Ex Parte Wang et al

Patent Trials and Appeals Board

Jul 9, 2019

13703023 - (D) (P.T.A.B. Jul. 9, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/703,023 12/09/2012
50791 7590 07/10/2019
BACHMAN & LAPOINTE, P.C. (UTC)
900 CHAPEL STREET
SUITE 1201
NEW HAVEN, CT 06510-2802
FIRST NAMED INVENTOR
Jinliang Wang
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.
54143US02 (10-106-2) 5164
EXAMINER
OSWALD, KIRSTIN U
ART UNIT PAPER NUMBER
3763
MAIL DATE DELIVERY MODE
07/10/2019 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 STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JINLIANG WANG and P ARMESH VERMA
Appeal 2017-008481 1
Application 13/703,023 2
Technology Center 3700
Before JAMES P. CALVE, WILLIAM A. CAPP, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
FINAMORE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 1-15. An oral hearing was held on
April 25, 2019.
We have jurisdiction under 35 U.S.C. § 6(b ). We affirm.
1 We reference herein the Specification filed December 9, 2012 ("Spec."),
Final Office Action mailed May 11, 2016 ("Final Act."), Appeal Brief filed
October 11, 2016 ("Appeal Br."), Examiner's Answer mailed March 13,
2017 ("Ans."), and Reply Brief filed May 15, 2017 ("Reply Br.").
2 Appellants identify Carrier Corporation, a wholly owned subsidiary of
United Technologies Corporation, as the real party in interest. Appeal Br. 2.
Appeal2017-008481
Application 13/703,023
SUBJECT MATTER ON APPEAL
The invention "relates to ejector refrigeration systems." Spec. ,r 2.
Independent claim 1 is illustrative of the claimed subject matter, and we
reproduce it below, emphasizing the pertinent limitation on appeal:
1. A system (200) comprising:
a compressor (22);
a heat rejection heat exchanger (30) coupled to the
compressor to receive refrigerant compressed by the compressor;
a first ejector (38) having:
a primary inlet ( 40) coupled to the heat rejection
heat exchanger to receive refrigerant;
a secondary inlet (42); and
an outlet (44);
a first separator ( 48) having:
an inlet (58) coupled to the outlet of the first ejector
to receive refrigerant from the first ejector;
a gas outlet (54) coupled to the compressor to return
refrigerant to the compressor; and
a liquid outlet (52);
a first heat absorption heat exchanger (64) coupled to the
liquid outlet of the first separator to receive refrigerant and
coupled to the secondary inlet of the first ejector to deliver
refrigerant to the first ejector;
a second ejector (202) having:
a primary inlet (204) coupled to the liquid outlet of
the first separator to receive refrigerant;
a secondary inlet (206); and
an outlet (208);
a second separator (210) having:
an inlet (212) coupled to the outlet of the second
ejector to receive refrigerant from the second ejector;
a gas outlet (216) coupled to the compressor to
return refrigerant to the compressor; and
a liquid outlet (214 ); and
a second heat absorption heat exchanger (220) coupled to
the liquid outlet of the second separator to receive refrigerant and
to the secondary inlet of the second ejector to deliver refrigerant.
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Application 13/703,023
Appeal Br., Claims App. ( emphasis added).
REJECTIONS
The Examiner rejects the claims on appeal as follows:
claims 1, 2, 4--8, and 10-15 under 35 U.S.C. § I03(a) as unpatentable
over Tsuneyoshi3 and Ohta4;
claim 3 under 35 U.S.C. § I03(a) as unpatentable over Tsuneyoshi,
Ohta, and Dubitzky5; and
claim 9 under 35 U.S.C. § I03(a) as unpatentable over Tsuneyoshi,
Ohta, and Ogata6•
ANALYSIS
Obviousness based on Tsuneyoshi and Ohta
Independent claim 1
Independent claim 1 requires, inter alia, two heat absorption heat
exchangers respectively coupled to a separator and an ejector. Appeal Br.,
Claims App. Namely, the claim recites "a first heat absorption heat
exchanger ( 64) coupled to the liquid outlet of the first separator to receive
refrigerant and coupled to the secondary inlet of the first ejector to deliver
refrigerant to the first ejector" and "a second heat absorption heat
exchanger (220) coupled to the liquid outlet of the second separator to
3 JP2001221517 A, published Aug. 17, 2001. All citations to Tsuneyoshi
refer to the English language translation the Examiner provided on
February 8, 2016.
4 US 2004/0123624 Al, published July 1, 2004.
5 US 2,931,190, issued Apr. 5, 1960.
6 US 2009/0229304 Al, published Sept. 17, 2009.
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Application 13/703,023
receive refrigerant and to the secondary inlet of the second ejector to deliver
refrigerant." Id.
In rejecting independent claim 1, the Examiner finds Tsuneyoshi
discloses substantially all of the limitations of the claim. Final Act. 5 ( citing
Tsuneyoshi, Fig. 1 ). In particular, the Examiner finds Tsuneyoshi discloses
the recited first and second separators, first and second ejectors, and second
heat absorption heat exchanger coupled to the second separator and second
ejector, but does not disclose the recited first heat absorption heat exchanger
which coupled to the first separator and first ejector. Id. at 5---6 (citing
Tsuneyoshi, Fig. 1). We reproduce Tsuneyoshi's Figure 1 below, with our
annotations to show the Examiner's findings.
9
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t;1=~~s
(JUt!t~t
a.::;. ____ :.i s~~i:::t:;n(i hi!at absorptit)n
h~:-.~:;t f~::{ch.an9f·r
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Application 13/703,023
Figure 1 of Tsuneyoshi shows a refrigeration cycle. Tsuneyoshi, Brief
Description of the Drawings. As annotated, Tsuneyoshi's Figure 1 shows
first separator 4, first ejector 3, second separator 6, second ejector 5, and
second heat absorption heat exchanger 7.
The Examiner further finds Ohta's evaporator 31 teaches the recited
first heat absorption heat exchanger. Final Act. 6 (citing Ohta, Fig. 3). We
reproduce Ohta's Figure 3 below, with our annotations to show this finding.
20
\ 110
l
."'
~
Figure 3 of Ohta is a schematic diagram showing a vapor-compression
refrigerant cycle system. Ohta ,r 16. As annotated, Ohta's Figure 3 shows a
refrigerant cycle system having first and second heat absorption heat
exchangers 31 and 32, respectively. First heat absorption heat exchanger 31
is coupled to first separator 60 and first ejector 70. The Examiner then
determines it would have been obvious to modify Tsuneyoshi to include a
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Application 13/703,023
first heat absorption heat exchanger coupled to the first separator and first
ejector, as taught by Ohta, to advantageously utilize a separate evaporator,
i.e., heat exchanger, to provide zoned or separate area cooling at a different
temperature. Final Act. 6 (citing Ohta ,r 24).
Appellants argue the Examiner has not identified a specific
modification to Tsuneyoshi, thereby depriving Appellants of an opportunity
to rebut the rejection. Appeal Br. 22-25; Reply Br. 36-40. In particular,
Appellants refer to a schematic they provided to illustrate the Examiner's
proposed modification to Tsuneyoshi, and assert the Examiner's refusal to
acknowledge the schematic evinces the Examiner's alleged failure to
identify the proposed modification. Appeal Br. 23; Reply Br. 36, 39-40.
Appellants' argument is not persuasive because the Examiner's rejection
notifies Appellants of the proposed modification to Tsuneyoshi.
The rejection informs that the Examiner finds Tsuneyoshi discloses
every limitation of independent claim 1, including a first separator and a first
ejector, but does not disclose a first heat absorption heat exchanger coupled
to the first separator and first ejector. Final Act. 5---6. The rejection also
notifies that the Examiner is relying on Ohta's evaporator 31 coupled to
separator 60 and ejector 70 for teaching the first heat absorption heat
exchanger. Id. at 6. The rejection further notifies that it would have been
obvious to modify Tsuneyoshi to include Ohta's evaporator "to
advantageously utilize a separate evaporator to provide zoned or separate
area cooling at a different temperature." Id. Thus, as set forth in the
rejection, the Examiner proposes to modify Tsuneyoshi's teachings to
include a first heat exchanger coupled to the first separator and first ejector,
as taught by Ohta, to provide zoned cooling. As the Examiner's rejection
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identifies the proposed modification to Tsuneyoshi, Appellants' assertion
regarding the Examiner's refusal to acknowledge their schematic
purportedly illustrating the proposed modification does not apprise us of
Examiner error.
Although Appellants allege the Examiner has not explained the
proposed modification to Tsuneyoshi, Appellants' understanding of the
proposed modification is manifested in their arguments against it. The fact
that an argument is not persuasive does not mean it is based on a
misunderstanding resulting from a lack of explanation.
Appellants also argue the Examiner has not made a threshold showing
that Tsuneyoshi and Ohta are analogous art to the claimed invention.
Appeal Br. 26; Reply Br. 35. We disagree. In the Answer, the Examiner
finds Tsuneyoshi and Ohta are analogous art, and we adopt these findings.
Ans. 7. In particular, we agree with the Examiner that Tsuneyoshi and Ohta
are in the same field as the inventors' endeavor. The Specification explains
the invention "relates to refrigeration," and"[ m Jore particularly, it relates to
ejector refrigeration systems." Spec. ,r 2. Tsuneyoshi "relates to a
refrigerating cycle" (Tsuneyoshi ,r 2), and discloses a refrigeration cycle
having ejectors 3, 5 (id., Brief Description of the Drawings, Fig. 1).
Similarly, Ohta "relates to a vapor-compression refrigerant cycle system"
(Ohta ,r 2), and teaches a refrigeration cycle with ejectors 70, 71 (id. ,r 54,
Fig. 3).
Appellants further contend that a person of ordinary skill in the art
would not have combined the teachings Tsuneyoshi and Ohta as the
Examiner proposes, i.e., modify Tsuneyoshi to include Ohta's heat
absorption heat exchanger, because Ohta's heat absorption heat exchanger is
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not found in an analogous situation within Ohta to the situation present in
Tsuneyoshi. Appeal Br. 10-21, 25-27; Reply Br. 31-36. According to
Appellants, Tsuneyoshi discloses refrigeration cycles that are used for air
conditioning and have a single heat absorption heat exchanger, whereas Ohta
teaches refrigeration cycles that have two heat absorption heat exchangers
and are used in a vehicle including a refrigerator to provide separate or
zoned cooling to the passenger compartment and the refrigerator.
Appeal Br. 10-13 (citing Tsuneyoshi ,r 21, Ohta ,r,r 21, 24--25). Appellants
additionally assert paragraph 24 of Ohta does not provide a reason for the
Examiner's proposed combination of Tsuneyoshi and Ohta because any
teaching in this paragraph is pertinent to only Ohta's refrigeration cycles,
which have two heat absorption heat exchangers. Reply Br. 33. In view of
the disparate teachings of Tsuneyoshi and Ohta and the alleged lack of a
reason for the proposed combination, Appellants argue the Examiner's
proposed combination is impermissibly based on hindsight.
Appeal Br. 18-21; Reply Br. 31-3 7. Appellants' arguments do not apprise
us of error.
As set forth above, the Examiner finds paragraph 24 of Ohta provides
a reason to modify Tsuneyoshi to include an additional heat absorption heat
exchanger, as taught by Ohta, namely "to advantageously utilize a separate
evaporator to provide zoned or separate area cooling at a different
temperature." Final Act. 5 (citing Ohta ,r 24). According to paragraph 24, a
first heat exchanger is used to a cool the passenger compartment of a
vehicle, and a second exchanger is used to cool the refrigerator. There is no
dispute that paragraph 24 teaches using two heat exchangers to provide
zoned cooling.
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The Examiner's reason for the proposed combination of Tsuneyoshi
and Ohta is not based on Ohta's heat absorption heat exchanger being in a
situation analogous to one in Tsuneyoshi. Rather, the Examiner proposes to
add another heat absorption heat exchanger to Tsuneyoshi to provide zoned
cooling, an ability that would not have been attainable with Tsuneyoshi's
refrigeration cycle having only a single heat absorption heat exchanger.
More simply put, Examiner proposes to modify Tsuneyoshi's refrigeration
cycle from utilizing only a single heat absorption heat exchanger to using
two heat absorption heat exchangers to provide zoned cooling.
We agree with the Examiner that a person of ordinary skill in the art
would have modified Tsuneyoshi's disclosed refrigeration cycle to include
another heat exchanger to provide zoned cooling, as zoned cooling provides
more flexibility and specific temperature control. See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007) ("[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.''). Thus, the
Examiner's reason is based on imparting a known improvement to
Tsuneyoshi's refrigeration cycle, not hindsight.
Appellants also contend the teachings of Tsuneyoshi and Ohta would
direct a person of ordinary skill in the art to make a different combination
than the one the Examiner proposes, as evidenced by the Declaration of
Parmesh Verma. Appeal Br. 10, 25-26; Reply Br. 32. Namely, Appellants
allege:
[E]ven with an artificial instruction to start with Tsuneyoshi et
al. and add a second heat absorption heat exchanger based on the
teaching of [0024] of Ohta et al., one would not make the
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modification the [E]xaminer env1s10ns. Instead, one would
proceed with modifications discussed in Section 11 b) of the
Rule 13 2 Declaration.
Reply Br. 32. However, the fact that a person of ordinary skill in the art may
have made a different combination of the teachings of Tsuneyoshi and Ohta
does not apprise us of error in the Examiner's proposed combination. See In
re Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004) ("[O]ur case law does not
require that a particular combination must be the preferred, or the most
desirable, combination described in the prior art in order to provide
motivation for the current invention."). As set forth above, the known
ability of a refrigeration cycle having two heat absorption heat exchangers to
provide zoned cooling, as taught in Ohta's paragraph 24, would have
motivated a person of ordinary skill in the art to modify Tsuneyoshi's
disclosure to include an additional heat absorption heat exchanger, namely
Ohta's heat exchanger coupled to a separator and an ejector, thereby
resulting in the subject matter of independent claim 1.
In sum, we disagree with Appellants that the Examiner proposes "to
put a second heat absorption heat exchanger into Tsuneyoshi et al. in some
utterly unsupported way and for some utterly unsupported purpose
uncoupled from the actual uses of the two disclosed apparatus and the
specific purposes of the Ohta et al. feature." Appeal Br. 25. Rather, as set
forth above, the Examiner proposes to modify Tsuneyoshi's disclosure to
add Ohta's heat absorption heat exchanger, which is coupled to a separator
and an ejector, and similarly couple the added heat absorption heat
exchanger to Tsuneyoshi's first separator and first ejector. Final Act. 5---6.
The Examiner reasons such a modification would have been obvious
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because Ohta teaches it is known to use two heat exchangers to provide
zoned cooling. Id. at 6 (citing Ohta ,r 24).
In view of the foregoing, Appellants do not apprise us of error in the
Examiner's rejection of independent claim 1. We, therefore, sustain the
rejection of independent claim 1.
Claims 4---6 depend from independent claim 1. Appeal Br.,
Claims App. Appellants do not present arguments for these claims apart
from the arguments for independent claim 1. Accordingly, for the same
reasons as independent claim 1, we sustain the rejection of claims 4--6.
Claims 2, 7, 8, and 10-15
Appellants argue the Examiner's alleged failure to identify a specific
modification to Tsuneyoshi with respect to independent claim 1 deprives
Appellants the opportunity to present arguments for claims 2, 7, 8, and
10-15. Appeal Br. 28-29. As set forth above, however, the Examiner's
rejection of independent claim 1 identifies the proposed modification to
Tsuneyoshi, namely to add a first heat absorption heat exchanger coupled to
the first separator and first ejector, as taught by Ohta, to provide zoned
cooling. Final Act. 5---6. The Examiner similarly explains how the
combined teachings of Tsuneyoshi and Ohta would have resulted in the
subject matter of these claims. Id. at 6-11.
Thus, Appellants do not apprise us of error in the Examiner's rejection
of claims 2, 7, 8, and 10-15. Accordingly, we sustain the rejection of these
claims.
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Obviousness based on Tsuneyoshi, Ohta, and Dubitzky
Appellants argue Dubitzky does not cure the alleged deficiencies in
the rejection based on the combination of Tsuneyoshi and Ohta.
Appeal Br. 29. As set forth above, Appellants do not apprise us of a
deficiency in the Examiner's rejection based on Tsuneyoshi and Ohta.
Consequently, Appellants do not apprise us of error in the Examiner's
rejection based on Tsuneyoshi, Ohta, and Dubitzky, and we sustain the
rejection.
Obviousness based on Tsuneyoshi, Ohta, and Ogata
Claim 9 depends from independent claim 1 and recites "the refrigerant
comprises at least 50% carbon dioxide, by weight." Appeal Br.,
Claims App. The Examiner finds Tsuneyoshi lacks a specific disclosure of
the recited refrigerant composition and relies on Ogata for such a teaching.
Final Act. 12 (citing Ogata ,r 108). The Examiner then determines it would
have been obvious to modify Tsuneyoshi such that the refrigerant comprises
at least 50% carbon dioxide, by weight, as taught by Ogata, to
advantageously utilize a common refrigerant and carbon derivatives. Id.
Appellants contend there is no reason to modify Tsuneyoshi to include
Ogata's refrigerant because paragraph 2 of Tsuneyoshi clearly identifies
carbon dioxide. Appeal Br. 30. In response, the Examiner clarifies
Tsuneyoshi explains that a supercritical refrigeration cycle in reference to
the low critical point of carbon dioxide, and that the refrigerant is ethane.
Ans. 12 (citing Tsuneyoshi, claim 3, ,r 16).
Appellants acknowledge the Examiner's clarification. Reply Br. 41.
Appellants, however, maintain "Tsuneyoshi teaches away and there is no
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basis for ignoring that in the [E]xaminer's asserted motivation of using
common refrigerant." Id. Appellants' argument is not persuasive because
Appellants do not explain how Tsuneyoshi allegedly teaches away from the
claimed invention. To the extent Appellants are relying on Tsuneyoshi's
disclosure of the refrigerant being ethane as teaching away from the
refrigerant being carbon dioxide as recited in claim 9, the disclosure of one
type of refrigerant does not teach away from another type of refrigerant. See
In re Fulton, 391 F.3d at 1201 ("The prior art's mere disclosure of more than
one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed.").
Appellants also challenge the Examiner's reason for combining the
teachings of Tsuneyoshi and Ogata by arguing "the [E]xaminer has not
supported any perceived benefit to one of ordinary skill." Reply Br. 41.
Appellants' argument is not convincing because the portion of Ogata the
Examiner relies upon teaches that carbon dioxide may be substituted for
ethane as a refrigerant. Ogata ,r 108; see KSR, 55 U.S. at 416 ("The Court
recognized that when a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result"
( citation omitted)).
Appellants further contend Ogata does not cure the alleged
deficiencies in the rejection based on the combination of Tsuneyoshi and
Ohta. Appeal Br. 29--30. As set forth above, however, Appellants do not
apprise us of a deficiency in the Examiner's rejection based on Tsuneyoshi
and Ohta.
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In view of the foregoing, Appellants do not apprise us of error in the
Examiner's rejection of claim 9. We, therefore, sustain the rejection.
DECISION
The Examiner's decision to reject claims 1-15 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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