Ex Parte Minard et alDownload PDFPatent Trial and Appeal BoardSep 26, 201412091215 (P.T.A.B. Sep. 26, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JAMES J. MINARD and MARK E. BUSH ____________________ Appeal 2012-007097 Application 12/091,215 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, LYNNE H. BROWNE, and MICHAEL L. WOODS, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE James J. Minard and Mark E. Bush (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 19–22, 24–32, 35, and 36 under 35 U.S.C. § 103(a) as unpatentable over Tentler (US 5,033,644, iss. July 23, 1991) and Namery (US 3,974,681, iss. August 17, 1976). Claims 23, 33, and 34 are indicated to be allowable. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2012-007097 Application 12/091,215 2 CLAIMED SUBJECT MATTER The claims are directed to a concentrate system. Claims 19 and 29 are independent. Claim 19 reproduced below, is illustrative of the claimed subject matter: 19. A concentrate system comprising: a fluid conduit, wherein concentrate flows from a concentrate container to a pump along the fluid conduit; and an ultrasonic sensor that generates ultrasonic waves to detect the concentrate in the fluid conduit and to detect when an amount of the concentrate in the fluid conduit is below a threshold value, wherein the ultrasonic sensor is located between the concentrate container and the pump. OPINION Claims 19–22, 24– 26, 28–32, and 351 Appellants argue claims 19–22, 24–26, 28–32, and 35 together. See Appeal Br. 3–4; Reply Br. 2. We select independent claim 19 as the illustrative claim, and claims 20–22, 24, 27–32, and 35 stand or fall with claim 19. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner finds that Tentler discloses a system as recited in claim 1, including, in pertinent part, flow sensors 71 and 72 between the fluid source and the pump. Ans. 4. However, the Examiner also finds that “Tentler is silent about using an ultra-sonic flow detector.” Id. The Examiner finds that “Namery shows an ultra-sonic flow detector 11 and 13 1 In the Appeal Brief, Appellants argue claims 26 and 36 separately stating that “[c]laims 26 and 36 recite that a locking ring secures an adapter plate to a pump head;” however, claim 27, not claim 26, recites this limitation. Appeal Br. 4. The Reply Brief correctly refers to claims 27 and 36. Reply Br. 2. Thus, we understand Appellants to be arguing claims 27 and 36 separately and to include claim 26 with claims 19–22, 24, 25, and 28–32. Appeal 2012-007097 Application 12/091,215 3 mounted on wings 28 and 24 and secured to conduit 25 by locking ring 88.” Id. The Examiner concludes that it would have been obvious “to replace the flow meter in the device of Tentler with an ultra-sonic flow meter to detect air bubbles in the feed tube . . . as taught by Namery.” Id. at 4–5. According to the Examiner, the use of ultrasonic sensors in Tentler’s device would provide a more reliable, less flow intrusive and less expensive manner to control the flow of fluid through the device. Id. at 5; see Namery, col. 4, ll. 57–60 (disclosing ultrasonic and small error probability); col. 5, ll. 4-6, 10, 11 (disclosing low cost and rugged sensor head). Appellants argue that “[a] main purpose of Tentler is how the sensors 71 and 72 operate. Modifying . . . sensors 71 and 72 to be ultrasonic sensors would completely change how Tentler functions.” Appeal Br. 3. Appellants further argue that “[it] is impermissible to modify a base reference in a manner that changes how the base reference functions.” Id. We note that Appellants’ assertion that how sensors 71 and 72 operate is a main purpose of Tentler, is simply attorney argument, unsupported by evidence. An attorney’s arguments in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Further, the Examiner determines that although “[t]he device of Namery does not control the flow in the same manner as the device of Tentler,” “the ultrasonic sensor of Namery can be employed to provide a control signal to any type of flow controller.” Ans. 5 (citing, Namery, col. 9, ll. 1626). The Examiner further explains that “[m]odifying the device of Tentler by substituting the mechanical sensors with ultrasonic sensors would not change the operation of the device, [as] the sensor would continue to monitor the flow and when the preset conditions are sensed by the sensors, an actuator would be activated to control the flow.” Id. Appellants do not identify, nor do we Appeal 2012-007097 Application 12/091,215 4 discern, any evidence that Tentler’s device would not operate equally as well with ultrasonic sensors as it does with mechanical sensors. Thus, Appellants do not apprise us of error. Appellants note that “Namery relates to a bubble detector used to detect air bubbles in intravenous feeding tubes to prevent air embolisms . . . The device has a very high threshold and small probability error due to the seriousness of air embolisms on the health of a patient.” Appeal Br. 3. Appellants further note that “Tentler relates to a syrup system and does not require this type of sensitivity.” Id., see also Reply Br. 1. Appellant argues that “[o]ne skilled in the art would not consider an expensive high sensitivity medical device when modifying a syrup system, which does not require such a high level of sensitivity.” Appeal Br. 3. Appellants’ assertion that one skilled in the art would not consider the teachings of Namery is also simply attorney’s argument, unsupported by evidence. Appellants do not point to any evidence in the record indicating that a person skilled in the art would not consider the increased precision afforded by the higher sensitivity flow sensor to be desirable. Further, Appellants do not point to any evidence showing that an ultrasonic flow sensor would be more expensive than that of Tentler. Moreover, in any event,“[t]he fact that the motivating benefit comes at the expense of another benefit, … should not nullify its use as a basis to modify the disclosure of one reference with the teachings of another. Instead, the benefits, both lost and gained, should be weighed against one another.” Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000). As discussed supra, such argument cannot take the place of evidence and does not apprise us of error. Appeal 2012-007097 Application 12/091,215 5 For these reasons, we sustain the Examiner’s decision rejecting independent claim 19, and claims 20–22, 24–26, 28–32, and 35 which fall therewith. Claims 27 and 36 Appellants note that “[c]laims 2[7] and 36 recite that a locking ring secures an adapter plate to a pump head. The Examiner states that the metal hinge 88 of Namery is a locking ring. As shown in Figure 10, the metal hinge 88 is substantially u-shaped.” Appeal Br. 4. Appellants argue that “[t]he metal hinge 88 is not a ring as claimed.” Id., see also Reply Br. 2 (“the metal arcuate element 88 is not a locking ring.”). In response to this argument, the Examiner finds that “the device of Namery shows a cylindrical sensor surrounded by a holding element 88 defining a cylindrical opening with a band having the thickness of the holding element forming a ring.” Ans. 5. However, the Examiner does not identify what elements in Namery are being referred to as a cylindrical sensor and cylindrical opening. Furthermore, it is not readily apparent what elements in Namery the Examiner is referring to as Namery does not use this terminology. Namery describes element 88 as both an arcuate spring (e.g., Namery, col. 9, l. 62) as shown in figure 8 and a metal hinge (Namery, col. 10, ll. 40– 41) as shown in figure 10. Neither description, nor its corresponding figure, supports the Examiner’s finding that element 88 is “a holding element 88 defining a cylindrical opening with a band having the thickness of the holding element forming a ring” (Reply Br. 2). Thus, Appellants’ argument is persuasive. For this reason, we do not sustain the Examiner’s decision rejecting claims 27 and 36. Appeal 2012-007097 Application 12/091,215 6 DECISION The Examiner’s decision rejecting claims 19–22, 24, 25, 27–32, and 35 is AFFIRMED. The Examiner’s decision rejecting claims 27 and 36 is REVERSED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART llw Copy with citationCopy as parenthetical citation