Ex Parte Mercer

Board of Patent Appeals and Interferences

Oct 30, 2009

10281776 (B.P.A.I. Oct. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFFERY LYN MERCER
____________

Appeal 2009-003298
Application 10/281,776
Technology Center 2800
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Decided: October 30, 2009
____________

Before CATHERINE Q. TIMM, MICHAEL P. COLAIANNI, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.
Appeal 2009-003298
Application 10/281,776

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of pending claims 1-50. (Appellant’s Second Amended Appeal
Brief filed December 3, 2007, hereinafter “App. Br.,” 3). We have
jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellant describes a method of detecting an internal defect condition in
a mud pump. Claims 1, 4, 10, 14, and 40 are illustrative and recites:
1. A method of detecting an internal defect condition in a mud
pump, the method comprising:
a. sensing an acoustic signal from a location close to at least
one valve of the mud pump to optimize signal to noise
ratio; and
b. determining the internal defect condition based on a pre-
determined characteristics [sic] of the acoustic signal.

4. The method as in claim 1, wherein the sensing further
comprises recording on a media.

10. The method as in claim 1, wherein the acoustic signal
comprises a frequency spectrum of the response from the at
least one valve.

14. The method as in claim 1, wherein the pre-determined
characteristics of the acoustic signal comprises a signal
amplitude threshold.

40. The apparatus as in claim 34, wherein the acoustic
transducer further comprises an acceleration integrator to
provide a velocity output.

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The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
McShane US 5,115,672 May 26, 1992
Mallick US 5,915,278 Jun. 22, 1999
Reynolds US 6,829,542 B1 Dec. 7, 2004
Curran US 6,354,734 B1 Mar. 12, 2002
Appellant’s Admitted Prior Art (AAPA) Specification, p. 6, ll. 13-16,
para. [0021]

There are five grounds of rejection under 35 U.S.C. § 103(a) for
review on appeal1:
(1) The Examiner rejected claims 1-3, 8, 9, 11-13, 16, 20-22, 27-39,
43-45, and 47 as being unpatentable over Reynolds in view of AAPA;
(2) The Examiner rejected claims 4-7 and 23-26 as being
unpatentable over Reynolds in view of AAPA, further in view of Curran;
(3) The Examiner rejected claims 14, 15, 17-19, 46, and 48-50 as
being unpatentable over Reynolds in view of AAPA, further in view of
Sugiyama;
(4) The Examiner rejected claim 40 as being unpatentable over
Reynolds in view of AAPA, further in view of Mallick; and
(5) The Examiner rejected claims 10, 41, and 42 as being
unpatentable over Reynolds in view of AAPA, further in view of McShane.

1 The Examiner vacated the rejection of claims 1-50 under 35 U.S.C. §
102(e) as being anticipated by FiebelKorn. (See Ans. 2).
Additionally, we decline to consider Appellant’s request for review of
the Examiner’s statement that the Application names joint inventors and that
Appellant is obligated to identify the inventor and invention dates of each
claim. (App. Br. 5 and 13; Ans. 3-4). The Examiner merely advised
Appellant of their duty of disclosure under 37 C.F.R. § 1.56. Thus,
Appellant's proper remedy is through a timely petition to the Director under
37 C.F.R. § 1.181 (2009).
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Application 10/281,776

Appellant does not separately argue the claims subject to each of the
rejections on appeal. Accordingly, we confine our discussion to appealed
claims 1, 4, 10, and 40-42, which contain claim limitations representative of
the arguments made by Appellant pursuant to 37 C.F.R. § 41.37(c)(1)(vii).2

Ground of Rejection (1)
The Examiner found that Reynolds discloses a method of detecting an
internal defect condition in a mud pump based on predetermined
characteristics of an acoustic signal, but does not specifically disclose
optimizing signal to noise ratio. (Examiner’s Answer entered March 3,
2008, hereinafter “Ans.,” 4-5). The Examiner determined that in light of
paragraph [0021] of Appellant’s Specification, it would have been obvious
to one of ordinary skill in art that an arrangement of a plurality of sensors
with respect to the valves of the pump would improve the signal to noise
ratio. (Ans. 5). The Examiner also cites to Reynolds, which discloses the
use of additional sensors to monitor acoustic signatures of pumps, as well as
multiple sensors. (Ans. 12-13).
Appellant contends that the Examiner has misconstrued the
Specification as an admission of prior art. (App. Br. 8 and 9). Appellant
argues that the statement made in the Specification was meant to point out
other embodiments of the invention. (App. Br. 8).

2 Only those arguments actually made by Appellant have been considered in
this decision. Arguments which Appellant could have made but chose not to
make have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2009).
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Application 10/281,776

ISSUE
Has Appellant shown reversible error in the Examiner’s determination
that the cited prior art discloses the recited method of detecting an internal
defect condition in a mud pump?

FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence.
1. Reynolds discloses a method of measuring the acoustic sounds of a
pump in order to determine whether the operation of the pump
should be modified or if replacement or repair of a part is
necessary. (Col. 1, ll. 8-20).
2. Reynolds discloses that “additional sensors may be employed for
monitoring and detecting changes in the pump’s unique signatures,
such as acoustic or vibratory signatures.” (Col. 9, ll. 10-12).
3. Reynolds discloses monitoring valves (check valves 20, 28, 40,
and 48) in the pump by placing sensors (68a-68d) in close
proximity to the valves to be monitored. (Col. 6, ll. 48-65; Fig. 1).

PRINCIPLES OF LAW
Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner's position. See In re Kahn, 441 F.3d 977, 985-86 (Fed.
Cir. 2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie obviousness
or by rebutting the prima facie case with evidence of secondary indicia of
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nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir.
1998)).

ANALYSIS
We are unpersuaded that the Examiner erred in determining that
employing multiple sensors to improve the signal to noise ratio in sensing
acoustic signatures was known in the art in view of Reynolds and
Appellant’s Specification. Reynolds discloses that sensors are located in
close proximity to the valves monitored and also that multiple sensors may
be employed. (FF 3). This supports the Examiner’s conclusion that utilizing
multiple sensors in close proximity to improve signal to noise ratio would
have been obvious to one of ordinary skill in the art. It is also consistent
with Appellant’s Specification, which discloses that using multiple sensors
to improve signal to noise ratio would have been apparent to, and thus is
within the knowledge of, one of ordinary skill in the art. Indeed, Appellant
has not challenged the underlying fact that employing multiple sensors to
improve signal to noise ratios was known in the art.
Moreover, Appellant’s argument that the claims do not recite multiple
sensors is not persuasive. (App. Br. 9). It is well established that “an” can
be interpreted as “one or more” in claims including the open-ended
transitional phrase “comprising.” KCJ Corp. v. Kinetics Concepts Inc., 223
F.3d 1351, 1356-57 (Fed. Cir. 2000). Thus, the Examiner’s interpretation in
no way excludes a one sensor per valve configuration. The Examiner has
merely stated that the claims allow for more than one sensor per valve. Such
an interpretation does not necessarily exclude pumps having one sensor per
valve. Moreover, the cited portion of Appellant’s Specification includes the
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possibility of more than one sensor per valve. Last, Appellant’s contention
that the Examiner has ignored the description of sensor attachment in the
Specification is not commensurate in scope with the claims as none of the
claims recite any structural limitations relating to the manner in which the
sensors are “at a location close to at least one valve.”
We are also not persuaded by Appellant’s arguments that Reynolds
fails to show certain other elements of claim 1. (App. Br. 9-10). Most
notably, Appellant’s arguments that claim 1 is not directed to detection of
operation of the pump are without merit. We agree with the Examiner that
the acoustic sensors in Reynolds detect changes in the acoustic signatures of
the pump, which is similar to the method described by Appellant. (Ans. 13-
14). In addition, Appellant’s arguments that Reynolds senses longitudinal
waves and reverse flow in a check valve fail appreciate that Reynolds
specifically discloses sensing acoustic signatures. (FF 1 and 2).
Accordingly, Appellant’s argument that Reynolds fails to anticipate sensing
an acoustic signal from a location close to a valve is not persuasive.

Ground of Rejection (2)
The Examiner found that Reynolds does not disclose sensing
comprising recording on a media as recited in claim 4. (Ans. 8). The
Examiner determined that it would have been obvious to record acoustic
information on a media in view of Curran’s disclosure of recording
temperature and pressure data on different media in order to make the
information available for sharing or further review and analysis. (Ans. 8-9).
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Appellant contends that neither Reynolds nor Curran suggests or
discloses recording acoustic signals. (App. Br. 11). Appellants admit that
both Reynolds and Curran disclose sensing temperature. (App. Br. 11).
ISSUE
Has Appellant shown reversible error in the Examiner’s determination
that it would have been obvious to record the acoustic signals of Reynolds
on a media in view of Curran?
ADDITIONAL FINDINGS OF FACT
4. Reynolds discloses storing operational data in a memory, including
temperature information. (Col. 3, ll. 14-43).
5. Curran discloses that temperature output signals may be stored on
magnetic media, printed media, optical media, and electronic
media, or combinations thereof. (Col. 7, ll. 27-33).

ADDITIONAL PRINCIPLES OF LAW
In KSR, the Supreme Court explained, “[w]hen a work is available in
one field of endeavor, design incentives and other market forces can prompt
variations of it, either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, §103 likely bars its
patentability.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).

ANALYSIS
We agree with the Examiner that there is nothing in Curran to suggest
that because Curran only discloses temperature and pressure output signals,
temperature and pressure are the only parameters that may be recorded on
well known media. (Ans. 15). Appellant has not presented any persuasive
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evidence that one of ordinary skill in the art would not have been capable of
applying the recording techniques of Curran to the acoustic signals of
Reynolds. Therefore, Appellant has failed to show error in the Examiner’s
determination.

Ground of Rejection (3)
The Examiner found that Reynolds does not disclose the acoustic
signal comprises a signal amplitude threshold. (Ans. 9). The Examiner
found that Sugiyama discloses detecting leaking sound from a pipe by a
plurality of acoustic sensors, where the leaking sound is then compared to a
predetermined value corresponding to the linking sound when the breakage
of the pipe is at a minimum. (Ans. 9-10). The Examiner determined that it
would have been obvious in view of Sugiyama to have acoustic amplitude
detectors judge when the amplitude sensors detect signals larger than
predetermined values in order to trigger an alarm for warning an operator of
a possible malfunction in the pump or valve. (Ans. 10).
Appellant contends that Sugiyama is directed to a method of detecting
leakage of fluid from a broken pipe, which is not the same as detecting an
acoustic signal due to a defect condition in a mud pump. (App. Br. 11-12).
ISSUE
Has Appellant shown reversible error in the Examiner’s determination
that it would have been obvious to include a signal amplitude threshold in
the acoustic signal of Reynolds in view of Sugiyama?
ANALYSIS
The Examiner does not respond to Appellant’s arguments.
Accordingly, the Examiner has not provided a sufficient rationale as to why
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one of ordinary skill in the art would have looked to Sugiyama’s method,
dealing with broken pipes, in order to modify Reynolds’s method of
detecting acoustic signals in pumps. Therefore, Appellant has demonstrated
that the Examiner reversibly erred.

Ground of Rejection (4)
The Examiner found that Reynolds does not disclose an acceleration
integrator to provide a velocity output as recited in claim 40, but that
Mallick discloses accelerometers connected to electronic integrators. (Ans.
10). The Examiner determined that it would have been obvious to employ
the acceleration integrator of Mallick “because the integrators convert the
measured acceleration into velocities wherein these integrators are resistive-
capacitive circuits which act as low-pass filters in an efficient manner.”
(Ans. 10).
Appellant admits that “[a]cceleration integration to obtain velocity
and the corresponding circuits are well known to those skilled in the art” but
contends that “[i]t is the implementation for the particular system that makes
it unique.” (App. Br. 12).
ISSUE
Has Appellant shown reversible error in the Examiner’s determination
that it would have been obvious to include an acceleration integrator in the
acoustic transistor of Reynolds in view of Mallick?
ANALYSIS
We are not persuaded by Appellant’s arguments. Specifically,
Appellant admits that acceleration techniques are well known and have not
provided any persuasive evidence to rebut the Examiner’s determination that
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one would have obtained similar results when applying the techniques of
Mallick to Reynolds. (Ans. 15-16).

Ground of Rejection (5)
The Examiner found that Reynolds does not disclose an acoustic
signal comprising a frequency spectrum of the response from the at least one
valve, signal amplifier, or signal noise reduction circuitry. (Ans. 11-12).
The Examiner found that McShane discloses the signal processor provides a
frequency spectrum by the means of Fourier transform, that the output of a
transducer is connected to an amplifier, and filtering out lower frequencies.
(Ans. 11-12). The Examiner determined that it would have been obvious to
employ the techniques of McShane in order to “identify and quantize
effectively significant characteristics of the turbulence waveform in the
pump,” “derive a signal representative of the degree of modulation caused
by the downstream turbulences in a reliable manner,” and “provide an output
which is representative of pipe acoustic emission (AE) which would be
inputted to the signature analyzer for providing a further signal useful in
determining an accurate valve condition indication.” (Ans. 11-12).
Appellant contends that the present invention has no turbulence
induced signal modulation nor does it require demodulation of any
turbulence-induced signal. (App. Br. 12-13).
ISSUE
Has Appellant shown reversible error in the Examiner’s determination
that claims 10, 41, and 42 would have been obvious over Reynolds in view
of McShane?

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FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence.
6. McShane discloses that acoustic techniques are used in many
different monitoring applications. (Col. 1, ll. 36-38).
7. McShane discloses that detection of the valve condition may be
accomplished by monitoring the turbulence, which is indicative of
the valve condition. (Col. 2, ll. 12-17).
8. McShane discloses that the valve signature is related to valve
acoustic emission. (Col. 2, ll. 31-34).

ANALYSIS
We are not persuaded by Appellant’s argument that the present
invention does not have any turbulence induced signal modulation.
Appellant has failed to provide any persuasive evidence that the flow of mud
through the pump does not produce any turbulence. In addition, Appellant
has provided no persuasive evidence that the monitoring techniques of
McShane, which are applicable to detect valve acoustic emissions of fluids,
would not be applicable to the pumps of Reynolds. Therefore, Appellant has
failed to demonstrate the Examiner erred in rejecting claims 10, 41, and 42.

CONCLUSION
Appellant has failed to demonstrate reversible error in the Examiner’s
determination that the cited prior art discloses the recited method of
detecting an internal defect condition in a mud pump.
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Appellant has failed to demonstrate reversible error in the Examiner’s
determination that it would have been obvious to record the acoustic signals
of Reynolds on a media in view of Curran.
Appellant has failed to demonstrate reversible error in the Examiner’s
determination that it would have been obvious to include an acceleration
integrator in the acoustic transistor of Reynolds in view of Mallick.
Appellant has failed to demonstrate reversible error in the Examiner’s
determination that claims 10, 41, and 42 would have been obvious over
Reynolds in view of McShane.
Appellant has shown reversible error in the Examiner’s determination
that it would have been obvious to include a signal amplitude threshold in
the acoustic signal of Reynolds in view of Sugiyama.

ORDER
We affirm the Examiner’s decision rejecting claims 1-13, 16, 20-45,
and 47 under 35 U.S.C. § 103(a).
We reverse the Examiner’s decision rejecting 14, 15, 17-19, 46, and
48-50 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. §1.136(a)(1)(iv).
AFFIRMED-IN-PART

tc

HARISH DHINGRA
10700 ROCKLEY ROAD
HOUSTON, TX 77099
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