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 .
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Regarding Claims 1, 12 and 15-16, limitations “attaching means” has been interpreted under 35 U.S.C. 112(f).
Regarding Claim 14, limitations “connecting means” has been interpreted under 35 U.S.C. 112(f).
Regarding Claim 16, limitations “blocking means” has been interpreted under 35 U.S.C. 112(f).
Since the claim limitation(s) invokes pre-AIA 35 U.S.C. 112, sixth paragraph, the aforementioned claims has been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) limitation:
“attaching means” is interpreted from the specification as any means for attaching opposing components.
“connecting means” is interpreted from the specification as any means for connecting components.
“blocking means” is interpreted from the specification as any means for shielding a component.
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Claim Objections
Claim 5 is objected to because of the following informalities: “the at least one plate is comprises plates” in ll. 2 should be rewritten to be -- the at least one plate comprises a plurality of plates --, and will be interpreted accordingly. Appropriate correction is required.
Claim 6 is objected to because of the following informalities: “perpendicular with to a horizontal plane” in ll. 2 should be rewritten to be -- perpendicular to a horizontal plane--, and will be interpreted accordingly. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 15-16 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claims 15-16 recite the limitation "the attaching means" in ll. 1. There is insufficient antecedent basis for this limitation in the claim.
Regarding Claim 16, the limitation “are: sealed with respect to the power unit outlet, encapsulated and sealed with respect to the power unit outlet, encapsulated and further comprises blocking means configured for opening or closing the fluidic communication with the power unit outlet, or encapsulated and in fluid communication with the power unit outlet” is indefinite, in context, since it cannot be discerned if the aforementioned related fabrication options are supposed to be listed in the alternative. For Examination purposes and in accordance with the specification and drawings, “sealed with respect to the power unit outlet, encapsulated and sealed with respect to the power unit outlet, encapsulated and further comprises blocking means configured for opening or closing the fluidic communication with the power unit outlet, or encapsulated and in fluid communication with the power unit outlet” will be interpreted as –sealed with respect to the power unit outlet, or encapsulated and sealed with respect to the power unit outlet or encapsulated and further comprises blocking means configured for opening, or closing the fluidic communication with the power unit outlet, or encapsulated and in fluid communication with the power unit outlet--.
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.
Claims 1-6, 8-10 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Burns (USP 5097801A) in view of Tian et al. (Translation of CN115096113A) and in further view of Bayer et al. (Translation of DE4141556A1), hereinafter referred to as Burns, Tian and Bayer, respectively.
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Burns Figure 5
Regarding Claim 1, Burns discloses a heat exchanger for an aircraft (see intended use analysis below), the heat exchanger arranged along a longitudinal direction (shown in figures 2 and 5, being the direction extending from the flue inlet (3) to flue outlet (3)) and comprising:
at least one coil (shown in figure 5) having a first end (shown in annotated figure 5, being the end connected to the “First Collector”) and a second end opposite to the first end along the longitudinal direction (shown in annotated figure 5, being the end connected to the “Second Collector”), wherein the at least one coil comprises an inner hollow volume (shown in figure 5) configured to house a second fluid (“water”) to transfer heat from a first fluid located outside the at least one coil (10) to the second fluid (“water”) in the at least one coil (shown in figure 4),
a first collector (shown in annotated figure 5) and a second collector (shown in annotated figure 5) configured to respectively output the second fluid off the at least one coil and input the second fluid into the at least one coil (shown in figures 5-6), wherein the first collector is located at the first end of the at least one coil (shown in annotated figure 5) and the second collector is located at the second end of the at least one coil (shown in annotated figure 5),
the first collector comprises at least one fluid outlet (shown in annotated figure 5) and the second collector comprises at least one fluid inlet (shown in annotated figure 5), wherein
the first collector and the second collector are configured to be in fluidic communication with the inner hollow volume of the at least one coil, the at least one fluid outlet and the at least one fluid inlet (shown in figures 5-6),
at least one first sub-collector (shown in annotated figure 5, being the initial piping between the annotated first or second collector and the respective coil) configured to connect the first collector to the first end of the at least one coil (shown in annotated figure 5),
at least one second sub-collector (shown in annotated figure 5, being the initial piping between the annotated first or second collector and the respective coil) configured for connecting the second collector to the second end of the at least one coil (shown in annotated figure 5), and
a liner (2) extending along a length according to the longitudinal direction (shown in figures 1 and 5), the liner configured to define an inner chamber (shown in figure 2, being the space encompassed by the housing (2)) confining the at least one coil, the first collector, the second collector, the first sub-collector and the second sub-collector (shown in figure 1). Burns fails to disclose a plate, wherein the at least one plate comprises at least two sheets defining a fluid tight inner chamber, said sheets being coupled to each other by discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld.
Tian, also drawn to a heat exchanger with a first collector (the top conveying pipe (5), shown in figure 3) and a second collector (shown in figure 3, being the bottom conveying pipe) configured to respectively output the second fluid off the at least one plate (41) and input the second fluid into the at least one plate (41, shown in figure 3), wherein the first collector is located at the first end of the at least one plate (shown in figure 3) and the second collector is located at the second end of the at least one plate (shown in figure 3), teaches the at least one plate (41) comprises at least two sheets (“the inner heat exchange plate, the outer heat exchange plate comprises two oppositely set plate sheets, the peripheral edge of the two plate sheets are welded and fixed”) defining a fluid tight inner chamber (chamber is shown in figure 3 for transporting the working fluid between the conveying pipes (5)), said sheets being coupled to each other by discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld (see previous annotation and the product by process analysis below). Further, Bayer teaches it is known to substitute a coil (shown in figure 3) for flat tubes (shown in figure 5) in a recuperating heat exchanger.
The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art.
Per MPEP 2143-I, a simple substitution of one known element for another, with a reasonable expectation of success supports a conclusion of obviousness. In the instant case, the simple substitution is related to substituting a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate with a coil that exchanges heat between a working fluid internal to the coil and a working fluid external to the coil; further the prior art to Tian teaches having a plate for exchanging heat between two working fluids is known, wherein Bayer teaches that plates and coils were art recognized equivalents at the time the invention was made for exchanging heat. Therefore, since modifying the prior art to Burns with having a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate, can easily be made without any change in the operation of the heat exchanger; and in view of the teachings of the prior art to Tian and Bayer there will be reasonable expectations of success, it would have been obvious to have modified the invention of Burns by having a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate due to the ease of fabrication or required contact surface area within the heat exchanger. Further, because these two heat exchange shapes were art recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute a plate for a coil.
Regarding limitations “for an aircraft”, “inlet” and “outlet” recited in Claim 1, which are directed to an intended use for the heat exchanger, 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.
In product-by-process claims, as in Claim 1, “once a product appearing to be substantially identical is found and a 35 U.S.C. 103 rejection [is] made, the burden shifts to the applicant to show an unobvious difference” MPEP 2113. This rejection under 35 U.S.C. 103 is proper because the "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). The combination of previous references meets the structural limitations put forth in Claim 1, wherein the final product existing after fabrication is compared to prior art for the purposes of patentability. The limitations regarding “discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld” are drawn to methods of production and not the structural aspects of the instant invention.
Regarding Claim 2, Burns fails to disclose the liner comprises portions and an attaching means configured to fix the portions together.
Bayer, also drawn to a heat exchanger for exhaust, teaches a liner comprises portions (50, 51) and an attaching means (52, 53) configured to fix the portions together (shown in figure 6).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the liner of Burns comprising portions and an attaching means configured to fix the portions together, as taught by Bayer, the motivation being that fabricating the liner in portions lessens the manufacturing complexity due to producing the liner in a single piece.
Alternately, Burns discloses the claimed invention except for the liner comprising portions and an attaching means configured to fix the portions together. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to have the liner comprising portions and an attaching means configured to fix the portions together, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. See MPEP 2144.04 V (C).
Regarding Claim 3, Burns further discloses the first collector (shown in annotated figure 5) and the second collector (shown in annotated figure 5) each have at least one of a circular shape (shown in figure 5, wherein the respective collectors have a circular cross section).
Regarding Claim 4, although Burns further discloses the first collector contains a curved portion (shown in figure 5), Burns fails to disclose the second sub-collector is curved along its respective length.
Tian, also drawn to a heat exchanger, teaches the first collector (the top conveying pipe (5), shown in figure 3) and the second sub-collector (shown in figure 3, being the piping connecting the bottom conveying pipe and the plate) are each curved along their respective lengths (shown in figure 3).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the first collector and second sub-collector of Burns being curved, as taught by Tian, the motivation being that curved pipes introduce less resistance to the working fluid thereby lessening the degree of pressure drop within the system.
Alternately, Burns discloses the claimed invention except for the first collector being curved. It would have been obvious matter of design choice to have the first collector of Burns being curved, since such a modification would have involved a mere change in shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 IV (B).
Regarding Claim 5, a modified Burns further teaches the at least one plate is comprises plates (shown in figure 3 of Tian).
Regarding Claim 6, a modified Burns further teaches the plates are parallel to each other according to the longitudinal direction and are perpendicular with to a horizontal plane (shown in figure 3 of Tian, further a modified Burns having the plates of Tian teaches said plates being parallel to each other according to the longitudinal direction and are perpendicular with to a horizontal plane, as the coils extend along the longitudinal direction between the manifolds).
Regarding Claim 8, Burns further discloses the second fluid is one or more of: water (“A waste energy hot water heater which extracts heat energy through heat exchange with flue gas from a primary heating device is disclosed”, abstract).
Regarding Claim 9, Burns further discloses the at least one fluid outlet of the first collector and the at least one fluid inlet of the second collector are each elbow shaped (shown in figure 1).
Regarding Claim 10, Burns further discloses the at least one fluid outlet of the first collector (shown in figure 1, being the elbow) and the at least one fluid inlet of the second collector (shown in figure 1, being the elbow) are each oriented in a vertical direction (shown in figure 1).
Regarding Claim 12, a modified Burns further teaches the attaching means (52, 53 of Bayer previously put forth in Claim 2) is located on each side of the liner (shown in figure 6) and symmetrically placed along the length of the liner with respect to the symmetrical axis of the liner (shown in figure 6, wherein the flanges are shown to be on opposing sides of the liner and symmetrical).
Regarding Claim 13, a modified Burns further teaches the liner is at least one of gastight (shown in figure 1 of Burns and figure 6 of Bayer, wherein working fluid travels through the liner without leaking).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Burns (USP 5097801A) in view of Tian et al. (Translation of CN115096113A) and in view of Bayer et al. (Translation of DE4141556A1) as applied in Claims 1-6, 8-10 and 12-13 and in further view of Bond et al. (USP 11162424B2), hereinafter referred to as Bond.
Regarding Claim 11, although Burns discloses the first and second collector respectively each comprise a fluid outlet and a fluid inlet, Burns fails to disclose the first and second collectors respectively each comprise two fluid outlets and two fluid inlets, the two fluid outlets being in fluidic communication and connected to one another, the two fluid inlets being in fluidic communication and connected to one another, and the two fluid outlets and the two fluid inlets are respectively located on opposite sides of the first collector and of the second collector.
Bond, also drawn to a heat exchanger having a ring manifold, teaches a first (110) and second (106) collectors respectively each comprise two fluid outlets (142) and two fluid inlets (140), the two fluid outlets (142) being in fluidic communication and connected to one another (shown in figure 7C), the two fluid inlets (140) being in fluidic communication and connected to one another (shown in figure 7D), and the two fluid outlets and the two fluid inlets are respectively located on opposite sides of the first collector and of the second collector (shown in figure 7F).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the first and second collector of Burns with two fluid outlets and two fluid inlets, the two fluid outlets being in fluidic communication and connected to one another, the two fluid inlets being in fluidic communication and connected to one another, and the two fluid outlets and the two fluid inlets are respectively located on opposite sides of the first collector and of the second collector, as taught by Bond, the motivation being to allow for a fluid inlet or outlet to be fluidly connected to another header or heat exchanger in order to increase heat transfer.
Claims 14 is rejected under 35 U.S.C. 103 as being unpatentable over Burns (USP 5097801A) in view of Tian et al. (Translation of CN115096113A) in view of Bayer et al. (Translation of DE4141556A1) and in further view of Kershaw (GB2119447A), hereinafter referred to as Kershaw.
Regarding Claim 14, Burns discloses a unit for an aircraft (see intended use analysis below) comprising: a unit inlet (3, shown in figure 2 as being on the bottom) configured to supply the first fluid to the unit (shown in figure 2), a unit outlet (3, shown in figure 2 as being on the top) configured for exhausting the first fluid (shown in figure 2), wherein the unit outlet comprises a heat exchanger (shown in figure 1),
a heat exchanger for an aircraft (see intended use analysis below), the heat exchanger arranged along a longitudinal direction (shown in figures 2 and 5, being the direction extending from the flue inlet (3) to flue outlet (3)) and comprising:
at least one coil (shown in figure 5) having a first end (shown in annotated figure 5, being the end connected to the “First Collector”) and a second end opposite to the first end along the longitudinal direction (shown in annotated figure 5, being the end connected to the “Second Collector”), wherein the at least one coil comprises an inner hollow volume (shown in figure 5) configured to house a second fluid (“water”) to transfer heat from a first fluid located outside the at least one coil (10) to the second fluid (“water”) in the at least one coil (shown in figure 4),
a first collector (shown in annotated figure 5) and a second collector (shown in annotated figure 5) configured to respectively output the second fluid off the at least one coil and input the second fluid into the at least one coil (shown in figures 5-6), wherein the first collector is located at the first end of the at least one coil (shown in annotated figure 5) and the second collector is located at the second end of the at least one coil (shown in annotated figure 5),
the first collector comprises at least one fluid outlet (shown in annotated figure 5) and the second collector comprises at least one fluid inlet (shown in annotated figure 5), wherein
the first collector and the second collector are configured to be in fluidic communication with the inner hollow volume of the at least one coil, the at least one fluid outlet and the at least one fluid inlet (shown in figures 5-6),
at least one first sub-collector (shown in annotated figure 5, being the initial piping between the annotated first or second collector and the respective coil) configured to connect the first collector to the first end of the at least one coil (shown in annotated figure 5),
at least one second sub-collector (shown in annotated figure 5, being the initial piping between the annotated first or second collector and the respective coil) configured for connecting the second collector to the second end of the at least one coil (shown in annotated figure 5), and
a liner (2) extending along a length according to the longitudinal direction (shown in figures 1 and 5), the liner configured to define an inner chamber (shown in figure 2, being the space encompassed by the housing (2)) confining the at least one coil, the first collector, the second collector, the first sub-collector and the second sub-collector (shown in figure 1). Burns fails to disclose a plate, wherein the at least one plate comprises at least two sheets defining a fluid tight inner chamber, said sheets being coupled to each other by discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld, and
the heat exchanger further comprises connecting means (3, being situated on either end of the heat exchanger), one located at each end of the at least one coil (shown in figure 1), wherein one of the connecting means is configured for mounting the heat exchanger on the unit outlet (shown in figure 6).
Tian, also drawn to a heat exchanger with a first collector (the top conveying pipe (5), shown in figure 3) and a second collector (shown in figure 3, being the bottom conveying pipe) configured to respectively output the second fluid off the at least one plate (41) and input the second fluid into the at least one plate (41, shown in figure 3), wherein the first collector is located at the first end of the at least one plate (shown in figure 3) and the second collector is located at the second end of the at least one plate (shown in figure 3), teaches the at least one plate (41) comprises at least two sheets (“the inner heat exchange plate, the outer heat exchange plate comprises two oppositely set plate sheets, the peripheral edge of the two plate sheets are welded and fixed”) defining a fluid tight inner chamber (chamber is shown in figure 3 for transporting the working fluid between the conveying pipes (5)), said sheets being coupled to each other by discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld (see previous annotation and the product by process analysis below). Further, Bayer teaches it is known to substitute a coil (shown in figure 3) for flat tubes (shown in figure 5) in a recuperating heat exchanger.
The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art.
Per MPEP 2143-I, a simple substitution of one known element for another, with a reasonable expectation of success supports a conclusion of obviousness. In the instant case, the simple substitution is related to substituting a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate with a coil that exchanges heat between a working fluid internal to the coil and a working fluid external to the coil; further the prior art to Tian teaches having a plate for exchanging heat between two working fluids is known, wherein Bayer teaches that plates and coils were art recognized equivalents at the time the invention was made for exchanging heat. Therefore, since modifying the prior art to Burns with having a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate, can easily be made without any change in the operation of the heat exchanger device; and in view of the teachings of the prior art to Tian and Bayer there will be reasonable expectations of success, it would have been obvious to have modified the invention of Burns by having a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate due to the simplicity of fabricating a plate relative to a coil. Further, because these two heat exchange shapes were art recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute a plate for a coil.
Burns fails to disclose a power unit for an aircraft comprising: a power unit inlet configured to supply the first fluid to the power unit, an engine and a power unit outlet configured for exhausting the first fluid out of the engine, wherein the power unit outlet comprises a heat exchanger.
Kershaw, also drawn to a heat exchanger for exhaust gas, teaches a power unit for an aircraft (“The invention may be applied to many designs of jet propulsion units and gas turbine engines, for instance such units and engines including fuel vapour or mixed such vapour and combustion gas or water steam driven turbines or other kinds of mechanical power units, such as piston engines so driven, producing auxiliary or main power are contemplated”) comprising:
a power unit inlet (shown in figure 1, being the air inlet to the combustor (1)) configured to supply the first fluid to the power unit (shown in figure 1), an engine (see previous annotation) and a power unit outlet configured for exhausting the first fluid out of the engine (shown in figure 1), wherein the power unit outlet comprises a heat exchanger (“fuel boilers comprise, in the top half of Fig. 4, a ring of tube vaporizers 8…Both these boilers may be modified to suit for example, their placing in or around manifold 2, by tapering these assemblies” (underline for emphasis)).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the heat exchanger of Burns in a power unit for an aircraft comprising: a power unit inlet configured to supply the first fluid to the power unit, an engine and a power unit outlet configured for exhausting the first fluid out of the engine, wherein the power unit outlet comprises a heat exchanger, as taught by Kershaw, the motivation being “to improve the overall efficiency of such jet propulsion units and gas turbine engines, by utilizing alternative fuel boiler placings and arrangements” or “By preheating the liquid fuel and superheating its vapour said fuel can be utilized more economically for the purpose of compressing the air for combustion for example, giving a further improved overall efficiency in the plant”.
Regarding limitations ““for an aircraft”, “inlet” and “outlet” recited in Claim 1, which are directed to an intended use for the heat exchanger, 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.
In product-by-process claims, as in Claim 14, “once a product appearing to be substantially identical is found and a 35 U.S.C. 103 rejection [is] made, the burden shifts to the applicant to show an unobvious difference” MPEP 2113. This rejection under 35 U.S.C. 103 is proper because the "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). The combination of previous references meets the structural limitations put forth in Claim 14, wherein the final product existing after fabrication is compared to prior art for the purposes of patentability. The limitations regarding “discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld” are drawn to methods of production and not the structural aspects of the instant invention.
Regarding Claim 15, Burns fails to disclose the attaching means is: fixed along the longitudinal direction and a vertical direction.
Bayer, also drawn to a heat exchanger for exhaust, teaches the attaching means (52, 53) is: fixed along the longitudinal direction and a vertical direction (shown in figure 5, wherein the flange connection exists in both a longitudinal direction and a vertical direction).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Burns with attaching means being: fixed along the longitudinal direction and a vertical direction, as taught by Bayer, the motivation being that fabricating the liner in portions lessens the manufacturing complexity compared to producing the liner in a single piece.
Alternately, Burns discloses the claimed invention except for the liner comprising portions and an attaching means configured to fix the portions together. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to have the liner comprising portions and an attaching means configured to fix the portions together, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. See MPEP 2144.04 V (C).
Further, the air conditioner unit of claim 1 is not orientation specific. Thus the difference between horizontal and vertical is 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.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Burns (USP 5097801A) in view of Tian et al. (Translation of CN115096113A) in view of Bayer et al. (Translation of DE4141556A1) in view of Kershaw (GB2119447A) as applied in Claim 14 above and in further view of Kun (USP 3757856A), hereinafter referred to as Kun.
Regarding Claim 16, Burns fails to disclose the attaching means and/or the collectors and sub-collector are: sealed with respect to the power unit outlet, encapsulated and sealed with respect to the power unit outlet, encapsulated and further comprises blocking means configured for opening or closing the fluidic communication with the power unit outlet, or encapsulated and in fluid communication with the power unit outlet.
Kun, also drawn to a heat exchanger, teaches attaching means (flanges connecting the flat tubes along the edges) are: sealed with respect to the unit outlet (“The edges of the sheets can be ‘potted’ as with epoxy resin to seal the sheets leak-tightly together to form tube-like configurations, an array of which can be sealed leak-tightly into a header to form a radiator assembly”, col. 15 ll. 35-39).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Burns with attaching means are: sealed with respect to the unit outlet, as taught by Kun, the motivation being to ensure no leakage occurs from the heat exchanger.
Regarding Claim 17, a modified Burns teaches an aircraft (“The longitudinal and lateral attitude control of an aircraft”, of Kershaw) comprising the power unit according to claim 14 (see rejection of Claim 14).
Claims 1, 3, 5-6, 8, 10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Usui (Translation of JP2005351118A) in view of Burns et al. (USP 5097801A) hereinafter referred to as Usui and Burns, respectively.
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Usui Figure 4
Regarding Claim 1, Usui discloses a heat exchanger for an aircraft (see intended use analysis below), the heat exchanger arranged along a longitudinal direction (shown in figures 1 and 4) and comprising:
at least one plate (2c, shown in figure 4) having a first end and a second end opposite to the first end along the longitudinal direction (shown in figure 1, wherein the heat transfer tubes (2c of figure 4) have an end adjacent the outlet for the gas flow path, as shown in figure 7), wherein the at least one plate comprises an inner hollow volume (shown in figure 4) configured to house a second fluid (W) to transfer heat from a first fluid located outside the at least one plate to the second fluid in the at least one plate (heat transfer occurs between the cooling water (W) and the gas flow along the gas flow direction (g)),
a first collector (shown in figure 4 that corresponds to P-1 as shown in figure 1) and a second collector (shown in figure 4 that corresponds to P-2 as shown in figure 1) configured to respectively output the second fluid off the at least one plate and input the second fluid into the at least one plate (shown in figure 1), wherein
the first collector is located at the first end of the at least one plate (shown in figure 1) and the second collector is located at the second end of the at least one plate (shown in figure 1, wherein the collectors are formed at opposing ends of the plate (2)), the first collector comprises at least one fluid outlet and the second collector comprises at least one fluid inlet (shown in annotated figure 4 above), wherein the first collector and the second collector are configured to be in fluidic communication with the inner hollow volume of the at least one plate, the at least one fluid outlet and the at least one fluid inlet (shown in figures 1 and 4, wherein the fluid flows from the inlet to the outlet within the heat transfer tube (2)),
at least one first sub-collector configured to connect the first collector to the first end of the at least one plate (shown in annotated figure 4 above),
at least one second sub-collector configured for connecting the second collector to the second end of the at least one plate (shown in annotated figure 4 above and figure 1 for the position of the “Sub-Collector”), and
a liner (6) extending along a length according to the longitudinal direction (shown in figure 1), the liner configured to define an inner chamber (shown in figure 1), wherein
the at least one plate (2) comprises at least two sheets defining a fluid tight inner chamber (shown in figure 5, being the top wall and side wall), said sheets being coupled to each other by discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld (see product by process analysis below, “The heat transfer tube incorporated in the EGR gas cooling device is molded into a container shape by deep drawing, and the edge portion of the upper open portion and the upper lid portion are joined in a liquid-tight manner by welding”).
Although Usui discloses a liner (6) confining the fluid flow paths and plates, extending along a length according to the longitudinal direction (shown in figure 1), Usui fails to disclose the liner configured to define an inner chamber confining the at least one plate, the first collector, the second collector, the first sub-collector and the second sub-collector.
Burns, also drawn to a waste energy heat exchanger, teaches a liner (2) configured to define an inner chamber (shown in figures 2 and 5) confining the at least one coil (shown in figure 1), a first collector (left side ring manifold shown in figure 5), the second collector (right side ring manifold shown in figure 5), a first sub-collector (the bottom and left most initial vertical piping fluidly connecting the left side ring manifold to the coil) and a second sub-collector (the bottom and left most initial vertical piping fluidly connecting the right side ring manifold to the coil). It is noted that Usui discloses the plates being situated within the liner for utilizing waste heat, wherein Burns teaches the heat exchanger in its entirety is known for being placed within a liner for capturing waste heat.
The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art.
Per MPEP 2143-I, a simple substitution of one known element for another, with a reasonable expectation of success supports a conclusion of obviousness. In the instant case, the simple substitution is related to substituting a liner that confines at least one plate, the first collector, the second collector, the first sub-collector and the second sub-collector with a liner that does not confine at least one plate, the first collector, the second collector, the first sub-collector and the second sub-collector; further the prior art to Burns teaches that confining heat exchanger components within a liner is known for maximizing heat exchange due to increased contact surface area. Therefore, since modifying the prior art to Usui with having the at least one plate, the first collector, the second collector, the first sub-collector and the second sub-collector being placed within an inner chamber, can easily be made without any change in the operation of the heat exchanger device; and in view of the teachings of the prior art to Burns there will be reasonable expectations of success, it would have been obvious to have modified the invention of Usui by having the at least one plate, the first collector, the second collector, the first sub-collector and the second sub-collector being placed within an inner chamber in order to maximize heat transfer efficiency between the working fluids.
Regarding limitations “for an aircraft”, “inlet” and “outlet” recited in Claim 1, which are directed to an intended use for the heat exchanger, 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.
In product-by-process claims, as in Claim 1, “once a product appearing to be substantially identical is found and a 35 U.S.C. 103 rejection [is] made, the burden shifts to the applicant to show an unobvious difference” MPEP 2113. This rejection under 35 U.S.C. 103 is proper because the "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). The combination of previous references meets the structural limitations put forth in Claim 1, wherein the final product existing after fabrication is compared to prior art for the purposes of patentability. The limitations regarding “discrete spot welds joining respective portions of each sheet and, across their corresponding contours by means of a continuous weld” are drawn to methods of production and not the structural aspects of the instant invention.
Regarding Claim 3, Usui discloses the first collector and the second collector each have at least one of a circular shape (shown in figures 1 and 4, wherein the inlet/outlet tubes for delivering the cooling medium (W) have a circular cross sectional shape).
Regarding Claim 5, Usui further discloses the at least one plate (2) is comprises plates (shown in figure 4).
Regarding Claim 6, Usui further discloses the plates (2) are parallel to each other according to the longitudinal direction (shown in figures 1 and 4) and are perpendicular with to a horizontal plane (shown in figures 1 and 4).
Regarding Claim 8, Usui further discloses the second fluid is one or more of: water (W, “the cooling medium W mainly using engine cooling water”).
Regarding Claim 10, Usui further discloses the at least one fluid outlet of the first collector (shown in annotated figure 4 above, “Inlets/Outlets”) and the at least one fluid inlet of the second collector (shown in annotated figure 4 above, “Inlets/Outlets”) are each oriented in a vertical direction (shown in annotated figure 4 above, wherein the “Inlets/Outlets” extends in a vertical direction).
Regarding Claim 13, Usui further discloses the liner is at least one of gastight (shown in figure 1 and 7, wherein the working fluid travels through the heat exchanger without leaking).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Usui (Translation of JP2005351118A) in view of Burns et al. (USP 5097801A) as applied in Claims 1, 3, 5-6, 8, 10 and 13 above in view of Burns (USP 4122801A) and in further view of Mastronarde (US PG Pub. 20090173072A1), hereinafter referred to Burns2 and Mastronarde, respectively.
Regarding Claim 4, Usui fails to teach the first collector and the second sub-collector are each curved along their respective lengths.
Burns2, also drawn to a waste energy heat exchanger, teaches the first collector (7) is curved (shown in figure 1) along its respective length.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the first collector of Usui being curved, as taught by Burns2, the motivation being that curved pipes introduce less resistance to the working fluid thereby lessening the degree of pressure drop within the system.
Alternately, Usui discloses the claimed invention except for the first collector being curved. It would have been obvious matter of design choice to have the first collector of Usui being curved, since such a modification would have involved a mere change in shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 IV (B).
Mastronarde, also draw drawn a recuperator heat exchanger, teaches the second sub-collector (220B) is curved along its respective length (shown in figure 3).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the second sub-collector of Usui being curved along its respective length, as taught by Mastronarde, the motivation being that curved pipes introduce less resistance to the working fluid thereby lessening the degree of pressure drop within the system.
Alternately, Usui discloses the claimed invention except for the second sub-collector being curved. It would have been obvious matter of design choice to have the second sub-collector of Usui being curved, since such a modification would have involved a mere change in shape of a component. A change in shape is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 IV (B).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Usui (Translation of JP2005351118A) in view of Burns et al. (USP 5097801A) as applied in Claims 1, 3, 5-6, 8, 10 and 13 above and in further view of Hamert et al. (Translation of FR2771802A1), hereinafter referred to Hamert.
Regarding Claim 7, Usui fails to disclose the plates are arranged in a stepped pattern wherein the plates have a center plate with a first area and the plates have successively smaller areas the further the plate is away from the center plate along a direction in the horizontal plane and perpendicular to the longitudinal direction.
Hamert, also drawn to a heat exchanger, teaches plates (1) are arranged in a stepped pattern (shown in figure 6) wherein the plates have a center plate with a first area and the plates have successively smaller areas the further the plate is away from the center plate along a direction in the horizontal plane and perpendicular to the longitudinal direction (shown in figure 6).
The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art.
Per MPEP 2143-I, a simple substitution of one known element for another, with a reasonable expectation of success supports a conclusion of obviousness. In the instant case, the simple substitution is related to substituting aligned plates of the same height with plates being arranged in a stepped pattern; further the prior art to Hamert teaches arranging plates in a stepped pattern (shown in figure 6) is known for “increasing width of the ends towards the center” for a larger heat transfer surface, while also being equivalent to aligning the plates having a same height (shown in figure 5). Therefore, since modifying the prior art to Usui with having plates being arranged in a stepped pattern, can easily be made without any change in the operation of the heat exchanger device; and in view of the teachings of the prior art to Hamert there will be reasonable expectations of success, it would have been obvious to have modified the invention of Usui by having plates being arranged in a stepped pattern in order to increase the width of the heat exchanging plates.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Usui (Translation of JP2005351118A) in view of Burns et al. (USP 5097801A) as applied in Claims 1, 3, 5-6, 8, 10 and 13 above and in further view of Vandermolen (US PG Pub. 20050235627A1), hereinafter referred to as Vandermolen.
Regarding Claim 9, Usui fails to disclose the at least one fluid outlet of the first collector and the at least one fluid inlet of the second collector are each elbow shaped.
Vandermolen, also drawn to an exhaust heat exchanger, teaches at least one fluid outlet (72) of the first collector (56) and the at least one fluid inlet (74) of the second collector (58) are each elbow shaped (shown in figures 4-6).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Usui with the at least one fluid outlet of the first collector and the at least one fluid inlet of the second collector are each elbow shaped, as taught by Vandermolen, the motivation being that elbow shapes are known for directing working fluid with less resistance or to conform to a preexisting system having tight vertical clearances, wherein the elbows face installed fluid sources.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Usui (Translation of JP2005351118A) in view of Burns et al. (USP 5097801A) as applied in Claims 1, 3, 5-6, 8, 10 and 13 above and in further view of Bond et al. (USP 11162424B2), hereinafter referred to as Bond.
Regarding Claim 11, although Usui discloses the first and second collector respectively each comprise a fluid outlet and a fluid inlet, Usui fails to disclose the first and second collectors respectively each comprise two fluid outlets and two fluid inlets, the two fluid outlets being in fluidic communication and connected to one another, the two fluid inlets being in fluidic communication and connected to one another, and the two fluid outlets and the two fluid inlets are respectively located on opposite sides of the first collector and of the second collector.
Bond, also drawn to a heat exchanger having a ring manifold, teaches a first (110) and second (106) collectors respectively each comprise two fluid outlets (142) and two fluid inlets (140), the two fluid outlets (142) being in fluidic communication and connected to one another (shown in figure 7C), the two fluid inlets (140) being in fluidic communication and connected to one another (shown in figure 7D), and the two fluid outlets and the two fluid inlets are respectively located on opposite sides of the first collector and of the second collector (shown in figure 7F).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the first and second collector of Usui with two fluid outlets and two fluid inlets, the two fluid outlets being in fluidic communication and connected to one another, the two fluid inlets being in fluidic communication and connected to one another, and the two fluid outlets and the two fluid inlets are respectively located on opposite sides of the first collector and of the second collector, as taught by Bond, the motivation being to allow for a fluid inlet or outlet to be fluidly connected to another header or heat exchanger in order to increase heat transfer.
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Burns2 (USP 4122801A) in view of Tian et al. (Translation of CN115096113A) and in further view of Bayer et al. (Translation of DE4141556A1), hereinafter referred to as Burns, Tian and Bayer, respectively.
Regarding Claim 18, Burns2 discloses a heat exchanger configured to be positioned in a tail cone section of a fuselage of an aircraft (see intended use analysis below), the heat exchanger comprising:
a liner (10) including a hot gas inlet, a hot gas outlet and a hot gas passage between the hot gas inlet and outlet (shown in figures 1 and 6), wherein
the hot gas inlet is configured to receive hot exhaust gas (shown in figure 6, wherein the flue pipe receives the gas from the furnace) from an auxiliary power unit in the tail cone section (see intended use analysis below);
coils (9) in the liner (shown in figure 1), wherein each of the coils includes a hollow volume within the coil (shown in figure 1, allowing for the passage of the water), wherein the coils are arranged in the hot gas passage (10) such that hot gases from the auxiliary power unit (see intended use analysis below) flow over surfaces of the coils as the hot gases flow through the hot gas passage (shown in figures 1 and 6);
a first collector (7) proximate the first ends of the coils and extending around at least a plurality of the coils (shown in figure 1, being the left ring collector (7)), wherein the first collector includes a fluid passage in fluid communication with the hollow volumes of the coils and an inlet for a second fluid (shown in figure 1);
a second collector (7) proximate the second ends of the coils and extending around at least a plurality of the coils (shown in figure 1, being the right ring collector (7)), wherein the second collector includes an internal fluid passage in fluid communication with the hollow volumes of the coils and an outlet for a second fluid (shown in figure 1);
first sub-collectors each connected to the first collector and the coils (shown in figure 1, being the initial piping attaching the left ring manifold (7) to the respective coil (9)), and forming fluid passages between the coils and the first collector (shown in figure 1), and second sub-collectors each connected to the second collector and the coils (shown in figure 1, being the initial piping attaching the right ring manifold (7) to the respective coil (9)), and forming fluid passages between the coils and the second collector (shown in figure 1).
Burns2 fails to disclose a plate, wherein each of the plates include a hollow volume within the plate, a closed first end facing the hot gas outlet and a closed second end facing the hot gas inlet.
Tian, also drawn to a heat exchanger with a first collector (the top conveying pipe (5), shown in figure 3) and a second collector (shown in figure 3, being the bottom conveying pipe) configured to respectively output the second fluid off the at least one plate (41) and input the second fluid into the at least one plate (41, shown in figure 3), wherein the first collector is located at the first end of the at least one plate (shown in figure 3) and the second collector is located at the second end of the at least one plate (shown in figure 3), teaches a plate (41), wherein each of the plates include a hollow volume within the plate (shown in figure 3, allowing for the working fluid to pass from the inlet ring manifold, through the respective plate and to the outlet ring manifold), a closed first end facing the hot gas outlet and a closed second end facing the hot gas inlet (shown in figure 3). Further, Bayer teaches it is known to substitute a coil (shown in figure 3) for flat tubes (shown in figure 5) in a recuperating heat exchanger.
The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art.
Per MPEP 2143-I, a simple substitution of one known element for another, with a reasonable expectation of success supports a conclusion of obviousness. In the instant case, the simple substitution is related to substituting a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate with a coil that exchanges heat between a working fluid internal to the coil and a working fluid external to the coil; further the prior art to Tian teaches having a plate for exchanging heat between two working fluids is known, wherein Bayer teaches that plates and coils were art recognized equivalents at the time the invention was made for exchanging heat. Therefore, since modifying the prior art to Burns2 with having a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate, can easily be made without any change in the operation of the heat exchanger device; and in view of the teachings of the prior art to Tian and Bayer there will be reasonable expectations of success, it would have been obvious to have modified the invention of Burns2 by having a plate that exchanges heat between a working fluid internal to the plate and a working fluid external to the plate due to the simplicity of fabricating a plate relative to a coil. Further, because these two heat exchange shapes were art recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute a plate for a coil.
Regarding limitations “configured to be positioned in a tail cone section of a fuselage of an aircraft”, “hot”, “exhaust” “hot exhaust gas from an auxiliary power unit in the tail cone section” “outlet” “outlet” and “outlet” recited in Claim 18, which are directed to an intended use for the heat exchanger, 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 19, Burns2 further discloses the first collector (7) and the second collector (7) are external to the liner (shown in figure 1).
Regarding Claim 20, a modified Burns2 teaches each of the plates includes parallel sheets attached to each other by spot welds (“the inner heat exchange plate, the outer heat exchange plate comprises two oppositely set plate sheets, the peripheral edge of the two plate sheets are welded and fixed”, see also product by process analysis below) and the hollow volume is formed by gaps between the sheets (shown in figure 3, wherein the working fluid travels through the inner and outer heat exchange plates).
In product-by-process claims, as in Claim 20, “once a product appearing to be substantially identical is found and a 35 U.S.C. 103 rejection [is] made, the burden shifts to the applicant to show an unobvious difference” MPEP 2113. This rejection under 35 U.S.C. 103 is proper because the "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). The combination of previous references meets the structural limitations put forth in Claim 20, wherein the final product existing after fabrication is compared to prior art for the purposes of patentability. The limitations regarding “attached to each other by spot welds” are drawn to methods of production and not the structural aspects of the instant invention.
Conclusion
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/PAUL ALVARE/Primary Examiner, Art Unit 3763