Ex Parte Oklejas

Board of Patent Appeals and Interferences

Oct 25, 2011

11811622 (B.P.A.I. Oct. 25, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/811,622 06/11/2007 Eli Oklejas JR. 9269-000002 7671
27572 7590 10/26/2011
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
ANDERSON, DENISE R
ART UNIT PAPER NUMBER
1778
MAIL DATE DELIVERY MODE
10/26/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ELI OKLEJA, JR.
____________

Appeal 2010-005855
Application 11/811,622
Technology Center 1700
____________

Before BRADLEY R. GARRIS, LINDA M. GAUDETTE, and
MARK NAGUMO, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2010-005855
Application 11/811,622

2
DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 1-15.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Claim 1 is representative of the invention and is reproduced below from the
Claims Appendix to the Appeal Brief:

1. A reverse osmosis system comprising:
a membrane chamber having a feed line and generating a permeate stream
and a brine stream;
a feed pump pressurizing the feed line;
a first flow meter generating a first flow signal corresponding to a flow of
fluid in the permeate stream;
a booster device having a turbine portion in fluid communication with the
brine stream and a pump portion in fluid communication with the feed line;
a motor coupled to the turbine device;
a variable frequency drive attached to the motor operating the motor in
response to the first flow signal;
a second flow meter generating a second flow signal corresponding to a flow
of fluid in the brine stream; and
a variable size nozzle fluidically coupled to the turbine portion operating an
opening to the turbine portion in response to the second flow signal.

Appellant requests review of the following grounds of rejection (App. Br. 4):
1. claims 1-7 under 35 U.S.C. §103 as unpatentable over Keefer (US
4,973,408, issued Nov. 27, 1990) in view of Oklejas (US 6,139,740, issued Oct.
31, 2000) (Ans.3 4-10); and
2. claims 8-15 under 35 U.S.C. §103 as unpatentable over Keefer in view of

1 Final Office Action mailed Jul. 24, 2009 (“Final”).
2 Appeal Brief filed Dec. 4, 2009 (“App. Br.”)
3 Examiner’s Answer mailed Jan. 13, 2010.
Appeal 2010-005855
Application 11/811,622

3
Oklejas in further view of Chancellor (US 6,589,423, issued Jul. 8, 2003) (Ans. 10-
12).
Appellant advances several arguments in support of patentability of the
claims. (See generally, App. Br. 5-10.) We limit our discussion to the following
issue which is dispositive of the appeal:
Did the Examiner reversibly err in determining that the combined teachings
of Keefer and Oklejas disclose or suggest “a first flow meter generating a first flow
signal corresponding to a flow of fluid in the permeate stream” and “a variable
frequency drive attached to the motor operating the motor in response to the first
flow signal” as recited in the independent claims (i.e., claims 1 and 8)?
In the Final Office Action, the Examiner relied on Keefer figures 5 and 6 in
support of a finding that “Keefer discloses a motor, coupled to the turbine with a
variable frequency drive.” (Final 2.) The Examiner further found Keefer’s
variable speed drive operates in response to a first flow signal sent by a first flow
meter. (Final 2-3.) The Examiner relied on the following in support of this latter
finding:
Keefer teaches that the mass balance for the three streams flowing in
and out of the membrane chamber is:

Qp = Qf – Qr

where Qp is the permeate flow, Qf is the feed flow, and Qr is the
concentrate flow, i.e., applicant's brine flow. Keefer, col. 6, lines 45-
49. Given the mass balance, there must be at least two flow stream
measurements to measure the three flow rates. In the claim, the
recited first flow meter corresponds to the permeate flow Qp and the
recited second flow meter corresponds to the brine flow Qr. Keefer
further teaches a control system with measurements of Qp, Qf, and
Qp/Qf. Keefer, col. 6, line 67 to col. 7, line 18. Therefore, the Keefer
first flow meter corresponds to permeate flow Qp.

Appeal 2010-005855
Application 11/811,622

4
(Final 4; see also, Final 13-14.)
Appellant argues the Examiner failed to properly identify a teaching of a
first flow meter, as well as a first flow signal generated by such flow meter which
is used to control a variable frequency, as required by the claims. (App. Br. 5.)
The Examiner, in the Answer, continues to maintain Keefer discloses
measuring a first flow signal corresponding to flow of fluid in the permeate stream,
but now concedes Keefer does not explicitly disclose a flow meter for generating
the signal. (App. Br. 6-7.) The Examiner thus relies on Oklejas, contending “[i]t
would have been obvious to one having ordinary skill in the art at the time the
invention was made to have used flow meters to generate the Keefer first flow rate
signal and second flow rate signal as taught by Oklejas since Oklejas states in the
Title that such flow meters would be useful ‘for improving efficiency of a reverse
osmosis system.’” (Ans. 7.)
We are in agreement with Appellant that the Examiner has failed to identify
a teaching or suggestion of a variable frequency drive which operates in response
to a flow signal generated by a flow meter as required by the claims. (Rep. Br.4 4.)
The description in Keefer relied upon by the Examiner to establish
measurement of a flow signal (see e.g., Keefer cols. 6-7, cited in Final 4) merely
provides an explanation of how flows change in a membrane separation system.
(App. Br. 5, 7.) Keefer Figs. 2-4, relied upon by the Examiner in Answer (Ans. 6-
7, 16), show mathematically derived flow and pressure relationships in a
membrane separation system for different types of booster pump assemblies (see
Keefer col. 10, ll. 49-57). However, there is no disclosure of actual steps of
measuring permeate flow and adjusting a variable frequency drive in response to
such measurement.

4 Reply Brief filed Feb. 4, 2010
Appeal 2010-005855
Application 11/811,622

5
While Oklejas does disclose the use of a product flow meter, as conceded by
Appellant (Rep. Br. 4), the Examiner has not convincingly explained why
including such flow meter in Keefer would result in a system in which a variable
frequency drive would operate a motor attached thereto in response to a flow signal
generated by the flow meter as required by the claims. In this regard, we note the
Examiner has not refuted Appellant’s argument that Oklejas, like Keefer, fails to
teach adjusting a variable frequency drive in response to a flow signal. (See Rep.
Br. 4.)
In sum, Appellant has convincingly shown the Examiner failed to establish a
prima facie case of obviousness because a preponderance of the evidence does not
support a finding that Keefer and Oklejas, alone or in combination, disclose “a first
flow meter generating a first flow signal corresponding to a flow of fluid in the
permeate stream” and “a variable frequency drive attached to the motor operating
the motor in response to the first flow signal” as recited in independent claims 1
and 8. Accordingly, we do not sustain the rejections of claims 1-15.
REVERSED

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