Batten, Randolph et al.

Patent Trials and Appeals Board

Dec 10, 2019

14628977 - (D) (P.T.A.B. Dec. 10, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/628,977 02/23/2015 Randolph Batten 2481-106 7927
4678 7590 12/10/2019
MACCORD MASON PLLC
300 N. GREENE STREET, SUITE 1600
P. O. BOX 2974
GREENSBORO, NC 27402
EXAMINER
KEYWORTH, PETER
ART UNIT PAPER NUMBER
1777
MAIL DATE DELIVERY MODE
12/10/2019 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 RANDOLPH BATTEN, WILLIAM C. BATTEN,
and BRUCE W. KYLES
____________

Appeal 2019-003174
Application 14/628,977
Technology Center 1700
____________

Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–26 and 33.3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 In this Decision, we refer to the Specification filed Feb. 23, 2015 (“Spec.”);
Final Office Action dated July 13, 2018 (“Final Act.”); Appeal Brief filed
Oct. 22, 2018 (“Appeal Br.”); Examiner’s Answer dated Jan. 31, 2019
(“Ans.”); and Reply Brief filed Mar. 13, 2019 (“Reply Brief”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Thermaco, Inc. as the real party in
interest. Appeal Br. 2.
3 Claims 27–31 are withdrawn and claim 32 is cancelled. Appeal Br. 2.
Appeal 2019-003174
Application 14/628,977

2
CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to a separator assembly and method for
separating fat, oil, and grease (F.O.G.) from effluent. Spec. ¶ 8; Abstract.
Claim 19 illustrates the claimed subject matter on appeal and is reproduced
below from the Claims Appendix to the Appeal Brief:
19. A separator assembly for separating fat, oil, and grease
(F.O.G.) from effluent comprising:
a container for receiving and holding effluent water
containing F.O.G. to be removed from the effluent water; and
a skimmer within the container in a partially immersed
position within the body of effluent water and in contact with the
F.O.G. and configured to remove F.O.G from the body of
effluent water and direct the removed F.O.G. to a storage
container;
an electronic skimming control that controls when a
skimming event occurs to skim F.O.G. from the effluent, the
skimming control having:
a preset minimum skim time period setting above zero
operative to assure that some skimming occurs periodically, a
preset maximum skim time period setting that prevents
continuous skimming, and a user interface that allows the user to
select a user skim mode setting for the electronic control between
the preset minimum skim time period setting and the preset
maximum skim time period setting.
Appeal Br. 23–24 (key disputed claim language italicized and bolded).

Appeal 2019-003174
Application 14/628,977

3
REFERENCES
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Name Reference Date
Wyatt US 3,761,929 Sept. 25, 1973
Batten et al. (“Batten”) US 7,208,080 B2 Apr. 24, 2007
Heavner, III (“Heavner”) US 2011/0054703 A1 Mar. 3, 2011
Dague US 2012/0152817 A1 June 21, 2012
Wright US 2014/0236728 A1 Aug. 21, 2014
REJECTIONS
On appeal, the Examiner maintains (Ans. 3) the following rejections:
1. Claims 1–11, 15–24, and 33 are rejected under 35 U.S.C. § 103
as being unpatentable over Batten in view of Heavner (“Rejection 1”). Final
Act. 2.
2. Claim 12 is rejected under 35 U.S.C. § 103 as being
unpatentable over Batten in view of Heavner as applied to claim 11 above,
and further in view of Wright (“Rejection 2”). Id. at 6.
3. Claims 13 and 25 are rejected under 35 U.S.C. § 103 as being
unpatentable over Batten in view of Heavner as applied to claims 1 and 19
above, and further in view of Wyatt (“Rejection 3”). Id. at 7.
4. Claims 14 and 26 are rejected under 35 U.S.C. § 103 as being
unpatentable over Batten in view of Heavner as applied to claims 1 and 19
above, and further in view of Dague (“Rejection 4”). Id. at 7.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner’s
Appeal 2019-003174
Application 14/628,977

4
rejections based on the fact-finding and reasoning set forth in the Answer
and Final Office Action, which we adopt as our own. We add the following
primarily for emphasis.
Rejection 1
The Examiner rejects claims 1–11, 15–24, and 33 under § 103 as
obvious over the combination of Batten and Heavner (Final Act. 2–6), which
we refer to as Rejection 1.
Claims 1–11, 15–24, and 33
Appellant presents argument for the patentability of claims 1–11,
15–24, and 33 as a group. Appeal Br. 8. We select claim 19 as
representative and claims 1–11, 15–18, 20–24, and 33 stand or fall with
claim 19. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determines that the combination of Batten and Heavner
suggests a skimmer control system satisfying all of the limitations of claim
19 and concludes the combination would have rendered the claim obvious.
Final Act. 2–3, 5. On the record before us, we find a preponderance of the
evidence and sound technical reasoning support the Examiner’s findings and
determination that the combination of Batten and Heavner suggests a
skimmer control system satisfying all of the limitations of claim 19 and
conclusion that the combination would have rendered the claim obvious.
Batten, Figs. 1, 2, 2:20–50, 7:23–8:43; Heavner ¶ 52.
Appellant argues the Examiner’s rejection should be reversed because
Heavner is non-analogous art. Appeal Br. 8–11; Reply Br. 1–3. In
particular, Appellant contends Heavner is not reasonably pertinent to the
particular problem with which the applicant was concerned and thus, one of
ordinary skill in the art would not have looked to Heavner for any teaching.
Appeal 2019-003174
Application 14/628,977

5
Appeal Br. 8. Rather, in contrast to both Batten and the claimed invention,
Appellant contends
Heavner is concerned with preventing damage to heat
exchangers in oil refineries – a vastly different problem
than avoiding odors or failing to capture F.O.G. when
skimming F.O.G. from effluent.
Id. at 9.
Appellant’s argument is not persuasive of reversible error in the
Examiner’s rejection because it too narrowly construes the scope of
Heavner’s disclosure, especially as it pertains to the particular problem
addressed by the claimed invention. See In re Bigio, 381 F.3d 1320, 1325
(Fed. Cir. 2004). Two separate tests define the scope of analogous prior art:
(1) whether the art is from the same field of endeavor, regardless of the
problem addressed and, (2) if the reference is not within the field of the
inventor’s endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved. In re Klein, 647
F.3d. 1343, 1348 (Fed. Cir. 2011) (citing Bigio, 381 F.3d at 1325). “A
reference is reasonably pertinent if, even though it may be in a different field
from that of the inventor’s endeavor, it is one which, because of the matter
with which it deals, logically would have commended itself to an inventor’s
attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed.
Cir. 1992).
Contrary to what Appellant argues, a preponderance of the evidence
supports the Examiner’s determination that Heavner is reasonably pertinent
to the particular problem with which the inventors are involved. As the
Examiner finds (Ans. 3–4), Batten discloses an F.O.G. removal apparatus
and skimmer control system that controls when skimming occurs by
selecting a duty cycle to remove grease at a time when grease is likely
Appeal 2019-003174
Application 14/628,977

6
present, including a process control mechanism (timer 51) for ensuring that
the process is operated at optimal times, which suggests that the timing of
the skimming cycle can be optimized according to when grease is present.
Batten, Abstract, Figs. 1, 2, 2:20–50, 7:23–8:43, 8:1–43.
As the Examiner further finds (Ans. 4), Heavner discloses that
minimum and maximum preset process settings were well-known in the art
for process control parameters to ensure operation of the process within
acceptable ranges and process optimization. Heavner ¶ 52. Appellant’s
Specification, likewise, relates to process control/optimization and, in
particular, is directed to the need for improved process control for a F.O.G.
removal assembly for the removal and recovery of F.O.G. See Spec. ¶¶ 6–8,
12, 42, 48.
Thus, on the record before us, we are persuaded Heavner is, indeed,
analogous art because it logically would have commended itself to an
inventor’s attention in considering the problem addressed by the claimed
invention. Clay, 966 F.2d at 659.
Appellant further argues the Examiner’s rejection should be reversed
because one of ordinary skill in the art would not have had reason to
combine the cited art in the manner claimed. Appeal Br. 11, 14–15. In
particular, Appellant contends “Heavner and Batten together provide no
reason to modify Batten” and the reason for combining Heavner and Batten
provided by the Examiner is “not realistic” (id. at 11) and “not applicable to
a F.O.G. removal skimmer” (id. at 12). Appellant also contends the
Examiner’s finding regarding the prior art’s disclosure of a preset minimum
and a preset maximum time period is based on hindsight because Batten is
Appeal 2019-003174
Application 14/628,977

7
silent on when skimming should start and how long skimming should take
place. Id. at 13.
Appellant’s arguments are not persuasive of reversible error because
the Examiner does provide a reasonable basis, which is supported by a
preponderance of the evidence in the record, to evince why one of ordinary
skill would have combined the teachings of Heavner and Batten to arrive at
the claimed invention. In particular, as the Examiner finds and explains
(Final Act. 3; Ans. 5–7), based on Batten’s disclosure regarding a skimmer
control system that controls when skimming occurs by selecting a duty cycle
to remove grease at a time when grease is likely present (Batten 2:20–50,
8:1–43) and Heavner’s disclosure regarding minimum and maximum presets
being well-known in the art for process control parameters and provided in
order to ensure operation of the process within acceptable ranges (Heavner
¶ 52), it would have been obvious for one of ordinary skill in the art at the
time of the invention to have combined the teachings of the cited art to
arrive at the claimed invention. See also KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 420 (2007) (explaining that any need or problem known in the art
can provide a reason for combining the elements in the manner claimed).
Moreover, Appellant fails to direct us to persuasive evidence or
provide an adequate technical explanation to establish why the Examiner’s
articulated reasoning lacks a rational underpinning or is otherwise based on
some other reversible error. Appellant’s mere disagreement as to the
Examiner’s factual findings and reasoning for combining the references,
without more, is insufficient to establish reversible error. SmithKline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)
(“[M]ere statements of disagreement . . . as to the existence of factual
Appeal 2019-003174
Application 14/628,977

8
disputes do not amount to a developed argument.”); see also In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that mere lawyer’s
arguments or conclusory statements, which are unsupported by concrete
factual evidence, are entitled to little probative value).
Appellant’s contention that “Heavner’s reason for his presets is not
applicable to a F.O.G. removal skimmer” (Appeal Br. 12) and “Heavner’s
disclosure does not provide a person of ordinary skill with an expectation
that an advantage or benefit will result” (id. at 12) are also not persuasive of
reversible error because Appellant attacks the references individually rather
than the combined teachings of the prior art as a whole. One cannot show
non-obviousness by attacking references individually where the rejection is
based on a combination of references. In re Keller, 642 F.2d 413, 425
(CCPA 1981). Appellant’s argument is premised on what Appellant
contends Heavner teaches individually, and not the combined teachings of
the cited references as a whole and what the combined teachings would have
suggested to one of ordinary skill in the art.
As the Examiner explains (Ans. 4–5), Batten is relied upon in the
rejection for teaching a skimmer control system that controls when
skimming occurs by selecting a duty cycle to remove grease at a time when
grease is likely present, and suggesting that the timing of the skimming cycle
can be optimized according to when grease is present (Batten 2:20–50,
8:1–43), while Heavner is relied upon in the rejection for teaching that
minimum and maximum presets were, indeed, well-known in the art for
process control parameters at the time of the invention (Heavner ¶ 52).
Thus, as the Examiner explains (Ans. 5), because providing specific
minimum and maximum presets would allow for continued operation of
Appeal 2019-003174
Application 14/628,977

9
Batten’s process within desired ranges while ensuring efficient grease
removal via skimming, it follows that one of ordinary skill in the art would
have had reason to combine Batten’s and Heavner’s teachings in the manner
claimed. KSR, 550 U.S. 398 at 416 (“The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.”).
Appellant’s assertion that “Heavner and Batten together provide no
reason to modify Batten” (Appeal Br. 11) is not persuasive of reversible
error because it is conclusory. In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984); see also In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971)
(acknowledging that “[a]ny judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning” but such
reconstruction is proper “so long as it takes into account only knowledge
which was within the level of ordinary skill at the time the claimed invention
was made and does not include knowledge gleaned only from applicant’s
disclosure”). Here, as previously discussed above, we determine that the
Examiner provides a reasonable basis and identifies sufficient evidence in
the record to evince why one of ordinary skill would have combined the
teachings of the cited references to arrive at the claimed invention.
Claims 3, 6–10, 20, 22–24, and 33
Although Appellant presents nominally arguments for the
patentability of claims 3, 6–10, 20, 22–24, and 33 enumerated under separate
headings at pages 15–18 of the Appeal Brief, we do not find any of these
arguments persuasive of reversible error in the Examiner’s rejection because
they too are conclusory and unsupported by persuasive evidence in the
record. De Blauwe, 736 F.2d at 705; see also In re Lovin, 652 F.3d 1349,
Appeal 2019-003174
Application 14/628,977

10
1356–57 (Fed. Cir. 2011) (holding that a “naked assertion” that the
references fail to disclose or suggest a claim limitation is not an argument in
support of separate patentability).
Accordingly, we affirm the Examiner’s rejection of claims 1–11,
15–24, and 33 under 35 U.S.C. § 103 as obvious over the combination of
Batten and Heavner.
Rejection 2
Claim 12 depends from claim 11 and further recites “wherein the user
input device includes a membrane covering the user input device.” Appeal
Br. 23 (Claims Appendix). The Examiner rejects claim 12 under § 103 as
obvious over the combination of Batten, Heavner, and Wright (Final Act. 6),
which we refer to as Rejection 2.
In response to the Examiner’s rejection, Appellant argues “Ghazanfari
seems to be discussing a circuit component, not a membrane covering a user
input device, as claimed” and that “Ghazanfari and the other cited references
do not provide a reason to make the invention as claimed in claim 12.”
Appeal Br. 19.
We do not find Appellant’s argument persuasive of reversible error in
the Examiner’s rejection because it is conclusory (De Blauwe, 736 F.2d at
705) and, as the Examiner correctly points out (Ans. 8), Appellant’s
argument is misplaced because Ghazanfari is not relied upon as a reference
in the Examiner’s rejection of claim 12.
Accordingly, based on the fact-finding and reasoning provided by the
Examiner at pages 8 of the Answer and pages 2–3 and 5–6 of the Final
Office Action, we affirm the Examiner’s § 103 rejection of claim 12 as
obvious over the combination of Batten, Heavner, and Wright.
Appeal 2019-003174
Application 14/628,977

11
Rejection 3
The Examiner rejects claims 13 and 25 under § 103 as obvious over
the combination of Batten, Heavner, and Wyatt (Final Act. 7), which we
refer to as Rejection 3. In response to the Examiner’s rejection, Appellant
presents arguments for the patentability of claims 13 and 25 as a group.
Appeal Br. 19. We select claim 13 as representative and claim 25 stands or
falls with claim 13. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 13 depends from claim 1 and further recites “wherein the
skimming control has a null mode that does not skim, but periodically
exercises a motor of the drive for a brief period.” Appeal Br. 23 (Claims
Appendix).
Appellant argues that the Examiner’s rejection should be reversed
because Wyatt is non-analogous art. Appeal Br. 19. In particular, Appellant
contends Wyatt discloses a radar-confusion set-up for military aircraft and
[t]he issues involving radar confusion have nothing to do
with F.O.G. removal, so one of ordinary skill familiar with
Batten would not look to Wyatt as providing useful
information.
Id. at 19.
We do not find Appellant’s argument persuasive of reversible error in
the Examiner’s rejection based on the fact-finding and reasoning provided
by the Examiner at page 8 of the Answer and pages 2–3, 5, and 7 of the
Final Office Action, which we find is supported by a preponderance of the
evidence. Batten, Figs. 1, 2, 2:20–50, 7:23–8:43; Heavner ¶ 52; Wyatt
4:7–15. In particular, based on the fact-finding and reasons provided at page
8 of the Answer, we concur with the Examiner’s determination that Wyatt is
reasonably pertinent to the particular problem with which the inventors were
Appeal 2019-003174
Application 14/628,977

12
concerned and addressed by the claim invention and thus, is analogous art.
Clay, 966 F.2d at 659.
Appellant’s assertions that “Wyatt and the other cited references do
not provide a reason to make the invention as claimed in claims 13 and 25”
and “the motivation is different” (Appeal Br. 19) are not persuasive because
they are conclusory and, without more, insufficient to establish reversible
error in the Examiner’s factual findings and analysis in this regard.
De Blauwe, 736 F.2d at 705.
Accordingly, we affirm the Examiner’s § 103 rejection of claims 13
and 25 as obvious over the combination of Batten, Heavner, and Wyatt.
Rejection 4
The Examiner rejects claims 14 and 26 under § 103 as obvious over
the combination of Batten, Heavner, and Dague (Final Act. 7), which we
refer to as Rejection 4. In response to the Examiner’s rejection, Appellant
presents arguments for the patentability of claims 14 and 26 as a group.
Appeal Br. 12. We select claim 14 as representative and claim 26 stands or
falls with claim 14. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 14 depends from claim 1 and further recites “wherein the
control is in communication with a GPS module to allow determination of
the geographic location of the separator assembly.” Appeal Br. 23 (Claims
Appendix).
Appellant argues that the Examiner’s rejection should be reversed
because Dague discloses a GPS sensor on an ocean-going oil spill cleanup
vessel and “the utility that a GPS has for an oil-spill clean-up in the ocean is
absent from applicant’s skimmer separator,” which Appellant contends
Appeal 2019-003174
Application 14/628,977

13
negates the reason for one of ordinary skill to combine the cited art. Appeal
Br. 20.
We do not find Appellant’s contentions persuasive of reversible error
in the Examiner’s rejection because they are conclusory and unsupported by
persuasive evidence in the record, and Appellant does not provide an
adequate technical explanation to support them. De Blauwe, 736 F.2d at
705. As previously discussed above, Appellant’s mere statements of
disagreement as to the Examiner’s fact-finding and reasoning for combining
the references, without more, are insufficient to establish reversible error.
SmithKline, 439 F.3d at 1320.
Accordingly, based on the fact-finding and reasoning provided by the
Examiner at page 9 of the Answer and pages 2–3, 5, and 7 of the Final
Office Action, we affirm the Examiner’s § 103 rejection of claims 14 and 26
as obvious over the combination of Batten, Heavner, and Dague.
Appeal 2019-003174
Application 14/628,977

14
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11,
15–24, 33
103 Batten, Heavner 1–11,
15–24, 33

12 103 Batten, Heavner,
Wright
12
13, 25 103 Batten, Heavner,
Wyatt
13, 25
14, 26 103 Batten, Heavner,
Dague
14, 26
Overall
Outcome
1–26, 33

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (1)(iv).
AFFIRMED