Ex Parte Woodard

Patent Trial and Appeal Board

Feb 17, 2017

14019483 (P.T.A.B. Feb. 17, 2017)

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.
14/019,483 09/05/2013 Steven E. Woodard 2012P04062US02 5504
56885 7590 02/22/2017
Evoqua Water Technologies LLC
U0105
Intellectual Property Department
10 Technology Drive
Lowell, MA 01851
EXAMINER
BARRY, CHESTER T
ART UNIT PAPER NUMBER
1779
NOTIFICATION DATE DELIVERY MODE
02/22/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN E. WOODARD
Appeal 2016-001674
Application 14/019,4831
Technology Center 1700
Before ROMULO H. DELMENDO, JEFFREY B. ROBERTSON, and
DEBRA L. DENNETT, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellant, the real party in interest is Evoqua Water
Technologies, LLC. (Appeal Brief (filed March 19, 2015, hereinafter “App.
Br”) 3.)
Appeal 2016-001674
Application 14/019,483
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—31. (App. Br. 4.) We have jurisdiction pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellant states that the invention relates to a ballasted sequencing
batch reactor (SBR) and method for treating wastewater. (Spec. 1,11. 16—
17.) Figure 1 is reproduced below:
Figure 1 depicts a schematic block diagram of one embodiment of the
SBR system according to the Specification. (Spec. 5,11. 10-11.) In
particular, Figure 1 depicts a SBR system 10 including at least one SBR 12
that receives a flow of wastewater 14 via line 16. Air bubbles 18 may be
introduced by line 20, which is exposed to ambient air 22, thus promoting
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growth of biological floes 23 in mixed liquor 24, as a result of
microorganisms present in SBR 12. (Spec. 6,11. 6—11.) The SBR System 10
includes a weighting agent impregnation subsystem 26, composed of
impregnation tank 28 and mixer 30. The impregnation tank 28 receives
mixed liquor 24 from SBR 12 through line 32. Weighting agents 33 and/or
38 may be introduced into tank 28 from feed hopper 34 through line 36 or
from weighting agent recovery system 74. (Spec. 6,11. 12—16.) The liquor
24 or settled sludge received by line 77 is mixed in impregnation tank 28 to
impregnate the weighting agent into biological floes 23 suspended in liquor
24 to form weighted biological floes. (Spec. 6,11. 16—21.) The weighted
biological floes are then sent back to SBR 12 though line 37. (Spec. 6,11.
24—25.) The weighted biological floes settle to the bottom 39 of SBR 12
during a settling phase, after which, clear effluent is decanted by line 52
providing treated effluent 50 and settled sludge may be sent to storage tank
88 through line 76. (Spec. 7,11. 20—23.) The SBR System 10 may also
include the ability to add flocculant 62 and coagulant 64. (Spec. 10,11. 9—
18.)
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A system for treating wastewater comprising:
a sequencing batch reactor fluidly connected to a source
of wastewater, the sequencing batch reactor comprising a
treated effluent outlet, a waste activated sludge outlet, and a
biological floes outlet; and
a weighting agent impregnation subsystem fluidly
connected to the biological floes outlet of the sequencing batch
reactor and comprising a weighted biological floes outlet
fluidly connected to the sequencing batch reactor, the weighting
agent impregnation subsystem configured to mix suspended
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Application 14/019,483
biological floes and a weighting agent to form weighted
biological floes.
THE REJECTIONS
The Examiner rejected claims 1—31 under 35 U.S.C. § 103(a) as
obvious over Woodard ’6232 in view of Johnson3 and Khudenko.4
The Examiner also rejected the claims on the ground of nonstatutory
double patenting as follows:
Claims 1—31 are rejected as unpatentable over claims 1—41 of
Woodard ’623 in view of Johnson and Khudenko; and
Claims 1—29 are rejected as unpatentable over claims 1—29 of
Woodard ’1725 in view of Johnson and Khudenko.
(Examiner’s Answer entered September 24, 2015, hereinafter “Ans.,” 2).
Rejection under 35 U.S.C. § 103(a)
ISSUE
In rejecting the claims on appeal, the Examiner found that Woodard
’623 discloses a wastewater treatment process and system including a
weighting agent impregnation subsystem and found that Johnson discloses
certain advantages of a SBR system over a continuous flow reactor,
concluding that it would have been obvious to have applied the process of
Woodard ’623 to an SBR biological reaction system. (Ans. 3—4.) The
2 US 2008/0203015 A1 published August 28, 2008. Both the Examiner and
Appellant reference the patent issuing from the published application, US
7,695,623 B2. In order to avoid confusion, we do the same herein.
3 US 2004/0149653 Al, published August 5, 2004.
4US 2003/0132160 Al, published July 17, 2003.
5 US 8,470,172 B2, issued June 25, 2013.
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Examiner cited Khudenko as evidence that flocculating agents and ballasts
were known to be used in sequencing batch wastewater treatment processes.
(Ans. 4.)
Initially, Appellant contends that the Examiner erred in rejecting the
claims because the Examiner did not properly consider the Declaration of
Steven Woodard filed June 17, 2014 (the “Woodard Declaration”). (App.
Br. 4.) Appellant argues also that one of ordinary skill in the art would have
been dissuaded from combining the references in the manner set forth by the
Examiner and further argues that the Examiner did not provide sufficient
reasons for combining the references. (App. Br. 6—10.)
Accordingly, the dispositive issue on appeal is:
Has Appellant shown that the Examiner reversibly erred in concluding
that in view of the evidence as a whole, it would have been obvious to one of
ordinary skill in the art to have applied the method of Woodard ’623 to a
SBR in view of Johnson and Khudenko?
DISCUSSION
Appellant has not argued the claims separately. Accordingly, we
confine our discussion to appealed claim 1, which contains claim limitations
representative of the arguments made by Appellant pursuant to 37 C.F.R.
§ 41.37(c)(l)(iv).
Woodard Declaration
At the outset, we are not persuaded by Appellant’s arguments that the
Examiner failed to consider the Woodard Declaration.
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The Examiner noted expressly that the Woodard Declaration was
considered, and explained that in view of the prior art disclosures of the
improved ease of separation of weighted floes, the prior use of flocculants to
settle biological floes in SBR and the known advantages of SBR over
continuous flow suspended bioreactor / second clarifier systems, the
Woodard Declaration was not persuasive. (Final Act. 6—7; Ans. 7—8.) As to
Appellant’s arguments that it was improper for the Examiner to dismiss the
Woodard Declaration in a cursory manner and continue to rely on his own
reasons (Reply Br. 4—5), we are of the view that the Examiner explained in
sufficient detail based on the prior art, the lack of supporting data presented
by Appellant, and the scope of the claims on appeal, why the Woodard
Declaration was not persuasive as further addressed below. (Ans. 7—9.)
Appellant contends that the Examiner disregarded statements of fact
made in the Woodard Declaration,6 which contradicts the reasoning the
Examiner sets forth in the rejection. (App. Br. 4—5.) Appellant argues that
one of ordinary skill in the art would have been dissuaded from combining
Woodard ’623 with Johnson and Khudenko, because one of ordinary skill in
the art “would have understood that the use of a SBR equipped with a
weighting agent would not sufficiently enhance the settling rate of the mixed
liquor and could not sufficiently combat the effects of ‘solids bridging.’”7
(App. Br. 6.)
6 The Woodard Declaration is a declaration of Dr. Woodard, the inventor of
not only the instant application, but also Woodard ’623. (Woodard Deck
113,4.)
7 According to Dr. Woodard, “solids bridging,” is a phenomenon in SBR
systems where, as a result of a lack of a way to continuously move solids out
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In this regard, the Woodard Declaration states that Woodard ’623
discloses the addition of flocculant as well as weighting agent, which Dr.
Woodard believed was necessary to achieve enhanced settling. (Woodard
Declaration, || 2-4, 6, 7.) The Woodard Declaration states further that prior
to the present invention, Dr. Woodard did not believe that the weighting and
impregnation system disclosed in Woodard ’623 could be adapted to work in
a SBR system due to the impracticality of adding flocculant in a SBR system
as well as Dr. Woodard’s belief that use of weighting agent alone could not
sufficiently enhance settling rates. (Woodard Decl. 19.)
However, as the Examiner observes, the claims do not preclude the
addition of flocculant to a SBR system or process as further evidenced by
claim 25 of the instant application, which includes the step of adding
flocculant to the SBR. (Ans. 9.) The Examiner pointed also to prior art
suggesting that addition of flocculant to SBR systems was known. (Final
Act. 7, citing Kim, US 6878856, col. 9,1. 25.) Thus, Dr. Woodward’s
statements are contrary to the prior art and not commensurate in scope with
the claims.
The Woodard Declaration also discusses the difference between the
continuous system disclosed in Woodard ’623 and SBR systems with respect
to the settling of solids, and states that because of “solids bridging,” the
system disclosed in Woodard ’623 would not work absent the clarifier
disclosed therein. (Woodard Decl. 110.) The Woodard Declaration states
that returning freshly ballasted solids to the system was necessary to achieve
enhanced efficiency, because SBRs cycle between being an aeration tank
of the system, there is very little to no separation between sludge and clear
water. (Woodard Decl. 110.)
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and a clarifier, such that returning ballasted solids to a SBR would disrupt
settling and reduce treatment efficiency. (Woodard Decl. 111.)
We are not persuaded by the statements made in the Woodard
Declaration. Regarding the difference in continuous flow reactors and
SBRs, the Examiner cited prior art to indicate that SBRs employ a high
degree of process control to enable high treatment standards to be met.
(Final Act. 6, citing Ho US 2004/020699 Al, 126.) The Woodard
Declaration does not sufficiently explain why the weighting and
impregnation system disclosed in Woodard ’623, which is specifically
designed to enhance settling of biological floes, would still require a
clarifier, and therefore would not have been applied to a SBR system.
That is, it is unclear why Dr. Woodard believed the weighting and
impregnation system of Woodard ’623 would not help in settling biological
floes absent a clarifier, as such a system would add weight to the biological
floes to aid in settling, and thus would have been of interest for SBR
systems, which according to Dr. Woodward suffer from “solids bridging.”
This is particularly so in view of the statement in the Woodard Declaration
that “SBRs thus typically settle even more poorly than continuous systems.”
(Woodard Decl. 110.) Therefore, it is not apparent why Dr. Woodard
believed that employing the weight agent impregnation system of Woodard
’623 would not work in a SBR environment.
Nor does Dr. Woodard explain why returning freshly ballasted solids
to the system as in Woodard ’623 was necessary to achieve enhanced
efficiency. (Woodard Decl. 111.) In this regard, we appreciate that
returning ballasted solids to a SBR would disrupt settling, however given the
known differences between a continuous system and a SBR system as noted
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by the Examiner (Ans. 4), we are not persuaded that this reasoning would
have dissuaded one of ordinary skill in the art from applying the weighting
agent impregnation system of Woodard ’623 to a SBR system.
As to Appellant’s position that Johnson, by teaching the separation of
the reacting and clarifying phases,8 is consistent with the Woodard
Declaration (App. Br. 6—7), we are not persuaded by this argument. Johnson
discloses the physical separation for better optimizing vessel volumes for
each treatment phase, and does not mention any advantage in preventing
“solids bridging” as argued in the Woodard Declaration. (Johnson | 8.)
Thus, in view of the above-noted deficiencies of the Woodard
Declaration as well as the express teachings of the prior art, we are
unpersuaded that the Examiner failed to consider or improperly weighed the
Woodard Declaration.
Combination of Prior Art
Appellant contends that the Examiner’s reasons for combining the
references are insufficient because Johnson discloses achieving the results of
smaller land footprints, lower construction costs and higher cost
effectiveness for SBR systems by using separate vessels and Johnson does
not disclose the single vessel SBR of the subject claims. (App. Br. 8.)
Appellant also argues that Woodard ’623 is directed to separation of
biological floes and the issues associated therewith, which is not related to
reducing the footprint of the process. (App. Br. 8—9.) Appellant contends
that claim 1, in reciting a SBR comprising a treated effluent outlet, a waste
8 In basic SBR, a fixed volume of wastewater is treated in four phases over
time: filling, reacting, clarification, and sedimentation. (Johnson, || 3, 4.)
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activated sludge outlet, and a biological floes outlet, requires that the
reaction and clarification phase occur in the same vessel. (Reply Br. 7.)
The Examiner stated that Johnson’s disclosure of a modified SBR
with physical separation between the reaction phase and the settling phase
shows that the term “sequencing batch reactor” recited in the claims is broad
enough to encompass “modified SBR” technology having a physical
separation between the reaction and settling/clarification phase, because
none of the claims are limited to the “same vessel” type of SBR. (Ans. 9—
10.)
We observe that “the test for combining references is not what the
individual references themselves suggest but rather what the combination of
disclosures taken as a whole would suggest to one of ordinary skill in the
art.” In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Thus, even if we agree with Appellant that the claims are directed to a
SBR that is a single vessel, we are not persuaded that the Examiner erred in
concluding that the claims would have been obvious. That is, the Examiner
relies on the background section of Johnson with respect to the advantages
of a SBR over continuous flow reactor systems. (Ans. 4, citing Johnson
12.) Johnson discusses the advantages of a SBR over continuous reactors
such as a smaller footprint and lower operation and maintenance costs.
(Johnson, 12.) Johnson goes on to describe the conventional SBR process,
which includes performing all the phases of treating wastewater in the same
vessel. (113—7.) Accordingly, Johnson identifies expressly the advantages
of conventional single vessel SBRs.
We are also not persuaded by Appellant’s argument that Khudenko
discloses reactive weighting agents as opposed to the inert weighting
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impregnating system disclosed in Woodard ’623 and the present application.
(App. Br. 7.) The Examiner cited Khudenko for the proposition that
ballasted biological floes are used in SBR systems. While the mechanism
for forming the weighted floes may be different, it is unclear why Khudenko
would not be relevant to the present claims as Khudenko relates to the
problem of separating biological floes from wastewater, the same problem as
is the subject of the instant claims. (Khudenko, 114.) As further explained
above, we do not find the Woodard Declaration to be persuasive with respect
to the settling rates and “solids bridging” issues raised therein.
Accordingly, the Examiner offered sufficient explanation from the
prior art of record without resort to impermissible hindsight in order to reject
the claims.
Double Patenting Rejections
Appellant does not separately argue the nonstatutory double patenting
rejections based on the same or similar prior art set forth and maintained by
the Examiner. (See App. Br. generally, Ans. 5—7.) We affirm the
Examiner’s rejections for similar reasons as discussed above.
CONCLUSION
Appellant has failed to demonstrate that the Examiner reversibly erred
in concluding that in view of the evidence as a whole, it would have been
obvious to one of ordinary skill in the art to have applied the method of
Woodard ’623 to a SBR in view of Johnson and Khudenko.
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ORDER
We affirm the Examiner’s decision rejecting claims 1—31 under
35 U.S.C. § 103(a) as being unpatentable over Woodard ’623, Johnson, and
Khudenko.
We affirm the Examiner’s decision rejecting the claims on the ground
of nonstatutory double patenting as follows:
Claims 1—31 are rejected as unpatentable over claims 1—41 of
Woodard ’623 in view of Johnson and Khudenko; and
Claims 1— 29 are rejected as unpatentable over claims 1—29 of
Woodard ’ 172 in view of Johnson and Khudenko.
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
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