Ex Parte Battefeld et al

Patent Trial and Appeal Board

Dec 18, 2015

12278468 (P.T.A.B. Dec. 18, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/278,468 11104/2008 Manfred Battefeld
96897 7590 12/18/2015
PA TENT LAW OFFICES OF DR. NORMAN B. THOT
POSTFACH 10 17 56
RATINGEN, 40837
GERMANY
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.
TS/HAH 1003 US-PAT 1923
EXAMINER
ROGERS, DAVID A
ART UNIT PAPER NUMBER
2856
MAILDATE DELIVERY MODE
12/18/2015 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 MANFRED BATTEFELD, ANDREAS JONAK,
LOTHAR HEIDEMANNS, AXEL LEYER, and
MICHAEL SCHUSTER
Appeal2014-001854
Application 12/278,468 1
Technology Center 2800
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.
PERCURIAM.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134 from the Examiner's
decision finally rejecting claims 1--4 and 6-11 under 35 U.S.C. § 103(a) as being
unpatentable over Delta-Phase2 in view ofRossman3 and rejecting claims 5 and
1 According to Appellants, the real party in interest is Hach Lange GmbH. Br. 3.
2 Ultrasonic Sludge Blanket Monitoring System CSM5000, Delta-Phase, accessed
and archived on the internet by http://www.archive.org on Oct. 23, 2004.
3 Rossman, US 5,184,510 A, issued Feb. 9, 1993.
Appeal2014-001854
Application 12/278,468
12-14 under 35 U.S.C. § 103(a) as being unpatentable over Delta-Phase and
Rossman and further in view of Shimizu. 4
We have jurisdiction under 35 U.S.C. § 6(b). 5
We AFFIRM.
The subject matter on appeal is directed to sludge-level probes (see, e.g.,
claim 1 ). Appellants disclose that ultrasonic sludge-level probes are used to detect
the sludge level in media, such as waste water. Spec. 1, 11. 9-10. Appellants
disclose that sedimented solids are removed, such as by a beam cleaner.
Appellants' Figure is reproduced below.
10
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' 42 16
26
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Appellants' Figure is a longitudinal sectional view of a sedimentation plant.
4 Shimizu et al., US 2001/0019267 Al, published Sept. 6, 2001 (hereinafter
"Shimizu").
5 Our decision refers to the Appellants' Appeal Brief filed July 25, 2013 (Br.) and
the Examiner's Answer mailed Sept. 12, 2013 (Ans.).
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Application 12/278,468
Appellants' Figure depicts a sedimentation plant 10 having a sedimentation
basin 12 filled with waste water. Spec. 7, 11. 15-16. A beam-type cleaner 18 clears
solids floating on the liquid surface 20 and solids at the bottom of the basin 12. Id.
at 7, 11. 21-25. A sludge-level probe 30 including an ultrasonic measuring head 32
is immersed in the liquid 14. Id. at 7, 11. 29-33. During its operation, the beam-
type cleaner 18 inevitably collides with the sludge-level probe 30 and/or the
structure suspending the probe 30 in the liquid 14, causing the probe 30 to move
from a vertical position to an oblique position indicated by probe 30' in the Figure.
Id. at 8, 11. 5-14. When in the oblique position, measurements obtained via the
ultrasonic measuring head 32 are erroneous. Id. at 2, 11. 26-30. Appellants
disclose including a positional sensor 34 in the sludge-level probe 30 to determine
a spatial-position measurement value a of the ultrasonic measuring head 32, which
is used to correct measurements of the ultrasonic measuring head 32. Id. at 3,
11. 1--4 and 9-24 and 8, 11. 22-26.
Independent claim 1 is illustrative and is reproduced below from the Claims
Appendix of the Appeal Brief. 6 The limitations at issue are italicized.
1. A sludge-level probe comprising:
a holding device;
a sludge-level ultrasonic measuring head suspended from the
holding device and arranged to be immersed into a liquid and
operative to generate a distance measurement value; and
a positional sensor associated with the ultrasonic measuring
head;
wherein the positional sensor is operable for determining a
spatial-position measurement value (a) of the ultrasonic measuring
head.
6 Br. 24.
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Application 12/278,468
B. DISCUSSION
1. Obviousness Rejection over Delta-Phase and Rossman
The Examiner finds Delta-Phase discloses a monitoring system having an
ultrasonic probe attached to a swing bracket so the ultrasonic probe will rotate by
an angle. Ans. 2. The Examiner finds Delta-Phase does not disclose correction of
the ultrasonic probe's measurement due to its displacement angle. Id.
The Examiner finds Rossman discloses a liquid level sensor having an
ultrasonic sensor and a positional sensor, citing an angle detector 130 disclosed by
Rossman as the positional sensor. Id. The Examiner finds Rossman teaches
determining a liquid level by using the ultrasonic sensor to measure a non-vertical
distance to the liquid level and using well known trigonometric functions and
output from the angle detector 130 to convert the non-vertical distance to a vertical
measurement. Id. at 2-3. The Examiner concludes it would have been obvious to
one of ordinary skill in the art to modify Delta-Phase in view of Rossman to use an
angle detector to determine an actual height of sludge when an ultrasonic sensor is
displaced from its vertical position. Id. at 5.
As an initial matter, Appellants argue that Delta-Phase may not be prior art.
Br. 8-9. The Examiner explains in the Examiner's Answer how Delta-Phase is
prior art. Ans. 6-7. However, Appellants have not responded to the Examiner's
findings. Therefore, Appellants' argument is not persuasive because Appellants
have not met their burden of refuting the Examiner's findings that Delta-Phase is
prior art.
Turning to the rejection on appeal, Appellants contend that the combination
of Delta-Phase and Rossman does not teach or suggest a sludge level probe
comprising a positional sensor associated with an ultrasonic measuring head,
wherein the positional sensor is operable for determining a spatial-position
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Application 12/278,468
measurement value (a) of the ultrasonic measuring head, as recited in claim 1.
Br. 9. In particular, Appellants argue the Examiner erroneously equates the title
angle a of Rossman with the spatial-position measurement value (a) of claim 1
because Rossman discloses that angle detector 130 detects an angle between the
longitudinal axis of a detector's housing and a liquid surface. Id. at 10. This angle
is depicted in Figure 5 of Rossman, which is reproduced below:
20 -
FlG.5
Figure 5 depicts an ultrasonic sensor inserted into liquid at a non-perpendicular
angle.
Appellants contend the angle detected by the angle detector 130 of Rossman
differs from the spatial-position measurement value (a) of claim 1 because
Appellants' Specification describes the spatial-position measurement value (a) as
an angle between a vertical line and a longitudinal axis of a sludge-level probe, as
depicted in Appellants' Figure above. Br. 11-13. The Examiner disagrees and
concludes the spatial-position measurement value (a) of claim 1 is not limited to
the construction asserted by Appellants. Ans. 7-9.
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Appellants' argument that the spatial-position measurement value (a) of
claim 1 should be interpreted as an angle between a vertical line and a longitudinal
axis of a sludge-level probe, as described in Appellants' Specification, is
persuasive. However, when we consider whether claim 1, including the spatial-
position measurement value (a), as interpreted in view of Appellants'
Specification, would have been obvious in view of the combination of Delta-Phase
and Rossman, we determine that the Examiner's interpretation of the spatial-
position measurement value (a) was harmless error.
As stated by Appellants, Delta-Phase does not disclose or suggest a
positional sensor operable for determining the spatial-position measurement value
(a) of claim 1. Br. 9. The Examiner relies upon Rossman' s disclosure of the angle
detector 130 and the use of well known trigonometric functions to convert a non-
vertical distance to a vertical measurement. Ans. 3. The Examiner explains that
once the non-vertical distance is detected by an ultrasonic probe and the angle
detector 130 of Rossman determines an angle (that the Examiner designates as "a")
between the longitudinal axis of the probe and a liquid surface, one of ordinary
skill in the art would have used geometry and the well known trigonometric
functions disclosed by Rossman to determine a vertical distance. Id. at 4.
The Examiner's explanation also demonstrates that either the angle
determined by the angle detector 130 (i.e., angle a) or the angle between the
longitudinal axis and the vertical distance (designated as B by the Examiner) can be
used to determine the vertical distance. Therefore, the spatial-position
measurement value (a) of claim 1 (angle B in the Examiner's explanation) and the
angle detected by the angle detector 130 (angle a in the Examiner's explanation)
correlate to one another and are alternate angles that can be used for the same
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purpose of determining a vertical distance based upon a detected non-vertical
distance.
Appellants do not dispute the reasoning set forth by the Examiner that one of
ordinary skill in the art would have used basic geometry and trigonometry to
determine the spatial-position measurement value (a) of claim 1. Rather,
Appellants argue that knowledge of geometry and trigonometry would not assist
one of ordinary skill in the art to determine the spatial-position measurement value
(a) when a positional sensor is consistently rotated out of a vertical plane, such as
when the positional sensor is suspended from a rope or chain. Br. 17. However,
this movement would not occur in the combination of Delta-Phase and Rossman
because the Examiner finds Delta-Phase discloses an ultrasonic probe that is
attached to a swing bracket. Ans. 2. The swing bracket would be a rigid arm that
would not provide the type of non-planar movement asserted by Appellants, such
as when a positional sensor is suspended from a rope or chain.
Appellants further argue that the angle detector 130 of Rossman would
always measure an angle between the longitudinal axis of detector's housing and a
liquid surface. Br. 12-15. Appellants provide several scenarios to support this
contention. However, "the test for combining references is not what the individual
references themselves suggest but rather what the combination of disclosures taken
as a whole would suggest to one of ordinary skill in the art." In re McLaughlin,
443 F.2d 1392, 1395 (CCPA 1971). In this regard, the record on appeal establishes
that one of ordinary skill in the art would have understood that additional angles,
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including the claimed angle, could have been calculated using the angle measured
by detector 13 0 of Rossman. 7
Appellants further argue there would be a lack of reason to combine Delta-
Phase and Rossman because Rossman is not directed to a system that measures the
level of sludge in a fixed holding device using an immersed sensor system. Br. 1 7.
Appellants' argument addresses only the disclosure of Rossman and not the
combination of the disclosures of Delta-Phase and Rossman as a whole and what
they would have suggested to one of ordinary skill in the art. Suffice it to say that
the Appellants have failed to show that modifying the ultrasonic probe of Delta-
Phase with the angle detector 130 of Rossman, as proposed by the Examiner,
would have resulted in a device inoperable for determining the spatial-position
measurement value (a) recited in claim 1. 8 See KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398, 421 (2007) ("A person of ordinary skill is also a person of ordinary
creativity, not an automaton.").
Appellants contend the Examiner failed to resolve the level of ordinary skill
in the pertinent art and, because the level of ordinary skill is unresolved, an
articulated reasoning with some rational underpinning has not been made. Br. 18.
This is unpersuasive because the Examiner previously stated the level of ordinary
skill in the art in the Final Office Action dated January 28, 2013. Ans. 11.
Appellants have not responded to this determination. Moreover, the prior art
7 Indeed, the relationship between the angle measured by detector 130 of Rossman
and the claimed angle is a simple geometric definition for complementary angles,
i.e., angles whose sum is 90°.
8 The Examiner finds that "no matter where the angle detector is placed (adjacent
the ultrasonic sensor as suggested by figure 1 of Rossman or on a swing arm of
Delta-Phase) the positional sensor will still function to detect the rotation of the
ultrasonic sensor relative to a horizontal plane since the items are in a fixed
relationship with each other." Ans. 11. Appellants do not direct us to any error in
the Examiner's finding.
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applied by the Examiner provides evidence of the ordinary skill level in the art, and
Appellants provide no reason to think that further evidence is required. In re
GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) (the Board did not err in adopting
the approach that the level of skill in the art was best determined by the references
of record); Okajima v. Bourdeau, 261F.3d1350, 1355 (Fed. Cir. 2001) ("[T]he
absence of specific findings on the level of skill in the art does not give rise to
reversible error 'where the prior art itself reflects an appropriate level and a need
for testimony is not shown."').
For these reasons, and for those expressed in the Examiner's Answer, the
§ 103(a) rejection of claim 1 over Delta-Phase and Rossman is sustained.
Appellants do not present any arguments in support of the separate
patentability of claims 2--4 and 6-11. Rather, Appellants merely reiterate the
arguments set forth in support of the patentability of claim 1. For the reasons set
forth above, those arguments are not persuasive of reversible error. Therefore, the
§ 103(a) rejection of claims 2--4 and 6-11 over Delta-Phase and Rossman is also
sustained.
2. Obviousness Rejection over Delta-Phase, Rossman, and Shimizu
Appellants assert that Shimizu does not cure the deficiencies of Delta-Phase
and Rossman and that one of ordinary skill in the art would not have considered
Shimizu because Shimizu is non-analogous art. Br. 19--21. The Examiner finds
the problem associated with claim 5 is identifying a fault if a position sensor's
output does not change after a predetermined period. Ans. 12. The Examiner finds
Shimizu is pertinent to Appellants' problem because Shimizu discloses the use of a
timer to monitor a position sensor and indicate a fault when the signal is
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unchanged over a period of time. Id. Appellants have not responded to the
Examiner's finding.
Moreover, when assessing whether a claim to a combination of prior art
elements would have been obvious, the question to be asked is whether the
improvement of the claim is more than the predictable use of prior art elements
according to their established functions. KSR, 550 U.S. at 417. The disclosure of
Shimizu demonstrates it was known to use a timer to determine when a position
sensor is not functioning properly. In the rejection, the Examiner concludes it
would have been obvious to modify the combination of Delta-Phase and Rossman
in view of Shimizu to use the timer to monitor the output of the angle sensor 130 of
Rossman so it is known if the probe has not returned to its vertical position. Ans.
6. Therefore, the combination of Delta-Phase, Rossman, and Shimizu would
involve the predictable use of prior art elements, including the timer of Shimizu,
according to their established functions.
Appellants additionally contend that an articulated reasoning with some
rational underpinning has not been made because the level of ordinary skill has not
been resolved. Br. 22. As stated above for the rejection of claim 1, the Examiner
has determined the level of ordinary skill in the art and the applied prior art
demonstrates the level of ordinary skill in the art. Appellants have failed to
establish otherwise.
For these reasons, and for those expressed in the Examiner's Answer, the
§ 103(a) rejection of claims 5 and 12-14 is sustained.
C. DECISION
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with this
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appeal may be extended under 37 C.F.R. § 1.136(a)(l ).
AFFIRMED
bar
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