Aglient Technologies, Inc.

Patent Trials and Appeals Board

Mar 31, 2021

2020002835 (P.T.A.B. Mar. 31, 2021)

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.
14/959,892 12/04/2015 Klaus Witt 20110037-04 8197
22878 7590 03/31/2021
Agilent Technologies, Inc.
Global IP Operations
5301 Stevens Creek Blvd
Santa Clara, CA 95051
EXAMINER
PEO, KARA M
ART UNIT PAPER NUMBER
1777
NOTIFICATION DATE DELIVERY MODE
03/31/2021 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):
Agilentdocketing@cpaglobal.com
ipopsadmin@agilent.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KLAUS WITT and KONSTANTIN SHOYKHET
Appeal 2020-002835
Application 14/959,892
Technology Center 1700
Before JEFFREY B. ROBERTSON, DONNA M. PRAISS, and
DEBRA L. DENNETT, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–3 and 6–22.2 See Appeal Br. 1. We
have jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents:
Specification filed Dec. 4, 2015 (“Spec.”); Final Office Action mailed
March 11, 2019 (“Final Act.”); Appeal Brief filed Oct. 10, 2019 (“Appeal
Br.”); Examiner’s Answer mailed Jan. 3, 2020 (“Ans.”), and Reply Brief
filed Mar. 3, 2020 (“Reply Br.”).
2 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Agilent
Technologies, Inc. Appeal Br. 3.
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We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to a fluid pump, a flow splitter, a
sample separation device, and methods of handling fluids. Spec. ¶ 2.
Claim 1, reproduced below, is illustrative of the claimed subject matter
(Appeal Br., Claims Appendix 47):
1. A method for controlling a first flow rate of a fluid as
provided from a fluid separation device to a downstream device
separate from a waste, the method comprising:
supplying the fluid from the fluid separation device to a
fluid inlet conduit at an inlet flow rate;
dividing the fluid supplied to the fluid inlet conduit from
the fluid separation device into a first flow part and into a
second flow part, wherein the first flow part at a first flow rate
is directed to the downstream device separate from the waste,
and the second flow part at a second flow rate is directed to a
pump inlet of a pump;
controlling the first flow rate of the fluid directed to the
downstream device, by imposing the pump to continuously
conduct away from [sic] the second flow part of the fluid
directed to the pump at the second flow rate,
whereby the first flow rate of the fluid directed to the
downstream device results in the difference between the input
flow rate and the second flow rate of the pump.

Claims 21 and 22 are also independent and recite a method for
dividing the flow as provided from a fluid separation device and method for
operation of a separation system, respectively. Id. at 51–52.
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REFERENCE
The prior art relied upon by the Examiner is:

Name Reference Date
Witt et al. (“Witt”) US 2008/0022765 A1 Jan. 31, 2008

REJECTION3
Claims 1–3 and 6–22 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Witt. Final Act. 3–13.

OPINION
Appellant presents separate arguments with respect to independent
claims 1, 21, and 22. See Appeal Br. 30–45. We select claims 1 and 21 as
representative for disposition of this rejection. 37 C.F.R.
§ 41.37(c)(1)(iv)(2019).

Claim 1
The Examiner’s Rejection
In rejecting claim 1 as unpatentable over Witt, the Examiner found,
inter alia, that Witt discloses a method for controlling a first flow rate of a
fluid as provided from a fluid separation device to a downstream device
separate from a waste. Final Act. 3–4 (citing Witt Abstr. ¶¶ 33, 63, 64, 70,

3 The Examiner appears to have withdrawn the rejection of claims 1–3 and
6–22 under 35 U.S.C. § 112(a) as failing to comply with the written
description requirement. Compare Ans. 12–13 with Final Act. 2–3.
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and Fig. 2). The Examiner found Witt discloses controlling the flow rate of
the fluid directed to the downstream device through the use of a pump to
continuously conduct away the second part of the fluid directed to the pump
at the second flow rate (sucking rate 21). Id. at 4 (citing Witt ¶¶ 6, 25, 59,
64, and 76). The Examiner found Witt discloses a first flow rate of the fluid
directed to the downstream device results in a difference between the input
flow rate and the second flow rate of the pump. Id. The Examiner found
also that Witt discloses that for a given inlet pressure, the pump or the
splitter adjusts operation so that the controlled valve of the first flow rate is
attained as a target flow. Id. at 5 (citing Witt ¶¶ 38, 59, 60, and 64
(percentage branched off)). The Examiner found Witt discloses a second
flow rate of the second part of the fluid is controlled such that the second
flow rate is less than the inlet flow rate by the controlled valve. Id. The
Examiner found Witt teaches the second flow rate is reduced relative to the
inlet flow rate by the controlled valve. Id. The Examiner found Witt
discloses the second part of the fluid is conducted toward a fluidic member,
such as a mass spectrograph. Id. (citing Witt ¶ 64).

Appellant’s Arguments
Appellant argues that the splitter in Witt has no other function than to
scale the measured flowrate result such that the actual flowrate entering
flowmeter from the upstream device is known, and that Witt’s disclosure of
switching flow at times to a mass spectrograph is not a disclosure of
controlling a first flow rate. Appeal Br. 32–33. Appellant contends that
although the pumping chambers 61 and 63 in Witt continuously conduct
away a second flow part to waste 65, such a flow rate does not direct a first
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flow rate to a downstream device separate from the waste. Id. at 34.
Appellant argues Witt discloses the pump flow rate is controlled to
match/equal the first flow rate from the splitter, which is/represents the
output flow rate of the HPLC. Id. at 34–35. Appellant contends the flow
meter disclosed in Witt is utilized to measure the flow rate on the output side
of the flow source 45, which means the flow meter must be able to measure
the flow rate in the second conduit, and as such, cannot control the flow rate
in the second conduit. Id. at 35. Appellant also argues Witt’s metering
device 47 is operated based on pressure variations measured by the pressure
sensor 31 to ensure the sucking rate 21 is equal to the flow rate in second
conduit 37. Id. at 36. Appellant argues the rejection improperly combines
separate parts of Witt in concluding claim 1 would have been obvious. Id. at
28–30.

Issue
Did Appellant demonstrate reversible error in the Examiner’s
determination that Witt renders obvious a method of controlling a first flow
rate of fluid directed to a downstream device by imposing a pump to
continuously conduct away a second flow part of the fluid to the pump at a
second flow rate such that the first flow rate of fluid results in a difference
between the input flow rate and the second flow rate of the pump?

Discussion
We are not persuaded by Appellant’s arguments. Witt discloses a
flow meter with a metering device, where the metering device includes a
volume displacement device such as a pump. Witt ¶¶ 4, 26. Witt discloses
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the metering device can also include a multiplexer, such as a Y junction
valve, which is adapted for branching off a variable percentage of a flow of
the flow source. Id. ¶ 19. In this regard, Witt discloses the Y junction valve
can be adapted for branching off a continuous flow, and may be adapted to
couple a flow source to any other downstream device, such as a mass
spectrograph. Id. ¶ 64. In such cases, Witt discloses the metering device,
which determines the flow rate of the flow source, does not need to receive
the complete flow, but rather, the flow rate of the flow source can be
calculated due to the known percentage of the flow that is branched off. Id.
In other words, Witt appreciates that there would be a difference in
flow rate between the flow rate of the flow source and the flow sucked into
the metering device as a result of the percentage of the flow branched off. In
this regard, Witt discloses in such situations “the metering device can be
designed for a lower sucking rate.” Id. Thus, Witt informs the ordinary
skilled artisan that by controlling the rate of the pump, and as a result, the
recited second flow rate of the second flow part, the first flow rate of the
fluid directed to the downstream device is the difference between the input
flow rate and the second flow rate of the pump as recited in claim 1. See
Ans. 17–18. As such, we are not persuaded by Appellant’s additional
arguments that the Examiner’s rejection fails to take into account that claim
1 is a method claim. See Reply Br. 3–6.
We are also not persuaded by Appellant’s arguments that Witt
discloses a flow switcher not a flow divider (see Appeal Br. 33) such that
Witt does not disclose continuous flow from a splitter into a downstream
device (mass spectrograph). Witt expressly discloses the Y-junction valve
can be adapted for “branching off a continuous flow, a variable percentage
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of a flow of the flow source.” Witt ¶ 64. Although Witt discloses an
example embodiment where quick performance checks can be executed at
points of time where the mass spectrograph is not fed by the flow source
(Witt ¶ 64), we do not view such a disclosure as excluding embodiments
where a percentage of the flow source is branched off in a continuous flow
manner to a mass spectrograph.
As to Appellant’s arguments that the Examiner has improperly
combined two embodiments disclosed in Witt and that Witt requires a
pressure sensor (Appeal Br. 28–30, and 36), in view of our discussion above,
we do not find Appellant’s arguments to be sufficient to demonstrate
reversible error on the part of the Examiner.
As a result, we affirm the Examiner’s rejection of claim 1.

Claim 21
Appellant relies on similar arguments for claim 21 (and claim 22) as
discussed above for claim 1. Compare Appeal Br. 28–36 with Appeal Br.
36–45. We observe that claim 21 recites a method for dividing the flow
provided from a fluid separation device where the flow rate of a first flow
part of the divided flow is controlled by controlling the flow rate of a pump.
Claim 21 recites also that the flow rate of the second flow part is the
difference between the flow rate of the input flow rate and the flow rate of
the pump.
Thus, as discussed above, the arrangement in Witt where a portion of
the flow from the flow source is branched off in a continuous flow and the
flow rate of the flow source is calculated by knowing the percentage of the
flow branched off meets the requirements in claim 21. The flow rate of the
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second flow part (the flow part continuously branched off to the downstream
device) is the difference between the flow rate of the pump (the first flow
rate) and the flow rate of the source. Witt ¶ 64.
As a result, we affirm the Examiner’s rejection of claims 21 and 22.

DECISION SUMMARY
In summary:

Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 6–22 103(a) Witt 1–3, 6–22

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