SPX Flow, Inc.

Patent Trials and Appeals Board

Jul 8, 2020

14870264 - (D) (P.T.A.B. Jul. 8, 2020)

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.
14/870,264 09/30/2015 Jes Hansen Petersen 41878.21540 6525
30734 7590 07/08/2020
BakerHostetler
Washington Square, Suite 1100
1050 Connecticut Ave. N.W.
Washington, DC 20036-5304
EXAMINER
WEILAND, HANS R.
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
07/08/2020 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):
edervis@bakerlaw.com
eofficemonitor@bakerlaw.com
patents@bakerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JES HANSEN PETERSEN
____________

Appeal 2020-000653
Application 14/870,264
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHAEL J. FITZPATRICK, and
ERIC C. JESCHKE, Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review, under 35 U.S.C. § 134(a), of the Examiner’s
decision, as set forth in the Final Office Action dated November 23, 2018,
rejecting claims 1, 6–8, 13–15, 20, and 21. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies SPX FLOW, INC. as the real party in
interest. Appeal Br. 3.
Appeal 2020-000653
Application 14/870,264
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BACKGROUND
The disclosed subject matter “relates to a port connection for use on a
plate heat exchanger.” Spec. ¶ 1. Claims 1, 8, and 15 are independent.
Claim 1 is reproduced below, with bracketed letters added to each clause:
1. A port connection for a plate heat exchanger,
the port connection comprising:
[a] a first element having a first sleeve and a
first flange, the first sleeve being configured to slide
into a port disposed through a pressure plate of the
plate heat exchanger and the first flange having a
first bearing surface to bear upon a first face of the
pressure plate;
[b] a first sealing surface disposed annularly
about the first flange and configured to form a seal
with a first heat exchange plate in a plate pack of the
plate heat exchanger;
[c] a first gasket disposed between the first
sealing surface and the first heat exchange plate,
wherein the first flange is sandwiched between the
first gasket and the pressure plate with the first
gasket directly bearing upon the first sealing surface
and the pressure plate directly bearing upon the first
bearing surface;
[d] a second element having a second sleeve
and a second flange, the second sleeve being
configured to slide into the port and the second
flange having a second bearing surface to bear upon
a second face of the pressure plate,
[e] a seal generated in response to the first
sleeve telescoping into the second sleeve; and
[f] a pair of annular grooves disposed about
the first sleeve to provide a pair of seats for a pair of
O-rings, the O-rings being configured to form the
seal between the pair of seats and an inner surface
of the second sleeve.
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Application 14/870,264
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REJECTIONS
1. Claims 1, 6, 8, 13, 15, and 20 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Jönsson ’451 (US 4,848,451, issued July 18,
1989), Schroeder (US 6,869,107 B2, issued March 22, 2005), and Blomgren
(US 2014/0131020 A1, published May 15, 2014).
2. Claims 7, 14, and 21 stand rejected under 35 U.S.C. § 103 as
unpatentable over Jönsson ’451, Schroeder, and Jönsson ’909 (US 6,775,909
B2, issued Aug. 17, 2004).

DISCUSSION
Rejection 1 – Claims 1, 6, 8, 13, 15, and 20
Appellant argues the patentability of the three independent claims—1,
8, and 15—based on similar arguments, and Appellant does not separately
argue any dependent claims. Appeal Br. 10–14. We select claim 1 as
representative, with the remaining claims standing or falling with claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
For claim 1, the Examiner relied on Jönsson ’451 for certain
limitations but stated that, although that reference “discloses two elements
seated in the annular grooves (as seen in figure 7),” it “does not explicitly
disclose that the elements in the annular groove are a pair of O-rings, the O-
rings being configured to form the seal between the pair of seats and an
inner surface of the second sleeve” as recited in clause f. Final Act. 2–4.
The Examiner found, however, that
Schroeder teaches (Figure 1) a seal between two conduit sections
formed by a pair of annular grooves (at gap 32 and groove 36)
provides a pair of seats for a pair of O-rings (O-ring 34 and 40
respectively), the O-rings being configured to form the seal
between the seats and an inner surface of the second sleeve
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Application 14/870,264
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(conduit 28, a seal is formed per Col. 2 line 54 through Col. 3
line 3).
Final Act. 4–5. The Examiner provided a reason to modify Jönsson ’451
based on these aspects of Schroeder. Id. at 5 (first full paragraph).
The Examiner also found that, although Jönsson ’451 “discloses
wherein the first flange is sandwiched between the first gasket and the
pressure plate” as recited in clause c, that reference “does not explicitly
disclose in the embodiment of figure 7 and 8, the pressure plate directly
bearing upon the first bearing surface.” Final Act. 5. The Examiner found,
however, that, in Figures 3 and 4, Blomgren teaches
a first flange (sealing member 60 which is an annular ring per
paragraph 0059) that is sandwiched between a first gasket
(sealing element 66) and a pressure plate (plate 8) with a first
gasket (66) directly bearing upon the first sealing surface (the
sealing member 66 bears on a sealing surface formed by the
annular groove 64 on sealing member 60) and the pressure plate
(8) directly bearing upon a first bearing surface (the portion of
sealing member 60 in contact with plate 8 through recess 62 as
seen in figure 4) to provide a seal between a pressure plate (8)
and a plate heat exchanger module (4).
Ans. 15; see also Final Act. 5 (similar finding). The Examiner provided a
reason to modify the art based on Blomgren. Final Act. 5–6; Ans. 15–16.
First, Appellant highlights clauses b and c and contends that “the
Examiner attempts to cobble together various views of Jönsson ’451 to show
the claimed arrangement,” but “these efforts fall short.” Appeal Br. 10.
According to Appellant,
Jönsson ’451 discloses a unitary elastomeric port lining (See
FIGS. 1, 3–5, and 9–12) that is in direct contact with both the
pressure plate and the heat exchange plate and without a gasket
or Jönsson ’451 discloses a two-piece port liner with flange
having a molded gasket enveloping the flange (See FIG. 7). As
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such, Jönsson ’451 alone clearly fails to disclose the sealing
arrangement of claim 1.
Appeal Br. 10–11.
We are not apprised of error based on this argument. As an initial
matter, although the Examiner cites Figures 2–8 of Jönsson ’451 at the
beginning of the discussion of claim 1 (Final Act. 2), the Examiner makes
clear that the rejection of claim 1 is primarily based on the Figure 7
embodiment. See Final Act. 2–6; see also Ans. 15 (stating that the rejections
of claims 1, 8, and 15 are “based” on “the embodiment of figure 7”). Thus,
even assuming that the embodiments in Figures 1, 3–5, and 9–12 do not
include a gasket (as asserted), that does not undermine the rejection.
Further, as noted by the Examiner, “Appellant’s arguments do not specify
any specific elements which are not taught by the embodiment of figure 7”
of Jönsson ’451. Ans. 15.
Moreover, nonobviousness cannot be established by attacking prior
art references individually when the rejection is based on the teachings of a
combination of references. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). By arguing that Jönsson ’451 “alone clearly fails” to
disclose all aspects of clauses b and c (Appeal Br. 11), Appellant does not
address the rejection as articulated, in which (as summarized above) the
Examiner relies on the combined teachings of Jönsson ’451 and Blomgren.2
See Final Act. 5–6; Ans. 14–15 (discussing the “arguments against the
references individually”).

2 Appellant acknowledges this, stating: “To correct for the deficiencies
of Jönsson ’451, the Examiner relies upon Blomgren.” Appeal Br. 11.
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Application 14/870,264
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Second, Appellant states, “Schroeder is related to sealing pipes and
unrelated to the sealing arrangement between a pressure plate and a heat
exchange plate.” Appeal Br. 11. We address this statement as does the
Examiner, as arguing that Schroeder is nonanalogous art. See Ans. 16.
“Two separate tests define the scope of analogous prior art: (1) whether the
art is from the same field of endeavor, regardless of the problem addressed
and, (2) if the reference is not within the field of the inventor’s endeavor,
whether the reference still is reasonably pertinent to the particular problem
with which the inventor is involved.” In re Bigio, 381 F.3d 1320, 1325
(Fed. Cir. 2004).
The Examiner finds that “Schroeder is reasonably pertinent to the
problem of sealing fluid flow between two telescoping elements that contain
fluid flowing within them.” Ans. 16. Consistent with that finding, we
consider the relied-upon aspects of Schroeder to have the same purpose as
the relevant aspect of the claimed invention: sealing fluid flow between two
telescoping elements that contain fluid flowing within them. See In re Clay,
966 F.2d 656, 659 (Fed. Cir. 1992) (“If a reference disclosure has the same
purpose as the claimed invention, the reference relates to the same problem,
and that fact supports use of that reference in an obviousness rejection.”).
For example, in the disclosures cited by the Examiner, Schroeder
describes a seal formed between two telescoped conduit sections using O-
rings, with Schroeder stating that the disclosed “fitting for use in an air
conditioning system” “militates against pressure loss [and] leakage of
refrigerant.” Schroeder 2:54–3:3 (cited at Final Act. 4–5), 1:41–45 (cited at
Final Act. 5). Similarly, in describing Figure 4, the Specification discloses
that “the seal formed by the compression of the O-ring between the first
sleeve 36 and the second sleeve 42 is configured to reduce or prevent
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leakage of the fluid in the port 26 from coming in contact with the port 26
surface.” Spec. ¶ 29. Thus, we are not apprised of error by this argument.
Third, Appellant contends that “Blomgren fails to show the
arrangement missing from Jönsson ’451” because, according to Appellant,
“Blomgren is directed to a welded abutment member 52 that is connected to
the first heat transfer plate 40 and this abutment member 52 is sandwiched
between the elastic sealing member 66 and the first supporting member 54.”
Appeal Br. 11 (citing Blomgren Fig. 4, ¶¶ 58, 59). We are not apprised of
error based on this argument, which addresses features in Figure 4 of
Blomgren, reproduced below.

Figure 4 depicts an enlargement of a portion of the cross section through the
plate heat exchanger, shown in Figure 3. Blomgren ¶¶ 48, 49. The
Examiner relies on Blomgren for only portions of clause c (see Final Act. 5–
6; Ans. 15), and discusses (1) element 66 as a “first gasket,” (2) element 60
as a “first flange,” (3) element 8 as a “pressure plate,” (4) a “first bearing
surface” where the left edge of element 60 interfaces with element 8, and (5)
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a “first sealing surface” where the central portion of element 60 interfaces
with element 66. See Ans. 15; Final Act. 5–6. The Examiner does not rely
on Blomgren for the aspects noted by Appellant—namely, the relative
configurations of elements 40, 52, 54, and 66. See Ans. 15; Final Act. 5–6.
Further, to the extent Appellant argues that Blomgren does not satisfy
clause c’s requirement for “a first gasket disposed between the first sealing
surface and the first heat exchange plate,” the Examiner relies on Jönsson
’451—not Blomgren—for that limitation. See Final Act. 2–3; Ans. 15;
Merck, 800 F.2d at 1097. For these reasons, we sustain the rejection of
claim 1. Claims 6, 8, 13, 15, and 20 fall with claim 1.
Rejection 2 – Claims 7, 14, and 21
Claim 7 depends from claim 1; claim 14 depends from claim 8; claim
21 depends from claim 15. See Appeal Br. 15–19 (Claims App.). Appellant
argues that claims 7, 14, and 21 are allowable based on their dependence
from their respective parent claim “as well as for the additional features they
recite.” See Appeal Br. 14. Appellant does not provide additional
arguments for claims 7, 14, and 21. As to the argument based on these
claims’ dependence, for the reasons above, we are not apprised of error in
the rejection of claim 1. See supra Rejection 1.
As to the “additional features [these claims] recite,” Appellant does
not adequately explain the alleged error by the Examiner. See 37 C.F.R.
§ 41.37(c)(1)(iv) (“The arguments shall explain why the examiner erred as
to each ground of rejection contested by appellant.”); Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“An appellant may
attempt to overcome an examiner’s obviousness rejection on appeal to the
Board by submitting arguments and/or evidence to show that the examiner
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Application 14/870,264
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made an error . . . .” (emphasis added)); Final Act. 12–13 (addressing these
claims). Thus, we sustain the rejection of claims 7, 14, and 21.

CONCLUSION
We affirm the Examiner’s rejection of claims 1, 6–8, 13–15, 20, and
21 under 35 U.S.C. § 103.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 6, 8, 13,
15, 20
103 Jönsson ’451,
Schroeder, Blomgren
1, 6, 8, 13,
15, 20

7, 14, 21 103 Jönsson ’451,
Schroeder, Jönsson
’909
7, 14, 21
Overall
Outcome
1, 6–8, 13–
15, 20, 21

TIME PERIOD FOR RESPONSE
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)(1)(iv).

AFFIRMED