DariTech, Inc.

Patent Trials and Appeals Board

Jun 2, 2020

14703585 - (D) (P.T.A.B. Jun. 2, 2020)

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.
14/703,585 05/04/2015 David DeWaard 33776.0110 3984
163328 7590 06/02/2020
Williams Kastner & Gibbs PLLC
601 Union Street
Suite 4100
Seattle, WA 98101
EXAMINER
KEYWORTH, PETER
ART UNIT PAPER NUMBER
1777
NOTIFICATION DATE DELIVERY MODE
06/02/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ip-patent@williamskastner.com
mlorbiecki@williamskastner.com
mpatton@williamskastner.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID DEWAARD
____________

Appeal 2019-002274
Application 14/703,585
Technology Center 1700
____________

Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 8–20.2,3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies DARI-TECH, INC. as the real
party in interest. (Appeal Br. 1.)
2 Appellant’s principal brief is unnumbered. We will refer to the Appeal
Brief as though it were consecutively numbered beginning with page entitled
“Real Party in Interest” as page 1 as indicated in the table of contents.
3 Claims 1–7 are withdrawn from consideration. (Appeal Br. 3.)
Appeal 2019-002274
Application 14/703,585

2
STATEMENT OF THE CASE

Claim 8 is illustrative of the subject matter on appeal and is
reproduced below:
8. An apparatus for buffering a flow of a heavy manure
to a separator and receiving a flow of light manure the separator
produces, the apparatus comprising:

a first tank for receiving the flow of heavy manure to
retain a volume of heavy manure, the first tank being defined by
a first tank wall extending upward to a first tank wall height;
a second tank for receiving the flow of light manure to
retain a volume of light manure, the second tank being defined
by a second tank wall extending upward to a second tank wall
height;
a channel defined between each of the first tank wall and
the second tank wall;
a weir situated within the channel to regulate flow along
the channel between the first tank and the second tank, the weir
extending upward to a weir height lower than either of the first
tank wall height and the second tank wall height, whereby the
weir is configured to facilitate, alternatively, each of a pair of
flows over the weir, the pair of flows consisting of:
a first flow occasioned by the receiving, in the first tank
an additional volume of heavy manure to buoy a layer
containing manure; comprising a lesser density of particulate
than is present in the volume of heavy manure, such that the
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Application 14/703,585

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upper surface of the layer exceeds a height of a weir, the weir;
and
a second flow occasioned by receiving in the second
tank, a volume of light manure sufficient to overflow the weir
and, thereby to allow light manure to flow into the first tank.

Appeal Br. 25–26, Appendix.

The Examiner maintains and Appellant requests request review of the
following rejections from the Examiner’s Final Action4:
I. Claims 8, 9, 11, and 13 rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Frederick (US 6,860,997 B1, issued Mar. 1, 2005).
II. Claims 10, 14–16, and 18–20 rejected under 35 U.S.C. § 103(a)
as unpatentable over Frederick and Houle (US 6,531,057 B1, issued Mar.
11, 2003).
III. Claim 12 rejected under 35 U.S.C. § 103(a) as unpatentable
over Frederick and Delsalle (US 5,840,195, Nov. 24, 1998).
IV. Claim 17 rejected under 35 U.S.C. § 103(a) as unpatentable
over Frederick, Houle, and Delsalle.

OPINION5
Having considered the respective positions the Examiner and
Appellant advance in light of this appeal record, we affirm the Examiner’s
rejections based on the fact-finding and reasoning set forth in the Answer

4 The complete statement of the rejections on appeal appears in the Final
Action. (Final Act. 2–7.)
5 In response to the Examiner’s rejections, Appellant presents argument for
the patentability of independent claims 8 and 15 together but does not
present separate argument for the patentability of claims 9–14 and 16–20.
(Appeal Br. 11.) We select claim 8 as representative and claims 9–20 stand
or fall with claim 8. 37 C.F.R. § 41.37(c)(1)(iv).
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4
and Final Office Action, which we adopt as our own. We add the following
primarily for emphasis.
As a preliminary matter, our review of the Examiner’s analysis
requires that the claims must first be construed to define the scope and
meaning of the subject matter before us on appeal. See Gechter v. Davidson,
116 F.3d 1454, 1457 (Fed. Cir. 1997). During prosecution before the
Examiner, the claim language should be given its broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account any definitions or
enlightenment contained in the written description of Appellant’s
Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
According to claim 8, the apparatus comprises a first tank, a second
tank, a channel and “a weir situated within the channel to regulate flow
along the channel between the first tank and the second tank.” Further, the
claim language describes the purpose and function of the weir is to regulate
flow between the first tank and a second tank. Therefore, we determine that
the subject matter of independent claim 8 is directed to an apparatus
comprising a first tank, a second tank, a channel, and a weir.

Anticipation
The Examiner finds that Frederick describes a device disclosing each
and every element of claim 8 and further finds that the Frederick anticipates
the claimed invention. (Final Act. 2–4.) The Examiner specifically states
“Frederick teaches an apparatus having a first tank (112), a second tank
(126), a separator (140) connected to the first tank, a channel (140) with a
weir (158) therein (Figs. 4-5 and 11; C7/L14-C9/L35).” (Final Act. 2.)
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5
Appellant argues principally that the Examiner’s rejection of claim 8
should be reversed because Frederick does not disclose the weir required by
the claimed invention. Specifically Appellant states:
As amended, Claim 8 and Claim 15, explicitly claims a
monolithic configuration comprising the communicating
channel, weir, and the first and the second tanks. The first and
second tanks, channel and weir are described here as
functioning as a monolithic device in that the . . . Frederick
tanks and weir are structured as an integral whole to exploit
gravitational movement through the Frederick system. In
Claims 8 and 15, the weir is specifically limited in height not to
exceed the wall heights of either tank, thereby to facilitate
alternate flows of water back and forth over the weir. At any
one time, when there is a flow, the flow is in a single direction
but the direction alternates from time to time. In contrast, as the
Frederick weir is configured, there can be no second flow uphill
over the weir from the lower tank to the upper tank.

(Appeal Br. 14 (footnotes and emphasis omitted).)
Appellant further argues:
Because Frederick cannot supply the limitation of the
two-way flow, indeed, teaches against such a flow, Claims 8
and 15 cannot be properly rejected as anticipated by Frederick.
When Frederick can only function by relying upon a one-way
gravity-fed flow over the weir, it cannot anticipate a two-way
weir.

(Appeal Br. 15 (emphasis omitted).)
We are unpersuaded by these arguments. To serve as an anticipatory
reference, “the reference must disclose each and every element of the
claimed invention.” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009).
We initially note, Appellant has not argued that Frederick’s apparatus
does not contain first and second tanks, a channel, and weir as a monolithic
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device. It has not been disputed Frederick describes the weir is adjustable.
(Frederick col. 9, l. 33.) Appellant’s arguments for patentability are
premised on the operation of Frederick’s device only based on gravity flow.
However, Frederick Figure 9 depicts non-gravity flow operation wherein the
first and second tanks including an adjustable weir disposed there between
and including circulation pipes 124 and 124′ that are attached to the first and
second tanks respectively. (Frederick col. 9, ll. 22– 35; Figure 9.) Frederick
also discloses circulation can also occur utilizing pumps. (Frederick col. 9,
ll. 22–23.)
As stated above, Appellant argues Frederick can only function by
relying upon a one-way gravity-fed flow over the weir, it cannot anticipate a
two-way weir. (Appeal Br. 15.) Appellant’s arguments are not persuasive
of a patentable distinction for the reasons presented by the Examiner. (Ans.
4–5.) Application Figures 3 and 4 exhibit how Appellant asserts the claimed
weir operates as a “two-way weir.” Figure 3 depicts an excess amount of
fluid entering into tank number 1 and flowing over the weir into tank
number 2 alternatively, Figure 4 depicts the opposite wherein the excess
fluid is provided to tank number 2 and overflows the weir to tank number 1.
The Appellant has not identified any disclosure in the Specification
suggesting anything beyond a first tank, a second tank, a channel, and a weir
are required to achieve the recited function. Thus, we determine that the
first tank, second tank, channel, and weir of Frederick meets this recitation.
Appellant has failed to adequately explain how the structure of the claimed
apparatus is patently distinct from the structure of Frederick’s apparatus
depicted in Figure 9 which includes a means for supplying fluid to tanks 1
and 2 respectively. Claims directed to an apparatus must be distinguished
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from the prior art in terms of structure. See In re Danly, 263 F.2d 844, 848
(CCPA 1959) (“Claims drawn to an apparatus must distinguish from the
prior art in terms of structure rather than function”); In re Gardiner, 171
F.2d 313, 315–16 (CCPA 1948) (“It is trite to state that the patentability of
apparatus claims must be shown in the structure claimed and not merely
upon a use, function, or result thereof.”). Choosing to define an element
functionally, i.e., by what it does, carries with it a risk: Where there is
reason to conclude that the structure of the prior art is inherently capable of
performing the claimed function, the burden shifts to the applicant to show
that the claimed function patentably distinguishes the claimed structure from
the prior art structure. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir.
1997); In re Hallman, 655 F.2d 212, 215 (CCPA 1981). Appellant has
failed to direct us to evidence that establishes the argued function patently
distinguishes the claimed structure from the structure of Frederick.
For the foregoing reasons and those presented by the Examiner we
sustain the anticipation rejection of claims 8, 9, 11, and 13.

Obviousness
The Examiner separately rejected claims 10, 12, and 14–20 under 35
U.S.C. § 103(a) as unpatentable over Frederick in view of secondary
references Houle and Delsalle, alone or in combination. Final Act. 5–7. In
addressing these separate rejections, Appellant’s arguments for patentability
are limited to independent claims 8 and 15.6

6 We note claim 8 has not been subject to an obviousness rejection.
However, because claims which depend upon claim 8 have been rejected as
obvious, we will address the claims as argued by Appellant.
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Appellant argues the independent claims defines a spatial relationship
between the tanks and the channel due to the functional language. (Appeal
Br. 17.) Appellant argues Frederick specifically teaches a distinct structure
wherein the second tank is below the first and that the adjustable weir only
serves to adjust the volume the first tank contains. (Appeal Br. 17–18.)
Appellant’s arguments are not persuasive of reversible error for the
reasons set forth above when addressing the anticipation rejection.
Appellant’s arguments are limited to Frederick’s apparatus wherein the tanks
are arranged for gravitational flow operation. As stated above, Frederick
Figure 9 depicts non-gravity flow operation wherein the first and second
tanks including an adjustable weir disposed there between and including
circulation pipes 124 and 124′ that are attached to the first and second tanks
respectively. (Frederick col. 9, ll. 22– 35; Figure 9.) The tank walls of the
first and second tanks depicted in Figure 9 exceed the height of the
adjustable weir.
In the Reply Brief, Appellant raises, for the first time, an argument
that Frederick is non-analogous art. This argument was not raised in the
Appeal Brief, is not responsive to an argument raised in the Examiner’s
Answer, and no good cause for raising the argument for the first time in the
Reply Brief is shown. Thus, in accordance with 37 C.F.R. § 41.41 (b)(2), we
will not consider this argument. See Ex parte Borden, 93 USPQ2d 1473,
1474–77 (BPAI 2010) (informative) (“[T]he reply brief [is not] an
opportunity to make arguments that could have been made in the principal
brief on appeal to rebut the Examiner’s rejections, but were not.”).
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Accordingly, we affirm the Examiner’s obviousness rejections of
claims 10, 12, and 14–20 for the reasons presented by the Examiner and
given above.
For the reasons stated above and those presented by the Examiner we
sustain the appealed prior art rejections.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
8, 9, 11, 13 102(a)(1) Frederick 8, 9, 11,
13

10, 14–16,
18–20
103(a) Frederick, Houle 10, 14–
16, 18–20

12 103(a) Frederick, Delsalle 12
17 103(a) Frederick, Houle,
Delsalle
17
Overall
Outcome
8–20

TIME PERIOD
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).

AFFIRMED