Ex Parte Ehlert

Board of Patent Appeals and Interferences

Apr 12, 2010

10861945 (B.P.A.I. Apr. 12, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte JEFFERY RAY EHLERT
_____________

Appeal 2009-004246
Application 10/861,945
Technology Center 2800
______________

Decided: April 12, 2010
_______________

Before ROBERT E. NAPPI, KENNETH W. HAIRSTON,
and MAHSHID D. SAADAT, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-004246
Application 10/861,945

This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1 through 11, 17, and 18. Claim 13 through 16 and 19 through 21
have been allowed and claim 12 has been canceled.
We reverse.
INVENTION
The invention is directed toward a method of predicting evaporation
of an ink reservoir. See pages 1 and 2 of Appellant’s Specification. Claim 1
is reproduced below:
1. A method of ink evaporation prediction for an ink reservoir,
comprising:
establishing an empirical evaporation curve that extends over a
plurality of months representing evaporation characteristics for an ink
reservoir type, said ink reservoir belonging to said ink reservoir type;
establishing an evaporation prediction curve for said ink
reservoir that approximates said empirical evaporation curve over said
plurality of months; and using said evaporation prediction curve to
determine an amount of remaining available ink in said ink reservoir.

REFERENCES
Accatino US 5,414,452 May 9, 1995
Nojima US 6,382,858 B May 7, 2002
Kurata US 2002/0149655 A1 Oct. 17, 2002
Schantz US 2003/0020773 A1 Jan. 30, 2003
Nunokawa US 6,837,562 B2 Jan. 4, 2005

REJECTION AT ISSUE
The Examiner has rejected claims 1, 2, 7, 8, 10, and 11 under 35
U.S.C. § 103(a) as being unpatentable over Schantz in view of Kurata. The
Examiner’s rejection is on pages 3 through 5 of the Answer.
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The Examiner has rejected claims 3 through 6 under 35 U.S.C.
§ 103(a) as being anticipated by Schantz in view of Kurata and Accatiano.
The Examiner’s rejection is on pages 5 through 7 of the Answer.
The Examiner has rejected claim 9 under 35 U.S.C. § 103(a) as being
anticipated by Schantz in view of Kurata and Nojima. The Examiner’s
rejection is on page 7 of the Answer.
The Examiner has rejected claims 17 and 18 under 35 U.S.C. § 103(a)
as being anticipated by Schantz in view of Kurata and Nunokawa. The
Examiner’s rejection is on pages 8 and 9 of the Answer.

ISSUE
Appellant argues that the Examiner’s rejection of claims 1, 2, 7, 8, 10,
and 11 under 35 U.S.C. § 103(a) is in error. Appellant asserts that
independent claim 1 recites establishing an empirical evaporation curve that
extends over a plurality of months, and establishing an evaporation
prediction curve for the ink in a reservoir that approximates the empirical
evaporation curve. Appeal Brief 14. Appellant argues that Schantz teaches
that known rates of evaporation are modified by changes in humidity.
Appeal Brief 15. Thus, Appellant argues that in Schantz any empirical
evaporation curve is modified by changes in ambient humidity, and Schantz
does not teach a predicted evaporation curve that approximates an empirical
curve as claimed. Id. Further, Appellant argues that Kurata teaches the
evaporation suppressing effects of using different vent holes on an ink
reservoir and as such does not disclose establishing an evaporation
prediction curve that approximates an empirical curve as claimed. Appeal
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Brief 17. Appellant presents similar arguments with respect to independent
claims 7 and 17 on pages 20 through 22, 28, and 29 of the Appeal Brief.
Thus, Appellant’s contentions present us with the issue:
With respect to claim 1 did the Examiner err in finding that the
combination of the references teaches calculating remaining ink in a
reservoir using predictions based upon empirical curves as recited in
independent claim 1?
With respect to the rejection of independent claims 7 and 17,
Appellant’s arguments present us with an issue similar to that raised with
respect to the rejection of independent claim 1.

ANALYSIS
Claims 1 and 2
Appellant’s arguments have persuaded us that the Examiner erred in
finding that the combination of Schantz and Kurata teaches calculating
remaining ink in a reservoir using predictions based upon empirical curves
as recited in independent claim 1. Claim 1 recites “establishing an empirical
evaporation curve that extends over a plurality of months representing
evaporation characteristics for an ink reservoir type” and “establishing an
evaporation prediction curve for said ink reservoir that approximates said
empirical evaporation curve over said plurality of months.” Thus, claim 1
recites that there are two evaporation curves, the predicted curve
approximating the empirical curve. The Examiner finds that Schantz teaches
generating an empirical curve and that the data can be used to predict an
upcoming out of ink condition, citing paragraph 0049 of Schantz. Answer 3
and 10. The Examiner finds that Schantz does not teach establishing curves
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approximating the empirical curve. Answer 4. The Examiner finds that
Kurata teaches that “[a] person of ordinary skill in the art would have been
able to produce a [sic] evaporation curve, with slopes, given the evaporation
data disclosed in Schantz above. (Figures 13-15; Paragraph 0048).” Answer
5.
We agree with the Examiner’s findings regarding Schantz. However,
we disagree with the Examiner’s conclusion that claim 1 is obvious in light
of the prior art disclosures. As found by the Examiner, Schantz does not
teach establishing curves from the empirical curves. While it may be within
the skill of the artisan to approximate empirical curves we do not find
figures 13 through 15 and paragraph 0048 of Kurata generating an
evaporation prediction curve that approximates an empirical curve. Rather,
figures 13 through 15 are graphs merely showing the ink evaporation
properties of different containers. See paragraph 0048. Thus, the Examiner
has not shown that it was known or obvious to generate empirical curves and
use approximations of the curves in a system to determine an amount of
remaining ink in the reservoir as claimed. Accordingly, we will not sustain
the Examiner’s rejection of claim 1 and dependent claim 2 which is similarly
rejected.

Claims 3 through 6.
Claims 3 through 6 are all ultimately dependent upon claim 1. The
Examiner in rejecting these claims has relied upon the disclosure of Schantz
and Kurata to teach the limitations of claim 1. The Examiner has not shown,
nor do we find that, the additional teachings of Accatiano make up for the
above-noted deficiencies in the rejection of claim 1. Accordingly, we will
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not sustain the Examiner’s rejection of claims 3 through 6 for the reasons
discussed above with respect to claim 1.

Claims 7, 8, 10, and 11.
As discussed above with respect to claim 1, Appellant’s arguments
have persuaded us that the Examiner erred in finding that the combination of
Schantz in view of Kurata teaches calculating remaining ink in a reservoir
using predictions based upon empirical curves. Independent claim 7 is
similar to claim 1 in that it recites an ink evaporation prediction which
makes use of an empirical evaporation curve for an ink reservoir and an
approximation of the rates of evaporation over each of a plurality of time
segments which are associated with the empirical evaporation curve. This
approximation is used to determine the amount of remaining available ink.
Thus, claim 7 is similar to claim 1 in that it recites an empirical evaporation
curve and an approximation of the empirical curve to calculate the amount
of remaining available ink. As discussed above, with respect to claim 1, the
Examiner has not shown that it was known or obvious to generate empirical
curves and use approximations of the curves in a system to determine an
amount of remaining ink in the reservoir. Accordingly, we will not sustain
the Examiner’s rejection of claim 7 and dependent claims 8, 10, and 11
which are similarly rejected.

Claim 9.
Claim 9 is dependent upon claim 7. The Examiner in rejecting this
claim has relied upon the disclosure of Schantz and Kurata to teach the
limitations of claim 7. The Examiner has not shown, nor do we find that, the
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additional teachings of Nojima make up for the above-noted deficiencies in
the rejection of claim 7. Accordingly, we will not sustain the Examiner’s
rejection of claim 9 for the reasons discussed above with respect to claim 7.

Claims 17 and 18.
Independent claim 17 is similar to claim 7 in that it recites an ink
evaporation prediction which makes use of an empirical evaporation curve
for an ink reservoir and an approximation of the rates of evaporation over
each of a plurality of time segments which are associated with the empirical
evaporation curve. This approximation is used to determine the amount of
remaining available ink. The Examiner’s rejection relies upon the disclosure
of Schantz and Kurata to teach these features of claim 17. As discussed
above with respect to claim 7, the Examiner has not shown that it was
known or obvious to generate empirical curves and use approximations of
the curves in a system to determine an amount of remaining ink in the
reservoir as claimed. Accordingly, we will not sustain the Examiner’s
rejection of claim 17 and dependent claim 18.

ORDER
The decision of the Examiner to reject claims 1 through 11, 17, and 18
is reversed.

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Appeal 2009-004246
Application 10/861,945

REVERSED

ELD

SCOTT N. BARKER, ESQ.
INTELLECTUAL PROPERTY LAW
LEXMARK INTERNATIONAL, INC., BLDG. 082
40 WEST NEW CIRCLE ROAD
LEXINGTON, KY 40550
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