Ex Parte Levecq et al

Patent Trial and Appeal Board

Nov 14, 2018

13984565 (P.T.A.B. Nov. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/984,565 10/17/2013 Celine Levecq
24112 7590 11/14/2018
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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.
5959-009 2355
EXAMINER
INSLER, ELIZABETH
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
11/14/2018 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 CELINE LEVECQ and THOMAS THOUVENOT
Appeal2018-001253
Application 13/984,565
Technology Center 1700
Before LINDA M. GAUDETTE, JENNIFER R. GUPTA, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 23-30, 33, 37--43, and 45--49. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 Veolia Water Solutions & Technologies Support is identified as the real
party in interest. Appeal Br. 2.
Appeal 2018-001253
Application 13/984,565
The subject matter on appeal is directed to a device for bringing a
liquid species into contact with a growing particulate solid species,
applicable to the treatment of particle-laden industrial and urban wastewater,
which it is desired to homogenize, and to the purification treatment of water
intended for consumption or for industrial processes requiring particularly
clean water. Spec. 1. Independent claim 23 illustrates the subject matter on
appeal and is reproduced below:
23. Device for bringing a liquid species into contact
with a growing particulate solid species, comprising a vat in
which a blade stirrer is arranged in rotation about a shaft for
generating a downward fluid flow in the vat, the vat comprising
a static obstacle generally centered about said shaft in an
extension of the stirrer, characterized in that the static obstacle
has an outer surface having, in a plane passing through the
shaft, an outer transverse dimension that increases moving
away from the stirrer parallel to said shaft, with a constant or
increasing slope with respect to the shaft and a plurality of ribs
extending along the outer surface of the static obstacle for
attenuating rotational components in the downward fluid flow
induced by the stirrer.
Independent claim 45 is directed to substantially the same device as
independent claim 23.
Appellants (see generally Appeal Brief) request review of the
following rejections from the Examiner's Final Office Action:
I. Claims 45, 46, 48, and 49 rejected under pre-AIA 35 U.S.C.
§ 102(b) as anticipated by Beers (US 1,762,950, issued June 10, 1930).
II. Claim 47 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Beers.
2
Appeal 2018-001253
Application 13/984,565
III. Claims 23-28, 33, 37, 40 and 41 rejected under pre-AIA
35 U.S.C. § 102(b) as anticipated by Earhart (US 4,422,771, issued
December 27, 1983).
IV. Claims 29 and 30 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Earhart and Devereux (US 1,430,362, issued
September 26, 1922).
V. Claims 38, 39, 42, and 43 rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Earhart.
OPINION
The Prior Art Rejections
Rejections based on Beers
Appellants present arguments only for independent claim 45. See
generally Appeal Br. 4--5. Accordingly, we select claim 45 as representative
of the subject matter before us for review on appeal for Rejections I and II
and decide the appeal as to these grounds of rejection based on the
arguments made by Appellants in support of patentability of claim 45.
After review of the respective positions provided by Appellants in the
Appeal and Reply Briefs and the Examiner in the Final Action and Answer,
we affirm the Examiner's prior art rejections of claims 45, 46, 48, and 49
under pre-AIA 35 U.S.C. § 102(b) and of claim 47 under pre-AIA 35 U.S.C.
§ 103(a) based on Beers for the reasons presented by Examiner. We focus
our discussion on the anticipation rejection and add the following for
emphasis.
3
Appeal 2018-001253
Application 13/984,565
We refer to the Examiner's Final Action for a statement of rejection of
claim 45. Final Act. 4. Briefly, the Examiner finds Beers discloses a device
for mixing a liquid with growing solids that comprises a static obstacle
supported on a bottom of a tank. Final Act. 4; Beers 1 and Figures 1 and 3.
Appellants argue that Beers fails to teach a static obstacle supported
by physical contact with the bottom of the tank as claimed because Beers
teaches the flow director is preferably spaced above tank bottom 16 by
bosses 17 on the bottom of the cone-base 18 into which screws 19 are
inserted through the tank bottom to secure the flow director-structure in
position. Appeal Br. 4--5.
We have considered Appellants' arguments but are unpersuaded of
error in the Examiner's determination of anticipation for the reasons
presented in the Final Action and the Answer. To anticipate, a reference
must identify something falling within the claimed subject matter with
sufficient specificity to constitute a description thereof within the purview of
§ 102. In re Schaumann, 572 F.2d 312, 317 (CCPA 1978). It is well
established that specific examples of the claimed subject matter are not
necessary to establish anticipation. Rather, to anticipate, one skilled in the
art must be able to "at once envisage" the claimed subject matter in the prior
art disclosure. In re Petering, 301 F.2d 676, 681 (CCPA 1962). Further, in
determining whether a reference anticipates the subject matter recited in a
claim, "it is proper to take into account not only specific teachings of the
reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826
(CCPA 1968).
4
Appeal 2018-001253
Application 13/984,565
The portion of Beers cited by the Examiner and acknowledged by
Appellants discloses the use of a flow director spaced above the tank bottom
16 as a preferred embodiment. Beers 1, 11. 72-74 ("The base of the flow-
director is preferably spaced above the tank bottom 16 .... "). Given this
disclosure, a person of ordinary skill would have drawn a reasonable
inference that Beers envisages an embodiment where the flow director is in
physical contact with the bottom of a tank. Thus, Appellants have not
adequately explained how the claimed invention distinguishes from Beers'
disclosed device.
Accordingly, we affirm the Examiner's prior art rejections of
claims 45--49 based on Beers for the reasons presented by the Examiner and
given above.
Rejections based on Earhart alone (Rejections III and V)
Appellants present arguments for the anticipation rejection of only
independent claim 23 (Rejection III) and do not present arguments for the
obviousness rejection of dependent claims 38, 39, 42, and 43 (Rejection V).
See generally Appeal Br. Accordingly, we select claim 23 as representative
of the subject matter before us for review on appeal for Rejections III and V
and decide the appeal as to these grounds of rejection based on the
arguments made by Appellants in support of patentability of claim 23.
After review of the respective positions provided by Appellants in the
Appeal and Reply Briefs and the Examiner in the Final Action and Answer,
we affirm the Examiner's prior art rejections of claims 23-28, 33, 37, 40 and
41 under pre-AIA 35 U.S.C. § 102(b) and of claims 38, 39, 42, and 43 under
pre-AIA 35 U.S.C. § 103(a) based on Earhart for the reasons presented by
5
Appeal 2018-001253
Application 13/984,565
Examiner. We focus our discussion on the anticipation rejection of claim 23
and add the following for emphasis.
The Examiner finds Earhart describes a device for bringing a liquid
species into contact with a growing particulate solid species where the
device includes static obstacle comprising inner cone 71, outer cone 72 and
gussets 73, with the gussets 73 corresponding to the claimed ribs, that extend
along the outer surface of the static obstacle cone 71 and are capable of
attenuating rotational components in the downward flow induced by the
stirrer. Final Act. 2; Earhart Figures 1 and 3.
Appellants argue that the Examiner did not consider the claimed
functional limitations requiring the ribs to attenuate rotational components of
the downward fluid flow in the device. Appeal Br. 7. According to
Appellants, the Examiner has not shown that Earhart's gussets 73 are
capable of functioning as the claimed ribs because Earhart does not describe
that gussets 73 attenuate rotational components of the downward flow that
passes over inner cone 71. Id. at 8. Appellants further contend that
Earhart's inner and outer cones 71, 72 provide an annular flow area that
leads to a downward ring shaped flow without rotation of the flow. Id. at 8-
9. Appellants additionally contend the gussets divide the downflow into
four streams with each stream passing downwardly over inner cone 71 and
between two gussets 73 and out the bottom of the device. Id. at 10.
We find the arguments unavailing. As the Examiner explains, Earhart
discloses a device having the same structural features recited in claim 23,
including rotational blade stirrer and a static obstacle including plurality of
ribs extending along the outer surface of the static obstacle. Ans. 13. As the
Examiner further explains, Earhart's rotational blade stirrer will impart
6
Appeal 2018-001253
Application 13/984,565
rotational downward flow (that is, imparts rotational components) which
then come in contact with ribs/gussets 73 to produce the annular downward
flow within the static obstacle comprising inner cone 71. Id.
Therefore, because the structure required by the claims is taught by
the applied prior art, we agree with the Examiner's determination that there
is no structural difference between Earhart and the claimed invention. In
light of this similarity in structure, the Examiner correctly finds that the
apparatus of Earhart would have been capable of attenuating rotational
components of the downward fluid flow in the device.
Accordingly, we affirm the Examiner's prior art rejections of
claims 23-28, 33, and 37--43 based on Earhart for the reasons presented by
the Examiner and given above.
Obviousness Rejection based on Earhart and Devereux (Rejection JV)
We also affirm the rejection of claims 29 and 30 under 35 U.S.C.
§ 103(a) for the reasons presented by Examiner. We add the following for
emphasis.
Claim 29 requires the outer surface of the static obstacle is connected
to the bottom of the vat at least approximately tangentially, at an angle of at
most 15°. Claim 30 requires the outer surface of the static obstacle assumes
a generally concave shape.
Regarding claim 29, the Examiner finds that "mixing efficiency and
turbulence are variables that can be modified, among others, by adjusting the
angle of the static obstacle connected to the vat," and, therefore, that the
angle of the static obstacle is a result effective variable. Final Act. 5. The
Examiner finds that, absent a showing of criticality, achieving the claimed
7
Appeal 2018-001253
Application 13/984,565
angle of the static obstacle connected to the vat would have been a matter of
routine optimization based on the desired mixing efficiency and turbulence
within a vat. Id. With respect to claim 30, the Examiner finds Devereux
teaches the shape for the outer surface of a static obstacle. Final Act. 6;
Devereux Figure 1.
As to claim 29, Appellants argue the Examiner has not shown that the
angle of the static obstacle connected to the vat is a recognized result-
effective variable. Appeal Br. 12, n. 1.
We are unpersuaded by this argument because it does not identify
error in the Examiner's reasons for finding that the angle of the static
obstacle is a result-effective variable, and does not adequately explain why
one skilled in the art would not have been capable of optimizing the angle of
the static obstacle connected to the vat for a desired mixing
energy/turbulence, particularly given Devereux's disclosure of a static
obstacle 2 to redirect fluid flow from the bottom of the tank. Devereux
Figure 1.
With respect to claim 30, Appellants argue the Earhart's downflow
mixer is designed to float and move about the surface of an open body of
water and, thus, Earhart is not concerned with scouring the bottom of a tank.
Appeal Br. 13.
We are unpersuaded by this argument because, as the Examiner finds,
Earhart discloses use of the mixing device in a tank. Final Act. 2; Earhart
col. 2, 11. 42-52. Moreover, Earhart discloses that "if the body of liquid has
a substantially constant liquid level, the mixer can be rigidly supported at a
fixed level relative to the surface of the body of liquid [ instead of being
buoyantly supported]." Earhart col. 2, 11. 60-63. Thus, contrary to
8
Appeal 2018-001253
Application 13/984,565
Appellants' argument, Earhart's disclosure is not limited to floating
downflow mixers.
Accordingly, we affirm the Examiner's prior art rejection of claims 29
and 30 for the reasons presented by the Examiner and given above.
ORDER
The Examiner's prior art rejections of claims 23-30, 33, 37--43, and
45--49 are 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)(l )(iv).
AFFIRMED
9