ULMERT MED FIRMA FLOCELL, Hans

Patent Trials and Appeals Board

Mar 2, 2020

14771291 - (D) (P.T.A.B. Mar. 2, 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.
14/771,291 08/28/2015 Hans ULMERT BRNNP0134WOUS 8847
23908 7590 03/02/2020
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
EXAMINER
KEYWORTH, PETER
ART UNIT PAPER NUMBER
1777
NOTIFICATION DATE DELIVERY MODE
03/02/2020 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HANS ULMERT
Appeal 2019-003374
Application 14/771,291
Technology Center 1700
Before JEFFREY W. ABRAHAM, MONTÉ T. SQUIRE, and
LILAN REN, Administrative Patent Judges.

ABRAHAM, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Hans Ulmert
Med Firma Flocell. Appeal Br. 2.
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Application 14/771,291
2
CLAIMED SUBJECT MATTER
The claims relate to a method of purifying water. Spec. 1:5–8.
Claim 1, reproduced below from the Claims Appendix, is illustrative of the
claimed subject matter:
1. A method for chemical precipitation
purification in a water treatment plant or waste water
treatment plant, the method comprising:
obtaining on-line measurements of a
contamination degree of incoming untreated water and/or
outgoing treated water;
providing a coagulant solution comprising an
aluminum-based coagulant having a basicity to a reaction
vessel;
regulating the basicity of the aluminum-based
coagulant in situ by reacting a controlled amount of
hydroxide ions with the aluminum-based coagulant in the
reaction vessel to form a hydroxylated aluminum
coagulant solution, wherein in situ regulation of the
basicity is based on the contamination degree
measurements; and
adding a dosage of the hydroxylated coagulant
solution from the reaction vessel to untreated water in a
treatment tank to form flocculated water.
Claims Appendix 1.
REJECTIONS ON APPEAL
On appeal, the Examiner maintains the following rejections
A. Claims 1, 3, 4, and 6 under 35 U.S.C. § 103 as unpatentable over
Arai2 and Kimura;3

2 US 2002/0121484 A1, published Sept. 5, 2002.
3 M. Kimura et al., Minimizing residual aluminum concentration in treated
water by tailoring properties of polyaluminum coagulants, Water Research,
Vol. 47, No. 6, January 31, 2013, 2075–2084.
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B. Claim 2 under 35 U.S.C. § 103 as unpatentable over Arai,
Kimura, and Johnson;4
C. Claim 5 under 35 U.S.C. § 103 as unpatentable over Arai,
Kimura, and Yamaguchi;5 and
D. Claims 7 under 35 U.S.C. § 103 as unpatentable over as Arai,
Kimura, and Smiddy.6
Ans. 3; Non-Final Act. 2–6.
OPINION
We sustain the above rejections based primarily on the Examiner’s
findings of fact, conclusions of law, and rebuttals to Appellant’s arguments,
as expressed in the Final Action and Answer. The following comments are
added for emphasis.
Appellant presents arguments for independent claim 1 and does not
separately argue the patentability of dependent claims 2–7, which depend
from claim 1. Therefore, we limit our discussion to independent claim 1,
which we select as representative under 37 C.F.R. § 41.37(c)(1)(iv). By
this rule, claims 2–7 stand or fall with claim 1.
The Examiner finds Arai teaches a method of optimizing the
coagulation/flocculation process of polluted waters treated with an
aluminum-based coagulant that includes “obtaining on line measurements
of a contamination degree” and adding a coagulant having hydroxides to a
treatment tank, wherein the addition of the coagulant is regulated based on
the “measurements of the contamination degree.” Final Act. 2–3. The
Examiner notes that Arai does not explicitly teach using its method in a

4 US 2009/0107913 A1, published Apr. 30, 2009.
5 US 2008/0288111 A1, published Nov. 20, 2008.
6 US 2012/0285895 A1, published Nov. 15, 2012.
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Application 14/771,291
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wastewater treatment plant, but takes the position that “any place where
polluted water is treated could be considered a wastewater treatment plant,”
and “the general wastewater treatment method taught by Arai would be
applicable to small scale operations as well as larger plant type operations
and one skilled in the art would have a reasonable expectation of success in
treating larger volumes of water via the Arai method.” Final Act. 3.
The Examiner acknowledges that Arai does not teach regulating the
basicity of the coagulant prior to being added, but finds that
Kimura teaches that in treating various wastewater streams, the
polyaluminum chloride coagulant can be tailored depending on
the properties of the incoming stream in order to effectively treat
the wastewater. Such tailoring includes modifying the basicity
of the polyaluminum chloride coagulant via addition of
hydroxide ions and is useful in cases where pH adjustment of the
incoming stream is difficult or undesirable.
Final Act. 3 (citing Kimura, Abstract, 2076, 2081–2083). The Examiner
further determines that a person of ordinary skill in the art would have
found it obvious to tailor the basicity of the coagulant used in Arai in view
of Kimura’s teachings “in order to effectively treat water systems.” Final
Act. 3.
Appellant argues that the combined teachings of Arai and Kimura fail
to disclose or suggest all of the limitations of claim 1, including
(1) regulating the basicity of the coagulant in situ prior to being added to
the untreated water, and (2) chemical precipitation purification in a water
treatment plant. Appeal Br. 3–4. In particular, Appellant argues that Arai
teaches controlling the amount of flocculent added to the water based on the
measured pollutant concentration, not the basicity of the flocculent, such
that “[t]here is no regulation or adjustment of the basicity of the flocculent
in situ.” Appeal Br. 5. Appellant acknowledges that “different coagulants
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may have different basicity,” and that Kimura tested coagulants having
different basicity values.7 Appeal Br. 5. Appellant argues, however, that
basicity was not the determining factor of the effectiveness of the coagulant
in Kimura, and that Kimura does not teach or suggest that any property of
the coagulant could be varied in situ in response to the measured degree of
contamination of the water. Appeal Br. 4–6.
Appellant also argues that Arai is directed to the purification system
of a washing machine, not a waste water treatment plant as recited in claim
1. Appeal Br. 6–7. According to Appellant, “the amount of waste water
processed in typical treatment plants is exponentially greater than that
processed by washing machines,” and “[t]here is nothing in Arai that would
have led one skilled in the art to have an expectation that the process of
Arai could be scaled up to the extent required for successful water or waste
water treatment plant operation.” Appeal Br. 7.
Appellant’s arguments are not persuasive. As the Examiner points
out, Appellant’s arguments are directed to the references individually, as
opposed to the collective teachings of the references. Ans. 3. Appellant
does not address sufficiently the Examiner’s determination that it would
have been obvious to a person of ordinary skill in the art to modify the
basicity of a coagulant in situ in view of Arai’s disclosure of obtaining

7 This acknowledgement undermines Appellant’s argument in the Reply
Brief regarding the difference between pH and basicity and the Examiner’s
use of pH in one sentence in the Answer. Reply 2. Furthermore, we note
that the Examiner repeatedly refers to Kimura’s disclosure of the basicity of
coagulants, including the statement that “Kimura teaches that adding
hydroxide ions to increase the basicity of an aluminum based coagulant is
something that can be tailored in order to promote more effective water
treatment.” Ans. 3–4 (citing Kimura, Abstract, 2076, Figs. 4–6).
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on-line measurements of wastewater contamination and controlling the
amount of flocculent added to wastewater in response to those
measurements, together with Kimura’s disclosure of varying the basicity of
a coagulant through the addition of hydroxide ions to promote effective
water treatment.
Nor are we persuaded by Appellant’s arguments regarding the
difference in scale between the volume of water used in Arai’s purification
system for washing machines and the amount of water treated at “larger
plant type operations,” such as a pulp and paper mill. Appeal Br. 6–7. As
the Examiner points out, there is no specific definition in the Specification
for a waste water treatment plant, and the claims do not recite a specific size
of the plant or specify how much water a plant must treat in a given period
of time. Ans. 6. Furthermore, Appellant relies solely on attorney argument
to support its position that a person of ordinary skill in the art would not
have had a reasonable expectation of success in treating larger volumes of
water based on Arai’s teachings. See Appeal Br. 6–7. Attorney argument,
however, cannot take the place of evidence. E.g., In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974).
Appellant also presents two new arguments in its Reply Brief. First,
Appellant argues that “for the washing machine of Arai to be able to
regulate basicity, significant modification of the washing machine purifier
would be required.” Reply 3. Second, Appellant argues that “one skilled in
the art would not have been motivated to look to Kimura to modify the
process of Arai.” Reply 3. A reply brief, however, is not “an opportunity
to make arguments that could have been made in the principal brief on
appeal to rebut the Examiner’s rejections, but were not.” Ex parte Borden,
93 USPQ2d 1473 (BPAI 2010) (informative opinion). Pursuant to our
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Application 14/771,291
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rules, “[a]ny argument raised in the reply brief which was not raised in the
appeal brief, or is not responsive to an argument raised in the examiner's
answer, . . . will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.” 37 C.F.R. § 41.41(2). Appellant has
not shown good cause as to why we should consider these new arguments.
Nevertheless, even if we were to consider these belated arguments,
the outcome here would not change. As to Appellant’s arguments
regarding “significant modifications” to a washing machine, “[t]he test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). Additionally, Appellant does not
contend that such modifications would have been beyond the skill level of a
person of ordinary skill in the art. As to Appellant’s argument that a person
of ordinary skill in the art would not have looked to Kimura to modify Arai,
we disagree. Both references generally relate to wastewater treatment, a
fact that supports the Examiner’s determination that a person of ordinary
skill in the art would have looked to combine the references “in order to
effectively treat wastewater streams.” Final Act. 3.
In view of the foregoing, we are not persuaded of any reversible error
in the Examiner’s rejection of claim 1 under 35 U.S.C. § 103.
CONCLUSION
The Examiner’s rejections of claims 1–7 under 35 U.S.C. § 103 are
affirmed.
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Application 14/771,291
8
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6 103 Arai, Kimura 1, 3, 4, 6
2 103 Arai, Kimura,
Johnson
2
5 103 Arai, Kimura,
Yamaguchi
5
7 103 Arai, Kimura,
Smiddy
7
Overall
Outcome
1–7

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