Ex Parte Paiva Nunes et alDownload PDFPatent Trial and Appeal BoardFeb 22, 201611896488 (P.T.A.B. Feb. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111896,488 08/31/2007 23117 7590 02/24/2016 NIXON & V ANDERHYE, PC 901 NORTH GLEBE ROAD, 11 TH FLOOR ARLINGTON, VA 22203 FIRST NAMED INVENTOR Luis Manoel Paiva Nunes 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 ATTORNEY DOCKET NO. CONFIRMATION NO. JHN-2764-186 5436 EXAMINER NGON,RICKY ART UNIT PAPER NUMBER 2862 NOTIFICATION DATE DELIVERY MODE 02/24/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LUIS MANO EL PAIVA NUNES, LEONARDO BRANTES BACELLAR MENDES, and DIORGENES PENTEADO Appeal2014-003422 Application 11/896,488 1 Technology Center 2800 Before JAMES R. HUGHES, TERRENCE W. McMILLIN, and MELISSA A. RAAP ALA, Administrative Patent Judges. McMILLIN, Administrative Patent Judge. DECISION ON APPEAL This is a decision2 on appeal under 35 U.S.C. § 134(a) of the final rejection of claims 7, 8, and 14. Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Petroleo Brasileiro S.A. App. Br. 3. 2 Our decision refers to the Final Office Action mailed April 20, 2012 ("Final Act."); Appellants' Appeal Brief filed January 11, 2013 ("App. Br."); the Examiner's Answer mailed November 4, 2013 ("Ans."); Appellants' Reply Brief filed January 6, 2014 ("Reply Br."); and the Specification filed August 31, 2007 ("Spec."). Appeal2014-003422 Application 11/896,488 REJECTION ON APPEAL Claims 7, 8, and 14 stand rejected under 35 U.S.C. § 102(b) as anticipated by Chang (US 5,791,187, Aug. 11, 1998) ("Chang"). Final Act. 2. THE CLAIMED INVENTION According to Appellants, the present invention relates, "to a wave and tide monitoring system that indirectly monitors variations in the water level around a tube that is hermetically sealed on the upper end and submerged in a liquid medium." Spec. 1. Sole, independent claim 7 is directed to a system. App. Br. 12. Claim 7 recites (disputed limitations italicized): A wave or tide monitoring system comprising: a hermetically sealed tube or pipe having a sealed upper end, an open lower end submerged in a body of water and an upper end extending above a surface of the body of water while the system monitors the wave or tide, and a gas column between the sealed upper end and the open lower end, wherein the pressure in the tube or pipe is indicative of the wave or tide, and the upper end is sealed continuously while the system senses the pressure in the tube or pipe to determine the wave or tide; a pressure sensor in the pipe or tube, and positioned to sense a pressure of the gas column, wherein the pressure sensor outputs pressure measurements of a pressure of the gas column which outputs are indicative of the wave or tide; a signal transmitter receiving the pressure measurements from the pressure sensor and transmitting a pressure signal conveying the pressure measurements; and a processor programmed to acquire the pressure data from the signal transmitter and processing the pressure data to 2 Appeal2014-003422 Application 11/896,488 determine vanat10ns in the pressure signals over a period of time, and generate a presentation representative of the variations in the pressure measurements which indicate the wave or tide and wherein the presentation indicates the variations in the wave or tide for a period of time. App. Br. 12. ANALYSIS We have reviewed the rejection of claims 7, 8, and 14 in light of Appellants' arguments presented in the Appeal Brief and Reply Brief. We are not persuaded that Appellants identify reversible error. Appellants argue Chang fails to disclose, "a hermetically sealed tube or pipe having a sealed upper end" and "a pressure sensor in the pipe or tube," as recited in claim 7. App. Br. 7-11; Reply Br. 2-5. Although not discussed in the Appeal Brief or the Examiner's Answer, Figure 2B and column 6, lines 6-8, of Chang are cited by the Examiner as disclosing "a hermetically sealed tube or pipe" and that Figure 3 and column 8, lines 33--44, of Chang are cited as disclosing "a pressure sensor in the pipe or tube" in the Final Office Action. Final Act. 2-3. Figure 2B of Chang is reproduced below: 3 Appeal2014-003422 Application 11/896,488 ~IL::i26 Figure 2B of Chang depicts apparatus to measure water column pressure. Chang 5: 1-3. Figures 2B and 3 of Chang disclose straight, vertically oriented tubes or pipes (reference numbers 3 and 4) with pressure sensors (reference number 2) in the tubes or pipes (see, Figure 2B, 5:41--43). In the Reply Brief, Appellants cite Figure 2 of Chang as describing, "Chang measures the pressure in the buffer tank and not in the tube." Reply Br. 5. There is no buffer tank disclosed in Figure 2 of Chang. Thus, Appellants have not shown that the findings in the Final Office Action that Chang discloses "a hermetically sealed tube or pipe" and "a pressure sensor in the pipe or tube" are in error. 3 Moreover, we observe that most of the argument in the Appeal Brief is directed to non-obviousness. App. Br. 8-10. For example, Appellant argues, "[i]t would not have been obvious to seal the upper end of the tube ( 4) in Chang because sealing the tube would isolate the tube from the buffer 3 Appellants failure to persuasively rebut the Examiner's findings in the Final Office Action is dispositive of the appeal. Thus, we decline to address Appellants' arguments in the Appeal Brief (App. Br. 7-10) arguing that different portions of Chang do not disclose the disputed limitations. 4 Appeal2014-003422 Application 11/896,488 tank and render useless the buffer tank and pressure sensor" (Id. at 8 (emphasis added)) and "Applying Zumbiel4 to the obviousness issue presented in this appeal, the rejection for obviousness should be reversed because Chang teaches away from inserting a pressure sensor in a tube or measuring the pressure in the tube" (Id. at 10 (emphasis added)). 5 However, the only rejection is based on anticipation. Final Act. 2. The arguments related to obviousness are not persuasive. We are not persuaded the Examiner erred in rejecting sole, independent claim 7 as anticipated by Chang. Dependent claims 8 and 14 are not separately argued. Therefore, we affirm the rejection of all the pending claims. DECISION The rejection of claims 7, 8, and 14 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 4 C. W. Zumbiel Co., Inc. v Kappas, 702 F.3d 1371 (Fed. Cir. 2012). Zumbiel relates to obviousness, not anticipation. 702 F.3d at 1373. 5 Included in Appellants' arguments misdirected to obviousness is a "teaching away" argument. App. Br. 9--10. This argument is not applicable to the rejection based on anticipation. MPEP §2131.05 ("The question whether a reference 'teaches away' frorn the invention is inapplicable to an anticipation analysis.'')( citations omitted). 5 Copy with citationCopy as parenthetical citation