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` 001/047
`
`European Patent Attorneys
`Chartered Patent Attorneys
`Trade Mark Attorneys
`
`
`lflhrn
`Strode
`
`
`
`Kiiburn Et Strode LLP
`20 Red Lion Street
`London WC1R 4P.]
`Tel:
`+44 (0}20-7539 4200
`Fax: +44 (0}ZO-7539 4299
`Email: ks@l<strode.co.uk
`Website: www.i<_strode.co.uk
`
`FAX TRANSMISSION Page 1 of 47
`
`European l’atent Office
`Erhardtstrasse 27
`D-80298 Mtinchen
`
`Germany
`
`Our Ref:
`Your Ref:
`
`PNI35824/CH
`
`_
`
`_
`
`20 Dcember 2010
`
`Dear Sirs
`
`European Pate11tNo. 1716216 (05744161.0)
`In the name of Honeywell International Inc.
`
`Nine oppositions have been filed to the grant of the above Patent, and a deadline has recently been
`set for the Proprietor to respond to those oppositions. This response is filed to the arguments
`made in one of those oppositions (that of Arkema France), and the Proprietor’s response to the
`remaining oppositions will be filed in due course. Thus, for procedural clarity, the deadline set by
`the EPO for the Proprietor’s response should remain in place.
`
`At present, there is an infringement action involving the Patent in suit pending trial before the
`Dusseldorf Regional Court, between the Proprietor and Opponent Arkema France. As part of that
`infringement action it is desirable to furnish to the Dusseldorf Regional Court the Proprietor’s
`response to the opposition filed by Arkema France. Therefore, for this reason, the Proprietor’s
`response to that opposition, and solely that opposition, is now filed herewith, anda copy of this
`response will be filed at the Dusseldorf Regional Court. Note, however, that for avoidance of any
`doubt, this does not constitute a request for acceleration of the Opposition proceedings.
`
`1 .0
`
`Reg uests
`
`1.1
`
`I hereby request that the Opposition be rejected, and that the Patent be maintained in the
`form in which it was granted.
`'
`
`1.2
`
`Prior to any decision other than this, I request the appointment of Oral Proceedings.
`
`
`
`CONFIDENTIALITY: The information in this communication is confidential and may be privileged. If you are not
`the intended recipient referred to above you should not disclose any of the contents to anyone, make copies or take
`any action in reliance upon it. If you have received this communication in en'or please contact the sender. We will
`1593733"1rnake arrangements for it to be collected. Thank you.
`
`Kilburn & Strode Ll .P is registered in England and Wales as a Limited Liability Partnership.
`Registered ‘No. OC34-2299 Registered Office: 20 Red Lion Street, London WClR 4PJ
`Regulated by the Intellectual Property Regulation Board.
`
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`1 of 47
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`Arkema Exhibit 1068
`
`Arkema Exhibit 1068
`
`1 of 47
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`2.0
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`2.1
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`2.2
`
`Summary
`
`Contrary to the Opponent’s arguments:
`
`(i) the subject matter of the claims of the Patent is directly and unambiguously derivable
`from the contents of the Application as originally filed (Articles 100(c) and 123(2) EPC);
`
`(ii) the disclosure in the Patent contains sufficient information for the claimed invention to
`be performed by the skilled reader (Aiticles l00(b) and 83 EPC);
`M
`
`(iii) the subject matter of the claims of the Patent is entitled to piiority; and
`
`(iv) the subject matter of the claims of the Patent is novel, and inventive over the prior art.
`
`Before dealing with the objections raised by the Opponent, it is worth spending some time
`to understand the historical and legislative background to the claimed invention,
`the
`challenges facing the industry at the priority date of the Patent, and the criticality of the
`claimed invention in meeting those challenges.
`
`. 3.0
`
`State of the Art
`
`3.1
`
`3.2
`
`3.3
`
`The technical field to which the Patent relates is that of automobile air conditioning. The
`automobile air conditioning sector is a specific sector within the broader refrigeration and
`air conditioning field.
`
`At the priority date (29 April 2004) of the Patent, the refrigeration and ‘air conditioning
`field was
`facing the
`significant challenge of
`finding environmentally acceptable
`alternatives
`to the hydrochlorofluorocarbon (HCFC) and hydrofluorocarbon (HFC)
`refrigerants in use at the time, because of their deleterious effect on the earth’s atmosphere
`and climate. As is explained below,
`this challenge was particularly acute for the
`automobile air conditioning sector which at
`the priority date used the HFC R—l34a
`(1,1,1,2—tetrafluoroethane) as the heat transfer fluid, which has a high global warming -
`potential (“GWP”).
`
`Air Carzditiartitzg
`
`At the highest level of generality, ”air—conditioning” may be defined as the process in
`which air is conditioned (heated, cooled, dehuinidified, filtered, etc.),
`transported and
`introduced into a space that is desired to be conditioned. The term embraces stationary and
`mobile (i.e. non-stationary) air—conditioning, and the different types of air-conditioning
`within these two distinct sections of the field. The term “HVAC” (Heating Ventilation and
`Air-Conditioning) is sometimes also used in the broadest sense to describe air—conditioning
`systems.
`
`315.93-?88v1
`
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`3.5
`
`3.6
`
`3.7
`
`3.8
`
`The refrigerant and air—co11ditioning industry recognises that there are specific and distinct
`sectors within the general field of heating and/or cooling applications, and even within the
`field of air-conditioning itself, based on the distinct technical parameters required for each
`sector. By way of example, at the priority date of the Patent (April 2004), the industry
`recognised a distinction between stationary air conditioning and automobile air—
`conditioning systems. Transport (land, marine and air) refrigeration is also recognised as
`another distinct field, encompassing systems for the distribution of chilled and frozen food.
`
`During prosecution of the Application, I referred to Chapter 19 of the textbook “Modern
`Refrigeration and Air—Conditioning” by Althouse er al (1988), filed herewith as Exhibit 1,
`which discusses different stationary air—conditioning systems (sections 19-9 to 19-16), heat
`pumps (sections 19-17 to 19-19) and automobile air-conditioning (sections 19-20). At
`section 19-20, Althouse comments:
`
`“To air condition a moving vehicle presents some problems not found in the usual
`refrigeration or air—conditioning installation” (see page 699).
`
`Although the differences between the different sectors relate in part to the particular design
`and/or components of the _air—conditioning equipment as well as the operating parameters
`of the system, it is undeniable and accepted in the industry that such differences have an
`impact on the choice and use of the particular heat transfer fluids and lubricants in that
`equipment. This impact is critical for the success or failure of the heat transfer _fluicl’s use
`within any given heating and/or cooling application.
`
`The way the industry has developed is illustrative of this, with specific heat transfer fluids
`being promoted for specific heating and/or cooling applications.
`I go into this in more
`detail in the discussion of “Refrigerants”, in paragraphs 3.36 to 3.41 below. A division of
`expertise and technical requirements extends to the equipment manufacturers in the
`different sectors, with equipment manufacturers designing and making automobile air-
`conditioning systems or stationary air-conditioning systems, but usually not both. A
`number of documents were relied upon during prosecution of the Application, to illustrate
`this point and are filed herewith as Exhibits 2 to 4 (Exhibit 2 — Research Report ABOUT
`Automotive “Global Market for Heating, Ventilation and Air-conditioning Systems”, 2006
`Edition, by Alex Graham; Exhibit 3 — Collection of BSRIA Market Reports for the
`European market for stationary air-conditioning equipment; and Exhibit 4 — BSRIA Report
`1994713, March 2008, cover page and pages 26 and 31).
`
`Exhibit 2 lists the major manufacturing companies in the automobile ainconditioning
`market (Denso, Valeo, Visteon, Delphi, Behr, Calsonic Kansei) in different territories and
`their global market share (see “Summary, page V and page 10). The BSRIA UK Market
`Reports (Exhibit 3) lists the companies involved in stationary air-conditioning market, with
`the major companies being Daikin, Fujitsu, Mitsubishi Electric, LG, Toshiba—Carrier and
`Panasonic (see pages 7-8). These same companies, together with others, are also active in
`the US stationary air-conditioning market (see Exhibit 4, pages 26 and 31).
`In these
`reports the automotive and stationary air-conditioning manufacturers are distinct.
`
`‘i893785V1
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`3.9
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`3.10
`
`3.11
`
`3.12
`
`3.13
`
`The distinction between the fields of automotive and stationary air-conditioning is also
`reflected in the governing bodies for those fields. For example, in the US, standards and
`guidelines for automotive air conditioning are set by Society of Automotive Engineers
`(SAE). The American Society of Heating, Refrigeration and Air—conditioning Engineers
`(ASHRAE),
`the American Refrigeration Institute (ARI) and American Society of
`Mechanical Engineers (ASME) set guidelines a11d standards for stationary equipment. See
`page 5, left-hand column Exhibit 5 - Pollution Prevention Fact Sheet, Pollution Prevention
`Program e Federal Programs Division, Managing Controlled Refiigerants, January 1.997,
`pages 1-8, which states that:
`
`“Stationary vs. Mobile
`
`There are different design criteria, standards and guidelines for rel‘rigeration and
`air—conditioning equipment.
`
`there are ASHRAE (American Society of Heating,
`For stationary equipment,
`Refrigeration and Ainconditioning Engineers), ARI
`(American Refrigeration
`Institute) and ASME (American Society of Mechanical Engineers) Codes and
`Codes of Practice. When dealing with mobile equipment, one should follow the
`SAE (Society of Automotive Engineers) Standards a11d Guidelines”.
`
`Further the technicians who service automobile air conditioning systems also have their
`own trade association, the Mobile Air Conditioning Society (MACS). See Exhibit 6 —
`print-out of the “ABOUT MACS” page from the MACS website.
`
`Automobile air—c0na’itz'0nfng
`
`Automobile air—conditioning systems represent a distinct technical field that operates under
`particular technical parameters and constraints which set it apart from other heating and
`cooling applications, and other air—conditioning applications. I will consider the distinct
`requirements of automobile air—conditioning systems in further detail below, but will first
`consider the underlying thermodynamic principles.
`
`the vapour
`Like many refrigeration applications, automobile air-conditioning uses
`compression cycle and changes of state of the heat transfer fluid used in the cycle to cool
`the air in the vehicle passenger cornpartrnent.
`
`The vapour compression cycle comprises four discrete stops:
`
`(i)
`
`refiigerant vapotu‘ is compressed (and at the same time heated) in the compressor,
`thus transferring the refrigerant vapour from the system’s low pressure side to its
`high pressure side;
`
`18Q3788v1
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`(ii)
`
`(iii)
`
`this hot, high pressure vapour is then condensed in the condenser to form a liquid at
`high pressure, with the change of state resulting in a transfer of heat into the
`ambient air;
`
`to expansion in an expansion valve,
`the high pressure liquid is then subject
`lowering the pressure (and temperature) of the liquid refrigerant, and thus
`transferring the refrigerant back to the low pressure side of the system;
`
`finally, the low pressure liquid refrigerant is evaporated under low pressure in the
`evaporator, taking heat from the ambient air and resulting in a cooling effect. The
`low pressure vapour so-produced is then sucked into the compressor, and the cycle
`begins again.
`
`3.14
`
`This can be shown schematically as:
`
`Warm Side ‘F ftfigti Presstlre
`
`Step 2: Lic1u»:f'a::tionr"
`,..~.-we Volum.e reduction during
`
`heat reict;tior1
`1
` Corrdeztser
`
`
`
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`eolnpressionfvoluizae
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`quick
`expansion!‘
`volume-
`extension
`
`Step_. 4:
`Evapozratienivoiu
`me expansion
`during hear
`absorption
`
`I
`
`Cold Side T_ lloow Pressure
`
`Q
`
`1893788v1
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`Page 6
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`Although the vapour compression cycle forms the theoretical basis for many refrigeration
`applications, specific refrigeration applications have their own technical specificities or
`requirements, and which, as a result, place specific demands on the heat transfer fluids
`used in those applications.
`
`During prosecution of the Application, I also referred to Chapter 21 “Automotive Air
`Conditioning” from the textbook “Refrigeration and Air—Conditioning” by Langley (3rd
`edition (1986), pages 525-53; Exhibit 7)
`to illustrate the technical specificitics of the
`components of automobile air conditioning systems.
`
`A more specialised review of the essential requirements of automobile air—conditioning
`were described by a French expert in the field of automobile air-conditioning systems,
`Professor Denis Clodic, Professor at the Ecole des Mines de Paris and Assistant Manager
`of the Centre for Energy Studies, in a Report dated December 1995 and entitled “Etude sur
`la climatisation automobile” (Exhibit 8; partial English translation Exhibit 8a). The Clodic
`1995 Report represents part of the skilled man’s common general knowledge in 1995.
`
`the hood or bonnet of an
`Automobile air-conditioning systems are mounted under
`automobile as shown below. The accompanying pressure—enthalpy diagram shows the
`changes of state and of pressure taking place as the heat transfer fluid moves through each
`part of the system, from tho exit (A) of the evaporator,
`through the compressor,
`the
`condenser, the receiver and the expansion valve (B to D), and back to the evaporator.
`
`3.15
`
`3.16
`
`3.18
`
`
`
`l
`
`1893788v1
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`3.19
`
`3.20
`
`3.21
`
`3.22
`
`3.23
`
`While the vapour compression cycle has the same characteristics as in other refrigeration
`systems, the specificities of an automobile air—conditioning system are highlighted below.
`
`The compressor in an automobile air—conditioning system is typically driven directly by
`the engine via a pulley and belt system, and runs at variable speeds due to engine speed
`variation.
`In contrast, the compressor of a static (or residential) air conditioner or of a heat
`pump operate at a fixed speed, or at a speed that is selected to provide the desired cooling
`capacity (see page 18, paragraphs 2 and 3, Exhibit 8).
`
`Automotive air conditioners must be able to provide cooling over a very Wide range of
`operating conditions, as determined by fluctuations in the driving cycle,
`involving
`variation in engine and driving speeds, and variations in ambient temperature across the
`global market for which automobiles are designed. The cooling capacity required varies
`widely, from 200W up to 7000W (e.g., in urban conditions) (see page 18, paragraph 6,
`Exhibit 8). This has a number of important implications. Firstly, the refrigerant fluid must
`be able to condense over a wide range of condenser temperatures, as determined by
`external conditions (e.g., hot summer temperature, hot geographical
`locations) andfor
`driving conditions (idling as compared to highway driving), including at temperatures up
`to and in excess of 65°C. Secondly, the refrigerant fluid must be able to withstand very
`high discharge temperatures, for instance in the range of 66—93°C for R-12.:
`
`The unique design of an automobile air-conditioning system, with the condenser located at
`the front of the radiator within the engine conipartment, contributes to the higher
`condensing temperature of the refrigerant gas seen in automotive air—eonditioners, as
`compared to the condensing temperatures seen in other refrigeration systems.
`In order to
`effectively cool the vehicle cabin it‘is necessary for the condenser to transfer heat into the
`hot engine compartment, which may be at
`least 20°C higher than the external air
`tcmpcrature. The temperature of the engine compartment also depends on how the vehicle
`is being driven and would be hotter when the car is idling in say an urban environment on
`a hot summer’s day, with condenser-heated exhaust air being recirculated back to the inlet
`of the condenser, and heat radiating from hot road surfacing. Thus, at outside air
`temperatures of 40°C and higher,
`the temperature within the engine compartment may
`reach 60°C or higher. If the condenser is to transfer heat into the engine compartinent, and
`provide the desired cooling effect, the condensing temperature must be even higher still
`(see Exhibit 8, pages 24, 26 and 27.)
`
`To reflect the effects of variation in temperature and/or engine speed, automobile air
`conditioning systems are conventionally tested under a wide range of operating conditions.
`Three sets of operating conditions, or cycles, are described in Clodic’s 1995 Report (see
`page 24, Exhibit 8). The first of these, Fl, relates to operation at a stabilised speed of
`120 kin/h on a motorway with total air renewal, and different condensation temperatures of
`38°C and 50°C. The second cycle, F2, is described as an “urban cycle” with the engine
`idling at low speed, and in this condition the condensing temperature is quoted as 65°C.
`The third cycle, F3, represents turning—on the vehicle after exposure to the sun for two
`
`1893788v1
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`hours, resulting in an increase in the internal temperature to 50°C.
`condensing temperature is quoted as around 50°C.
`
`in this cycle, the
`
`3.24
`
`Further discussion of the different cycles appears at pages 26 and 27 of the Report, with
`the condensing temperature ranging from 38°C (at stabilised speed) up to 65°C (in an
`urban cycle — with the engine idling), and the corresponding discharge temperatures
`ranging from 66°C up to 93°C, in the case of R—12.
`Indeed, at the bottom of page 26,
`above the table, Ciodic observes that for external temperatures of 40°C, which is in no way
`the maximum extemal
`temperature that might be encountered by an automobile,
`condensation temperatures can reach 65°C.
`
`industry, and
`the automobile industry ‘is a global
`in paragraph 3.21,
`3.25 As noted above,
`automotive air conditioning systems must be able to provide cooling over the entire range
`of operating conditions encountered in use anywhere and at any time in the world,
`_ including ambient temperatures in excess of 40°C.
`
`3.26
`
`The high condensing temperatures referred to by Professor Clodic are consistent with the
`disclosure in US 3,607,755 which was referred to during prosecution of the Application
`and which describes a suitable condensing temperature for use with R12 in an automobile
`air-conditioning system as 160°F {~7l°C) (see Exhibit 9).
`
`To cope with the wider range of operating conditions encountered, and the corresponding
`wide variation in cooling capacity required, automobile air-conditioning systems require a
`receiver/drier
`located at
`the condenser exit or an accumulator/drier
`located at
`the
`
`evaporator exit, to store a quantity of refrigerant fluid for distribution according to changes
`in the operating conditions (see page 18, paragraph 7 and page 19, paragraph 2, Exhibit 8).
`This requirement for a receiver/drier or accumulator/drier is essential to automobile air-
`eonditioning systems, but not to other vapour compression systems such as, for instance,
`heat pumps.
`
`3.28
`
`3.29
`
`The unique design of an automotive air-conditioning system also necessitates the use of
`different equipment to that used in other refrigeration systems. As mentioned above, in
`paragraph 3.22, in automobile air-conditioning systems, the condenser is located in front of
`the radiator, the evaporator behind the dashboard, and the compressor mounted on the
`engine. Due to the vibrations experienced in a moving vehicle, and in particular the
`relative motion between the compressor mounted on the engine and the other components
`of the system which are mounted on the car body, the components of automobile air-
`conditioning systems must be connected by flexible hoses rather than the rigid (and
`breakable) metal
`tubing used in stationary air-conditioning systems (see page 18,
`paragraphs 4 and 5, Exhibit 8).
`
`A chosen refrigerant must be compatible with the equipment with which it is to be used; it
`must be chemically stable, and not interact with any of the materials from which the
`equipment
`is made.
`The flexible hoses, made of rubber or plastics, have different
`compatibility requirements to the metal hosing used in stationary systems.
`'
`I
`
`.“_
`
`1893788v1
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`3.30
`
`3.31
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`3.32
`
`3.33
`
`3.34
`
`3.35
`
`In addition, the flexible hoses are subject to extreme stress from vibration, temperature and
`location of the compressor. As a result, refrigerant fluid can be lost through leakage due to
`these stresses. Further loss of refrigerant can be through the flexible hoses’ intrinsic
`permeability. See page 19, paragraphs 5 to 7, Exhibit 8.
`
`Yet further, the automobile air—eondiLioning environment poses unique safety challenged,
`due to i) its close proximity to the engine which typically contains petrol, and ii) its use in
`conditioning a small, confined space containing humans, generally not encountered in
`other cooling and heating applications. Thus, automobile air-conditioning systems create
`specific flammability and toxicity constraints distinct from other heating and cooling
`applications.
`
`these specific Characteristics of an automobile air~conditioriing system have a
`All
`significant impact on the properties required, and thus the choice, of a heat transfer fluid
`for use in such a system.
`It is readily apparent that heat transfer fluids disclosed as suitable
`for one particular heating or cooling application are not necessarily, or obviously, suitable
`for use in automobile air—conditioning.
`
`The particular issues facing the industry seeking to identify an appropriate heat transfer
`fluid to replace HFC—l34a in automobile air-conditioning are discussed below.
`
`Heating in Automobiles
`
`In seine stationary air-conditioning systems, the vapour compression cycle is also used to
`provide heating (either as a heating-only unit or through use of a series of additional valves
`which allow the refrigerant flow to be switched). Such systems are conventionally referred
`to as heat pumps.
`
`However, in automobiles heating is achieved through the passage of air over the hot engine
`coolant fluid in the heater core, and into the passenger cabin. This system of providing
`heat in an automobile a.voids the severe safety implications which would be posed by use
`of a “reversible" air-conditioning system due to the phenomenon of “flash fogging”. Flash
`fogging occurs when an evaporator coil which retains water from earlier air—conditioning
`(cooling) operation, is suddenly switched to heating mode, thereby sending a moisture-
`laden air stream onto a cold windshield, fogging it almost instantaneously. To date, this
`situation has not been satisfactorily resolved by the industry and for this reason a reversible
`air-conditioning system, or heat pump, has not yet been used coirnnercially in automobiles.
`
`Historical and Legislative Backgromzd relating to Refrigerants
`
`3.36
`
`Chlorofluorocarbons (CFCS) had been in use as heat transfer fluids in heating and cooling
`applications, including in air-conditioning, since their commercialisation in the 1930s. The
`CFCS possessed the appnopriate tliermodynarnic properties for use as refrigerants as well
`as being non—toxic, non-flammable, stable and non—eorrosive. However, research in the
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`19705 demonstrated that CFCS, and to a lesser extent HCFCS, were contributing to
`depletion of the ozone layer. These compounds create holes in the ozone layer of the
`atmosphere which protects the earth against harmful ultraviolet radiations from the sun.
`The ozone depleting effect of a fluid is quantified by a coefficient called the Ozone
`Depletion Potential (ODP), which has a value of l for the refrigerant R—1l, taken as a
`reference.
`
`On 16 September 1987 the Montreal Protocol was negotiated which mandated the phase-
`out of
`the CFCS,
`including R-ll
`(trichloromonotluoromethane, CCl3F), R—l2
`(dichlorodifluoromethane, CCIZFZ) and R-114 (dichlorotetrafluoroethane, CClF2CClF2).
`In
`Europe, CFC-12 production was stopped by 1 January 1995. The partially halogenated
`HCFC refrigerants such as R~22 (monochlorodifluoromethane, CHClF2) and blends
`containing R—22, such as R-502 (azeotropie mixture of 48.8% R—22 and 51.2% R-115)
`remained in use, but at that time there was uncertainty as to their long-term environmental
`acceptability.
`
`In the late 1980s, R—l1 and R-114 were used in centrifugal packaged refrigeration units for
`commercial and industrial air conditioning and chilling. R—l2 was used for refrigeration as
`well as being the principle refrigerant for automotive air conditioning. R-22 was used in
`air conditioners and heat pumps for residential and commercial applications as well as in
`some refrigeration systems. R-502 was used in supermarket freezers, refrigerated display
`cases, truck refrigeration and heat pumps.
`
`To meet the challenge of finding a replacement for the CFC refrigerants that provided the
`same benefits without
`the environmental drawbacks, companies,
`industry bodies and
`government bodies in the US, Japan and various European countries invested in extensive
`research progralnrnes. Seine of these research programmes are described by, for instance,
`Kruse (see Exhibit 10 - “CFC research programmes in Western Europe”, Int. J. Refrig.
`(1990) 13:12-30); Bivens and Minor (see Exhibit 11 — “Fluoroethers and other next-
`generation fluids”, ASHRAE/NIST Refrigerants Conference, October 1997, pages 122-
`34); and Smith (see Exhibit 12 m “New chemical alternatives for CFCs and HCFCS”, US
`EPA—A—600/17-92-012, 24 March 1992). Numerous options were considered including
`HFCs (R-134a and R-152a), CO2, various hydrocarbons and fluoroethers, as well as
`zeotropic, azeotropic and near—azeotropie blends.
`
`As a result of these research efforts, the automobile air-conditioning sector transitioned
`from R-12 to use of the refrigerant R-134a, an HFC, by the end of 1994. Although the
`conversion from R-12 to R—134a did not involve any major system changes, the estimated
`cost to the US industry alone was $US 5 billion.
`
`Other sectors of the refrigeration and air conditioning industry transitioned to different
`solutions.
`In the field of stationary air—conditioning, R~22 (CHCIFZ), R—4l0A (a 50:50
`blend of R—32 (CI-12132) and R-I25 (CHFgCF3)) and R-407C (a three component blend ofR-
`32, R-125 and R—134a) were adopted, while in the field of heat pumps mostly R-22,
`
`UJ
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`3.38
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`3.39
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`3.40
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`3.41
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`3 .43
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`3.44
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`3.45
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`3.46
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`In Europe, the field of stationary air-conditioning
`R-410A and R-407C are currently used.
`also looked into using hydrocarbons such as propane (R-290) for new equipment.
`
`However, at around the same time of the transition in automobile air-conditioning from R-
`12 to R-134a, further environmental concerns were being addressed by the United Nations
`Framework Convention on Climate Change (UNFCCC), which was adopted on
`9 May 1992, and in particular the problems of global warming. The problein of global
`warming results from an excess of greenhouse gases in the atmosphere, which act to retain
`solar energy from the sun within the atmosphere and to increase the earth’s temperature.
`The UNFCCC set as
`its aim the stabilisation of concentrations of greenhouse gas
`emissions at a level to avoid dangerous global warming, which ultimately culminated in
`the signing of the Kyoto Protocol on 11 December 1997.
`The HFCS were one class of
`greenhouse gas sought to be reduced.
`
`At the European level, the Kyoto Protocol was approved by the Council of the European
`Union by its Decision No. "2002/358/EC of 25 April 2002. This in turn led to the
`enactment of two key pieces of European legislation:
`
`(1)
`
`(2)
`
`EC Regulation No. 842/2006, which is general and tends to the reduction of certain
`greenhouse emissions; and
`
`European Directive 2006.t40/EC, which relates specifically to the emissions
`originating from the automobile air—conditioning systems, and which notably
`requires, in Article 5, that, as of 1 January 2011 member states cannot authorise a
`new type of car with an air—conditioning system designed to contain fluids with a
`GWP over 150, and as of llanuary 2017, such new cars can no longer be
`commercialised in Europe.
`
`In the meantime, and up until at least the priority date of the Patent in suit, HFC-134a
`remained the refrigerant of choice for automobile air—conditioning. However, with the
`adoption of the Kyoto Protocol, the automobile air—conditioning industry was confronted
`with finding another alternative refrigerant
`that had all
`the desired thermodynamic
`properties together with the appropriate toxicity, flammability, stability and compatibility
`profile and which could meet the two distinct, and independent, technical problems of
`global warming and of ozone depletion.
`
`l-lowever, HFC‘.-134a has a GWP of about 1400, and as a consequence under the European
`legislation, I-lFC—l34a must not be used in new automobile platforms in Europe by 2011,
`and must be phased out completely from all new vehicle production by 2017. This puts
`the importance of the claimed invention in providing an alternative into context.
`
`However, as set out in the 1997 paper by James Calm and David Didion “the probability of
`finding an ideal refrigerant, particularly with the exhaustive searchesperformed to date, is
`practically zero. Those waiting for a perfect solution will be disappointed” (see Exhibit 13
`
`i
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