Ex Parte Baumann et al

Patent Trial and Appeal Board

Apr 13, 2017

13672859 (P.T.A.B. Apr. 13, 2017)

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.
13/672,859 11/09/2012 Peter G. Baumann 3520DIV 3051
98580 7590
Vitale, Vickrey, Niro & Gasey LLP
311 S. W acker Drive
Suite 2470
Chicago, IL 60606
EXAMINER
CECIL, TERRY K
ART UNIT PAPER NUMBER
1778
MAIL DATE DELIVERY MODE
04/14/2017 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 PETER G. BAUMANN, LLOYD W. JOHNSON,
DAVID SMITH, and EUGEN O. BERGMANN
Appeal 2016-001315
Application 13/672,859
Technology Center 1700
Before PETER F. KRATZ, KAREN M. HASTINGS, and
ELIZABETH M. ROESEL, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 2—8, 10, 12—16, 18—22, 28—31 and 33—38 under 35
U.S.C. § 103(a) as being unpatentable based on at least the combined prior
art of Ellis (US 1,160,154; issued Nov. 16, 1915), Cooper (US 401,930;
issued Apr. 23, 1889), and EP ’037 (EP 498,037 Al; published September
12, 1991).1 We have jurisdiction under 35 U.S.C. § 6(b).
1 The rejection of claims 7, 18, and 33 includes additional prior art of Harms
(US 3,394,815; issued July 30, 1968) (Final Act. 5).
Appeal 2016-001315
Application 13/672,859
Claims 22 and 37 are illustrative of the claimed subject matter:
22. A cloth media filtration device for supporting cloth
filter media in a basin having opposing side walls and a floor,
comprising:
at least one elongated cloth media support structure
having a length, cross-sectional shape and having two ends, at
least one end being an open end, for placement in a gravity feed
treatment basin wherein the at least one cloth media support
structure remains submerged and stationary during use and
which forms an effluent plenum, the open end of which is in
fluid communication with an outlet of the treatment basin, for
the discharge of filtered effluent, wherein each of said ends is
mounted to and supported by said opposing side walls, and the
at least one cloth media support structure is suspended above
the floor of the basin;
a traversing backwash system for periodic cleaning of the
cloth filter media using a backwash shoe and suction; and
a control system for regulating periodic cleaning of the
cloth filter media.
37. A cloth media filtration system for treating an
influent of water or wastewater in a gravity feed treatment
basin, the treatment basin having opposing side walls and a
floor, comprising;
a stationary cloth media support structure having a
length, two ends and a cross-sectional shape, at least one end
having an opening which is generally perpendicular to an
opposing side wall of the basin and which is in fluid
communication with an outlet of the treatment basin through
said opposing side wall, and each end of said support structure
mounted to and supported by said opposing side walls and
wherein the cloth media support structure is suspended above
the floor of the basin;
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Appeal 2016-001315
Application 13/672,859
a cloth filter media attached to and supported by said
support structure and forming a substantially hollow effluent
plenum; and
a traversing backwash system including a backwash shoe
for periodically cleaning said cloth filter media with suction.
Independent claim 3 8 is directed to a filtering apparatus similar to
claim 37, except it adds a control system to control the backwashing
assembly similar to claim 22.
ANALYSIS
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability.”). “[Rjejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(quoted with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007)).
The fact finder must be aware “of the distortion caused by hindsight
bias and must be cautious of arguments reliant upon ex post reasoning.”
KSR, 550 U.S. at 421 (citing Graham v. John Deere Co.,383 U.S. 1,36
(1966) (warning against a “temptation to read into the prior art the teachings
of the invention in issue”)).
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Application 13/672,859
After review of the respective positions provided by Appellants and
the Examiner, we agree with Appellants that the Examiner has not met the
applicable burden in this case. A preponderance of the evidence supports
Appellants’ assertions that the Examiner’s rejection is based on improper
hindsight in proposing to modify Ellis to have the configuration of elements
including a filtration device suspended above the floor of the gravity feed
treatment basin using gravity feed and a traversing backwash system all
configured as required by each independent claim.
Appellants’ arguments focus in part on the lack of a reason to
combine the gravity feed (that is, outside-in flow through the filter element)
filtration device of Ellis with the pressure feed inside-out filtration flow of
Cooper (e.g., App. Br. 14—26; Reply Br. 11). Appellants also rely upon the
Smith Second Supplemental Declaration (dated July 25, 2014) to buttress
their arguments throughout their briefs {generally App. Br.; Reply Br.). The
Examiner responds that Appellants’ claims “do not require a specific
direction of flow through the filter” (Ans. 6). Contrary to the Examiner’s
position, we agree with Appellants that each independent claim requires an
outside-in filtration (e.g., Reply Br. 11 (Appellants explain that “the claims
specifically require gravity filtration, which, in the context of the claimed
invention, clearly means outside-in filtration.”)).
Appellants point out that Ellis specifically states an object of its
invention is to produce “a straining device of this kind in which the strainer
can be easily removed and cleaned” (App. Br. 19; Reply Br. 11). Cooper is
configured to supply a flow from a header supply tube d via nozzles e to the
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Application 13/672,859
inside of each of the filtration tubes such that the filtration operates in the
reverse direction of Ellis’ filtration device (Cooper Figs. 1—3, p. 1). Cooper
provides for removability of the filter medium to facilitate cleaning, yet
provides for a tight seal at each end of the tubes when in use for inside-out
filtration (e.g. App. Br. 25). Appellants urge that one would not have
combined these references, and further that each reference teaches away
from the in situ cleaning of EP 037 (e.g. App. Br 25 (stating that the in situ
cleaning system (that is, cleaning in place) of EP 037 is contrary to the
teachings and purpose of both Ellis and Cooper)).
Accordingly, a preponderance of the evidence supports Appellants’
position that the Examiner is using impermissible hindsight to reconstruct
Ellis with Cooper and then modify further with a traversing backwash
system to clean the filter elements(s) in situ as taught in EP 037. The
Examiner has not adequately explained why the skilled artisan’s knowledge
or inferences and creativity would have supported the obviousness
determination based on the teachings of the applied references without an
improper hindsight reconstruction.
The Examiner does not establish that Harms as applied in the § 103
rejection of dependent claims 7, 18, and 33 cures these deficiencies and/or
otherwise provides another rationale that cures these deficiencies.2 * * 5
Accordingly, we reverse the § 103 rejections on appeal.
2 Since we determine that the Examiner has not established a prima facie
case of obviousness, we do not reach Appellants’ remarks and proffered
evidence of secondary considerations, e.g., commercial success.
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Application 13/672,859
ORDER
It is ordered that the Examiner’s decision is reversed.
REVERSED
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