Ex Parte Farb

Patent Trial and Appeal Board

Sep 19, 2018

13057768 (P.T.A.B. Sep. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/057,768
7590
M. Daniel Farb
240 Central Ave., 1J
Lawrence, NY 11559
02/07/2011
09/19/2018
FIRST NAMED INVENTOR
Daniel Farb
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.
4644/44 5374
EXAMINER
MCCAFFREY, KAYLA M
ART UNIT PAPER NUMBER
3745
MAIL DATE DELIVERY MODE
09/19/2018 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
Exparte DANIEL FARB
Appeal2017-011169
Application 13/057,768
Technology Center 3700
Before EDWARD A. BROWN, BRETT C. MARTIN and
SEAN P. O'HANLON, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 22, 24, 29, 38, and 39 under 35 U.S.C. § 103(a) as
unpatentable over Vasshus (US 8,348,623 B2, issued Jan. 8, 2013), Lerner
(US 4,731,545, issued Mar. 15, 1988), and Powell (US 2010/0126932 Al,
published May 27, 2010). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2017-011169
Application 13/057,768
CLAIMED SUBJECT MATTER
Claim 22 is the sole independent claim on appeal, and reads:
22. A system of power generation in a piping system,
compnsmg:
a. a downstream section of pipe,
b. a source of back pressure in said section from a fluid with
a head,
c. an upstream section of pipe including a manifold, the
manifold in communication with the downstream section of pipe,
and a hydroelectric turbine located within the upstream section
of pipe, at an elevation greater than the head, corresponding to
the pressure in the downstream section of pipe,
d. a nozzle upstream from the hydroelectric turbine, and,
e. a pressure valve upstream of the nozzle leading to the
hydroelectric turbine for enabling a steady fluid stream of
constant pressure through the hydroelectric turbine.
Br. 21 (Claims App.).
ANALYSIS
For claim 22, the Examiner finds that Vasshus discloses a system of
power generation in a piping system, comprising a downstream section of
pipe (pipeline 13 between lower pumping device 1 and upper pumping
device 1 ), a source of back pressure in the downstream section (lower
pumping device 1) from a fluid with a head, an upstream section of pipe in
communication with the downstream section, and a hydroelectric turbine
(upper pumping device 1) located within the upstream section of pipe, at an
elevation greater than the head, corresponding to the pressure in the
downstream section of pipe. Final Act. 3--4 ( citing Vasshus, Fig. 7); see also
id. at 5 (annotated version of Vasshus Fig. 7). The Examiner states, "[s]ince
the amount ofbackpressure is controlled by the load (column 5, lines 54--
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Application 13/057,768
62), the head of the corresponding pressure is also controllable (column 3,
lines 1---6), and as long as fluid is flowing through the system, the height of
the head from the backpressure would be less than the elevation difference
in the turbines." Id. at 4 (italics omitted).
Appellant contends that none of the applied references teaches "a
hydroelectric turbine located within the upstream section of pipe, at an
elevation greater than the head," as claimed. Br. 9 ( emphasis added).
Appellant submits that this language reflects "there is an air gap between the
lower and higher water bodies" and "[ n Jone of the prior art teaches an air
gap from a lower to a higher elevation turbine." Id. (emphasis added).
According to Appellant, the purpose of the application "is to create air space
by placement above the head (that is, the top of the water column
underneath the turbine." Id. at 10 ( emphasis added). With reference to
Figure 1, Appellant submits, "[t]he location of the turbine at point 2, above
the backpressure coming from point 3, enables it to operate in airspace
much more efficiently." Id. at 11 (emphasis added). Regarding the term
"backpressure" recited in claim 22 (i.e., "a source of backpressure in said
[downstream] section [ of pipe] from a fluid with a head"), Appellant
explains, "[t]his innovation operates in a specific environment where there is
a gravity head created. If the gravity head is 30 meters(= 3 atmospheres of
pressure), then the turbine has to be located above that backpressure such as
at 31 meters, thereby creating a gap in the water stream." Id. at 12-13
( emphasis added).
The Examiner responds that the claimed piping system does not
require an "air gap" because the Specification states, "The upstream turbine
should be, at least for a majority of the time, above the level of the contents
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Application 13/057,768
so it can function at maximum efficiency." Ans. 3 (citing Spec. 4, first
paragraph). According to the Examiner, the broadest reasonable
interpretation of claim 22 "is that the hydroelectric turbine is at a location
that is capable of having an air gap but is not required to be above the level
of contents (i.e. fluid) in order to operate." Id. ( emphasis added). The
Examiner submits that the claim requires the hydroelectric turbine to be
located in an upstream section of pipe, at a location at an elevation "greater
than the head," where the "head" corresponds to a fluid in a downstream
section of pipe. Id. Thus, the Examiner submits, the claimed hydroelectric
turbine is located above the head of the fluid in the downstream section of
pipe. Id.
The Examiner determines that V asshus teaches that the downstream
section of pipe has a source of pressure (i.e., a downstream turbine) and the
upstream section of pipe also has a turbine. Ans. 3 ( citing annotated
Vasshus Fig. 7). The Examiner submits that, in Vasshus, the backpressure is
controlled by the load, and, thus, Vasshus' system is capable of having an air
gap. Id. (citing Vasshus, col. 5, 11. 54---62). Continuing, the Examiner
submits that because the fluid in the downstream section of pipe in Vasshus
has a head due to the pressure applied by the source, "the upstream section
turbine is considered as being at an elevation greater than head because the
pressure differential between the upstream turbine and the source results in
fluid flowing downward to generate electricity." Id. at 3--4 (citing Vasshus,
col. 1, 11. 34--36). Thus, the Examiner concludes, "the upstream turbine must
be at an elevation greater than head, due to pressure from the source, in
order for the fluid flow to be moving through the turbine to extract energy."
Id. at 4.
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Appeal2017-011169
Application 13/057,768
Appellant's position is more persuasive. The Specification describes:
The back pressure can be as simple as the pressure in the system,
but it can also be from the turbine at the bottom with its nozzle
that creates a certain level of head, combined with the flow rate,
which allows water to accumulate above the nozzle. The
upstream turbine should be, at least for a majority of the time,
above the level of the contents so it can function at maximum
efficiency.
Spec. 4 (emphasis added). Additionally, the Specification describes "a
method of placing turbines in a piping system with a downward section of
pipe, wherein the upstream turbine active area is not filled with backed-up
content from the downstream turbine" (id. (emphasis added)); "[t]his is also
claimed as a device including the pipe and at least one turbine with
placement in a configuration where the turbine is placed in relation to the
pressure in the system causing elevation of the water to be below the level of
the turbine" (id. at 2 (emphasis added)); and "[t]he same principles apply if
there is another cause, other than a turbine, for a backing of pressure from
the downstream point, so that a turbine in a downward segment should be
placed above the point of the upper head from the back pressure" (id.).
Appellant's position that the limitation, "a hydroelectric turbine
located within the upstream section of pipe, at an elevation greater than the
head," reflects "there is an air gap between the lower and higher water
bodies" is consistent with these passages in the Specification.
The Examiner cites to the following description in Vasshus as
supporting the position that Vasshus' system is capable of having an air gap:
By connecting a load 19, 21 (see FIG. 8) to at least one of
the two shafts 6 of the impellers 2 in the apparatus shown in the
FIGS. 1-3, the impellers 2 will work as a "brake" on the
movement of the fluid column. Parts of the kinetic energy which
is transmitted from the fluid column to the load 19, 21 may be
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Application 13/057,768
utilized, in a case in which the load 19, 21 is formed by a
generator, for producing electrical energy. At the same time a
negative differential pressure could be provided across the
apparatus 1.
Ans. 3; see Vasshus, col. 5, 11. 44---62.
We note Vasshus also describes:
Thus, the pumping devices 1 cause a loss of energy from the
water flow, in tum leading to reduced pressure downstream of
either one of the pumps 1. The amount of energy extracted at
either one of the pumps 1 could be controlled by, for example, a
centrifugal brake (not shown) known per se.
See Vasshus, col. 6, 1. 64---col. 7, 1. 2. These quoted passages in Vasshus
disclose connecting loads 19, 21 to impellers 2 of apparatuses 1 to transmit
energy from the moving fluid to loads 19, 21 to thereby produce electrical
energy, which, in tum, results in reduced pressure downstream from either
pump 1. V asshus does not describe that reducing fluid pressure by
controlling the amount of energy extracted from the fluid will result in an
"air gap" between apparatuses 1 shown in Figure 7. In this regard, the
Examiner does not establish with evidence that controlling the fluid pressure
in Vasshus in this manner will necessarily create an air space by upper
pumping device 1 being located within pipeline 13 above a head
corresponding to the pressure in the lower, downstream section of pipeline
13, that is, above the top of a water column underneath the upper pumping
device 1. Nor has the Examiner established that Vasshus' system is capable
of having an "air gap" between upper pumping device 1 and lower pumping
device 1 by reducing pressure downstream from either pump 1 using loads
19, 21. However, "[ t ]he Patent Office has the initial duty of supplying the
factual basis for its rejection. It may not, because it may doubt that the
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Appeal2017-011169
Application 13/057,768
invention is patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in its factual basis." In re
Warner, 379 F.2d 1011, 1017 (CCPA 1967) (emphasis added).
Further, the Examiner has not stated a reason with a rational
underpinning for somehow modifying Vasshus to result in "a hydroelectric
turbine located within the upstream section of pipe, at an elevation greater
than the head, corresponding to the pressure in the downstream section of
pipe," as claimed.
The Examiner's reliance on Powell for teaching a manifold in
communication with the downstream section of pipe (Final Act. 4), and on
Lerner for teaching a nozzle upstream from a hydroelectric turbine and a
pressure valve upstream of the nozzle (id. at 4---6), does not cure the
deficiencies of Vasshus.
Thus, we do not sustain the rejection of claim 22, or of claims 24, 29,
38, and 39 depending therefrom, as unpatentable over Vasshus, Powell, and
Lerner.
DECISION
We reverse the rejection of claims 22, 24, 29, 38, and 39.
REVERSED
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