Ex Parte Howe

Patent Trial and Appeal Board

Nov 29, 2017

13633790 (P.T.A.B. Nov. 29, 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.
13/633,790 10/02/2012 Michael D. Howe MCN325USPT02 7083
23403 7590 12/01/2017
SHERRILL LAW OFFICES
4756 BANNING AVE
SUITE 212
WHITE BEAR LAKE, MN 55110-3205
EXAMINER
HULS, NATALIE F
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
12/01/2017 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):
michaels @ sherrilllaw.com
izag @ sherrilllaw.com
docketing @ sherrilllaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL D. HOWE
Appeal 2015-006230
Application 13/633,790
Technology Center 2800
Before LINDA M. GAUDETTE, MARKNAGUMO, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellant1 timely filed a Request for Rehearing under 37 C.F.R. §
41.52 (“Request”)2 of our Decision mailed July 25, 2017 in connection with
the above-captioned appeal (“Decision”). Requests for Rehearing are
limited to matters overlooked or misapprehended by the Panel in rendering
the original decision. See 37 C.F.R. § 41.52.
In the Decision, we reversed the Examiner’s rejection of claims 1, 2,
5, 8, 11, 15, 16, and 19 under 35 U.S.C. § 112,12, as being incomplete for
omitting essential steps. We also reversed the Examiner’s rejection of
claims 1—21 under 35 U.S.C. § 101. Finally, we affirmed the rejection of
1 Appellant identifies the real party in interest as Mocon Inc. (Br. 2).
2 Request for Rehearing filed September 25, 2017.
Appeal 2015-006230
Application 13/633,790
claims 1—21 under 35 U.S.C. § 103(a) as obvious over Ruka3 in view of
Layzell.4
ISSUES RAISED IN REQUEST
Appellant does not request reconsideration of our reversal of the
rejections under § 112, |2, or § 101, but raises two issues in connection with
the obviousness rejection over Ruka in view of Layzell, specifically that the
Board misapprehended the disclosure of each reference (Request 1, 2).
Disclosure of Ruka. Appellant argues that we erred in finding that “a
person of routine skill in the art would be motivated to combine the
teachings of Ruka[] and Layzell[] because both are directed to calibration
techniques” (Request 1, referencing Decision 7—8). Appellant argues, again,
that the passage relied upon by the Examiner and cited in the Decision (Ruka
2:38-48) does not describe a calibration technique and that the use of the
word “calibration” in the passage is “a misnomer” because one of skill in the
art “would quickly and unmistakably understand, upon reading the balance
of the paragraph, that the paragraph is describing a testing procedure, not a
calibration technique” (Request 2).
This argument is not persuasive that the Decision was incorrect and
should be changed. First, Appellant’s argument rests on mere attorney
argument (“a person of...skill in the art would quickly and unmistakably
understand.. .that the paragraph is describing a testing procedure, not a
calibration technique”), and thin evidence from the reference (namely a lack
of additional references to calibration) to support the contention that the
3 Ruka et al., US 5,498,487, issued March 12, 1996.
4 Layzell et al., US 5,542,284, issued August 6, 1996.
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Appeal 2015-006230
Application 13/633,790
Ruka would not have been combined with Layzell because Ruka is not
directed to calibration techniques. Perhaps more importantly, Appellant
does not address our determination that the mention of calibration in Ruka at
least would have suggested a calibration technique to a person of ordinary
skill in the art. Nor does Appellant persuasively explain why the differences
between a “testing procedure” to determine the performance of an apparatus
or system and a “calibration technique” to relate the performance of a
system or apparatus to some standard are such that the description of one
would not have suggested the other.
Disclosure of Layzell. Appellant argues that we misapprehended the
disclosure of Layzell because Layzell teaches that its calibration of
individual sensors requires the use of at least two tank gases having different
oxygen concentrations (0% and 100%) and that, therefore, Layzell cannot be
said to teach or suggest calibrating a single oxygen sensor using a single
pressure-differentiated calibration gas (Request 3, citing Layzell 11:19-30).
This argument is not persuasive of error in the Decision. As discussed in the
Decision, the Examiner finds that (a) “[i]t is understood in the art that two
gas streams having different partial pressures of oxygen are needed to
calibrate both differential oxide sensor blocks (see Layzell col. 10, lines 12-
lb) and absolute zirconium oxide sensors (see Ruka, col. 2, 38-48); (b)
Layzell suggests that a person of ordinary skill would want to use a
reference gas and a monitored gas having the same mole fraction of oxygen
but different partial pressures of oxygen for calibration, in order to use one
gas source for both streams (see, Layzell, 10:35—39); and (c) nothing in
Layzell would preclude using Layzell’s method step in Ruka’s sensor (id.).
Appellant has not disputed these findings, which are sufficient to support
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Appeal 2015-006230
Application 13/633,790
the Examiner’s determination that it would have been obvious to apply
Layzell’s disclosed technique (i.e. using two gas streams having different
partial pressures of oxygen) to Ruka’s sensor for the purpose of calibrating a
zirconium oxide sensor without needing gas mixing or additional laboratory
facilities (id.).
CONCLUSION
The subject Request has been granted to the extent that the Decision
has been reconsidered, but is denied with respect to making any changes
therein.
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).
DENIED
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