Ex Parte BrooksDownload PDFPatent Trial and Appeal BoardFeb 25, 201311160998 (P.T.A.B. Feb. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES E. BROOKS ____________ Appeal 2011-000185 Application 11/160,998 Technology Center 3600 ____________ Before GAY ANN SPAHN, HYUN J. JUNG and ADAM V. FLOYD, Administrative Patent Judges. FLOYD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-7. Claim 8-15 have been withdrawn from consideration. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-000185 Application 11/160,998 2 CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim on appeal, and it recites: 1. A system for determining a depth of a cavity in a wellbore, comprising: an acoustic source disposed adjacent to the cavity, the acoustic source being able to emit an acoustic signal at a selected frequency and a predetermined intensity wherein the acoustic source is able to vary the frequency; and a receiver disposed adjacent to the cavity and on an opposite side of the cavity from the acoustic source, the receiver being positioned to detect a severe attenuation in the intensity of the acoustic signal received as the frequency is varied. REJECTIONS Claims 1-7 are rejected under 35 U.S.C. § 102(b) as anticipated by Katahara (US 5,218,573, issued Jun. 8, 1993). ANALYSIS Appellant argues claims 1-7 as a group and we select independent claim 1 as the representative claim. See App. Br. 3-5; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 2-7 stand or fall with claim 1. The Appellant argues that Katahara “does not disclose a system having an acoustic source able to vary the frequency combined with a receiver detecting the signal as the frequency is varied” as required by claim 1. App. Br. 3; see also Reply Br. 3-4. The Examiner finds that “Katahara discloses an acoustic source 40 disposed adjacent to the cavity, the acoustic source being able to emit an acoustic signal at a selected frequency and Appeal 2011-000185 Application 11/160,998 3 predetermined intensity, wherein the acoustic source is able to vary the frequency,” and “a receive[r] 42 disposed adjacent to the cavity and on an opposite side of the cavity from the acoustic source, the receiver being positioned to detect a severe attenuation in the intensity of the acoustic signal received as the frequency is varied. Ans. 4 (citing Katahara, col. 2, l. 50 to col. 3, l. 65 and col. 4, l. 22 to col. 6, l. 48). In particular, the Examiner finds that “Katahara teaches a source that is operable to generate acoustic signals of a broad frequency band by sweeping or spike-pulsing.” Ans. 7 (citing Katahara, col. 3, ll. 1-14). Upon reviewing the relevant portions of Katahara, we agree with the Examiner. Katahara discloses that the acoustic source is able to vary the frequency and that the receiver is able to detect a severe attenuation in the acoustic signal as the frequency is varied by stating that: the signal transmitter 40 is operable to generate acoustic signals of a relatively broad frequency band for a limited time by, for instance, sweeping or spike-pulsing-type signal generation. Moreover, the signal receiver 42 is adapted to receive acoustic signals reflected from the wellbore and in particular, the perforations 20, 22 or 24. Katahara, col. 3, ll. 7-13. Other passages in Katahara support that the transmitter operates at various frequencies and the receiver receives the signals over those frequencies by stating that: “acoustic energy is generated at a selected frequency range by the transmitter 40 while the receiver 42 is operable to receive,” “acoustic signals [are transmitted] over a broad bandwidth,” and an “acoustic signal transmitter and receiver [is] arranged . . . to provide for the emission of a broad-band acoustic signal.” See Katahara, col. 3, ll. 17-18, Abstr., and col. 1, ll. 46-49, respectively). Appeal 2011-000185 Application 11/160,998 4 These passages also support that the receiver in Katahara satisfies the claim language of being “positioned to detect a severe attenuation in the intensity of the acoustic signal received” as the frequency is varied. App. Br., Clms. App’x. Emphasis added. For example, Katahara’s Figure 3 illustrates signal intensity or power as a function of frequency. See also Katahara, col. 2, ll. 17-21. Thus, the Examiner correctly points out that as the variance in power/intensity of the acoustic signal received is detected so too is the “attenuation in the intensity of the acoustic signal received” detected in accordance with claim 1’s language. Ans. 7-8. The Appellant does not specifically identify any error in the Examiner’s finding that receivers in Katahara detect variations in signal intensity as the frequency is varied, but instead argues that the “reference does not describe such a receiver but rather an approach to calculating power as a function of frequency based on frequency peaks.” Reply Br. 4-5. The Appellant appears to take exception with how Katahara is utilizing the data collected; however, claim 1 only requires that the generator (i.e., acoustic source) be able to emit acoustic signals at various frequencies and that the receiver be positioned to detect the attenuation in acoustic signals received at the various frequencies.1 1 The Examiner found that the claim limitations in questions were statements of intended use. Ans. 6. As such, Katahara only need be capable of performing the recited intended use. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (citations omitted) (“It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.”). Appeal 2011-000185 Application 11/160,998 5 Accordingly, we sustain the Examiner’s rejection of independent claim 1, and claims 2-7 which stand or fall therewith, under 35 U.S.C. § 102(b) as anticipated by Katahara. DECISION We AFFIRM the rejection of claims 1-7 under 35 U.S.C. § 102(b) as anticipated by Katahara. 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 Klh Copy with citationCopy as parenthetical citation