Ex parte Kumar

Board of Patent Appeals and Interferences

Aug 24, 1999

08121849 (B.P.A.I. Aug. 24, 1999)

Application for patent filed September 16, 1993. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 23
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte LALIT KUMAR
____________
Appeal No. 96-4002
Application No. 08/121,8491
____________
ON BRIEF
____________
Before BARRETT, FLEMING, and RUGGIERO, Administrative Patent
Judges.
RUGGIERO, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1-20, all of the claims pending in the application.
The claimed invention relates to a method and apparatus
for distinguishing between true and false echoes in an
Appeal No. 96-4002
Application No. 08/121,849
2
ultrasonic liquid gauging system. More particularly,
Appellant indicates at page 5 of the specification that true
and false echoes in an echo profile are discriminated by
determining the relative or actual energy content of the
received echo signals.
Claim 1 is illustrative of the invention and reads as
follows:
1. A method for discriminating true and false echoes in an
ultrasonic liquid gauging system comprising the steps of:
a. transmitting an ultrasonic pulse toward the liquid
surface;
b. detecting true and false echoes after a
transmission; and
c. identifying a true echo from a false echo based on
energy of the echoes by determining which echo has the higher
energy.
The Examiner relies on the following references:
Snyder 4,000,650 Jan. 04,
1977
Baumoel 4,203,324 May 20,
1980
Leszczynski 5,157,639
Oct. 20, 1992
Claims 1-20 stand finally rejected under 35 U.S.C. § 103
as being unpatentable over Leszczynski in view of Snyder and
Baumoel.
Appeal No. 96-4002
Application No. 08/121,849
3
Rather than reiterate the arguments of Appellant and the
Examiner, reference is made to the Brief and Answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the Examiner, and the
evidence
of obviousness relied upon by the Examiner as support for the
rejections. We have, likewise, reviewed and taken into
consideration, in reaching our decision, Appellant’s
arguments set forth in the Brief along with the Examiner's
rationale in support of the rejections and arguments in
rebuttal
set forth in the Examiner's Answer. It is our view, after
consideration of the record before us, that the collective
evidence relied upon and the level of skill in the particular
art would not have suggested to one of ordinary skill in the
art the obviousness of the invention as set forth in claims 1-
20. Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the Examiner to establish a factual basis to
Appeal No. 96-4002
Application No. 08/121,849
4
support the legal conclusion of obviousness. See In re Fine,
837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the Examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led
to
modify the prior art or to combine prior art references to
arrive
at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a
whole
or knowledge generally available to one having ordinary skill
in
the art. Uniroyal Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044,
1051, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert. denied, 488 U.S.
825
(1988); Ashland Oil, Inc. v. Delta Resins & Refractories,
Inc.,
Appeal No. 96-4002
Application No. 08/121,849
5
776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert.
denied, 475 U.S. 1017 (1986); ACS Hospital Systems, Inc. v.
Montefiore Hospital, 732 F.2d 1572, 1577, 221 USPQ 929, 933
(Fed.
Cir. 1984). These showings by the Examiner are an essential
part
of complying with the burden of presenting a prima facie case
of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d
1443, 1444 (Fed. Cir. 1992).
With respect to independent claims 1 and 8, the Examiner
seeks to modify the ultrasonic liquid gauging system of
Leszczynski by relying on Snyder and Baumoel to supply the
missing teaching of utilizing echo signal energy content
rather than peak amplitude to discriminate between true and
false echoes. In the Examiner’s view, the desire to reduce
costs by using integrated digital circuitry would serve as a
motivating factor to one of ordinary skill to modify
Leszczynski with the teachings of Snyder and Baumoel.
Appeal No. 96-4002
Application No. 08/121,849
6
At the outset, we note that both Appellant and the
Examiner agree that Leszczynski discriminates echoes on the
basis of amplitude rather than energy content of the received
echoes. Appellant’s initial point of contention is that
Snyder also is deficient in teaching the determination of the
energy content of any particular echo. In Appellant’s view
(Brief, page 11), Snyder’s approach to echo discrimination is
merely to add together a plurality of peak magnitude values of
echoes resulting from a succession of transmitted pulses to
develop a normalized sum value which would be greater than a
sum corresponding to a random noise signal.
Upon careful review of the Snyder reference, we are in
agreement with Appellant’s stated position in the Brief. In
our opinion, the integration operation in Snyder relied on by
the Examiner does not result in the determination of energy
content or "area under the curve" of any echo but rather
supplies only a summation of peak values of a succession of
echo signals.
With respect to the Baumoel reference as well, we find
ourselves in agreement with Appellant. From the Examiner’s
statement of the grounds of rejection, Baumoel was cited
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Application No. 08/121,849
7
merely as evidence that integration of a signal over a
predetermined time span will provide an indication of the
energy content of such signal. As Appellant has asserted
(Brief, page 13), this is a mere statement of a mathematical
principle which is not in dispute. In our opinion, the
teachings of Baumoel do not solve the deficiencies of the
Examiner’s proposed combination of Leszczynski and Snyder.
Baumoel is not concerned with echo discrimination and,
further, Baumoel’s disclosed summation of all of the reflected
signals to measure rate of decay does not provide a teaching
of energy content determination of a particular echo.
We further agree with Appellant’s arguments that the
Examiner has failed to provide proper motivation for the
proposed combination of Leszczynski, Snyder, and Baumoel. It
is our view that, even assuming arguendo that Snyder and
Baumoel provide for echo energy content determination, no
motivation exists for modifying Leszczynski in the manner
suggested by the Examiner. The Examiner’s position that the
desire for cost reduction would lead the skilled artisan to
modify Leszczynski to utilize digital integrated circuity such
as in Snyder and Baumoel is inapposite since the existing
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Application No. 08/121,849
8
disclosure of Leszczynski is replete with digital circuitry.
It is our opinion that the only basis for applying Snyder’s
and Baumoel’s teachings to Leszczynski comes from an improper
attempt to reconstruct Appellant’s invention in hindsight.
Accordingly, we can not sustain the Examiner's obviousness
rejection of independent claims 1 and 8. Since all of the
limitations of independent claims 1 and 8 are not suggested by
the applied prior art, we can also not sustain the Examiner's
rejection of appealed claims 2-7 and 9-20 which depend
therefrom.
In conclusion, we have not sustained the Examiner’s
rejection of any of the claims on appeal under 35 U.S.C. §
103. Accordingly, the decision of the Examiner rejecting
claims 1-20 is reversed.
REVERSED

Appeal No. 96-4002
Application No. 08/121,849
9
LEE E. BARRETT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
lp
Appeal No. 96-4002
Application No. 08/121,849
10
THE B. F. GOODRICH COMPANY
PATENT LAW DEPT.
9921 BRESCKSVILLE ROAD
BRECKSVILLE, OH 44141-3289
Leticia
Appeal No. 96-4002
Application No. 08/121,849
APJ RUGGIERO
APJ FLEMING
APJ BARRETT
DECISION: REVERSED
Send Reference(s): Yes No
or Translation (s)
Panel Change: Yes No
Index Sheet-2901 Rejection(s): _____
Prepared: May 22, 2000
Draft Final
3 MEM. CONF. Y N
OB/HD GAU
PALM / ACTS 2 / BOOK
DISK (FOIA) / REPORT