H¿kon Sagberg et al.

Patent Trials and Appeals Board

Jan 31, 2020

14362944 - (D) (P.T.A.B. Jan. 31, 2020)

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.
14/362,944 06/05/2014 Håkon Sagberg 000167-0003-301 2186
1473 7590 01/31/2020
Haley Guiliano LLP
75 Broad Street
Suite 1000
NEW YORK, NY 10004-3226
EXAMINER
LEE, SHUN K
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
01/31/2020 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):
DocketRequests@hglaw.com
HGPatentDocket@hglaw.com
haleyguiliano_PAIR@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HÅKON SAGBERG, BRITTA GRENNBERG FISMEN,
KARI ANNE HESTNES BAKKE, JON TSCHUDI,
IB-RUNE JOHANSEN, and KNUT BAEROE SANDVEN

Appeal 2018-004028
Application 14/362,944
Technology Center 2800
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
NABEEL U. KHAN, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–15. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as GasSecure AS.
Appeal Br. 2.
Appeal 2018-004028
Application 14/362,944
2
CLAIMED SUBJECT MATTER
Appellant describes the invention as relating to “sensors for
measuring the concentration of a gas by measuring the absorption of infra-
red light thereby.” Spec. ¶ 1:3–4.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A gas sensor for measuring a concentration of a gas
comprising:
a light source arranged to emit pulses of light;
a measurement volume;
a detector arranged to receive light that has passed
through the measurement volume; and
an adaptable filter disposed between the light source and
the detector and having a measurement state in which it passes
at least one wavelength band which is absorbed by the gas and
a reference state in which said wavelength band is attenuated
relative to the measurement state wherein the adaptable filter is
arranged to change between one of said measurement state and
said reference state to the other at least once during each pulse.
REFERENCES
The prior art relied upon by the Examiner is:
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Application 14/362,944
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Name Reference Date
Noro Makoto Noro et al., CO2/H2O Gas Sensor
Using a Tunable Fabry-Perot Filter With
Wide Wavelength Range, The Sixteenth
Annual International Conference on Micro
Electro Mechanical Systems, IEE MEMS-03
Kyoto (January 2003), 319–322
Jan. 2003
DiFoggio US 2007/0159625 A1 July 12, 2007
Flanders US 6,366,592 B1 Apr. 2, 2002
Dreyer US 2010/0225917 A1 Sept. 9, 2010
Norman US 2006/0093523 A1 May 4, 2006
Sagberg US 2014/0350870 A1 Nov. 27, 2014

REJECTIONS
1. Claims 1, 2, 5, 7, 9–13, and 15 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Noro, or, in the alternative, under 35 U.S.C.
§ 103(a) as unpatentable over Noro. Final Act. 3–8.
2. Claim 3 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Noro and DiFoggio. Final Act. 8–9.
3. Claim 4 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Noro and Flanders. Final Act. 9.
4. Claims 6 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Noro and Dreyer. Final Act. 9–10.
5. Claim 8 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Noro and Norman. Final Act. 11.
6. Claim 1 is provisionally rejected on the ground of non-statutory
double patenting as being unpatentable over claim 26 of US Patent
Application No. 2014/0350870. Final Act. 13.
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Application 14/362,944
4
OPINION
Provisional Double Patenting Rejection
The Examiner provisionally rejects claim 1 on the grounds of non-
statutory obviousness-type double patenting over claim 26 of co-pending
Application No. 14/362,945. Final Act. 13. We do not reach the merits of
the Examiner’s obviousness-type double patenting rejection because this
issue is not ripe for decision by the Board. Panels have the flexibility to
reach or not reach provisional double-patenting rejections. See Ex parte
Moncla, 95 USPQ2d 1884 (BPAI 2010) (precedential).
Prior-Art Rejections
Claim 1 recites “an adaptable filter . . . arranged to change between
one of [a] measurement state and [a] reference state to the other at least once
during each pulse.” The Examiner finds Noro discloses the aforementioned
element of claim 1 (or alternatively, the aforementioned element of claim 1
would have been obvious to one of ordinary skill in the art, at the time of the
claimed invention, in light of Noro) because Noro discloses, inter alia, a gas
sensor that includes a tunable micro-electromechanical system (“MEMS”)
Fabry-Perot filter (i.e., “filter” or “FPF”), where the voltage applied to the
filter is alternatively changed from a voltage associated with sensing
CO2/H2O gas to a voltage associated with a reference measurement. See
Final Act. 3–4 (citing Noro 319–320, 322); see also Ans. 2–5.
Appellant argues Noro does not disclose the feature of changing an
adaptable filter between a reference state and a measurement state at least
once during each pulse in a gas sensor. See Appeal Br. 5. As argued by
Appellant, Noro describes, in a first example, obtaining gas sensing
measurements where the filter is included in a gas sensor and is used to
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Application 14/362,944
5
select a gas species to be measured, and further describes, in a second
separate example, performing a long-term stability test on the filter, which
Appellant argues is an entirely different operation from obtaining gas
sensing measurements. See Appeal Br. 5–6. Thus, as argued by Appellant,
the long-term stability test is a separate test of the filter that is not carried out
in the gas sensor, and Noro’s mention of applying a square wave voltage
during a long-term stability test is not a disclosure of applying a square wave
voltage to the filter during a gas sensor measurement. See Appeal Br. 6–7.
We are not persuaded the Examiner erred. We agree with the
Examiner’s finding that Noro explicitly discloses that a voltage applied to
the filter is alternatively changed for sensing CO2/H2O gas (i.e., a
measurement state) and a reference measurement (i.e., a reference state).
See Ans. 3; see also Noro 322. We also agree with the Examiner’s finding
that Noro explicitly discloses an example where a square wave of zero and
CO2 voltage is applied to the filter with a frequency of 5 Hz. See Final
Act. 4 (citing Noro 322). Thus, we agree with the Examiner that Noro
explicitly discloses “an adaptable filter . . . arranged to change between one
of [a] measurement state and [a] reference state to the other at least once
during each pulse,” as recited in claim 1.
Appellant’s argument that Noro does not disclose changing an
adaptable filter between a reference state and a measurement state at least
once during each pulse in a gas sensor is not persuasive, as we agree with
the Examiner that Appellant has failed to cite any passage within Noro, or
provide any other evidence, to support Appellant’s contention that Noro’s
long-term stability test for the filter is an entirely different operation from
obtaining gas sensing measurements using Noro’s gas sensor. Mere attorney
arguments and conclusory statements that are unsupported by factual
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Application 14/362,944
6
evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984).
Appellant further argues it would not be obvious to include the feature
of changing between a measurement state and reference state at least once
every pulse to the gas sensor disclosed in Noro. See Appeal Br. 7. As
argued by Appellant, the Examiner has failed to identify any passage in
Noro that supports the contention that the use of a 5 Hz square wave voltage
during the stability test implies that a square wave voltage is also used
during gas sensing. See id. As also argued by Appellant, modifying the
features of the gas sensor of Noro would frustrate the principle of operation
of the gas sensor of Noro because the gas sensor would not function reliably
if a 5 Hz square wave voltage was applied to the filter during gas sensing
measurements. See Appeal Br. 7–8. As additionally argued by Appellant,
the Examiner has not shown the proper motivation for the alleged
modification, because there is nothing in Noro that would lead a person
skilled in the art to introduce the feature of changing between a
measurement state and a reference state at least once during each pulse,
rather than using a separate reference measurement to normalize the
absorption wavelength measurement. See Appeal Br. 9.
Even assuming arguendo that Noro does not anticipate claim 1, these
arguments are not persuasive either. More specifically, even assuming
arguendo that Noro fails to explicitly disclose “an adaptable filter . . .
arranged to change between one of [a] measurement state and [a] reference
state to the other at least once during each pulse,” as recited in claim 1, we
agree with the Examiner that it would have been obvious to a person of
ordinary skill in the art, at the time of the claimed invention, to modify the
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Application 14/362,944
7
voltage applied to Noro’s filter to change between one of a measurement
state and a reference state at least once during each pulse in light of Noro’s
disclosure of both an operation of a gas sensor including an adaptable filter
and a long-term repetition-stability test of the adaptable filter that applies a 5
Hz square wave voltage to the filter. See Final Act. 4. “Combining two
embodiments disclosed adjacent to each other in a prior art [reference] does
not require a leap of inventiveness.” Boston Scientific Scimed, Inc. v. Cordis
Corp., 554 F.3d 982, 991 (Fed. Cir. 2009).
Appellant’s argument that there is no evidence that the use of a 5 Hz
square wave voltage during the stability test implies that a square wave
voltage is also used during gas sensing is not persuasive. Noro explicitly
discloses that the voltage applied to the filter is alternatively changed
between a measurement state and a reference state during the operation of
the gas sensor. See Noro 322. Further, Appellant has failed to identify a
portion of Noro, or any other evidence, supporting its contention that the
square wave voltage applied to the filter during the stability test cannot also
be used during operation of the gas sensor. See Ans. 4.
Similarly, Appellant has not identified any portion of Noro, or
provided any evidence, that supports its contention that applying a square
wave voltage to the filter during operation of the gas sensor disclosed in
Noro would cause the filter not to function reliably. Thus, Appellant’s
argument that the Examiner’s proposed modification of Noro would change
the principle of operation of Noro’s gas sensor is not persuasive either.
Further, Appellant’s argument that the Examiner has failed to
articulate the proper motivation for the Examiner’s proposed modification is
also not persuasive. As Noro explicitly discloses applying a square wave
voltage of a reference state and a measurement state to the filter with a
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Application 14/362,944
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frequency of 5 Hz (see Noro 322), the motivation for the proposed
modification is found in the Noro reference itself.
We have considered Appellant’s other arguments in its Reply Brief,
and we also do not find them persuasive. Accordingly, we sustain the
Examiner’s rejection of independent claim 1 under 35 U.S.C. § 102(b), and
the alternative rejection of claim 1 under 35 U.S.C. § 103(a). The Examiner
rejects independent claim 9 on a similar basis as claim 1, and therefore we
also sustain the Examiner’s alternative rejections of claim 9 under 35 U.S.C.
§ 102(b) and 35 U.S.C. § 103(a). We also sustain the alternative rejections
of dependent claims 2–8 and 10–15 under 35 U.S.C. § 102(b) and 35 U.S.C.
§ 103(a), as they are not separately argued by Appellant.
CONCLUSION
We sustain the Examiner’s alternative rejections of claims 1, 2, 5, 7,
9–13, and 15 under 35 U.S.C. § 102(b) and 35 U.S.C. § 103(a).
We sustain the Examiner’s rejection of claims 3, 4, 6, 8, and 14 under
35 U.S.C. § 103(a).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5, 7,
9–13, 15
102(b)/103(a) Noro 1, 2, 5, 7,
9–13, 15

3 103(a) Noro, DiFoggio 3
4 103(a) Noro, Flanders 4
6, 14 103(a) Noro, Dreyer 6, 14
8 103(a) Noro, Norman 8
Overall
Outcome
1–15

Appeal 2018-004028
Application 14/362,944
9
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED