Ex Parte Vayhinger

Patent Trials and Appeals Board

Apr 16, 2013

12119874 - (D) (P.T.A.B. Apr. 16, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MARCUS VAYHINGER
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Appeal 2010-011776
Application 12/119,874
Technology Center 2800
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Before, ROBERT E. NAPPI, KALYAN K. DESHPANDE, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-011776
Application 12/119,874

2

This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1 through 9.
We affirm-in-part.
INVENTION
The invention is directed to a system to calibrate a measuring probe.
See paragraph 007 of Appellant’s Specification. Claim 1 is representative of
the invention and reproduced below:
1. A system for calibrating and monitoring the operating
condition of a sensor device used in a process stream,
comprising:
a measuring probe with a sensor portion, a memory
device and an electrical input/output port, the memory device
being in electrical communication with the sensor portion and
the electrical input/output port;
a first external source, comprising a personal computer
having an input/output, remote from the process stream;
a second external source, comprising a transmitter,
proximate to the process stream;
a means for electrically communicating the memory
device to one of the external sources, through the electrical
input/output port;
an operating software component, accessible to at least
the first external source; and
a database software component, accessible to each of the
external sources;
wherein the measuring probe is directly connected to the
personal computer through an input/output port thereof during a
calibration.

Appeal 2010-011776
Application 12/119,874

3

REJECTION AT ISSUE
The Examiner has rejected claims 1 through 9 under 35 U.S.C.
§ 102(e) as being anticipated by Amman (U.S. 7,290,434 B2 Nov. 6, 2007).
1

Answer 3-11.
2

ISSUES
Appellant argues on pages 8 and 9 of the Appeal Brief that the
Examiner’s rejection of claims 1, 2, and 4 through 7 is in error.
3
These
arguments present us with the issue: did the Examiner err in finding that
Amman teaches the measuring probe is directly connected to the personal
computer through an input/output port during calibration?

Appellant’s arguments on pages 10 and 11 of the Appeal Brief,
present us with additional issues with respect to claim 3, 8, and 9.
- With respect to claims 3 and 8 we are presented with the issue: did
the Examiner err in finding Amman teaches “writing information
from an external source to the memory 18 during operation of the
probe?”

1
We note Appellant asserts that this reference is prior art under § 102(b)
based upon the prior publication date of Aug. 4, 2005. As recognized by
Appellant, on page 8 of the Appeal Brief, this issue is not dispositive of the
Appeal. We also note that Aug. 4, 2005 is the publication date of US Patent
Application Publication 2005/016660A1 and not Patent 7,290,434. These are
different documents, the latter typically containing amendments provided in
the course of patent prosecution.
2
Throughout this opinion we refer to the Examiner’s Answer mailed on
May 21, 2010.
3
Throughout this opinion we refer to Appellant’s Appeal Brief filed on
April 14, 2010.
Appeal 2010-011776
Application 12/119,874

4

- With respect to claim 9, we are presented with the issue: did the
Examiner err in finding that Amman teaches a two-point interpolation
calibration using a first and second calibration standard?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions that the Examiner has erred. Further, we have reviewed the
Examiner’s response to Appellant’s arguments.
Claims 1, 2, and 4 through 7
We disagree with Appellant’s conclusion that the Examiner erred in in
finding that Amman teaches the measuring probe is directly connected to the
personal computer through an input/output port during calibration.
Appellant’s arguments center on the assertion that Amman teaches only the
probe is connected to “measurement converter” items 2, and not directly to
the personal computer as claimed. Brief 9. The Examiner responds to this
argument by finding that items 2a and 2b are transmitters and that
Appellant’s Specification supports an interpretation of a direct connection as
being connected through a transmitter. Answer 7-8 (note: the Answer
erroneously refers to paragraph [0048] of Appellant’s Specification; the
relied upon paragraph is actually [0042]). We concur with this finding as it
is supported by ample evidence (col. 1, ll. 37-38 identifies that the
measurement converters are transmitters). Thus, Appellant’s arguments
have not persuaded us that the Examiner erred in rejecting independent
claims 1 and 7 and dependent claims 2, and 4 through 6, and we sustain the
Examiner’s rejections of claims 1, 2, and 4 through 7.

Appeal 2010-011776
Application 12/119,874

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Claims 3 and 8
Representative claim 3 recites “the memory device in the memory
probe is adapted to store.” Appellant argues that “[t]here is no express
teaching in Amman ‘434 for writing information from an external source to
the memory device 18 during operation of the probe.” Brief 10. We are not
persuaded of error in the Examiner’s rejection as this argument is not
commensurate in scope with the claims. Accordingly, we sustain the
Examiner’s rejection of claims 3 and 8.

Claim 9
Representative claim 9 recites a limitation directed to the calibrating
step being a two-point interpolation. Appellant argues the portions of
Amman’s disclosure cited by the Examiner as teaching this feature do not
discuss such a calibration step. Brief 10-11. The Examiner has not
responded to this argument by Appellant, nor is it apparent to us how the
portions of Amman cited in the Examiner’s rejection teach this claimed
feature. Accordingly, we find that the Examiner has not demonstrated how
Amman anticipates this limitation of claim 9 and we will not sustain the
Examiner’s rejection of claim 9.

Appeal 2010-011776
Application 12/119,874

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DECISION
The decision of the Examiner to reject claims 1 through 8 is affirmed.
The decision of the Examiner to reject claim 9 is reversed.

AFFIRMED-IN-PART

ELD