Ex Parte Wang et al

Patent Trial and Appeal BoardApr 29, 2016

12633862 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/633,862 12/09/2009 Yu Wang 41669 7590 05/02/2016 BABCOCK & WILCOX POWER GENERATION GROUP, INC PA TENT DEPARTMENT 20 SOUTH VAN BUREN A VENUE BARBERTON, OH 44203 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. Case 7367 6500 EXAMINER LEE, SHUNK ART UNIT PAPER NUMBER 2884 MAILDATE DELIVERY MODE 05/02/2016 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 YU WANG, WILLIAM HOWARD EBERHARDT, MARK WAYNE HOLT, and JAMISON W. JANA WITZ Appeal2014-003227 Application 12/633,862 Technology Center 2800 Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and ADAM J. PYONIN, Administrative Patent Judges. Per Curiam DECISION ON APPEAL STATEMENT OF THE CASE Appellants are appealing the Final Rejection of claims 1 and 5-11 under 35 U.S.C. Â§ 134(a). Claims 2--4 and 12-17 have been canceled. Appeal Brief 3, 11-13. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. Appeal2014-003227 Application 12/633,862 Introduction Appellants' invention relates to a method for "calibrating a system that detects presence of a pollution component within exhaust gases proceeding along an exhaust passageway." Abstract. Representative Claim (Disputed limitations emphasized) 1. A method of calibrating a system that detects a presence of a pollution component within an exhaust gas within an exhaust passageway, the method including: providing a probe with a measurement cell for in-situ measurement of the exhaust gas wherein the probe operates to detect the pollution component from the exhaust gas, the probe including a guide path portion that travels through a fixed shield, a laser that emits a beam in the mid-infrared range and is located on one end of the guide path portion, said measurement cell on an opposite end of the guide path portion, and a seal at an end of the measurement cell, the fixed shield being located \'l1ithin the exhaust passage\'l1ay, and the measurement cell being able to be exposed to the exhaust gas within the exhaust passageway; moving the measurement cell out of the exhaust passageway and within the fixed shield to isolate the measurement cell from the exhaust gas, wherein the seal and the fixed shield are configured to prevent the exhaust gas from entering the measurement cell during the calibration of the system; providing a source of a reference gas that is transported to the measurement cell; operating the laser of the probe with the beam directed to the measurement cell that includes the reference gas, such that the beam interacts with the reference gas; receiving at a detector the laser beam subsequent to the interaction of the beam with the reference gas; and 2 Appeal2014-003227 Application 12/633,862 determining an accuracy and a calibration of the system from the at least one or more constituents of the reference gas. Rejections on Appeal Claims 1 and 6---11 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Baskins (US 4,549,080,issued October 22, 1985) in view of Webber (US 2002/0158202 Al, published October 31, 2002) and Forrest (US 2004/0074279 Al, published April 22, 2004). Final Rejection 3. Claim 5 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Baskins in view of Webber, Forrest, and Sappey (US 2006/0133714 Al, published June 22, 2006. Final Rejection 7. ANALYSIS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Final Rejection (mailed March 25, 2013), the Appeal Brief (filed September 16, 2013), and the ii .. ns\ver (mailed October 18, 2013) for the respective details. We have considered in this decision only those arguments Appellants actually raised in the Briefs. Appellants argue the combination of references fails to provide the structure recited in independent claim 1, because "the structure of Baskins does not contain any moving parts" and "[t]here is no fixed shield in Forrest, and the detector of Forrest is not moved of an exhaust passageway." Appeal Brief 5---6. Appellants contend the Examiner is using "improper hindsight reasoning" and "it is not obvious to change the dimensions of these pieces so that the ceramic cylinder can move 'within the fixed shield to isolate the measurement cell from the exhaust gas,' as recited in claim 1." Appeal Brief 7. 3 Appeal2014-003227 Application 12/633,862 The Examiner finds Forrest teaches that "by reducing the volume of gas space between a source of pressurized calibration gas and a detector and by forming a gas tight seal between a calibration device and a detector," it will "reduce[] the consumption of expensive calibration gas." Final Rejection 5---6, citing Forrest i-f 32. The Examiner then reasons: it would have been obvious to one having ordinary skill in the art at the time of the invention to configure the annular flange and the end cap of Baskins et al., in order to form a gas tight seal when the measurement cell is moved out of the exhaust passageway and within the annular flange so as to reduce the consumption of expensive calibration gas by isolating the measurement cell from the exhaust gas. Final Rejection 6. The Examiner additionally finds that: Forrest also teaches or suggests a method of moving the measurement cell (i.e., detector 22) so that the face of the measurement cell (i.e., detector 22) is sealed against the main housing 10 of Forrest in a gas-tight manner in order to isolate the measurement cell (i.e., detector 22) so as to prevent ambient gases from entering the measurement cell (i.e., detector 22) during calibration with calibration gases. Answer 6, citing Forrest i-f 42. We find Appellants' arguments persuasive. Taken together, the Examiner's findings regarding Forrest are insufficient to explain how one of ordinary skill in the art would use Forrest to modify Baskins and arrive at the claimed invention. For example, in Forrest, isolation of detector 22 from the exhaust gas is made by physically attaching detector 22 in housing 10 (see Forrest Figures 2 and 3) and not made by movement "within the fixed shield" as required by the claim. The Examiner, furthermore, has provided no findings or conclusions indicating how the physical attachment in Forrest 4 Appeal2014-003227 Application 12/633,862 would suggest a modification to Baskins, such as moving Baskin's annular flange 13. See Baskins Figure 1. Therefore, we reverse the Examiner's obviousness rejection of independent claim 1 for the reasons above. We also reverse the obviousness rejections of the corresponding dependent claims. None of the additional references cited address the noted deficiency of Forrest. See Final Rejection 3-7. DECISION The Examiner's obviousness rejections of claims 1 and 5-11 are reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). See 37 C.F.R. Â§ 41.50(f). REVERSED 5