Ex parte Petit

Board of Patent Appeals and Interferences

Mar 31, 1999

08195397 (B.P.A.I. Mar. 31, 1999)

Application for patent filed February 14, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte PETER J. PETIT

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Appeal No. 96-3796
Application 08/195,3971
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ON BRIEF
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Before CALVERT, ABRAMS and GONZALES, Administrative Patent Judges.
CALVERT, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 11, 15, 22 to 27, 34 and 35, all the claims
remaining in the application.
Appeal No. 96-3796
Application 08/195,397
An additional rejection of claims 11 to 13, under 35 U.S.C. § 102(b), was withdrawn in view2
of an amendment after final rejection (filed June 5, 1995), in which, inter alia, claim 11 was amended
and claims 12 and 13 were canceled.
The examiner evidently intended to apply both of the two cited Moseley patents in this3
rejection.
2
The claims on appeal are drawn to a reactor apparatus. As disclosed in the specification,
impurities are removed from waste water by microorganisms supported on a substrate of particulate
solids in the reactor tank. Claims 11 and 15 are reproduced in the appendix to the examiner's answer,
and the rest of the appealed claims are set forth in the appendix to appellant's brief.
The references applied in the final rejection are:
Moseley (Moseley '169) 306,169 Oct. 7, 1884
Moseley (Moseley '171) 306,171 Oct. 7, 1884
Hickey et al. (Hickey '144) 4,177,144 Dec. 4, 1979
Hickey et al. (Hickey '033) 4,250,033 Feb. 10, 1981
Weisenbarger et al. (Weisenbarger) 4,543,186 Sep. 24, 1985
The claims on appeal stand finally rejected under 35 U.S.C. § 103 on the following grounds: 2
(1) Claims 11, 15 and 22 to 27, unpatentable over Hickey '144 in view of Weisenbarger;
(2) Claims 34 and 35, unpatentable over Hickey '144 in view of Weisenbarger, Hickey '033 and
Moseley.3
Rejection (1)
The basis of this rejection is stated on page 3 of the examiner's answer. We will consider this
rejection with regard to independent claims 11, 15 and 22, seriatim.
Appeal No. 96-3796
Application 08/195,397
We note that "said flow constricting means" in lines 20 and 21 has no antecedent basis. This4
informality should be corrected in subsequent prosecution.
3
(a) Claim 11
Appellant argues, inter alia, that Hickey '144 does not disclose, and Weisenbarger would not
have rendered obvious, the recited "adjustable means in said agitator line for shearing excess amounts
of said material ..." The examiner states in his answer that this limitation is met by a valve, such as
shown in Fig. 8 of Hickey '144.
We do not agree with the examiner. While Hickey '144 discloses various shearing means in the
agitator line 29, such as static mixer 30A and sinuous path 29A, none of them is disclosed as
adjustable. As for the valve (31) of Fig. 8, to which the examiner refers, Hickey '144 does not disclose
that it is adjustable or performs a shearing function, unlike the throttle valve 94 disclosed by appellant.
The only apparently adjustable shearing means in the agitator line 29 disclosed by Hickey '144 might be
pump 30, but the "adjustable means" recited in claim 11 is not readable thereon because the claim also
recites a pumping means in the agitator line.
The rejection of claim 11 will therefore not be sustained.
(b) Claim 15
This claim requires that the agitator line, pumping means and flow constricting means be4
contained "within said separator column." Hickey '144 does not disclose that line 29, pump 30 and
flow constrictor 29A or 30A are located in the separator column 17, and we find no disclosure in
Appeal No. 96-3796
Application 08/195,397
4
Weisenbarger which would have suggested locating them in that position. Moreover, even if it might be
concluded that such a location would have been obvious in view of Weisenbarger's Fig. 1 embodiment
(analogizing casing 10 to the separator column), the agitator apparatus would not be removable from
the tank without disconnection from the separator column, as claimed, because the disclosure of
Weisenbarger that the pump 16, tube 36, etc., are attached to the casing 10 at adapter 18 would
suggest to one of ordinary skill that the agitator apparatus of Hickey '144 be connected to separator
column 17.
Accordingly, we will not sustain the rejection of claim 15.
(c) Claim 22
In this claim, the agitator circuit is recited as being "supported in said reactor tank" (emphasis
added). We do not consider that it would have been obvious to one of ordinary skill, in view of
Weisenbarger, to locate the Hickey '144 loop (i.e., withdrawal conduit and return conduit) and shearing
means 29A or 30A in reactor tank 10. Since Weisenbarger does not disclose the use of any type of
additional tubular member within casing 10, we consider that, at most, it may have been obvious to
locate the agitator circuit of Hickey '144 within separator column 17, but in that case the agitator circuit
could not be removed from the tank without disconnection from the separator column, as discussed
above with regard to the rejection of claim 15.
The rejection of claim 22, and thus of claims 23 to 27 dependent thereon, will not be sustained.
Appeal No. 96-3796
Application 08/195,397
5
Rejection (2)
We will not sustain the rejection of claim 34, since the additional secondary references, Hickey
'033 and Moseley, do not overcome the deficiencies of Hickey '144 and Weisenbarger noted above as
to parent claim 22.
We also will not sustain the rejection of claim 35. Assuming arguendo that it would have been
obvious, in view of Hickey '033, to add a reduced-diameter bottom section extension to the bottom of
separator column 17 of Hickey '144, we find nothing in either of the Moseley patents which would have
suggested or motivated one of ordinary skill in the art to make such bottom section extension
"telescopically received" in the bottom section, as required by claim 35. Considering the Moseley '169
patent, for example, the telescopic sections G and G extend upward so that the length of the pipe G1 2
can be adapted to the level of the upper end C of the liquid B in container A (page 2, lines 26 to 51).
The examiner states on page 6 of the answer that Moseley's telescopic tubes "are obviously applicable
for other level adjustability applications," but since the separator columns of both Hickey '144 and '033
are fixed in the tank and the reduced-diameter bottom extension C of Hickey '033 extends
downwardly from the bottom of the separator column, it is not evident how the bottom extension would
be involved in any level adjustability.
Conclusion
Appeal No. 96-3796
Application 08/195,397
6
The examiner's decision to reject claims 11, 15, 22 to 27, 34 and 35 is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
) BOARD OF PATENT
) APPEALS AND
NEAL E. ABRAMS ) INTERFERENCES
Administrative Patent Judge )
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
IAC/dal
Appeal No. 96-3796
Application 08/195,397
7
DAVID B. SMITH
MICHAEL, BEST & FRIEDRICH
100 EAST WISCONSIN AVE.
MILWAUKEE, WI 53202-4108