Badger Meter, Inc.

Patent Trials and Appeals Board

Nov 29, 2021

2021000381 (P.T.A.B. Nov. 29, 2021)

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.
15/013,558 02/02/2016 Richard A. Meeusen 1834.494 1075
23598 7590 11/29/2021
BOYLE FREDRICKSON S.C.
840 NORTH PLANKINTON AVENUE
MILWAUKEE, WI 53203
EXAMINER
PHAN, TRUONG D
ART UNIT PAPER NUMBER
2861
NOTIFICATION DATE DELIVERY MODE
11/29/2021 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):
docketing@boylefred.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte RICHARD A. MEEUSEN, GREGORY M. GOMEZ,
JAMES DONALD FABER, DENNIS J. WEBB, DANIEL D. ZANDRON,
and MARK LAZAR
________________

Appeal 2021-000381
Application 15/013,558
Technology Center 2800
________________

Before ST. JOHN COURTENAY III, JAMES R. HUGHES, and
JASON J. CHUNG, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–19, which constitute all the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b). An Oral Hearing was
conducted on November 10, 2021. We will add a transcript to the record in
due course.
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Badger Meter, Inc. is the real
party in interest. Appeal Br. 3.
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INVENTION
The invention relates to meter data collection for metering
consumption of water supplied to single-unit residential, multi-unit
residential, commercial and industrial customers from a municipal or district
utility provider. Spec. ¶ 2. Claim 1 is illustrative of the invention and is
reproduced below:
1. Apparatus for sensing water quality at a water
metering system end point, the apparatus comprising:
a fluid flow metering element positioned in a flow stream
supplying at least one water utility customer that converts
metering signals or movements of a flow metering element to
electrical signals representing units of consumption;
communication interface circuitry for converting the
electrical signals representing units of consumption to meter data
signals;
means for electronically communicating the meter data
signals to an external data collection device; and
a water quality sensor positioned in a same flow stream as
the flow stream of the fluid flow metering element to sense a
quality of the water such that a water input to the water quality
sensor is taken from the flow stream and a water output from the
water quality sensor is provided back into the flow stream, said
sensor producing a water quality status signal to the
communication interface circuitry,
wherein the communication interface circuitry is
responsive to the water quality status signal to incorporate said
water quality status signal into a group of data signals including
meter data signals,
wherein said means for electronically communicating the
meter data will also communicate the water quality status signal
in a transmission to a collection station in a water meter data
collection network, and
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wherein the flow stream is received by the metering
system end point from a water source external to a domicile of
the at least one water utility customer and the flow stream is
output from the metering system end point to a pipe for
distribution throughout the domicile of the at least one water
utility customer.
Appeal Br. 26 (Claims Appendix).

REJECTIONS2
The Examiner rejects claims 1–11, 14–16, 18, and 19 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Newenhizen (US
2005/0109703 A1; published May 26, 2005), Moskoff (US 6,753,186 B2;
issued June 22, 2004), and Fierro (US 6,747,571 B2; issued June 8, 2004).
Final Act. 5–14, 25–33.
The Examiner rejects claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Newenhizen, Moskoff, Fierro, and
Corlett (US 5,928,492; issued July 27, 1999). Final Act. 14–25.
The Examiner rejects claims 12, 13, and 17 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Newenhizen, Moskoff,
Fierro, and Pitchford (US 2007/0284293 A1; published Dec. 13, 2007).
Final Act. 33–35.
ANALYSIS
I. Newenhizen teaches a “water metering system end point”
The Examiner finds Newenhizen teaches metering element 106 and
water quality sensor 24 that communicates with control panel 26 to turn on
or off side-treatment device 16, which the Examiner maps to the limitation

2 The rejection of claims 1–13 under 35 U.S.C. § 112, first paragraph has
been withdrawn. Ans. 3.
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“a water metering system end point” recited in claim 1. Ans. 12–13 (citing
Newenhizen ¶¶ 20, 21); Final Act. 5–6 (citing Newenhizen ¶¶ 20–23, 35).
Moreover, the Examiner finds that a person having ordinary skill in the art
(hereinafter “PHOSITA”) would have modified Newenhizen, Moskoff, and
Fierro to “put the water quality sensor with the water meter at any desired
location . . . to test for contaminants that might have occurred in the main
water pipe” as a rearrangement of parts. Final Act. 13–14.
Appellant argues Newenhizen is not a water metering system endpoint
because Newenhizen teaches a water softener that is positioned downstream
from a metering endpoint. Appeal Br. 14–15; Reply Br. 4. We disagree
with Appellant.
As an initial matter, we note that the Federal Circuit has held that the
Board may adopt a claim construction of a disputed term that neither party
proposes without running afoul of the Administrative Procedure Act, see 5
U.S.C. § 551 et seq. (1946) (“APA”).3 See, e.g., Praxair Distrib., Inc. v.
Mallinckrodt Hosp. Prods. IP Ltd., 890 F.3d 1024, 1034 (Fed. Cir. 2018)
(rejecting argument that Board violated patent owner’s “procedural rights by
adopting a claim construction that neither party proposed”); WesternGeco
LLC v. ION Geophysical Corp., 889 F.3d 1308, 1328 (Fed. Cir. 2018) (“The
Board is not bound to adopt either party’s preferred articulated construction
of a disputed claim term.”). Parties are well aware that the Board may stray
from disputed, proposed constructions. See WesternGeco, 889 F.3d at 1328
(“Having put it at issue, WesternGeco was well aware that the Board could

3 The Administrative Procedure Act (APA), requires a federal court to hold
unlawful and set aside agency action not in accordance with law or without
observance of procedure required by law. See 5 U.S.C. § 706(2).

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alter its construction in the final written decision.”).
Moreover, “[a]n intended use or purpose usually will not limit the
scope of the claim because such statements usually do no more than define a
context in which the invention operates.” Boehringer Ingelheim Vetmedica,
Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Such
statements often appear in a claim’s preamble, but can appear elsewhere in
the claim. See In re Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987).
It is well settled that statements of intended use can arise in method
claims, where such statements do not add structural limitations to the claims.
See, e.g., TomTom, Inc. v. Adolph, 790 F.3d 1315, 1317, 1323–24 (Fed. Cir.
2015) (construing generating language in a recited method for generating
and updating data for use in a destination tracking system as mere intended
use of the invention); In re Anderson, 662 F. App’x 958, 963 (Fed. Cir.
2016) (non-precedential) (agreeing with the Board that claimed “for use”
language is a statement of intended use that did not add a structural
limitation to the claimed system or method).
In this case, we note that apparatus claim 1 recites “for distribution
throughout the domicile of the at least one water utility customer.” And,
method claim 14 recites “for distribution throughout the domicile of the at
least one water utility customer.” As a result, we conclude claim 1’s
language is a statement of intended use. In addition, we conclude claim 14’s
language is a statement of intended purpose.
Accordingly, as a matter of law, we conclude that the limitation “for
distribution throughout the domicile of the at least one water utility
customer” recited in claims 1 and 14 need not be satisfied in the prior art to
render claims 1 and 14 anticipated or obvious.
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Newenhizen teaches metering element 106 and water quality sensor
24 that communicates with control panel 26 to turn on or off side-treatment
device 16. Ans. 12–13 (citing Newenhizen ¶¶ 20, 21); Final Act. 5–6 (citing
Newenhizen ¶¶ 20–23, 35). Also, Appellant does not rebut the Examiner’s
finding that a PHOSITA would have modified the combination of
Newenhizen, Moskoff, and Fierro to “put the water quality sensor with the
water meter at any desired location . . . to test for contaminants that might
have occurred in the main water pipe” as a rearrangement of parts. Final
Act. 13–14. Furthermore, we agree with the Examiner’s finding that a
PHOSITA would have modified Newenhizen to put the water quality sensor
with the water meter at any desired location for the reasons articulated by the
Examiner, which teaches the limitation “a water metering system end point”
recited in claim 1. We also note that Moskoff teaches a “water metering
system end point” as discussed infra in § V.
Accordingly, Appellant does not persuade us of Examiner error.
II. Newenhizen teaches a “communications interface circuitry”
The Examiner finds Newenhizen teaches a water quality sensor 24
that communicates with control panel 26 to turn on or off side-treatment
device 16, which the Examiner maps to the limitation “communications
interface circuitry” recited in claim 1. Ans. 13; Final Act. 5 (citing
Newenhizen ¶¶ 22, 23).
Appellant argues Newenhizen fails to teach a “communications
interface circuitry” as required by claim 1 because Newenhizen merely
teaches a display. Appeal Br. 15–16; Reply Br. 4–5. We disagree with
Appellant.
Newenhizen does not state that element 26 is a display. Instead,
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Newenhizen teaches a water quality sensor 24 that communicates with
control panel 26 such that control panel 26 turns on or off side-treatment
device 16 in response to received quality signals from water quality sensor
24, which teaches the limitation “communications interface circuitry” recited
in claim 1. Ans. 13; Final Act. 5 (citing Newenhizen ¶¶ 22, 23).
Accordingly, Appellant does not persuade us of Examiner error.
III. The cited references teach the limitation “water quality sensor
positioned in a same flow stream as the flow stream of the fluid flow
metering element to sense a quality of the water such that a water input to
the water quality sensor is taken from a flow stream and the water output
from the water quality sensor is provided back into the flow stream, said
sensor producing a water quality status signal to the communication
interface circuitry”
The Examiner relies on the combination of Moskoff, Newenhizen,
Fierro, and the knowledge of a skilled artisan to teach the limitation
water quality sensor positioned in a same flow stream as the flow
stream of the fluid flow metering element to sense a quality of
the water such that a water input to the water quality sensor is
taken from a flow stream and the water output from the water
quality sensor is provided back into the flow stream, said sensor
producing a water quality status signal to the communication
interface circuitry.
Final Act. 13–14.
Appellant argues Newenhizen fails to teach the limitation
water quality sensor positioned in a same flow stream as the flow
stream of the fluid flow metering element to sense a quality of
the water such that a water input to the water quality sensor is
taken from a flow stream and the water output from the water
quality sensor is provided back into the flow stream, said sensor
producing a water quality status signal to the communication
interface circuitry
because Newenhizen merely generally describes sensor 24 without
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specifically detailing its operation, and because the output of the system
appears to be provided to drain 18. Appeal Br. 16–17; Reply Br. 5–6. We
disagree with Appellant.
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Keller,
642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). In this case, Appellant’s argument is misplaced because
the Examiner does not rely on Newenhizen alone to teach the limitation
from the preceding paragraph.4 Rather, the Examiner relies on the
combination of Moskoff, Newenhizen, Fierro, and the knowledge of a
skilled artisan to teach the limitation from the preceding paragraph.
Accordingly, Appellant does not persuade us of error in the
Examiner’s rejection.
IV. Newenhizen teaches the limitation “a domicile of at least one water
utility customer”5
The Examiner finds Newenhizen teaches a water source external to a
domicile of at least one water utility customer is inherent and treating the
water at a point of use, which the Examiner maps to the limitation “a
domicile of at least one water utility customer” recited in claim 1. Ans. 19

4 Moreover, we note that Newenhizen’s element 18 is not described as a
drain as Appellant alleges, but instead as water in tank 12. See Newenhizen
¶¶ 21–25.
5 We need not consider Appellant’s argument labeled as “Examiner Error
Number 4” (Appeal Br. 17) because the Examiner and Appellant appear to
resolve this issue. Compare Ans. 18 – 19 (the Examiner is not relying on
Newenhizen to teach the limitation “the communication interface circuitry is
responsive to the water quality status signal to incorporate said water quality
status signal into a group of data signals including meter data signals”), with
Reply Br. 6 (Appellant acknowledging this explanation).
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(citing Newenhizen ¶¶ 20, 21).
Appellant argues Newenhizen fails to teach “a domicile of at least one
water utility customer” because the Examiner fails to provide reasoning.
Reply Br. 6–7; Appeal Br. 18. We disagree with Appellant.
Newenhizen discloses “supplying . . . service water to a domicile”
(Newenhizen ¶ 7) and describes a tank 12 that receives “raw, untreated or
low quality water by a line 14 that is under inlet water pressure” and a
“service water supply” (Newenhizen ¶ 20). Accordingly, Newenhizen
teaches a water source. Ans. 19 (citing Newenhizen ¶¶ 20, 21). We agree
with the Examiner that Newenhizen’s water source is inherently external to a
domicile and treating the water at a point of use (i.e., a domicile of at least
one water utility customer), teaches or at least suggests the limitation “a
domicile of at least one water utility customer” recited in claim 1. Ans. 19
(citing Newenhizen ¶¶ 20, 21).
Appellant, therefore, does not persuade us of error.
V. Moskoff teaches the limitation “a water metering system end point”
The Examiner finds Moskoff teaches a residential home at which a
water monitoring is located and an apparatus for sensing water quality in a
residential environment, which the Examiner maps to the limitation “a water
metering system end point” recited in claim 1. Ans. 21 (citing Moskoff,
1:10–15, Abstract, Figure 7); Final Act. 7 (citing Moskoff, 1:10–15,
Abstract, Figure 7). Furthermore, the Examiner finds that a PHOSITA
would have modified the combination of Newenhizen, Moskoff, and Fierro
to “put the water quality sensor with the water meter at any desired location .
. . to test for contaminants that might have occurred in the main water pipe”
as a rearrangement of parts. Final Act. 13–14.
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Appellant argues Moskoff fails to teach a water metering system
endpoint because Moskoff’s water quality sensor is connected to a faucet in
a sink or to the outlet pipe from a water heater (i.e., not where the water
meter is located). Appeal Br. 19–21. We disagree with Appellant.
As stated above in § I., claims 1 and 14 recite intended use and
intended purpose language, respectively. As a result, as a matter of law, we
conclude that the limitation “for distribution throughout the domicile of the
at least one water utility customer” recited in claims 1 and 14 need not be
satisfied in the prior art to render claims 1 and 14 anticipated or obvious.
Moskoff describes a residential home (i.e., water metering system end
point) at which a water monitor is located and an apparatus for sensing water
quality (i.e., water quality sensor) in a residential environment. Ans. 21
(citing Moskoff, 1:10–15, Abstract, Figure 7); Final Act. 7 (citing Moskoff,
1:10–15, Abstract, Figure 7).
Furthermore, Appellant does not rebut the Examiner’s finding that a
PHOSITA would have modified the combination of Newenhizen, Moskoff,
and Fierro to “put the water quality sensor with the water meter at any
desired location . . . to test for contaminants that might have occurred in the
main water pipe” as a rearrangement of parts. Final Act. 13–14. We agree
with the Examiner’s finding that a PHOSITA would have modified Moskoff
to put the water quality sensor with the water meter at any desired location
for the reasons articulated by the Examiner, which teaches or at least
suggests the limitation “a water metering system end point” recited in claim
1. We also note that Newenhizen teaches a “water metering system end
point” as discussed supra in § I.
Accordingly, Appellant does not persuade us of Examiner error.
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VI. Newenhizen and Moskoff’s apparatus being within a domicile is
irrelevant because of intended use and intended purpose language in claims
1 and 14
The Examiner finds that a PHOSITA would have modified the
combination of Newenhizen, Moskoff, and Fierro to “put the water quality
sensor with the water meter at any desired location . . . to test for
contaminants that might have occurred in the main water pipe” because it is
a mere rearrangement of parts. Final Act. 13–14.
Appellant argues the combination of Newenhizen and Moskoff results
in an apparatus entirely within a domicile that require the use of waste
streams rather than at a service entry point of a building. Appeal Br. 21–22.
We disagree with Appellant.
As stated above in §§ I., V., we conclude that the limitation “for
distribution throughout the domicile of the at least one water utility
customer” recited in claims 1 and 14 need not be satisfied in the prior art to
render claims 1 and 14 anticipated or obvious.
Moreover, Appellant does not rebut the Examiner’s finding that a
PHOSITA would have modified the combination of Newenhizen, Moskoff,
and Fierro to “put the water quality sensor with the water meter at any
desired location . . . to test for contaminants that might have occurred in the
main water pipe” as a rearrangement of parts. Final Act. 13–14. The
teachings from the combination of Newenhizen, Moskoff, and Fierro along
with the Examiner’s finding that a PHOSITA would have modified the
combination to put the water quality sensor with the water meter at any
desired location for the reasons articulated by the Examiner teach or at least
suggest the limitations recited in claim 1.
Thus, Appellant does not persuade us of error.
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VII. Appellant’s argument pertaining to Fierro amounts to a bodily
incorporation argument
The Examiner finds that Fierro teaches a metering device measuring
user consumption with a transducer that converts analog signals to meter
data signals and Moskoff teaches detector 30 is in contact with a water
stream, which the Examiner maps to the limitation “a metering element
converts movements of a fluid flow in a flow stream supplying at least one
water utility customer to electrical signals representing units of
consumption; converting the electrical signals representing units of
consumption to meter data signals” recited in claim 1. Ans. 25–26 (citing
Fierro, 1:12–19, 4:14–16, 4:19–47, 6:38–58; Moskoff, 7:39–50, 8:27–43,
3:64–67); Final Act. 10–11. The Examiner finds a PHOSITA would have
combined Newenhizen, Moskoff, and Fierro to include a metering element
to convert movements of a fluid flow in a flow stream supplying at least one
water utility customer to electrical signals representing units of
consumption; converting the electrical signals representing units of
consumption to meter data signals, for monitoring utility consumption. Ans.
26–27.
Appellant argues that Fierro does not cure the deficiencies of
Newenhizen and Moskoff because Fierro teaches a network protocol and is
too generalized such that it does not teach the necessary details of a flow
detection device. Appeal Br. 22–23.
Appellant’s argument is unpersuasive because it amounts to a bodily
incorporation argument. Appeal Br. 4–7; Reply Br. 1–5. We note the test
for obviousness is what the combined teachings of the references would
have suggested to a person of ordinary skill in the art, not whether one
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reference may be bodily incorporated into the structure of another reference.
In re Keller, 642 F.2d 413, 425 (CCPA 1981).
In this case, Fierro describes a metering device measuring user
consumption with a transducer that converts analog signals to meter data
signals. Ans. 25–26 (citing Fierro, 1:12–19, 4:14–16, 4:19–47, 6:38–58).
And Moskoff describes detector 30 is in contact with a water stream. Ans.
25–26 (citing Moskoff, 7:39–50, 8:27–43, 3:64–67). Thus, the combination
of Moskoff and Fierro teaches or at least suggests the limitation “a metering
element converts movements of a fluid flow in a flow stream supplying at
least one water utility customer to electrical signals representing units of
consumption; converting the electrical signals representing units of
consumption to meter data signals” recited in claim 1. Ans. 25–26 (citing
Fierro, 1:12–19, 4:14–16, 4:19–47, 6:38–58; Moskoff, 7:39–50, 8:27–43,
3:64–67); Final Act. 10–11.
Appellant, therefore, does not persuade us of error.
VIII. Corlett is analogous art
The Examiner determines that Corlett is reasonably pertinent to the
problem being solved because Corlett teaches monitoring the quantity and
quality of liquid using a turbidity meter and a flow meter. Ans. 29 (citing
Corlett, 7:30–33).
Appellant argues that Corlett teaches mechanical and chemical
processing of semiconductor wafers and is non-analogous art to the present
invention. Appeal Br. 23. We disagree with Appellant.
As an initial matter, we note that in the Reply Brief, Appellant does
not rebut the Examiner’s determination that Corlett is reasonably pertinent to
the problem being solved because Corlett describes monitoring the quantity
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and quality of liquid using a turbidity meter and a flow meter. Compare
Ans. 29 (citing Corlett, 7:30–33), with Appeal Br. 23.
Also, we agree with the Examiner’s determination that Corlett is
reasonably pertinent to the problem being solved because Corlett teaches
monitoring the quantity and quality of liquid using a turbidity meter and a
flow meter. Ans. 29 (citing Corlett, 7:30–33). Because Corlett is reasonably
pertinent to the problem being solved, Corlett is analogous art.
Thus, Appellant does not persuade us of error. Appellant does not
argue claims 2–19 separately with particularity. Accordingly, we sustain the
Examiner’s rejection of: (1) independent claims 1 and 14; and (2) dependent
claims 2–13 and 15–19 under 35 U.S.C. § 103(a).
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION

Claim(s)
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1–11, 14–
16, 18, 19
103(a) Newenhizen,
Moskoff, Fierro
1–11, 14–
16, 18, 19

1 Newenhizen,
Moskoff, Fierro,
Corlett
1
12, 13, 17 Newenhizen,
Moskoff, Fierro,
Pitchford
12, 13, 17
Overall
Outcome
1–19
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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)(iv). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED