Ex Parte Gysling

Patent Trial and Appeal Board

Jun 25, 2013

11483025 (P.T.A.B. Jun. 25, 2013)

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.
11/483,025 07/07/2006 Daniel L. Gysling CC-0862 6870
68653 7590 06/26/2013
EXPRO METERS, INC.
50 BARNES PARK NORTH
WALINGFORD, CT 06492
EXAMINER
SHUMATE, ANTHONY R
ART UNIT PAPER NUMBER
1772
MAIL DATE DELIVERY MODE
06/26/2013 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 DANIEL L. GYSLING
____________

Appeal 2012-003814
Application 11/483,025
Technology Center 1700
____________

Before GEORGE C. BEST, GRACE KARAFFA OBERMANN, and
DONNA M. PRAISS, Administrative Patent Judges.

OBERMANN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks relief from the Examiner’s final rejections of
claims 1-17 and 19-20.
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
Claim 1 illustrates the subject matter on appeal and is reproduced
from the Claims Appendix below:
1. An apparatus for performing gas/liquid separation in a
fluid flowing within a pipe, the apparatus comprising:
a separator device in fluid communication with the pipe
to receive the fluid, wherein said separator device separates the
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fluid into a gas component and a liquid component, wherein
said gas component flows within a gas leg portion and wherein
said liquid component flow within a liquid leg portion;
a gas leg metering device disposed to sense the gas
component flow within the gas leg portion, said gas leg
metering device being adapted to determine an amount of liquid
carry-over within the gas component flow, and to generate gas
component data representative of the liquid carry-over within
the gas component flow;
a liquid leg metering device disposed to sense the liquid
component flow within the liquid leg portion, said liquid leg
metering device being adapted to determine an amount of gas
carry-under within the liquid component flow, and to generate
liquid component data representative of the gas carry-under
within the liquid component flow; and
a processing device adapted to receive and process the
gas component data and the liquid component data to generate
apparatus performance data;
wherein the apparatus for performing gas/liquid
separation is adapted to be selectively responsive to the
apparatus performance data to adjust performance of the
separator device.

THE REJECTIONS
The Examiner maintains the following grounds of rejection, which we
refer to by number in our analysis:
Rejection One. Claims 1, 2, 4-10, 17, and 19 as anticipated under 35
U.S.C. § 102(b) by Scott1 (Ans. 5);
Rejection Two. Claims 1-16 as unpatentable under 35 U.S.C.
§ 103(a) over Scott in view of Hill2, Reed3, and Liu4 (Ans. 13); and

1 US 6,134,951, issued October 24, 2000.
2 US 5,600,073, issued February 4, 1997.
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Rejection Three. Claim 20 as unpatentable under 35 U.S.C. § 103(a)
over Scott in view of Birmingham5 (Ans. 29).

ANALYSIS
Rejection One
Our analysis of independent claims 1 and 17 is dispositive of all issues
raised in connection with Rejection One.
Claim 1. Anticipation requires that every limitation be disclosed
either expressly or inherently in the cited reference. Sanofi–Synthelabo v.
Apotex, Inc., 470 F.3d 1368, 1375 (Fed. Cir. 2006). The Examiner concedes
that Scott does not do so for at least two limitations in claim 1 by arguing
that Scott could be adapted to meet these limitations. Ans. 6, 7.
For example, the Examiner finds that “[t]he gas leg metering device
(42)” disclosed in Scott “could be adapted to determine an amount of liquid
carry-over within the gas component flow and to generate gas component
data representative of the liquid carry-over within the gas component flow.”
Id. at 6 (emphasis added). The Examiner has not demonstrated that Scott in
fact describes either expressly or inherently a processing device that receives
gas component data. Scott simply states that, after the flow volume of
liberated gas is measured via flow indicator 42, “[t]he gas sample then
passes to a pressure controller (PC) 44 which controls the backpressure in
the gas line 40 by way of a valve 46.” Scott 2:43-48. Critically lacking is
any supported finding that the pressure in the gas leg is representative of “an

3 US 4,236,406, issued December 2, 1980.
4 US 6,032,539, issued March 7, 2000.
5 GB 2,337,011, published November 10, 1999.
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amount of liquid carry-over within the gas component flow” as specified in
claim 1. Nor does the Examiner identify any component in Scott’s device
that is adapted “to generate gas component data representative of the liquid
carry-over within the gas component flow” as required by claim 1.
The Examiner similarly finds that “[t]he liquid leg metering device
(50 or 56) could be adapted to determine an amount of gas carry-under
within the liquid component flow, and to generate liquid component data
representative of the gas carry-under within the liquid component flow.”
Ans. 7 (emphasis added). The Examiner does not establish, however, that
Scott’s device is in fact so adapted. Id.; see Scott 2:50-67 (providing no
suggestion that element 50 or 56 is adapted to assess gas carry-under or
generate data representative thereof). Thus, the rejection of claim 1 as
anticipated by Scott is not proper and is reversed.
Claim 17. Claim 17 specifies “a processing device, wherein said
processing device is in communication with [a] flow metering device, and is
adapted to use the meter data to generate apparatus performance data, and
the apparatus is adapted to be selectively responsive to the apparatus
performance data to improve performance of the separator.” Claim 17. The
Examiner finds that Scott’s device “is in communication with the flow
metering device (50), and is adapted to use the meter data to generate
apparatus performance data.” Ans. 12 (citing Scott Fig. 1; 2:50-52). On that
point, the Examiner further finds that Scott’s “flow metering device (50)” is
equipped with “different parts where one part is activated by the fluid to
create meter data, and “a different part [] generates apparatus performance
data which is displayed to the user.” Id. We discern no support for these
findings in the disclosure upon which the Examiner relies or in the
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surrounding passages, which place the disclosure in context. Scott Fig. 1;
2:40-67. We reverse the Examiner’s rejection of claim 17 on this basis
alone.
Furthermore, even if the Examiner’s findings regarding flow
indicator 50 were correct, we would still reverse the rejection of claim 17.
The Examiner finds that Scott describes the claim limitation that “the
apparatus is adapted to be selectively responsive to the performance data to
improve performance of the separator.” Ans. 12-13. We agree with
Appellant that the portion of Scott’s disclosure upon which the Examiner
relies does not meet this limitation. Id. (citing Scott Fig. 1, 2:53-56). In
particular, Scott does not disclose that interface level controller 54 even is in
communication with flow indicator 50, let alone that interface level
controller 54 uses the apparatus performance data allegedly generated by
flow indicator 50 to control the operation of valve 52.
On this record, we reverse the Examiner’s rejection of claim 17 as
anticipated by Scott.
We reverse Rejection One.

Rejection Two
The Examiner rejects claims 1-16 as unpatentable over Scott in view
of Hill, Reed, and Liu. Ans. 13. Appellant argues two groups of claims in
connection with Rejection Two: Claims 1-10 as a first group, and claims
11-16 as a second group. We select, respectively, claims 1 and 11 as
representative of these groups. Claims 2-10 stand or fall with claims 1. 37
C.F.R. § 41.37(c)(1)(vii). Claims 12-16 stand or fall with claim 11. Id.
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We have considered each of Appellant’s arguments but do not find
any of them persuasive to show reversible error on the part of the Examiner.
In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Claim 1. Appellant argues that Scott fails to disclose the claim 1
features of “a processing device adapted to . . . generate apparatus
performance data” and “wherein the apparatus . . . is adapted to be
selectively responsive to the apparatus performance data to adjust
performance of the separator device[.]” App. Br. 14 (quoting claim 1). The
Examiner, however, finds that the combined disclosure of the applied art,
not Scott standing alone, suggests those features. Ans. 13-18. Specifically,
the Examiner finds that a skilled artisan would have been led to adapt Scott’s
device in light of the disclosures of three other references (Hill, Reed, and
Liu) to produce a modified device that meets the limitations of claim 1. Id.
Appellant provides no substantive argument challenging that the
combined disclosures of Scott, Hill, Reed, and Liu suggest each limitation of
claim 1. App. Br. 14. Nor does Appellant refute the Examiner’s finding
that a skilled artisan would have been prompted to modify Scott’s device in
view of the disclosures of Hill, Reed, and Liu. Id.
Claim 11. Appellant similarly argues that Scott fails to disclose
claim 11’s features of “processing said gas component data and said liquid
component data to generate apparatus performance data” and “utilizing the
apparatus performance data to control performance of the separator
device[.]” Id. at 14-15. Our reasoning as to claim 1 applies with equal force
to claim 11.
No persuasive argument or evidence of error having been brought
forward by Appellant, we affirm Rejection Two.
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Rejection Three
Claim 20 depends from claim 17. The Examiner finds that the subject
matter of claim 20 would have been obvious over Scott in view of
Birmingham. Ans. 29-30. For the reasons stated above in connection with
Rejection One as applied to claim 17, the evidence in Scott provides
inadequate factual foundation for the rejection of claim 20 under § 103(a),
which we also reverse. See In re Warner, 379 F.2d 1011, 1017
(CCPA 1967).

CONCLUSION
We reverse Rejection One of claims 1, 2, 4-10, 17, and 19 as
anticipated by Scott.
We affirm Rejection Two of claims 1-16 as unpatentable over Scott in
view of Hill, Reed, and Liu.
We reverse Rejection Three of claim 20 as unpatentable over Scott in
view of Birmingham.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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