Ex parte Clark

Board of Patent Appeals and Interferences

Jan 22, 1999

08147090 (B.P.A.I. Jan. 22, 1999)

Application for patent filed November 3, 1993. 1
According to appellant, this application is a continuation of
Application 07/829,959, filed February 3, 1992, now abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 33
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte R. PAUL CLARK
__________
Appeal No. 96-2058
Application 08/147,0901
__________
ON BRIEF
__________
Before GARRIS, ELLIS, and WALTZ, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 96-2058
Application No. 08/147,090
2
This is a decision on an appeal from the final rejection
of claims 1, 2 and 4 through 31 which are all of the claims
remaining in the application.
The subject matter on appeal relates to a method for
removing hydrocarbon contaminants from ground water and/or
wastewater comprising the steps of subjecting the surface area
of the groundwater and/or wastewater to at least a partial
vacuum, introducing a purge gas so that the gas will form a
large volume of small bubbles serving to remove the
hydrocarbon contaminants from the groundwater and/or
wastewater as they travel upward to the surface area of the
groundwater and/or wastewater, and removing the contaminated
gases from the surface area of the groundwater and/or
wastewater. This appealed subject matter is adequately
illustrated by representative independent claim 1 which reads
as follows:
1. A method for removing hydrocarbon contaminants from
ground water and/or wastewater comprising the steps of:
subjecting the surface area of said groundwater and/or
wastewater to at least a partial vacuum;
providing in said groundwater and/or wastewater a
plurality of conduits, each of said conduits having a distal
end and a proximal end, wherein the distal ends are submerged
Appeal No. 96-2058
Application No. 08/147,090
3
therein and the proximal ends are located above said
groundwater and/or wastewater;
introducing a purging gas under at least atmospheric
pressure into the proximal ends of said conduits, each of said
conduits having a small diameter chosen so that said gas will
form a large volume of small bubbles as it flows from the
distal ends thereof, said bubbles serving to remove said
hydrocarbon contaminants from said groundwater and/or
wastewater as they travel upward to the surface area of said
groundwater and/or wastewater; and
removing the contaminated gases from the surface area of
said groundwater and/or wastewater.
The references relied upon by the examiner in the
rejections
before us are:
Ely et al. 4,765,902 Aug. 23, 1988
(Ely)
Gorelick et al. 5,180,503 Jan. 19, 1993
(Gorelick)
Claims 28 through 30 stand rejected under 35 U.S.C. §
102(e) as being anticipated by Gorelick.
The remaining claims on appeal stand variously rejected
under 35 U.S.C. § 103 as being unpatentable over Gorelick or
Gorelick in view of Ely.
As a preliminary matter, we observe that the claims on
appeal will stand or fall together; see page 5 of the brief
and 37 CFR § 1.192(c)(7)(1995).
Appeal No. 96-2058
Application No. 08/147,090
4
We refer to the brief and to the answer for a complete
exposition of the opposing viewpoints expressed by the
appellant and the examiner concerning the above noted
rejections.
OPINION
For the reasons set forth in the answer and below, we
will sustain each of the rejections before us on this appeal.
As background, an affidavit under 37 CFR § 1.131 was
filed by the appellant in an attempt to antedate the Gorelick
patent. However, the examiner considers this affidavit to be
ineffective on the grounds that the appellant and Gorelick are
claiming the same invention. On this appeal, it is the
appellant's fundamental position that his claimed method and
patentees' claimed method are not the same allegedly because
the "at least a partial vacuum" feature of the appealed claims
is not practiced in the method defined by the patent claims.
In rebuttal, the examiner contends that the vapor venting
feature embraced by Gorelick's method claims would inherently
produce at least a partial vacuum on the surface area of the
water undergoing treatment as required by the appellant's
claims.
Appeal No. 96-2058
Application No. 08/147,090
5
This venting feature is provided by a ventilator shown as
element 36 in, for example, Figure 1 and described in lines 29
through 32 in column 5 of the Gorelick patent. According to
the appellant, "[b]y common definition of a ventilator, as is
well known to the person of ordinary skill in the art, a
ventilator does not provide a vacuum" (brief, page 8). On the
record of this appeal, no evidentiary support has been
proffered by the appellant for this proposition.
Nevertheless, our independent research reveals that a
"ventilator" is defined as "[a] device used with an adjustable
aperture for regulating the flow of fresh or stagnant air" or
"[a] mechanical apparatus for producing a current of air, as a
blowing or exhaust fan" (Technical Terms, second edition, page
1712, McGraw-Hill Book Company, 1978; copy attached). From
our perspective, the examiner's aforementioned inherency
position would be well founded if, in fact, the ventilator of
Gorelick constitutes "[a] mechanical apparatus for producing a
current of air, as a blowing or exhaust fan".
Based on our study of the Gorelick patent disclosure, we
find that patentees' ventilator is in fact a "mechanical
apparatus" of the above discussed type. This finding is
Appeal No. 96-2058
Application No. 08/147,090
6
supported by the overall patent disclosure but most
particularly by lines 57 through 60 in column 13 wherein
Gorelick teaches that the vapors can be removed at the top of
the well (i.e., vented) "through forced air ventilation"
(emphasis added). Also see previously noted lines 31 and 32
in column 5 wherein the ventilator function is described as
"vapor extraction" (emphasis added) as well as patent claim 7
which recites "means connected across said vapor extraction
line for drawing VOC vapor from the top of the well"
In light of the foregoing, it is our determination that
the venting feature of patentees' method (e.g., see method
claim 21), when interpreted as it must be in light of
patentees' specification, embraces a ventilator in the form of
"[a] mechanical apparatus for producing a current of air, as a
blowing or exhaust fan". Further, we are convinced that such
a mechanical apparatus would necessarily and inherently create
at least a partial vacuum upstream thereof, namely, at the
surface area of the water being treated as required by the
claims on appeal.
In summary, for the reasons set forth in the answer and
above, the here claimed method fails to distinguish over the
Appeal No. 96-2058
Application No. 08/147,090
7
method claimed by Gorelick in the manner argued by the
appellant on this appeal. It follows that we will sustain
each of the examiner's above noted rejections.
The decision of the examiner is affirmed.
Appeal No. 96-2058
Application No. 08/147,090
8
No time period for taking any subsequent action in
connection with this appeal may be extended under
37 CFR § 1.136(a).
AFFIRMED
Bradley R. Garris )
Administrative Patent Judge )
)
)
)
Joan Ellis ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Thomas A. Waltz )
Administrative Patent Judge )
tdc
Appeal No. 96-2058
Application No. 08/147,090
9
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