Ex Parte Viegas et al

Patent Trial and Appeal Board

Oct 8, 2013

11549990 (P.T.A.B. Oct. 8, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte HERMAN H. VIEGAS, DAVID J. VANDER WOUDE,
SURESH KUMAR, and JOSEPH L. GLENTZ
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Appeal 2011-007887
Application 11/549,990
Technology Center 3700
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Before ANTON W. FETTING, PHILIP J. HOFFMANN, and
THOMAS F. SMEGAL, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-007887
Application 11/549,990

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-3 and 5-21.1 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The rejected claims are directed to a method of temperature control in
a cryogenic temperature control apparatus, as well as the apparatus itself,
which may be used to control the temperature of an air-conditioned space,
such as a cargo compartment of a vehicle (Spec. [0018]). Claims 1 and 10
are the sole independent claims.
EXEMPLARY CLAIM
Claim 1, reproduced below, is representative of the claims under
appeal.
1. A method of temperature control in a
cryogenic temperature control apparatus, the
method comprising:
operating the cryogenic temperature control
apparatus in a first mode;
delivering a first flow rate of cryogen from a
storage tank to an evaporator coil in the first mode;
operating the cryogenic temperature control
apparatus in a second mode after operating the
cryogenic temperature control apparatus in the first
mode for a predetermined time duration; and

1 Our decision will refer to Appellants’ Specification (“Spec.,” filed October
17, 2006), Appeal Brief (“App. Br.,” filed November 19, 2010), and Reply
Brief (“Reply Br.,” filed March 18, 2011), as well as the Examiner’s Answer
(“Ans.,” mailed January 21, 2001).

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Application 11/549,990

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delivering a second flow rate of cryogen that
is lower than the first flow rate to the evaporator
coil in the second mode.
THE REJECTIONS
The Examiner rejects the claims as follows:
Claims 1, 2, 5, 8-12, 14-17, 20, and 21 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Putman (US 3,058,317, iss. Oct. 16, 1962);
claims 1, 10, 20, and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Putman; and
claims 3, 6, 7, 9, 13, 18, and 19 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Putman in view of VanderWoude (US 6,631,621 B2,
iss. Oct. 14, 2003).
ANALYSIS
The anticipation rejection of the claims
The Examiner rejects independent claim 1 as anticipated by Putman.
Appellants argue the rejection is in error because Putman does not teach the
claim limitations of “delivering a first flow rate of cryogen from a storage
tank to an evaporator coil in the first mode; . . . and delivering a second flow
rate of cryogen that is lower than the first flow rate to the evaporator coil in
the second mode” as required by claim 1. The Examiner states that
Putman teaches . . . a first mode (a time during
which valve 102 is open, delivering fluid from 92
to coil 91; column 7, lines 35-40); delivering a first
flow rate of cryogen from a storage tank (92) to an
evaporator coil (91) in the first mode; . . . and
delivering a second flow rate of cryogen (zero[,] or
any rate less than the first during closing of valve)
that is lower than the first flow rate to the
Appeal 2011-007887
Application 11/549,990

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evaporator coil (91) in the second mode (time of
valve 102 closed or closing)
(Ans. 3-4, italics added; see also Ans. 9-15). We agree with Appellants,
however, that the Examiner has not established that zero flow through the
valve in Putman teaches the claimed second flow rate. As stated by
Appellants, “[n]ot delivering a gas to the coil is completely different from
delivering a second flow rate (i.e., a non[-]zero flow rate) in the second
mode. Delivering a second flow rate of cryogen inherently means that a
non-zero flow rate exists in the second mode” (App. Br. 10). Consistent
with Appellants’ remarks, the claim requires “delivering a second flow rate
of cryogen that is lower than the first flow rate to the evaporator coil”
(italics added). In contrast, a zero flow rate of cryogen through the valve of
Putman would not deliver any cryogen to the evaporator coil, contrary to the
requirements of claim 1.
We also agree with Appellants that the Examiner has not established
that Putman teaches delivery of a second flow rate during closing of the
valve (Ans. 3), or that such a second flow is inherent (Ans. 10). As
Appellants point out,
Putman is completely silent regarding operation of
the heat exchanger arrangement during closing of
the valve 102. There is no teaching or suggestion
of such a mode in Putman. . . . It is wholly
inadequate for the Examiner to merely state that
the heat exchanger arrangement of Putman delivers
a second flow rate of cryogen in a second mode
when the valve of Putman is closed or in the
process of closing when a simple review of
Putman shows that no such mode exists
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(App. Br. 10-11). The Examiner does not point to any specific portion of
Putman to teach a second flow rate during movement of the valve. Further,
[t]o establish inherency, the extrinsic evidence must make clear
that the missing descriptive matter is necessarily present in the
thing described in the reference, and that it would be so
recognized by persons of ordinary skill. Inherency, however,
may not be established by probabilities or possibilities. The
mere fact that a certain thing may result from a given set of
circumstances is not sufficient.
In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations omitted)
(internal quotation marks omitted). Even assuming arguendo that opening
and closing the valve in Putman results in a second flow rate through the
valve, which has not been established by the Examiner, the Examiner still
has not established that Putman teaches “delivering a second flow rate of
cryogen that is lower than the first flow rate to the evaporator coil” as
required by the claim (italics added). The flow rate of cryogen delivered to
the evaporator coil may depend on factors other than the flow rate of
cryogen through the valve, such that the flow rate of cryogen to the
evaporator coil may still be the same despite a change in flow rate through
the valve due to closing of the valve.
Thus, based on the foregoing, we do not sustain the rejection of claim
1 as anticipated by Putman. Independent claim 10 recites similar limitations,
and the Examiner’s rejection and Appellants’ arguments are similar to those
set forth above for claim 1. Therefore, we do not sustain the rejection of
independent claim 10. We also do not sustain the rejection of claims 2, 5, 8,
9, 11, 12, 14-17, 20, and 21 that depend from the independent claims.
Appeal 2011-007887
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The obviousness rejections of the claims
In the Examiner’s obviousness rejection of independent claim 1, the
Examiner presumably relies on the above-discussed reasoning with respect
to the claim limitations of “delivering a second flow rate of cryogen that is
lower than the first flow rate to the evaporator coil” (Ans. 7). Thus, we do
not sustain the rejection of independent claim 1 for reasons similar to those
discussed above.
Because we do not sustain the rejection of independent claim 1, we
also do not sustain the rejection of independent claim 10, or the rejections of
dependent claims 3, 6, 7, 9, 13, and 18-21.
DECISION
The Examiner’s rejections of claims 1-3 and 5-21 are REVERSED.

REVERSED

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