Ex Parte Winters

Board of Patent Appeals and Interferences

Jul 23, 2009

10490066 (B.P.A.I. Jul. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LEONARDUS CORNELUS WINTERS
____________

Appeal 2009-003711
Application 10/490,066
Technology Center 1700
____________

Decided:1 July 24, 2009
____________

Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and
KAREN M. HASTINGS, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-12 (Appeal Brief filed May 9, 2008, hereinafter “App. Br.”; Reply

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-003711
Application 10/490,066

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Brief filed September 9, 2008, hereinafter “Reply Br.”; Final Office Action
mailed December 12, 2007). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
Appellant’s claimed invention relates to a method for determining
liquid flow rate (Specification, hereinafter “Spec.,” 1, ll. 1-2). According to
Appellant, the method is particularly useful in calibrating a liquid flow
controller commonly used in the semiconductor fabrication industry (id. at
ll. 2-13).
Claim 1 reads as follows:
1. A method of determining the rate of flow of a liquid,
the liquid comprising a first liquid delivered to a point with at
least a second liquid to form a solution of the first and at least
second liquids, the method comprising the step of determining
the rate of flow of the at least second liquid, and characterized
by the steps of:
- delivering the solution to a conductivity-measuring
means by which the conductivity of the solution is measured;
- determining a ratio between the first and the at least
second liquids in the solution on the basis of the conductivity of
the solution; and
- determining the rate of flow of the first liquid on the
basis of the rate of flow of the at least second liquid and said
ratio.
(App. Br. 10; Appendix of Claims Involved in the Appeal.)
The Examiner relied upon the following as evidence of
unpatentability (Examiner’s Answer mailed July 9, 2008, hereinafter “Ans.,”
3):
Nonomura (JP ‘170) JP 7-232170 Sep. 5, 1995
Kanamaru (JP ‘050) JP 8-101050 Apr. 16, 1996
Appeal 2009-003711
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The Examiner rejected claims 1-12 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of JP’ 170 and JP’ 050 (Ans. 3-
5).2

ISSUE
Appellant argues the appealed claims together (App. Br. 4-9; Reply
Br. 2-8). Accordingly, we select claim 1 as representative and confine our
discussion to this selected claim. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner found, with respect to claim 1, that “JP’ 170
sufficiently teaches the claim limitations even if the art does not use
precisely [the] language” of “determining a ratio between the first and the at
least second liquids in the solution on the basis of the conductivity of the
solution” (Ans. 5). Furthermore, the Examiner stated that JP’ 050 is
“referenced for its use of a calibration curve to show a relationship between
conductivity and flow rate” (Ans. 5-6). The Examiner then concluded that
the claimed method would have been obvious to one of ordinary skill in the
art in view of the combined teachings of JP’ 170 and JP’ 050 “to achieve the
predictable result of measuring flow rates” (id. at 6).
Appellant, on the other hand, contended that the Examiner erred
because “taken together or individually, [JP’ 170 and JP’ 050] fail to teach
the claimed features of determining the ratio of two liquids in a solution
based upon the conductivity of the solution, and determining the flow rate of

2 We cite to the English language translations of JP ’170 and JP ‘050 mailed
with the Examiner’s Answer. While Appellant states that the finality of the
Final Office Action was premature and the Examiner’s Answer contained a
new ground of rejection (Reply Br. 3-4), Appellant has waived the right to
timely file petitions as to these matters (id.).
Appeal 2009-003711
Application 10/490,066

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one solution liquid based on the ratio and the flow rate of the other solution
liquid” (App. Br. 5). Also, Appellant asserted that the Examiner erred
because “the [JP’ 050] reference is fundamentally different from the
teachings of the JP’ 170 reference” and thus, “the skilled artisan would not
look to use the selective elements from one type of sensor (electromagnetic)
in another type of sensor (conductivity)” (Reply Br. 5).
Thus, the dispositive issue arising from the contentions of the
Examiner and Appellant is:
Has Appellant shown that the Examiner erred in finding that the prior
art discloses (i) “determining a ratio between the first and the at least second
liquids in the solution on the basis of the conductivity of the solution”; and
(ii) “determining the rate of flow of the first liquid on the basis of the rate of
flow of the at least second liquid and said ratio,” as recited in claim 1?

FINDINGS OF FACT (“FF”)
1. JP’ 170’s Figure 2 is reproduced below:

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Figure 2 depicts a mixed solution generating part comprising an
introduction channel 651 for tap water 38, pressure-reduction
valve 31, flow meter 15, fixed quantity pulse pump 16 for
pumping saline 36, and a conductivity meter 14 (¶¶ 0017 and
0019).
2. JP’ 170 discloses: “With this apparatus, a flow meter that
outputs a pulse signal each time a fixed quantity of tap water
flows is used for the flow meter for sensing the flow rate of the
source water (tap water) introduced through a pressure-reducing
valve, etc.” (¶ 0003).
3. JP ’170 discloses:
[T]he fixed-quantity pulse pump is driven each
time a pulse signal is output from the flow rate
meter. That is . . . each time a fixed quantity of tap
water is introduced, a fixed quantity of saline is
discharged into the introduction channel to
generate a mixed solution of the desired salt
concentration [Spec. ¶ 0003].
4. JP ’170 discloses that “the conductivity of the mixed solution . .
. is a value corresponding to the ratio of source water to added
liquid” (Spec. ¶ 0009).
5. JP ’170 discloses that pulse pump (16) is driven based on the
pulses from flow meter (15) and a ratio of desired tap water to
added liquid (saline) set by a ratio setting part (¶ 0021).
6. JP’170 discloses that the ratio setting part sets the ratio of raw
water to added saline based on conductivity measurements (¶
0023).

Appeal 2009-003711
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PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented 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 to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 406
(2007).

ANALYSIS
We find Appellant’s assertions unpersuasive that neither JP ’170 nor
JP’050 discloses the steps of determining: (1) the ratio of two liquids of a
solution based on the solution conductivity; and (2) the flow rate of one
solution liquid based on the ratio determined in (1) and the flow rate of the
other solution liquid. Contrary to Appellant’s belief, JP ’170 discloses that
solution conductivity determines the ratio of the flow rate of tap water to the
flow rate of saline (FF 1, 3-6). With respect to the step of determining (2)
above, JP ’170 discloses that the flow rate of tap water is determined from a
flow meter 15, which provides an output of one pulse each time a fixed
quantity of tap water flows through the flow meter (FF 2). Thereafter, a
pulse pump is said to supply a controlled flow rate of saline in a set ratio to
the tap water flow rate based on (i) the tap water flow rate and (ii) the
conductivity measurements of the mixed solution (FF 5-6). Thus, contrary
to Appellant’s assertions, JP ’170 plainly discloses determining the ratio of
two solution liquids based on the solution conductivity and the flow rate of
one solution liquid based on the ratio and the flow rate of the other solution
liquid.
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Application 10/490,066

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Appellant argues that the teachings of JP ’050 are “fundamentally
different from the teachings of the JP ’170 reference” (Reply Br. 5). But this
argument is ineffective to show reversible error because the Examiner found
that JP ‘170 discloses the limitations at issue and appears to have relied on
JP ‘050 primarily “because it demonstrates to one of ordinary skill in the art
the predictability of using readings, such as flow rates” from a calibration
curve (Ans. 5). Moreover, “if a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” KSR, 550 U.S. at
417.

CONCLUSION
Appellant has not shown reversible error in the Examiner’s findings
that the prior art discloses: (i) “determining a ratio between the first and the
at least second liquids in the solution on the basis of the conductivity of the
solution”; and (ii) “determining the rate of flow of the first liquid on the
basis of the rate of flow of the at least second liquid and said ratio,” as
recited in claim 1.

DECISION
The Examiner’s decision to reject appealed claims 1-12 under 35
U.S.C. § 103(a) as unpatentable in view of the combined teachings of JP
’170 and JP ’050 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)(1)(v).
Appeal 2009-003711
Application 10/490,066

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AFFIRMED

ack

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