NEXGRID, LLC

Patent Trials and Appeals Board

Aug 24, 2020

14698807 - (D) (P.T.A.B. Aug. 24, 2020)

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.
14/698,807 04/28/2015 Costa Apostolakis 0625-006 3582
113648 7590 08/24/2020
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
EXAMINER
BOLOURCHI, NADER
ART UNIT PAPER NUMBER
2631
NOTIFICATION DATE DELIVERY MODE
08/24/2020 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):
Mailroom@ppblaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte COSTA APOSTOLAKIS
____________________

Appeal 2019-005532
Application 14/698,807
Technology Center 2600
____________________

Before ALLEN R. MacDONALD, KALYAN K. DESHPANDE, and
ADAM J. PYONIN, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

1 Appellant identifies the real party in interest is the inventor, Costa
Apostolakis. Appeal Br. 2.
Appeal 2019-005532
Application 14/698,807

2
CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter (emphasis,
formatting, and bracketed material added):
1. A fluid metering device, comprising:
[A.] a fluid channel;
[B.] a flow measuring unit configured to measure a flow
amount of fluid passing through the fluid channel;
[C.] a monitoring unit configured to monitor fluid usage
information to determine whether the fluid usage
information meets a predetermined condition;
[D.] a battery; and
[E.] a wireless communications unit powered by the battery;
[F.] wherein the fluid usage information is processed from
the flow amount of fluid passing through the fluid
channel, and
[G.] wherein the wireless communications unit is powered
up if
[i.] the fluid usage information meets the
predetermined condition and
[ii.] the fluid usage information is transmitted
using the wireless communications unit.

Appeal 2019-005532
Application 14/698,807

3
REFERENCES2
The Examiner relies on the following references:
Name Reference Date
Pryor US 2011/0273304 A1 Nov. 10, 2011
Salazar US 2012/0078548 A1 Mar. 29, 2012
Laird US 2014/0361908 A1 Dec. 11, 2014
Contra Costa
Water District (CCWD)
“How To Read Your
Water Meter”
Oct. 13, 2008

REJECTIONS
A.
The Examiner rejects claims 1–6, 8–15, 17, and 18, under 35 U.S.C.
§ 103 as being unpatentable over the combination of Laird, Pryor, and
CCWD. Final Act. 10–19.
Appellant argues separate patentability for claim 1. Appeal Br. 7–13.
Appellant does not present separate arguments for claims 2–6, 8–15, 17, and
18. We select claim 1 as the representative claim for this rejection. Except
for our ultimate decision, we do not address the merits of the § 103 rejection
of claims 2–6, 8–15, 17, and 18 further herein.
B.
The Examiner rejects claims 19 and 20 under 35 U.S.C. § 103 as
being unpatentable over the combination of Laird and Pryor. Final Act. 19–
22.

2 All citations herein to patent and pre-grant publication references are by
reference to the first named inventor only.
Appeal 2019-005532
Application 14/698,807

4
Appellant argues separate patentability for claim 19. Appeal Br. 13–
15. Appellant does not argue separate patentability for claim 20. We select
claim 19 as the representative claim for this rejection. Except for our
ultimate decision, we do not address the merits of the § 103 rejection of
claim 20 further herein.
C.
The Examiner rejects claims 7 and 16 under 35 U.S.C. § 103 as being
unpatentable over the combination of Laird, Pryor, CCWD, and Salazar.
Final Act. 23.
To the extent that Appellant discusses claims 7 and 16, Appellant
merely references the arguments directed to claim 1. Appeal Br. 16. Such a
repeated argument (or referenced argument) is not an argument for “separate
patentability.” Thus, the rejection of these claims turns on our decision as to
claim 1. Except for our ultimate decision, we do not address the merits of
the § 103 rejection of claims 7 and 16 further herein.

OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
Appeal Brief and Reply Brief arguments.
Appellant raises the following case law point.
Appellant respectfully submits that in meeting its burden
of establishing a prima facie case of unpatentability, a rejection
must show that the reference or combination of references
teach or suggest all of the elements of the claim. In re Royka, 490
F.2d 981, 985 (CCPA 1974)(overturning the Examiner’s
rejections under both 35 U.S.C. § 102 and also 35 U.S.C. § 103
for not teaching or suggesting all of the claimed elements).
Appeal Br. 8 (emphasis added).
Appeal 2019-005532
Application 14/698,807

5
Appellant’s particular reliance on Royka is ill-founded subsequent to
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 3985 (2007). Royka is based on the
now limited pre-KSR teaching-suggestion-motivation theory of § 103
rejection. Appellant fails to acknowledge the modifying effect on Royka of
the Court’s Decision in KSR. The appropriate rule subsequent to KSR is
more correctly that to establish a prima facie case of obviousness of a
claimed invention, all of the claim limitations must be taught, suggested, or
rendered obvious by the prior art. We evaluate Appellants’ argument and
Examiner’s rejection on this basis, rather than the pre-KSR basis set forth by
Appellant.
A. Claim 1
A.1.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
A first reason for reversal of the rejection is that the single
paragraph [287] of Pryor relied upon fails to go far enough to
cure the first admitted deficiency in Laird. That is, it is
respectfully submitted that Pryor fails to disclose a monitoring
unit configured to determined whether the fluid usage
information meets a predetermined condition.
A second reason for reversal of the rejection is that the
single paragraph of Pryor relied upon fails to go far enough to
cure the second admitted deficiency in Laird. Specifically, Pryor
fails to disclose a wireless communications unit being powered
up if the fluid usage information meets the predetermined
condition and that the fluid usage information is transmitted
using the wireless communications unit.
Appeal Br. 9 (emphasis added).
Indeed, [in Pryor,] no mention whatsoever can be found in
par. 287 or elsewhere of monitoring fluid usage information.
Appeal 2019-005532
Application 14/698,807

6
Rather, Pryor merely mentions a “water level” such as “in
springs or wells” that may be measured using “sensors of the
external environment, such as a water level sensor.” Pars. 41,
259, 286, 287.
It is respectfully submitted that it is not understood how
the water level sensors of Pryor could ever be used to monitor
water usage information within a fluid metering device. Indeed,
the principles of measuring water flow or fluid usage
information is very different from measuring a water level in a
spring or well. Pryor never mentions or suggests fluid usage
information, as that term is understood by one of ordinary skill
in the art, both in view of the present application and the present
claims.
Appeal Br. 10–11 (emphasis added).
We agree with Appellant’s argument to the extent that water “usage”
information is not taught by Pryor. However, Appellant recognizes that this
alone is not determinative given the teachings of Laird and CCWD. As
addressed directly below, Appellant then argues “even if Laird and CCWD
do show a fluid metering device . . . the remaining citation to Pryor fails to
go far enough to provide the material missing from Laird and CCWD.”
Appeal Br. 11. Thus, we find Appellant’s argument unpersuasive of
Examiner error.
A.2.
Also, Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
Additionally, triggering transmission of images upon a spring or
well level “reaching a certain point” as indicated by a “water
level sensor” simply does not equate to a wireless
communication device being powered up if fluid usage
information (“processed from the flow amount of fluid passing
through the fluid channel”) meets a predetermined condition.
Appeal 2019-005532
Application 14/698,807

7
That is, even if Laird and CCWD do show a fluid metering
device, comprising a monitoring unit configured to monitor fluid
usage information processed from a flow amount of fluid, along
with a wireless communications unit powered by a battery, the
remaining citation to Pryor fails to go far enough to provide the
material missing from Laird and CCWD. Specifically, Pryor
fails to suggest a wireless communication device being powered
up if a fluid usage information meets a predetermined
condition. To find otherwise would be to say any water-related
triggering event (i.e., spring or well water level) causing
transmission of any data not directly related to said trigger (i.e.,
photos) would suggest Appellant’s claimed feature of a wireless
communication device being powered up if fluid usage
information meets a predetermined condition and transmission
of said fluid usage information.
Appeal Br. 11 (emphasis added).
We are unpersuaded by Appellant’s argument. We determine that
Pryor at paragraph 287 teaches that a predetermined condition sensed by a
water “level” meter can trigger an operation of a device. Further, contrary to
Appellant’s argument, we determine that this is sufficient to suggest that
other water sensing devices such as those metering fluid usage information
(as taught by Laird and CCWD) can trigger operation of a device.
A.3.
Further, Appellant raises the following argument in contending that
the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
The proposed combination of Laird, Pryor, and CCWD is
improper because the relied upon teaching of Pryor changes the
principle of operation of Laird (and CCWD).
. . .
As discussed above, it is respectfully submitted that it is
not understood how the water level sensors of Pryor could ever
be used to monitor water usage information within a fluid
Appeal 2019-005532
Application 14/698,807

8
metering device. Indeed, the principles of measuring water flow
or fluid usage information are very different from measuring a
water level in a spring or well. Pryor never mentions or suggests
fluid usage information, as that term is understood by one of
ordinary skill in the art, both in view of the present application
and the present claims.
Appeal Br. 12 (emphasis added).
Appellant’s argument is founded on the same points Appellant argues
above in sections A.1. and A.2. We are unpersuaded by this argument for
the same reasons discussed supra.
B. Claim 19
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 19 under 35 U.S.C. § 103.
As discussed above, Pryor merely mentions a “water
level” such as “in springs or wells” that may be measured using
“sensors of the external environment, such as a water level
sensor.” Pars. 41, 259, 286, 287.
It is respectfully submitted that a wireless communications
unit being powered up by the controller if the flow amount of
fluid meets or exceeds the predetermined threshold and the flow
amount of fluid being transmitted using the wireless
communications unit is not taught or suggested by a spring or
water level reaching a certain point as indicated by a water level
sensor.
Appeal Br. 15.
The proposed combination of Laird, Pryor, and CCWD
[sic] is improper because the relied upon teaching of Pryor
changes the principle of operation of Laird.
Id.
Appeal 2019-005532
Application 14/698,807

9
These arguments repeat the arguments made as to claim 1. We are
unpersuaded by Appellant’s arguments for the reasons already discussed
above as to claim 1.

CONCLUSION
The Examiner has not erred in rejecting claims 1–20 as being
unpatentable under 35 U.S.C. § 103.
The Examiner’s rejections of claims 1–20 as being unpatentable under
35 U.S.C. § 103 are affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6, 8–15,
17, 18
103 Laird, Pryor, CCWD 1–6, 8–15,
17, 18

7, 16 103 Laird, Pryor, CCWD,
Salazar
7, 16
19, 20 103 Laird, Pryor 19, 20
Overall
Outcome

1–20
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED