Ex Parte Le Tallec et al

Patent Trial and Appeal Board

Oct 30, 2018

13994318 (P.T.A.B. Oct. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/994,318 12/13/2013 Xavier Le Tallec
24112 7590 10/30/2018
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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.
4195-135 9496
EXAMINER
NORRIS, CLAIRE A
ART UNIT PAPER NUMBER
1778
MAIL DATE DELIVERY MODE
10/30/2018 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
Ex parte XAVIER LE TALLEC and MORTEN LINDEGAARD
Appeal2018-001718
Application 13/994,318 1
Technology Center 1700
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 17-21, 23-25, 33, and 36-40.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is the Applicant, Veolia Water Solutions & Technologies
Support, which, according to the Appeal Brief, is the real party in interest
(Appeal Br. 2).
Appeal2018-001718
Application 13/994,318
Independent claim 17 below is illustrative of the subject matter on
appeal ( emphases added):
1. A biological reactor for treating wastewater comprising
a space having a volume for expansion and removal of
sludge;
a gas injection system located in a lower area of the
reactor and close to the bottom of the space for expansion and
removal of sludge;
a liquid injection system located at, or above the bottom
of the space for expansion and removal of sludge;
and a biological filter,
wherein the biological filter comprises a packed bed of
particles retained in a portion of the reactor by a perforated
retention ceiling against upward movement, and a volume of
movable particles located within the space for expansion and
removal of sludge and above the bottom of the space for
expansion and removal of sludge,
wherein the particles of the packed bed and of the
volume of movable particles are carriers for microbial film,
wherein the movable particles have a density between
900 and 1200 kg/m3,
wherein the density of the particles of the packed bed is
below 900 kg/m3,
and wherein the movable particles are hollow carriers;
and
wherein the particles of the packed bed are expanded
particles having a density of 15-100 kg/m3 and wherein the
movable particles have a protected surface area of between 300
and 1600 m2/m3 of particle element volume.
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Application 13/994,318
The Examiner maintains the following rejections: 2
(a) claims 17-21, 23, 25, 33, and 36-40 under 35 U.S.C. § I03(a)
as being unpatentable over Rogalla (EP O 347 296 Al, published Dec. 20,
1989) ("Rogalla") 3 in view ofLofquist4 (EP O 750 591 Bl, published July 7,
1999) ("Lofquist"); and
(b) claim 24 under 35 U.S.C. § 103(a) as being unpatentable over
Rogalla and Lofquist and further in view of Fan (US 4,322,296, issued Mar.
30, 1982) ("Fan").
ANALYSIS
§ 103 Rejection over Ro gall a and Lofquist
Claims 17-21, 23, 25, 33, and 36-40 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Rogalla and Lofquist.
Appellant's principle argument on appeal is that the Examiner did not
set forth a prima facie case of obviousness by determining whether the
substitution of Lofquist's movable particles for those of Rogalla would
satisfy the relationship disclosed by Rogalla (Appeal Br. 6-11; Reply Br. 1-
2). Specifically, Appellant asserts Rogalla discloses a relationship between
average diameter and density or volume mass of lower fluid bed particles,
average diameter and density or volume mass of upper packed bed particles,
2 We refer to the Specification, filed June 14, 2013 ("Spec."); the Appeal
Brief, filed June 12, 2017 ("Appeal Br."); the Examiner's Answer, mailed
Oct. 4, 2017 ("Ans."), and the Reply Brief filed Dec. 4, 2017 ("Reply Br.").
3 Appellant states US 5,019,268 corresponds to Rogalla (Appeal Br. 7, fn 1).
Further references to Rogalla will cite US 5,019,268.
4 Although Gunnarsson is the first named inventor for EP O 7 50 591 B 1, the
Examiner (Ans. 3) and Appellant (Appeal Br. 6) both refer to the fourth
named inventor. We adopt this practice in this Decision to avoid confusion.
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Application 13/994,318
and the volume mass of a liquid, and when the relationship is satisfied on a
general basis, Rogalla' s lower bed is fluidized without appreciable
perturbation of an upper bed and the two beds are automatically reclassified
during a countercurrent washing phase (Appeal Br. 7-8). Appellant
contends that one cannot arbitrarily or indiscriminately substitute particles of
different densities or diameters and adhere to Rogalla' s relationship because
changing one variable in the relationship (i.e., density of the lower bed
particles) without adjusting the density or diameter of the other particles fails
to satisfy the relationship or Rogalla's goal (id. at 9). According to
Appellant, the Examiner has not analyzed the effect of changing the density
of Rogalla' s lower bed particles, which is not an insignificant change, and
has not determined whether Rogalla's relationship would have been satisfied
(id. at 9-11). Appellant further asserts the proposed modification would not
have complied with Rogalla' s relationship (id. at 10).
Appellant's arguments are unpersuasive. As the Examiner correctly
finds (Ans. 3--4), Rogalla discloses a biological reactor 1 that includes a
lower space for the thickening and removal of sludge, a fluid injection
system 3, a fluidized bed 4 (i.e., lower bed), a fixed bed 5 (i.e., upper bed), a
perforated plate 7, and a pipe 11 to introduce liquid to be treated (Rogalla
1:6-14, 3:56-67, Fig. 1). Rogalla discloses the particles of the lower bed
have a higher density than the particles of the packed bed (Ans. 4; Rogalla
3: 1-8) but does not disclose the claimed density for the particles of the lower
bed (i.e., the movable particles), that the lower bed particles are hollow, or
that the lower bed particles have the claimed protected surface area (Ans. 4).
The Examiner correctly finds Lofquist discloses a biological reactor using
carrier elements having free passages for flow through the elements, a
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Application 13/994,318
protected surface area overlapping the claimed range, and a density
overlapping the claimed range for the movable particles (id.; Lofquist ,r,r 1-
2, 6-7, 10-11). The Examiner concludes it would have been obvious to
replace Rogalla's movable particles with Lofquist's carrier elements because
the latter improve microbial film and oxygen supply, among other reasons
(Ans. 5).
Rogalla discloses that the relationship cited by Appellant is part of an
"advantageous embodiment" and that Rogalla's goal "is to satisfy the
following equation [the relationship] on a general basis" (Rogalla 2:25-27).
Thus, the relationship cited by Appellant is part of a preferred embodiment
and not critical to Rogalla's process. Furthermore, even assuming that
Rogalla's relationship needed to be met, Appellant has not cited evidence or
provided persuasive technical reasoning that substituting Lofquist' s particles
into Rogalla's lower bed would not have satisfied Rogalla's relationship or
would have otherwise rendered Rogalla's process inoperable or
unsatisfactory for its intended purpose. Appellant merely argues the
proposed substitution would not have satisfied Rogalla's relationship or
goal. This, however, is mere attorney argument, which does not serve as
evidence. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
("Attorney's argument in a brief cannot take the place of evidence."). As a
result, there is no basis in the record that the substitution of Lofquist' s
particles for those ofRogalla's lower bed would not satisfy Rogalla's
relationship.
Moreover, the determination of obviousness must take into account
not only the teachings within the references, but the knowledge of the
ordinary artisan (In re Samour, 571 F.2d 559, 562 (CCPA 1978); see also In
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Application 13/994,318
re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (In an obviousness
assessment, skill is presumed on the part of the artisan, rather than the lack
thereof.)). As stated by the Examiner at page 13 of the Examiner's Answer,
one of ordinary skill in the art would have found it obvious to use any
combination that satisfies Rogalla's relationship. The Appellant states at
page 2 of their Reply Brief that a carrier can assume different densities and
different diameters to satisfy Rogalla' s relationship. In other words, one of
ordinary skill in the art would have understood that the variables in
Rogalla's relationship are interrelated and changing one variable (e.g., lower
bed particle density) would have meant changing another variable (e.g.,
lower bed particle diameter) if one wished to satisfy Rogalla's relationship.
It seems unreasonable to expect one of ordinary skill in the art to have
ignored this consideration and instead change only one variable (i.e., lower
bed particle density) in a robotic, uncreative manner if they wished to
comply with Rogalla's relationship. "A person of ordinary skill is also a
person of ordinary creativity, not an automaton" (KSR Int'!. Co. v. Teleflex
Inc., 550 U.S. 398,421 (2007)).
In addition, Appellant argues the Examiner's rationales to modify
Rogalla in view of Lofquist are inapplicable to the method of claim 33
because the latter does not recite that the movable particles are hollow
carriers (Appeal Br. 11-12). Appellant also argues there would have been
no reason to modify Rogalla in view of Lofquist to provide the biological
reactor of claim 17 because Rogalla discloses the use of expanded plastic
materials, which would have already provided hollow carriers (id. at 12-13;
Reply Br. 3).
These arguments are also unpersuasive. Lofquist discloses a hollow
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carrier element having walls forming a protected surface (i.e., protected
against collision with other carrier elements) on which microbial film can
grow and that the carrier element provides advantages over prior carriers by
supplying more oxygen (Lofquist ,r,r 6-7, 10, Fig. 1). To the extent
Appellant has identified an embodiment disclosed by Rogalla that falls
within the scope of the "hollow carriers" recited in claim 17, there is no
evidence in the record that the expanded plastic material disclosed by
Rogalla has the same structure or benefits disclosed for Lofquist's carrier
element. As a result, Appellant's arguments do not identify a reversible
error for the rejection of claim 1 7.
With regard to claim 33, the Examiner indicates that the motivation
for replacing Rogalla's lower bed particles with Lofquist's carrier elements
need not be the same as Appellant's (Ans. 14). We agree because "the
motivation in the prior art to combine the references does not have to be
identical to that of the applicant to establish obviousness" (In re Kemps, 97
F.3d 1427, 1430 (Fed. Cir. 1996)); see also KSR, 550 U.S. at 420 ("any need
or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed"). Although claim 33 does not recite that the movable
particles are hollow carriers, claim 33 uses "comprising" language and, thus,
does not foreclose additional elements, such as the movable carriers being
hollow.
As a result, the Examiner has set forth a rationale with rational
underpinnings why it would have been obvious to modify Rogalla in view of
Lofquist. Appellant's arguments do not identify a reversible error in the
Examiner's first reason to combine based upon Lofquist's teachings.
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Therefore, there is no need for us to reach the Examiner's second rationale
or Appellant's arguments regarding it.
In view of the above, a preponderance of the evidence in the record
supports the Examiner's§ 103(a) rejection of independent claims 17 and 33.
Appellant does not argue claims 18-21, 23, 25, and 36-40 separately from
claims 17 and 33 (Appeal Br. 7-13).
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103(a) rejection of claims 17-21, 23,
25, 33, and 36-40.
§ 103 Rejections of Claim 24
Claim 24 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rogalla and Lofquist and further in view of Fan.
Appellant does not argue claim 24 separately from claim 17 (id.). As
discussed above, Appellant's arguments do not identify a reversible error in
the rejection of claim 1. Therefore, we sustain the § 103(a) rejection of
claim 24.
DECISION
The Examiner's rejection of claims 17-21, 23-25, 33, and 36-40 is
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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