Ex Parte Kienzle et al

Patent Trial and Appeal Board

Sep 27, 2016

12431985 (P.T.A.B. Sep. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/431,985 0412912009 Klaus Kienzle
30636 7590 09/28/2016
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
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.
40124112802 (V 8216/KK) 6225
EXAMINER
SMITH, GRAHAM P
ART UNIT PAPER NUMBER
2845
MAILDATE DELIVERY MODE
09/28/2016 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 KLAUS KIENZLE, JOSEF FEHRENBACH, and
JUERGEN MOTZER
Appeal2015-003053
Application 12/431,985
Technology Center 2800
Before: BRADLEY R. GARRIS, CHRISTOPHER L. OGDEN, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134 from a rejection2 of claims
1, 4, 5, and 7-18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 VEGA Grieshaber KG is identified as the real party in interest. (Appeal
Brief, filed July 7 2014 ("App. Br."), 2.)
2 Final Rejection mailed February 11 2014 ("FR.").
Appeal2015-003053
Application 12/431,985
CLAIMED SUBJECT MATTER
The claims are directed to "fill-level measuring technology, pressure
measuring technology and limit-level measuring technology" and in
particular "an adaptation apparatus, an antenna arrangement, a measuring
device and a method for closing off respectively sealing a waveguide."
(Spec. 1, 11. 16-20.)3 A waveguide is a device structured to guide
electromagnetic waves from point to point which may be used to measure
fill levels. (See id. at 1, 11. 25-28.)
Figure 1 of the '985 Specification is reproduced below:
101
/
105
106
104 "'--_ \ 1/ _...,./
107
Fig. l
103
102
100
FIG. 1 of the '985 Specification illustrating "a lateral view of' adaptation
apparatus 100. (Spec. 13, 1. 22.)
Adaptation apparatus 100 or "adaptation cone 100" which may be
particularly applicable to "a high-frequency electromagnetic wave (HF-
wave )" includes a first conical end 103 and a second conical end 104 which
are "arranged on the circular collar 101, on the ring-shaped enlargement 101
3 Application 12/431,985, Sealing an Antenna System, filed April 29 2009.
We refer to the '"985 Specification," which we cite as "Spec."
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Application 12/431,985
or on the circular flange 101 with their bases or with their base areas."
(Spec., 13, 11. 25-26; 14, 11. 3--4.) "The first conical end 103 and the second
conical end 104 form ... a closing-off body" which "may be arranged in the
waveguide in such a way that a generated surface of the closing-off body
may establish contact with the external conductor of [a] waveguide." (Id. at
14, 1. 6; 5, 11. 2--4.) "[T]he enlargement 101 essentially blocks a flow of a
fluid along the generated surface 102, 107 of the two conical ends 103, 104"
and "[i]n order to prevent a fluid from being able to spread around the
enlargement, a seal [not shown] is arranged in axial direction on the
enlargement 101." (Id. at 14, 11. 13-15.)
"The enlargement 101 has a space w, a distance w or a length w from
the outermost generated surface of the base of the first conical end 103 of
more than 'A/2." (Id. at 15, 11. 5-6.) "A, denotes the wavelength of an
electromagnetic wave which also, like the fluid, propagates essentially
parallel to the symmetry axis of the adaptation apparatus." (Id. at 15, 11. 6-
8.) The value of w "may be selected such that an apparent short circuit to
the HF, which apparent short circuit is located at the end of the enlargement
101, which end is furthest away from the longitudinal axis of the adaptation
apparatus, is transformed to an apparent short circuit on the outermost
generated surface of the first conically shaped end 103 or generally on the
outermost generated surface of the closing-off body" which would allow the
"essentially interference-free propagation of an electromagnetic wave." (Id.
at 15, 11. 19-20.)
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Application 12/431,985
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An adaptation apparatus, comprising:
a closing-off body, including a generated surface, the
generated surface being adapted to establish contact with an
external conductor of a waveguide;
an enlargement being arranged on the generated surface,
the enlargement being adapted such that the enlargement spaces
apart an electrical short circuit at a predetermined distance from
the generated surface; and
separate from said enlargement, a sealing element
arranged on the enlargement, wherein the distance is an integral
multiple n of 'A/2, wherein A, is the wavelength of an
electromagnetic wave transmitted in the waveguide when the
adaptation apparatus is in use, wherein n = 2, and wherein the
frequency of the electromagnetic wave is at least 1 GHz.
(Claim Appendix, App. Br. 14.)
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Trousdale
Weber
Palan et al.,
us 3,001,160
us 3,406,979
us 5,872,494
Sept. 19, 1961
Oct. 22, 1968
Feb. 16, 1999
Pozar, The Terminated Lossless Transmission Line, 3rd ed.
Microwave Engineering 57-64 (2005).
REJECTIONS
Claims 1, 4, 5, 7-13, and 17 are rejected under pre-AIA 35 U.S.C.
103(a) as being unpatentable over Palan in view of Pozar.
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Application 12/431,985
Claims 14-16 and 18 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Palan and Pozar, as applied to claim 1, and further in view
of Trousdale and Weber. 4
OPINION
Claim l5
The issue dispositive of this appeal is whether the Examiner has
shown that an "adaptation apparatus" having "an enlargement [that] spaces
apart an electrical short circuit at a predetermined distance from [a]
generated surface" of "an integral multiple n of 'A/2, ... wherein n = 2" is
present in or would have been obvious in view of the applied prior art.
The Examiner finds that Palan teaches a prior art waveguide "capable
of operating at 24 GHz" which has "a closing-off body, including a
generated surface" and "an enlargement" as recited in claim 1. (FR. 2-3
(citing relevant text and figures of Palan).) The Examiner finds that the
prior art waveguide includes a "waveguide barrier and process seal which
incorporate 1/4 and 1/2 waveguide wavelength stepped geometry" with
width as Yz'A and height as 1i4'A. (FR. 3 (citing Palan at 6, 1. 47 - 7, 1. 4).)
The Examiner also finds that Pozar teaches that "transmission lines that end
in a short circuit (such as that formed by the conductive walls of Palan's
cavity 138) have an impedance that is periodic, repeating for multiples of
half a wavelength." (FR. 3 (citing Pozar at 61 ). )
4 Examiner's Answer mailed November 12 2014 ("Ans."), 2.
5 Consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013),
claims 4, 5, 7-13 and 17 stand or fall with claim 1, as Appellants make no
distinct arguments beyond the arguments regarding claim 1. (App. Br. 5,
10.)
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Application 12/431,985
Based on these unrefuted teachings and "the well-known fact that an
increase in frequency of operation allows for (and usually requires) a
reduction in size of a microwave device" also unrefuted by Appellants (FR.
11; see e.g., App. Br. 6-9, Reply6 2-5), the Examiner reasons that a skilled
artisan would have known to substitute "one known equivalent (the
impedance seen at the inner portion of Wl for a first period associated with
a distance of half a wavelength) for another (the same impedance seen at the
inner portion of Wl for a second period associated with at least a distance of
two or more multiples of half a wavelength) to produce predictable results."
(FR. 3.)7
Appellants argue that for the skilled artisan to increase the prior art
width from YzA, to A, as found by the Examiner, the skilled artisan would
"ignore and trump Palan's own teaching" of "compact design." (App. Br. 6-
7, 12.) Appellants argue that because both the '985 Specification and Palan
seek to achieve "effective sealing properties," "any purported modification
to the device of Palan that incorporates an enlargement (as recited in claim
1) is contrary to the teachings thereof' and therefore amounts to
impermissible hindsight. (Id. at 7.)
"The prior art's mere disclosure of more than one alternative does not
constitute a teaching away from any of these alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed." In re Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004). Expressed
preference for certain embodiments within disclosed genus does not teach
6 Reply Brief filed January 12 2015 ("Reply").
7 The shoulder 102 fills the volume of a sealing cavity having width Wl.
(Palan, 5, 1. 62 - 6, 11. 4, 65.)
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Application 12/431,985
away from rest of embodiments within genus. In re Susi, 440 F.2d 442, 444
n.3 (CCPA 1971).
In this case, Palan seeks to produce a "microwave level gage ... with
a smaller number of components." (Palan, 2, 11. 1-2.) As the Examiner
points out, a skilled artisan would have understood that a waveguide with "a
smaller number of components" is one that has a reduced quantity of
components. (FR. 13.) The Examiner also finds that this statement
regarding the quantity of components is silent on the dimensions of the
waveguide. (Id.) Appellants do not present evidence showing otherwise and
no reversible error has been shown in this finding by the Examiner.
Palan also provides:
The height and width of raised annular shoulder 102 are selected
to be compatible with microwave signal transmission. . . . The
microwave waveguide design constraints for the working
frequency and power output of the gage are thus also
incorporated into the process seal, which is characterized by
impedance and impedance matching. The dimensions and
structure of the seal and the overall mechanical barrier 96
minimize reflections, resonance and introduction of higher order
transmission modes. This minimizes inefficiencies, losses and
false target returns that the microwave level gage may or may not
be able to tolerate.
There are two primary advances in technology that enable the use
of this type of waveguide process seal. First, microwave
electronics are now cable of operating at 24 GHz which is more
than twice as high the operating frequencies of contemporary
level gages. This reduces the cross-sectional area of the
waveguide and the process seal (either circular or rectangular)
that is required for microwave propagation. This reduction in
size allows the process seal to be physically small,
manufacturable and reasonably cost effective. Secondly,
advances in copolymers, thermal plastics and ceramics in recent
years ha[ ve] increased the availability and quality of high
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Application 12/431,985
temperature, low dielectric, low loss tangent materials for the
construction of mechanical barriers ....
(Palan, 5, 11. 29-31, 11. 37-62 (emphasis added).)
Appellants argue, based on the teaching regarding the reduction of
"the cross-sectional area of the waveguide and the process seal," that Palan
seeks a small waveguide with a minimized cross-sectional area which
teaches away from increasing the width of annular shoulder 102 (which
provides the process seal by filling a cavity) to A, as recited in claim 1. (App.
Br. 7 (citing Palan 5, 11. 52-56); see also Reply 2.) According to Appellants,
based on this passage of Palan, "[l]ogic alone then invites the skilled person
to make the shoulder as small as possible ('A/2, n= 1) to follow Palan."
(Reply 5.)
We are not persuaded that the Examiner erred in this aspect of the
obviousness analysis. Palan is silent as to increasing or decreasing the width
from 'A/2, and silence is not discouragement or criticism. See In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). As the Examiner also points out,
Palan's teaching regarding the reduced "cross-sectional area of the
waveguide and the process seal" is silent regarding the width of the annular
shoulder (that provides the process seal) on which the rejection is based.
(Ans. 5.) Palan in fact teaches that the width of the annular shoulder "is
expanded" so that it "substantially fills the volume of cavity" to provide the
process seal. (Palan, 6, 11. 62-64.) Appellants contend that it is "only
natural for a person[] skilled in the art to understand that the desire for a
reduced cross-section applies" to other components not mentioned in the
passage at issue (Reply 3), but this contention is no more than attorney
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Application 12/431,985
argument which "cannot take the place of evidence." In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974).
Moreover, Palan teaches that certain "advances in technology"
including the capability of "microwave electronics" to operate "at 24 GHz"
allow an unspecified reduction in "the cross-sectional area of the waveguide
and the process seal." (Palan, 5, 11. 52-56.) Appellants do not explain why
the teaching for a device with the operating capacity of 24 GHz would be
discouraging for a device having the capacity of "at least 1 GHz" recited in
claim 1. Moreover, Palan appears to compare "the operating frequencies of
contemporary level gages" to the higher frequency of 24 GHz "which is
more than twice as high the operating frequencies of contemporary level
gages." (Id. at 5, 11. 49-51.) Palan's reduction in cross-sectional area
therefore appears to be based on the contemporary operating frequency
which is approximately 12 GHz - which has not been shown to discourage
"at least 1 GHz" recited in claim 1. Given that Appellants do not point to
any evidence showing that Palan discourages a waveguide operable at "at
least 1 GHz" as recited in claim 1, no reversible error has been shown in the
Examiner's finding that Palan does not "criticize, discredit, or otherwise
discourage" the solution claimed. See Fulton, 391 F.3d at 1201.
Appellants' conclusory assertion that "there is no expectation of
success" is also without evidentiary support and does not point to reversible
errors in the Examiner's findings. (App. Br. 7) We further note that this
unelaborated assertion appears to be inconsistent with Appellants' own
statement that there is "some capability of Palan to reach the purported
modification" as recited in claim 1. (App. Br. 9.)
We are also not persuaded that In re Giannelli, 739 F.3d 1375 (Fed.
Cir. 2014), cited by Appellants, supports a different outcome. (See App. Br.
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Application 12/431,985
9 (stating that Giannelli holds that "[p ]hysical capability alone does not
render obvious that which is [contradicted]").) The Giannelli court found
that a chest press machine does not render obvious a claim to a "row
exercise machine" having "a first handle portion adapted to be moved from a
first position to a second position by a pulling force exerted by a user" by
interpreting the claim limitation "adapted to" to require purposeful designing
or configuring of the machine to achieve the recited rowing functionality.
Giannelli, 739 F. 3d at 1367. The court accordingly found the claim
distinguished over the prior art because "a chest press machine is not a
rowing machine." Id. at 13 80 ("In fact, anyone who has used exercise
machines knows that a surefire way to cause injury is to use a machine in a
manner not intended by the manufacturer").
Unlike the devices in Giannelli which are used for different purposes,
in this case, Appellants acknowledge that both the prior art and the claim at
issue are directed to "achieving a better sealing effect" for a waveguide.
(App. Br. 7.) Giannelli therefore does not support Appellants' argument
which is based on the purported "trend for miniaturization" for the prior art
device. (Id. at 9.)
Moreover, it is well known that the cross-sectional area of a rectangle
(as the shoulder/seal in Palan) depends on two dimensions of the rectangle.
Appellants' argument, based on the prior art cross-sectional area, fails as it is
not directed to the limitation of a single dimension "distance" recited in
claim 1. We decline to import into the claim limitations that are not recited.
Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005).
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Claim 148
Claim 14 depends from claim 1 and additionally recites "wherein the
sealing element is arranged as at least two concentric o-rings." (Claim
Appendix, App. Br. 15.)
Appellants repeat the argument that Palan's teaching of a "small
number of components" shows a "height restriction" of the prior art seal.
(App. Br. 12.) Appellants also argue that the teaching of a "small number of
components" teaches away from the o-rings recited in claim 14. (Id.)
To the extent that Palan teaches using a "small number of
components" in general, Palan does not specify a particular number of
components for a waveguide. The mere fact that Palan may have used
serrations instead of o-rings does not necessarily show that it "criticize[s],
discredit[s], or otherwise discourage[s]" the inclusion of o-rings as recited in
claim 14. See Fulton, 391 F.3d at 1201. Appellants do not show that
Palan's silence regarding o-rings teaches away from their use as recited in
claim 14. No reversible error in the Examiner's findings with regard to
claim 14 has been shown.
Appellants argue, for the first time in the Reply Brief, that the
reference Trousadale does not teach or suggest that the o-rings recited in
claim 14 are "arranged on the enlargement" under In re Gurley, 27 F .3d 551
(Fed. Cir. 1994) and MPEP 2145. (Reply. 6.) This argument, however, is
considered waived since the Appellants fail to raise it in the Opening Brief. 9
Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293,
1320-21 n.3, 76 USPQ2d 1662, 1683 n.3 (Fed. Cir. 2005) (Arguments not
8 Claims 15-16 and 18 stand or fall with claim 14. (App. Br. 11.)
9 The Examiner has previously cited to Gurley and MPEP 2145 in support of
the rejections in the Final Office Action. (FR. 13.)
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raised in the opening brief are considered waived.). 37 C.F.R. § 41.4l(b )(2)
(2013).
DECISION
The Examiner's rejections of claims 1, 4, 5, and 7-18 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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