DETAILED ACTION
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 .
Election/Restrictions
Newly submitted claims 10-18 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claim 10 is drawn to a heat exchanger having a first outlet comprising two or more through holes, as disclosed in figure 9 of the instant disclosure. In the Non-Final rejection the applicant has received an Action on the merits for an invention comprising “both the first inlet and the first outlet are disposed between the second inlet and the second outlet” and “the second inlet has line symmetry with respect to the center line, and the second outlet has line symmetry with respect to the center line”.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 10-18 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 102
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 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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3 and 5-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blomgren (US PG Pub. 20040206487A1), hereinafter referred to as Blomgren.
Regarding Claim 1, Blomgren discloses a heat exchanger configured to cause a refrigerant (fluid passing through ports (1-2), see intended use analysis below) to exchange heat with a heat medium (fluid passing through ports (3-4), see intended use analysis below), comprising:
plates (“These plates are intended to be assembled to a plate pack in a conventional way in such a manner that each of the ports 1-4 will form a channel extending through the plate pack”, ¶42) stacked on top of one another (shown in figure 1, “a plate pack of a number of assembled heat transfer plates forming between them plate interspaces. In most cases, every second plate interspace communicates with a first inlet channel and a first outlet channel… the other plate interspaces communicate with a second inlet and a second outlet channel for a flow of a second fluid. Thus the plates are in contact with one fluid through one of their side surfaces and with the other fluid through the other side surface, which allows a considerable heat exchange between the two fluids being the first region”, ¶2), wherein
a first flow path (fluid passing through ports (1-2)) and a second flow path (fluid passing through ports (3-4)) are formed between the plates (shown in figure 1, see also ¶2), wherein the refrigerant in a two phase state (see intended use analysis below) flows through the first flow path and the heat medium flows through the second flow path (shown in figure 1), each of the plates comprises:
a first inlet (inlet for the first port (1)) from which the refrigerant (see intended use analysis below) flows into the first flow path (shown in figure 1);
a first outlet (outlet for the second port (2)) from which the refrigerant (see intended use analysis below) flows out of the first flow path (shown in figure 1),
a second inlet (inlet for the third port (3)) from which the heat medium (see intended use analysis below) flows into the second flow path (shown in figure 1); and
a second outlet (outlet for the fourth port (4)) from which the heat medium (see intended use analysis below) flows out of the second flow path (shown in figure 1), and
in each of the plates, when viewed in a direction in which the plates are stacked, the first inlet has line symmetry with respect to a center line in a width direction of the each of the plates (shown in figure 1), and the first outlet has line symmetry with respect to the center line (shown in figure 1) and
the first inlet is disposed between the first outlet and the second outlet (shown in figure 1).
Regarding limitations “refrigerant”, “the refrigerant in a two phase state”, “heat medium”, recited in Claim 1, which are directed to materials being worked upon, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” Further, a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim, as is the case here. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). See MPEP 2114.
Regarding Claim 2, Blomgren further discloses the first inlet of one of the plates has one through hole (shown in figure 1).
Regarding Claim 3, Blomgren further discloses, between two adjacent ones of the plates, a first inlet header (“These plates are intended to be assembled to a plate pack in a conventional way in such a manner that each of the ports 1-4 will form a channel extending through the plate pack”, ¶42) is formed between the first inlet of one of the two adjacent plates and the first flow path formed between the two adjacent plates (shown in figure 1, being the space between two plates directly adjacent the inlet for the port (1) and leading to the flow designated by the solid arrows), and a first outlet header (see ¶42) is formed between the first outlet of the one of the two adjacent plates and the first flow path formed between the two adjacent plates (shown in figure 1, being the space between two plates directly adjacent the outlet for the port (2) and allows fluid to exit the flow path designated by the dashed arrows).
Regarding Claim 5, Blomgren further discloses an angle formed by a line connecting the first inlet to the first outlet and another line connecting the second inlet to the second outlet is less than 25 degrees (shown in figure 1).
Regarding Claim 6, Blomgren further discloses each of the plates further comprises:
in each of the plates, when viewed in the direction in which the plates are stacked, the second inlet (inlet for the third port (3)) has line symmetry with respect to the center line (shown in figure 1), and the second outlet (outlet for the fourth port (4)) has line symmetry with respect to the center line (shown in figure 1).
Regarding Claim 7, Blomgren further discloses each of the plates further comprises:
in a longitudinal direction of the plates, both the first inlet (inlet for the first port (1)) and the first outlet (outlet for the second port (2)) are disposed between the second inlet and the second outlet (shown in figure 1).
Regarding Claim 8, Blomgren further discloses each of the plates further comprises:
in a longitudinal direction of the plates (shown in figure 1), both a low-pressure-side inlet (inlet for the first port (1)) and a low-pressure-side outlet (outlet for the second port (2)) are disposed between a high-pressure-side inlet (inlet for the third port (3)) and a high-pressure-side outlet (outlet for the fourth port (4)), the low-pressure-side inlet is either the first inlet that is an inlet for the refrigerant that has lower pressure (shown in figure 1), the low-pressure-side outlet is either the first outlet (outlet for the second port (2)) that is an outlet for the refrigerant that has lower pressure (shown in figure 1),
the high-pressure-side inlet is the second inlet (inlet for the third port (3)) that is an inlet for the heat medium that has higher pressure (shown in figure 1), and the high-pressure-side outlet (outlet for the fourth port (4)) is the second outlet that is an outlet for the heat medium that has higher pressure (shown in figure 1).
Regarding limitations “low-pressure”, “high-pressure”, and “the low-pressure-side inlet is either the first inlet or the second inlet that is an inlet for the refrigerant or for the heat medium that has lower pressure, the low-pressure-side outlet is either the first outlet or the second outlet that is an outlet for the refrigerant or for the heat medium that has lower pressure, the high-pressure-side inlet is either the first inlet or the second inlet that is an inlet for the refrigerant or for the heat medium that has higher pressure, and the high-pressure-side outlet is either the first outlet or the second outlet that is an outlet for the refrigerant or for the heat medium that has higher pressure”, recited in Claim 8, which are directed to materials being worked upon, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” Further, a claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim, as is the case here. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). See MPEP 2114.
Regarding Claim 9, Blomgren further discloses the first inlet (inlet for the first port (1)) is disposed below the first outlet (outlet for the second port (2), shown in figure 1, wherein the heat exchanger rotated 180° meets the claimed limitations or utilizing port (2) as an inlet, see intended use analysis below).
A recitation with respect to the manner in which a claimed apparatus is intended to be employed, regarding “inlet”, “outlet” and “the first inlet is disposed below the first outlet”, does not differentiate the claimed apparatus from a prior art apparatus satisfying the structural limitations of the claims, as is the case here. The heat exchanger of claim 9 does put forth a specific orientation, thus the difference between the first inlet being disposed below or above the first outlet dependent only on frame of reference. It is well settled that the intended use of a claimed apparatus is not germane to the issue of the patentability of the claimed structure, if the prior art structure is capable of performing the claimed use then it meets the claim. Please see Section 2114 of the MPEP.
Claim Rejections - 35 USC § 103
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 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.
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 of this title, 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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Blomgren (US PG Pub. 20040206487A1) as applied in Claims 1-3 and 5-9 above and in further view of Hasegawa et al. (Translation of JPH05196386A), hereinafter referred to as Hasegawa.
Regarding Claim 4, Blomgren fails to disclose the first flow path includes flow paths extending in a longitudinal direction of the plates and spaced apart from each other.
Hasegawa, also drawn to a stacked plate heat exchanger for multiple fluids, teaches a first flow path includes flow paths extending in a longitudinal direction of the plates and spaced apart from each other (shown in figure 7, wherein the flow paths are formed by the rubs (20)).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Blomgren with the first flow path including flow paths extending in a longitudinal direction of the plates and spaced apart from each other, as taught by Hasegawa, the motivation being to increase the mechanical strength if the heat exchanger and heat exchange capacity increases due to increased cross sectional area.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Blomgren (US PG Pub. 20040206487A1) as applied in Claims 1-3 and 5-9 above and in further view of Blomgren’703 et al. (US PG Pub. 2004/0226703A1), hereinafter referred to as Blomgren’703.
Regarding Claim 9, in addition to Blomgren, Blomgren’703 also teaches the first inlet (inlet for the third port (3)) is disposed below the first outlet (outlet for the fourth port (4), shown in figure 1).
Blomgren does however teach that an inlet and outlet are positioned on a plate heat exchanger for allowing the flow of working fluid through said heat exchanger.
One of ordinary skill in the art would recognize that there is a need in the art to provide specific inlets and outlets to allow for working fluid to enter the heat exchanger and exchange heat with another fluid. Therefore, when there are a finite number of identified, predictable solutions, i.e. the inlet is below the outlet or the inlet is above the outlet, a person of ordinary skill has a good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, i.e. that fluid is allowed to enter and leave a plate heat exchanger, it is likely the product is not of innovation but of ordinary skill and common sense. In that instance, the fact that a combination was obvious to try might show it was obvious under 35 U.S.C. 103 (KSR Int' l Co. v. Teleflex Incl, 127 S. Ct. 1727, 1742, 82 USPQ2d 1385, 1396 (2007)).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of the effective filing date of the claimed invention, to modify Blomgren, by having an inlet being positioned below an outlet, since choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, is within the abilities of one having ordinary skill. See MPEP 2143(I)(E).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 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 PAUL ALVARE whose telephone number is (571)272-8611. The examiner can normally be reached Monday-Friday 0930-1800.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Len Tran can be reached at (571) 272-1184. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL ALVARE/Primary Examiner, Art Unit 3763