Ex Parte Day et al

Patent Trial and Appeal Board

Sep 13, 2017

12920077 (P.T.A.B. Sep. 13, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/920,077 10/06/2010 Donald Day 1787-19109 1296
23505 7590
CONLEY ROSE, P.C.
575 N. Dairy Ashford Road
Suite 1102
HOUSTON, TX 77079
09/15/2017 EXAMINER
RIVERA VARGAS, MANUEL A
ART UNIT PAPER NUMBER
2864
NOTIFICATION DATE DELIVERY MODE
09/15/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pathou @conleyrose.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD DAY and LAUSEN SCOTT TANNER
Appeal 2017-000984
Application 12/920,077
Technology Center 2800
Before CATHERINE Q. TIMM, KAREN M. HASTINGS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3, 4, 7—9, 13, 15, 17, 19, and 20. We have jurisdiction under
35 U.S.C. §6.
We AFFIRM.
Appeal 2017-000984
Application 12/920,077
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
1. A flow meter prover for proving ultrasonic flow
meters, comprising:
a conduit having a proving section;
a displacer disposed in the conduit and displaceable
through the proving section between a first position and second
position;
a first pair of detectors disposed in the proving section
between the first and second positions defining a first calibrated
volume; and
a second pair of detectors disposed in the proving section
between the first and second positions defining a second
calibrated volume;
wherein the first and second pairs of detectors are
operable to communicate to a processor the first and second
calibrated volumes with each pass of the displacer between the
first and second positions;
wherein the processor is configured to build a first
sample population of the first calibrated volume in response to
passing the displacer between the first pair of detectors multiple
times to acquire multiple samples of the first calibrated volume
and a second sample population of the second calibrated
volume in response to passing the displacer between the second
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Application 12/920,077
pair of detectors multiple times to acquire multiple samples of
the second calibrated volume;
wherein the first sample population comprises a plurality
of sampled first calibrated volumes;
wherein the second sample population comprises a
plurality of sampled second calibrated volumes;
wherein the processor is configured to calculate a first
meter factor based only on the first sample population and a
second meter factor based only on the second sample
population;
wherein the processor is configured to calculate a
combined meter factor based on the first and second meter
factors to calibrate the ultrasonic flow meter.
Appellants1 (App. Br. 13) request review of the Examiner’s rejection
of claims 1, 3, 4, 7—9, 13, 15, 17, 19, and 20 rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kyuji (JP 57-70122, published April 27, 1982,
and relying on an English translation attached to the reference provided by
Appellants on August 27, 2010), Ogawa (US 5,317,895, issued June 7,
1994) and the Applicant Admitted Prior Art2 (AAPA).3 App. Br. 13; Final
Act. 2. Appellants argue independent claims 1, 8, and 15 together and do
1 The real party in interest is identified as Daniel Measurement and Control,
Inc., which is a Texas corporation. App. Br. 3.
2 The Examiner identified the Applicant Admitted Prior Art (AAPA) as
element 52 of Figure 3 of the Specification. Final Act. 5.
3 The rejection statement from the Final Action has been modified to reflect
the cancellation of claims 11, 12, and 18. App. Br. 5. The rejection
statement has also been modified to include claim 17, erroneously omitted
by the Examiner. Final Act. 11—12. We consider this omission a harmless
error given that Appellants acknowledge claim 17 as rejected. App. Br. 5.
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Application 12/920,077
not present separate arguments for dependent claims 3, 4, 7, 9, 13, 17, 19,
and 20. See generally Appeal Brief. Accordingly, we select claim 1 as
representative of the subject matter before us on appeal. Claims 3, 4, 7—9,
13, 15, 17, 19, and 20 stand or fall with claim 1.
OPINION
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner’s rejection of claims 1, 3, 4, 7—9,
13, 15, 17, 19, and 20 for the reasons presented by the Examiner. We add
the following for emphasis.
Independent claim 1 is directed to a flow meter prover for proving an
ultrasonic flow meter.
We refer to the Examiner’s Final Action for a complete statement of
the rejection. Final Act. 2—5. Briefly, the Examiner finds Kyuji discloses a
flow meter prover that differs from the claimed invention in that Kyuji does
not disclose a processor configured to perform the claimed functions of (1)
building sample populations of first and second calibrated volumes in
response to passing a displacer between the two pairs of detectors multiple
times to acquire multiple samples of the respective first and second
calibrated volumes, (2) calculate a first meter factor based on only the first
sample population and a second meter factor based only on the second
sample population and (3) calculate a combined meter factor based on the
first and second meter factors to calibrate the ultrasonic flow meter. Final
Act. 3, 5; Kyuji 3, 7 (Figure 1). The Examiner finds Ogawa teaches a
processor configured to build sample populations of first and second
calibrated volumes and calculate first and second meter factors based on
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Application 12/920,077
these sample populations to prove a flowmeter. Final Act. 3—\\ Ogawa col.
6,11. 1—2, 26-43, 60-61, col. 7,11. 8—12. The Examiner determines it would
have been obvious to one of ordinary skill in the art to modify Kyuji’s
proving device by using a processor as taught by Ogawa to measure the
calibrated volumes of Kyuji because this will insure a greater precision of
measurements through the use of statistical techniques. Final Act. 4. We
note that the Examiner relies on the AAPA to teach the use of a processor
configured to calibrate an ultrasonic flow meter as known. Final Act. 5;
AAPA (Figure 3, element 52).
Appellants argue Ogawa teaches a prover 4 with a cylinder 5 having
only a single pair of detectors 8 and 9 that defines a single calibrated
volume, and thus, Ogawa fails to teach a first calibrated volume and a
second calibrated volume defined by separate pairs of detectors as claimed.
App. Br. 22. According to Appellants, Ogawa only samples a single
calibrated volume irrespective of the number of passes between detectors 8
and 9, because Ogawa fails to teach an additional pair of detectors defining a
second calibrated volume. Id. at 22—23.
We are unpersuaded by these arguments. Appellants’ arguments do
not address the reasons presented by the Examiner for combining the
teachings of the cited art. As noted by the Examiner, Kyuji discloses two
pairs of detectors that define two calibrated volumes measurements. Final
Act. 4; Ans. 4; Kyuji Figures 1, 2. The Examiner finds Ogawa teaches a
known technique using a processor to apply statistical analysis for
measuring populations of calibrated volumes to assist in proving a flow
meter. Ans. 4. The Examiner determined it would have been obvious
modify Kyuji’s proving device by adding Ogawa's statistical analysis system
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Application 12/920,077
to improve Kyuji’s measurements. Id. Thus, the Examiner provided a
reasonable basis for one skilled in the art to arrive to the claimed invention
from the combined teachings of the cited art. While Ogawa only uses a
single pair of detectors associated with the processor, Appellants have not
adequately explained why one skilled in the art, using no more than ordinary
creativity, would not have been capable of adapting the processor of Ogawa
to measure calibrated volumes from more than one pair of detectors. KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary
skill is also a person of ordinary creativity, not an automaton.”); see In re
Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (skill is presumed on the part of
one of ordinary skill in the art); In re Bozek, 416 F.2d 1385, 1390 (CCPA
1969).
Appellants further argue Ogawa measures a sample population of
meter factors and not a sample population of sampled calibrated volumes.
App. Br. 24.
We find this argument unavailing for the reasons presented by the
Examiner. Ans. 4. We first note that Ogawa defines a meter factor as liters
per pulse. Ogawa col. 2,11. 41 42. Thus, by definition, a meter factor is a
measure of volume. That is, a volume needs to be determined so one can
determine a meter factor. As noted by the Examiner, Ogawa discloses each
sample population is a calibrated volume since the displaced reference
volume of fluid is passed through a calibrated section of the cylinder for the
purpose of determining the meter factors. Ans. 4; Ogawa col. 3,11. 23—30,
46—57. Thus, Appellants have not adequately explained why Ogawa does
not measure sample populations of sampled calibrated volumes.
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Appellants argue the method taught by Ogawa of calculating a meter
factor for every pass of piston 6 is opposed to and directly conflicts with the
features of claim 1. App. Br. 25. According to Appellants, claim 1 requires
the meter factor to be calculated based on the plurality of sampled calibrated
volumes (e.g., a plurality of sampled first calibrated volumes), while in
Ogawa, individual meter factors are calculated for each individual pass of
the piston 6 through the calibrated volume defined by detectors 8 and 9, thus
requiring more time of operation compared to the method and apparatuses
described in the pending claims. Id.
We find these arguments also unpersuasive of reversible error for the
reasons given by the Examiner. Ans. 4. Ogawa discloses calculating an
average value for the meter factor based on the five meter factors calculated
for the individual runs (samples). Ogawa col. 6,11. 35—38. This method
appears consistent with Appellants’ disclosure of using a “proving computer
or processor [for] mathematically comput[ing] the meter correction factor
for each calibrated volume independently, then combining] each volume
meter correction factor into a single resultant meter factor.” Spec. 126. In
view of this disclosure, Appellants have not adequately explained why the
claim language does not encompass Ogawa’s meter factor calculation
method.
We have considered Appellants’ arguments that the meter 6 to be
proved in Kyuji is not explicitly described as being an ultrasonic flow meter
because it was likely not contemplated in Kyuji given that the reference
dates from 1982. App. Br. 19; Kyuji 1,3. We are unpersuaded. As noted
by the Examiner, Appellant's have provided no evidence that an ultrasonic
flow meter cannot be used with Kyuji proving system. Ans. 3. Further,
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given Appellants’ acknowledgement that proving systems for ultrasonic
flow meters are known (Spec. 1 6, Figure 3), Appellants have not adequately
explained why one skilled in the art, using no more than ordinary creativity,
would not have been capable of adapting the proving device and process of
Kyuji to prove an ultrasonic flow meter. KSR, 550 U.S. at 421; Sovish, 769
F.2d at 743; Bozek, 416 F.2d at 1390.
Accordingly, we affirm the Examiner’s prior art rejection of claims 1,
3, 4, 7—9, 13, 15, 17, 19, and 20 under 35 U.S.C. § 103(a) for the reasons
presented by the Examiner and given above.
DECISION
The Examiner’s prior art rejection under 35 U.S.C. § 103(a) is
affirmed.
TIME PERIOD
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).
AFFIRMED
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