Ex Parte Zha et al

Patent Trial and Appeal Board

Nov 6, 2012

10537760 (P.T.A.B. Nov. 6, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/537,760 06/06/2005 Fufang Zha 2002P87059WOUS 5173
28524 7590 11/06/2012
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
170 WOOD AVENUE SOUTH
ISELIN, NJ 08830
EXAMINER
MENON, KRISHNAN S
ART UNIT PAPER NUMBER
1777
MAIL DATE DELIVERY MODE
11/06/2012 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 FUFANG ZHA,
Roger William Phelps, and Etienne Ulysse Brois
________________

Appeal 2011-005245
Application 10/537,760
Technology Center 1700
________________

Before JEFFREY T. SMITH, MARK NAGUMO, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL

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Application 10/537,760

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Fufang Zha, Roger William Phelps, Etienne Ulysse Brois (“Zha”)
timely appeal under 35 U.S.C. § 134(a) from the final rejection1 of
claims 1-3, 6, 9-14, 17, and 20-56.2 We have jurisdiction. 35 U.S.C. § 6(b).
We REVERSE.
INTRODUCTION
The subject matter on appeal relates to a membrane filtration
apparatus that can be used for the treatment of waste water.3 (Spec. 1.)
The claimed apparatus comprises a plurality of membrane filtration
modules that are useful to treat waste water, a single chamber that is
configured to mix gas and liquid, and a single manifold that couples the
chamber to a lower header that supports the membrane filtration modules.
(Spec. 3.)
Figure 2 in the 760 Specification, reproduced on the following page,
is the elected species and is illustrative.4

1 Office action mailed 19 May 2010.
2 Claims 23-34, 36-39, and 49-53 are withdrawn and not under appeal.
3 Application 10/537,760, filed 06 June 2005, claiming the benefit of
PCT/AU03/01632, filed 05 December 2003 and priority to
Australia 2002953111, filed 05 December 2002. The specification is
referred to as the “760 Specification,” and is cited as “Spec.” The real party
in interest is listed as Siemens Water Technologies Corp. (Appeal Brief,
filed 06 October 2010 (“Br.”), 3.)
4 Office action mailed 16 April 2008 required an election of species. Zha
elected the species represented by Figure 2 in the response filed 15 May
2008.
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{Zha Figure 2 shows gas 12 fed from above and through manifold 9}
One feature of the claimed apparatus is its gas inlet, which is arranged
to feed gas from above and through the manifold into the chamber.
(Spec. 12, Fig. 2.) Once inside the chamber, the gas is mixed with liquid
that is supplied from a source located below to produce a scrubbing fluid.
The scrubbing fluid is then distributed upward through the manifold and the
apertures in a lower pot that supports the lower header. (Spec. 3.) The
scrubbing fluid that is produced is used to clean the porous membranes
located in the membrane filtration modules. (Id.)
An object of the claimed invention is to improve fluid distribution and
flow of the scrubbing fluid into the membrane filtration modules. (Spec. 1.)
Fluid transfer may be limited by the effectiveness of the gas lifting
mechanism. (Spec. 2.) As mentioned above, the scrubbing fluid is formed
when gas is bubbled into the chamber and mixed with liquid. More
specifically, as liquid flows past the gas source, gas bubbles are drawn into
the liquid and the scrubbing fluid will flow into the membrane filtration
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modules to scour the surface of the membranes. (Spec. 6-7.) The claimed
invention requires gas to be fed from above and through a manifold into the
mixing chamber. As a result, the bubbles pass in a substantially uniform
manner between each membrane filtration module. (Spec. 7.)
Representative claim 1 reads:
1. A membrane filtration apparatus comprising:
a plurality of membrane filtration modules [5],
each membrane filtration module comprising:
a plurality of porous membranes [6] extending in an
array,
said plurality of porous membranes [6] encased in a
support structure and having lower ends mounted in a
lower pot [7] supported by a lower header [8] and upper
ends mounted in an upper pot supported by an upper
header,
said upper header configured to provide for
permeate to be withdrawn from said upper ends of
said plurality of porous membranes [6]; and
a plurality of distribution apertures [11] defined in said
lower pot [7], said distribution apertures [11] configured
to distribute a scrubbing fluid into said module and along
a surface or surfaces of said membranes;
a single manifold [9] coupled to said lower header [8] of each of said
plurality of membrane filtration modules [5]; and
a single chamber [10] positioned below, and connected to, said
manifold [9],
said chamber [10] constructed and arranged to promote upward
flow of feed liquid therethrough, said chamber [10] comprising:
an open base end [13] in fluid communication with a
source of feed liquid [14];
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a second end in fluid communication with said
distribution apertures [11]; and
a single gas inlet [12] constructed and arranged to
introduce gas into said chamber [10] in a downward
direction from above the open base end [13],
said gas fed from above and through said
manifold [9] and into said chamber [10] ,
said gas inlet [12] centered between at least two of
said plurality of membrane filtration modules [5]
and configured to release gas into said
chamber [10] at a position vertically displaced
below said at least two of said plurality of
membrane filtration modules [5],
said chamber [10] configured to mix gas and liquid
to produce said scrubbing fluid and further
configured to distribute said scrubbing fluid to said
distribution apertures [11].
(Claims App., Br. 20 (paragraphing, indentation, emphasis and bracketed
numbers referring to the components in Figure 2 added).)
The Examiner maintains the following grounds of rejection:5
A. Claims 1-3, 6, 9-14, 17, 20-22, 35, 40-48, and 54-56 stand
rejected under 35 U.S.C. § 103(a) in view of the combined
teachings of Cote6 and Zha ‘962.7

5 Examiner’s Answer mailed 02 December 2010 (“Ans.”).
Claims 1-22, 35, 40-48, and 54-56 were also provisionally rejected
under obviousness-type double patenting over claims in Serial
No. 11/025,418 in view of Shimizu. This rejection is moot in view of the
Notice of Abandonment mailed 27 October 2011 in Serial No. 11/025,418.
6 US 2005/0006308, 13 January 2005, which claims benefit of
US 60/278,007, filed 23 March 2011 and US 60/012,921,
filed 5 March 1996 (Ans. 5-12).
7 US 2001/0047962, 6 December 2001 (Ans. 5-12).
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B. Claims 1-3, 6, 9-14, 17, 20-22, 35, 40-48, and 54-56 stand
rejected under 35 U.S.C. § 103(a) in view of the combined
teachings of Zha ‘962, Shimizu,8 and Cote.
C. Claims 1-3, 6, 9-14, 17, 20-22, 35, 40-48, and 54-56 stand
rejected under 35 U.S.C. § 103(a) in view of the combined
teachings of Zha ‘962, Shimizu, Cote, and Henshaw.9
DISCUSSION
Zha argues the patentability of claims 1-3, 6, 9-14, 17, and 20-56
generally; i.e., without setting forth separate reasons for patentability with
respect to any one or more claims apart from the others. More particularly,
Zha argues that each independent claim (claims 1, 12, 35, 40, and 41)
requires gas to be fed into a mixing chamber “from above and through said
manifold.” This feature is argued to distinguish the claimed invention from
each of the references in Rejections A, B, and C, either alone or taken
together. (Br. 15-19.) Because the feature that Zha argues is dispositive
with respect to each ground of rejection, infra, Rejections A, B, and C are
disposed of as a group for the purposes of this appeal. Accordingly, the
claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner finds that Zha ‘962 teaches the use of a membrane
module support structure (e.g., the screen 9 in Figures 1, 3b, 4b, 5b, 6a, 7,
and 8, discussed on p. 3, ¶ 0040 and the screen 51 in Figures 9 and 10,
discussed on p. 4, ¶ 0059). The Examiner relies on Cote for all other
findings.

8 US 5,482,625, 09 January 1996 (Ans. 12-19).
9 US 5,783,083, 21 July 1998 (Ans. 19).
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Specifically, the Examiner relies on the Cote embodiments depicted in
Figures 1, 1A, and 8A. (Ans. 6.) The Examiner finds that the Cote
embodiments teach “a membrane filtration apparatus comprising a plurality
of membrane filtration modules, each module comprising plurality of hollow
fiber membranes in an array (23), encasing support structure [Zha], lower
end mounted in lower pots supported in headers (22), [and] upper ends
mounted in upper pots and supported by upper header (22).” (Ans. 6-7,
parentheticals omitted.)
Further, the Examiner finds that air box 2 in Figure 1 of Cote depicts a
mixing chamber that is positioned below a manifold (shown in Figure 2 with
apertures 5) and the chamber is structured with “an open base end (bottom)
in communication with the source liquid (the device of Cote is a submerged
membrane device, or it can be submerged in a water), the second end of the
box is in communication with the distribution apertures.” (Br. 8-9.) The
Examiner explains these findings via annotation of Figure 1. (Br. 9.)

{Annotated Cote Figure 1 shows gas 3 fed from within the chamber 2}
Zha argues that “one of ordinary skill in the art would not have been
motivated to have combined Cote ‘308 and Zha, or Zha and Shimizu in the
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manner asserted by the Examiner ab initio.” (Br. 7-8; Reply Br. 10-11.)
Further, Zha argues that “even if the cited references were properly
combinable in the manner asserted by the Examiner, these asserted
combinations would still fail to disclose or suggest each and every element
of any of these claims.” (Br. 8; Reply Br. 6-8.)
Contrary to the Examiner’s findings, Zha argues that none of the
references “disclose or contemplate a plurality of membrane modules
coupled through a single manifold to a single mixing chamber including a
gas inlet passing into the mixing chamber through the manifold from above
as recited in each of the independent claims.” (Br. 17; Reply Br. 6.) Zha
argues that the “air pipe 3 of the Cote Provisional is not, however, ‘fed from
above and through said manifold and into said chamber.’ . . . but rather
enters the air box 2 from a side thereof. ” (Reply Br. 8.)
The weight of the evidence supports Zha’s argument. The Examiner’s
finding that Cote or Zha ‘962 discloses a membrane filtration apparatus
comprising a plurality of membrane filtration modules, a single manifold,
and a single chamber in which gas is fed from above and through said
manifold and into said chamber is not supported by the evidence.
Figure 1 of Cote shows a gas inlet that is fed from a position that is
below the manifold to the chamber, whereas the claimed invention, as
illustrated by Figure 2, shows the air being fed from above and through the
manifold into the chamber.
Zha ‘962 discloses a membrane filtration apparatus, but the gas is fed
directly into its chamber from the side; i.e., not from above and through its
manifold. See, for example, Figure 1. (Br. 15.) Indeed, the Examiner
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acknowledges that Zha ‘962 does not disclose or teach a gas inlet that feeds
gas from above and through the manifold into the chamber. (Ans. 14.)
Shimizu discloses a conventional filtration membrane module that is
submerged in a processing tank. (Figure 1.) In that apparatus, the gas is
supplied from the diffuser 7, which is located below the membrane modules.
(Col. 1, ll. 11-34; col. 2, ll. 1-19.) Shimizu’s invention is also directed to a
filtration membrane module that is submerged with a processed liquid in a
processing tank. (Col. 2, ll. 29-32.) Figure 3 illustrates one embodiment of
Shimizu’s invention. Figure 3 shows gas diffuser 103 is supplied with gas
via air supply pipe 112 from blower 113. Although gas is fed from above
tank 101, it does not go through a manifold that is below the membrane
modules. (Col. 6, ll. 25-54.) Thus, Shimizu does not disclose or teach gas
being fed from above and through a manifold into the chamber. Further,
Shimizu does not disclose a single manifold coupled to a plurality of
membrane filtration modules and a single chamber.
The Examiner relies on Henshaw to show that a plurality of
membrane modules may be arranged in different shapes. (Br. 26; Figure 2.)
Espenan is relied by the Examiner to establish that “having gas source as
“integral” to the header is not inventive, and is well known.” (Ans. 18.) The
Examiner does not rely on Henshaw or Espenan to show that feeding gas
from above and through a manifold into a chamber is known in the art.
Thus, neither Henshaw nor Espenan cure the deficiencies of Zha ‘962 and
Cote.
As argued by Zha, none of the cited references in Rejections A, B,
and C discloses or suggests a gas inlet that feeds gas from above and through
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a manifold into a chamber or a plurality of membrane filtration modules
connected to a single chamber via a single manifold. Zha argues that the air
pipe 3 in Figure 1 of Cote requires more hardware to be in the chamber,
thus, increasing the flow resistance of the scrubbing fluid that is directed
toward the membrane filtration modules. (Reply Br. 8.) The Examiner has
not explained why it would have been obvious to modify the membrane
filtration apparatus in Figure 1 of Cote with Zha ‘962 in order to arrive at the
claimed invention. Because the Examiner’s conclusions of obviousness in
Rejections A, B, and C are not supported by the evidence of record, they are
reversed.
ORDER
We reverse the rejections of claims 1-3, 6, 9-14, 17, and 20-56.
REVERSED