Roger L. Schultz et al.

Patent Trials and Appeals Board

Oct 30, 2019

15347535 - (D) (P.T.A.B. Oct. 30, 2019)

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.
15/347,535 11/09/2016 Roger L. SCHULTZ TTS-15-11P1D1US 7772
20558 7590 10/30/2019
SMITH IP SERVICES, P.C.
P.O. Box 997
Rockwall, TX 75087
EXAMINER
LEFF, ANGELA MARIE DITRAN
ART UNIT PAPER NUMBER
3674
NOTIFICATION DATE DELIVERY MODE
10/30/2019 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@smithipservices.com
sally@smithipservices.com
scrawford@smithipservices.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROGER L. SCHULTZ, BROCK W. WATSON,
ANDREW M. FERGUSON, and GARY P. FUNKHOUSER
____________

Appeal 2018-002756
Application 15/347,535
Technology Center 3600
____________

Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
SEAN P. O’HANLON, Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 21–30 in this application.2 The Board
has jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Thru Tubing Solutions, Inc. as the
real party in interest. Appeal Br. 3.
2 Claims 1–20 are canceled. See Appeal Br. 17 (Claims App.).
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CLAIMED SUBJECT MATTER
Claim 21 is the sole independent claim on appeal, and it recites:
21. A flow conveyed device for use in a subterranean well, the
device comprising:
a body; and
a plurality of fibers joined to the body, each of the fibers
having a lateral dimension that is substantially smaller than a size
of the body,
wherein the body and the plurality of fibers are degradable
in the well, and
wherein the fibers are retained by a retainer.
Appeal Br. 17 (Claims App.).
REJECTIONS ON APPEAL
Claims 21–24 and 27–29 are rejected under 35 U.S.C. § 103 as
unpatentable over Davies (US 3,437,147, issued Apr. 8, 1969) and Lafferty
(US 2012/0285695 A1, published Nov. 15, 2012). See Final Act. 2.
Claims 25 and 26 are rejected under 35 U.S.C. § 103 as unpatentable
over Davies, Lafferty, and Murphree (US 2013/0292123 A1, published
Nov. 7, 2013). See Final Act. 5.
Claim 30 is rejected under 35 U.S.C. § 103 as unpatentable over
Davies, Lafferty, and Naedler (US 2012/0181032 A1, published July 19,
2012). See Final Act. 6.
In two new grounds of rejection entered in the Answer3, claims 21–25
and 27–30 are rejected under 35 U.S.C. § 103 as unpatentable over Lafferty

3 In response to the new grounds, Appellant elected to maintain the appeal
by filing a Reply Brief. See Ans. 12; Reply Br. 19–23; 37 C.F.R. § 41.39(b).
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and Davies, and claim 26 is rejected under 35 U.S.C. § 103 as unpatentable
over Lafferty, Davies, and Murphree. See Ans. 2–3.
OPINION
A. Obviousness over Davies and Lafferty
Claims 21–24 and 29
Appellant argues claims 21–24 and 29 as a group, without separately
arguing any one claim in the group. See Appeal Br. 6–12. Accordingly, we
select claim 21 to decide the appeal as to this rejection of these claims, with
the other grouped claims standing or falling with claim 21. See 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner finds the plugging element illustrated in Davies’
Figure 3 is a device comprising, as recited in claim 21, a plurality of fibers
(i.e., tentacles 29–35) joined to a body (i.e., central body member 28), with
each fiber having a lateral dimension that is substantially smaller than a size
of the body. Final Act. 2; see Davies, 4:53–59. The Examiner finds Davies’
fibers 29–35 are retained by a retainer. Final Act. 2 (citing Davies, 5:45–
6:2); see Davies, Fig. 4 (jacket 40 overlies tentacles 44 until jacket 40 is
dissolved by treating fluid). The Examiner also finds Davies discloses
conveying a plurality of such plugging elements into a subterranean well, in
a downward flow. Final Act. 2; see Davies, Fig. 1, 2:63–70, 3:39–53. The
Examiner further finds Davies discloses removing the plugging elements
from the well “to allow for recovery of the previously injected treating fluid
and fluids indigenous to the formation.” Final Act. 2 (citing Davies, 3:63–
4:2). The Examiner finds Davies does not, however, disclose removing the
plugging elements by “degrading” the body and the fibers, as required by
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claim 21. Id. Moreover, the Examiner points out that body member 28 may
be formed of nylon. Id. at 3 (citing Davies, 4:26–52).
The Examiner finds Lafferty discloses “destructible ball sealers” made
from nylon or other materials, “so as to provide for the destruction/
degradation of the ball at a time it is no longer needed to form a sealing
engagement with a perforation.” Id. (citing Lafferty ¶¶ 62, 67, 79, 80–81).
The Examiner determines it would have been obvious “to employ a
form of nylon in creating the device of Davies capable of degradation
downhole” in light of Lafferty, because this would “allow[] for the removal
of the plug at a time when production from the wellbore is desired rather
than relying on the flowback of the devices to the surface.” Final Act. 3. In
support, the Examiner cites the common purpose of Davies and Lafferty to
provide devices that will temporarily seal perforations in a well casing tube,
to be unsealed in a controlled manner. Id. (citing Davies, 3:68–75; Lafferty
¶¶ 67, 79); Ans. 9 (further citing Lafferty ¶¶ 23, 32). The Examiner also
cites Davies’ disclosure that body member 28 may be formed of nylon
(Davies, 4:35), and Lafferty’s disclosure that nylon is a “suitable . . .
degradable diversion material[]” for temporarily sealing perforations in a
well casing tube (Lafferty ¶¶ 62, 79–80 (emphasis added)). Final Act. 3.
Appellant argues the Examiner’s proposed modification of Davies is
improper, because “Davies teaches that his plugging element body should be
made of a material that does not degrade in a well, so that the plugging
element can be retrieved from the well and examined to determine whether it
effectively sealed a perforation.” Appeal Br. 8–10 (emphasis by Appellant)
(citing Davies, 3:63–4:3). Appellant cites Davies’ disclosure that “[t]he
plugging elements themselves are, of course, inert with respect to the
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treating fluid” (Davies, 5:75–6:2 (emphasis by Appellant)), as “clearly
recogniz[ing] that certain materials are indeed dissolvable in well fluids, but
specifically teach[ing] directly away from constructing the plugging element
body 28 itself of such dissolvable materials.” Appeal Br. 10 (emphasis by
Appellant), 11–12; Reply Br. 13–14. Appellant dismisses Lafferty as
“deal[ing] with an altogether different problem” than Davies. Appeal
Br. 10–11 (citing Lafferty, Fig. 3). Appellant also argues that while Davies’
central body member may be formed of nylon, the central body member is
encapsulated within a rubber coating member, which protects the central
body member from exposure to fluids in the well and thereby prevents any
degradation of the nylon. Id. at 12 (citing Davies, Fig. 2, 4:8–14, 4:33–36).
Appellant, further, relies upon the fact that Davies was filed in
February 1969, “almost a half century prior to” Appellant’s priority filing
date. Id. at 8. Thus, Appellant concludes a person of ordinary skill in the art
would not have been motivated to modify Davies, in light of Lafferty, as
proposed by the Examiner. Id. at 12.
The Examiner answers that “Davies does not teach away from the use
of degradable materials, but rather, teaches an alternative mechanism for the
removal of the plugging elements from the openings that may be desirable to
be used.” Ans. 8–9 (emphases by Examiner) (citing Davies, 3:63–4:3).
Further according to the Examiner, Lafferty “suggests that . . . diverting
materials/plugs made of degradable materials were considered more
desirable than plugs made from non-degradable materials.” Id. at 9 (citing
Lafferty ¶¶ 23, 32, 62, 67). Lafferty’s degradation of plugging elements is
an improvement over Davies’ extraction of plugging elements, in the
Examiner’s view, because it “would eliminate any unnecessary extractions
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should the plugging devices not be retrieved by flowback,” and it “would
prevent any subsequent blocks to production since any debris associated
with the device would be capable of being degraded in the well rather than
left behind at the bottom of the well should it not have been made from a
degradable material.” Id. at 9–10.
In reply, Appellant asserts the Examiner ignores that modifying
Davies’ plugging elements to be degradable would lose the “functionality of
being able to examine the plugging element to ascertain whether it
effectively sealed off a perforation.” Reply Br. 13. Appellant also argues
that, if the Examiner is proposing to modify both of Davies’ central body
member and coating to be formed of degradable nylon, the modification is
“flawed” because Davies prefers the two elements to have different bulk
densities. Id. (citing Davies, 4:27–33). Appellant further contends the
Examiner errs in finding Davies’ recovery of plugging elements is merely an
alternative method of unplugging well perforations, because recovery is the
only unplugging method taught by Davies, and Davies teaches away from
degradable plugging elements. Id. at 14–15; Appeal Br. 10.
We determine a preponderance of the evidence supports the
Examiner’s determination of obviousness. We are, first, not persuaded by
Appellant’s argument that the age of the Davies reference is indicative of
non-obviousness. See Appeal Br. 8 (discussing Leo Pharm. Prods., Ltd. v.
Rea, 726 F.3d 1346 (Fed. Cir. 2013)). “[M]ere age of the references is not
persuasive of the unobviousness of the combination of their teachings,
absent evidence that, notwithstanding knowledge of the references, the art
tried and failed to solve the problem.” Nike, Inc. v. Adidas AG, 812 F.3d
1326, 1338 (Fed. Cir. 2016) (quoting In re Wright, 569 F.2d 1124, 1127
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(CCPA 1977)), overruled on other grounds, Aqua Prods., Inc. v. Matal,
872 F.3d 1290, 1296 n.1 (Fed. Cir. 2017). “The relevant portion of Leo
Pharmaceutical stands for the proposition that the age of a reference can
highlight the fact that no one in the art understood the problem to be
solved.” Nike, 812 F.3d at 1337–38 (emphasis added) (citing Leo Pharm.,
726 F.3d at 1353–57). In this case, there is no evidence that persons of
ordinary skill in the art tried and failed to solve any problem, or did not
understand the problem to be solved.
Further, the Examiner has satisfied the burden to provide a rational
underpinning sufficient to support the legal conclusion of obviousness. See
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The evidence
establishes that, before Appellant’s claimed invention, there were at least
two different methods of providing plugging devices that would temporarily
seal one or more openings in a subterranean well, and then be unsealed from
the openings in a controlled manner.
In the first method, described in Davies, plugging elements 22
selectively plug some perforations 17 in well casing 14 when fluid 23 is
pressurized to perform a fracturing operation, to divert fluid 23 to the
unplugged perforations. Davies, Fig. 1, 1:49–50, 1:64–2:7, 2:63–70, 3:15–
26. Then, when it is desired to re-open the sealed perforations 17, the
fluid 23 pressure is decreased, which “results in disengagement” of the
plugging elements 22 from perforations 17. Id. at 2:4–7, 3:59–62.
In the second method, described in Lafferty, “diversion” or
“diverting” elements such as “wellbore plugs” and “pumping ball sealers”
selectively plug some of the perforations in a wellbore casing, “during
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stimulation operations for zonal isolation and/or for changing the injection
profile of a treating fluid into the formation when several perforated zones
are treated in one stage.” Lafferty ¶¶ 2, 5, 19, 31, 32, 35. The diversion
elements are “at least partially destroyable or degradable,” so that when it is
desired to re-open the sealed perforations, the diversion elements will “no
longer block[] fluid flow.” Id. ¶ 19, 23, 32.
In light of the foregoing disclosures in Davies and Lafferty, we agree
with the Examiner’s conclusion that it would have been obvious to create
Davies’ central body member 28 and tentacles 29–35 from a degradable
material, “thereby allowing for the removal of the plug at a time when
production from the wellbore is desired rather than relying on the flowback
of the devices to the surface.” Final Act. 3. This would beneficially
“eliminate any unnecessary extractions should the plugging devices not be
retrieved by flowback.” Ans. 9–10.4 Appellant’s contention that Lafferty
does not support obviousness because “Lafferty deals with an altogether
different problem” than Davies (Appeal Br. 10–11) is not persuasive.
Davies and Lafferty address the same problem: temporarily plugging holes
in a subterranean well to focus the fracturing energy of a fracturing fluid.
We appreciate that Davies indicates the plugging elements may be
recovered after a fracturing operation, “to ascertain the number of
perforations actually sealed by the plugging elements” during the fracturing
operation. Davies, 3:63–75. We also appreciate that Davies indicates its

4 In the Answer, the Examiner finds Lafferty “suggests” degradable plugs
are “more desirable” than and “an improvement upon” removing plugs as
disclosed in Davies. Ans. 9 (emphasis by Examiner). We do not rely on
that specific finding in affirming the rejection.
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plugging elements may each include a temporary jacket to restrain the
element’s tentacles when the element is introduced initially in the well, and
then the jacket is dissolved in the fracturing fluid, wherein “[t]he plugging
elements themselves are, of course, inert with respect to” the fracturing
fluid. Id. at Fig. 4, 5:34–6:2 (emphasis added). However, we are not
persuaded by Appellant’s argument that these disclosures teach away from
modifying the plugging elements to be degradable.
In order to teach away, a reference must criticize, discredit, or
otherwise discourage the claimed solution. In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004). Here, by contrast, Davies merely indicates “it may be
desirable” to recover the plugging elements. Davies, 3:63–75 (emphasis
added). That is, according to Davies, in some instances it may be beneficial
to recover the plugging elements, but in other instances such recovery may
not be beneficial. Davies does not criticize, discredit, or otherwise
discourage dissolving the plugging elements in the well bore, rather than
recovering them.
Even in the absence of a teaching away, general preferences as stated
in the prior art are still relevant to determining whether a skilled artisan
would be motivated to combine the prior art in the manner claimed. Polaris
Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1067–70 (Fed. Cir. 2018).
Thus, “a reference ‘must [be] considered for all it taught, disclosures that
diverged and taught away from the invention at hand as well as disclosures
that pointed towards and taught the invention at hand.’” Id. (quoting
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 296
(Fed. Cir. 1985)). In this case, weighing the evidence as a whole, we
determine a person of ordinary skill in the art would have been motivated to
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make Davies’ plugging elements degradable, to achieve the labor-saving
benefit of eliminating the need to recover the elements from the well. See,
e.g., Final Act. 3; Ans. 9–10; In re Urbanski, 809 F.3d 1237, 1243–44
(Fed. Cir. 2016) (persons of ordinary skill in the art may be motivated to
pursue desirable properties of one prior art reference, even at the expense of
foregoing a benefit taught by another prior art reference). Further, the
evidence does not support the argument of Appellant’s counsel suggesting
that the modification would require forming the body and the fibers to have
the same bulk density, when Davies prefers them to have different bulk
densities, if both elements are made of degradable nylon.
For the foregoing reasons, we sustain the rejection of claims 21–24
and 29 as having been obvious over Davies and Lafferty.
Claim 27
Claim 27 recites: “The device of claim 21, wherein the fibers are
joined together and form one or more lines extending outwardly from the
body.” Appeal Br. 18 (Claims App.).
The Examiner finds Davies discloses the limitation of claim 27. Final
Act. 4 (citing Davies, 4:56–63). Appellant contends Davies does not support
this finding. Appeal Br. 13–14.
We agree with Appellant. Davies’ Figure 3 is reproduced below.

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Figure 3 illustrates a plugging element comprising central body member 28
with seven tentacles 29–35 extending from body 28. Davies, 4:53–56.
Tentacles 29–35 “may take the form of thin fibers which are threaded
through the core of the body member [28].” Id. at 4:61–63. This disclosure
establishes that the fibers are threaded through and therefore joined to the
central body member, but it does not establish that any of the fibers are
“joined together” as required by claim 27 (emphasis added). The
Examiner’s finding that Davies discloses fibers that are joined together,
because “it would appear thin fibers 33, 34 and 29 are, respectively, joined
together with thin fibers 30, 31 and 32 so as to extend outwardly from the
body” (Ans. 10–11), rests upon speculation and not the cited disclosures of
Davies.
Thus, we do not sustain the rejection of claim 27 as having been
obvious over Davies and Lafferty.
Claim 28
Claim 28 recites: “The device of claim 27, wherein the lines comprise
ropes.” Appeal Br. 18 (Claims App.).
The Examiner’s consideration of claim 28 does not cure the
deficiency of Davies with respect to the parent claim 27, noted above. See
Final Act. 4. Therefore, for the reasons provided above, we do not sustain
the rejection of claim 28 as having been obvious over Davies and Lafferty.
The Examiner additionally finds Davies discloses the limitation of
claim 28. Final Act. 4 (citing Davies, Fig. 3, 4:52–62). Appellant contends
Davies does not support this finding. Appeal Br. 14.
We agree with Appellant. Davies’ Figure 3, reproduced above,
illustrates each tentacle 29–35 as comprising a single fiber, not a collection
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of fibers as is required by the ordinary meaning of “rope” cited by the
Examiner. See Final Act. 4 (“see definition of ‘rope’ wherein a rope is made
by twisting fibers together, as well as a row or string consisting of things
united by threading”). As discussed above, Davies discloses tentacles 29–35
“may take the form of thin fibers which are threaded through the core of the
body member [28]” (Davies, 4:61–63), but Davies does not indicate that the
fibers are twisted or threaded together to form a rope.
Thus, we do not sustain the rejection of claim 28 as having been
obvious over Davies and Lafferty.
B. Obviousness over Davies, Lafferty, and
either Murphree or Naedler
Appellant relies solely on arguments considered above in connection
with claim 21 in pressing for the patentability of claims 25 and 26 over
Davis, Lafferty, and Murphree, and for the patentability of claim 30 over
Davis, Lafferty, and Naedler. See Appeal Br. 7–15. As discussed above,
Appellant’s arguments regarding claim 21 are not persuasive. See also
37 C.F.R. § 41.37(c)(1)(iv) (“any arguments or authorities not included in
the appeal brief will be refused consideration by the Board for purposes of
the present appeal”). Therefore, we sustain the rejections of claims 25, 26,
and 30 as having been obvious over Davies, Lafferty, and either Murphree
or Naedler.
C. Obviousness over Lafferty and Davies
Claims 21–25, 29, and 30
Appellant argues claims 21–25, 29, and 30 as a group, without
separately arguing any one claim in the group. See Reply Br. 19–21.
Accordingly, we select claim 21 to decide the appeal as to this rejection of
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these claims, with the other grouped claims standing or falling with
claim 21. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds Lafferty discloses a flow conveyed device (i.e.,
Lafferty’s diverting material) which is degradable in a subterranean well,
and which is retained by a retainer (i.e., Lafferty’s destructible container), as
recited in claim 21. Ans. 3 (citing Lafferty ¶¶ 13, 25, 32, 62). The
Examiner also finds Lafferty discloses using its device to plug well
perforations, before the device degrades to open the perforations. Id. (citing
Lafferty ¶¶ 65, 67). According to the Examiner, Lafferty’s “diverting
material can take various forms,” but the disclosed forms do not include
fibers joined to a body as recited in claim 21. Id. (citing Lafferty ¶¶ 26, 31,
32, 85).
The Examiner finds Davies discloses a well perforation plugging
element comprising fibers 29–35 joined to body 28, with each fiber having a
lateral dimension that is substantially smaller than a size of the body. Id. at
3–4 (citing Davies, Fig. 3, 2:8–22, 4:52–5:2). The Examiner finds Davies’
fibers 29–35 advantageously “provide increased surface area to the treating
fluid so that as the treating fluid flows through perforations into the
formation, the plugging elements are guided to and seat in casing
perforations.” Id. at 4 (citing Davies, 3:46–62). Therefore, the Examiner
determines it would have been obvious to form Lafferty’s diverting material
as fibers joined to a body, “in order to provide a plugging element that can
be guided to and seat in a casing perforation after release from the
destructible container.” Id.
Appellant firstly argues “there is no reason to enclose the Davies
plugging element in the Lafferty destructible container,” because “the
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problems solved by the Lafferty destructible container are not present for the
Davies plugging element.” Reply Br. 19. We disagree. Lafferty and Davies
both disclose the utility of enclosing a plugging element in a destructible
container that dissolves as the plugging element proceeds down a
subterranean well. Lafferty ¶ 35 (Fig. 3), ¶ 65; Davies, 5:40–6:2 (Fig. 4).
The evidence supports the Examiner’s finding that forming Lafferty’s
diverting material as fibers joined to a body would advantageously promote
seating of the diverting material in well perforations, after the material is
released from its destructible container. See Davies, 3:46–54. That is a
rational basis for the proposed modification.
Appellant secondly argues “if the Davies plugging element were to
also be made degradable in the well,” then “there would be no reason for the
plugging element to include the tentacles extending outwardly from the
body,” because the tentacles are used to retrieve the element from the well.
Reply Br. 20. We disagree. Davies discloses that the tentacles are useful in
delivery of the plugging element into the well (Davies, 3:46–54), and in
retrieving the plugging element from the well (id. at 3:72–4:3). The former
functioning provides a rational basis for the proposed modification.
For the foregoing reasons, we sustain the rejection of claims 21–25,
29, and 30 as having been obvious over Lafferty and Davies.
Claims 27 and 28
Appellant argues the Examiner errs in relying on Davies as disclosing
the limitations of claims 27 and 28. See Ans. 5 (challenged findings); Reply
Br. 21–22. For reasons provided above, we agree with Appellant.
Therefore, we do not sustain the rejection of claims 27 and 28 as having
been obvious over Lafferty and Davies.
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D. Obviousness over Lafferty, Davies, and Murphree
Appellant relies solely on arguments considered above in connection
with claim 21 in pressing for the patentability of claim 26 over Lafferty,
Davis, and Murphree. See Reply Br. 23. As discussed above, Appellant’s
arguments are not persuasive. See also 37 C.F.R. § 41.37(c)(1)(iv) (“any
arguments or authorities not included in the appeal brief will be refused
consideration by the Board for purposes of the present appeal”). Therefore,
we sustain the rejection of claim 26 as having been obvious over Lafferty,
Davies, and Murphree.
CONCLUSION
In summary:
Claims Rejected 35 U.S.C. § References Affirmed Reversed
21–24, 27–29 103 Davies, Lafferty 21–24, 29 27, 28
25, 26 103 Davies, Lafferty,
Murphree
25, 26
30 103 Davies, Lafferty,
Naedler
30
21–25, 27–30 103 Lafferty, Davies 21–25, 29, 30 27, 28
26 103 Lafferty, Davies,
Murphree
26
Overall Outcome 21–26, 29, 30 27, 28
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)(1)(iv).
AFFIRMED IN PART