Weatherford Technology Holdings, LLC

Patent Trials and Appeals Board

Mar 18, 2022

2021004241 (P.T.A.B. Mar. 18, 2022)

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. 15/291,250 10/12/2016 Manish AGARWAL WEAT/1343US 4188 36735 7590 03/18/2022 PATTERSON & SHERIDAN, L.L.P. / Weatherford 24 Greenway Plaza, Suite 1600 HOUSTON, TX 77046 EXAMINER BUTCHER, CAROLINE N ART UNIT PAPER NUMBER 3676 NOTIFICATION DATE DELIVERY MODE 03/18/2022 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): PSDocketing@pattersonsheridan.com Pair_eOfficeAction@pattersonsheridan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte MANISH AGARWAL and JEFFREY JOHN LEMBCKE __________ Appeal 2021-004241 Application 15/291,250 Technology Center 3600 __________ Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and, SUSAN L. C. MITCHELL, Administrative Patent Judges. HOELTER, 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 1-19, which constitute all the claims pending in this application. Final Act. 1 (Office Action Summary). We have jurisdiction under 35 U.S.C. § 6(b). For the reasons explained below, we AFFIRM the Examiner’s rejections. 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 “Weatherford Technology Holdings, LLC.” Appeal Br. 3. Appeal 2021-004241 Application 15/291,250 2 CLAIMED SUBJECT MATTER The disclosed subject matter “generally relate[s] to artificially lifting fluid from a wellbore.” Spec. ¶ 1. System claim 1 and method claim 11 are independent. See Appeal Br. 5. Claim 1 is illustrative of the claims on appeal and is reproduced below. 1. A jet pump lift system for use with a tubing disposed in a casing, comprising: a jet pump installed in the tubing; a one way valve for communicating a power fluid into the jet pump, the one way valve disposed in an annular area formed between the jet pump and the tubing; and a safety valve configured to block fluid communication through the tubing and disposed above the jet pump. REFERENCES Name Reference Date Webb US 4,413,958 Nov. 8, 1983 Hisaw et al. (“Hisaw”) US 5,806,599 Sept. 15, 1998 MacKenzie US 6,102,828 Aug. 15, 2000 Portman US 9,181,786 B1 Nov. 10, 2015 Batho et al. (“Batho”) US 2005/0155767 A1 July 21, 2005 Daniels et al. (“Daniels”) US 2007/0114038 A1 May 24, 2007 THE REJECTIONS ON APPEAL2 2 Appellant notes that the Examiner’s Answer presents new rejections of all the claims. Reply Br. 7; see also Ans. 10-15. Each of these new rejections relies on the same art cited above, except for the teachings of Portman. The Examiner has eliminated Portman as a reference in each of these new rejections. We do not address these new rejections but instead focus on the rejections expressed in the Examiner’s Final Office Action (which includes the teachings of Portman). Appeal 2021-004241 Application 15/291,250 3 Claims 1-5, 9-16, and 19 are rejected under 35 U.S.C. § 103 as unpatentable over Hisaw, Portman, and Batho. Final Act. 3. Claims 6 and 17 are rejected under 35 U.S.C. § 103 as unpatentable over Hisaw, Portman, Batho, and MacKenzie. Final Act. 8. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over Hisaw, Portman, Batho, MacKenzie, and Webb. Final Act. 9. Claim 8 is rejected under 35 U.S.C. § 103 as unpatentable over Hisaw, Portman, Batho, and Webb. Final Act. 9. Claim 18 is rejected under 35 U.S.C. § 103 as unpatentable over Hisaw, Portman, Batho, and Daniels. Final Act. 10. ANALYSIS The rejection of claims 1-5, 9-16, and 19 as unpatentable over Hisaw, Portman, Batho Appellant argues claims 1-5, 9-16, and 19 together. See Appeal Br. 7-10. We select claim 1 for review, with claims 2-5, 9-16, and 19 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv)(2019). Independent claim 1 recites “a one way valve for communicating a power fluid into [a] jet pump.” The Examiner relies on the teachings of Hisaw for disclosing “ported valve 26” and on Portman for disclosing “a one way valve (check valve 21).” Final Act. 4. The Examiner contends that it would have been obvious “to modify the ported valve of Hisaw with a one- way valve as disclosed by Portman” stating that this “would merely be a simple substitution of one known element for another.” Final Act. 4. The Examiner reasons that the substitution “would obtain the predictable result Appeal 2021-004241 Application 15/291,250 4 of allowing compressed gas injected into the tubing annulus to flow into the column of well fluid in the production tubing.” Final Act. 4. Appellant contends that “[a]s shown in Figure 1, Hisaw teaches the ‘gas lift valve has been removed and in its place has been placed a ported valve 26.’” Appeal Br. 7 (quoting, with underlining added, Hisaw 5:60-62); see also Reply Br. 2. Appellant argues that the removed “gas lift valve is a one way valve” and that replacing this gas lift valve with “a ported valve 26 is not equivalent to a ‘one way valve’ as recited in claim 1.” Appeal Br. 7; see also id. at 9 (“gas lift valves are known to be one way valves”); Reply Br. 2 (“it is not reasonable to argue the ported valve 26 is a one way valve”). Thus, Appellant argues, “Hisaw’s invention requires installing a ported (two way) valve instead [of a] gas lift (one way) valve.” Appeal Br. 7. As such, Appellant argues, “Hisaw teaches away from having a check valve in the side pocket mandrel 9.” Appeal Br. 8; see also Reply Br. 5 (“Hisaw teaches away from using a one way valve for the reasons discussed above”). “Thus, it would not have been obvious to modify the ported valve of Hisaw with the check valve of Portman because the modification would conflict with Hisaw’s specific teaching of removing the gas lift valve/check valve” for a ported valve.3 Appeal Br. 8; see also Reply Br. 4, 5. Appellant also states that “modifying the ported valve of Hisaw with the check valve of Portman would essentially negate Hisaw’s teaching of removing the gas lift valve.” Appeal Br. 9. Appellant argues that “Hisaw explains [that] the check valve means 153A [as shown in its Figure 2B] 3 “Clearly, Hisaw believed the ported valve provided an advantage over the gas lift valve and that the gas lift valve is not a suitable alternative.” Appeal Br. 9. Appeal 2021-004241 Application 15/291,250 5 prevent[s] the flow of fluid and/or gas within the tubing string to reverse circulate into the casing annulus.” Appeal Br. 9 (citing Hisaw 7:17-19); see also Reply Br. 3, 6. Likewise, as per Appellant, “[f]luid cannot reverse circulate into the casing annulus if the ported valve 26 is a one way valve.” Appeal Br. 9-10; see also Reply Br. 6. Thus, Appellant reasons, “Hisaw clearly intended to install a two way, ported valve 26 in the gas lift mandrel 24.” Appeal Br. 10; see also Reply Br. 3 (a skilled person “would understand the ported valve 26 is not a one way functioning valve”). Appellant further contends that the Examiner’s proposed modification (i.e., employing Portman’s check valve) would result in Hisaw’s system “hav[ing] essentially two check valves [(or two one way valves)] controlling the fluid flow into the venture means 56” and “[b]ecause of their one way function, high pressured fluid can be trapped between the two check valves; that is, trapped in the annular area between the gas lift mandrel 24 and the venturi means 56.” Appeal Br. 10. See also Reply Br. 2-7. Even granting every benefit to Appellant’s contentions above (e.g., a ported valve is a two way valve), such contentions do not negate the fact that Hisaw initially describes a tubing string “that has a side pocket for the placement of a gas lift valve” (i.e., a check valve as per Appellant’s discussion above). Hisaw 5:58-60. Hisaw simply teaches removing this gas lift valve “and in its place has been placed a ported valve 26.” Hisaw 5:61- 62. It seems the Examiner, by specifically incorporating Portman’s check valve, is, in one sense, reverting Hisaw’s tubing string back to the structure Appeal 2021-004241 Application 15/291,250 6 it originally was before the gas lift/check valve was replaced.4 In other words, whatever advantages Hisaw may or may not have proffered for substituting a ported valve, these advantages do not detract from the fact that Hisaw expressly teaches an original tubing string that incorporated a gas lift/check valve. See Hisaw 5:58-62. Appellant does not contend that Portman’s check valve differs from Hisaw’s original check valve or that Portman’s valve is not combinable with Hisaw’s tubing string. Further, and regarding Appellant’s statement that “Hisaw teaches away from having a check valve in the side pocket mandrel” (Appeal Br. 8), the Examiner explains that “Hisaw does not disclose that a gas lift valve cannot be used in the side pocket.” Ans. 16. The Examiner explains that the removal of the gas lift valve is merely an embodiment of Hisaw’s Figure 1, and that in fact--elsewhere in its disclosure--Hisaw indicates “the use of the device within a tubing string having a gas lift means.” Ans. 16 (referencing Hisaw 2:66-3:6). The Examiner emphasizes that “there is no indication that removal of the gas lift valve is required.” Ans. 17. In response to Appellant’s argument concerning Hisaw’s use of check valve means 153A (see Appeal Br. 9, 10), the Examiner states, there are no disclosures within Hisaw that indicate the directionality of the ported valve 26, instead Hisaw merely discloses a ported valve. Appellant has drawn their own conclusions as to the intent of the ported valve 26 of Hisaw based solely on the function of the check valve means 153A to prevent reverse circulation. Appellant has assumed that the use of a check valve 153A, necessarily indicates that the ported valve 26 4 Appellant seems to acknowledge this stating “replacing the ported valve with Portman’s check valve is equivalent to reverting back to the gas lift valve that Hisaw clearly wanted to remove.” Reply Br. 5. Appeal 2021-004241 Application 15/291,250 7 must be a two-way valve, as such a valve would allow for reverse circulation. However, the use of a one-way valve or check valve as [a] ported valve 26 would help to prevent reverse circulation of fluid into the annulus, which is clearly a goal of Hisaw, as fluid flow would only be allowed in one direction. Ans. 18. The Examiner also points out that: it is unclear as to how having two check valves controlling the fluid flow into the venturi means 56, as in the modified Hisaw system, would cause high pressured fluid to become trapped in the annular area between the gas lift mandrel and the venture means 56, as both check valves would allow for the release of high pressure fluid in the same direction. This would prevent high pressure fluid from becoming trapped between the gas lift mandrel and the venturi means 56, as high pressure fluid would be allowed to follow upward. Ans. 19. In view of the above, Appellant’s contentions are unpersuasive, and instead, there is merit to the Examiner’s responses. For example, we have been instructed that “[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) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). See also Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013)). Further, lawyer arguments and conclusory statements which are unsupported by factual evidence are entitled to little probative value. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Accordingly, and based on the record presented, it is clear that Hisaw teaches the ability to replace one valve for another. See Hisaw 5:58-65. As such, the Examiner appropriately proposes to replace the ported valve in Appeal 2021-004241 Application 15/291,250 8 Hisaw’s Figure 1 with a one way valve, such as that taught by Portman (and consistent with the construction of Hisaw’s original tubing string). There is also no indication that only a single valve replacement in Hisaw can be undertaken successfully. Thus, Appellant’s above-arguments do not apprise us of Examiner error. We sustain the Examiner’s rejection of claims 1-5, 9- 16, and 19 as being obvious over Hisaw, Portman, and Batho. The rejection of claims 6 and 17 as unpatentable over Hisaw, Portman, Batho, and MacKenzie The rejection of claim 7 as unpatentable over Hisaw, Portman, Batho, MacKenzie, and Webb The rejection of claim 8 as unpatentable over Hisaw, Portman, Batho, and Webb As to the rejections of claims 6-8 and 17, Appellant does not provide any substantive argument. Appeal Br. 7-10. Consequently, we likewise sustain the Examiner’s rejections of claims 6-8 and 17 as being unpatentable over the various combinations of cited art, for the reasons discussed above. The rejection of claim 18 as unpatentable over Hisaw, Portman, Batho, and Daniels Appellant argues that “[r]egarding claim 18, the references, neither alone nor in combination, teach or suggest the one way valve is disposed between a first annular packer and a second annular packer located in an annular area between the jet pump and the tubing.” Appeal Br. 10. The Examiner correctly responds that the “references of Hisaw, Portman, and Batho were not the only references relied upon in the rejection of claim 18 and in fact Daniels was used to meet the additional limitations of claim 18.” Ans. 19. We also wish to point out that merely reciting claim Appeal 2021-004241 Application 15/291,250 9 limitations and asserting that the cited art lacks such teachings fails to meet the requirements of 37 C.F.R. § 41.37(c)(1)(iv) and is thus unpersuasive of Examiner error. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Consequently, the rejection of claim 18 is sustained. CONCLUSION The Examiner’s rejections of claims 1-19 are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 9-16, 19 103 Hisaw, Portman, Batho 1-5, 9-16, 19 6, 17 103 Hisaw, Portman, Batho, MacKenzie 6, 17 7 103 Hisaw, Portman, Batho, MacKenzie, Webb 7 8 103 Hisaw, Portman, Batho, Webb 8 18 103 Hisaw, Portman, Batho, Daniels 18 Overall Outcome 1-19 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