Ex Parte Bauer et al

Patent Trial and Appeal Board

Mar 20, 2018

14368611 (P.T.A.B. Mar. 20, 2018)

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.
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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."):
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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