Ex Parte Orleskie et al

Board of Patent Appeals and Interferences

Sep 29, 2005

10119283 (B.P.A.I. Sep. 29, 2005)

1
The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte CHARLES THEODORE ORLESKIE
and TERRY XEN BEACHEY
__________
Appeal No. 2005-2404
Application No. 10/119,283
___________
ON BRIEF
___________
Before HAIRSTON, KRASS, and OWENS, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from the final rejection of claims 1-15
and 17-21, which are all of the pending claims.
THE INVENTION
The appellants claim differential pressure flow measurement
devices. Claims 1 and 21 are illustrative:
1. An averaging differential pressure primary flow measuring
element for insertion between sections of a fluid carrying
conduit, comprising,
Appeal No. 2005-2404
Application No. 10/119,283
2
first and second annular mounting flanges having
circumferential outside surfaces and interior openings that
correspond in shape and size to the inside cross section of the
conduit,
planar flow impedance means having a center point, said
means being disposed between the first and second annular
mounting flanges, where the center point is coaxial with the
longitudinal axes of the interior openings of the flanges, and
said means having
a plurality of circular apertures eccentrically disposed
with respect to the center point of the impedance means.
21. A differential pressure flow meter for determining the
volumetric rate of fluid flow in a circular fluid conducting
conduit, comprising,
an annulus having,
a central opening that corresponds in shape and size to the
inside fluid conducting section of the circular conduit, and
a pitot tube type of fluid flow meter having a body that
includes upstream and downstream facing surfaces carried by and
mounted diametrically across the central opening of the annulus.
THE REFERENCES
Nowacki et al. (Nowacki) 4,884,460 Dec. 5, 1989
Wiklund et al. (Wiklund) 5,817,950 Oct. 6, 1998
Kleven (Kleven ‘568) 6,311,568 Nov. 6, 2001
Kleven (Kleven ‘297) 6,543,297 Apr. 8, 2003
(filed Sep. 13, 1999)
Appeal No. 2005-2404
Application No. 10/119,283
3
THE REJECTIONS
The claims stand rejected as obvious under 35 U.S.C. § 103
as follows: claims 1-15 over Kleven ‘297 in view of Nowacki,
claims 17 and 21 over Kleven ‘297 in view of Wiklund, claims 18
and 19 over Kleven ‘297 in view of Wiklund and Kleven ‘568, and
claim 20 over Kleven ‘297 in view of Nowacki and Kleven ‘568.
OPINION
We affirm the rejections of claims 1-15 and 20, and reverse
the rejections of claims 17-19 and 21.
Claims 1-15 and 20
The appellants state that claims 1-15 and 20 stand or fall
together (brief, page 8). We therefore limit our discussion to
one claim in this group, i.e., claim 1. See In re Ochiai,
71 F.3d 1565, 1566 n.2, 37 USPQ2d 1127, 1129 n.2 (Fed. Cir.
1995); 37 CFR § 1.192(c)(7)(1997).
Kleven ‘297 discloses a differential pressure flow
plate (102) which has a central opening (112) and is insertable
between pipe flanges (54, 56).
Nowacki discloses an air flow sensing venturi device having
a flow restriction with four axially extending cylindrical
bores (40) which, Nowacki states, “have been found to produce
Appeal No. 2005-2404
Application No. 10/119,283
4
superior results as compared with a conventional single large
bore” (col. 1, lines 45-48; col. 2, lines 50-56). Nowacki
discloses (col. 3, lines 54-62):
As compared with a single large hole or bore of
substantially equal area, there is 30% less restriction
to flow. Therefore, a stronger signal is obtained.
Air volume of approximately 5 to 120 liters/minute can
now be measured, as contrasted with a range of
20-120 liters/minute with a single hole. This is due
to better control of air flow without molecules of air
collecting in the flow path. There is also less
tumbling of the air.
The appellants acknowledge that Kleven ‘297 discloses all
aspects of claim 1 except the plurality of circular apertures
eccentrically disposed with respect to the center point of the
impedance means (brief, page 5).
The appellants argue that Nowacki’s bore (40) cannot
reasonably be substituted for the single flow opening (112) of
Kleven ‘297 because a bore is not a substitute for an aperture
which, the appellants argue, is a hole or opening in an otherwise
solid wall or surface (brief, page 7; reply brief, pages 4-6).
The test for obviousness is not whether the features of one
reference may be bodily incorporated into the structure of
another reference, or whether one or all of the references must
expressly suggest the claimed invention but, rather, is what the
Appeal No. 2005-2404
Application No. 10/119,283
5
combined teachings of the references would have fairly suggested
to one of ordinary skill in the art. See In re Keller, 642 F.2d
413, 425, 208 USPQ 871, 881 (CCPA 1981); In re Wood, 599 F.2d
1032, 1036-37, 202 USPQ 171, 174 (CCPA 1979); In re Van Beckum,
438 F.2d 1001, 1005, 169 USPQ 47, 50 (CCPA 1971); In re Bozek,
416 F.2d 1385, 1390, 163 USPQ 545, 549-50 (CCPA 1969); In re
Cochran, 374 F.2d 1017, 1023, 153 USPQ 195, 201 (CCPA 1967).
Nowacki’s disclosure that, compared to a single large hole or
bore of substantially equal area, a plurality of small bores
provides 1) less restriction to flow and, therefore, a stronger
signal, 2) better control of air flow without molecules of air
collecting in the flow path, and 3) less tumbling of air (col. 3,
lines 53-62), would have fairly suggested, to one of ordinary
skill in the art, the use of a plurality of small holes instead
of the Kleven ‘297 single large hole to obtain those benefits.
The appellants argue that one of ordinary skill in the art,
in combining the references, would not have had a reasonable
expectation of success when seeking to average pressures produced
by a non-symmetrical fluid profile (brief, pages 9-10; rely
brief, pages 7-8). This argument is not well taken because to
establish a prima facie case of obviousness, references need not
Appeal No. 2005-2404
Application No. 10/119,283
6
be combined for the purpose of solving the problem solved by the
appellants. See In re Kemps, 97 F.3d 1427, 1430, 40 USPQ2d 1309,
1311 (Fed. Cir. 1996); In re Beattie, 974 F.2d 1309, 1312, 24
USPQ2d 1040, 1042 (Fed. Cir. 1992); In re Dillon, 919 F.2d 688,
693, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc), cert.
denied, 500 U.S. 904 (1991); In re Lintner, 458 F.2d 1013, 1016,
173 USPQ 560, 562 (CCPA 1972). One of ordinary skill in the art
would have combined the references to improve the air flow
control and reduce the flow restriction and air tumbling in the
Kleven ‘297 device as discussed above.
We therefore conclude that the flow measuring element
claimed in the appellants’ claim 1 would have been obvious to one
of ordinary skill in the art over the applied references.
Accordingly, we affirm the rejection of that claim and claims 2-
15 and 20 that stand or fall therewith.
Claims 17-19 and 21
The appellants’ claim 21 requires a pitot tube type flow
meter having a body that includes upstream and downstream facing
surfaces carried by and mounted diametrically across the central
opening of an annulus.
Wiklund discloses an averaging pitot tube type primary
Appeal No. 2005-2404
Application No. 10/119,283
7
element (14) that penetrates into a pipe (12) and has
forward (30B) and downstream (30C) facing pitot tubes that
connect to a sensor body (22) of a transmitter (10) (col. 4,
lines 4-13).
The examiner argues (answer, pages 6-7):
Wiklund discloses a flow measurement apparatus
comprising a pitot tube type of fluid flow meter having
a body that includes upstream and downstream facing
surfaces 30B, 30C for the purpose of measuring pressure
across a fixed restriction in a pipe (column 3,
line 35 - column 4, line 3). Kleven ‘297 and Wiklund
are both from the same field of endeavor, the purpose
disclosed by Wiklund would have been recognized in the
pertinent art of Kleven ‘297. Therefore, at the time
the invention was made, it would have been obvious to
one of ordinary skill in the art to include in
Kleven ‘297, the teachings of Wiklund, for the purpose
of measuring pressure proximate a fixed restriction in
a pipe.
Perhaps, because the devices of both Kleven ‘297 and Wiklund
are flow measurement devices, those references would have fairly
suggested, to one of ordinary skill in the art, using the devices
together to measure flow. The examiner, however, has not
explained how those references would have fairly suggested, to
one of ordinary skill in the art, the appellants’ pitot tube type
flow meter having upstream and downstream facing surfaces carried
Appeal No. 2005-2404
Application No. 10/119,283
1 The examiner does not rely upon Kleven ‘568 for any
disclosure that remedies the above-discussed deficiency in
Kleven ‘297 and Wiklund.
8
by and mounted diametrically across the central opening of an
annulus.
The examiner, therefore, has not carried the burden of
establishing a prima facie case of obviousness of the flow meter
claimed in the appellants’ claim 21. Consequently, we reverse
the rejection of that claim and claims 17-19 that depend directly
or indirectly therefrom.1
DECISION
The rejections under 35 U.S.C. § 103 of claims 1-15 over
Kleven ‘297 in view of Nowacki, and claim 20 over Kleven ‘297 in
view of Nowacki and Kleven ‘568, are affirmed. The rejections of
claims 17 and 21 over Kleven ‘297 in view of Wiklund, and
claims 18 and 19 over Kleven ‘297 in view of Wiklund and
Kleven ‘568, are reversed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR §
Appeal No. 2005-2404
Application No. 10/119,283
9
1.136(a)(1)(iv) (effective Sep. 13, 2004; 69 Fed. Req. 49960
(Aug. 12, 2004); 1286 Off. Gaz. Pat. Office 21 (Sep. 7, 2004)).
AFFIRMED-IN-PART
TERRY J. OWENS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
)
ERROL A. KRASS ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
)
)
KENNETH W. HAIRSTON )
Administrative Patent Judge )
TJO/dpv
Appeal No. 2005-2404
Application No. 10/119,283
10
Hanes & Schutz, P.C.
102 S. Tejon St.
Suite 800
Colorado Springs, CO 80903