Ex Parte Lark et al

Board of Patent Appeals and Interferences

Mar 9, 2010

11084645 (B.P.A.I. Mar. 9, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte LARRY MITCHELL LARK,
DARREN JAHNKE, ERIC WILLMAN,
and WARREN PANNKUK
__________

Appeal 2009-003108
Application 11/084,645
Technology Center 1700
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Decided: March 9, 2010
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Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
TERRY J. OWENS, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
rejecting claims 1-9, 16, and 18-21.1 We have jurisdiction under 35 U.S.C.
§ 6(b). We REVERSE.

1 Claims 10-15 are also pending but have been withdrawn from
consideration. See Final Office Action dated May 30, 2007 (“Final”), at 1.
Appeal 2009-003108
Application 11/084,645

Claims 1, 16, and 21 are the independent claims on appeal. Claim 1,
reproduced below, is representative of the subject matter on appeal.
1. A system comprising:

a storage tank that stores at least one component
chemical concentrate;

a controller that receives an instruction requesting
formulation of a specified amount of a chemical solution and
determines a target volume of water and a target weight of the
at least one component chemical concentrate based on the
specified amount of the chemical solution;

an output port that receives water from a water source
and the at least one component chemical concentrate from the
storage tank and dispenses the water and the at least one
component chemical concentrate to a solution container;

a flow meter that measures volumetric readings
representing a volume of the water supplied from the water
source to the output port; and

a weight measuring device that measures weight readings
representing an actual weight of the at least one component
chemical concentrate contained in the storage tank,

wherein the controller further controls supply of the
water to the output port based on the volumetric readings and
controls supply of the at least one component chemical
concentrate to the output port based on the weight readings to
form the specified amount of the chemical solution.

Br., Claims Appendix (emphasis added).2
The following Examiner’s rejections are before us on appeal:3

2 Appeal Brief dated October 29, 2007.
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Appeal 2009-003108
Application 11/084,645

(1) Claims 1-5, 7-9, 16, and 18-21 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Tomlinson.4
(2) Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Tomlinson and Advanced Sterilization Products®.5
B. ISSUE
Have the Appellants identified reversible error in the Examiner’s
conclusion that the teachings of Tomlinson render obvious a controller that
receives an instruction requesting formulation of a specified amount of a
chemical solution as recited in the claims on appeal?
C. FINDINGS OF FACT
According to Tomlinson:
[I]t is often necessary in blending materials to perform the
blending in a field environment for extended periods. In the oil
industry it is necessary at times to prepare mixtures of
substances and to pump them downhole for extended periods of
time. For example, blended fracturing mixtures are, at times,
needed for several hours. This requires tons of chemicals to be
continually blended. . . . Therefore, there is . . . a need for [a]
control system to continuously and automatically control the
metering of the additives.

Tomlinson 1:37-48.
Tomlinson discloses an apparatus for continuously automatically
metering the amount of an additive in response to the rates of discharge of

3 Claim 21 was finally rejected under 35 U.S.C. § 112, second paragraph.
Final 2-3. However, the rejection was withdrawn in the Examiner’s Answer.
Examiner’s Answer dated February 4, 2008 (“Answer”), at 9.
4 US 4,353,482 to Tomlinson et al. issued October 12, 1982.
5 Advanced Sterilization Products, Automatic Endoscope Reprocessor
Installation Requirements and Product Specifications 1-8 (2003).
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Appeal 2009-003108
Application 11/084,645

both the additive and the substance with which the additive is to be blended.
Tomlinson 1:4-11.
Tomlinson Figure 1, reproduced below, illustrates a functional block
diagram of the apparatus. Tomlinson 3:12-13.

Tomlinson Figure 1 depicts a block diagram
of the disclosed metering apparatus.

Tomlinson discloses:
[The apparatus] includes a control unit 4 which is responsive to
an additive unit 6, having means for determining the amount of
an additive being discharged therefrom, and a primary
substance unit 8, having means for sensing the amount of a
primary substance being discharged therefrom, as depicted by
the arrows 10 and 12, respectively. In response to inputs from
the additive unit 6 and the primary unit 8, the control unit 4
controls the amount of the additive being discharged from the
additive unit. The control is represented by the arrow 14 and
the additive unit discharge is represented by the arrow 16.

Tomlinson 3:37-49.
Tomlinson further explains:
[T]he present invention utilizes both the actual amounts of
additive discharged (e.g., the liquid additive flow rates and the
dry additive weights) and the amount of primary substance
discharged (e.g., the actual flow rate of the primary substance
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Appeal 2009-003108
Application 11/084,645

or the simulated flow rate), as well as the concentration, density
and desired flow rate values entered through the data input and
data readout display panel 132, to achieve continuous automatic
metering of both liquid and dry additives.

Tomlinson 12:30-39.
D. ANALYSIS
The Appellants argue that Tomlinson controls the flow rate of additive
substances based on the flow rate of the primary substance but does not
control the flow rate of the primary substance or the amount of the resultant
blend produced. Thus, the Appellants argue that Tomlinson does not teach
or suggest a controller that receives an instruction requesting formulation of
a specified amount of a chemical solution as recited in the claims on appeal.
Br. 10-11.
The Examiner argues that although Tomlinson may not expressly
indicate that a specified amount of a chemical solution is output at the end of
the process, the steps taken in Tomlinson to make a desired blend in a
controllable fashion implicitly define control in processing a specified
amount of a blend. Ans. 7-8.
As correctly pointed out by the Appellants, in order to make a
specified amount of a chemical solution, the amounts of all substances in the
chemical solution must be controlled, e.g., liquid additives, dry additives,
primary substance. See Br. 11. In this case, the controller of Tomlinson
does not control the amount of the primary substance but only senses its
flow rate. Thus, we find that the controller of Tomlinson is not configured
to receive an instruction requesting formulation of a specified amount of a
chemical solution.
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Appeal 2009-003108
Application 11/084,645

The Examiner also argues that it would have been obvious to make a
specified amount of the blend since the blend will be stored and/or
contained. Ans. 7-8.
The apparatus disclosed in Tomlinson continuously and automatically
meters the amounts of additives in response to the discharge rates of the
additives and the primary substance. The Examiner has failed to direct us to
any disclosure in Tomlinson suggesting that the blend is intended to be
stored and/or contained. See, e.g., Tomlinson 1:37-48 (discussing continual
blending in a field environment for extended periods of time). Thus, on this
record, it is unclear why one of ordinary skill in the art would have modified
the apparatus disclosed in Tomlinson, and more particularly, reconfigured
the disclosed controller, to make a specified amount of the blend.
For the reasons set forth above, we will not sustain the Examiner’s
rejections on appeal.
E. DECISION
The decision of the Examiner is reversed.

REVERSED

tc
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