Jörg Dietrich et al.

Patent Trials and Appeals Board

Aug 26, 2019

13852461 - (D) (P.T.A.B. Aug. 26, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/852,461 03/28/2013 Jörg DIETRICH LINDE-0782 1014
23599 7590 08/26/2019
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BLVD.
SUITE 1400
ARLINGTON, VA 22201
EXAMINER
LEO, LEONARD R
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
08/26/2019 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JÖRG DIETRICH and REINHOLD HÖLZL1
____________________

Appeal 2018-007411
Application 13/852,461
Technology Center 3700
____________________

Before EDWARD A. BROWN, MICHELLE R. OSINSKI, and
LEE L. STEPINA, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final decision rejecting claims 1, 3, 4, 11, 15, and 17–22.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Linde Aktiengesellschaft (“Appellant”), the applicant as provided for
under 37 C.F.R. § 1.46, is identified as the real party in interest. Appeal
Br. 1.
2 Claims 2, 6, 8, and 16 are cancelled, and claims 5, 7, 9, 10, and 12–14 are
withdrawn. Reply 2–6 (Feb. 6, 2018).
Appeal 2018-007411
Application 13/852,461

2
THE CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below and is
representative of the claimed subject matter.
1. A plate heat exchanger (1) comprising:
at least two plate heat exchanger modules (1a, 1b),
wherein
• each module (1a, 1b) comprises a plurality of
stacked passages (3) through which heat-exchanging
media can flow in alternation and that are separated from
one another by partition plates (4), wherein the passages
are closed to the outside by sidebars (8),
• said modules (1a, 1b) having an overall cuboidal
shape and being bordered on the outsides by cover sheets
(5),
• said modules (1a, 1b) are arranged next to one
another such that one rectangular side (9a) of one cuboidal
module (1a) is directly adjacent to a corresponding
rectangular side (9b) of another cuboidal module (1b),
• said modules (1a, 1b) further comprising means
(6) for supplying and discharging heat-exchanging media
and means (7) for distributing heat-exchanging media
among the individual passages (3) and collecting heat-
exchanging media from said individual passages (3), and
• said at least two modules (1a, 1b) having at least
one common header (7),
said plate heat exchanger further comprising
• one or more formed parts (20a, 20b, 30a, 30b, 40a,
40b, 60a, 60b) at a time is directly attached by brazing,
cementing, welding and/or tacking on one of the two cover
sheets (5) that form the respectively directly adjacent sides
(9a, 9b) of two adjacent modules (1a, 1b), and
one or more other formed parts (20a, 20b, 30a, 30b,
40a, 40b, 60a, 60b) at a time is directly attached by
brazing, cementing, welding and/or tacking on the other of
said two adjacent cover sheets that form the respectively
directly adjacent sides (9a, 9b) of two adjacent modules
Appeal 2018-007411
Application 13/852,461

3
(1a, 1b), said directly adjacent sides (9a, 9b) hereinafter
called contact surfaces (9a, 9b), and either
(a) said formed parts (40a, 40b, 60a, 60b)
being arranged, shaped, and engaged with one
another such that the movement of said modules
(1a, 1b) perpendicular to the contact surfaces (9a,
9b) is prevented by the one or more formed parts
(40a, 60a) on the one contact surface (9a) and the
one or more other formed parts (40b, 60b) on the
other contact surface (9b), or
(b) said one or more formed parts and said
one or more other formed parts (20a, 20b, 30a, 30b)
being arranged and shaped such that the movement
of the modules (1a, 1b) perpendicular to the contact
surface (9a, 9b) is prevented by said one or more
formed parts (20a, 30a) on the one contact surface
(9a), said one or more other formed parts (20b, 30b)
on the other contact surface (9b), and one or more
additional formed parts (50, 51), wherein each of
said additional formed parte engages one of said one
or more formed part and one of said one or more
other formed part.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Iwasaki
Nagasaka
Sanada
Ciaffarafa

US 5,046,554
US 5,197,538
US 7,147,046 B2
US 9,022,100 B2

Sept. 10, 1991
Mar. 30, 1993
Dec. 12, 2006
May 5, 2015

Appeal 2018-007411
Application 13/852,461

4
THE REJECTIONS3
I. Claims 1, 3, 4, 15, 18, 19, and 22 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Nagasaka, Ciaffarafa, and Iwasaki.
Final Act. 3–6.4
II. Claims 11, 17, 20, and 21 stand rejected under 35 U.S.C. § 103 as
unpatentable over Nagasaka, Ciaffarafa, Iwasaki, and Sanada. Id.
at 6–9.
OPINION
Rejection I
The Examiner finds, among other things, that Nagasaka teaches a heat
exchanger comprising at least two modules 1, 2 arranged next to one
another, with each module 1, 2 “compris[ing] a plurality of stacked passages
defined by tubes 4 and fins 5 through which heat-exchanging media can
flow in alternation and that are separated from one another by partitions
(i.e.[,] outer walls of tubes 4, for example in Figure 3).” Final Act. 3. The
Examiner acknowledges that Nagasaka “does not disclose the passages
formed by partition plates closed by sidebars.” Id. at 4. The Examiner finds
that Ciaffarafa teaches “a plurality of stacked passages 20 through which
heat-exchanging media can flow in alternation and that are separated from
one another . . . wherein the passages 20 are formed by partitions 40, 44 and
closed to the outside by sidebars 46, 48.” Id. The Examiner concludes that

3 The Examiner’s rejection of claims 20 and 21 under 35 U.S.C. § 112(b)
(Final Act. 2) has been withdrawn (Ans. 9) and is not before us on appeal.
4 We consider the first inventor to file provisions of the AIA to be
applicable to this application based on it having an effective filing date on or
after March 16, 2013. As such, we view the references to “pre-AIA
35 U.S.C. § 103(a)” in Rejections I and II as being typographical errors. We
see no prejudice to Appellant in correcting these typographical errors herein.
Appeal 2018-007411
Application 13/852,461

5
it would have been obvious to “employ in Nagasaka . . . the passages formed
by partitions and closed to the outside by sidebars for the purpose of
simplifying manufacture as recognized by Ciaffarafa.” Id. at 5.
The Examiner clarifies in the Answer that the rejection relies on “the
substitution of the tube 4 of Nagasaka . . . with the tube 20 of Ciaffarafa.”
Ans. 10. The Examiner further clarifies that “[t]he passages 4 with the air
fins 5 are not modified” and “fins 5 of Nagasaka . . . and fins 22 of
Ciaffarafa . . . provide alternate air flow passages with the stacked flow
passages 4, 20 closed to the outside, respectively.” Id. at 15. Significantly,
the Examiner takes the position that “all the passages do not require closure
bars, i.e.[,] a plurality of closed passages may alternate with air fins open to
the outside.” Id.
Appellant argues that “the resultant structure . . . [of] a stacked
assembly of alternating tube assemblies (20 of [Ciaffarafa]) and regions with
fins (5 of [Nagasaka]) . . . would not provide a plurality of stacked passages
through which heat-exchanging media can flow in alternation and that are
separated from one another by partition plates, wherein the passages are
closed to the outside by sidebars,” as claimed. Reply Br. 5. More
specifically, Appellant argues that “if one considers only the tubes 4 or tube
assemblies 20 to be the stacked passages, the heat exchange media in these
passages always flows in the same direction.” Id. at 6. Appellant continues
that “[d]ue to the structure and design of the [Nagasaka] heat exchanger,
heat exchange media cannot flow in alternation with tubes 4 of [Nagasaka],
and also would not flow in alternation within tube assemblies 20 of
[Ciaffarafa] if used to replace tubes 4.” Id.
Appeal 2018-007411
Application 13/852,461

6
We agree with Appellant’s argument. That is, even if the claims are
interpreted so as to encompass air fins open to the outside being located in
between closed passages (Ans. 15), the Examiner has not adequately
explained how the closed passages are configured such that heat-exchanging
media can flow in alternation within them, as required by the claims.
Instead, the Examiner relies on the air fins open to the outside for providing
the alternating flow. Id.
On the other hand, if one were to consider the air fins open to the
outside to be part of the stacked passages, thereby providing for alternating
flow of heat-exchanging media as required by the claims, we agree with
Appellants that “the regions with fins are not closed by sidebars” and “the
stacked passages defined by the regions with fins do not suggest the
passages recited in [Appellants’] claims.” Reply Br. 5; see also Appeal Br.
16 (Claims App.) (Claim 1 recites that “each module (1a, 1b) comprises a
plurality of stacked passages (3) through which heat-exchanging media can
flow in alternation . . . , wherein the passages are closed to the outside by
sidebars (8).”).
For the foregoing reasons, we do not sustain the Examiner’s rejection
of independent claim 1 under 35 U.S.C. § 103(a) as unpatentable over
Nagasaka, Ciaffarafa, and Iwasaki. We also do not sustain the rejection of
claims 3, 4, 15, 18, 19, and 22, which depend from independent claim 1.
Rejection II
The Examiner’s rejection of claims 11, 17, 20, and 21 relies on the
Examiner’s erroneous finding as to the combination of Nagasaka and
Ciaffarafa resulting in heat exchanger modules each having a plurality of
stacked passages through which heat-exchanging media can flow in
Appeal 2018-007411
Application 13/852,461

7
alternation and that are closed to the outside by sidebars. Final Act. 6–8.
The Examiner does not explain how Sanada might cure the underlying
deficiency. Id. Accordingly, for the reasons discussed above, we do not
sustain the Examiner’s rejection of claims 11, 17, 20, and 21 under
35 U.S.C. § 103 as unpatentable over Nagasaka, Ciaffarafa, Iwasaki, and
Sanada.
DECISION
The Examiner’s decision to reject claims 1, 3, 4, 15, 18, 19, and 22
under 35 U.S.C. § 103 as unpatentable over Nagasaka, Ciaffarafa, and
Iwasaki is reversed.
The Examiner’s decision to reject claims 11, 17, 20, and 21 under 35
U.S.C. § 103 as unpatentable over Nagasaka, Ciaffarafa, Iwasaki, and
Sanada is reversed.

REVERSED