Honeywell International Inc.Download PDFPatent Trials and Appeals BoardDec 18, 20202020000528 (P.T.A.B. Dec. 18, 2020) Copy Citation 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. 15/458,737 03/14/2017 Andrew J. Milley H0046758-1326.1389101 1052 90545 7590 12/18/2020 HONEYWELL/STW Intellectual Property Services Group 300 S. Tryon Street Suite 600 Charlotte, NC 28202 EXAMINER PATEL, HARSHAD R ART UNIT PAPER NUMBER 2855 NOTIFICATION DATE DELIVERY MODE 12/18/2020 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): Honeywell.USPTO@STWiplaw.com patentservices-us@honeywell.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREW J. MILLEY and LAMAR FLOYD RICKS Appeal 2020-000528 Application 15/458,737 Technology Center 2800 Before TERRY J. OWENS, JAMES C. HOUSEL, and MERRELL C. CASHION, JR., Administrative Patent Judges. HOUSEL, 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 16–19, 22–27, and 29–35. 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. Appellant identifies the real party in interest as Honeywell International Inc. Appeal Brief (“Appeal Br.”) filed July 23, 2019, 3. Appeal 2020-000528 Application 15/458,737 2 CLAIMED SUBJECT MATTER The invention relates to flow sensors configured for sensing the flow of a fluid in a flow channel. Specification (“Spec.”) filed March 14, 2017, 1:4–5.2 Claim 16, reproduced below from the Claims Appendix of the Appeal Brief, is illustrative of the claimed subject matter: 16. A flow sensor for sensing a fluid flow rate through a flow channel, the flow sensor comprising: an upstream resistive element having a first resistance that changes with temperature; a downstream resistive element having a second resistance that changes with temperature, wherein the downstream resistive element is situated downstream of the upstream resistive element in the flow channel; the upstream resistive element and the downstream resistive element are operatively connected in a bridge circuit, wherein the bridge circuit is configured to supply a current to each of the upstream resistive element and the downstream resistive element, wherein the current causes resistive heating in both the upstream resistive element and the downstream resistive element such that both the upstream resistive element and the downstream resistive element are heated above the ambient temperature of the fluid flowing through the flow channel, wherein fluid flow through the flow channel causing the temperature of the upstream resistive element to be lower than the temperature of the downstream resistive element; a resistor connected in series with the bridge circuit; 2 This Decision also cites to the Final Office Action (“Final Act.”) dated January 25, 2019 and the Examiner’s Answer (“Ans.”) dated August 30, 2019. Appeal 2020-000528 Application 15/458,737 3 a slit including a first side and a second side opposite to the first side, wherein the slit extends transversely through the flow sensor, wherein the upstream resistive element is positioned adjacent the first side of the slit with no intervening heater element positioned between the upstream resistive element and the first side of the slit, and the downstream resistive element is positioned adjacent the second side of the slit with no intervening heater element positioned between the downstream resistive element and the second side of the slit; and wherein a difference in temperature between the upstream resistive element and the downstream resistive element causes an imbalance in the bridge circuit that is related to the fluid flow rate of the fluid flowing though the flow channel. Independent claims 22 and 27 also recite flow sensors. REFERENCES The Examiner relies on the following prior art: Name Reference Date Higashi et al. (“Honeywell”)3 US 4,501,144 Feb. 26, 1985 Higashi US 4,696,188 Sept. 29, 1987 Appellant Admitted Prior Art (“AAPA”)4 Spec. 3:15–5:12; Figs. 2 and 3 3 The Examiner refers to this patent using the name of its assignee, Honeywell Inc., apparently to distinguish this patent from the other patent relied on, Higashi. Appellant does the same. We, likewise, adopt this convention in order to avoid confusion. 4 Appellant does not dispute the prior art status, or the scope, of the disclosure on which the Examiner relies as admitted prior art. Appeal 2020-000528 Application 15/458,737 4 REJECTIONS The Examiner maintains, and Appellant requests our review of, the following rejections: 1. Claims 16–19, 27, and 29–35 under 35 U.S.C. § 103 as unpatentable over AAPA in view of Higashi; and 2. Claims 22–26 under 35 U.S.C. § 103 as unpatentable over AAPA in view of Higashi, and further in view of Honeywell. OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After considering the argued claims and each of Appellant’s arguments, we are not persuaded of reversible error in the Examiner’s obviousness rejections. Therefore, we affirm the stated rejections for substantially the fact findings, reasoning, and conclusion of obviousness set forth in the Final Office Action and the Examiner’s Answer, which we adopt as our own. We offer the following for emphasis only. For purposes of this appeal, to the extent that the rejected claims are separately argued, we will address them separately consistent with 37 C.F.R. § 41.37(c)(1)(iv) (2018). Appeal 2020-000528 Application 15/458,737 5 Rejection 1: Obviousness over AAPA in view of Higashi The Examiner rejects claims 16–19, 27, and 29–35 under 35 U.S.C. § 103 as unpatentable over AAPA in view of Higashi. A complete statement of this rejection is set forth in the Final Office Action, pages 2–6. The Examiner finds that AAPA teaches a flow sensor substantially as recited in claim 16, except for the omission of an intervening heater element positioned between upstream resistive elements RU1, RU2 and slit 310, as well as between downstream resistive elements RD1, RD2 and slit 310, wherein the resistive elements function both to heat and sense (current supplied to the resistive elements causes resistive heating). Final Act. 2–3. The Examiner finds that Higashi teaches upstream and downstream resistive elements 16 that function both to heat and sense (current supplied to these elements causes them to heat) such that no intervening heater element is positioned between these resistive elements and slit 152. Id. at 3. The Examiner concludes that it would have been obvious to adopt Higashi’s self- heated resistive element teaching for the AAPA structure in order to reduce the flow sensor’s size and cost of manufacturing. Id. at 4. Appellant argues that neither the AAPA nor Higashi teaches or suggests the flow sensor of claim 16. Appeal Br. 9–10. Appellant contends that the AAPA discloses the use of a separate heater control circuit to control current to the heater, and does not disclose a bridge circuit that supplies current to the upstream and downstream resistive elements to cause them to heat above ambient temperature. Id. at 10–11. Appellant further contends that Higashi does not disclose a bridge circuit that supplies current to the upstream and downstream resistive elements to cause them to heat above ambient temperature. Id. at 11. Appellant asserts that Higashi instead Appeal 2020-000528 Application 15/458,737 6 discloses a completely different type of circuit including amplifiers for supplying current to the resistive elements, wherein the difference between the output of these amplifiers is amplified to produce an output that bears a relationship with the gas flow rate. Id. Finally, Appellant urges that the AAPA and Higashi teach away from a bridge circuit that supplies current to the resistive elements for both heating and detecting a measure of fluid flow rate via an imbalance in the bridge circuit. Id. at 11–12. Appellant’s arguments are not persuasive primarily because Appellant fails to address the combined teachings of the AAPA and Higashi, but rather addresses each individual teaching separately. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. . . . [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). There is no dispute that the AAPA teaches a bridge circuit including all of the elements recited in claim 16, except that the AAPA includes separate circuitry for heating a heating resistor disposed between the resistive elements and the slit. Nor is there any dispute that Higashi teaches a flow sensor having upstream and downstream resistive elements that function both for heating and flow rate detection, thereby omitting a separate circuitry for heating a heating resistor disposed between the resistive elements and a slit. The Examiner’s proposed combination modifies the AAPA by omitting the separate heating circuitry and heating resistor and utilizes the AAPA’s bridge circuit to supply current to the upstream and downstream resistive elements to both heat and detect fluid flow in light of Higashi’s teaching. In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test Appeal 2020-000528 Application 15/458,737 7 for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Appellant has neither argued nor shown that such a modification would have been outside the ordinary skill in the art or would have produced an unexpected result. In addition, although Appellant alleges that the AAPA and Higashi teach away from a bridge circuit that supplies current to the resistive elements for both heating and detecting a measure of fluid flow rate via an imbalance in the bridge circuit, the record fails to support Appellant’s allegation. In this regard, Appellant fails to direct our attention to any disclosure in either the AAPA or Higashi that criticizes, discredits, otherwise discourages investigation into the claimed invention, or show that their combined teachings would produce a seemingly inoperative device. “A reference does not teach away, however, if it merely expresses a general preference for an alternative invention but does not ‘criticize, discredit, or otherwise discourage’ investigation into the invention claimed.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (citing In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). Appellant does not separately argue claims 17–19, 27, and 29–35. In accordance with 37 C.F.R. § 41.37(c)(1)(iv) (2018), these claims stand or fall with claim 16. Accordingly, we sustain the Examiner’s rejection of claims 16–19, 27, and 29–35 under 35 U.S.C. § 103 as unpatentable over AAPA in view of Higashi. Appeal 2020-000528 Application 15/458,737 8 Rejection 2: Obviousness over AAPA in view of Higashi and Honeywell The Examiner rejects claims 22–26 under 35 U.S.C. § 103 as unpatentable over AAPA in view of Higashi, and further in view of Honeywell. A complete statement of this rejection is set forth in the Final Office Action, pages 6–9. The Examiner finds that AAPA, as modified in view of Higashi as discussed above, teaches a flow sensor substantially as recited in claim 22, except for a teaching that the resistance of the upstream resistive elements is within 20 percent or less of the resistance of the downstream resistive elements. Final Act. 6–7. However, the Examiner finds that Honeywell teaches, regarding flow sensors, the resistive sensor elements that are matched such that their resistances can be manufactured to within 0.1 percent. Id. at 8. Therefore, the Examiner concludes that it would have been obvious that the resistances of the resistive sensor elements of the AAPA flow sensor be within 0.1 percent in order to achieve matching. Id. Appellant argues that Honeywell fails to teach or otherwise support the Examiner’s finding that the resistances of the flow sensor resistive elements can be matched to within 0.1 percent. Appeal Br. 15–16. However, as aptly noted by the Examiner (Ans. 5), Appellant directs attention to the wrong portion of Honeywell. The Examiner relies on Honeywell, column 18, lines 1–12; Appellant instead cites to column 8, lines 1–12. Column 18 of Honeywell clearly supports the Examiner’s finding. Honeywell 18:8–11 (“in processing, it is desirable to obtain a match between the upstream and downstream sensor elements to a precision of about 0.1 percent”). Appellant does not separately argue claims 23–26. In accordance with 37 C.F.R. § 41.37(c)(1)(iv) (2018), these claims stand or fall with claim Appeal 2020-000528 Application 15/458,737 9 22. Accordingly, we sustain the Examiner’s rejection of claims 22–26 under 35 U.S.C. § 103 as unpatentable over AAPA in view of Higashi, and further in view of Honeywell. CONCLUSION Upon consideration of the record and for the reasons set forth above and in the Final Office Action and the Examiner’s Answer, the Examiner’s decision to reject claims 16–19, 22–27, and 29–35 under 35 U.S.C. § 103 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 16–19, 27, 29–35 103 AAPA, Higashi 16–19, 27, 29–35 22–26 103 AAPA, Higashi, Honeywell 22–26 Overall Outcome 16–19, 22– 27, 29–35 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 Copy with citationCopy as parenthetical citation