Ex Parte Smith

Patent Trial and Appeal Board

Dec 16, 2014

13424281 (P.T.A.B. Dec. 16, 2014)

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.
13/424,281 03/19/2012 Robert Smith 523.41 5006
85444 7590 12/16/2014
Bay Area Technolgy Law Group PC
2171 E. Francisco Blvd., Suite L
San Rafael, CA 94901
EXAMINER
SORKIN, DAVID L
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
12/16/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT SMITH

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Appeal 2013-003348
Application 13/424,281
Technology Center 1700
____________

Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and
N. WHITNEY WILSON, Administrative Patent Judges.

HASTINGS, Administrative Patent Judges.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1–5 under 35 U.S.C. § 103(a) as unpatentable over
the combined prior art of Bracht (WO 2004/101125 A1, published Nov. 25,
2004) and Harvey (US 5,792,371, issued Aug. 11, 1998).
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claim 1 is representative of the claimed subject matter (emphasis
added):
1. A flow conditioner for a fluid traveling through a conduit
comprising a conduit having a longitudinal axis and substantially circular
cross-section, said fluid conditioner further comprising a static mixer
Appeal 2013-003348
Application 13/424,281

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element and plate, said static mixer element positioned upstream of said
plate, wherein said plate is substantially circular and substantially
perpendicular to said longitudinal axis, and substantially covering the cross-
section of said conduit and having a plurality of openings between
approximately .375 and .675 inches in size to facilitate the passage of said
fluid within said conduit, said openings being of a size and density to
substantially eliminate any fluid profile resulting in said fluid being
distributed evenly across said conduit, and further comprising a fluid flow
meter, said fluid flow meter receiving and discharging fluid flowing within
said conduit having been acted upon by said flow conditioner.

Independent claim 2 similarly recites a flow conditioner having a
static mixer, plate, and flow meter, and additionally functionally recites the
reduced distance achievable between the plate and an upstream flow
disturbance element “as compared to a flow conditioner devoid of said
combination”1 (Claims App’x).
ANALYSIS
Upon consideration of the evidence on this appeal record and each of
Appellant’s contentions, we find that the preponderance of evidence on this
record supports the Examiner’s determination that the subject matter of
Appellant’s claims 1 and 2 is unpatentable over the applied prior art.
Accordingly, we will sustain the Examiner’s rejection for essentially those
reasons expressed in the Answer, and we add the following for emphasis.
Appellant admits that “Harvey is nothing more than an
acknowledgement of the state of prior art provided by Applicant in its
specification”, i.e., that providing a flow meter downstream of a static mixer
is known (App. Br. 4). Accordingly, we find no persuasive merit in

1 There is no explicit antecedent basis for “said combination.”
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Application 13/424,281

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Appellant’s conclusory argument that one would not have combined a flow
meter as exemplified in Harvey downstream of the static mixer and plate of
Bracht as proposed by the Examiner (id.).
As found by the Examiner, Bracht teaches a static mixer with a
perforated plate downstream thereof for mixing and distributing fluid flow.
Appellant has not refuted with sufficient specificity the Examiner’s findings
that the mixer and plate of Bracht structurally encompass and render obvious
the claimed mixer and plate, rather, Appellant argues that “there is no
indication in [Bracht] that the perforated plate 25 would have a straightening
function” (Reply Br. 3).
However, it is well established that when there is a reason to conclude
that the structure of the prior art is capable of performing the claimed
function, the burden shifts to the applicant to show that the claimed function
patentably distinguishes the claimed structure from the prior art structure.
See, e.g., In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Appellant’s
de facto mere allegations that Bracht does not describe a comparable plate to
the claimed plate (App. Br. 4; Reply Br. 2, 3) are not sufficient to refute the
Examiner’s reasonable findings that this plate is comparable to Appellant’s
plate as claimed and disclosed. Appellant has not provided any evidence or
persuasive technical reasoning to refute the Examiner’s de facto
determination that Bracht’s plate that has openings sized to enhance the fluid
flow distribution (Ans. 3; Bracht, p. 12, ll. 24–26) is also capable of the
claimed resultant function, that is, “to substantially eliminate any fluid
profile resulting in said fluid being distributed evenly across said conduit” of
claim 1 and 2. Notably, Appellant states that the size of the openings in the
plate is predicated upon “anticipated viscosity and volumetric flow rates”
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Application 13/424,281

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(Spec. 7:26–27) which further evidences that the conclusion that at some
viscosities and flow rates the resultant function will occur is reasonable.

In summary, we affirm the Examiner’s § 103 rejection of the claims.
The decision of the Examiner 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).

AFFIRMED

cdc