Ex Parte Weinstein et alDownload PDFPatent Trial and Appeal BoardApr 23, 201813124192 (P.T.A.B. Apr. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/124, 192 04/14/2011 32827 7590 04/23/2018 THE OLLILA LAW GROUP LLC 2569 Park Lane, Suite 202 Lafayette, CO 80026 FIRST NAMED INVENTOR Joel Weinstein 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. 35010/330US 4534 EXAMINER SCHECHTER, ANDREW M ART UNIT PAPER NUMBER 2857 MAIL DATE DELIVERY MODE 04/23/2018 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 JOEL WEINSTEIN, MARK JAMES BELL, and ANDREW TIMOTHY PATTEN Appeal2017-009098 Application 13/124,192 Technology Center 2800 Before MICHAEL P. COLAIANNI, CHRISTOPHER L. OGDEN, and JANEE. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 request our review under 35 U.S.C. § 134(a) of the Examiner's decision to finally reject claims 1-14, 18-21, 23-32, 36-39, 41- 49, and 53-56. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify the real party in interest as Micro Motion Inc. Appeal Brief filed February 11, 2016 ("Br."), 3. Appeal2017-009098 Application 13/124,192 STATEMENT OF THE CASE Appellants claim a method for calculating a velocity of sound of a fluid flowing through at least a first vibratory flow meter (independent claim 1 ), a vibratory flow meter for calculating a velocity of sound of a flowing fluid (independent claim 23), and a vibratory flow meter system for calculating a fluid parameter of a flowing fluid (independent claim 41 ). Independent claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A method for calculating a velocity of sound of a fluid flowing through at least a first vibratory flow meter, comprising the steps of: vibrating the flow meter at one or more frequencies; receiving a vibrational response; generating a first fluid property of the fluid; generating at least a second fluid property of the fluid; calculating the velocity of sound based on the first fluid property and the at least second fluid property; and comparing the calculated velocity of sound to an expected velocity of sound and determining an error condition if the difference between the calculated velocity of sound and the expected velocity of sound exceeds a threshold value. Br. 28 (Claims Appendix) (emphasis added). The Examiner sets forth the following rejections in the Final Office Action entered September 4, 2014 ("Final Act."), and maintains the rejections in the Examiner's Answer entered April 26, 2016 ("Ans."): I. Claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C. § 112, second paragraph for failing to particularly point out and distinctly claim the subject matter that the applicants regard as their invention; 2 Appeal2017-009098 Application 13/124,192 II. Claims 1-7, 10-12, and 23-32 under 35 U.S.C. § I03(a) as unpatentable over Patten (WO 2006/104485 Al, published October 5, 2006) in view of Gysling et al. (US 2006/0260384 Al, published Nov. 23, 2006, hereinafter "Gysling"); III. Claims 8, 9, 41--46, and 48 under 35 U.S.C. § I03(a) as unpatentable over Patten in view of Gysling and Van Cleve et al. (US 5,661,232, issued August 26, 1997, hereinafter "Van Cleve"); IV. Claims 13, 18-21, and 36-39 under 35 U.S.C. § I03(a) as unpatentable over Patten in view of Gysling and Stansfeld (US 4,262,523, issued April 21, 1981 ); V. Claim 14 under 35 U.S.C. § I03(a) as unpatentable over Patten in view of Gysling and Cage et al. (US 6,502,466 Bl, issued January 7, 2003, hereinafter "Cage"); VI. Claims 47 and 53-56 under 35 U.S.C. § I03(a) as unpatentable over Patten in view of Gysling, Van Cleve, and Stansfeld; and VII. Claim 49 under 35 U.S.C. § I03(a) as unpatentable over Patten in view of Gysling, Van Cleve, and Cage. DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellants' contentions, we reverse the Examiner's rejection of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C. § 112, second paragraph for the reasons set forth below, and affirm the Examiner's rejections of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53- 56 under 35 U.S.C. § I03(a) for the reasons set forth in the Final Action, the Answer, and below. 3 Appeal2017-009098 Application 13/124,192 We review appealed rejections for reversible error based on the arguments and evidence Appellants provide for each issue Appellants identify. 37 C.F.R. § 4I.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had failed to make a prima facie case, "it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). Rejection I The Examiner finds that it is unclear from independent claims 1, 23, and 41 whether the recited "first fluid property" and "second fluid property" are different properties, or are generated/measured under different conditions. Final Act 3. In determining compliance with 35 U.S.C. § 112, second paragraph, we must determine whether the claims set out and circumscribe the claimed subject matter with a reasonable degree of precision and particularity. In re Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014) (a claim is indefinite when it contains words or phrases whose meaning is unclear). The definiteness of claim language must not be analyzed in a vacuum, "but always in light of the teachings of the prior art and of the particular application disclosure as it would be interpreted by one possessing the ordinary level of skill in the pertinent art." In re Moore, 439 F.2d 1232, 1235 (CCPA 1971). As Appellants point out (Br. 7-8), their Specification explicitly states that "[ t ]he at least second fluid property may comprise the same fluid property as the first fluid property or may comprise a different fluid property." Spec. 16, 11. 2--4. Appellants' Specification further indicates that 4 Appeal2017-009098 Application 13/124,192 if the first and second fluid properties comprise the same fluid property, such as density, the first and second density measurements are generated using different frequencies, and as a result the first and second density measurements will differ. Spec. 16, 11. 4--12. Accordingly, in view of this description provided in Appellants' Specification, one of ordinary skill in the art would readily understand that the first and second fluid properties recited in claims 1, 23, and 41 may be different properties, and if they are the same property, may be measured under different conditions. The Examiner also finds that it is unclear whether the first fluid property recited in claim 1 is the same as the first fluid property recited in independent claim 23 and claim 41. Final Act. 4. Similarly, the Examiner finds that it is unclear whether the second fluid property recited in claim 1 is the same as the second fluid property recited in independent claims 23 and 41. Id. However, Appellants' Specification indicates that "[t]he first fluid property may comprise a density, a mass flow rate, a volume flow rate, a viscosity, etc. This list is not exhaustive and those skilled in the art will readily recognize additional fluid properties that may be generated." Spec. 14, 1. 31-15, 1. 2. As discussed above, the Specification also indicates that "[t]he at least second fluid property may comprise the same fluid property as the first fluid property or may comprise a different fluid property." Spec. 16, 11. 2--4. In view of this description provided in Appellants' Specification, one of ordinary skill in the art would understand that the first fluid property recited in claim 1 need not be the same as the first fluid property recited in claims 23 and 41. Similarly, one of ordinary skill in the art would also 5 Appeal2017-009098 Application 13/124,192 understand that the second fluid property recited in claim 1 need not be the same as the second fluid property recited in claims 23 and 41. The Examiner further finds that "the relation between the first/ second density measurement and the first/second fluid property" is unclear from claim 2, and "whether [the] first density measurement corresponds to the first fluid property and respectively the at least a second density measurement corresponds to the at least second fluid property or not" is also unclear. Final Act. 3--4. However, the plain language of claim 2 recites that the first and second fluid properties comprise first and second density measurements, respectively. As discussed above, Appellants' Specification explicitly indicates that if the first and second fluid properties comprise the same fluid property, such as density, the first and second density measurements are generated using different frequencies, and as a result the first and second density measurements will differ. Spec. 16, 11. 4--12. Accordingly, in view of this description provided in Appellants' Specification, one of ordinary skill in the art would readily understand that the first and second fluid properties recited in claim 2 are density measurements. Therefore, we do not sustain the Examiner's rejection of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C. § 112, second paragraph. Rejections II-VII Despite separate rejections of claims 8, 9, 13, 14, 18-21, 36-39, 41- 47, 48, 49, and 53-56, Appellants argue claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 as a group on the basis of independent claims 1 and 23. Br. 10-27. Although Appellants provide separate arguments for claim 23, 6 Appeal2017-009098 Application 13/124,192 Appellants present the same arguments for claim 23 that they provide for claim 1. Br. 15-16. Therefore, we select independent claim 1 as representative, and decide the appeal as to claims 1-14, 18-21, 23-32, 36- 39, 41--49, and 53-56 based on claim 1 alone. 37 C.F.R. § 4I.37(c)(l)(iv). Appellants do not dispute the Examiner's finding that Patten discloses all of the features of claim 1 except ( 1) calculating the velocity of sound based on a first fluid property and at least a second fluid property, and (2) comparing the calculated velocity of sound to an expected velocity of sound and determining an error condition if the difference between the calculated velocity of sound and the expected velocity of sound exceeds a threshold value. Compare Final Act. 4---6, with Br. 10-27. The Examiner relies on Gysling for suggesting these features explicitly missing from Patten's disclosures. Final Act. 6-7. Gysling discloses using a flow meter to determine as a function of frequency the speed of sound waves propagating through a liquid/vapor mixture flowing through a pipe system ( calculating the velocity of sound). Abstract; ,r 44. Gysling discloses utilizing this experimentally-determined speed of sound to determine the droplet size of liquid in the vapor/liquid mixture, and the vapor to liquid ratio, based on the dispersive characteristics of the mixture. ,r,r 66, 81. Specifically, Gysling explains that for small liquid droplets and low frequency sound waves, no appreciable slip exists between the vapor and the liquid droplets, and the sound speed is constant with frequency, referred to as a "non-dispersive" mixture. ,r,r 56, 62, and 82. Gysling further explains that as the size of the droplets increases and the frequency of the sound waves increases, the non-slip assumption becomes less valid, and dispersion occurs-that is, the sound speed of the mixture 7 Appeal2017-009098 Application 13/124,192 varies with frequency. ,r,r 62, 82. Gysling discloses using this dispersion model, and the experimentally determined speed of sound as a function of frequency, in an optimization procedure to simultaneously determine droplet size and vapor to liquid ratio in a liquid/vapor mixture. ,r 83; Fig. 11. Figure 11 of Gysling illustrates this optimization procedure, and shows using an analytical frequency model to calculate speed of sound ( expected velocity of sound) based on initial estimates of droplet size and vapor to liquid ratio, and comparing this analytically-calculated speed of sound to a speed of sound determined experimentally as a function of frequency ( calculated velocity of sound). Figure 11 further shows using this comparison to determine whether an error function is minimized ( determining an error condition), and updating the estimates of the droplet size and vapor to liquid ratio if the comparison indicates that the error function is not minimized ( the difference between the calculated velocity of sound and the expected velocity of sound exceeds a threshold value). Gysling defines the error function as the sum of the differences of the sound speeds calculated from the analytical model and the experimentally determined sound speed as a function of frequency. ,r 83. The Examiner finds that one of ordinary skill in the art would have been led at the time of Appellants' invention to determine the speed at which sound travels within the pipe system disclosed in Patten using a flow meter as disclosed in Gysling, and to minimize an error function as disclosed in Gysling. Final Act. 6-7. Appellants argue that Gysling does not teach or suggest comparing the calculated velocity of sound to an expected velocity of sound because Gysling does not teach or suggest an expected velocity of sound. Br. 11. 8 Appeal2017-009098 Application 13/124,192 Appellants assert that in contrast, Gysling discloses comparing a measured velocity of sound to a series of model-produced speed of sound results, which are not the same as an expected velocity of sound. Id. Appellants contend that Gysling's disclosure of determining which of the series of model-produced speed of sound results optimize the model described in paragraph 83 "clearly teaches against the existence of an expected velocity of sound altogether" because it "clearly suggests that there is no expected velocity of sound result." Id. However, as the Examiner correctly finds (Ans. 5), Appellants' Specification states that "[ t ]he expected velocity of sound may be based on a previously calculated velocity of sound or it may be obtained from a lookup table, a value stored in a memory, a user/operator input, etc." Spec. 22, 11. 9-11. We find no further definition or limiting description of "expected velocity of sound" in Appellants' Specification, and Appellants do not direct us to any such disclosure. Br. 10-27. Therefore, under a broadest reasonable interpretation consistent with the description provided in Appellants' Specification, a previously calculated velocity of sound, such as the analytically-calculated speed of sound disclosed in Gysling, corresponds to an "expected velocity of sound" as recited in claim 1. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (During prosecution of patent applications, "the PTO must give claims their broadest reasonable construction consistent with the specification ... Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation."). Consequently, in contrast to Appellants' arguments, rather than teaching against the existence of an "expected velocity of sound," Gysling's analytically-calculated speed of sound 9 Appeal2017-009098 Application 13/124,192 corresponds to an "expected velocity of sound" as recited in claim 1. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant."). Therefore, Gysling's disclosure of comparing a speed of sound determined experimentally as a function of frequency to an analytically- calculated speed of sound reasonably corresponds to comparing a calculated velocity of sound to an expected velocity of sound as recited in claim 1. Appellants further argue that Gysling does not teach or suggest determining an error condition if the difference between the calculated and expected velocity of sound exceeds a threshold value, because Gysling does not disclose a threshold value. Br. 11. Appellants assert that in contrast, paragraph 83 of Gysling discloses comparing a measured speed of sound to a series of model-produced speed of sound values to determine which model-produced speed of sound value provides a minimum error value, which is not the same as "comparing a calculated and expected velocity of sound to a threshold value." Id. Appellants contend that Gysling also does not teach or suggest an error condition, but merely describes performing an optimization, which is not the same as determining an error condition. Id. However, we note initially that claim 1 recites "comparing the calculated velocity of sound to an expected velocity of sound and determining an error condition if the difference between the calculated velocity of sound and the expected velocity of sound exceeds a threshold value." Claim 1 thus requires determining whether the difference between 10 Appeal2017-009098 Application 13/124,192 the calculated velocity of sound and the expected velocity of sound exceeds a threshold value, and does not require "comparing a calculated and expected velocity of sound to a threshold value" as Appellants assert. As discussed above, Gysling discloses comparing an analytically- calculated speed of sound ( expected velocity of sound) to a speed of sound determined experimentally as a function of frequency ( calculated velocity of sound) to determine whether an error function is minimized ( determining an error condition), and Gysling defines the error function as the sum of the differences of the sound speeds calculated from an analytical model and the experimentally determined sound speed as a function of frequency. As further discussed above, Gysling discloses updating the estimates of the droplet size and vapor to liquid ratio used to calculate analytically the speed of sound if the comparison indicates that the error function is not minimized ( an error condition exists). One of ordinary skill in the art would have understood from these disclosures that an error function would not be minimized ( an error condition would exist) if the difference between the analytically-calculated speed of sound ( expected velocity of sound) and the speed of sound determined experimentally as a function of frequency ( calculated velocity of sound) is greater than some implicit minimal value, prompting the estimates of droplet size and vapor to liquid ratio to be updated. Therefore, contrary to Appellants' arguments, Gysling implicitly discloses the existence of a minimal threshold value of the difference between the analytically- calculated speed of sound and the speed of sound determined experimentally as a function of frequency that determines whether an error function is minimized, which corresponds to determining an error condition if the 11 Appeal2017-009098 Application 13/124,192 difference between the calculated and expected velocity of sound exceeds a threshold value, as recited in claim 1. With respect to Appellants' contention that Gysling does not teach or suggest an "error condition," we find no definition or limiting description in Appellants' Specification of an "error condition." Rather, Appellants' Specification describes an illustrative, non-limiting error condition in which the "[t]he error may comprise determining that the fluid composition and/or fluid phase has changed, for example." Spec. 22, 11. 8-9. Accordingly, under a broadest reasonable interpretation consistent with Appellants' Specification, the "error condition" recited in claim 1 does not exclude the non-minimized error function disclosed in Gysling. Contrary to Appellants' arguments, Gysling' s disclosure of determining whether an error function is minimized reasonably corresponds to determining an error condition as recited in claim 1. Appellants further argue that their Specification makes clear on lines 1-22 of page 22 that the expected velocity of sound is the velocity of sound for an assumed fluid composition or fluid phase, and determining an error condition includes flagging that the fluid composition and/or fluid phase has changed from a previous fluid composition and/or fluid phase. Br. 12. Appellants contend that "[a]ssuming a fluid composition and/or fluid phase to determine whether the fluid composition and/or fluid phase has changed, as recited by the independent claims, is incompatible with determining the droplet size and VLR [ vapor to liquid ratio] for a fluid, the problem that the cited section of Gysling purports to address." Br. 12-13. Appellants assert that assuming fluid composition and/or fluid phase would change the principle of operation of Gysling and render Gysling inoperable for its stated 12 Appeal2017-009098 Application 13/124,192 purpose of determining a droplet size and vapor to liquid ratio for an unknown fluid. Id. However, as discussed above, Appellants' Specification states that "[t]he expected velocity of sound may be based on a previously calculated velocity of sound or it may be obtained from a lookup table, a value stored in a memory, a user/operator input, etc." Spec. 22, 11. 9--11. As also discussed above, Appellants' Specification does not provide a definition or limiting description of an "error condition," and describes only an illustrative, non-limiting error condition in which the "[ t ]he error may comprise determining that the fluid composition and/or fluid phase has changed, for example." Spec. 22, 11. 8-9. Accordingly, contrary to Appellants' assertions, the "expected velocity of sound" recited in claim 1 is not limited to "the velocity of sound for an assumed fluid composition or fluid phase," and encompasses an analytically-calculated speed of sound as disclosed in Gysling. In addition, "determining an error condition" recited in claim 1 is not limited to "determining whether the fluid composition and/ or fluid phase has changed" as Appellants assert, and encompasses determining whether an error function is minimized as disclosed in Gysling. Consequently, as discussed above, Gysling's disclosure of determining whether an error function is minimized by determining if the difference between the analytically-calculated speed of sound and the speed of sound determined experimentally as a function of frequency is greater than an implicitly disclosed minimal value, reasonably corresponds to determining an error condition if the difference between the calculated and expected velocity of sound exceeds a threshold value, as recited in claim 1. 13 Appeal2017-009098 Application 13/124,192 Therefore, considering the totality of the evidence relied upon in this appeal, a preponderance of the evidence weighs in favor of the Examiner's conclusion of obviousness. We accordingly sustain the Examiner's rejections of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner's rejections of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53-56 under 35 U.S.C. § 103(a) and reverse the Examiner's rejection of claims 1-14, 18-21, 23-32, 36-39, 41--49, and 53- 56 under 35 U.S.C. § 112, second paragraph. 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 14 Copy with citationCopy as parenthetical citation