Le Bemadjiel Djerassem

Patent Trials and Appeals Board

Apr 28, 2020

13208765 - (D) (P.T.A.B. Apr. 28, 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.
13/208,765 08/12/2011 Le Bemadjiel Djerassem D455.312-0001 8690
164 7590 04/28/2020
KINNEY & LANGE, P.A.
312 SOUTH THIRD STREET
MINNEAPOLIS, MN 55415-1002
EXAMINER
NICHOLS, CHARLES W
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
04/28/2020 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):
dabulmer@kinney.com
uspatdocket@kinney.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LE BEMADJIEL DJERASSEM
____________

Appeal 2019-005994
Application 13/208,765
Technology Center 3700
____________

Before STEFAN STAICOVICI, WILLIAM A. CAPP, and
MICHAEL L. WOODS, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the non-final
rejection of claims 1–4, 6, 7, and 10–13. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM IN PART.
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THE INVENTION
Appellant’s invention relates to fluid pumps. Spec. ¶ 4. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A pump assembly comprising:
a plurality of systems, including a first system and a
plurality of second systems, each of the plurality of systems
containing an enclosed gas placed in contact with an internal
liquid, the enclosed gas being placed at a depressed pressure or
at a raised pressure in relation to the pressure of surroundings
external to the system by variations in level of the liquid;
a plurality of tubes, each of the plurality of tubes extending
between adjacent systems of the plurality of systems with a first
open end terminating in one of the adjacent systems and a
second open end terminating in the other of the adjacent
systems; and
a pressure reduction device connected to the first system to
create depression of the gas enclosed in the first system,
wherein:
the plurality of second systems are isolated from the
pressure reduction device;
a last system of the plurality of second systems is in
liquid communication with an external liquid; and
respective liquid environments of the plurality of
systems are connected continuously by the plurality of tubes
so that depression of the gas enclosed in the first system
leads to successive incidences of depressed pressure to the
gases contained in the plurality of second systems,
thereby causing the gases in the plurality of second
systems to serially expand and thereby deliver work to
cause pumping of the external liquid in contact with the
internal liquid of the last system of the plurality of second
systems through the plurality of systems.
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THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Wolcott US 1,628,943 May 17, 1927
Hancock US 3,829,246 Aug. 13, 1974
Chen US 6,167,899 B1 Jan. 2, 2001
The following rejections are before us for review:
1. Claims 1 and 2 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Chen.
2. Claims 3, 4, 6, and 7 are rejected under 35 U.S.C. § 103 as being
unpatentable over Chen and Hancock.
3. Claims 10–12 are rejected under 35 U.S.C. § 103 as being
unpatentable over Chen and Wolcott.
4. Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable
over Chen, Wolcott, and Hancock.
OPINION
Anticipation of Claims 1 and 2
by Chen
Appellant argues independent claim 1 and then relies solely on
dependency for the patentability of claim 2. Appeal Br. 7–12. We select
claim 1 as representative such that claim 2 will stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Chen discloses all of the limitations of
claim 1. Non-Final Act. 3–4. In particular, the Examiner finds that Chen
contains an enclosed gas placed in contact with an internal liquid. Id. at 3.
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The Examiner further finds that depression of the gas in the first system
causes gas in the second systems to serially expand and deliver work to
cause pumping. Id. at 3–4.
Appellant argues that Chen does not place an enclosed gas in contact
with an internal liquid as claimed. Appeal Br. 8. Appellant argues that
chambers 23 of Chen cannot be part of the system such that only water
boxes 21 can be interpreted as satisfying the system limitation of claim 1.
Id. Appellant further argues that Chen’s connection pipes 22 do not extend
between adjacent systems as claimed. Id. at 9. According to Appellant,
connection pipes 22 extend beyond water boxes 21 into chambers 23 so that
pipes do not have open ends that terminate in water boxes 21.
In response, the Examiner directs our attention to Figure 9 of Chen as
moving fluid sequentially through a series of sealed containers using
pressure. Ans. 12–14.
Chen discloses a water transportation device. Chen, Abstract. Chen
transports water from sealed tank 10, disposed at the bottom of the device, to
water tower 40, disposed at the top of the device. Id. Fig. 1. Water is
transported through water channel device 20 comprised of a series of
vertically stacked, sealed water boxes 21. Id. Water moves upward from a
lower box 21 to a higher box 21 by means of connection pipes 22. Id. Fig. 7.
Water leaves the upper part of a first connection pipe 22 through water outlet
aperture 25 disposed in water box 21 and moves within box 21 to the lower
end of a second connection pipe 22 that is disposed in an alternating, stair-
step arrangement with said first connection pipe 22. Id. Figs. 7, 10. Both air
and water flow out of water outlet aperture 25. Id. Figs 7, 7A, 8A, col. 3,
ll. 7–8. After reaching the top of water channel device 20, the water exits
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device 20 via connection tube 26 and flows first into pressure reduction
tank 30 and then into water tower 40. Id. col. 2, ll. 51–52, Fig. 1.
Chen does not elaborate on how it functions in operation, however, a
person of ordinary skill in the art with appropriate training in mechanics,
physics, and hydraulics would have readily deduced its operation from the
disclosure of Chen’s structure. Each sealed water box 21 contains both
water and air. Id. Figs. 7–9 (note the depiction of a “water line” in each
box 21). As water flows out of pressure reduction tank 30 via water outlet
pipe 34, water is drawn into tank 30 via connection tube 26. Id. Water
flowing out of the uppermost sealed water box 21 via connection tube 26
causes the air pressure in box 21 to drop thereby drawing water upward from
the next lower water box in the series and so-on down the water channel
device 20.
Appellant’s argument that Chen’s connection pipes 22 do not have
open ends that terminate in water boxes 21 overlooks the structure and
function of water outlet apertures 25. Although the connection pipes do
extend into chambers 23, such does not rise to the level of a patentable
distinction between Chen and Appellant’s invention. Chambers 23 are
isolated from sealed water boxes 21. Chen, Fig. 1. No air or water flows
from a water box to a chamber as the upper ends of connection pipes 22 that
terminate in chambers 23 are capped by threaded plugs 24 and washers 220.
Id. col. 2, ll. 37–38.
Appellant’s remaining arguments all build on Appellant’s erroneous
factual assertion that Chen lacks air and water outlet ports at the upper
portion of pipes 22. Consequently, no argument of Appellant apprises us of
Examiner error.
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For a prior art reference to anticipate a claim, it must disclose all of
the limitations of the claim, “arranged or combined in the same way as in the
claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed.
Cir. 2008). That requirement is met by the Examiner’s findings of fact
which are supported by a preponderance of the evidence. Accordingly, we
sustain the Examiner’s Section 102 anticipation rejection of claims 1 and 2.
Unpatentability of Claims 3, 4, 6, and 7
over Chen and Hancock
Apart from arguments presented with respect to claim 1 which we
have previously considered, Appellant does not argue for the separate
patentability of claims 3, 4, 6, and 7. We sustain the Examiner’s rejection of
claims 3, 4, 6, and 7. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately
argue claims constitutes a waiver of arguments for separate patentability).
Unpatentability of Claims 10–12
over Chen and Wolcott
Claim 10
Claim 10 is an independent claim that is similar to claim 1 except that
the pressure differential that initiates upward pumping of the liquid
originates as an increase in pressure from the bottom of the stack instead of a
decrease in pressure from the top of the stack. Claims App. The Examiner
relies on Wolcott as disclosing pressurizing air at the bottom of the stack to
facilitate pumping. Non-Final Act. 6.
Appellant argues against the Examiner’s proposed modification of
Chen by Wolcott. Appeal Br. 13–17. Appellant argues that Wolcott applies
pressure to each of a series of stacked chambers (7), not just the lowermost
chamber in the stack. Id. at 14. According to Appellant, this contravenes
the limitation in claim 10 directed to each of the “second systems” being
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closed and isolated in terms of the enclosed gas in contact with the internal
liquid. Id.
In response, the Examiner states that both Wolcott and Chen move
fluid using pressure variations. Ans. 15. The Examiner further states that
the proposed modification would not change the principle of operation of
Chen. Id. at 16. Instead, according to the Examiner, the proposed
modification merely enhances Chen by making the pump more productive
by increasing the pressure difference. Id.
Wolcott is directed to a pump that uses differential air pressure to lift
liquid from a well. Wolcott, p. 1, ll. 1–9. Wolcott is specifically directed at
pumping oil from an oil well. Id. Wolcott’s pump provides a plurality of
stacked working chambers. Id. p. 1, ll. 32–34. Wolcott generates relative
high and low pressures in alternate chambers and then periodically
simultaneously reverses the high versus low condition in all chambers so
that liquid is propelled upward from high pressure chambers to the adjacent,
above, low pressure chamber. Id. p. 1, ll. 32–50. Wolcott uses pipes 20
and 21 connected to alternate chambers 7 at ports 22 and 23 respectively.
Id. p. 2, ll. 57–67. Differential, reversible, alternating pressure to
chambers 7 through pipes 20 and 21 is supplied by means of a compressor,
high and low pressure tanks, and a valve arrangement. Id. p. 2, ll. 67–115.
As we understand the rejection, the Examiner is proposing to add air
pressure to the lowermost chamber of Chen/Wolcott to initiate pumping
action. Non-Final Act. 6. According to the Examiner, “the modification is
small running a single pipe down to the first system.” Id. In other words,
there are key features of Wolcott that are omitted from the proposed
combination of Chen and Wolcott including, without limitation: (1) the low
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pressure tank; (2) pipes 20 to 21 to all chambers 7 above the lowermost
chamber; and (3) the rotational valve apparatus that alternates supplying
high and low pressure air to pipes 20 and 21.
Having reviewed the positions of Appellant and the Examiner, we are
not persuaded that a person of ordinary skill in the art would have modified
Chen in the manner proposed by the Examiner based on isolated, selected
teachings from Wolcott to achieve the claimed invention. The Examiner
may be correct that both Chen and Wolcott use pressure differentials to lift
water. The Examiner may also be correct that applied principles of
hydraulics and physics would cause Chen to operate as claimed in claim 10
if only the lowermost chamber were pressurized. However, the Examiner
fails to explain to our satisfaction why a person of ordinary skill in the art,
faced with the combined teachings of Chen and Wolcott, would select only
the features of Wolcott needed to practice the invention of claim 10 to the
exclusion of the features related to alternating pressure and delivering air
pressure to each chamber. Obviousness is not only concerned with whether
a skilled artisan could have, but would have made the proposed modification
to arrive at the claimed invention. Belden Inc. v. Berk–Tek LLC, 805
F.3d 1064, 1073 (Fed. Cir. 2015). The mere fact that the prior art could
have been modified in the proposed manner does not make the modification
obvious. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992).
In our opinion, the Examiner here has fallen victim to the insidious
effect of hindsight analysis. W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721
F.2d 1540, 1553 (Fed. Cir. 1983). “When prior art references require
selective combination . . . to render obvious a subsequent invention, there
must be some reason for the combination other than the hindsight gleaned
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from the invention itself.” Interconnect Planning Corp. v. Feil, 774
F.2d 1132, 1143 (Fed. Cir. 1985). We “cannot use hindsight reconstruction
to pick and choose among isolated disclosures in the prior art to deprecate
the claimed invention.” In re Fine, 837 F.2d 1071, 1075 (Fed. Cir. 1988).
Wolcott does not just teach applying increased air pressure to the
lowermost chamber. Rather, it applies alternating high and low pressure to
the lowermost chamber. Furthermore, it does not just teach pressurizing the
lowermost chamber. Rather it pressurizes, in alternating fashion, each and
every chamber in the stack. Claim 10 requires that each second system is
“closed and isolated.” Claims App. In order to add pressure to just the first
system of Chen in a manner that leaves each second “closed and isolated,”
the Examiner cherry picks Wolcott’s teaching of pressurizing the lowermost
chamber to the exclusion of alternating pressure and applying differential
pressure to each chamber in the stack. The proposed modification thus
smacks of hindsight reasoning. Fine, 837 F.3d at 1075.
We are not persuaded that a person of ordinary skill in the art would
have modified Chen in the manner proposed in the Examiner’s rejection.
Thus, the Examiner errs in concluding that the prior art renders claim 10
unpatentable as obvious. Consequently, we do not sustain the Examiner’s
unpatentability rejection of claim 10.
Claims 11 and 12
Claims 11 and 12 depend from claim 10. Claims App. The
Examiner’s rejection of these claims suffers from the same infirmity that
was identified above with respect to claim 10. Thus, for essentially the same
reason expressed above in connection with claim 10, we do not sustain the
rejection of claims 11 and 12.
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Unpatentability of Claim 13
over Chen, Wolcott, and Hancock
Claim 13 depends from claim 10. Claims App. The Examiner’s
rejection of these claims suffers from the same infirmity that was identified
above with respect to claim 10. Thus, for essentially the same reason
expressed above in connection with claim 10, we do not sustain the rejection
of claim 13.

CONCLUSION
In summary:
Claims
Rejected
§ Reference(s) Aff’d Rev’d
1, 2 102 Chen 1, 2
3, 4, 6, 7 103 Chen, Hancock 3, 4, 6, 7
10-12 103 Chen, Wolcott 10-12
13 103 Chen, Wolcott, Hancock 13
Overall
Outcome
1-4, 6, 7 10-13

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)(iv).
AFFIRMED IN PART