Ex Parte Dykstra et al

Patent Trial and Appeal Board

Jun 24, 2016

13678489 (P.T.A.B. Jun. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/678,489
49431 7590
Locke Lord LLP
P.O. Box 55874
Boston, MA 02205
FILING DATE FIRST NAMED INVENTOR
11115/2012 Jason D. DYKSTRA
06/28/2016
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.
2011-IP-042544 Ul Cl US 4714
EXAMINER
WANG, WEI
ART UNIT PAPER NUMBER
3676
NOTIFICATION DATE DELIVERY MODE
06/28/2016 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):
patent@lockelord.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON D. DYKSTRA, MICHAEL L. FRIPP,
LIANG ZHAO, and FREDERIC PEL TEN
Appeal2014-005351
Application 13/678,489
Technology Center 3600
Before JENNIFER D. BAHR, WILLIAM A. CAPP, and
AMANDA F. WIEKER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jason D. Dykstra et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1-13, 16, 17, 50-62, 65, and
66 under 35 U.S.C. § 102(b) as anticipated by Zetterstrom (US 3,754,576,
iss. Aug. 28, 1973). 1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 14, 15, 63, and 64 have been withdrawn from consideration. Final
Act. 1 (Office Action Summary); Appeal Br. 17, 20, Claims App. Claims
18--49 have been canceled. Appeal Br. 18, Claims App.
Appeal2014-005351
Application 13/678,489
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A variable flow resistance system for use with a
subterranean well, the system comprising:
a structure which displaces in response to a flow of a fluid
composition, whereby a resistance to the flow of the fluid
composition changes in response to a change in a ratio of desired
to undesired fluid in the fluid composition.
DISCUSSION
In contesting the rejection, Appellants argue for patentability of
claims 1, 3-7, 11-13, 50, 52-56, and 60-62 as a first group; claims 2 and 51
as a second group; claims 8-10 and 57-59 as a third group; and claims 16,
17, 65, and 66 as a fourth group. Appeal Br. 10-12. We select claim 1 as
representative of the first group, claim 2 as representative of the second
group, claim 8 as representative of the third group, and claim 16 as
representative of the fourth group. The remaining claims in each group
stand or fall with the representative claim for that group. See 37 C.F.R.
§ 41.37(c)(l)(iv).
Claims 1, 3-7, 11-13, 50, 52-56, and 60--62:
The Examiner finds that Zetterstrom' s flap-equipped fluid power
amplifier satisfies all of the limitations of claim 1. Final Act. 2-3 (citing the
embodiment of Figs. 3a-3c). The Examiner interprets the "whereby a
resistance to the flow of the fluid composition changes in response to a
change in a ratio of desired to undesired fluid in the fluid composition"
clause of claim 1 as requiring that "the structures [be] capable of changing a
resistance to the flow of the fluid composition in response to a change in the
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Application 13/678,489
ratio of desired to undesired fluid in the fluid composition." See id. at 2.
The Examiner explains that Zetterstrom's system has such capability
because "[ fJor example, the desired fluid is a low viscous fluid and the
undesired fluid is a high viscous fluid in the fluid composition"; "[a] change
in the ratio of desired to undesired fluid in the fluid composition changes the
overall viscosity of the fluid composition"; and "[t]he resistance to the flow
of the fluid composition changes in response to a change in the overall
viscosity of the fluid composition because the resistance to the flow of a
fluid is a function of the viscosity of that fluid based on the fundamentals of
fluid mechanics." Id. at 2-3; see Spec. 9:26-10:1 (disclosing that the
presence of undesired fluids, such as water and gas, in an oil producing well
decreases the viscosity of the fluid composition); 10:4--11 (identifying oil,
which is a more viscous fluid, as a desired fluid, and water and gas, which
are less viscous than oil, as undesired fluids).
Appellants argue that Zetterstrom does not anticipate the subject
matter of claim 1 because "[Zetterstrom] does not describe any change in a
ratio of desired to undesired fluid in a fluid composition, and does not
describe resistance to flow changing in response to such a change in the ratio
of desired to undesired fluid." Appeal Br. 10. Appellants submit that "it is
not inherent that a change in a ratio of desired to undesired fluid would be
present in the Zetterstrom fluid amplifier" and that, "[i]n contrast, changes in
ratios of fluids in fluid compositions produced from or injected into
subterranean wells are often encountered." Id. Appellants add that "the
claims do not merely require that a resistance to flow is capable of changing
in response to a change in a ratio of desired to undesired fluids in the fluid
composition." Id. at 11. Appellants insist that "[i]nstead, the claims require
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Application 13/678,489
that a structure displaces, whereby a resistance to the flow of the fluid
composition changes in response to a change in a ratio of desired to
undesired fluid in the fluid composition." Id.
Appellants' arguments appear to be premised on a position that claim
1 requires a fluid composition in which a change in a ratio of desired to
undesired fluid inherently occurs. Such a claim construction is unreasonably
narrow, as claim 1 does not positively recite a fluid composition, or a means
for supplying or generating a fluid composition, as an element in the system.
Claim 1, an apparatus claim, recites "[a] variable flow resistance system for
use with a subterranean well." Appeal Br. 15, Claims App. In attempting to
contrast their invention with that of Zetterstrom, Appellants submit that
"changes in ratios of fluids in fluid compositions produced from or injected
into subterranean wells are often encountered," but do not assert, much less
show, that such changes are an inherent feature of such fluid compositions.
Appeal Br. 10 (emphasis added). Consistent with Appellants' Specification,
we understand Appellants' invention to be a system that will change
resistance to flow if (i.e., in the event that) the viscosity (or certain other
fluid dynamic property) of the fluid composition changes due to a change in
the ratio of components (e.g., the ratio of more viscous components to less
viscous components) in the fluid. See Spec. 9:23-10:3. Against this
background, Appellants fail to persuade us that the Examiner's interpretation
of the "whereby a resistance to the flow of the fluid composition changes in
response to a change in a ratio of desired to undesired fluid in the fluid
composition" clause of claim 1 as requiring capability of changing a
resistance to the flow of the fluid composition in response to a change in the
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Application 13/678,489
ratio of desired to undesired fluid in the fluid composition is unreasonable in
light of the Specification.
Further, to the extent that Appellants' argument asserting claim 1
requires more than a capability of a change in a resistance to flow in
response to a change in a ratio of desired to undesired fluids in the fluid
composition urges us to construe claim 1 as requiring that a change in a ratio
of desired to undesired fluids causes the displacement of the structure, such a
claim construction is unreasonably narrow. Claim 1 recites "a structure
which displaces in response to a flow of a fluid composition" and recites that
"a resistance to the flow of the fluid composition changes in response to a
change in a ratio of desired to undesired fluid in the fluid composition."
Appeal Br. 15, Claims App. However, claim 1 does not recite a causal
connection between a change in a ratio of desired to undesired fluids and the
displacement of the structure.
The Examiner finds, correctly, that Zetterstrom discloses a structure
(flap members 1 a and 1 b) that displaces in response to a flow of a fluid
composition. Final Act. 2. When the flow through Zetterstrom's control
inlets SJ and s2 is kept equal, the fluid composition flows along the first path
between flap members Ia and lb, and the flap members remain in the
positions shown in Figure 3a. Zetterstrom, col. 3, 11. 49-53. When the flow
through inlet SJ is greater than the flow through inlet s2, as illustrated in
Figure 3b, the proportion of the fluid composition flowing through the first
and second flow paths changes, such that more of the fluid composition
flows along the second path (between flap member 1 b and a wall), while a
smaller proportion of the fluid composition flows along the first path
(between flap members Ia and lb), and flap member lb pivots in a
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clockwise direction to the position shown in Figure 3b. Id., col. 3, 11. 59-63.
When flow of control fluid in inlet s1 completely ceases and control fluid is
introduced only into inlet s2, the proportion of the fluid composition flowing
through the first and second flow paths changes further, such that all of the
fluid composition flows along the second path (between flap member 1 b and
a wall) and none of the fluid composition flows along the first path (between
flap members 1 a and 1 b ), and flap member 1 b pivots further in the
clockwise direction to the position shown in Figure 3c. Id., col. 4, 11. 4--9.
Appellants contend that "[Zetterstrom] does not describe changing a
resistance to flow [with displacement of a structure], but merely describes
changing a direction of flow." Appeal Br. 10; Reply Br. 10. This argument
is not persuasive, as it is factually incorrect. We agree with the Examiner
that the different flow patterns depicted in Figures 3a-3c of Zetterstrom
experience three different flow resistances through Zetterstrom' s system, for
the reasons set forth by the Examiner. See Ans. 2-3 (explaining that the
flow through each path shown in Figures 3a-3c varies due to the different
lengths and widths of each flow path). Thus, pivoting of flap member 1 b
clockwise from the position shown in Figure 3a, causing increasing
proportions of the fluid composition to flow along the longer second path
and constricting the flow paths past the flap members, increases the
resistance to flow of the fluid composition through the system.
Appellants assert that Zetterstrom "does not describe a variable flow
resistance system that varies a resistance to flow of a fluid composition in
response to a change in a ratio of desired to undesired fluid in the fluid
composition." Reply Br. 9. This assertion is incorrect. The Examiner
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explains why Zetterstrom has such capability, as discussed above. See Final
Act. 2-3; Spec. 9:26-10:1; 10:4--11.
For the above reasons, Appellants do not apprise us of error in the
rejection of claim 1. According! y, we sustain the rejection of claims 1, 3-7,
11-13, 50, 52-56, and 60-62 under 35 U.S.C. § 102(b) as anticipated by
Zetterstrom.
Claims 2 and 51:
Claim 2 depends from claim 1 and recites that "the structure is
exposed to the flow of the fluid composition in at least first and second
directions, and ... the resistance to the flow changes in response to a change
in a proportion of the fluid composition which flows in the first and second
directions." Appeal Br. 15, Claims App. The Examiner finds that
Zetterstrom' s flap member 1 b is exposed to flow in at least a first direction
(between flap members 1 a and 1 b) and a second direction (between flap
member lb and a wall). Final Act. 3. The Examiner also finds that the
resistance to flow is greater in Figure 3c, where more of the fluid
composition flows in the second direction. Id.
Appellants argue that the Examiner's finding that the resistance to
flow is any greater in Figure 3c than in either Figure 3a or Figure 3b is
"mere conjecture on the [E]xaminer's part" and that "[t]here is no reason to
believe" that this will be the case. Appeal Br. 11. We do not agree with
Appellants. As already mentioned, for the reasons explained by the
Examiner on pages 2 and 3 of the Answer, pivoting of flap member 1 b
clockwise from the position shown in Figure 3a, causing increasing
proportions of the fluid composition to flow along the longer second path
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Application 13/678,489
and constricting the flow paths past the flap members, increases the
resistance to flow of the fluid composition through the system.
Thus, Appellants fail to apprise us of error in the rejection of claim 2.
Accordingly, we sustain the rejection of claims 2 and 51 under 3 5 U.S. C.
§ 102(b) as anticipated by Zetterstrom.
Claims 8-10 and 57-59:
Claim 8 recites that "the structure pivots, and thereby varies the
resistance to flow, in response to a change in a proportion of the fluid
composition which flows through the first and second flow paths. "2 Appeal
Br. 16, Claims App.
Appellants reiterate their argument that Zetterstrom gives no
indication that the resistance to flow is any greater in Figure 3c. Appeal Br.
12. This argument fails to apprise us of error in the rejection, for the reasons
set forth above in discussing the rejection of claim 2. Accordingly, we
sustain the rejection of claims 8-10 and 57-59 under 35 U.S.C. § 102(b) as
anticipated by Zetterstrom.
Claims 16, 17, 65, and 66:
Claim 16 depends from claim 1 and recites that "the resistance to flow
decreases in response to an increase in the ratio of desired to undesired
flow." Appeal Br. 17, Claims App. The Examiner explains in the paragraph
bridging pages 5 and 6 of the Final Rejection why Zetterstrom's system
possesses this capability.
2 Claim 8 depends from claim 6, which depends from claim 1 and further
recites "a fluid switch which directs the flow of the fluid composition to at
least first and second flow paths." Appeal Br. 16, Claims App.
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Appellants argue that Zetterstrom "does not describe any change in
resistance to flow and, furthermore, does not describe that the resistance to
flow increases or decreases in response to any particular change in the ratio
of desired to undesired fluid. [Zetterstrom] does not describe any desired or
undesired fluids at all." Appeal Br. 12; Reply Br. 14. This line of argument
fails to apprise us of error in the rejection, for the reasons discussed above in
relation to claim 1. Accordingly, we sustain the rejection of claims 16, 17,
65, and 66 under 35 U.S.C. § 102(b) as anticipated by Zetterstrom.
DECISION
The Examiner's decision rejecting claims 1-13, 16, 17, 50-62, 65,
and 66 under 35 U.S.C. § 102(b) as anticipated by Zetterstrom 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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