Ex Parte Cunningham et alDownload PDFPatent Trial and Appeal BoardAug 30, 201812936564 (P.T.A.B. Aug. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/936,564 10/06/2010 32827 7590 08/30/2018 THE OLLILA LAW GROUP LLC 2569 Park Lane, Suite 202 Lafayette, CO 80026 FIRST NAMED INVENTOR Timothy J Cunningham 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 35010/307US 4627 EXAMINER RIVERA VARGAS,MANUELA ART UNIT PAPER NUMBER 2864 MAIL DATE DELIVERY MODE 08/30/2018 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 TIMOTHY J. CUNNINGHAM and ANDREW TIMOTHY PATTEN Appeal2017-007622 Application 12/936,564 Technology Center 2800 Before TERRY J. OWENS, JEFFREY W. ABRAHAM, and MONTE T. SQUIRE, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1, 2, 4--6, 8, 9, 11-13, and 15, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 In explaining our Decision, we refer to the Specification filed October 6, 2010 ("Spec."); Final Office Action dated July 7, 2016 ("Final Act."); Appeal Brief filed September 28, 2016 ("Appeal Br."); and Examiner's Answer dated February 23, 2017 ("Ans."). 2 Appellants identify Micro Motion, Inc. as the real party in interest. Appeal Br. 5. Appeal2017-007622 Application 12/936,564 The Claimed Invention Appellants' disclosure relates to flow meters, and more particularly, to a method for generating a diagnostic using a deviation in a flow meter parameter. Spec. 1; Abstract. The method comprises measuring a differential pressure across at least a portion of the flow meter; comparing the measured differential pressure to an expected differential pressure; and detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure exceeds a threshold limit. Abstract; see also Spec. 3, 8-9. Claim 1 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (Appeal Br. 31) (key disputed claim language italicized and bolded): 1. A method for detecting a deviation in a flow meter parameter of a Coriolis flow meter, comprising steps of: measuring a differential pressure across at least a portion of the Coriolis flow meter; determining an expected differential pressure based on a known fixed fluid viscosity; measuring a flow rate with the Coriolis flow meter; comparing the measured differential pressure to the expected differential pressure based on the measured flow rate; and detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure falls outside of a threshold limit. 2 Appeal2017-007622 Application 12/936,564 The References The Examiner relies on the following prior art references as evidence in rejecting the claims on appeal: Hayes et al., US 3,952,577 Apr. 27, 1976 (hereinafter "Hayes") Rieder et al., US 2007/0084298 Al Apr. 19, 2007 (hereinafter "Rieder") Steven US 2010/0191481 Al July 29, 2010 The Rejections On appeal, the Examiner maintains (Ans. 3) the following rejections3: 1. Claims 1, 2, 4---6, and 8 rejected under 35 U.S.C. § I03(a) as being unpatentable over Rieder, Hayes, and further in view of Steven ("Rejection 1 "). Final Act. 4. 2. Claims 9, 11-13, and 15 rejected under 35 U.S.C. § I03(a) as being unpatentable over Rieder and further in view of Steven ("Rejection 2"). Final Act. 6. OPINION Having considered the respective positions advanced by the Examiner and Appellants in light of this appeal record, we affirm the Examiner's rejections based on the fact finding and reasoning set forth in the Answer and Final Office Action, which we adopt as our own. We highlight and address specific findings and arguments below for emphasis. 3 The Examiner's rejection of claims 1, 2, 4---6, 8, 9, 11-13, and 15 under 35 U.S.C. § 101 is withdrawn at page 3 of the Answer. 3 Appeal2017-007622 Application 12/936,564 Reiection 1 Appellants argue claims 1, 2, 4---6, 8, 9, 11-13, and 15 as a group and present argument for the patentability of independent claim 1 only. Appeal Br. 18-19. We select claim 1 as representative and the remaining claims subject to this rejection stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). The Examiner determines that the combination of Rieder, Hayes, and Steven suggests a method for detecting a deviation in a flow meter parameter of a Coriolis flow meter satisfying all of the steps of claim 1 and thus, concludes that the combination would have rendered the claim obvious. Final Act. 4--6 (citing Rieder ,r,r 11, 13, 57, 64---66, 72, 78, 92, Fig. 1; Hayes, col. 12, 11. 14--25, 22, Figs. 4, 5; Steven ,r,r 37, 95, 166-173). The Examiner finds that the combination of Rieder and Hayes teaches or suggests the majority of the limitations of claim 1, but that the combination does not teach or suggest the steps of "comparing the measured differential pressure to the expected differential pressure based on the measured flow rate" and "detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure falls outside of a threshold limit." Id. at 4--5 (citing Rieder ,r,r 11, 13, 57, 64---66, 72, 78, 92, Fig. 1; Hayes, col. 12, 11. 14--25, 22, Figs. 4, 5). The Examiner, however, relies on Steven for disclosing these missing limitations. Id. at 5. In particular, the Examiner finds that Steven discloses comparing a measured differential pressure to an expected differential pressure (i.e., "traditional differential pressure" or "L'iP") based on the measured flow rate and detecting a deviation (i.e., "error") in the flow meter 4 Appeal2017-007622 Application 12/936,564 parameter if the difference between the measured differential pressure and the expected differential pressure falls outside of a threshold limit (i.e., "within a predetermined uncertainty"). Id. at 5 (citing Steven ,r,r 37, 95, 166-173). Based on the above findings, the Examiner concludes that It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Rieder's invention to disclose comparing the measured differential pressure to an expected differential pressure based on the measured flow rate, and detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure exceeds a threshold limit as taught by Steven because the measurements would be more precise ... [and] [b ]y measuring the flow rate independently from the pressure differential will have the advantage of correcting the flow rate for temperature and line pressure measurements. Id. at 5---6. Appellants argue that the Examiner's rejection should be reversed because "the final Office action has not shown that every feature of claims 1, 2, 4--6, 8, 9, 11-13, and 15 is described, suggested, or rendered obvious by Rieder in view of Hayes in further view of Steven." Appeal Br. 18. In particular, Appellants argue that the proposed combination of Rieder, Hayes, and Steven does not teach or suggest the steps of "measuring a flow rate with a Coriolis flow meter" and "detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure falls outside of a threshold limit," as required by the claims. Id. at 20. Appellants contend that, in contrast to the claimed method, "Rieder specifically teaches that a measured flow rate is 5 Appeal2017-007622 Application 12/936,564 corrected using a measured density" rather than a measured differential pressure. Id. at 20. Appellants further argue that (1) Rieder fails to disclose the "comparing measured differential pressure" and "detecting a deviation in the flow meter" steps of claim 1 (Appeal Br. 21 ); (2) neither the Steven reference nor the Hayes reference teach or suggest "measuring a flow rate with the Coriolis flow meter" and "comparing the measured differential pressure to the expected differential pressure based on the measured flow rate," as recited in the claim (id. at 21-22); and (3) Rieder teaches against the steps of claim 1, including the step of measuring a flow rate with a Coriolis flow meter (id. at 23). Appellants also argue that the Examiner does not adequately explain why the proposed combination would have rendered the claim obvious. Id. at 23. In particular, Appellants contend that the Examiner's conclusion that the claimed invention "would have been obvious ... because the measurements would have been more precise" is a "conclusory statement" and insufficient to establish a prima facie case of obviousness. Id. at 24. We do not find Appellants' arguments persuasive of reversible error in the Examiner's rejection. On the record before us, we find that a preponderance of the evidence and sound technical reasoning support the Examiner's analysis and determination that the combination of Rieder, Hayes, and Steven suggests a method satisfying all of the steps of claim 1, including "measuring a flow rate with a Coriolis flow meter" and "detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure falls outside of a threshold limit," and the Examiner's conclusion that the 6 Appeal2017-007622 Application 12/936,564 combination would have rendered the claimed method obvious. Rieder ,r,r 11, 13, 57, 64---66, 72, 78, 92, Fig. 1; Hayes, col. 12, 11. 14--25, 22, Figs. 4, 5; Steven ,r,r 37, 95, 166-173. As the Examiner finds (Final Act. 4) and contrary to what Appellants argue, Rieder does disclose measuring a flow rate with the Coriolis flow meter as well as measuring a differential pressure across at least a portion of the Coriolis flow meter. Rieder ,r,r 11, 13, 64---66, 72, 78, 92, Fig. 1. As the Examiner further finds (Final Act. 5, Ans. 5), Steven discloses comparing a measured differential pressure to an expected differential pressure based on the measured flow rate and detecting a deviation in the flow meter parameter if the difference between the measured differential pressure and the expected differential pressure falls outside of a threshold limit. Steven ,r,r 37, 95, 166-173. Appellants' arguments in this regard are largely conclusory and, without more, do not reveal reversible error in the Examiner's analysis and factual findings. Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Appellants' contention that Rieder teaches a measured flow rate corrected using a measured density (Appeal Br. 20) is not persuasive of reversible error because Rieder's disclosure is not limited to that specific embodiment. In re Mills, 470 F.2d 649, 651 (CCPA 1972) ("[A] reference is not limited to the disclosure of specific working examples."). Rather, as the Examiner finds (Ans. 4---6), Rieder also teaches that a measured flow rate may be corrected using a measured differential pressure. Rieder ,r 72 ( disclosing embodiment wherein "the measurement system determines, based on the pressures p 1, P2 registered by means of the pressure-difference 7 Appeal2017-007622 Application 12/936,564 measuring device, repeatedly, a pressure difference Lip, which exists, at least in part, along the at least one measuring tube"); see also id. ( disclosing a "particular flow parameter to be measured" based upon "mass flow rate m, volume flow rate v or average flow velocity u, and a pressure difference measured by means of the two pressures p 1, p2"). The Examiner also provides a reasonable basis and identifies a preponderance of the evidence in the record to evince why one of ordinary skill would have combined the teachings of the cited references to arrive at Appellants' claimed invention. Final Act. 5-6 ( explaining that it would have been obvious to one of ordinary skill in the art to modify Rieder's method for measuring a flow parameter based on Hayes' and Steven's teachings because the mathematical relationship between differential pressure, mass flow rate, and fluid viscosity are known and the measurements would be more precise); Ans. 7 ( explaining that the "use of known technique to improve similar devices (i.e. flow measurements) in the same way and applying a known technique to a known device (i.e. Coriolis flow meters) .. . for improvement to yield predictable results" would have been obvious). See also KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). Appellants fail to direct us to sufficient evidence or provide an adequate technical explanation to establish why the Examiner's articulated reasoning for combining the teachings of the prior art to arrive at the claimed invention lacks a rational underpinning or is otherwise based on some other reversible error. 8 Appeal2017-007622 Application 12/936,564 Appellants' contentions that the Examiner "fails to explain why the proposed combination" renders the claimed method obvious (Appeal Br. 23) and the Examiner's reason for combining the references is a "conclusory statement" (id. at 24) is not persuasive of reversible error because Appellants' arguments in this regard are themselves conclusory. De Blauwe, 736 F.2d at 705. Moreover, Appellants' disagreement with the Examiner's factual findings and reasoning for combining the references, without more, is insufficient to establish reversible error. KSR, 550 U.S. at 420 (explaining that any need or problem known in the art can provide a reason for combining the elements in the manner claimed); cf SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) ("[M]ere statements of disagreement ... as to the existence of factual disputes do not amount to a developed argument."). Appellants' contentions at pages 21-22 of the Appeal Brief regarding what specific limitations each of the cited references fails to disclose are not persuasive because, as the Examiner explains (Ans. 6-8), they are premised on what Appellants contends each reference teaches individually, and not the combined teachings of the cited references as a whole and what the combined teachings would have suggested to one of ordinary skill in the art. One cannot show non-obviousness by attacking references individually where the rejection is based on a combination of references. See In re Keller, 642 F.2d 413,425 (CCPA1981). We do not find Appellants' argument that Rieder "teaches against" the measuring a flow rate with a Coriolis flow meter and comparing a measured differential pressure to the expected differential pressure steps of claim 1 9 Appeal2017-007622 Application 12/936,564 (Appeal Br. 23) persuasive because Appellants do not identify sufficient evidence to support it and we will not read into the references a teaching away where no such language exists. Cf DyStar Textilfarben GmbH v. CH Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006). Appellants do not direct us to any teaching in Rieder which discourages one of ordinary skill in the art from measuring a flow rate with a Coriolis flow meter or comparing a measured differential pressure to the expected differential pressure. In re Fulton, 391 F.3d 1195, 1201 (finding that there is no teaching away where the prior art's disclosure "does not criticize, discredit, or otherwise discourage the solution claimed"). Rather, as the Examiner finds (Ans. 6; Final Act. 4), Rieder explicitly discloses measuring a flow rate with a Coriolis flow meter (Rieder ,r,r 65---66) and is merely silent regarding comparing a measured differential pressure to the expected differential pressure. Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 964 (Fed. Cir. 2014) (explaining that "silence does not imply teaching away"). Accordingly, we affirm the Examiner's rejection of claims 1, 2, 4---6, and 8 under 35 U.S.C. § 103(a) as obvious over the combination of Rieder, Hayes, and Steven. Reiection 2 Appellants argue claims 9, 11-13, and 15 as a group and present argument for the patentability of independent claim 9 only. Appeal Br. 24-- 25. We select claim 9 as representative and the remaining claims subject to this rejection stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). Claim 9 is directed to a "method for detecting a deviation in a flow meter parameter of a Coriolis flow meter indicative of a coating inside the 10 Appeal2017-007622 Application 12/936,564 flow meter" and recites limitations similar to claim 1. Compare Appeal Br. 32 (claim 9), with Appeal Br. 31 (claim 1). The Examiner determines that the combination of Rieder and Steven suggests a method satisfying all of the steps of claim 9 and thus, concludes that the combination would have rendered the claim obvious. Final Act. 6-8 (citing Rieder ,r,r 11, 13, 57, 64---66, 72, 78, 92, Fig. 1; Steven ,r,r 37, 95, 166-173). In response to the Examiner's rejection of claim 9, Appellants repeat and rely on principally the same arguments previously presented above in response to the Examiner's rejection of independent claim 1 (Rejection 1, stated above). Compare Appeal Br. 25-29, with Appeal Br. 19-24. Accordingly, based on the findings and technical reasoning provided by the Examiner and for principally the same reasons discussed above for affirming the Examiner's Rejection 1, we affirm the Examiner's Rejection 2. DECISION/ORDER The Examiner's rejections of claims 1, 2, 4--6, 8, 9, 11-13, and 15 are affirmed. It is ordered that the Examiner's decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 11 Copy with citationCopy as parenthetical citation