Ex Parte Ascheman

Board of Patent Appeals and Interferences

Sep 14, 2009

11453321 (B.P.A.I. Sep. 14, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TIMOTHY A. ASCHEMAN
____________

Appeal 2009-003805
Application 11/453,321
Technology Center 2800
____________

Decided: September 14, 2009
____________

Before BRADLEY R. GARRIS, CHUNG K. PAK, and
TERRY J. OWENS, Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1 through 9, the only claims pending in the
application (the Final Office Action mailed March 6, 2008). We have
jurisdiction under 35 U.S.C. § 6(b).
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We REVERSE.
STATEMENT OF THE CASE
The subject matter on appeal is directed to:
[A]n instrument for accurately measuring mass flow rate of a
fluid pumped from a hermetically sealed container, through
attainment of a steady state mass flow rate [for purposes of
detecting any leaks through the container]. The instrument
includes a connection device for sealingly engaging a
hermetically sealed container, a vacuum pump, a mass flow rate
sensor and a check valve. [(See Spec. 1, para. 0006 and claim
1.)]

According to Appellant (Spec. 4, para. 0011):
The invention disclosed herein is based upon the discovery that
backflow, and the negative spikes in sensed mass flow rates
caused by such backflow, can be controlled by deploying a
check valve between the mass flow rate and sensor and the
pump.

Details of the appealed subject matter are recited in independent claim 1
reproduced from the Claims Appendix to the Appeal Brief (“App. Br.”),
filed July 8, 2008:
1. An instrument for accurately measuring mass flow rate of a
fluid pumped from a hermetically sealed container, through
attainment of a steady state mass flow rate for purposes of detecting
any leaks through the container, comprising:

(a) a connection device defining a lumen, the connection
device configured and arranged to sealingly engaging a
hermetically sealed container so as to place the lumen defined
by the connection device in fluid communication with a
retention chamber defined by such a container,

(b) a vacuum pump in sealed fluid communication with the
lumen defined by the connection device effective for
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continuously pumping gaseous content from a hermetically
sealed container through the lumen until a steady state mass
flow rate is attained,

(c) a mass flow rate sensor in sealed fluid communication
with the lumen defined by the connection device for sensing
mass flow rates pulled through the lumen until at least a steady
state mass flow rate is attained, and

(d) a check valve in sealed fluid communication with the
lumen defined by the connection device and positioned
intermediate the vacuum pump and the mass flow rate sensor
for inhibiting the sensing of negative flow spikes by the mass
flow rate sensor.

The Examiner relies on the following evidence to establish
unpatentability of the claims on appeal (Examiner’s Answers (“Ans.”),
mailed August 1, 2008, 2):
Bennett US 3,952,580 Apr. 27, 1976
Gurich US 5,203,822 Apr. 20, 1993
Mayer US 2007/0266773 A1 Nov. 22, 2007
(Filed August 3, 2006)

Appellant requests review of the following Examiner’s rejections
(App. Br. 3):
1. Claims 1, 3, 4, 6, 7, and 9 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Mayer and Bennett; and
2. Claims 2, 5, and 8 under 35 U.S.C. § 103(a) as unpatentable
over the combined disclosures of Mayer, Bennett, and Gurich.
In rejecting the claims on appeal under 35 U.S.C. § 103, the Examiner
relies on Mayer to show an instrument for detecting leaks in a hermetically
sealed package comprising a connection device defining a lumen sealingly
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engaging the hermetically sealed package, a vacuum pump in sealed fluid
communication with the lumen for continuously pumping the gaseous
content from the hermetically sealed package through the lumen until a
steady state mass flow rate is attained, and a mass flow rate sensor located
upstream of the vacuum pump in sealed fluid communication with the lumen
for sensing mass flow rates pulled through the lumen until at least steady
state mass flow rate is attained (Ans. 3). The Examiner admits that Mayer
does not teach employing a check valve in sealed fluid communication with
the lumen and positioned intermediate the vacuum pump and the mass flow
rate sensor (Ans. 4).
To remedy the above deficiency in Mayer, the Examiner relies on
Bennett (id.). According to the Examiner (Ans. 4):
Bennett teaches the use of a check valve 31 [sic., a check valve
41] in sealed fluid communication with the lumen 23 defined
by the connection device and positioned intermediate the
vacuum pump 44 and the mass flow rate sensor 11 (Figures 1;
Column 3, lines 29-56).

The Examiner then goes on to conclude (e.g., Ans. 4, 6, and 7) (emphasis
added) that:
Therefore, it would have been obvious to one of ordinary skill
in the art at the time the invention was made to add a check
valve to the invention of Mayer, as taught by Bennett for the
desired purposed [sic., purpose] of inhibiting the sensing of
negative flow spikes by the mass flow rate sensor. The
motivation for doing so is found in the teachings of Bennett, the
check valve “prevents backflow toward the sensor” (Column 3,
lines 52-53).

The Examiner also relies on Gurich to show the microprocessor
recited in dependent claims 2, 5, and 8 only (Ans. 5).
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Appellant traverses the Examiner’s § 103 rejections, Appellants
contend that the combination of Mayer and Bennett as suggested by the
Examiner would not have led one of ordinary skill in the art to the
instrument recited in independent claim 1(App. Br. 8-10 and Reply Brief
(“Reply Br.”), filed October 1, 2008, 1-2).
ISSUE AND CONCLUSION
Have Appellants identified reversible error in the Examiner’s
determination that the collective teachings of Mayer and Bennett would have
led one of ordinary skill in the art to the claimed subject matter recited in
claim 1 within the meaning of 35 U.S.C. § 103(a)?
On this record, we answer this question in the affirmative.
FINDINGS OF FACT (“FF”)
1. The Examiner finds, and Appellants do not dispute, that
Mayer discloses an instrument for accurately
measuring mass flow rate of a fluid pumped from a
hermetically sealed container, through attainment
of a steady state mass flow rate for purposes of
detecting any leaks through the container,
comprising:
- A connection device defining a lumen 29, the
connection device configured and arranged to
sealingly engaging a hermetically sealed
container 100 so as to place the lumen 29 defined
by the connection device in fluid communication
with a retention chamber defined by such a
container 100 (Figure 2; [0007-10]; [0016]);
- A vacuum pump 60 in sealed fluid
communication with the lumen 29 defined by the
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connection device effective for continuously
pumping gaseous content 102 from a hermetically
sealed container 100 through the lumen 29 until a
steady state mass flow rate is attained (Figure 1;
[0039]);
- A mass flow rate sensor 70 in sealed fluid
communication with the lumen 29 defined by the
connection device for sensing mass flow rates
pulled through the lumen 29 until at least a steady
state mass flow rate is attained (Figure 1;
[0039])[.] [(Compare Ans. 3 with App. Br. 8-9
and Reply Br. 1-2.)]
2. The Examiner does not indicate that any gas backflow, much
less a gas back flow sufficient to negatively affect a mass flow rate sensor, is
present in Mayer’s leak detecting instrument (Ans. 3-9).
3. The Examiner admits at page 4 of the Answer that “Mayer fails
to disclose a check valve in sealed fluid communication with the lumen
defined by the connection device and positioned intermediate the vacuum
pump and the mass flow rate sensor” (Ans. 4).
4. Bennett teaches an apparatus for counting particle
contamination in a liquid, wherein a cylinder having a piston delivers the
liquid under a pressure through lines 23 and 37 into a sensor 11 which
“analyze[s] the liquid passing therethrough and thereby count the particles of
contamination” (col. 3, ll. 45-46 and Fig. 1).
5. Bennett teaches that liquid from the sensor 11 flows through a
line 38 where a check valve 41 and pressure gauge 42 are employed prior to
a pump 44 (col. 3, ll. 53-60 and Fig. 1).
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6. Bennett teaches employing a check valve 41 for preventing a
liquid backflow toward the sensor 11 (col. 3, ll. 53-54).
7. The Examiner relies on Gurich to show the microprocessor
recited in dependent claims 2, 5, and 8 only (Ans. 5).
PRINCIPLES OF LAW
Under 35 U.S.C. § 103(a), “a patent composed of several elements is
not proved obvious merely by demonstrating that each of its elements was,
independently, known in the prior art.” KSR Int'l Co. v. Teleflex, Inc., 550
U.S. 398, 418-19 (2007). The Examiner needs to identify a reason that
would have prompted one of ordinary skill in the art to combine the
elements to arrive at the claimed subject matter. Id. "[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness." KSR at 417-
18, quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
The Examiner has the initial burden of establishing a prima facie case
obviousness under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability.”).
ANALYSIS
As correctly identified by Appellant at pages 8 and 9 of the Appeal
Brief, the Examiner has not demonstrated that the collective teachings of
Mayer and Bennett would have led one of ordinary skill in the art to employ
Bennett’s check valve intermediate the vacuum pump and the mass flow rate
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sensor of the gas leak detecting instrument taught by Mayer. Specifically,
the Examiner has not shown that Mayer’s gas leak detecting instrument
suffers from any gas back flow problem which would have warranted the
employment of Bennett’s check valve. The fact that Bennett’s particular
liquid contamination measurement system suffers from a liquid backflow
problem does not indicate that such backflow problem also exists in Mayer’s
gas leak detecting instrument. Indeed, on this record, the Examiner has
made no finding regarding the presence of any gas backflow, much less a
gas back flow sufficient to negatively affect a mass flow rate sensor, in
Mayer’s leak detecting instrument. Absent any such recognition, one of
ordinary skill in the art would not have had any reason to employ Bennett’s
check valve for preventing a backflow intermediate the vacuum pump and
the mass flow rate sensor of the gas leak detecting instrument taught by
Mayer.
Accordingly, we concur with Appellant that the Examiner has not
established a prima facie case of obviousness regarding the claims on appeal
within the meaning of 35 U.S.C. § 103(a).
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Application 11/453,321

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CONCLUSION
Appellant has identified reversible error in the Examiner’s
obviousness determination. Accordingly, the decision of the Examiner
rejecting the claims on appeal is reversed.

REVERSED

kmm

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