Ex Parte Tham et al

Patent Trial and Appeal Board

Jun 12, 2018

13516423 (P.T.A.B. Jun. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/516,423 06/15/2012 Anh Tuan Tham
23364 7590 06/14/2018
BACON & THOMAS, PLLC
625 SLATERS LANE
FOURTH FLOOR
ALEXANDRIA, VA 22314-1176
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.
THAM3003/JS-FD 4713
EXAMINER
ROBERTS, HERBERT K
ART UNIT PAPER NUMBER
2855
NOTIFICATION DATE DELIVERY MODE
06/14/2018 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):
MAIL@BACONTHOMAS.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ANH TUAN THAM, RAFAEL TEIPEN, and
MICHAEL PHILIPPS
Appeal2017-010793
Application 13/516,423
Technology Center 2800
Before MICHAEL P. COLAIANNI, RAEL YNN P. GUEST, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from a rejection2 of
claims 22, 29, 30, 32-38, 40-48, and 50-57. We have jurisdiction under 35
U.S.C. § 6(b).
We reverse.
1 Endress + Hauser GMBH +Co.KG is identified as the real party in
interest (Appeal Brief, filed September 9, 2016 ("App. Br."), 2).
2 Final Rejection mailed February 22, 2016 ("Final Act."). In this decision,
we also refer to the Examiner's Answer mailed December 30, 2016
("Ans."). No Reply Brief was filed.
Appeal2017-010793
Application 13/516,423
CLAIMED SUBJECT MATTER
The claims are directed to an overload safe pressure sensor, especially
pressure difference sensor. Claim 22, reproduced below, is illustrative of the
claimed subject matter:
22. A pressure sensor, comprising:
a sensor body with a sensor chamber in an interior of the
sensor body;
at least a first separating membrane, which, forms a first
separating membrane chamber, is connected with said sensor
body;and
a measuring membrane, which divides said sensor
chamber into two chamber portions;
a pressure transfer liquid, with which said first separating
membrane chamber, said first chamber portion and a channel
therebetween are filled, in order to transfer a pressure to said
measuring membrane; wherein:
the pressure sensor is specified for a temperature range
between a minimum temperature and a maximum temperature,
as well as for a pressure range;
at the minimum temperature, a pressure transfer liquid
volume in said first chamber portion, said first channel and said
first separating membrane chamber is sufficient over the total
pressure range to transfer the pressure to said measuring
membrane, without said first separating membrane coming to
rest; and
when, in the case of overload at the maximum
temperature, an entire pressure transfer liquid volume moves
out of said first separating membrane chamber into said first
chamber portion and is accommodated by said measuring
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Appeal2017-010793
Application 13/516,423
membrane, said measuring membrane experiences no plastic
deformation;
wherein
with a safety factor S > 1, wherein V max is a maximum
volume of the pressure transfer liquid in the separating
membrane chamber in the resting position of the pressure
sensor, wherein R and h are radius and thickness of the
measuring membrane, respectively, wherein vis Poisson's ratio
of material of the measuring membrane, wherein smax is a
maximum allowable stress of the material of the measuring
membrane, and wherein E is a modulus of elasticity of the
material of the measuring membrane, wherein:
wherein V min is a minimum volume of the pressure
transfer liquid in the separating membrane chamber in a
resting position of the pressure sensor, and wherein Pmax is an
upper limit of the specified measuring range;
wherein V max= V (T max), wherein T max is the specified maximum
temperature;
wherein Vmin = V(Tmin), wherein Tmin is the specified minimum
temperature;
wherein at the upper limit of the specified measuring
range Pmax, a maximum stress in the measuring membrane
amounts to not less than 20% of a maximum allowable stress 6
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Appeal2017-010793
Application 13/516,423
max; wherein a difference between the specified maximum
temperature and the specified minimum temperature amounts
to not less than 125 K;
wherein said measuring membrane comprises a circular
disk, which is essentially planar in the resting position; and
wherein said measuring membrane and said sensor
body comprise steel.
( emphasis added to show argued limitation)
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bell
Ohms
Sippola
US 4,501,051 Feb. 26, 1985
US 2004/0237658 Al Dec. 2, 2004
US 7,451,653 Bl Nov. 18, 2008
REJECTION
Claims 22, 29, 30, 32, 34--38, 40-48, and 51-57 are rejected under
pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Bell in view of
Sippola and further in view of Ohms. 3 Final Act. 4. 4
3 Claims 33 and 50 are rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Bell in view of Sippola and further in view of Ohms and
Bernot. Final Act. 23. Appellants do not appeal the rejection of these
claims. See Br. 8.
4 Appellants state that claim 49 has been canceled. App. Br. 5 (referring to a
request for reconsideration of May 23, 2016 accompanied by an amendment
to cancel claim 49); see also Claims Appendix of the Appeal Brief (showing
that claim 49 as "Cancelled"). The amendment canceling claim 49 was
initialed by the Examiner on June 27, 2016 ("OKAY TO ENTER:
/H.K.R/"). We accordingly conclude that claim 49 has been canceled.
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Appeal2017-010793
Application 13/516,423
OPINION
Appellants argue that the Examiner reversibly erred in finding that
Bell teaches a pressure sensor having the function of "in the case of overload
at the maximum temperature, the entire pressure transfer liquid volume
moves out of said first separating membrane chamber into said first chamber
portion and is accommodated by said measuring membrane" as recited in
claim 22. App. Br. 12. Appellants argue that the Examiner reversibly erred
by excluding annular slots 72a-72e from the prior art structure to meet the
claim limitation. Id. at 13.
"Inherency may not be established by probabilities or possibilities.
The mere fact that a certain thing may result from a given set of
circumstances is not sufficient to establish inherency." Scaltech Inc. v.
Retec/Tetra L.L.C., 178 F.3d 1378, 1384 (Fed. Cir. 1999) (citations omitted).
In this case, the Examiner interprets the chamber of Bell as one that "doesn't
include the annular slots 72a-72e." Ans. 24. The Examiner, however, does
not sufficiently explain why a skilled artisan would interpret the prior art this
way- other than to arrive at the claim limitation at issue. Rather, the
annular slots 72a to 72e are contiguous to the volume that constitutes the
chamber. In other words, we find that the annular slots 72a to 72e are part
of a single chamber. The Examiner has not explained how once diaphragm
40 flexes at maximum temperature to conform to the depression or concavity
70 of the think glass layer 68, no fluid would be contained in the annular
slots 72a to 72e within the glass layer 68. The Examiner's only explanation
is based upon the erroneous interpretation that reads the annular slots 72a
and 72e as not part of the chamber. The record before us does not show
support either in Bell or other evidence that a skilled artisan would
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Appeal2017-010793
Application 13/516,423
understand the prior art chamber of Bell to necessarily have the function of
"the entire pressure transfer liquid volume moves ... into said first chamber
portion" - that is, no residual pressure transfer liquid volume left in "said
first separating membrane chamber" "in the case of overload at the
maximum temperature" as recited in claim 22. See Scaltech Inc., 178 F.3d
at 1384 ("The mere fact that a certain thing may result from a given set of
circumstances is not sufficient to establish inherency.").
Moreover, we note that Appellants point to various portions of Bell
asserting that these portions support Appellants' view that because the
annular slots are included in the chamber, the chamber cannot function to
effect "in the case of overload at the maximum temperature, the entire
pressure transfer liquid volume moves out of said first separating membrane
chamber into said first chamber portion and is accommodated by said
measuring membrane" as recited in claim 22. App. Br. 12-14 (e.g., citing
Bell 5:27-33, 5:33-35, 6:25-27, 9: 11-15). The Examiner did not address
these cited portions in the Answer. See, e.g., Ans. 24. We, therefore, cannot
sustain the rejection based on the current record.
DECISION
The Examiner's rejection of claims 22, 29, 30, 32, 34--38, 40-48, and
51-57 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Bell in
view of Sippola and further in view of Ohms is reversed.
REVERSED
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