED INVENTOR
Roberto Santucci
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.
2048-029 8477
EXAMINER
LEO, LEONARD R
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
04/01/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERTO SANTUCCI
Appeal2018-007009
Application 14/592,103
Technology Center 3700
Before MICHAEL J. FIT ZP AT RICK, ANNETTE R. REIMERS, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
EurotecnicaMelamine ("Appellant") 1 appeals under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1--4, 6-12, and
14--17, which are all the pending claims. See Appeal Br. 5, 7; Final Act. 2.
We have jurisdiction over the appeal under 3 5 U.S. C. § 6(b ).
We AFFIRM.
EurotecnicaMelamine is the applicant, as provided in 37 C.F.R.
§ 1.46, and is identified as the real party in interest. Appeal Br. 3.
Appeal2018-007009
Application 14/592, 103
CLAIMED SUBJECT MATTER
Appellant's disclosed invention "refers to a tube heat exchange
assembly and an apparatus comprising such a heat exchange assembly." See
Spec., p. 1, 11. 5-7. Claim 1, reproduced below with emphasis added, is the
sole independent claim and is representative of the subject matter on appeal.
1. A tube heat exchange assembly comprising:
- a tube plate that has a frrst face which, in use
conditions, is facing inside a heat exchange chamber, and a
second face opposite to said frrst face and which, in use
conditions, is facing outside said heat exchange chamber[;]
- at least one through hole which passes through the
thickness of said tube plate[;]
- at least one heat exchange tube which passes through
said through hole and is operatively associated with a supply
circuit of a heat exchange fluid;
- a recirculation duct comprising one or more lateral
openings having a upper opening edge defining a length from
said frrst face of said tube plate; and
- at least one sleeve opened at opposite ends and fixed to
said tube plate and to said tube, said sleeve being housed in said
hole and fitted on said tube at of a section of the latter wherein
it crosses the thickness of the tube plate, wherein furthermore
said sleeve protrudes beyond said frrst face of the tube plate, so
that a frrst open end thereof ends inside said heat exchange
chamber, wherein said sleeve is welded to said tube plate by
just one frrst weld made between a body portion of said sleeve
and the edge of said hole, from the side of the frrst face of said
tube plate, so that said frrst weld is housed in said heat
exchange chamber, and wherein said sleeve has a portion that
protrudes inside said heat exchange chamber for a length
greater than the length of said one or more lateral openings of
the recirculation duct.
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Application 14/592, 103
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Young
Chapman
Smith
us 2,368,391
us 2,966,340
us 4,142,578
Jan. 30, 1945
Dec. 27, 1960
Mar. 6, 1979
Appellant's Admitted Prior Art ("AAP A") as shown in Figure 3
of the Drawings (identified and described as being prior art).
REJECTIONS
The following rejections are before us for review:
I. Claims 1, 3, 4, and 8-12 stand rejected under 35 U.S. C. § 103
as being unpatentable over AAP A, Young, and Smith. Final
Act. 3-7.
II. Claims 2, 6, 7, and 14--17 stand rejected under 35 U.S.C. § 103
as being unpatentable over AAP A, Young, Smith, and
Chapman. Id. at 7-8.
ANALYSIS
Rejection I- Claims 1, 3, 4, and 8-12 as unpatentable over
AAP A, Young, and Smith
Appellant presents arguments against the rejection of independent
claim 1, and expressly states that all the dependent claims will stand or fall
based on the arguments for independent claim 1. See Appeal Br. 7, 9-11.
We select claim 1 as representative of the issues that Appellant presents in
the appeal of this rejection, with claims 3, 4, and 8-12 standing or falling
therewith. See 37 C.F.R. § 41.37( c )(1 )(iv).
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Application 14/592, 103
The Examiner determines that a combination of teachings from
AAP A, Young, and Smith renders obvious the subject matter recited in
claim 1. See Final Act. 3---6. Appellant argues that the teachings from
Young and Smith are insufficient to suggest a sleeve as claimed-namely, a
sleeve that is interposed between a heat exchanger tube and tube plate, and
extends within the heat exchange chamber for a length greater than that of
one or more lateral openings in a recirculation duct of the heat exchanger.
See Appeal Br. 9-11; Reply Br. 2--4. These arguments are unpersuasive.
As to the teachings relied on for incorporating a sleeve into the heat
exchanger of AAP A, the Examiner fmds that Young teaches a sleeve,
interposed as claimed, for the purpose of providing a strongj oint between a
tube and a tube plate, but does not expressly disclose any particular
extension length for the sleeve. Final Act. 5 (citing Young, Figs. 2-3). For
such a length as claimed, the Examiner turns to Smith for teaching that it
was known to employ a protecting element ( such as a shield or sleeve) that
has a portion that protrudes inside the chamber for a length greater than that
of lateral openings, for the purpose of preventing erosion on the outside of
the tube. Id. at5---6 (citing Smith, Figs. 1-2; col. 3, 11. 60---62).
Appellant argues that Young does not teach a recirculation duct or
extending the length of its sleeve. See Appeal Br. 9-10. But the rejection
does not rely on Young for such teachings, and these arguments are thus
unpersuasive. Further, Appellant argues that Smith's disclosure of shield 36
is insufficient to convey relevant information regarding extending the length
of a sleeve, even though the protective purposes of these elements are
similar. See id. at 10-11. In short, Appellant does not apprise us of error in
the Examiner's logical explanation that a person having ordinary skill in the
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Appeal2018-007009
Application 14/592, 103
art "would appreciate the teaching of Smith to employ a sleeve length
having a portion with a length greater than the length of [a] lateral opening
opposed thereto," in an arrangement of a heat exchanger with a sleeve (from
AAP A and Young), "for the purpose of preventing erosion on the outside of
the tube, which would further improve tube integrity to preclude leakage or
mixing of fluids that would lead to a possible explosion in a reactor
environment." Ans. 10.
Moreover, Appellant's arguments do not identify error in the
Examiner's ultimate conclusion that the claimed subject matter as a whole
would have been obvious at the time the invention was made to a person
having ordinary skill in the art to which said subject matter pertains. See
35 U.S.C. § 103. We discern no shortcoming in the Examiner's reasoning
that a person having ordinary skill in the art would logically make a
protecting element ( the sleeve from Young) sufficiently long (protruding
greater than a length of a lateral opening in the recirculation duct from the
heat exchanger in AAP A) so to provide suitable protection-leaving a
protecting element shorter would presumably allow more contact to the tube
from flow out from the lateral openings, thereby undermining the protective
effectiveness of the element.
Further, Appellant does not persuasively explain how the Examiner's
combination of incorporating a protective sleeve ( from Young) having a
protruding length sufficient to protect an underlying tube against contact
from lateral outflow to prevent erosion (from Smith) in a known heat
exchanger (from AAP A) would have yielded unpredictable results or
somehow been beyond the level of ordinary skill in the art. See KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007); Final Act. 4---6; Ans. 10. In
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Application 14/592, 103
this regard, Appellant's assertions against Young and Smith not only
improperly focus on each reference individually (see Ans. 7), but they also
neglect to adequately consider that"[ a] person of ordinary skill is also a
person of ordinary creativity, not an automaton" (KSR Int 'l Co., 550 U.S.
at 421). The analysis under 35 U.S.C. § 103 presumes not only common
sense, but also skill in the art. See In re Sovish, 769 F.2d 738, 743 (Fed. Cir.
1985).
We note that any other arguments not specifically addressed in detail
herein have been thoroughly considered by the panel but are not persuasive
for the reasons well expressed in the Examiner's Answer. See Ans. 7-10.
After careful consideration of the record before us, Appellant's
arguments do not apprise us of error in the Examiner's factual findings,
which are supported by a preponderance of the evidence, or the Examiner's
reasonable conclusion of obviousness, which is rationally articulated based
on prior art teachings. In short, we sustain the rejection of claim 1 based on
the reasoned positions set forth therein, and in light of the Examiner's
thorough responses to Appellant's arguments. See Final Act. 3-7;
Ans. 7-10. Claims 3, 4, and 8-12 fall therewith.
Rejection II-Claims 2, 6, 7, and 14-17 as unpatentableover
AAP A, Young, Smith, and Chapman
Appellant refers to the arguments presented in the context of the
rejection of claim 1, discussed supra, adding only that "Chapman does not
remedy" the alleged deficiencies in the combination of AAP A, Young, and
Smith. Appeal Br. 11-12; see also id. at 7 (expressly stating that all the
dependent claims will stand or fall based on the arguments for independent
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claim 1 ). For the reasons discussed supra, we are unpersuaded of a
deficiency with respect to the combination of AAP A, Young, and Smith as
applied in the rejection of claim 1, such that Appellant's arguments do not
apprise us of error in the Examiner's findings or reasoning in support of the
conclusion of obviousness for this rejection. Accordingly, we likewise
sustain the rejection of claims 2, 6, 7, and 14--17.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1, 3, 4, and
8-12 under 35 U.S.C. § 103 as being unpatentable over AAP A, Young, and
Smith.
We AFFIRM the Examiner's decision rejecting claims 2, 6, 7, and
14--17 under 35 U.S. C. § 103 as being unpatentable over AAP A, Young,
Smith, and Chapman.
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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