Ex Parte Hopper et al

Patent Trial and Appeal Board

Oct 23, 2017

12679857 (P.T.A.B. Oct. 23, 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.
12/679,857 06/16/2010 Hans Paul Hopper 111078-020800US 1042
102197 7590 10/25/2017
Chamberlain, Hrdicka, White, Williams
& Aughtry, P.C.
1200 Smith Street, 14th Floor
Houston, TX 77002
EXAMINER
FOX, JOHN C
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
10/25/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Patents @ chamberlainlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HANS PAUL HOPPER and
DEREK MEEK
Appeal 2016-001526
Application 12/679,857
Technology Center 3700
Before MICHAEL L. HOELTER, LYNNE H. BROWNE, and
PAUL J. KORNICZKY, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner’s final rejection of claims 1—4, 6, 7, 9, 12, 14—16, 18—21, 45, and
46, which constitute all the claims pending in this application.1 Claims 5, 8,
10, 11, 13, 17, 26, 32, 33, 35, 47, and 48 have been canceled while claims
1 Appellants’ Amendment dated February 24, 2015 seeking to cancel claims
19 and 20 was not entered. See Advisory Action dated March 4, 2015.
Appeal 2016-001526
Application 12/679,857
22—25, 27—31, 34, 36-44, 49, and 50 have been withdrawn.* 2 See Claims
Appendix; Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to a choke assembly, in
particular to a choke assembly having a plug and cage type arrangement, and
to the use of the choke assembly in the processing of fluid streams.” Spec.
1 3. Apparatus claim 1 and method claim 21 are independent. Claim 1,
illustrative of the claims on appeal, is reproduced below.
1. A choke assembly comprising:
a choke element having a fluid flow passage
therethrough, the choke element comprising:
a cage comprising an interior and a plurality of
apertures therethrough for the passage of fluid; and
a plug moveable with respect to the cage, the plug
having an end surface that in use defines a boundary of
the fluid flow passage through the choke and being
moveable to open or close each of the apertures through
the cage, to thereby control the flow of fluid through the
cage;
wherein the apertures in the cage are disposed in a first
and second portion of the cage, each of the first and second
portions having a least one aperture therein, the first and second
portions being separated by a land;
wherein the apertures extend through the cage at an angle
to a radial direction within a plane perpendicular to a
longitudinal axis of the cage such that fluid flow through the
apertures into the interior of the cage results in a rotating or
helical flow pattern within the cage; and
whereby the plug may be positioned with its end surface
disposed to intersect the land between the first and second
2 Claims 31, 38, 49, and 50 depend from withdrawn claims and are
considered by the Examiner as also being withdrawn. Ans. 2.
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Appeal 2016-001526
Application 12/679,857
portions, such that each aperture is fully open or fully closed to
the flow of fluid.
REFERENCES RELIED ON BY THE EXAMINER
Baumann US 3,813,079 May 28, 1974
Weevers US 4,327,757 May 4, 1982
Betting WO 2006/070020 A1 July 6, 2006
THE REJECTIONS ON APPEAL
Claims 1—4, 6, 7, 9, 12, 14—16, 18—21, 45, and 46 are rejected under
35 U.S.C. § 103(a) as unpatentable over Betting and Baumann.
Claims 1—4, 6, 7, 9, 12, 14—16, 18—21, 45, and 46 are, in the
alternative, rejected under 35 U.S.C. § 103(a) as unpatentable over Betting,
Weevers, and Baumann.
ANALYSIS
The rejection of claims 1—4, 6, 7, 9, 12, 14—16, 18—21, 45, and 46
as unpatentable over Betting and Baumann and, alternatively,
over Betting, Weevers, and Baumann
Appellants present one set of arguments for both rejections and, in the
arguments presented, argue all the claims together. App. Br. 10-17. We
select independent apparatus claim 1 for review with the remaining claims
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Appellants explain the operation of their claimed invention and
contrast such operation with that of Betting and Baumann. App. Br. 10—17.
Seeking to distinguish Baumann, Appellants contend, “Baumann is
concerned exclusively with controlling gas flows” while their disclosure
pertains to “a liquid flow.” App. Br. 15. However, claim 1 recites “a fluid
flow passage” and the claim term “fluid,” as used in Appellants’
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Appeal 2016-001526
Application 12/679,857
Specification, is not specific to only “liquid flow.”3 The Examiner further
states that Betting teaches, “[t]he fluid could be either 1) a pre-dominantly
gaseous carrier with a liquid phase or 2) a predominantly liquid carrier with
an immiscible liquid and/or gaseous phase.” Ans. 6 (referencing Betting
5:8—10). Thus, Appellants’ attempt to distinguish Baumann based on the
type of fluid flow and/or its operation involving gas flow, thereby
challenging the combination of Baumann and Betting (App. Br. 15—16), is
not persuasive of Examiner error.
Appellants also contend that one skilled in the art “would not look to a
gas-only valve to modify the multi-phase valve of Betting” and that “there is
no reasonable nexus between Betting and Baumann” to justify their
combination. Reply Br. 6. Betting is directed to a cage type flow valve for
“processing natural gas” in an industrial setting and Baumann is directed to
an industrial gas valve involving controlling the open area of a perforated
cylinder (i.e., cage) through which fluid flows. Betting 1:5—11, Fig. 1;
Baumann 1:27—30; Fig. 1; see also Ans. 6. The Examiner, thus, correctly
finds that “Baumann has a reasonable nexus to Betting in view of the similar
structure and intended function of modulating fluid flow by moving a piston
to vary a flow area.” Ans. 7. Appellants do not explain how the Examiner’s
findings are in error.
In the same vein as above, Appellants also argue that a system that
handles a gas flow “would not include a significant amount of entrained
solids” and as such, “would not be relied upon . . . when faced with the issue
3 Appellants’ Specification states, “the present invention is particularly
suitable for the processing of fluid streams, whether liquids, gases, or a
combination thereof, with entrained solids.” Spec. 1 60.
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Appeal 2016-001526
Application 12/679,857
of erosion in a liquid choke assembly.” App. Br. 15—16. However, claim 1
is silent as to any flow containing “a significant amount of entrained solids”
and as such, Appellants are arguing features not claimed. Furthermore,
regarding the purpose of Appellants’ device (i.e., “when faced with the issue
of erosion”), we have been instructed, “[i]n determining whether the subject
matter of a patent claim is obvious, neither the particular motivation nor the
avowed purpose of the patentee controls.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 419 (2007). Accordingly, we are not persuaded of Examiner
error on this point.
Appellants further contend that combining Betting and Baumann as
suggested “would require a substantial reconstruction and redesign of the
elements shown in Betting” and that such a reconstruction/redesign would
result in “a change in the basic principle under which Betting is designed to
operate.” App. Br. 16; see also Reply Br. 5—7. According to Appellants,
such reconstruction/redesign requires (i) “removal of Betting’s piston 2”; (ii)
“fix[ing] perforated sleeve 3 in place, because it is presently slideable”; (iii)
“inclusion of a plug” in the combination; and, (iv) “redesign of perforated
sleeve 3 to include apertures” arranged “such that lands are formed between
the apertures.” App. Br. 16; see also Reply Br. 6—7.
Regarding (i) and (ii) (and possibly (iii)) above, the Examiner
responds that “Betting discloses Prior Art of a Mokveld B.V. ‘choke type
throttling valve’” and “the Examiner has cited a web page showing [such a
valve] in which the cage is fixed with respect to the body and the piston
moves within the cage.” Ans. 7. The Examiner also states, “Weevers (also
a Mokveld valve) is another example of a fixed cage and a movable piston
within the cage.” Ans. 8. More specific to (iii) above, claim 1 recites “a
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Appeal 2016-001526
Application 12/679,857
plug moveable with respect to the cage” and Appellants do not explain how
Weevers fails to disclose this teaching. See Weevers Abstract (“[v]olume
control is achieved by a slidable piston cooperating with the cage”); Final
Act. 5 (“modulation is controlled by a piston 8 sliding in a cage 5”).
Regarding (iv) above, the Examiner relies on Baumann for disclosing “lands
between the rows of apertures” and Appellants do not explain how such
lands are not so disclosed. Final Act. 2 (referencing Baumann Fig. 6). In
summation, “[t]he Examiner is of the opinion that it is well within the level
of skill in the art to make the valve of Betting as proposed in the rejection of
record.” Ans. 7.
In view of the above, Appellants do not persuasively explain why
modifying Betting as stated is beyond the ability of one skilled in the art
since such arrangements are known and are operational in the art.
Furthermore, even with such changes, the modified valve of Betting still
involves linear movement to regulate flow and, thus, it is not clear how the
suggested changes alter “the basic principle of operation of Betting” which
is to “impose a swirling motion (14) to the cooled fluid stream discharged by
the valve.” App. Br. 16; Betting Abstract.
DECISION
The Examiner’s prior art rejections of claims 1—4, 6, 7, 9, 12, 14—16,
18—21, 45, and 46 are 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)(l)(iv).
AFFIRMED
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