Ex Parte Bauer et alDownload PDFPatent Trial and Appeal BoardMar 20, 201814368611 (P.T.A.B. Mar. 20, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/368,611 06/25/2014 Max Bauer 23364 7590 03/22/2018 BACON & THOMAS, PLLC 625 SLATERS LANE FOURTH FLOOR ALEXANDRIA, VA 22314-1176 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. BAUE3008/FJD 9495 EXAMINER SCHMITT, BENJAMIN R ART UNIT PAPER NUMBER 2852 NOTIFICATION DATE DELIVERY MODE 03/22/2018 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): MAIL@BACONTHOMAS.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MAX BAUER, TOBIAS BRENGARTNER, MARTIN URBAN and MICHAEL SIEGEL Appeal2017-008338 Application 14/368,611 Technology Center 2800 Before CATHERINE Q. TIMM, BRIAND. RANGE, and JANEE. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests our review under 35 U.S.C. § 134(a) of the Examiner's decision to finally reject claims 12-21 and 23. We have jurisdiction over this appeal under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellant is the Applicant, Endress +Hauser Gmbh +Co. KG, which, according to the Appeal Brief, is the real party in interest. Appeal Brief filed January 3, 2017 ("App. Br."), 1. Appeal2017-008338 Application 14/368,611 STATEMENT OF THE CASE Appellant claims an apparatus for determining and/or monitoring at least one process variable of a medium in a container. App. Br. 2-3. Independent claim 12 illustrates the subject matter on appeal and is reproduced below: 12. An apparatus for determining and/or monitoring at least one process variable of a medium in a container, comprising: a mechanically oscillatable unit; an electromechanical transducer unit, which has at least one piezoelectric transducer element or inductive transducer element, which excites the oscillatable unit by means of an exciter signal to execute mechanical oscillations and which receives oscillations from the oscillatable unit and converts them into an electrical, received signal, said received signal exhibits a superpositioning of a disturbance signal and a wanted signal representing the oscillations; a reference element having a first component of electrically adjustable size, wherein the reference element is connected in parallel with the electromechanical transducer unit and supplied with the same exciter signal and produces a reference signal uninfluenced by the oscillations of the oscillatable unit; and an electronics unit, which in the case of a supplying of the electromechanical transducer unit and the reference element with the exciter signal extracts the wanted signal from the received signal and the reference signal and, based on the wanted signal, determines and/or monitors the process variable; wherein: said electromechanical transducer unit includes a second component of electrically adjustable size. App. Br. 9-10 (claims appendix) (emphasis added). The Examiner sets forth the following rejections in the Final Office Action entered August 2, 2016 ("Final Act.") and maintains the rejections in the Examiner's Answer entered March 6, 2017 ("Ans."): 2 Appeal2017-008338 Application 14/368,611 I. Claims 12, 13, 15-18, and 20 under 35 U.S.C. § 103(a) as unpatentable over Josse et al. (US 5,852,229, issued December 22, 1998) in view of Jasmine (US 4,734,609, issued March 29, 1988); II. Claim 14 under 35 U.S.C. § 103(a) as unpatentable over Josse in view of Jasmine and Erickson (US 4,642, 581, issued February 10, 1987); III. Claims 19 and 20 under 35 U.S.C. § 103(a) as unpatentable over Josse in view of Jasmine and Yamagishi et al. (US 2008/0184775 Al, published August 7, 2008); and IV. Claim 23 under 35 U.S.C. § 103(a) as unpatentable over Josse in view of Jasmine and Richter (US 2011/0012621 Al, published January 20, 2011). DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellant's contentions, we affirm the Examiner's rejections of claims 12-21 and 23 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action, the Answer, and below. Rejection I Appellant argues claims 12, 13, 15-18, and 20 as a group on the basis of claim 12, to which we accordingly limit our discussion. App. Br. 4-7. 37 C.F.R. § 41.37(c)(l)(iv)(2016). Josse discloses an apparatus that determines the presence or absence of an analyte in a medium by measuring changes in electrical properties of a piezoelectric resonator coated with a polymeric layer that occur in the presence of the analyte. Col. 1, 11. 5-9. Josse discloses that the polymeric layer selectively binds to or reacts with the analyte, which causes a change 3 Appeal2017-008338 Application 14/368,611 in the mass, conductivity, dielectric constant, or viscoelasticity of the polymeric layer. Col. 4, 11. 28-37. Josse discloses exposing piezoelectric resonator unit 105 (electromechanical transducer unit) coated with polymeric layer 25 to a sample medium, and applying an electrical signal of varying frequency to resonator unit 105 with oscillator circuit 100, so as to oscillate resonator unit 105. Col. 15, 11. 22-24, 50-58; col. 16, 11. 31-33, 54-56; Fig. 11. Josse discloses that oscillator circuit 100 also applies an electrical signal to uncoated reference piezoelectric resonator unit 107 (reference element), which is contained within a reference medium, and is not exposed to the sample medium. Col. 16, 11. 54-75; col. 16, 1. 62-col. 17, 1. 3; Fig. 11. Josse discloses that sensing circuit 110 senses values of the resonant frequencies of resonator 105 and 107, and determines the antiresonant critical frequencies of resonator 105 (received signal) and reference resonator 107 (reference signal). Col. 16, 11. 39-60; col. 17, 11. 8-12; Fig. 11. Josse discloses that comparison circuit 125, which includes a computer, compares the respective critical frequencies of resonator units 105 and 107 (extracts the wanted signal from the received and reference signals), and based on this comparison, determines the presence or absence of a material of interest in the sample medium (determines the process variable). Col. 17, 11. 12-21; Fig. 11. Josse discloses that comparison circuit 125 sends the results of this analysis to indicator unit 120, which displays the results. Col. 17, 11. 18-19; Fig. 11. The Examiner finds that comparison circuit 125 and indicator unit 120 correspond to the electronics unit recited in claim 12. Final Act. 4. 4 Appeal2017-008338 Application 14/368,611 Josse discloses that reference resonator unit 107 provides a dynamic standard, subjected to all of the same conditions as resonator unit 105, except the material of interest (disturbance signal). Col. 17, 11. 26-29. Josse indicates that, accordingly, "differences between data collected simultaneously from units 105 and 107 represent influences of the material of interest." Col. 17, 11. 29-32. The Examiner finds that Josse does not disclose that piezoelectric resonator unit 107 (reference element) has a first component of electrically adjustable size, and piezoelectric resonator unit 105 (electromechanical transducer unit) includes a second component of electrically adjustable size, and the Examiner relies on Jasmine for suggesting these features. Final Act. 4. Jasmine discloses a gas density transducer that compares the resonant frequency of a reference tuning fork crystal oscillator 12 with the resonant frequency of a detector tuning fork crystal oscillator 10 exposed to surrounding gas. Col. 1, 1. 65-col. 2, 1. l; col. 3, 11. 4-8; Fig. 1. Jasmine discloses that oscillators 10 and 12 are coupled through amplifiers 14 and 16, respectively. Col. 3, 11. 39--41; col. 4, 11. 12-14; Figs. 1, 4. Jasmine discloses that amplifier 14 for density detector oscillator 10 includes variable capacitor 54 that tunes oscillator 10 to the same frequency as oscillator 12 so that the difference in frequencies of the oscillators is due solely to the motional resistance of the surrounding gas. Col. 3, 11. 55-67. The Examiner finds that variable capacitor 54 corresponds to the second component of electrically adjustable size recited in claim 12. Final Act. 4. Jasmine discloses that amplifier 16 for reference oscillator 12 includes varactor diode 64 (first component of electrically adjustable size) that 5 Appeal2017-008338 Application 14/368,611 changes its capacitance so as to correct the operational frequency of crystal 12. Col. 4, 11. 12-31. Jasmine discloses that varactor diode 64 (first component of electrically adjustable size) thus tunes reference oscillator 12 in order to compensate for changes in air density due to temperature changes when measuring density as a function of altitude. Col. 4, 11. 14-17, 29-42. The Examiner finds that varactor diode 64 corresponds to the first component of electrically adjustable size recited in claim 12. Final Act. 4. The Examiner finds that one of ordinary skill in the art would have modified the apparatus disclosed in Josse at the time of Appellant's invention to provide piezoelectric resonator unit 107 (reference element) with a first component of electrically adjustable size as disclosed in Jasmine, and to provide piezoelectric resonator unit 105 (electromechanical transducer unit) with a second component of electrically adjustable size, as also disclosed in Jasmine, to compensate for variations in the resonator units. Final Act. 4 (citing Jasmine col. 3, 11. 60-63). Appellant argues that J osse does not teach that the received signal exhibits a superposition of a disturbance signal and wanted signal and also does not disclose extracting a wanted signal from the received signal and reference signal based on which process variable is determined. App. Br. 5. However, as discussed above, Josse explicitly discloses that reference resonator 107 cancels influences other than those due to the material of interest, and the critical frequency of reference resonator 107 thus corresponds to a disturbance signal as recited in claim 12. Josse Col. 17, 11. 29-32. As also discussed above, Josse's comparison circuit 125 compares the critical frequency of piezoelectric resonator 105 (received signal) with that of reference resonator 107 (reference signal), corresponding to 6 Appeal2017-008338 Application 14/368,611 extracting a wanted signal from the received and reference signals as recited in claim 12. Based on this comparison, Josse's comparison circuit 125 determines the presence of a material of interest, corresponding to determining a process variable as recited in claim 12. The critical frequency of piezoelectric resonator 105 (received signal) thus includes both a disturbance signal and the wanted signal, as recited in claim 12. Appellant's conclusory statements are unpersuasive of reversible error. See 37 C.F.R. § 41.37(c)(iv) (requiring, for each argument, "the basis therefor, with citations of the statutes, regulations, authorities, and parts of the Record relied on" and further requiring that the "arguments shall explain why the examiner erred as to each ground of rejection"); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board reasonably interpreted 37 C.F.R. § 41.37 (c) as requiring "more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art"). Appellant argues that Josse's reference oscillator does not generate a wanted signal that cancels a disturbance signal before determining a process variable but rather detects presence of analyte via a frequency change induced by the analyte attaching to the polymeric layer. App. Br. 5-6. However, Appellant's arguments do not explain why one of ordinary skill in the art would not have understood Josse's reference resonator 107 to correspond to the reference element recited in claim 12. As discussed above, Josse explicitly discloses that reference resonator unit 107 provides a dynamic standard, subjected to all of the same conditions as resonator unit 105, except the material of interest. Col. 17, 11. 26-29. Josse further 7 Appeal2017-008338 Application 14/368,611 indicates that "differences between data collected simultaneously from units 105 and 107 represent influences of the material of interest." Col. 17, 11. 29- 32. Based on this disclosure, one of ordinary skill in the art would have understood that Josse's reference resonator 107 cancels influences other than those due to the material of interest, allowing the presence or absence of the material of interest to be determined, as recited in claim 12. Contrary to Appellant's comments in the Reply Brief (Reply Br. 2), a person of ordinary skill in the art is "a person of ordinary creativity, not an automaton." KSR, 550 U.S. 398, 420-21 (2007). And an obviousness analysis "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for [an examiner] can take account of the inferences and creative steps that a person of ordinary skill in the art would employ."). KSR 550 U.S. at 418; see also In re Preda, 401 F. 2d 825, 826 (CCPA 1968) ("[I]t 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.") Appellant's further statement that Josse's "polymeric layer 25 [] should be identified as a mechanically oscillatable unit, and not the piezoelectric resonator which rather refers to the electromechanical transducer of the present invention" (App. Br. 5), does not identify any specific error in the Examiner's finding that Josse's resonator 105 corresponds to a mechanically oscillatable unit as recited in claim 12, in view of Josse's disclosure that the resonator oscillates mechanically. Ans. 3 (citing Josse col. 3, 11. 22-24). Appellant argues that Jasmine's reference oscillator does not cancel out a disturbance signal, but is directly involved in determination of gas 8 Appeal2017-008338 Application 14/368,611 density from the shift between the frequency of the detector circuit and the reference circuit. App. Br. 6. However, as discussed above, the Examiner does not rely on Jasmine for disclosure of a reference oscillator as recited in claim 12. Rather, the Examiner relies on Jasmine's disclosure of variable capacitor 54, which the Examiner finds corresponds to the second component of electrically adjustable size recited in claim 12, and relies on Jasmine's disclosure of varactor diode 64, which the Examiner finds corresponds to the first component of electrically adjustable size recited in claim 12. Appellant's arguments do not explain why one of ordinary skill in the art would not have understood varactor diode 64 and variable capacitor 54 and to correspond to first and second components of electrically adjustable size, respectively, as recited in claim 12. Appellant's arguments thus do not identify reversible error in the Examiner's factual findings or reasoning, and are therefore unpersuasive of reversible error. Appellant argues that Jasmine discloses that effects of temperatures are provided to the detection oscillator and also to the reference oscillator by means of circuit 60, but in contrast, Appellant's invention "utilizes the reference element to cancel out such effects within the measurement branch, so that the adjustable component of the reference branch cannot be identified as any of the components of circuit 60." App. Br. 6. However, as discussed above, Jasmine discloses that varactor diode 64, which is part of circuit 60, changes its capacitance to correct the operational frequency of reference crystal oscillator 12 to tune the oscillator in order to compensate for changes in air density due to temperature changes. Col. 4, 11. 12-35. Appellant's arguments do not identify any 9 Appeal2017-008338 Application 14/368,611 specific error in the Examiner's finding that varactor diode 64 thus corresponds to the first component of electrically adjustable size recited in claim 12. Appellant argues that neither Josse nor Jasmine discloses the electronics unit of claim 12, and nothing in either reference would have suggested any modification of the teaching of either reference that would have resulted in the electronics unit of claim 12. App. Br. 6. However, as discussed above, Josse discloses that comparison circuit 125 compares the respective frequencies of resonator units 105 and 107 (extracts the wanted signal from the received and reference signals) and, based on this comparison, determines the presence or absence of a material of interest in the sample medium (determines the process variable). Josse discloses that comparison circuit 125 sends the results of this analysis to indicator unit 120, which displays the results. Appellant's conclusory arguments do not identify any specific error in the Examiner's finding that comparison circuit 125 and indicator unit 120 thus correspond to the electronics unit recited in claim 12. Appellant's arguments are therefore unpersuasive of reversible error in the Examiner's rejection. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art."). We accordingly sustain the Examiner's rejection of claims 12, 13, 15-18, and 20 under 35 U.S.C. § 103(a). Rejections II-IV To address these rejections, Appellant relies on the arguments made for claim 12 (Rejection I, discussed above), and asserts that the additional 10 Appeal2017-008338 Application 14/368,611 references applied in these rejections-like Josse and Jasmine-do not disclose an electronics unit as recited in claim 12. App. Br. 7. Because we are unpersuaded of reversible error in the Examiner's rejection of claim 12 for the reasons discussed above, Appellant's position as to these rejections is also without merit. DECISION We affirm the Examiner's rejections of claims 12-21and23 under 35 U.S.C. § 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a). AFFIRMED 11 Copy with citationCopy as parenthetical citation