Ex Parte Lark et alDownload PDFBoard of Patent Appeals and InterferencesMar 9, 201011084645 (B.P.A.I. Mar. 9, 2010) Copy Citation 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 ___________ Decided: March 9, 2010 ___________ 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 We REVERSE. 1 Claims 10-15 are also pending but have been withdrawn from consideration.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. 2 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). 3 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 4 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. 5 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 SHUMAKER & SIEFFERT, P. A. 1625 RADIO DRIVE SUITE 300 WOODBURY, MN 55125 6 Copy with citationCopy as parenthetical citation