Ex Parte Poole et al

Patent Trial and Appeal Board

Mar 28, 2018

13768782 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/768,782 02/15/2013
57726 7590 03/30/2018
MILLER, MATTHIAS & HULL LLP
ONE NORTH FRANKLIN STREET
SUITE 2350
CHICAGO, IL 60606
FIRST NAMED INVENTOR
Amanda Lee Poole
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.
60028/50000 7926
EXAMINER
NORRIS, CLAIRE A
ART UNIT PAPER NUMBER
1778
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
bmatthias@millermatthiashull.com
ynunez@millermatthiashull.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AMANDA LEE POOLE,
DAVID JAMES GREEN, and CHRISTOPHER TODD SOSNOWSKI
Appeal2017-007844
Application 13/768,782
Technology Center 1700
Before MICHAEL P. COLAIANNI, RAEL YNN P. GUEST,
and GEORGE C. BEST, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134 the final rejections of
claims 1-17. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b ).
We AFFIRM.
Appellants' invention is directed to a system and method for the
treatment of wastewater via aeration using feed-forward control based on
ammonia content (Spec. i-f 1 ).
1 Appellants identify the real party in interest as Baxter & Woodman, Inc.
(Br. 2).
Appeal2017-007844
Application 13/768,782
Claim 1 is illustrative:
1. A method for treating a wastewater to facilitate removal
of ammonia and/or organics in the wastewater, the method
compnsmg:
receiving an effluent wastewater into one or more
aeration tanks, wherein the wastewater flows into the one or
more aeration tanks via one or more inlets, is treated in one or
more aeration tanks, and flows out of the one or more aeration
tanks via one or more outlets to yield an effluent wastewater,
the one or more aeration tanks having a plurality of air diffusers
therein supplied via an air source;
determining an ammonia level in the wastewater near the
one or more tank inlets with an ammonia sensor having one or
more ion selective electrode probes;
sending the determined ammonia level to a controller, the
controller being configured to apply an ammonia set point;
comparing the ammonia set point by the controller with
the determined ammonia level in the wastewater near the one or
more tank inlets; and
adjusting the operation of the air source by the controller
such that the delivered air modulates to match predicted
process requirements computed by the controller from the
comparison of the ammonia set point with the determined
ammonia level to assist in an optimization of dissolved oxygen
and/ or ammonia levels defined by the predicted process
requirements.
(Br. 9 (App. A) (emphasis added)).
Appellants appeal the following rejections: 2
1. Claims 1, 5, 7-10, 13, and 15-17 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Inomata et al. (WO 2012/042728 Al,
2 In the Final Office Action, dated June 29, 2015, claims 1 and 10 were
rejected as indefinite. This rejection has been withdrawn by the Examiner
(Ans. 18).
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Appeal2017-007844
Application 13/768,782
published Apr. 5, 2012, and relying on a translation dated Nov. 5,
2014, "Inomata") in view of Whitlock (US 5,169,532, issued Dec. 8,
1992, "Whitlock").
2. Claims 1--4 and 10-12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Behmann et al. (US 6,616,843 Bl, issued Sept. 9,
2003, "Behmann") in view of Whitlock and further in view of Carolan
et al. (US 7 ,416,669 B 1, issued Aug. 26, 2008, "Carolan").
3. Claims 2--4, 11, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Inomata in view of Whitlock and further in view of
Behmann.
4. Claims 6 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Inomata in view of Whitlock and further in view of
Mathur et al. (US 2004/0149234 Al, published Aug. 5, 2004,
"Mathur").
Appellants' arguments focus solely on independent claims 1 and 10
(Br. 4, 5-7). We select claim 1 as representative. 37 C.F.R.
§ 41.37(c)(l)(iv). Accordingly, claims 2-17 will stand or fall with our
analysis of claim 1.
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Appeal2017-007844
Application 13/768,782
FINDINGS OF FACT & ANALYSIS
Rejection I
Inomata' s Figure 1, which illustrates a schematic configuration of a
recycling production system, is reproduced below.
40
Figure 1 illustrates features of aerobic tank 5, including inlet 53, outlet
54, aerator 9, and ammonia meter 32.
Appellants argue, inter alia, that "[ t ]he ammonia sensor in Inomata is
not located near the tank inlet" (Br. 5). Appellants further argue that
"Inomata expressly shows the ammonia sensor located in the very middle of
the aeration tank, no closer to the inlet than it is to the outlet." Id. Thus,
according to Appellants, the Examiner's applied prior art fails to teach or
suggest the requisite step of "determining an ammonia level in the
wastewater near the one or more tank inlets." Id.
Appellants' arguments are not persuasive.
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Appeal2017-007844
Application 13/768,782
Inomata's Figure 1 is a schematic representation of the components of
water treatment system 1. Nevertheless, the Specification does not place
any restrictions on what distance from the inlet would fall within the
meaning of "near." Indeed, the Examiner finds that the Specification does
not limit the term "near" to a location at or within a certain distance from the
tank inlets (Ans. 18). Accordingly, we agree with the Examiner that the
location depicted in Figure 1 would fall within the broadest reasonable
interpretation of the term "near." Thus, Appellants' arguments have not
identified reversible error in the Examiner's findings.
Rejection II
It is well understood that "[r ]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (quoting In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)). The
fact that a reference may be modified to reflect features of the claimed
invention does not make the modification, and hence the claimed invention,
obvious unless the prior art suggested the desirability of such modification.
In re Mills, 916 F.2d 680, 682 (Fed. Cir. 1990).
In this instance, Appellants argue that the Examiner's proffered reason
for combining the teachings of Behmann and Carolan "is not technically or
logically sound" (Br. 6). Appellants further argue that following Carolan's
teachings regarding "setting a high point concentration as the required set
point of the claims would result in excess ammonia in the water; the setpoint
recited in the claims needs to be the desired ammonia content, not a high
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Appeal2017-007844
Application 13/768,782
content at which one finally decides to do something about it." Id.
Appellants contend that "the claims do not require reacting to an ammonia
high point alarm, they require sensing ammonia and driving a prediction of
the eventual ammonia level based on a comparison with the setpoint." Id.
Appellants' arguments are not persuasive.
We agree with the Examiner that the claims do not limit the setpoint
to a desired ammonia content (Ans. 19). Rather, the claims only require that
an ammonia set point is applied. Furthermore, the Examiner has made
findings that Behmann's high ammonia concentration is not a high
concentration that is considered unacceptable in the process. Id. (citing
Behmann 9:37-51 ("for higher than acceptable total nitrogen concentrations
in the permeate 26, the maximum DO in the aerobic stage may be
reduced")). The Examiner further found that Carolan teaches that an
"ammonia high set point" allows immediate initiation of process control
steps to "thereby reduc[ e] the ammonia concentration to allowable values"
(Carolan 15: 17-26; see also Ans. 10). Thus, even considering Appellants'
reading of an ammonia set point as a "desired" set point, the claims would
read on the acceptably high ammonia value taught by Carolan.
Based on the applied prior art's teachings, a person of ordinary skill in
the art would have reasonably inferred that Carolan's ammonia high set
point that is the maximum acceptable level of ammonia would be effective
in Behmann's method for treating wastewater to facilitate removal of
ammonia. Thus, Appellants' arguments have not identified reversible error
in the Examiner's determination that Carolan would have provided sufficient
reason for the ordinary skilled artisan to incorporate Carolan's high set point
in Behmann' s ammonia removal method.
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Appeal2017-007844
Application 13/768,782
On this record, we affirm the Examiner's Rejections I-IV under
§ 103(a) of claims 1-17. 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
The Examiner's decision is 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).
ORDER
AFFIRMED
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