Ex Parte 8926792 et al

Patent Trial and Appeal Board

Feb 7, 2018

90013530 (P.T.A.B. Feb. 7, 2018)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KELLY K. HOUSTON
Patent Owner and Appellant
____________

Appeal 2017–006142
Reexamination Control 90/013,530
Patent 8,926,792 B1
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
RAE LYNN P. GUEST, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appeal 2017–006142
Reexamination Control 90/013,530
Patent 8,926,792 B1

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Kelly K. Houston (“Patent Owner”), the owner of the patent under
reexamination (hereinafter “the ’792 Patent”), requests rehearing of our
Decision on Appeal mailed May 25, 2017 (hereinafter “Decision”), in which
we affirmed the Examiner’s rejection of claims 8, 9, 13, and 15–18 as
anticipated by Thakur1 (Request for Rehearing filed July 25, 2017,
hereinafter “Request” 1–2).
In particular, Patent Owner requests rehearing with respect to claims
8, 15, and 18 and contends that:
1. With respect to claim 18, the Board misapprehended Figure 1 of
Thakur with respect to leachate being directed to a landfill; and
2. With respect to claims 8 and 15, the Board misapprehended the
disclosure of Thakur, page 14 and the meaning of “onto the solids
collection area.” (Id.)
We have considered Patent Owner’s arguments; however, we decline
to modify the Decision for the reasons that follow.

Claim 18
Patent Owner contends that the Board overlooked that claim 18
requires that the solids collection area includes at least a portion of the
landfill and that the air-leachate mixture is directed over a landfill such that
the suspended solids in the mixture fall onto the landfill. (Request 2 (citing
Decision 17–18).) Regarding Figure 1 of Thakur, Patent Owner argues that
the label “To Landfill,” relates to the location of a residue, which results
from cleaning a sand filter, an optional feature of Thakur’s invention.

1 WO 01/77027 A1, published October 18, 2001.
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Patent 8,926,792 B1

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(Request 3 (citing Thakur 7, ll. 23–30).) Patent Owner argues that Figure 1
depicts an arrow extending from the bag filter 5 “To Landfill,” which
supports the position that it is the residue, not the leachate that is directed to
the landfill. (Request 3–4.) Patent Owner contends that Thakur does not
disclose that the atomizing units 9 are disposed on or over a landfill.
(Request 4–5.)
We are not persuaded that we misapprehended the disclosure of
Thakur. (Decision 17.) For convenience, Figure 1 of Thakur is reproduced
below:

Figure 1 is a schematic flow diagram of a leachate treatment apparatus
according to Thakur. (Thakur 6, ll. 26–27.) While it is true that Thakur
discloses that sand filter 3, used for primary filtration of law filtrate, may be
cleaned and that reject water from this process may be filtered through a bag
filter 5, the residue of which is disposed of in the landfill (Thakur 7,
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Reexamination Control 90/013,530
Patent 8,926,792 B1

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ll. 15–30), the “To Landfill” indication appears generally within the
atomizer arrangement 8 indicated by the dotted box2 at the bottom of
Figure 1 and not the filtering arrangement indicated at the top of Figure 1.
This is consistent with the general acknowledgement in Thakur that:
“Traditionally, leachate has been managed through a combination of
irrigation and reinjection into the landfill . . . .” (Thakur 1, ll. 31–32.)
Because the latter statement expressly teaches reinjection into the
landfill, one of ordinary skill in the art would have reasonably understood it
to inform the relationship between Thakur’s atomizers 9 and the landfill,
contrary to Patent Owner’s contention. (Request 5.) Thus, Thakur’s
disclosure informs the understanding of how the atomizers would be
arranged based on the knowledge and experience of one of ordinary skill in
the art. Thus, any lack of perceived express disclosure in Thakur as to
where the output from the atomizer arrangement is directed, is attributed to
the understanding of one of ordinary skill in the art that the output would be
directed over the landfill, in order to avoid affecting another area of land
with suspended solids that fall out of the air-leachate mixture.

Claims 8 and 15
Patent Owner contends that the Board misapprehended that Thakur
discloses that an air-leachate mixture falls out onto a solids collection area.
(Request 6 (citing Decision 16–17).) In particular, Patent Owner argues that
the disclosure on page 14 of Thakur discussing the suspended particle

2 The dotted box is mislabeled as reference number 6, rather than reference
number 8, in Figure 1.
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Reexamination Control 90/013,530
Patent 8,926,792 B1

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concentrations measure 45 meters from the atomizer arrangement does not
support the position that suspended solids have accumulated on a solids
collection area. (Request 6–7.) Patent Owner contends that measuring
suspended particle concentrations is different than measuring suspended
solids that have accumulated on a collection surface and Thakur does not
disclose where the measurement was taken. (Request 7.) Patent Owner’s
position is that Thakur is measuring particles suspended in the air. (Request
7.) Patent Owner also contends that Thakur only discloses that the amount
of suspended particles is below levels recommended as safe at a distance of
45 meters, and as such, there is no disclosure in Thakur that suspended
particles were found. (Request 7–8.) Patent Owner argues that Thakur is
concerned with air pollution and the concentration of suspended particles in
the air, which is not evidence of what is claimed. (Request 8–9.)
Patent Owner contends that the Board misapprehended the meaning of
“onto the solids collection area,” which means that “the suspended solids
move from the air-leachate mixture to a surface where the suspended solids
accumulate or are deposited on the surface.” (Request 9–10.) As a result
and because Thakur at most discloses that a concentration of suspended
particles 45 meters in some direction from an atomizer and found that the
concentration was below levels recommended to be safe, Patent Owner
argues that Thakur does not provide evidence that the suspended solids fall
out of an air-leachate mixture “onto a solids collection area” as recited in the
claims. (Request 10.)
Patent Owner’s argument, although labeled as points
“misapprehended” by the Board in the Decision, appears to be a
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Patent 8,926,792 B1

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disagreement with the outcome of the Decision, which is not appropriate
grounds for requesting rehearing. To the extent, Patent Owner’s argument
may be considered proper, we are not persuaded that we misapprehended the
nature of Thakur’s disclosure in relation to suspended particles falling out of
the air-leachate mixture on to a solids collection area.
That is, Thakur makes clear that suspended particle concentrations
measured at 45 meters from the atomiser arrangement were below levels
recommended as safe. (Decision 10, FF 11.) Patent Owner’s attempt to cast
doubt on that teaching by arguing that it is unclear where such
measurements are taken and by attempting to frame the argument as a claim
construction issue does not change that finding. In particular, the contention
that Thakur would not measure such suspended particle concentrations in
areas in line with the direction of atomiser output is illogical. In addition
and in conjunction with the arguments regarding claim 18 addressed above,
the contention that Thakur does not disclose a solids collection area, when
Thakur expressly discloses and acknowledges that the air-leachate mixture
discharged from atomiser arrangement contains suspended particles, and
then measures the concentration an express distance from the atomiser
arrangement is without merit. Thakur’s disclosure in this regard is evidence
that the suspended particles are directed to and fall out into a designated
solids collection area.
Thus, we decline to make any changes to the outcome of the Decision
mailed May 25, 2017.

DENIED

Appeal 2017–006142
Reexamination Control 90/013,530
Patent 8,926,792 B1

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FOR PATENT OWNER:
COATS & BENNETT
1400 CRESCENT GREEN
SUITE 300
CARY, NC 27518

FOR THIRD-PARTY REQUESTER:
ICE MILLER LLP
ATTN: BARBARA BACON
250 WEST STREET
SUITE 700
COLUMUS, OH 43215