CEM Corporation

Patent Trials and Appeals Board

Jun 11, 2020

2019001824 (P.T.A.B. Jun. 11, 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.
14/930,754 11/03/2015 Joseph Lambert 1700.246 2117
118935 7590 06/11/2020
Summa PLLC
501 W. John Street
Matthews, NC 28105
EXAMINER
OLAMIT, JUSTIN N
ART UNIT PAPER NUMBER
2853
MAIL DATE DELIVERY MODE
06/11/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH LAMBERT, DAVID DEESE, and
WILLIAM JENNINGS
Appeal 2019-001824
Application 14/930,754
Technology Center 2800
Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
LARRY J. HUME, Administrative Patent Judges.
DIXON, 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 6, 8, and 10–13. Claims 1–5, 7, 9, and
14–23 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
An oral hearing was conducted on May 21, 2020. A transcript of the oral
hearing will be placed into the administrative record in due course.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a) (2018). Appellant identifies the real party in interest as CEM
Corporation. Appeal Br. 3.
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WeAFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to moisture and volatiles analyzer. Claim 6,
reproduced below, is illustrative of the claimed subject matter:
6. A volatile content analysis instrument comprising:
a cavity;
a microwave source positioned to produce and direct
microwaves into said cavity at frequencies other than infrared
frequencies;
a balance with at least a balance pan in the cavity;
an infrared temperature detector positioned to target a
sample on said balance pan;
an infrared source covered with an infrared reflector that
is positioned to produce and direct infrared radiation into said
cavity concurrently with microwaves from said microwave
source at frequencies other than the microwave frequencies
produced by said microwave source and other than the
frequencies measured by said temperature detector;
a lens between said infrared source and said balance pan
for more efficiently directing infrared radiation from said
infrared source and said infrared reflector to a sample on said
balance pan;
a fan for transferring heat to cooling air and said lens
having dimensions that preclude microwave radiation of the
frequencies produced by said microwave source and directed into
said cavity from leaving said cavity through said lens.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
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Name Reference Date
Moslehi US 4,956,538 Sept. 11, 1990
Herold et al. US 6,900,422 B2 May 31, 2005
Revesz et al. US 7,581,876 B2 Sept. 1, 2009

REJECTIONS
Claims 6, 8 and 10–13 stand rejected under 35 U.S.C. § 112(a) as
failing to comply with the written description requirement.2 Final Act. 3.
Claims 6, 8 and 10–13 are rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which the inventor or a joint inventor regards as the invention.3 Final
Act. 4.
Claims 6, 8 and 10–13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Revesz in view of Herold and Moslehi. Final Act. 5.
OPINION
35 U.S.C. § 112(a)
The rejection has been withdrawn by the Examiner. Ans. 3.
Therefore, this rejection of the claims is not before us on appeal.
Moreover, the Examiner’s objection to the Specification and the
amendment to the Specification is a petitionable matter and ultimately

2 The Examiner has withdrawn the written description rejection and the
rejection is not before us for review. Ans. 3. The Examiner also correctly
indicates that the objections to amendments to the Specification are
petitionable matters rather than appealable matters to the PTAB. Ans. 3.
We agree with the Examiner. Cf. Reply Br. 3–4.
3 The Examiner withdrew the indefiniteness rejection regarding the term
“cooling.” Ans. 3.
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an appealable matter, not to the Patent Trial and Appeal Board
(PTAB), because the matter is not an adverse decision of the
Examiner under 35 U.S.C. § 6. See 35 U.S.C. § 6:
The Patent Trial and Appeal Board shall—
(1) on written appeal of an applicant, review adverse
decisions of examiners upon applications for patents
pursuant to section 134(a); (“An applicant for a patent, any
of whose claims has been twice rejected, may appeal from
the decision of the primary examiner to the Patent Trial
and Appeal Board, having once paid the fee for such
appeal.”)
Because the objection to the Specification is not based upon the
claims, the ultimate appeal would NOT be to the PTAB. Therefore,
Appellant’s argument to judicial economy is unavailing.

35 U.S.C. § 112(b)
With respect to claim 6, the Examiner finds that the claim term “more
efficiently” is indefinite. Final Act. 4. Specifically, the Examiner finds:
The term “more efficiently” in claim 6 is a relative term which
renders the claim indefinite. The term “more efficiently directing
infrared radiation” is not defined by the claim, the specification
does not provide a standard for ascertaining the requisite degree,
and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention.
Final Act. 4. The Examiner further finds that the term is a relative term that
is not defined by the claim language, the Specification does not provide a
standard for ascertaining any requisite degree, and one of ordinary skill in
the art would not be reasonably apprised of the scope of the invention based
on the term. Advisory Act. 2.
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Appellant contends that terms of degree are not inherently indefinite
and that the Examiner is requiring unnecessary precision in the claim
language. Appeal Br. 12–14; see also Reply Br 4–5. Appellant further
contends that the Specification in the present case reveals that the claimed
invention is an improved version of the device in the Revesz reference cited
by the Examiner and the claimed invention “directs the radiation to avoid
flooding the cavity.” Appeal Br. 14. Appellant further contends:
Reading Claim 6 in the light of the specification as a whole, then,
one skilled in the art of loss-on-drying technology would
understand that the lens is in the device to direct the infrared
radiation toward the pan more efficiently than flooding the
cavity. Because the written description provides context for the
skilled artisan to understand the term “more efficiently” in Claim
6, there is no basis for rejecting the claims due to indefiniteness.
Id.
“[I]f a claim is amenable to two or more plausible claim constructions,
the USPTO is justified in requiring the applicant to more precisely define the
metes and bounds of the claimed invention by holding the claim . . .
indefinite.” Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008)
(precedential).
We disagree with Appellant and find although the Specification uses
the same claim terminology, the Specification does not give limiting context
to a range of efficiency. Moreover, looking to the prior art that is being
improved, the Revesz’s reference discloses “in some circumstances by
applying infrared radiation to a sample,” but does not refer to flooding the
chamber and does not give limiting context. See Revesz 3:10–11.
Additionally, the Revesz reference broadly discloses that “[t]he basic
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principles of control circuits are well understood in the electrical engineering
arts and will not be described in detail herein.” Revesz 5:9–11. As a result,
the Revesz reference teaches that infrared radiation is been directed to the
sample and there are known controls, but the Specification or the claim does
not guide the skilled artisan as to understand that the lens is in the device to
direct the infrared radiation toward the pan more efficiently than flooding
the cavity.
Rather, it would appear that in the prior art device the “infrared
reflector that is positioned to produce and direct infrared radiation into said
cavity” would perform the step of directing the infrared radiation towards
the pan, and the Specification provides no guidance for skilled artisans to
know the scope of “more efficiently” as it relates to the lens. See generally
Revesz 4:42–44. Consequently, we disagree with Appellant that the
Specification provides context for the skilled artisan to understand the term
“more efficiently,” and Appellant has not shown error in the Examiner’s
finding that the claim terminology does not particularly point out and
distinctly claim the claimed invention.

35 U.S.C. § 103
With respect to the obviousness rejection of claims 6, 8, and 10–13,
Appellant argues the claims together. Appeal Br. 14. As a result, we select
independent claim 6 as the representative claim for the group and will
address Appellant’s arguments thereto. See 37 C.F.R. § 41.37(c)(1)(iv).
With respect to representative claim 6, Appellant generally argues that
Revesz, Herold, and Moslehi alone or in combination do not render the
claimed invention obvious because none of them discloses all the elements
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of the application at issue, and there was no apparent reason to combine the
references in the fashion claimed in the Specification. Appeal Br. 14.
Appellant contends that a skilled person would not be motivated to combine
the Revesz, Herold, and Moslehi references. Appeal Br. 14; Reply Br. 5.
Appellant contends that the claimed invention is “an improved version
of the device disclosed in the Revesz reference.” Appeal Br. 14. Appellant
relies upon the inventor’s declaration to identify that when used properly
secondary infrared radiation can provide additional energy to help release of
volatile’s from small samples. Appeal Br. 15. Appellant argues the
Examiner has thus pieced together prior art in two different fields of
endeavor to show that the elements of the claimed invention are not new.
Appeal Br. 16. Appellant also argues that this analysis fails to provide a
legal basis for the rejection because the Examiner has failed to explain why
one skilled in the art would combine the references and has relied in part on
non-analogous prior art. Appeal Br. 16. Appellant further argues that the
Examiner has offered no such motivation for the combination of the
teachings of Revesz, Herold, and Moslehi. Appeal Br. 17. Appellant
provides further argument regarding the bodily incorporation of each of the
references into the combination rather than what is taught is suggested by
the combination. Appeal Br. 17–18. Finally, Appellant contends that
Moslehi represents non-analogous art. Appeal Br. 18.
“Whether a reference in the prior art is ‘analogous’ is a fact question.”
In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v.
Dennison Mfg. Co., 810 F.2d 1561, 1568 n.9 (Fed. Cir. 1987)). “Two
criteria have evolved for” answering the question: “(1) whether the art is
from the same field of endeavor, regardless of the problem addressed, and
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(2) if the reference is not within the field of the inventor’s endeavor, whether
the reference still is reasonably pertinent to the particular problem with
which the inventor is involved.” Id. at 658–59 (citing In re Deminski, 796
F.2d 436, 442 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, 1036 (CCPA
1979)).
Here, we find that the Examiner has provided a statement of
motivation for the combination. Final Act. 6–8; Ans. 5. We find
Appellant’s argument to be a general disagreement with the Examiner’s
rejection, but the argument does not show error in the Examiner’s line of
reasoning or rational underpinning for the combination. Additionally, the
Examiner finds that Appellant’s argument is directed to a bodily
incorporation of the references rather than what the combined teachings of
the references would have suggested to those of ordinary skill in the art.
Ans. 5.
Moreover, we agree with the Examiner that that the Moslehi reference
is reasonably pertinent to the particular problem which the inventor was
involved. Ans. 6 (“Moslehi's teachings are particularly relevant to the
problem of using an infrared detector and an infrared heat source in the same
system faced by the claimed invention”). The problem involved was
measuring temperature with an infrared sensor while having infrared
radiation in the cavity. We find the Revesz reference teaches and suggests
heating with two different types of radiation (microwave 12 and infrared 14)
and the presence of a “temperature sensor 20” and a “second temperature
sensor 25 that measures characteristics other than infrared radiation to
thereby measure temperature in the presence of infrared radiation from the
lamp.” Revesz 6:28–48. As a result, skilled artisans would have looked to
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the Moslehi reference for details of temperature sensors where microwaves
and infrared radiation are present. Therefore, we agree with the Examiner
that the teachings of the Moslehi reference are reasonably pertinent to the
problem of temperature sensing in a heating device for proper control
thereof.
The Revesz reference generally discloses the presence of openings for
transmission of the microwaves and the infrared waves.
It will be understood that waveguides and other openings in the
cavity 10 must be of a size and shape that, in most circumstances,
precludes microwaves from escaping from the cavity 10. The
relationship of the diameter and length of such waveguides . . . is
well understood in the art,
but the Revesz reference does not specifically disclose the details thereof.
Revesz 6:27–33. We find it was readily apparent to skilled artisans that
some lens or a filter was necessary to prevent the microwaves from leaving
the cavity and damaging the apparatus. Therefore, we agree with the
Examiner that the teachings of the Herold reference is reasonably pertinent
to the problem of controlled heating in a heating device for proper control
and operation thereof. Ans. 5–6. Consequently, we agree that skilled
artisans would have looked to the Herold reference for details of this
function.
With respect to Appellant’s declaration evidence, the declarant states
that “merely adding an infrared source does not solve the problem for certain
types of samples, and in some cases the infrared source can (by heating the
surroundings indiscriminately) exacerbate such problems.” See Appeal
Br. 15. Appellant further argues “the infrared source would create local
heating of the cavity walls, which in turn led to convection air currents
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sufficient to create (depending upon the circumstances) lift, downforce, or
other effects on the balance pan, and did so to an extent that often precluded
accurate and precise weight measurements.” Appeal Br. 15. We note
Appellant’s arguments do not specifically correspond to the statements in
the declaration, and we note that paragraphs 9 and 10 of the declaration are
directed to “small samples” and “depending on the circumstances,” but the
language of independent claim 6 is not so limited.4 Consequently,
Appellant’s arguments are not persuasive of error in the Examiner’s factual
findings or conclusion of obviousness of independent claim 6.
Appellant further argues the Moslehi reference solves a problem of
varying transparency of an item as temperature changes but in contrast
applicant seeks to collimate infrared radiation towards a volatile-containing
sample. Appeal Br. 19. We find Appellant’s argument is incommensurate
in scope with the express language of independent claim 6 because the claim
language does not require “collimate[d] infrared radiation towards a
volatile-containing sample on a sensitive balance and concurrently propagate
microwave frequencies to the same sample, all while an infrared detector
focuses on the sample so that the temperature of the sample ‘can be taken
into consideration as drying proceeds.’” Id. citing Spec. ¶ 52 (emphases
added).
Appellant’s arguments and proffered differentiation of the
combination goes against the express language of independent claim 6
because the claimed invention does not 1) collimate the infrared radiation,
2) the microwaves do not propagate to the sample, but are directed into the

4 Declaration of Joseph L. Lambert, filed Sept. 18, 2017.
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cavity, and 3) the temperature sensor does not “focus” on the sample. As a
result, Appellant’s arguments are not commensurate with the express
language and scope of independent claim 6.
Commercial Success
With respect to independent claim 6, Appellant argues that abundant
evidence of the claimed invention’s commercial success provide strong
objective indicia of obviousness. Appeal Br. 19–20. Appellant argues the
secondary evidence of commercial success of the claimed invention does not
require a nexus with a single element of the claimed invention. Reply Br. 6–
7.
Appellant identifies four documents as secondary sources (identified
in the response dated May 29, 2018 at pages 6–9) evidencing a “long time
need answered by the claimed invention and market praise for it.” Appeal
Br. 19–20 (note Appellant does not provide copies of all the documents, but
merely provides citations, portions of documents, and attorney argument
related thereto). Additionally, Appellant does not identify specifically that
the SMART 6TM device corresponds to the claimed invention, and
Appellant’s declaration by inventor Joseph Lambert also does not identify
that the claimed invention corresponds to the SMART 6TM device.
From our review of Appellant’s arguments, we note that the “Top
New Pittcon Products” in the discussion indicates an industry recognition for
the new product, but does not identify any commercial success of the
device.5 Appeal Br. 19.

5 “In December 2015, CEM began shipping the SMART 6 Moisture/Solids
Analyzer, its sixth generation SMART Moisture Analyzer. Unlike moisture
analyzers of the past, which could only analyze wet products, the SMART 6
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With respect to the argument directed to SMART 6TM peer review in
the SMART 6TM brochure, we note that there are multiple brochures
available on the Internet at a similar Internet address. Consequently, we
evaluate the mere text of the “peer reviews” that indicate consistent and
repeated moisture measurements which are easy to calibrate and easy for
staff to use, but the peer reviews do not indicate any commercial success
rather than acceptance by the users and the precision of the measurements.
With respect to the Code of Federal Regulations (CFR) for moisture
content, we note that the regulations provide no basis for commercial
success or for long felt need. The CFR merely indicates required
measurements having no identified relevance to the specific SMART 6TM
device or claimed invention.
With respect to the “Smart 5TM versus SMART 6TM versus halogen
lamp IR” data in the comparison charts, we note that Appellant correlates
Smart 5TM to the Revesz reference, but the Revesz reference clearly has both
microwave and infrared heating, but the Smart 5TM reference in the
Smart 6TM brochure comparisons identify Smart 5TM as having only
microwave heating rather than the two heating types of microwave and

is able to analyze both wet and dry products accurately and efficiently. The
new product employs CEM’s iPower technology, which utilizes two
frequencies of heating. At a higher frequency, the SMART 6 creates a
consistent heating environment that is able to remove bound moisture or
non-polar solvents. At a lower frequency, it penetrates the sample rapidly to
remove free moisture beyond just the surface. The SMART 6 saves time
and expands the type of samples the system can analyze to areas such as
dairy powders, snack foods and non-polar chemical solvents. The system is
priced at $15,000-$20,000. Two hundred units have been sold since its
introduction.” Top New Pittcon Products brochure 2 (emphasis added).
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infrared wave heating disclosed in the Revesz reference.6 Consequently, the
comparison data does not evidence a long felt or commercial success of the
claimed invention when compared to the Revesz reference.
Although we agree with Appellant that the Examiner’s statements
regarding the nexus of the lens to the commercial success are not necessarily
required, some nexus to the proffered commercial success to the claimed
invention is required, but we find Appellant’s four proffered “items or
citations” from the May 29, 2018 Response do not evidence commercial
success or long felt need of the claimed invention. As a result, a nexus
between the claimed invention and any commercial success or long felt need
has not been shown by a preponderance of the evidence. Appeal Br. 19–21;
Reply Br. 6–7.
Therefore, weighing all the evidence, we find Appellant’s arguments
do not show error in the Examiner’s factual findings or conclusion of
obviousness of representative independent claim 6.
Because Appellant has not separately argued the pendent claims 8 and
10–13, these claims fall with representative independent claim 6. 37 C.F.R.
§ 41.37(c)(1)(iv).
CONCLUSION
We affirm the Examiner’s indefiniteness and obviousness rejections.

6 We evaluate the Smart 6TM brochure based upon the 2018 copyright date
available on the corporate website (rather than the 2019 copyright date
version) which recites both Smart 5TM and Smart 5 TurboTM, but only
identifies microwave heating in the Smart 5 TurboTM or Smart 5TM.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
6, 8, 10–13 112(b) Indefiniteness 6, 8, 10–13
6, 8, 10–13 103 Revesz, Herold,
Moslehi
6, 8, 10–13
Overall
Outcome
6, 8, 10–13
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). See 37
C.F.R. § 41.50(f).
AFFIRMED