Ex Parte Smith

Board of Patent Appeals and Interferences

Sep 28, 2011

11495406 (B.P.A.I. Sep. 28, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/495,406 07/27/2006 Robert Smith 523.32 3118
85444 7590 09/28/2011
Bay Area Technolgy Law Group PC
4089 Emery Street
Emeryville, CA 94608
EXAMINER
SORKIN, DAVID L
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
09/28/2011 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 ROBERT SMITH
____________

Appeal 2010-006607
Application 11/495,406
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
JEFFREY T. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-006607
Application 11/495,406

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claim 1, the sole claim on appeal. We have jurisdiction under 35 U.S.C.
§ 6.1
Appellant’s claimed invention relates to a flow conditioner for a fluid
traveling through a conduit comprising a static mixer element positioned
upstream of a plate. Claim 1 is reproduced below:
1. A flow conditioner for a fluid traveling through a conduit,
said conduit having a longitudinal axis and substantially
circular cross-section, said fluid conditioner comprising a
static mixer element positioned upstream of a 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 to facilitate the passage of said fluid
within 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.

Appellant requests review of the following rejections (App. Br. 2-3)
from the Examiner’s final office action:
1. Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable,
over the combination of Armeniades, US 3,286,992 issued Nov. 22, 1966,
and Harvey, US 5,792,371, issued Aug. 11, 1998.

1 According to Appellant, claims 2 and 3 have been canceled; the subject
matter of claims 4-8 have been allowed; and claims 9 and 10 have been
withdrawn. (App. Br. 2).
Appeal 2010-006607
Application 11/495,406

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2. Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Schulz-Hanke, US Patent Application Publication No.
2005/0185508, published Aug. 25, 2005, and Harvey.

OPINION
The dispositive issue in each of the rejections is: Did the Examiner
err in determining that Armeniades and Schulz-Hanke describe or suggest a
plate that is substantially circular and substantially perpendicular to the
longitudinal axis of a conduit, and substantially covering the cross section of
the conduit as required by the subject matter of independent claim 1?
We answer this question in the negative and AFFIRM.
The Examiner found that Armeniades discloses a conduit (10) having
a longitudinal axis and a circular cross section comprising a static mixer
element positioned upstream of a plate (48) substantially covering the cross
section of the conduit and having a plurality of openings to facilitate the
passage of fluid in the conduit. (Ans. 3). Armeniades discloses the device is
useful for mixing viscous fluids or gases. (Armeniades, col. 1, ll. 14-22).
The Examiner recognized that Armeniades did not describe incorporating a
flow meter into the mixing device.
The Examiner found that Schulz-Hanke discloses a conduit (1,16)
having a longitudinal axis and a circular cross section embodiment
comprising a static mixer element (5) positioned upstream of a plate (18 or
19) which has a plurality of openings to facilitate the passage of fluid in the
conduit. (Ans. 3-4). Schulz-Hanke discloses the static mixers are useful for
mixing liquids. (Schulz-Hanke, para. [0002]). The Examiner recognized
Appeal 2010-006607
Application 11/495,406

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that Schulz-Hanke did not describe incorporating a flow meter into the
mixing device.
The Examiner found that flow meters were to be used downstream of
static mixers and were known to persons of ordinary skill in the art as
evidenced by Harvey. (Ans. 3-4).
The Examiner concluded that it would have been obvious to one of
ordinary skill in the art to have incorporated a flow meter downstream of the
static mixing components of Armeniades and/or Schulz-Hanke as taught by
Harvey to allow for better control of the flow of the mixing process.2
Appellant acknowledges that Harvey is exemplary of the state of the
prior art which describes combining static mixers with flow meters. (App.
Br. 5). Appellant has not specifically identified the error in the Examiner’s
reasons for adding a flow meter, such as described by Harvey, into the
conduit described by either Armeniades or Schulz-Hanke.
Appellant argues that the screen/plate of Armeniades and Schulz-
Hanke is not the same as the plate required by the claimed invention. (Id. at
4-5). According to Appellant, the plate of the claimed invention provides
the advantage of acting as a flow straightener helping disaggregate external
fluid flow into parallel streams. (Id. at 4). Appellant further argues that

2 A claimed invention is unpatentable if the differences between it and the
prior art “are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having ordinary skill
in the art.” 35 U.S.C. § 103. “The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
415 (2007). The question to be asked is “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.” Id. at 417.
Appeal 2010-006607
Application 11/495,406

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“[t]he screens employed by the primary references are not suggested by the
prior art to provide any advantage when it comes to improving velocity
profiles within a conduit in order to increase the accuracy and repeatability
of a meter contained therein.” (Id.).
Appellant’s arguments are not persuasive for the reasons set forth by
the Examiner in the Answer. The Examiner properly found that Armeniades
and Schulz-Hanke both describe screens (plates) that are substantially
circular and substantially perpendicular to said longitudinal axis, and
substantially covering the cross section of the conduit and having a plurality
of openings. The claimed invention does not specify that the plate functions
as a flow straightener as argued by Appellant. Furthermore, according to
Appellant, in order for the plate to function as a flow straightener it must be
“properly positioned” within the conduit and contain openings predicated
upon anticipated velocity. (Id.). The claimed invention does not specify the
size or configuration of the openings within the plate or the positioning of
the plate in relation to the static mixer element that would result in
Appellant’s argued advantages.

For the reasons stated above and those presented by the Examiner in
the Answer, the rejections of claim 1 are affirmed.

ORDER
The rejections of claim 1 under 35 U.S.C. § 103(a) are 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)(1)(iv).
AFFIRMED
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