Ex Parte Kelly et al

Patent Trial and Appeal Board

Mar 9, 2018

12822733 (P.T.A.B. Mar. 9, 2018)

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.
12/822,733 06/24/2010 Scott KELLY A10298 6387
23373 7590 03/13/2018
SUGHRUE MION, PLLC
2100 PENNSYLVANIA AVENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
EXAMINER
GURTOWSKI, RICHARD C
ART UNIT PAPER NUMBER
1778
NOTIFICATION DATE DELIVERY MODE
03/13/2018 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT KELLY, KENNETH OYLER, and
JAMES BURKE
Appeal 2017-003341
Application 12/822,733
Technology Center 1700
Before CATHERINE Q. TIMM, MARKNAGUMO, and
SHELDON M. McGEE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF CASE
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision to reject claims 1—21. We have jurisdiction under
35 U.S.C. § 6(b).
1 In explaining our Decision, we cite to the Specification dated June 24,
2010 (Spec.), the Final Office Action dated October 30, 2015 (Final), the
Appeal Brief dated May 6, 2016 (Appeal Br.), the Examiner’s Answer dated
November 1, 2016 (Ans.), and the Reply Brief dated December 23, 2016
(Reply Br.).
2 Appellants identify the real party in interest as JWC ENVIRONMENTAL,
LLC. Appeal Br. 2.
Appeal 2017-003341
Application 12/822,733
We REVERSE.
The claims are directed to a screening system with a weir or flume
having converging and divergent portions (see, e.g., claim 1), a method that
includes providing a weir or flume wherein the flume comprises converging
and divergent portions (see, e,g., claim 14), and a screening system with a
velocity probe and blockage determination unit (see, e.g., claim 21).
Appeal Br. 13—18 (claims appendix).
Claim 1 is illustrative of the system and method reciting a flume
comprising a converging portion and a divergent portion and is reproduced
below:
1. A screening system comprising:
a channel configured to contain a wastewater flow that
includes debris;
a screen disposed in the channel and configured to
remove debris from the wastewater flow in the channel;
an upstream level detector which detects a flow level
upstream of the screen;
a downstream level detector which detects the flow level
downstream of the screen; and
a weir or flume disposed in the channel downstream of
the downstream level detector,
wherein the flume comprises a converging portion where
a width of the channel decreases and a divergent portion where
the width of the channel increases, the divergent portion being
disposed downstream of the convergent portion.
Appeal Br. 13 (claims appendix).
Claim 21 is illustrative of the screening system with the velocity
probe and blockage determination unit. Claim 21 is reproduced below:
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Application 12/822,733
21. A screening system comprising:
an upstream level detector which detects the flow level
upstream of a screen;
a downstream level detector which detects the flow level
downstream of the screen;
a velocity probe disposed downstream of the screen, and
a blockage determination unit which determines a percent
screen blockage of the screen based on the detected flow level
upstream of the screen, the flow level downstream of the screen
and a velocity determined using the velocity probe.
Appeal Br. 17—18 (claims appendix).
The Examiner rejects claims 1 and 6—14 under 35 U.S.C. § 103(a) as
obvious over Simon3 in view of Anderson,4 adds Piers to reject claims 2—5
and 15—17 and further adds Heissenberger5 to reject claims 18—20. The
Examiner rejects claim 21 as obvious over Simon in view of Heissenberger
and Piers.
OPINION
For the rejections of claims 1—20, the issue arising on appeal is: Have
Appellants identified a reversible error in the Examiner’s finding of a
suggestion within Anderson for incorporating converging and divergent
portions in the Simon’s downstream flume?
Appellants have identified such an error.
Appellants’ claims require the converging and divergent portions of
the flume be disposed in the channel downstream of the screen and
3 Simon et al, US 6,733,663 Bl, issued May 11, 2004.
4 Anderson et al, US 2003/0113167 Al, published June 19, 2003.
5 Heissenberger, US 6,165,370, issued Dec. 26, 2000.
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Application 12/822,733
downstream level detector. As acknowledged by the Examiner, Simon’s
flume in that location does not have converging and divergent portions.
Final 4. The Examiner finds that Anderson suggests including such
converging and divergent portions in the downstream location because
“Anderson discloses these sections generate head loss and back up the flow
as a method to control said flow as it goes through the system (Anderson;
Figure 2; Paragraphs [0041]-[0044]).” Id. We agree with Appellants that
the teachings of the references do not support the Examiner’s finding.
Anderson teaches placing a flume 10 with a converging transition 12
and a diverging transition 14, as shown in Anderson’s Figures 1—3, within a
sewer or conduit 40 receiving wastewater 20 from sewer lines. Anderson ||
40-44. The converging transition 12 provides a restriction to the flow that
generates head loss and backs up the flow. Anderson 143. The diverging
transition 14 provides additional head loss. Anderson 144. The flume may
also have an unrestricted section 16 along the bottom that allows low flows
to proceed unhindered through the flume that reduces the chance that solids
will settle out in, or upstream of, the flume during low flow conditions.
Anderson 146.
Anderson does not suggest placing the converging/diverging flume in
the downstream location of the claims. Anderson suggests installing the
flume 10 in a manhole, meter vault, or similar access structure in an area of
the sewer including solids. Anderson || 40, 46. This is a location upstream
of a wastewater treatment facility such as that taught by Simon.
Moreover, the Examiner has not persuasively established that the
ordinary artisan would have sought to generate head loss and back up in the
flow downstream of Simon’s screen 14 and level sensor 42. Simon col. 2,1.
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Application 12/822,733
37—col. 3,1. 29; Fig. 2. On the contrary, Simon states that the influent
stream “cannot be allowed to back up.” Simon col. 1,11. 66—67. The
Examiner has not provided a convincing reason why the ordinary artisan
would have desired to back up flow after removing the solids and, in fact,
the difference in heights in water before and after the screening serves an
important purpose in controlling the screening process. Simon col. 2,11. 17—
33.
The Examiner reasons that there is a need to control flow to prevent a
level of fluid too low for the upstream screening apparatus of Simon. Final
11—12. According to the Examiner, Simon discloses that the problem of low
flow levels through the screening apparatus is an important issue that must
be addressed. Ans. 11 (citing Simon col. 1,1. 59-col. 2,1. 10 and col. 2,11.
8—10 (“when the flow rate of the influent stream is unusually high or low”);
and col. 2,11. 27—33 (“[a] microprocessor or a PLC receives the signals
produced by the level sensors and, in turn, generates an output signal to
either slow or speed up the screen”). But the portions of Simon cited by the
Examiner do not provide evidence that low flow is an important issue to be
solved. Simon is concerned with solving problems in high load conditions,
not low flow conditions. Simon col. 1,11. 59—61 (disclosing that prior art
systems were “vulnerable under high load conditions”). The portions of
column 2 cited by the Examiner disclose that prior art systems do not
automatically control the screening rate based on the flow rate of the influent
stream and further disclose that Simon’s inventive system includes level
sensors to control the screening rate. Simon col. 2,11. 8—33. ft is the control
of the screening rate that is the focus of Simon and the problem of the screen
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Application 12/822,733
becoming clogged with solids more quickly as the upstream water level rises
or the volume of screenings increases. Simon col. 3,11. 18—22.
We are cognizant of the fact that the claims recite an alternative weir
structure and do not require the converging/divergent flume when the weir is
present. See, e.g., claims 1 and 14. However, the Examiner makes no
findings with regard to the use of such a weir in the prior art.
Because a preponderance of the evidence fails to support the
Examiner’s reason to form the downstream flume of Simon in the
converging/divergent design of Anderson, we do not sustain the rejection of
claims 1 and 6—14 under 35 U.S.C. § 103(a) as obvious over Simon in view
of Anderson. Because the Examiner’s reliance on Piers to reject claims 2—5
and 15—17 and further Heissenberger to reject claims 18—20 does not remedy
the deficiency, we do not sustain those rejections.
Claim 21 does not require the converging/divergent flume of the other
claims. Claim 21 requires a velocity probe downstream of the screen and a
blockage determination unit that determines a percent screen blockage based
on the upstream and downstream flow levels and velocity reading from the
probe.
The Examiner rejects claim 21 as obvious over Simon in view of
Heissenberger and Piers. Final 10—12. The Examiner acknowledges that
Simon fails to teach a velocity probe. Final 10. According to the Examiner,
Heissenberger teaches a velocity probe in flow rate transducer 46. Final 11.
Specifically, the Examiner equates Heissenberger’s pressure differential
measurement with a velocity measurement. Ans. 12.
Appellants contend that Heissenberger teaches neither a velocity
probe nor a blockage determination unit using the velocity from such a
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Application 12/822,733
probe to determine percent blockage. Appeal Br. 10-11. The issue is: Have
Appellants identified a reversible error in the Examiner’s finding that
Heissenberger teaches a velocity probe and a blockage determination unit
using data from a velocity probe to determine percent blockage?
Appellants have identified such an error. The Examiner has not
established that the structure of a velocity probe is the same as the structure
of a probe measuring pressure differential. A velocity probe must, by
definition, measure velocity, i.e. distance traveled over time. Spec. 12.
Heissenberger’s flow rate transducer 46 measures a pressure drop across
venturi 47 using differential pressure sensor 49. Heissenberger col. 3,11.
29-31. Instead of directly measuring velocity, Heissenberger uses controller
44 to compute the flow as a function of the square root of the pressure drop.
Heissenberger col. 3,11. 31—37. There is no convincing evidence that a
device that measures pressure drop is the same as a device that measures
distance traveled over time.
Because the Examiner has not established that Heissenberger teaches
a velocity probe and a blockage determination unit using the velocity data
from such a probe to determine percent blockage, a preponderance of the
evidence fails to support the Examiner’s rejection. We do not sustain the
Examiner’s rejection of claim 21.
CONCLUSION
We do not sustain the Examiner’s rejections.
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Application 12/822,733
DECISION
The Examiner’s decision is reversed.
REVERSED
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