Ex Parte Fleischer

Patent Trial and Appeal Board

Apr 24, 2014

12479246 (P.T.A.B. Apr. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PATRICK FLEISCHER
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Appeal 2012-006325
Application 12/479,246
Technology Center 2800
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Before ROMULO H. DELMENDO, GEORGE C. BEST, and
CHRISTOPHER M. KAISER, Administrative Patent Judges.

KAISER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-006325
Application 12/479,246

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This is an appeal under 35 U.S.C. § 134 from the Examiner’s final
rejection of claims 1-10, 13, 14, 16, and 18. We have jurisdiction under
35 U.S.C. § 6(b). We reverse.

OPINION

A. Introduction
Appellant discloses “a collecting line for monitoring and locating
leakages in an installation.” Spec. 1 at [0003].
Claim 1, quoted below, is representative of the claimed invention:
1. A collecting line for monitoring and locating leakages at an
installation, the collecting line comprising:
a body in the form of a hollow pipe having first and second
ends, a longitudinal direction and a subarea extending in said
longitudinal direction;
said body being permeable to a substance to be monitored, at
least in said subarea;
said subarea having at least one first subsection and at least one
second subsection;
said at least one first subsection being disposed at a first
distance from said first end, and said at least one second
subsection being disposed at a second distance from said first
end being greater than said first distance; and
said at least one first subsection having a greater permeability
than said at least one second subsection.
Claims App., Br. 13.
At the time of the Final Rejection, independent claim 1 and dependent
claims 2-18 were pending. Final Rejection 1. The Examiner rejected claims
1-10, 13, 14, and 16 as anticipated by US Patent No. 4,255,0721 (“Gappa”).

1 Gappa et al., U.S. 4,255,072, issued Mar. 10, 1981.
Appeal 2012-006325
Application 12/479,246

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Final Rejection 2-3. The Examiner also rejected claim 18 as obvious in light
of Gappa.2 Final Rejection 2, 4.
On appeal, Appellant argues that, contrary to the Examiner’s finding,
Gappa fails to disclose “a body in the form of a hollow pipe,” a limitation of
every claim. Br. 7. We have considered this argument, and we are
persuaded that the preponderance of the evidence on this record does not
support either the Examiner’s finding that Gappa discloses “a body in the
form of a hollow pipe” or the Examiner’s rejection of Appellant’s claims
based in part on such a disclosure in Gappa.

B. Discussion
The Examiner did not make factual findings that would support a
finding that “a body in the form of a hollow pipe” is inherently present in the
structure of the chute disclosed in Gappa, nor did the Examiner make factual
findings that would support the conclusion that “a body in the form of a
hollow pipe” would be suggested to one of ordinary skill in the art by the
disclosure in Gappa. Instead, in each rejection, the Examiner relied on
Gappa’s disclosure of “a chute” to find express disclosure in Gappa of “a
body in the form [of] a hollow pipe.” Final Rejection 2.
Appellant argues that Gappa only discloses “a flow leading floor for a
chute,” not the chute itself, and that the flow leading floor disclosed in
Gappa does not itself constitute the claimed pipe. Br. 7-9. Accordingly,
Appellant argues that Gappa does not disclose “a body in the form of a

2 Claims 11, 12, 15, and 17 were “objected to as being dependent upon a
rejected base claim,” but were described as “allowable if rewritten in
independent form including all of the limitations of the base claim and any
intervening claims.” Final Rejection 4.
Appeal 2012-006325
Application 12/479,246

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hollow pipe.” Id. The Examiner responds that, even though “Gappa does
not disclose the details of the entire structure of the chute, . . . the presence
of the chute is disclosed by Gappa.” Ans. 7.
We agree with the Examiner that Gappa discloses the existence of a
chute. But we do not agree that this is sufficient to find that Gappa discloses
“a body in the form of a hollow pipe.” As the Examiner acknowledges,
Gappa fails to teach the structure associated with the disclosed chute,
making it unclear whether Gappa’s chute has the characteristics of the
claimed pipe. Because the disclosure of the chute’s pipe-like nature is
missing, reliance on the disclosure of the mere existence of the chute to find
disclosure of a pipe is improper.

C. Order
We reverse the Examiner’s rejection of claims 1-10, 13, 14, and 16 as
anticipated by Gappa, and we reverse the Examiner’s rejection of claim 18
as obvious.

REVERSED

cdc