Ex Parte Harrick et al

Patent Trials and Appeals Board

Jun 24, 2019

13273707 - (D) (P.T.A.B. Jun. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/273,707 10/14/2011
136882 7590 06/26/2019
C. Tumey Law Group PLLC - PGS
Corey Tumey
PO Box 890226
Houston, TX 77062-9998
FIRST NAMED INVENTOR
Bruce William Harrick
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.
PGS- l l-04US 1216
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
06/26/2019 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):
docketing@pgs.com
ctumey@ctumeylawgroup.com
docketing@ctumeylawgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE WILLIAM HARRI CK and ANDRE STENZEL
Appeal2017-009030
Application 13/273,707
Technology Center 3600
Before HYUN J. JUNG, BARBARA A. BENOIT, and
PHILLIP A. BENNETT, Administrative Patent Judges.
JUNG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bruce William Harrick and Andre Stenzel (Appellants) 1 appeal under
35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-8, 10-
17, and 19-27, which constitute all the claims pending in this application.
Claims 9, 18, and 28 have been canceled. We have jurisdiction under 35
U.S.C. § 6(b). We REVERSE.
1 The Appellants identify the real party-in-interest as PGS Geophysical AS.
App. Br. 2.
Appeal2017-009030
Application 13/273,707
CLAIMED SUBJECT MATTER
Claims 1, 16, and 24 are independent. Claim 1 is reproduced below:
1. A marine geophysical survey system, comprising:
marine geophysical survey equipment configured to be
located in a body of water when in operation, wherein the marine
geophysical survey equipment comprises a streamer; and
an impact-activated device coupled to the marine
geophysical survey equipment, wherein the impact-activated
device comprises a circuit configured to release a shark repellent
in response to a pre-determined impact on the impact-activated
device that is equal to or exceeds a pre-determined g-force.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Smith
Davidson
Harrick
Becker
us 4,750,451
US 2003/0182040 Al
US 2010/0212927 Al
US 2011/0290190 Al
REJECTION
June 14, 1988
Sept. 25, 2003
Aug. 26, 2010
Dec. 1, 2011
The Appellants seek our review of the rejection of:
claims 1, 8, 10-13, 15, and 24 under 35 U.S.C. § I03(a) as being
unpatentable over Harrick, Becker, and Davidson;
claims 16, 17, and 19--23 under 35 U.S.C. § I03(a) as being
unpatentable over Harrick, Becker, Davidson, and Smith;
claims 2-7, 14, and 25-27 under 35 U.S.C. § I03(a) as being
unpatentable over Harrick, Becker, Davidson, 2 and Smith;
2 The Examiner refers to "Harri ck (US 2010/021292 7), in combination with
Becker (US 2011/0290190), as applied to Claims 1 and 24 above" for the
rejection of claims depending from claims 1 and 24. Final Action 7. We
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Application 13/273,707
claims 1, 8, 10-13, 15, and 24 under 35 U.S.C. § 103(a) as being
unpatentable over Harrick and Davidson; and
claims 2-7, 14, 16, 17, 19-23, and 25-27 under 35 U.S.C. § 103(a) as
being unpatentable over Harrick, Davidson, and Smith. 3
ANALYSIS
Independent Claims 1 and 24 and Their Dependent Claims
For the rejection of claims 1 and 24 as unpatentable over the
combinations of (1) Harri ck, Becker, and Davidson and (2) Harri ck and
Davidson, the Examiner determines that Harrick teaches all the limitations
of claims 1 and 24, except for "an impact-activated device ... , wherein the
impact-activated device comprises a circuit - configured to release a shark
repellent in response to a pre-determined impact on the impact-activated
device .... " Final Action 2 (citing Harrick ,r,r 14, 34, Fig. 4), 10 (citing
Harrick ,r,r 14, 34, Fig. 4); see also Ans. 19 (stating that the "specific
limitations that Harrick lacks are A) that the repellant is released 'in
response to an impact', B) that the impact is 'pre-determined', C) that the
device is configured to release the repellant is 'impact-activated', and
D) that the impact is 'equal to or exceeds a predetermined g-force"').
For the rejection of claims 1 and 24 as unpatenable over Harrick,
Becker, and Davidson, the Examiner relies on Becker for teaching the
understand the Examiner to be referring to the rejection of claims 1 and 24
as unpatentable over Harrick, Becker, and Davidson at pages 2--4 of the
Final Action.
3 The Examiner treats claims 16, 17, and 19-23 separately from claims 2-7,
14, and 25-27, but the Examiner determines that these claims are
unpatentable over the same combination of references-Harri ck, Davidson,
and Smith. See Final Action 11-17.
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Appeal2017-009030
Application 13/273,707
release of a repellent at or above a pre-determined g-force and relies on
Davidson for teaching an impact-activated device that responds to a pre-
determined impact. Final Action 2 (citing Becker ,r 94; Davidson ,r,r 4, 23,
26, 30, 31, 34, 35, 41--43). For the rejection of claims 1 and 24 as
unpatentable over Harrick and Davidson, the Examiner relies on Davidson
for teaching "an impact-activated device ... to release a ... repellant in
response to a pre-determined impact ... equal to or exceeding a pre-
determined g-force." Id. at 10 (citing Davidson ,r,r 4, 23, 26, 30, 31, 34, 35,
43).
The Examiner reasons that it would have been obvious to modify
Harrick "to use an impact-activated device in order to prevent unnecessary
electrical discharges that would use too much system power, and not deploy
under false conditions." Id. at 2-3 (reasoning also that it would have been
obvious to apply Harrick as modified to sharks or similar creatures to
prevent damage to geophysical survey equipment), 10 (reasoning also that it
would have been obvious to apply Harrick as modified to sharks and similar
creatures).
Harrick describes that a "shark repellant that operates on the electrical
sensitivity of [ a shark's] sensory system can be employed to protect towed
marine seismic equipment from shark bite" and that the "shark repellant
comprises electropositive metals." Harrick ,r 24. Harrick also describes
configuring the electropositive metal as ingot 30, band 31, patch 32, or
surface coating 33 that can be attached or applied to marine seismic
equipment 10, inline position control devices 16, or streamer 13. Id. ,r 34.
Harrick, however, does not describe that the electropositive metal in
any of its configuration provides electrical discharges, uses system power, or
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Application 13/273,707
is susceptible to deploying under false conditions. See id. ,r,r 33-35, Figs. 3,
4; see also id. ,r 23 (stating that "shark repellants have included ... electrical
shock emitters" but "the effectiveness ... has been limited" before
describing shark repellants comprising electropositive metals). The
Examiner also does not indicate where Harrick describes electrical
discharges, using system power, and susceptibility to false deployments. See
Final Action 2--4, 7-11, 14--17; Ans. 2--4, 7-12, 14--17. Harrick, therefore,
does not provide the factual underpinnings for the proposed reason to
modify Harrick-"to prevent unnecessary electrical discharges that would
use too much system power, and not deploy under false conditions."
Becker also does not indicate that Harrick's system, or a similar
electropositive metal system, creates electrical discharges, uses system
power, and can deploy falsely. Even if the Examiner intended to modify
Harri ck to include Becker's apparatus for repelling aquatic creatures, which
does use battery power (see Becker ,r,r 1, 2, 31, 60), the Examiner's reason
for modifying Harrick (see Final Action 2-3, 10) inadequately addresses
why it would have been obvious to include any part of Becker's apparatus in
view of Harri ck' s teachings. See, e.g., Harrick ,r 23. As for Davidson, it
describes a device that activates in response to an indication of an
approaching, impending, or upcoming impact. See Davidson ,r,r 4, 6, 23, 26,
30, 31, 34, 35, 41--43. It also provides inadequate factual underpinnings for
the proposed reason to modify Harrick.
Because the Examiner's rationale for modifying Harrick "to use an
impact-activated device in order to prevent unnecessary electrical discharges
that would use too much system power, and not deploy under false
conditions" lacks factual underpinning from the relied-upon prior art, we do
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Application 13/273,707
not sustain the Examiner's rejection of independent claims 1 and 24 and
their dependent claims 2-8, 10-15, and 25-27.
Independent Claim 16 and Its Dependent Claims
For the rejection of claim 16 as unpatentable over the combinations of
(1) Harrick, Becker, Davidson, and Smith and (2) Harrick, Davidson, and
Smith, the Examiner determines that Harrick teaches all its limitations,
except for the limitation "a circuit configured to release a shark repellent in
response to a pre-determined impact detected by the impact-sensing circuit"
and its recited components. Final Action 4, 12. The Examiner relies on
Becker for teaching "an impact-sensing circuit configured to discharge a
voltage ... ," Davidson for teaching "a circuit (reacting) in response to an
impact ... "or "an impact-sensing circuit configured to discharge a voltage
in response to an impact ... equal to or exceeding a pre-determined g-
force," and Smith for teaching a voltage comparator, voltage source,
electrodes, and relay. Id. at 4--5 (citing Becker ,r 94--98, 113; Davidson ,r,r 4,
23, 26, 30, 31, 34, 35, 41--43; Smith, 3:20--45, 4:45-65, Fig. 4); 12-13 (same
citations to Davidson and Smith).
The Examiner reasons that it would have been obvious to modify
Harrick "to use an impact-activated device in order to prevent unnecessary
electrical discharges that would use too much system power" and that it
would have been obvious "to include electrodes, a voltage source, and
voltage comparator to determine whether or not the system had been
triggered, which would conserve power usage, and be more effective at
repelling actual sharks by reducing or eliminating false discharges." Id. at
4--5, 12-13.
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Application 13/273,707
As discussed above for claims 1 and 24, Harrick does not describe
that its electropositive metal in any of its configuration provides electrical
discharges, uses system power, and has false discharges. See Harrick ,r,r 33-
35, Figs. 3, 4; see also id. ,r 23 (stating that "shark repellants have included .
. . electrical shock emitters" but "the effectiveness ... has been limited"
before describing shark repellants comprising electropositive metals). The
Examiner also does not indicate where Harri ck describes any of these issues.
See Final Action 4---6, 11-14; Ans. 4--7, 12-14. Harrick, therefore, does not
provide the factual underpinnings for the proposed reason to modify
Harrick-"to prevent unnecessary electrical discharges that would use too
much system power." As discussed above, Becker and Davidson do not
remedy this deficiency. Smith also does not indicate that an electropositive
metal provides electrical discharges, uses system power, and has false
discharges, and thus, does not remedy the deficiency.
We, therefore, do not sustain the Examiner's rejection of independent
claim 16 and its dependent claims, claims 17 and 19-23.
DECISION
For the above reasons, the Examiner's rejection of claims 1-8, 10-17,
and 19-27 is reversed.
REVERSED
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