11482201 (B.P.A.I. Oct. 13, 2009)

Ex Parte Prater et al

Board of Patent Appeals and InterferencesOct 13, 2009

11482201 (B.P.A.I. Oct. 13, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte TED FRANKLIN PRATER, ZEMIN JIANG, JOHN SCHEUREN, JOHN W. CLEVENGER, JR. and BARRY M. VERDEGAN ____________ Appeal 2009-005541 Application 11/482,201 Technology Center 1700 ____________ Decided: October 13, 2009 ___________ Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and CHARLES F. WARREN, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 4-14. Claims 1-3 have been allowed by the Examiner. Claim 4 is illustrative: 4. An apparatus comprising: an axially extending annular filter element having an outer Appeal 2009-005541 Application 11/482,201 2 surface, an inner surface, a hollow interior, a lower axial end, and an upper axial end; the outer surface having an outer surface portion adapted for receiving flow from a flow inlet; the inner surface having an inner surface portion adapted for providing flow to the hollow interior; the lower axial end having an opening to the hollow interior and adapted for providing flow to a flow outlet; and the upper axial end having an end cap spanning at least the hollow interior, the end cap having a section of porous media, the porous media having a first side communicating with the hollow interior and having an [sic] second side, the porous media being adapted to block fluid flow below a designated pressure and adapted to pass fluid flow at or above the designated pressure; wherein the designated pressure is calibrated according to bubble point of the porous media. The Examiner relies upon the following reference in the rejection of the appealed claims: Smith 2002/0125178 A1 Sep. 12, 2002 Appellants’ claimed invention is directed to a filtration apparatus comprising the recited components. Appellants explain that “the higher the liquid level as seen through the sidewall 26, the greater the pressure drop across the filter element 16, and hence, the greater the plugging of the filter element” (page 3 of principal Brief, last sentence). According to Appellants, the present invention “provides an improvement over the prior art by Appeal 2009-005541 Application 11/482,201 3 separating a filtering function from a plugging indication function” (page 4 of principal Brief, last paragraph). Appealed claims 4-14 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Smith. Appellants do not separately argue any particular claim on appeal. Accordingly, all the appealed claims stand or fall together with claim 10, the broader of the two independent claims on appeal. We have thoroughly reviewed each of Appellants’ arguments for patentability. However, we are in complete agreement with the Examiner that Smith describes the claimed subject matter within the meaning of § 102. Accordingly, we will sustain the Examiner’s rejection for essentially those reasons expressed in the Answer. Appellants do not dispute the Examiner’s factual determination that Smith, like Appellants, describes a filtration apparatus comprising the presently claimed outer filtration surface, an interior cavity within the outer filtration surface, a first end including an aperture leading to the interior cavity, and a second end including a cover covering at least the interior cavity. Appellants maintain, however, that Smith fails to disclose a cover including a porous media. We agree with the Examiner, however, that filter media section 42 of Smith meets the requirement of a cover including a porous media inasmuch as element 42 of Smith functions in the same way as the claimed cover, i.e., element 42 of Smith allows air or other fluids to flow therethrough upon the attainment of a certain pressure. Manifestly, filter media 42 of Smith is porous. We find no merit in Appellants’ argument that “nowhere does Smith reveal that the restrictive filter media section 42 is ‘porous’ in material, composition, nature, or otherwise” (sentence bridging Appeal 2009-005541 Application 11/482,201 4 pages 6-7 of principal Brief). Clearly, the filter media of Smith must be porous in nature to function as a filter media. Also, we agree with the Examiner that filter media 42 of Smith in conjunction with endcap 24 forms a cover or endcap over the upper axial end of the filter element. Appellants also maintain that Smith “fails to disclose a porous media having a bubble point” (page 8 of principal Brief, first full paragraph). Although Appellants correctly state that there is no mention of a bubble point in the reference, Appellants have not refuted the Examiner’s rationale that “the pressure at which the gas begins to flow through the media 42 is consider [sic, considered] to be the pressure that corresponds to the bubble point of a media” (page 4 of Answer, last paragraph). As noted by the Examiner, Appellants also indicate that the “bubble point is the pressure at which air flows through the filter media (col. 4, line 58 to col. 5, line 10)” (id.). Appellants have not pointed to any error in the Examiner’s reasoning that “[s]ince both Smith’s porous media 42 and Applicant’s [sic, Applicants’] porous media (e.g. 106) function in the same way, i.e. upon reaching a certain pressure (the terminal pressure: the pressure at which the filter element needs replacement), air in an upper portion of the filter housing flows through the filter media, Smith does teach a terminal pressure that is calibrated to the bubble point of his porous media” (sentence bridging pages 4-5 of Answer). Appellants point out in their Reply Brief that the endcap of Smith is separate and distinct from the filter element to which it is connected and, therefore, it is error for the Examiner to consider the reference endcap to include the filter media to which it is connected (see page 5 of Reply Brief). However, while Appellants submit that “[i]t is not a reasonable Appeal 2009-005541 Application 11/482,201 5 interpretation to consider the filter media to also be an end cap or a cover,” Appellants concede that the endcap of the present invention is also a distinct element from the filter element (page 6 of Reply Brief, paragraphs 1 and 2). We find nothing unreasonable in the Examiner’s interpretation that the porous media of both Appellants and Smith are part of the cover or endcap. Claim 10 on appeal specifically recites that “the cover includes a porous media.” In conclusion, based on the foregoing and the reasons well stated by the Examiner, the Examiner’s decision rejecting the appealed claims 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)(1)(v). AFFIRMED psb KRIEG DEVAULT LLP ONE INDIANA SQUARE SUITE 2800 INDIANAPOLIS, IN 46204-2079