Ex Parte Weinstein et al

Patent Trial and Appeal Board

Apr 23, 2018

13124192 (P.T.A.B. Apr. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/124, 192 04/14/2011
32827 7590 04/23/2018
THE OLLILA LAW GROUP LLC
2569 Park Lane, Suite 202
Lafayette, CO 80026
FIRST NAMED INVENTOR
Joel Weinstein
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
35010/330US 4534
EXAMINER
SCHECHTER, ANDREW M
ART UNIT PAPER NUMBER
2857
MAIL DATE DELIVERY MODE
04/23/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEL WEINSTEIN, MARK JAMES BELL, and ANDREW
TIMOTHY PATTEN
Appeal2017-009098
Application 13/124,192
Technology Center 2800
Before MICHAEL P. COLAIANNI, CHRISTOPHER L. OGDEN, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to finally reject claims 1-14, 18-21, 23-32, 36-39, 41-
49, and 53-56. We have jurisdiction over this appeal under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as Micro Motion Inc. Appeal
Brief filed February 11, 2016 ("Br."), 3.
Appeal2017-009098
Application 13/124,192
STATEMENT OF THE CASE
Appellants claim a method for calculating a velocity of sound of a
fluid flowing through at least a first vibratory flow meter (independent claim
1 ), a vibratory flow meter for calculating a velocity of sound of a flowing
fluid (independent claim 23), and a vibratory flow meter system for
calculating a fluid parameter of a flowing fluid (independent claim 41 ).
Independent claim 1 illustrates the subject matter on appeal and is
reproduced below:
1. A method for calculating a velocity of sound of a fluid
flowing through at least a first vibratory flow meter, comprising
the steps of:
vibrating the flow meter at one or more frequencies;
receiving a vibrational response;
generating a first fluid property of the fluid;
generating at least a second fluid property of the fluid;
calculating the velocity of sound based on the first fluid
property and the at least second fluid property; and
comparing the calculated velocity of sound to an
expected velocity of sound and determining an error condition
if the difference between the calculated velocity of sound and
the expected velocity of sound exceeds a threshold value.
Br. 28 (Claims Appendix) (emphasis added).
The Examiner sets forth the following rejections in the Final Office
Action entered September 4, 2014 ("Final Act."), and maintains the
rejections in the Examiner's Answer entered April 26, 2016 ("Ans."):
I. Claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35
U.S.C. § 112, second paragraph for failing to particularly point out and
distinctly claim the subject matter that the applicants regard as their
invention;
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II. Claims 1-7, 10-12, and 23-32 under 35 U.S.C. § I03(a) as
unpatentable over Patten (WO 2006/104485 Al, published October 5, 2006)
in view of Gysling et al. (US 2006/0260384 Al, published Nov. 23, 2006,
hereinafter "Gysling");
III. Claims 8, 9, 41--46, and 48 under 35 U.S.C. § I03(a) as
unpatentable over Patten in view of Gysling and Van Cleve et al. (US
5,661,232, issued August 26, 1997, hereinafter "Van Cleve");
IV. Claims 13, 18-21, and 36-39 under 35 U.S.C. § I03(a) as
unpatentable over Patten in view of Gysling and Stansfeld (US 4,262,523,
issued April 21, 1981 );
V. Claim 14 under 35 U.S.C. § I03(a) as unpatentable over Patten
in view of Gysling and Cage et al. (US 6,502,466 Bl, issued January 7,
2003, hereinafter "Cage");
VI. Claims 47 and 53-56 under 35 U.S.C. § I03(a) as unpatentable
over Patten in view of Gysling, Van Cleve, and Stansfeld; and
VII. Claim 49 under 35 U.S.C. § I03(a) as unpatentable over Patten
in view of Gysling, Van Cleve, and Cage.
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' contentions, we reverse the Examiner's rejection of
claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C.
§ 112, second paragraph for the reasons set forth below, and affirm the
Examiner's rejections of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-
56 under 35 U.S.C. § I03(a) for the reasons set forth in the Final Action, the
Answer, and below.
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Application 13/124,192
We review appealed rejections for reversible error based on the
arguments and evidence Appellants provide for each issue Appellants
identify. 37 C.F.R. § 4I.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had
failed to make a prima facie case, "it has long been the Board's practice to
require an applicant to identify the alleged error in the examiner's
rejections")).
Rejection I
The Examiner finds that it is unclear from independent claims 1, 23,
and 41 whether the recited "first fluid property" and "second fluid property"
are different properties, or are generated/measured under different
conditions. Final Act 3.
In determining compliance with 35 U.S.C. § 112, second paragraph,
we must determine whether the claims set out and circumscribe the claimed
subject matter with a reasonable degree of precision and particularity. In re
Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014) (a claim is indefinite when it
contains words or phrases whose meaning is unclear). The definiteness of
claim language must not be analyzed in a vacuum, "but always in light of the
teachings of the prior art and of the particular application disclosure as it
would be interpreted by one possessing the ordinary level of skill in the
pertinent art." In re Moore, 439 F.2d 1232, 1235 (CCPA 1971).
As Appellants point out (Br. 7-8), their Specification explicitly states
that "[ t ]he at least second fluid property may comprise the same fluid
property as the first fluid property or may comprise a different fluid
property." Spec. 16, 11. 2--4. Appellants' Specification further indicates that
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Application 13/124,192
if the first and second fluid properties comprise the same fluid property, such
as density, the first and second density measurements are generated using
different frequencies, and as a result the first and second density
measurements will differ. Spec. 16, 11. 4--12.
Accordingly, in view of this description provided in Appellants'
Specification, one of ordinary skill in the art would readily understand that
the first and second fluid properties recited in claims 1, 23, and 41 may be
different properties, and if they are the same property, may be measured
under different conditions.
The Examiner also finds that it is unclear whether the first fluid
property recited in claim 1 is the same as the first fluid property recited in
independent claim 23 and claim 41. Final Act. 4. Similarly, the Examiner
finds that it is unclear whether the second fluid property recited in claim 1 is
the same as the second fluid property recited in independent claims 23 and
41. Id.
However, Appellants' Specification indicates that "[t]he first fluid
property may comprise a density, a mass flow rate, a volume flow rate, a
viscosity, etc. This list is not exhaustive and those skilled in the art will
readily recognize additional fluid properties that may be generated." Spec.
14, 1. 31-15, 1. 2. As discussed above, the Specification also indicates that
"[t]he at least second fluid property may comprise the same fluid property as
the first fluid property or may comprise a different fluid property." Spec.
16, 11. 2--4. In view of this description provided in Appellants' Specification,
one of ordinary skill in the art would understand that the first fluid property
recited in claim 1 need not be the same as the first fluid property recited in
claims 23 and 41. Similarly, one of ordinary skill in the art would also
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Application 13/124,192
understand that the second fluid property recited in claim 1 need not be the
same as the second fluid property recited in claims 23 and 41.
The Examiner further finds that "the relation between the first/ second
density measurement and the first/second fluid property" is unclear from
claim 2, and "whether [the] first density measurement corresponds to the
first fluid property and respectively the at least a second density
measurement corresponds to the at least second fluid property or not" is also
unclear. Final Act. 3--4.
However, the plain language of claim 2 recites that the first and
second fluid properties comprise first and second density measurements,
respectively. As discussed above, Appellants' Specification explicitly
indicates that if the first and second fluid properties comprise the same fluid
property, such as density, the first and second density measurements are
generated using different frequencies, and as a result the first and second
density measurements will differ. Spec. 16, 11. 4--12. Accordingly, in view
of this description provided in Appellants' Specification, one of ordinary
skill in the art would readily understand that the first and second fluid
properties recited in claim 2 are density measurements.
Therefore, we do not sustain the Examiner's rejection of claims 1-14,
18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C. § 112, second
paragraph.
Rejections II-VII
Despite separate rejections of claims 8, 9, 13, 14, 18-21, 36-39, 41-
47, 48, 49, and 53-56, Appellants argue claims 1-14, 18-21, 23-32, 36-39,
41--49, and 53-56 as a group on the basis of independent claims 1 and 23.
Br. 10-27. Although Appellants provide separate arguments for claim 23,
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Application 13/124,192
Appellants present the same arguments for claim 23 that they provide for
claim 1. Br. 15-16. Therefore, we select independent claim 1 as
representative, and decide the appeal as to claims 1-14, 18-21, 23-32, 36-
39, 41--49, and 53-56 based on claim 1 alone. 37 C.F.R. § 4I.37(c)(l)(iv).
Appellants do not dispute the Examiner's finding that Patten discloses
all of the features of claim 1 except ( 1) calculating the velocity of sound
based on a first fluid property and at least a second fluid property, and (2)
comparing the calculated velocity of sound to an expected velocity of sound
and determining an error condition if the difference between the calculated
velocity of sound and the expected velocity of sound exceeds a threshold
value. Compare Final Act. 4---6, with Br. 10-27. The Examiner relies on
Gysling for suggesting these features explicitly missing from Patten's
disclosures. Final Act. 6-7.
Gysling discloses using a flow meter to determine as a function of
frequency the speed of sound waves propagating through a liquid/vapor
mixture flowing through a pipe system ( calculating the velocity of sound).
Abstract; ,r 44. Gysling discloses utilizing this experimentally-determined
speed of sound to determine the droplet size of liquid in the vapor/liquid
mixture, and the vapor to liquid ratio, based on the dispersive characteristics
of the mixture. ,r,r 66, 81. Specifically, Gysling explains that for small
liquid droplets and low frequency sound waves, no appreciable slip exists
between the vapor and the liquid droplets, and the sound speed is constant
with frequency, referred to as a "non-dispersive" mixture. ,r,r 56, 62, and 82.
Gysling further explains that as the size of the droplets increases and the
frequency of the sound waves increases, the non-slip assumption becomes
less valid, and dispersion occurs-that is, the sound speed of the mixture
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varies with frequency. ,r,r 62, 82. Gysling discloses using this dispersion
model, and the experimentally determined speed of sound as a function of
frequency, in an optimization procedure to simultaneously determine droplet
size and vapor to liquid ratio in a liquid/vapor mixture. ,r 83; Fig. 11.
Figure 11 of Gysling illustrates this optimization procedure, and
shows using an analytical frequency model to calculate speed of sound
( expected velocity of sound) based on initial estimates of droplet size and
vapor to liquid ratio, and comparing this analytically-calculated speed of
sound to a speed of sound determined experimentally as a function of
frequency ( calculated velocity of sound). Figure 11 further shows using this
comparison to determine whether an error function is minimized
( determining an error condition), and updating the estimates of the droplet
size and vapor to liquid ratio if the comparison indicates that the error
function is not minimized ( the difference between the calculated velocity of
sound and the expected velocity of sound exceeds a threshold value).
Gysling defines the error function as the sum of the differences of the sound
speeds calculated from the analytical model and the experimentally
determined sound speed as a function of frequency. ,r 83.
The Examiner finds that one of ordinary skill in the art would have
been led at the time of Appellants' invention to determine the speed at which
sound travels within the pipe system disclosed in Patten using a flow meter
as disclosed in Gysling, and to minimize an error function as disclosed in
Gysling. Final Act. 6-7.
Appellants argue that Gysling does not teach or suggest comparing the
calculated velocity of sound to an expected velocity of sound because
Gysling does not teach or suggest an expected velocity of sound. Br. 11.
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Appellants assert that in contrast, Gysling discloses comparing a measured
velocity of sound to a series of model-produced speed of sound results,
which are not the same as an expected velocity of sound. Id. Appellants
contend that Gysling's disclosure of determining which of the series of
model-produced speed of sound results optimize the model described in
paragraph 83 "clearly teaches against the existence of an expected velocity
of sound altogether" because it "clearly suggests that there is no expected
velocity of sound result." Id.
However, as the Examiner correctly finds (Ans. 5), Appellants'
Specification states that "[ t ]he expected velocity of sound may be based on a
previously calculated velocity of sound or it may be obtained from a lookup
table, a value stored in a memory, a user/operator input, etc." Spec. 22, 11.
9-11. We find no further definition or limiting description of "expected
velocity of sound" in Appellants' Specification, and Appellants do not direct
us to any such disclosure. Br. 10-27. Therefore, under a broadest
reasonable interpretation consistent with the description provided in
Appellants' Specification, a previously calculated velocity of sound, such as
the analytically-calculated speed of sound disclosed in Gysling, corresponds
to an "expected velocity of sound" as recited in claim 1. In re ICON Health
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (During prosecution
of patent applications, "the PTO must give claims their broadest reasonable
construction consistent with the specification ... Therefore, we look to the
specification to see if it provides a definition for claim terms, but otherwise
apply a broad interpretation."). Consequently, in contrast to Appellants'
arguments, rather than teaching against the existence of an "expected
velocity of sound," Gysling's analytically-calculated speed of sound
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Application 13/124,192
corresponds to an "expected velocity of sound" as recited in claim 1. In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.").
Therefore, Gysling's disclosure of comparing a speed of sound
determined experimentally as a function of frequency to an analytically-
calculated speed of sound reasonably corresponds to comparing a calculated
velocity of sound to an expected velocity of sound as recited in claim 1.
Appellants further argue that Gysling does not teach or suggest
determining an error condition if the difference between the calculated and
expected velocity of sound exceeds a threshold value, because Gysling does
not disclose a threshold value. Br. 11. Appellants assert that in contrast,
paragraph 83 of Gysling discloses comparing a measured speed of sound to
a series of model-produced speed of sound values to determine which
model-produced speed of sound value provides a minimum error value,
which is not the same as "comparing a calculated and expected velocity of
sound to a threshold value." Id. Appellants contend that Gysling also does
not teach or suggest an error condition, but merely describes performing an
optimization, which is not the same as determining an error condition. Id.
However, we note initially that claim 1 recites "comparing the
calculated velocity of sound to an expected velocity of sound and
determining an error condition if the difference between the calculated
velocity of sound and the expected velocity of sound exceeds a threshold
value." Claim 1 thus requires determining whether the difference between
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Application 13/124,192
the calculated velocity of sound and the expected velocity of sound exceeds
a threshold value, and does not require "comparing a calculated and
expected velocity of sound to a threshold value" as Appellants assert.
As discussed above, Gysling discloses comparing an analytically-
calculated speed of sound ( expected velocity of sound) to a speed of sound
determined experimentally as a function of frequency ( calculated velocity of
sound) to determine whether an error function is minimized ( determining an
error condition), and Gysling defines the error function as the sum of the
differences of the sound speeds calculated from an analytical model and the
experimentally determined sound speed as a function of frequency. As
further discussed above, Gysling discloses updating the estimates of the
droplet size and vapor to liquid ratio used to calculate analytically the speed
of sound if the comparison indicates that the error function is not minimized
( an error condition exists).
One of ordinary skill in the art would have understood from these
disclosures that an error function would not be minimized ( an error
condition would exist) if the difference between the analytically-calculated
speed of sound ( expected velocity of sound) and the speed of sound
determined experimentally as a function of frequency ( calculated velocity of
sound) is greater than some implicit minimal value, prompting the estimates
of droplet size and vapor to liquid ratio to be updated. Therefore, contrary to
Appellants' arguments, Gysling implicitly discloses the existence of a
minimal threshold value of the difference between the analytically-
calculated speed of sound and the speed of sound determined experimentally
as a function of frequency that determines whether an error function is
minimized, which corresponds to determining an error condition if the
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difference between the calculated and expected velocity of sound exceeds a
threshold value, as recited in claim 1.
With respect to Appellants' contention that Gysling does not teach or
suggest an "error condition," we find no definition or limiting description in
Appellants' Specification of an "error condition." Rather, Appellants'
Specification describes an illustrative, non-limiting error condition in which
the "[t]he error may comprise determining that the fluid composition and/or
fluid phase has changed, for example." Spec. 22, 11. 8-9. Accordingly,
under a broadest reasonable interpretation consistent with Appellants'
Specification, the "error condition" recited in claim 1 does not exclude the
non-minimized error function disclosed in Gysling. Contrary to Appellants'
arguments, Gysling' s disclosure of determining whether an error function is
minimized reasonably corresponds to determining an error condition as
recited in claim 1.
Appellants further argue that their Specification makes clear on lines
1-22 of page 22 that the expected velocity of sound is the velocity of sound
for an assumed fluid composition or fluid phase, and determining an error
condition includes flagging that the fluid composition and/or fluid phase has
changed from a previous fluid composition and/or fluid phase. Br. 12.
Appellants contend that "[a]ssuming a fluid composition and/or fluid phase
to determine whether the fluid composition and/or fluid phase has changed,
as recited by the independent claims, is incompatible with determining the
droplet size and VLR [ vapor to liquid ratio] for a fluid, the problem that the
cited section of Gysling purports to address." Br. 12-13. Appellants assert
that assuming fluid composition and/or fluid phase would change the
principle of operation of Gysling and render Gysling inoperable for its stated
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Application 13/124,192
purpose of determining a droplet size and vapor to liquid ratio for an
unknown fluid. Id.
However, as discussed above, Appellants' Specification states that
"[t]he expected velocity of sound may be based on a previously calculated
velocity of sound or it may be obtained from a lookup table, a value stored
in a memory, a user/operator input, etc." Spec. 22, 11. 9--11. As also
discussed above, Appellants' Specification does not provide a definition or
limiting description of an "error condition," and describes only an
illustrative, non-limiting error condition in which the "[ t ]he error may
comprise determining that the fluid composition and/or fluid phase has
changed, for example." Spec. 22, 11. 8-9. Accordingly, contrary to
Appellants' assertions, the "expected velocity of sound" recited in claim 1 is
not limited to "the velocity of sound for an assumed fluid composition or
fluid phase," and encompasses an analytically-calculated speed of sound as
disclosed in Gysling. In addition, "determining an error condition" recited
in claim 1 is not limited to "determining whether the fluid composition
and/ or fluid phase has changed" as Appellants assert, and encompasses
determining whether an error function is minimized as disclosed in Gysling.
Consequently, as discussed above, Gysling's disclosure of determining
whether an error function is minimized by determining if the difference
between the analytically-calculated speed of sound and the speed of sound
determined experimentally as a function of frequency is greater than an
implicitly disclosed minimal value, reasonably corresponds to determining
an error condition if the difference between the calculated and expected
velocity of sound exceeds a threshold value, as recited in claim 1.
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Therefore, considering the totality of the evidence relied upon in this
appeal, a preponderance of the evidence weighs in favor of the Examiner's
conclusion of obviousness. We accordingly sustain the Examiner's
rejections of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under
35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's rejections of claims 1-14, 18-21, 23-32,
36-39, 41--49, and 53-56 under 35 U.S.C. § 103(a) and reverse the
Examiner's rejection of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-
56 under 35 U.S.C. § 112, second paragraph.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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