Ex Parte Chatfield et al

Patent Trial and Appeal Board

Oct 4, 2018

13600090 (P.T.A.B. Oct. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/600,090 08/30/2012 Glen F. Chatfield
60707 7590 10/04/2018
Spilman Thomas & Battle, PLLC
301 Grant St
Suite 3440
Pittsburgh, PA 15219
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.
019276.0021 9001
EXAMINER
COMLEY, ALEXANDER BRYANT
ART UNIT PAPER NUMBER
3746
MAIL DATE DELIVERY MODE
10/04/2018 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 GLEN F. CHATFIELD and JOHN G. CRANDALL
Appeal2016-006812
Application 13/600,090 1
Technology Center 3700
Before LINDA E. HORNER, LYNNE H. BROWNE, and
BRENT M. DOUGAL, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's rejections of claims 1-27. Non-Final Office Action (July 14,
2014) (hereinafter "Non-Final Act."). Appellants presented arguments at an
oral hearing on September 26, 2018. We have jurisdiction under 35 U.S.C.
§ 6(b ).
1 Appellants identify OPTIMUM Pumping Technology, Inc. as the real party
in interest. Appeal Brief (January 14, 2015) (hereinafter "Appeal Br."), at 1.
Appeal2016-006812
Application 13/600,090
The claimed subject matter relates to "reducing pulsations in fluid
systems." Specification (August 30, 2012) (hereinafter "Spec."), at 1, 1. 8.
Appellants contest the Examiner's rejections of the claims as obvious over
the prior art. For the reasons explained below, the evidence on which the
Examiner relies supports a determination of obviousness of some of the
claims, but does not support a determination of obviousness of other claims.
The Examiner also provisionally rejected some of the claims based on
statutory double patenting over claims in a related patent application. Since
the Examiner made this rejection, Appellants have canceled the claims in the
related application identified in the provisional double patenting rejection,
thereby rendering the provisional double patenting rejection moot.
Accordingly, we AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Claims 1, 3, 12, and 23 are the independent claims. Claims 1 and 12
are illustrative of the subject matter on appeal and are reproduced below.
1. A pulsation attenuation device, comprising:
a pump having a variable operating speed;
a first loop having an inlet coupled to the pump, an outlet,
and two branches therebetween, the first branch being longer
than the second branch by an amount equal to half of a first
primary wavelength within a range of wavelengths of vibrations
propagating in a fluid discharged from the pump; and
a second loop having an inlet coupled to the first loop
outlet, an outlet, and two branches therebetween, the first branch
being longer than the second branch by an amount equal to half
of a second primary wavelength within the range of wavelengths
of vibrations propagating in a fluid discharged from the pump,
the second primary wavelength being different from the first
primary wavelength and not a harmonic of the first primary
wavelength.
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Application 13/600,090
12. A pump pulsation attenuation device, comprising:
a first conduit of a first length in fluid communication with
an outlet of the pump through which fluid discharged from the
pump is directed;
a second conduit of a second length longer than the first
length through which the fluid discharged from the pump is
directed simultaneously with the first conduit;
a third conduit of a third length through which the fluid is
sucked into the pump; and
a fourth conduit of a fourth length longer than the third
length through which the fluid is sucked into the pump
simultaneously with the third conduit.
Appeal Br. 38, 40 (Claims Appendix). Independent claims 1, 3, and 23 are
directed to the embodiment shown in Figures 2 and 4, and independent claim
12 is directed to the embodiment shown in Figures 1 and 3 of Appellants'
Specification. Id. at 2-6 (Summary of Claimed Subject Matter).
EVIDENCE
The Examiner relies on the following evidence in support of the
rejections on appeal:
Aldridge
Gibson
Yamamoto
Feuling
Hwang
us 2,501,751
us 2,548,472
us 4,600,076
us 5,033,581
US 6,633,646 Bl
REJECTIONS
Mar. 28, 1950
Apr. 10, 1951
July 15, 1986
July 23, 1991
Oct. 14, 2003
The Non-Final Office Action includes the following rejections:
1. Claims 12-17 stand provisionally rejected under 35 U.S.C. § 101
as claiming the same invention as that of claims 19-24 of
Application No. 12/189,630 ("the '630 application").
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Application 13/600,090
2. Claims 1-5, 7-9, 12-20, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Yamamoto, Gibson, and Hwang.
3. Claims 6, 11, and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Yamamoto, Gibson, Hwang, and Feuling.
4. Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Yamamoto, Gibson, Hwang, and Aldridge.
5. Claims 23-26 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Yamamoto, Hwang, and Aldridge.
6. Claim 27 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Yamamoto, Hwang, Aldridge, and Gibson.
RELATED APPEAL
The application on appeal is a continuation of the '630 application.
The '630 application came before this Board in related appeal 2013-008582,
at which time the '630 application contained pending claims 3, 4, 10-24, and
27-36. Appellants appealed the Examiner's rejections of claims 3, 4, 10-16,
18-24, and 27-36 as unpatentable over Yamamoto, Hwang, and Baars (US
5,762,479, issued June 9, 1998), and of claim 17 as unpatentable over
Yamamoto, Hwang, Baars, and Aldridge. The Board issued a decision in
the related appeal affirming the rejections of claims 3, 4, 19-24, 27-30, and
32-36, and reversing the rejections of claims 10-18 and 31. Board Decision
(June 30, 2016) (hereinafter "Related Dec."), at 12. Of significance to an
issue presented in the present appeal, in the Board's decision in the related
appeal, the panel agreed with Appellants' argument that Hwang does not
teach or suggest attenuation of two primary frequencies, as recited in
independent claim 10. Id. at 8-9. Appellants subsequently canceled all of
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Application 13/600,090
the pending claims except for claims 10-18 and 31, and the '630 application
issued as U.S. Patent No. 9,567,996.
ANALYSIS
First ground of rejection: Provisional statutory double patenting
The Examiner based the provisional double patenting rejection on a
determination that appealed claims 12-17 and then-pending claims 19-24 of
the related '630 application claim the same invention. After the Examiner
made this provisional rejection, Appellants canceled claims 19-24 of the
'630 application, thereby rendering moot the provisional double patenting
rejection. Accordingly, we do not sustain the rejection of claims 12-17
under 35 U.S.C. § 101.
Second Ground of Rejection: Obviousness of claims 1-5, 7-9, 12-20, and
22 over Yamamoto, Gibson, and Hwang
Claims 1-5, 7-9, 18-20, and 22
Independent Claim 1 recites the first branch of the first loop being
longer than the second branch by an amount equal to half of a first primary
wavelength and the first branch of the second loop being longer than the
second branch by an amount equal to half of a second primary wavelength,
where the second primary wavelength is "different from the first primary
wavelength and not a harmonic of the first primary wavelength." Appeal
Br. 38 (Claims Appendix). Independent Claim 3 contains similar
limitations. 2 Id. at 38-39.
2 Independent Claim 3 recites a second conduit having a second length
approximately equal to a first length of a first conduit plus half a first
primary wavelength and a fourth conduit having a fourth length
approximately equal to a third length of a third conduit plus half a second
primary wavelength, where the second primary wavelength is "different
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Appellants' Specification explains the difference between a primary
frequency and its harmonics. The Specification states:
Repeating pulses with frequency F and period P are made up of
the sum of an infinite series of sine waves with frequencies F,
2*F, 3*F, ... periods P/1, P/2, P/3, ... and amplitudes Al, A2,
A3, ... [.] These sine waves are normally referred to as the
primary frequency, F, the first harmonic frequency, 2 *F, second
harmonic frequency, 3*F, and so on.
Spec. 11, 11. 20-25. From that discussion, we can conclude that a harmonic
frequency is a multiple of a primary frequency. See id.; see also
http://www.dictionary.com/browse/harmonic?s=t (last visited October 4, 2018
15, 2016) (defining "harmonic" as "of, relating to, or noting a series of
oscillations in which each oscillation has a frequency that is an integral
multiple of the same basic frequency"); see also Related Dec. 8. Inversely, a
primary frequency is not a multiple of another primary frequency. 3 See Related
Dec. 8.
The Examiner found that Yamamoto discloses a pulsation attenuation
device comprising the first loop and the first and second conduits, as recited
in claims 1 and 3, respectively. Non-Final Act. 5-6; Examiner's Answer
(May 7, 2015) (hereinafter "Ans."), at 3-5. In particular, the Examiner
found that Yamamoto uses a branched piping system having two branches of
different lengths, where the longer branch can be longer by an amount of ~
of a wavelength of pulsations propagating from the pump. Non-Final Act. 6;
from the first primary wavelength, not equal to half the first primary
wavelength, [and] not a harmonic of the first primary wavelength." Appeal
Br. 38-39 (Claims Appendix).
3 The Specification describes, "A wavelength, for purposes of this invention,
is the period of the frequency times the acoustic velocity of the fluid that the
pulse is propagating in." Spec. 12, 11. 24-25.
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Ans. 5. The Examiner further found that Yamamoto teaches using a
plurality of looped branches to minimize further pulsations from a single
pump. Non-Final Act. 7; Ans. 6. The Examiner determined that Yamamoto
does not disclose, inter alia, the claimed branch lengths for dampening two
non-harmonic primary wavelengths. Id.
The Examiner found that Hwang discloses a noise attenuation device
that includes two bypass loops and that "Hwang states that the two loops
each attenuate a different main noise component ( first and second primary
wavelengths; C and C2)." Non-Final Act. 8-9; Ans. 7-8. See also Ans. 19
(describing that Hwang provides an example in which C = 67-133 Hz and
C2 = 133-267 Hz, which frequency ranges constitute two different primary
frequencies corresponding to two primary wavelengths) (citing Hwang,
col. 6, 11. 20-27). The Examiner determined that it would have been obvious
to one having ordinary skill in the art to modify the system of Yamamoto
with "the ability to use adjustable branch lengths that would allow a user to
dampen multiple non-harmonic wavelengths," as taught by Hwang, to
achieve "a much improved pulsation dampening system." Non-Final
Act. 10; Ans. 10. See also Non-Final Act. 11; Ans. 10 (proposing to "utilize
adjustable series loops (12, 13) (as taught by Hwang)" to obtain a "pulsation
dampener that efficiently minimizes two non-harmonic primary pulsation
wavelengths propagated from the compressor").
Appellants dispute the Examiner's finding that Hwang discloses first
and second branch pipe lengths for attenuating different, non-harmonic
primary wavelengths. Appeal Br. 19. Appellants contend that Hwang
discloses "maintain[ing] its pipes at lengths that attenuate a particular
wavelength and certain harmonics of that wavelength to attenuate current
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noise." Id. at 20. Appellants argue, "Hwang never attenuates more than one
primary wavelength." Id. We agree with Appellants' reading of Hwang.
Hwang discloses that controller 21 receives and analyzes signals to
calculate a main component of the engine noise, and then adjusts the length
of the first bypass pipe 12 so as to eliminate the main noise component and
noise components having the frequencies in odd number increments, and
adjusts the length of the second bypass pipe 13 so as to eliminate noise
components having a frequency of two times the frequency of the main
noise component. Hwang, col. 5, 1. 47 - col. 6, 1. 54; see also id. at col. 9,
11. 20-23 ( describing that the system using length-variable bypass pipes
allows "the main noise component of the exhaust gas as well as their odd
and even harmonics in low frequency bands" to be controlled). As such,
Hwang's device is designed to attenuate a single primary wavelength.
The Examiner further found that Hwang discloses a first loop branch
12 that can be tuned to a first length plus half the wavelength of pulsation of
a primary noise component C, and a second loop branch 13 that can be tuned
to a different length plus half a second wavelength of pulsation of a
different, second primary noise component C2. Non-Final Act. 9; Ans. 9.
See also Non-Final Act. 10 ("Hwang is capable of providing different
branch lengths that dampen different primary wavelengths (i.e. different
main noise components) that are not harmonics of one another.") ( emphasis
added); Ans. 9 (finding Hwang "is capable of providing an infinite number
of loop combinations that can dampen various combinations of primary
wavelengths desired (i.e., different main noise components that are not
harmonics of one another ... )") (emphasis added).
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To the extent that the Examiner's rejection is based on a finding that
Hwang's adjustable bypass loops possess the inherent ability to be tuned to
different primary wavelengths, this finding is not well taken. Hwang
describes that the lengths of the bypass pipes change by moving actuating
rods 14a and 15a of actuators 14 and 15, which are driven according to a
control signal from controller 21. Hwang, col. 4, 11. 48-51. As discussed
above, Hwang's controller 21 is programmed to adjust the bypass pipes to
attenuate a main noise component of a first primary wavelength and
harmonics thereof. Hwang, col. 5, 1. 47 - col. 6, 1. 54. As such, Hwang's
controller 21 would need to be reprogrammed in order to send a signal to the
second bypass pipe 13 to adjust its length to something other than a
harmonic of the first primary wavelength used to adjust the length of the first
bypass pipe 12. In other words, the claimed loops and branches being tuned
to attenuate pulsations at first and second primary wavelengths is not an
inherent characteristic of the controller disclosed in Hwang.
The Examiner further explains that Hwang's teachings are not limited
to the particular combination of exemplary wavelengths described in Hwang
because Hwang's controller 21 and actuators 14, 15 allow for a "very wide
range of loop length combinations to be selected/dampened" including
combinations of primary wavelengths that are not harmonics of one another.
Ans. 19-20 (providing a hypothetic example to tune Hwang's first loop
based on a primary wavelength at 1000 RPM (i.e., an idle speed) and to tune
Hwang's second loop based on a different, non-harmonic primary
wavelength at 4,875 RPM (i.e., a working speed)). The Examiner proposes
to apply such teachings of Hwang to Yamamoto's device "in order to tune a
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given fluid pulsation system based on anticipated ( or real time) changes in
wavelengths experienced therein." Id. at 20-21.
The Examiner is extrapolating broader teachings from Hwang than
Hwang's actual disclosure. Hwang confines the disclosure to using two
bypass loops to eliminate a primary wavelength and harmonics of the
primary wavelength. The Examiner's hypothetical tuning scenario is not
taught or suggested in Hwang. In fact, Hwang teaches that you do not need
to use the active control of the bypass loops in idle conditions. See Hwang,
col. 7, 11. 27-33 (at low engine speed, exhaust gas flows to a conventional
muffler and active control of noise is not effected); col. 9, 11. 25-32
( describing that the noise level of the noises at wide range in a mid-high
band are somewhat low and their wavelengths are short, so that such noise
can be easily eliminated using a muffler); and col. 9, 11. 34-3 7 ( describing
use active control method for high speed running and conventional passive
control method for engine starting and low speed running).
As such, the Examiner's findings as to the disclosure of Hwang are
not supported by a preponderance of the evidence. For these reasons, we do
not sustain the rejection of independent claims 1 and 3 and their dependent
claims 2, 4, 5, 7-9, 18-20, and 22, under 35 U.S.C. § 103(a) as unpatentable
over Yamamoto, Gibson, and Hwang.
Claims 12-17
Independent claim 12 is directed to a pump pulsation attenuation
device having first and second conduits in fluid communication with fluid
discharged from the pump and third and fourth conduits in fluid
communication with fluid sucked into the pump. Appeal Br. 40 (Claims
Appendix). The claim recites that the second conduit is longer than the first
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conduit, and the fourth conduit is longer than the third conduit. Id. The
claim also recites that fluid discharged from the pump is directed
simultaneously through both the first and second conduits and fluid is
sucked into the pump simultaneously from the third and fourth conduits. Id.
The Examiner found that Yamamoto discloses a pump pulsation
attenuation device having first and second conduits (2, 4) of different lengths
in simultaneous fluid communication with fluid discharged from the pump 1.
Non-Final Act. 6 (citing Yamamoto, Figs. 1 and 2, col. 4, 11. 51-57). The
Examiner found that Yamamoto also discloses using a plurality of looped
branches to minimize further pulsations from a single pump, but does not
specifically disclose how or where the plurality of loops would be arranged
(i.e., at the inlet and outlet). Id. at 7 (citing Yamamoto, col. 5, 11. 4-10).
The Examiner found that Gibson discloses a pulsation dampening
assembly for reciprocating compressors and teaches using dampener vessels
( 4, 5) at both the inlet and outlet of a compressor to minimize vibratory
stresses in the system and provide greater reliability by preventing damaging
vibrations within the system components. Id. ( citing Gibson, col. 1, 11. 1-19,
44-50). The Examiner found that it would have been obvious to modify
Yamamoto' s pulsation attenuation system to use loops at both the inlet and
the outlet of the compressor, to achieve an improved pulsation dampening
system. Id. at 10-11.
Appellants argue (1) Yamamoto does not disclose the third and fourth
conduits of claim 12; and (2) "none of the references cited disclose use of a
set of parallel, different length conduits arranged on the suction side of a
pump and use of another set of parallel, different length conduits arranged
on the discharge side of the pump." Appeal Br. 28-29.
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As to Appellants' first argument, the Examiner did not rely on
Yamamoto to disclose the third and fourth conduits. Rather, the Examiner
found only that Yamamoto suggests using a plurality of bypass loops. The
Examiner relied on Gibson to suggest using dampeners at both the suction
side and discharge side of a compressor, as a suggestion to modify
Yamamoto to place bypass loops on each side of the compressor.
As to Appellants' second argument, as noted by the Examiner, claim
12 does not recite that the conduit pairs are "parallel." Ans. 27. Further, the
argument does not address the proposed modification of Yamamoto with the
teaching of Gibson. Appellants do not explain why the Examiner's reliance
on Gibson in the proposed modification of Yamamoto is in error.
For these reasons, Appellants have not identified error in the
Examiner's rejection of independent claim 12. Appellants do not present
separate arguments for the patentability of dependent claims 13, 14, 16, and
17. Appeal Br. 30-32. Accordingly, we sustain the rejection of claims 12-
14, 16, and 17 under 35 U.S.C. § 103(a) as unpatentable over Yamamoto,
Gibson, and Hwang.
Claim 15 depends from claim 12 and further recites, "wherein the
fourth length is approximately equal to the third length plus half a second
primary wavelength of a fluid sucked into the pump." Appeal Br. 40
(Claims Appendix). Appellants present separate arguments in support of
claim 15 that mirror the arguments discussed above with respect to
independent claims 1 and 3. Appeal Br. 31 ( arguing Hwang does not
disclose a second primary wavelength). For the reasons discussed above, we
agree with Appellants that the Examiner's reliance on Hwang to disclose
attenuation of noise of both a first primary wavelength and a second primary
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wavelength is not supported by a preponderance of the evidence. See
Non-Final Act. 12. Accordingly, we do not sustain the rejection of claim 15
under 35 U.S.C. § 103(a) as unpatentable over Yamamoto, Gibson, and
Hwang.
Third and Fourth Grounds of Rejection: Obviousness of claims 6, 10, 11,
and 21 over Yamamoto, Gibson, Hwang, and either Feuling or Aldridge
Claims 6, 10, and 11 depend from independent claim 3; claim 21
depends from independent claim 1. The Examiner relied on the same
deficient findings as to the disclosure of Hwang in the rejections of these
dependent claims as explained above in the rejection of claims 1 and 3.
Non-Final Act. 13-15. The Examiner did not rely on either F euling or
Aldridge to cure the above-noted deficiencies. Id. Accordingly, we do not
sustain the rejections under 35 U.S.C. § 103(a) of dependent claims 6, 10,
11, and 21.
Fifth Ground of Rejection: Obviousness of claims 23-26 over Yamamoto,
Hwang, and Aldridge
Independent claim 23 contains limitations similar to the limitations
discussed above in claims 1 and 3. 4 The Examiner relied on the same
deficient findings as to the disclosure of Hwang in the rejections of these
4 Independent claim 23 recites a first loop having a first branch longer than a
second branch by an amount equal to half of a first primary wavelength and
a second loop having a first branch longer than a second branch by an
amount equal to half of a second primary wavelength, where the second
primary wavelength is different than the first primary wavelength. Appeal
Br. 41--42 (Claims Appendix). Consistent with our claim interpretation in
the related appeal, we construe a "primary wavelength" when that claim
term is read in light of Appellants' Specification, not to encompass a
multiple of another primary wavelength. Related Dec. 8; Spec. 11, 11. 20-
24. As such, the "second primary wavelength" recited in claim 23 does not
encompass an odd or even harmonic of the first primary wavelength.
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dependent claims as explained above in the rejection of claims 1 and 3.
Non-Final Act. 16. The Examiner did not rely on Aldridge to cure the
above-noted deficiencies. Id. Accordingly, we do not sustain the rejection
of claims 23-26 under 35 U.S.C. § 103(a) as unpatentable over Yamamoto,
Hwang, and Aldridge.
Sixth Ground of Rejection: Obviousness of claim 27 over Yamamoto,
Hwang, Aldridge, and Gibson
Claim 27 depends from independent claim 23. The Examiner relied
on the same deficient findings as to the disclosure of Hwang in the rejections
of this dependent claim as explained above. Non-Final Act. 17. The
Examiner did not rely on Gibson to cure the above-noted deficiencies. Id. at
17-18. Accordingly, we do not sustain the rejection under 35 U.S.C.
§ 103(a) of dependent claim 27.
DECISION
The decision of the Examiner provisionally rejecting claims 12-17
under 35 U.S.C. § 101 for statutory double patenting is reversed.
The decision of the Examiner rejecting claims 1-11, 15, 18-27 under
35 U.S.C. § 103(a) is reversed.
The decision of the Examiner rejecting claims 12-14, 16, and 17
under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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