Ex Parte Taylor

Patent Trial and Appeal Board

Jul 30, 2018

14879397 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/879,397 10/09/2015
26353 7590 08/01/2018
WESTINGHOUSE ELECTRIC COMPANY, LLC
1000 Westinghouse Drive
Suite 141
Cranberry Township, PA 16066
Creed Taylor
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.
NSD 2008-006 DIV 5173
EXAMINER
HOLLY,LEEA
ART UNIT PAPER NUMBER
3726
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
guerral@westinghouse.com
spadacjc@westinghouse.com
coldrerj@westinghouse.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CREED TAYLOR 1
Appeal2017-009744
Application 14/879,397
Technology Center 3700
Before LINDA E. HORNER, ANNETTE R. REIMERS, and
WILLIAM A. CAPP, Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge CAPP.
Opinion Concurring filed by Administrative Patent Judge HORNER.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant2 seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 1-5. We have jurisdiction under 3 5 U.S. C. § 6(b ).
We REVERSE.
THE INVENTION
Appellant's invention relates to heat exchangers. Spec. ,r 1. Claim 1
below, is illustrative of the subject matter on appeal.
1 The application identifies Westinghouse Electric Company LLC as the
Applicant and Creed Taylor as the Inventor.
2 Appellant identifies Westinghouse Electric Company LLC as the real-
party-in-interest. Br. 2.
Appeal2017-009744
Application 14/879,397
1. A method of cleaning or repairing a heat exchanger comprising:
an elongated pressure vessel shell having an axial dimension with a
removable head at one end of the axial dimension, a primary fluid inlet,
a primary fluid outlet, a secondary fluid inlet, a drain outlet and a heat
transfer assembly comprising:
a primary fluid inlet conduit extending into the pressure vessel from
the primary fluid inlet;
a primary fluid outlet conduit extending into the pressure vessel
from the primary fluid outlet; and
a plurality of pairs of heat transfer plates supported in tandem with
each of the pairs of plates sealed around a periphery to define a primary
flow channel in between a frrst and second heat transfer plate of each
pair, with each pair having a heat transfer plate inlet opening fluidly
connected either directly or indirectly to the primary fluid inlet conduit
and a heat transfer plate outlet opening fluidly connected either directly
or indirectly to the primary fluid outlet conduit to form a parallel flow
path with flow in the same direction through each of the pairs of heat
transfer plates in a direction orthogonal to the elongated dimension of
the pressure vessel shell; and
wherein the plurality of pairs of heat transfer plates are arranged in
tandem and at least some of the plurality of pairs of heat transfer plates
are respectively connected to an adjacent pair of heat transfer plates or
the primary fluid inlet or the primary fluid outlet with a
nondestructively removable mechanical coupling seal, whereby each
pair of the at least some of the pairs of heat transfer plates is
constructed to be disconnectable from the heat transfer assembly
without disturbing the nondestructively removable mechanical coupling
seal associated with any of the other nonadjacent pairs of heat transfer
plates;
the method comprising the steps of:
accessing the interior of the pressure vessel shell;
removing at least one pair of heat transfer plates from the heat
transfer assembly by uncoupling the corresponding nondestructive
mechanical coupling seal without having to uncouple the adjacent pairs
of heat transfer plates from a remaining pairs of heat transfer plates;
cleaning, repairing or replacing the removed pair(s) of heat transfer
plates; and
reconnecting the cleaned, repaired or replaced pair( s) of heat
transfer plates to the heat transfer assembly.
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Appeal2017-009744
Application 14/879,397
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Pellmyr
Borjesson
Finch
Kontu
us 2,938,712
us 4,128,125
US 2004/0188060 Al
US 6,918,433 B2
May 31, 1960
Dec. 5, 1978
Sept. 30, 2004
July 19, 2005
The following rejections are before us for review:
1. Claims 1 and2 arerejectedunder35 U.S.C. § 103 as being
unpatentable over Kontu and Finch.
2. Claims 3 and4 arerejectedunder35 U.S.C. § 103 as being
unpatentable over Kontu, Finch, and Pellmyr.
3. Claim 5 is rejected under 35 U.S.C. § 103 as being unpatentable
over Kontu, Finch, Pellmyr, and Borjesson.
Claim 1
OPINION
Unpatentability of Claims 1 and 2
over Kontu and Finch
The Examiner finds that Kontu discloses the claimed invention except
for the limitation directed to removing and uncoupling heat transfer plates.
Final Action 2--4. The Examiner relies on Finch as disclosing removable
heat transfer plates and concludes that it would have been obvious to provide
removable plates "in the elongated pressure vessel shell" ofKontu in
accordance with the teachings of Finch. Id. at 4. According to the
Examiner, a person of ordinary skill in the art would have done this to
inspect, clean, repair, or replace an individual heat exchanger plate. Id. The
Examiner further concludes that it would have been obvious to access the
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Application 14/879,397
interior of the pressure vessel shell to remove the plates for cleaning and
maintenance and to reconnect the plates after servicing. Id. at 4-5.
Appellant challenges the Examiner's determination that a person of
ordinary skill in the art would have combined the references in the manner
proposed by the Examiner. Br. 6-7. Appellant considers the different
means of attaching the plates to the remainder of the heat exchanger to be
mutually exclusive to that of claim 1. Id. at 7.
In response, the Examiner takes the position that the preamble to
claim 1 operates to limit the apparatus for which the claimed method steps
are practiced. Ans. 9. In other words, the method of claim 1 is limited to a
plate type heat transfer apparatus disposed in "an elongated pressure vessel."
Claims App., claim 1. The Examiner further explains:
The base reference attributed to Kontu teaches Applicant's
claimed structural limitation of a heat exchanger as well as
structural impediments that render servicing the Kontu heat
exchanger highly inefficient. A person of ordinary skill in the
art would be motivated to look to the prior art to improve upon
the structural limitations of Kontu when performing the method
steps of servicing the heat exchanger. Finch is relied upon to
cure the structural inefficiencies experienced when servicing
the Kontu heat exchanger by providing a means to efficiently
service individual components of the heat exchanger.
Ans. 9-10.
Finch is directed to a plate heat exchanger that includes a closure
system with a plurality of tie bar assemblies. Finch, Abstract. The heat
exchanger is "arranged and configured'' so that the heat transfer plates can
be removed from the plate heat exchanger without relocating any of the tie
bars. Id.
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Application 14/879,397
As an integral part of Finch's "arrangement and configuration," the
heat exchanger includes support frame 102 with head or frame plate 105 at
one end which is connected to enclosure 107 and driving mechanism 106 at
the other end. Id. ,r 35, Figs. 4--9. Finch's driving mechanism 106 operates
to move follower 111 to open and close the heat exchanger. Id. ,r,r 36-40.
When follower 111 is moved away from head 105 to an open position,
plates 104 can be moved apart for inspection. Id. ,r 51. The plates can then
be removed without disassembling the driving mechanism. Id. ,r 52.
Finch's ability to remove and replace plates is intricately intertwined
with operation of its driving mechanism and associated follower.
Appellant's invention entails transfer ofheat from extraction steam in a
nuclear power plant. Spec. ,r,r 12, 21, 22. Such steam enters the interior
volume of a pressure vessel. See Fig. 1 ( element 34 pressure vessel shell,
element 42 extraction steam inlet). There is no teaching or suggestion that
the driving mechanism and follower of Finch are operable within a pressure
vessel that receives steam. Neither is there any teaching or suggestion in
Kontu that a pressure vessel is operable if forced to allocate interior volume
to a driving mechanism. The Examiner's proposed combination cherry
picks the removable plates from Finch, but altogether fails to account for its
driving mechanism and follower aspects. The Examiner fails to explain how
the driving mechanism and follower can be disposed within a pressure
vessel. Moreover, the Examiner fails to explain how the proposed
combination: (1) would be otherwise operable without a driving mechanism
and follower: or (2) might be operable with some other suitable apparatus
that could perform the function thereof in an obvious manner.
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Application 14/879,397
The obviousness inquiry requires a determination that a skilled artisan
would have been motivated to combine the teachings of the prior art
references to achieve the claimed invention, and that the skilled artisan
would have had a reasonable expectation of success in doing so. Kinetic
Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed.
Cir. 2012). "The reasonable expectation of success requirement refers to the
likelihood of success in combining references to meet the limitations of the
claimed invention." Intelligent Bio-Systems, Inc. v. Illumina Cambridge
Ltd., 821 F.3d 1359, 1367 (Fed. Cir. 2016). In other words, "one must have
a motivation to combine accompanied by a reasonable expectation of
achieving what is claimed in the patent-at-issue." Id. Here, the Examiner
gives us no reason to believe that Finch's driving mechanism and follower
could be successfully disposed in a pressure vessel or that an operable
invention could be achieved without them.
"When prior art references require selective combination by the court
to render obvious a subsequent invention, there must be some reason for the
combination other than the hindsight gleaned from the invention itself."
Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1143 (Fed. Cir. 1985).
Otherwise, we "cannot use hindsight reconstruction to pick and choose
among isolated disclosures in the prior art to deprecate the claimed
invention." In re Fine, 837 F.2d 1071, 1075 (Fed. Cir. 1988). Here, the
Examiner's selection of just the removable plate feature of Finch to the
exclusion of the accompanying and interrelated driving mechanism and
follower smacks of hindsight reasoning.
In view of the foregoing, we do not sustain the Examiner's
unpatentability rejection of claim 1.
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Application 14/879,397
Claim2
Claim 2 depends from claim 1. Claims App. The Examiner's
rejection of claim 2 suffers from the same infrrmities that we have discussed
above with respect to claim 1. For the same reasons, we do not sustain the
rejection of claim 2.
Unpatentability of Claims 3 and 4 over
Kontu, Finch, and Pellmyr
Claim 3 is an independent claim that, like claim 1, is directed to a heat
exchanger disposed in an elongated pressure vessel. Claims App. Claim 4
depends therefrom. The Examiner's rejection of these claims suffers from
the same infrrmity that was identified above with respect to claim 1, which
infrrmity is not cured by reliance on the P ellmyr reference. Thus, for
essentially the same reason expressed above in connection with claim 1, we
do not sustain the rejection of claims 3 and 4.
Unpatentability of Claim 5 over
Kontu, Finch, Pellmyr, and Borjesson
Claim 5 depends from claim 3. Claims App. The Examiner's
rejection suffers from the same infrrmities that we have discussed above
with respect to claims 1 and 3, which infrrmity is not cured by reliance on
the Borj es son reference. Thus, for the same reasons expressed above in
connection with claims 1 and 3, we do not sustain the rejection of claim 5.
DECISION
The decision of the Examiner to reject claims 1-5 is reversed.
REVERSED
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Application 14/879,397
HORNER, Administrative Patent Judge, concurring.
I concur in the reversal of the Examiner's adverse decision as to
claims 1-5, but for reasons that differ from the majority. I do not understand
Appellant to have contested the Examiner's proposed modification of Kon tu
with the teaching of Finch. Specifically, I do not understand Appellant to
have asserted that Examiner relied on impermissible hindsight in proposing
the modification ofKontu with the teaching ofFinch. Further, Appellant
has not alleged that Finch's driving mechanism and follower could not be
successfully disposed in a pressure vessel or that the driving mechanism and
follower of Finch are inoperable within a pressure vessel. Thus, I would not
reverse the rejections on the reasoning presented by the majority. I write
separately to explain my reasons for not sustaining the rejections on appeal.
As I understand the arguments raised by Appellant in the Appeal
Brief, Appellant seeks reversal of the rejections because even if one having
ordinary skill in the art were to modify Kontu with the teachings of Finch as
proposed by the Examiner, the combined teachings would not render
obvious the claimed method. Specifically, Appellant argues that in both
Kontu and Finch, in order to remove a plate from the stack, the mechanical
coupling seals across all the plates in the stack must be broken. Br. 6-7
(arguing that Finch does not cure the deficiencies in Kontu). Appellant's
argument appears to be that the combination of Kontu and Finch would not
render obvious (1) the structure recited in the preamble of claim 1 that
requires "each pair of the at least some of the pairs of heat transfer plates is
constructed to be disconnectable from the heat transfer assembly without
disturbing the nondestructively removable mechanical coupling seal
associated with any of the other nonadjacent pairs of heat transfer plates,"
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Application 14/879,397
and (2) the step recited in claim 1 of"removing at least one pair of heat
transfer plates from the heat transfer assembly by uncoupling the
corresponding nondestructive mechanical coupling seal without having to
uncouple the adjacent pairs of heat transfer plates from a remaining pairs of
heat transfer plates." Br. 11-12, Claims App. (emphasis added).
The Examiner did not address this claim language in the Final
Action. In the Final Action, the Examiner found that Kontu teaches at least
some of its pairs of heat transfer plates 10 are connected to an adjacent pair
of heat transfer plates, or the primary fluid inlet, or the primary fluid outlet
with a nondestructively removable mechanical coupling seal (i.e., a flange
joint). Final Action 3-4 ( citing Kontu, Figs. 1-5, col. 3, 11. 25-29, col. 4,
11. 14-18). But, the Examiner did not fmd that in Kontu one can disconnect
a pair of plates from the heat transfer assembly without disturbing the
mechanical coupling seals associated with the other nonadjacent pairs of
heat transfer plates. Id.
Likewise, the Examiner failed to make such a fmding as to the
assembly in Finch. The Examiner found that Finch allows one to remove a
plate from a plate heat exchanger, but the Examiner did not fmd that in
Finch one can disconnect a pair of plates from the heat transfer assembly
without disturbing the mechanical coupling seals associated with the other
nonadjacent pairs of heat transfer plates. Id. at 4. In the Answer, in
response to Appellant's argument, the Examiner points to upper and lower
slots 104A, 104B in Finch's plates 104 as the mechanical coupling
seals. Ans. 12. The Examiner found that "Finch discloses a method of
removing a heat transfer plate of an elongated pressure vessel by simply
pivoting the heat transfer plate away from an upper beam of the pressure
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Application 14/879,397
vessel without uncoupling the remaining heat transfer plates of the pressure
vessel. Id. at 11. I disagree with the Examiner's fmding that slots 104A,
104B are the claimed mechanical coupling seals.
The claims recite that the nondestructively removable mechanical
coupling seals connect "at least some of the plurality of pairs of heat transfer
plates ... to an adjacent pair of heat transfer plates or the primary fluid inlet
ortheprimaryfluid outlet." AppealBr.11,Claims App. Finch's slots
104A, 104B do not act to seal anything and do not connect adjacent pairs of
heat transfer plates to each other or to a fluid inlet or outlet. Rather, Finch
describes a compression set of sealing gaskets between plates 104 that
perform this connecting function. Specifically, Finch states, "The plate
pack 103 is clamped together between the head 105 and the follower 111
when the heat exchanger 101 is closed and sealing gaskets (not shown)
between the plates 104 form separate passageways for fluids to flow through
the heat exchanger 101." Finch ,r 3 7 (boldface omitted); see also id. ,r 62
( describing a compression set of sealing gaskets between adjacent plates 104
of plate pack 103 ). Finch describes that when follower 111 is moved toward
the head 105, the closing force is designed to be sufficient to seal plate
pack 103 and prevent any leaks occurring. Id. ,r 5 5.
When follower 111 is moved away from head 105 to an open position,
the plates 104 can be moved apart for inspection. Id. ,r 51. Thus, movement
of follower 111 away from head 105 removes the closing force between all
of the plates 104 in plate pack 103, thereby disturbing the mechanical
coupling seal between each plate in the stack. Although Finch discloses
being able to remove a plate for cleaning and repair, to do so requires that
the seals between all of the plates in the plate pack are broken.
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Application 14/879,397
For this reason, I agree with Appellant that the Examiner has failed to
show how Kontu, if modified as proposed by the Examiner with the teaching
of Finch, would result in the claimed method. In particular, the Examiner
has not demonstrated that Kontu, as modified by Finch, would include each
pair of heat transfer plates constructed to be disconnectable from the heat
transfer assembly without disturbing the nondestructively removable
mechanical coupling seal associated with other nonadjacent pairs of heat
transfer plates. Thus, the Examiner has not demonstrated that performing a
method of cleaning or repairing the heat exchanger of Kon tu, as modified by
Finch, would include removing a pair of heat transfer plates from the heat
transfer assembly by uncoupling the corresponding nondestructive
mechanical coupling seal without having to uncouple the adjacent pairs of
heat transfer plates from a remaining pairs of heat transfer plates, as recited
in claim 1. For this reason, I would not sustain the rejection of claim 1, and
its dependent claim 2, under 35 U.S.C. § 103(a) as unpatentable overKontu
and Finch.
Independent claim 3 contains claim language similar to the limitations
discussed above in claim 1. In the rejection of independent claim 3 and its
dependent claims 4 and 5, the Examiner relies on the same findings as to the
disclosures of Kontu and Finch with respect to these similar claim
limitations as discussed above. Final Action 5-9. Thus, for the same
reasons, I would not sustain the rejections under 35 U.S.C. § 103(a) of
claims 3 and 4 as unpatentable over Kontu, Finch, and Pellmyr and of
claim 5 as unpatentable over Kontu, Finch, Pellmyr, and Borjesson.
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