Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claims 1-4 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Bergdoll et al. (U.S. Patent 3,118,498) in view of Gilbert (U.S. Patent 8,893,319).
Regarding claim 1, Bergdoll teaches a heat exchanger (element 11), comprising: an inlet header (one of element 18) defining an inlet opening (opening of element 28) and opposing inlet walls (sidewalls shown that elements 13 pass through) extending therefrom; an outlet header (opposite element 18) aligned with the inlet header along a central longitudinal axis (per fig. 1-2) and defining an outlet opening (opening element 28) and opposing outlet walls (sidewalls shown that elements 13 pass through) extending therefrom; and a plurality of coaxially arranged bent tubes (elements 13 of elements 11) defining first tube portions extending from one of the opposing inlet walls to one of the opposing outlet walls and second tube portions (elements 13 of element 12) extending from the other of the opposing inlet walls to the other of the opposing outlet walls, wherein a cross-sectional area of the inlet header varies along the central longitudinal axis such that the opposing inlet walls converge (per fig. 7 there is convergence at 25) and the cross-sectional area of the inlet header decreases in a direction away from the inlet opening (per fig. 7), and a cross-sectional area of the outlet header varies along the central longitudinal axis such that the opposing outlet walls converge (per fig. 7 there is convergence at 25)and the cross-sectional area of the outlet header decreases in a direction away from the outlet opening (per fig. 7).
Bergdoll does not teach at least one of the plurality of bent tubes being non-coplanar relative to at least one of remaining bent tubes. Gilbert teaches heat exchange being non-coplanar (fig. 6-7), it would have been obvious to one skilled in the art at the time of the filing to modify Bergdoll to stagger some of the heat exchanger tubes such that some are non-coplanar as taught by Gilbert, the motivoant would be to improve thermal mixing (col. 28, ln 1-4).
Regarding claim 2, Bergdoll teaches the first tube portions are arranged on a first side of the inlet header and the outlet header (per fig. 1-2), and the second tube portions are arranged on a second side of the inlet header and the outlet header (per fig. 1-2).
Regarding claim 3, Bergdoll teaches the inlet header defines a plurality of inlet ports to enable a flow of a fluid to the plurality of bent tubes (per fig. 2), and the outlet header defines a plurality of outlet ports to facilitate an exit of the fluid from the plurality of bent tubes (per fig. 2).
Regarding claim 4, Bergdoll teaches each of the plurality of bent tubes extends arcuately around a central axis of the heat exchanger (per fig. 1-2).
Regarding claim 17, Bergdoll teaches a heat exchanger (element 11), comprising: an inlet header (one of element 18) defining an inlet opening (opening of element 28) and opposing inlet walls (sidewalls shown that elements 13 pass through) extending therefrom; an outlet header (opposite element 18) arranged diametrically opposite to the inlet header (per fig. 1-2), the outlet header defining an outlet opening (opening of element 28) and opposing outlet walls (sidewalls shown that elements 13 pass through) extending therefrom; and a plurality of coaxially arranged bent tubes defining first tube portions (elements 13 of elements 11) extending from one of the opposing inlet walls to one of the opposing outlet walls (per fig. 1-2) and second tube portions (elements 13 of element 12) extending from the other of the opposing inlet walls to the other of the opposing outlet walls (per fig. 1-2), a cross-sectional area of the inlet header varies along a length of the inlet header (per fig. 7) such that the opposing inlet walls converge and the cross-sectional area of the inlet header decreases in a direction away from the inlet opening (at element 25 fig. 7), and a cross-sectional area of the outlet header varies along a length of the outlet header (per fig. 7) such that the opposing outlet walls converge and the cross-sectional area of the outlet header decreases in a direction away from the outlet opening (at element 25 fig. 7).
Bergdoll does not teach at least one of the plurality of bent tubes being non-coplanar relative to at least one of remaining bent tubes. Gilbert teaches heat exchange being non-coplanar (fig. 6-7), it would have been obvious to one skilled in the art at the time of the filing to modify Bergdoll to stagger some of the heat exchanger tubes such that some are non-coplanar as taught by Gilbert, the motivoant would be to improve thermal mixing (col. 28, ln 1-4).
Regarding claim 18, Bergdoll teaches the first tube portions are arranged on a first side of the inlet header and the outlet header (per fig. 1-2), and the second tube portions are arranged on a second side of the inlet header and the outlet header (per fig. 1-2).
Regarding claim 19, Bergdoll teaches the inlet header defines a plurality of inlet ports to enable a flow of a fluid to the plurality of bent tubes (per fig. 2), and the outlet header defines a plurality of outlet ports to facilitate an exit of the fluid from the plurality of bent tubes (per fig. 2).
Claims 8 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Bergdoll et al. (U.S. Patent 3,118,498) in view of Gilbert (U.S. Patent 8,893,319), and further view of Hiroshi (JP2009-068742).
Regarding claim 8, Bergdoll does not teach a diameter of at least one of the plurality of bent tubes is different from a diameter of at least one of remaining bent tubes.
Hiroshi teaches tubes having different passage sizes (Fig. 3-4).it would have been obvious to one skilled in the art at the time of filing to modify Bergdoll bent tubes to include the difference passage sizes by modifying the passage diameters taught by Hiroshi, the motivation would have been balance the refrigerant flow (para. 0026).
Regarding claims 21 and 22, Bergdoll does not teach wherein first tube portions define first diameters, the first diameters vary along the central longitudinal axis such that an outermost first tube portion of the first tube portions defines a largest first diameter and an innermost first tube portion of the first tube portions defines a smallest first diameter, and second tube portions define second diameters, the second diameters vary along the central longitudinal axis such that an outermost second tube portion of the second tube portions defines a largest second diameter and an innermost second tube portion of the second tube portions defines a smallest second diameter.
Hiroshi teaches the tube sizes become smaller furthest away from the inlet and largest closest to the outlet (fig. 1-3). It would have been obvious to one skilled in the art to modify the tubes of Bergdoll such that the internal diameter of the tubes varies as claimed, the motivation would have been balance the refrigerant flow (para. 0026).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim of copending Application No. 18/500558 in view of claims of the current application.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicants arguments on amendments overcoming the 112 rejections are agreed with, and those rejections have been removed due to the amendment.
Applicant’s arguments with respect to claim(s) and prior art have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOEL M ATTEY whose telephone number is (571)272-7936. The examiner can normally be reached on Monday-Thursday 8-5 and Friday 8-10 and 2-4.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jianying Atkisson be reached on (571) 270-7740. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOEL M ATTEY/Primary Examiner, Art Unit 3763