Gecko Robotics, Inc.

Patent Trials and Appeals Board

Jan 5, 2022

2021004986 (P.T.A.B. Jan. 5, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 15/990,046 05/25/2018 Mark Loosararian GROB-0003-U01-C08 1698 87084 7590 01/05/2022 GTC Law Group PC & Affiliates One University Ave., Ste. 302B Westwood, MA 02090 EXAMINER SINGER, DAVID L ART UNIT PAPER NUMBER 2856 NOTIFICATION DATE DELIVERY MODE 01/05/2022 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): uspatents@gtclawgroup.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARK LOOSARARIAN, JOSHUA MOORE, YIZHU GU, KEVIN LOW, EDWARD BRYNER, LOGAN MACKENZIE, IAN MILLER, ALVIN CHOU and TODD JOSLIN ___________ Appeal 2021-004986 Application 15/990,046 Technology Center 2800 ____________ Before ALLEN R. MacDONALD, CARL W. WHITEHEAD JR. and DAVID J. CUTITTA II, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 1 Rather than reiterate Appellant’s arguments and the Examiner’s determinations, we refer to the Appeal Brief (filed April 21, 2021), the Reply Brief (filed August 16, 2021), the Final Action (mailed June 22, 2020) and the Answer (mailed June 15, 2021), for the respective details. An oral hearing was held on December 13, 2021. A transcript of that hearing will be added to the record once available. Appeal 2021-004986 Application 15/990,046 2 Appellant2 is appealing the final rejection of claims 1-21 under 35 U.S.C. § 134(a). See Appeal Brief 7. Claims 1, 7 and 14 are independent. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Introduction According to Appellant: Previously known inspection and treatment systems for industrial surfaces suffer from a number of drawbacks . . . Industrial surfaces are often present within a hazardous location . . . Accordingly, presently known systems require that a system be shutdown, that a system be operated at a reduced capacity, that stringent safety procedures be followed (e.g., lockout/tagout, confined space entry procedures, harnessing, etc.), and/or that personnel are exposed to hazards even if proper procedures are followed. Specification ¶ 6. The present disclosure relates to a system developed for traversing, climbing, or otherwise traveling over walls (curved or flat), or other industrial surfaces. Industrial surfaces, as described herein, include any tank, pipe, housing, or other surface utilized in an industrial environment, including at least heating and cooling pipes, conveyance pipes or conduits, and tanks, reactors, mixers, or containers. Specification ¶ 59. 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a) (“The word ‘applicant’ when used in this title refers to the inventor or all of the joint inventors, or to the person applying for a patent as provided in §§ 1.43, 1.45, or 1.46.”). Appellant identifies Gecko Robotics, Inc. as the real party in interest. Appeal Brief 3. Appeal 2021-004986 Application 15/990,046 3 Representative Claim3 (disputed limitations emphasized) 1. A system, comprising: an inspection robot comprising a plurality of sensor sleds each having at least one pivotal degree of freedom; a plurality of ultra-sonic (UT) sensors; and a couplant chamber mounted to each of the plurality of sleds, each couplant chamber comprising: a cone, the cone comprising a cone tip portion at an inspection surface end of the cone; a sensor mounting end opposite the cone tip portion; and a couplant entry fluidly coupled to the cone at a position between the cone tip portion and the sensor mounting end; wherein each of the UT sensors is mounted to the sensor mounting end of one of the couplant chambers. 3 Appellant does not argue the independent claims individually because both independent claims 7 and 14 are argued in light of independent claim 1. See Appeal Brief 20-21. Accordingly, we select independent claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims subject to the same ground of rejection are argued as a group or subgroup by appellant, the Board may select a single claim from the group or subgroup and may decide the appeal as to the ground of rejection with respect to the group or subgroup on the basis of the selected claim alone.”). Appeal 2021-004986 Application 15/990,046 4 References Name4 Reference Date Douglas US 4,537,136 August 27, 1985 Frankel US 5,929,338 July 27, 1999 Levesque US 6,076,407 June 20, 2000 Harthorn US 2013/0188589 A1 October 9, 2003 Kawabata US 2005/0183506 A1 August 25, 2005 Rejections on Appeal Claims 1-4, 7, 8, 14 and 21 stand rejected on the ground of nonstatutory double patenting as being unpatentable over reference claims 2-4, 9 and 18-20 of previously co-pending Application 15/853,391 which is now U.S. Patent 10,698,412. Final Action 10-13. Claims 1, 2, 7, 8, 14, 17, 19 and 21 stand rejected on the ground of nonstatutory double patenting as being unpatentable over reference claims 2-4, 9 and 18-20 of previously co-pending Application 15/990,021 which is now U.S. Patent 10,795,373. Final Action 13-15. Claims 7-15 and 17-20 stand rejected under 35 U.S.C. § 103 as being unpatentable over Harthorn and Levesque. Final Action 15-22. Claims 1-6 and 21 stand rejected under 35 U.S.C. § 103 as being unpatentable over Harthorn, Frankel and Levesque. Final Action 22-28. Claim 16 stands rejected under 35 U.S.C. § 103 as being unpatentable over Harthorn, Levesque and Kawabata. Final Action 28-29. Claims 1 and 21 stand rejected under 35 U.S.C. § 103 as being unpatentable over Harthorn, Frankel and Douglas. Final Action 29-32. 4 All reference citations are to the first named inventor only. Appeal 2021-004986 Application 15/990,046 5 ANALYSIS Double Patenting Rejections Appellant states: The provisional non-statutory double patenting rejections at pages 9-15 of the FOA are not a subject of this appeal. Appellant reserves the right to file one or more terminal disclaimers subsequent to this proceeding in order to obviate the provisional non-statutory double patenting rejections should they not be otherwise withdrawn by the Examiner. Appeal Brief 7, footnote 3. The Federal Circuit has stated: When the appellant fails to contest a ground of rejection to the Board, [there is] no burden on the Board to consider the merits of that ground of rejection on the basis of a representative claim. Rather, the Board may treat any argument with respect to that ground of rejection as waived. In the event of such a waiver, the PTO may affirm the rejection of the group of claims that the examiner rejected on that ground without considering the merits of those rejections. Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (addressing predecessor rule to 37 C.F.R. § 41.37(c)(1)(iv)); see also 37 C.F.R. § 41.37(c)(1)(iv) (“Except as provided for in §§41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). In light of Appellant’s failure to present arguments as to the provisional non-statutory double patenting rejections, we affirm pro forma the rejections of claims 1-4, 7, 8, 14, 17, 19 and 21. Appeal 2021-004986 Application 15/990,046 6 Obviousness Rejections Claims 1-6 and 21 Appellant argues, “Independent claim 1 recites ‘a plurality of sensor sleds each having at least one pivotal degree of freedom’” and “Harthorn, Frankel, and Levesque, whether taken singly or combined, fail to disclose or render obvious these features, at least because it would not have been obvious to one skilled in the art to modify Harthorn in the manner proposed by the FOA.” Appeal Brief 10. The Examiner finds that while Harthorn does not teach pivoting the sensor sleds for inspection, Levesque discloses pivoting sensor sleds and the Examiner determines that it would be obvious to combine “Levesque’s pivoting sensor sled connection to an arm and Harthorn’s sensor sleds thereby providing increased sensor sled adaptability to changing surfaces including of moving throughout a variety of pipe configurations.” Final Action 24 (citing Levesque column 4, lines 12-21, 56-62). Appellant contends, “that this combination is erroneous because it is based on a fabricated rationale that is contrary to the principles of operation of Harthorn and would have rendered Harthorn unsatisfactory for its enunciated purpose of reducing the twisting in its lines and wires.” Appeal Brief 10. Appellant’s argument is not persuasive of Examiner error. Appellant argues, “Harthorn describes that transducer 53, together with the rest of Harthorn’s transducer assembly shown in FIG. 3, is to be fastened and braced during operation, and Harthorn relies on pneumatic rods 35 to move radially inward and outward for mating with the pipe 13.” Appeal Brief 12 (footnote omitted); see Harthorn ¶¶ 33-35. “Simply put, Harthorn’s Appeal 2021-004986 Application 15/990,046 7 transducer assembly, including spacer block 47, braces 43, and mounting blocks 33, is designed to prevent twisting movement.” Appeal Brief 12. We note, a factfinder “need not seek out precise teachings directed to the specific subject matter of the challenged claim” and “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Specifically, “[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). “The obviousness analysis cannot be confined by the formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of . . . the explicit content of issued patents.” KSR, 550 U.S. at 402. Here, the Examiner articulates reasoning to combine the references with some rational underpinning to support the legal conclusion of obviousness. KSR, 550 U.S. at 418 (citing In re Kahn, 441 F.3d at 988); see Final Action 24. Appellant argues, “Harthom, Frankel, and Levesque, is additionally deficient because the applied references, whether taken singly or combined, fail to disclose or render obvious ‘a couplant entry fluidly coupled to the cone at a position between the cone tip portion and the sensor mounting end,’ as recited by claim 1.” Appeal Brief 13-14. The Examiner finds that while Harthorn’s tapered couplant chamber does not show a cone per se, Frankel discloses “a couplant chamber (chamber of 11) comprising a cone (fig. 1, squirter/bubbler hollow cone-like structure 11), the cone (fig. 1, squirter/bubbler hollow cone-like structure 11) comprising a cone tip portion Appeal 2021-004986 Application 15/990,046 8 (bottom end portion near rubber stopper 14) at an inspection surface end (bottom end) of the cone (fig. 1, squirter/bubbler hollow cone-like structure 11).” Final Action 23; see Harthorn Figure 4, Frankel Figure 1. The Examiner determines that it would have been obvious to combine “Frankel’s cone-shaped couplant chamber with Harthorn’s couplant chamber thereby providing a cone with a nozzle narrowing the fluid and improving Harthorn’s acoustic fluidic coupling while reducing fluid couplant waste and decreasing manufacturing costs by simplifying the geometric shape” of the cone. Final Action 24. Appellant argues, that the Examiner’s “rationale for this modification makes no sense and is not based on the teachings of the references” and “Furthermore, it is not evident why tapering Harthorn’s cavity 49 all the way from the ‘sensor mounting end’ to the ‘couplant exit opening’ would have decreased manufacturing costs.” Appeal Brief 15. Appellant’s argument is not persuasive of Examiner error. As we noted above, the test for obviousness does not rest upon whether or not the features of the secondary reference may be bodily incorporated into the structure of the primary reference, the test is dependent upon what the “combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425. Again, the Examiner articulates reasoning to combine the references with some rational underpinning to support the legal conclusion of obviousness. KSR, 550 U.S. at 418; see Final Action 23. Accordingly, we sustain the Examiner’s obviousness rejection of claims 1, 3-6 and 21 argued together. See Appeal Brief 16. Appellant contends, “dependent claim 2 recites that ‘the couplant entry is positioned at a vertically upper side of the cone in an intended Appeal 2021-004986 Application 15/990,046 9 orientation of the inspection robot on an inspection surface’” wherein “Appellant submits that the applied references, whether taken singly or combined, fail to disclose or render obvious these features, which may provide advantages in the claimed embodiments such as preventing and driving out air bubbles.”5 Appeal Brief 16. The Examiner finds: Harthorn teaches wherein the couplant entry (fig. 4, entry from 50 to 49) is positioned at a vertically upper side of the couplant chamber (fig. 4, cavity 49) in an intended orientation (intended vertical orientation when so oriented) of the inspection robot (fig. 1, inspection device) on an inspection surface (fig. 1, surface of pipe 13). Final Action 25-26. Appellant contends in regard to Harthorn, “the entry of water passage 50 into cavity 49 is not shown ‘at a vertically upper side of [a] cone,’ as recited by claim 2, but instead-and at most-enters the through-hole of cavity 49, which is not a cone.” Appeal Brief 19. Appellant’s argument is not persuasive of Examiner error. Harthorn discloses in Figure 4 where the water passage entry 50 is positioned on the side of the tapered couplant chamber 49. Appellant’s use of “vertically” in claim 2 is merely an orientation of the structure that does not provide a description of the physical location of the actual elements of the structure. Further, the term “upper side” in claim 2 is dependent upon defining or establishing the demarcation between the lower side of the chamber and the upper side of the chamber. Claim 2 is silent in this regard. Furthermore, the Examiner relies upon Frankel to teach a coned shaped couplant chamber and not Harthorn as detailed above in respect to independent claim 1. Claim 2 is dependent upon 5 Claim 2 contains a minor typographical error in the Claim Appendix - “onan” which should be on an. Appeal 2021-004986 Application 15/990,046 10 claim 1. Accordingly, we sustain the Examiner’s obviousness rejection of claim 2. Claims 7-15 and 17-20 Appellant contends, the Examiner’s “combination of Harthorn with Levesque to render obvious independent claim 7 is deficient for the same reasons as discussed above [in regard to independent claim 1]” and therefore “the rejection of independent claim 7 and claims 8-13 depending therefrom is improper and should be withdrawn for at least [the same] reasons.” Appeal Brief 21. Appellant further contends, “Independent claim 14 recites ‘an inspection robot comprising a plurality of sensor sleds each having at least one pivotal degree of freedom.’ Like independent claim 7, the [Examiner’s] combination of Harthorn with Levesque to render obvious independent claim 14 is deficient for the same reasons as discussed above [and therefore Appellant] submits that the rejection of independent claim 14 and claims 15 and 17-20 depending therefrom is improper and should be withdrawn for at least these reasons.” Appeal Brief 21. Accordingly, we sustain the Examiner’s rejection of claims 7-15 and 17-20 for the same reasons stated above in regard to claims 1-6 and 21. Claims 1 and 21 In addition to the obviousness rejection of claims 1 and 21 discussed above at page 6, the Examiner further rejects claims 1 and 21 under 35 U.S.C. § 103 as being unpatentable over Harthorn, Frankel and Douglas. See Final Action 29-32. Appellant contends, “Independent claim 1 recites ‘a plurality of sensor sleds each having at least one pivotal degree of freedom.’ Harthorn, Frankel, and Douglas, whether taken singly or combined, fail to disclose or render obvious these features.” Appeal Brief Appeal 2021-004986 Application 15/990,046 11 21. The Examiner finds, that “Douglas teaches that a pivotally hinge- connected arm with spring biasing (shown in fig. 1) is an alternative arrangement to that of a pneumatic biasing member (shown in fig. 3, see particularly gas power ram 72 with 70).” Final Action 32. The Examiner determines that it would have been obvious to “substitute Douglas’ alternative pivotally mounting arms with spring bias for Harthorn’s pneumatic biasing arms (see Harthorn fig. 3, pneumatic cylinders within block 33 with moving rods 35), thereby providing a simpler arm biasing.” Answer 32. Appellant argues, “modifying Harthorn’s arms to pivot would have been contrary to the principles of operation of Harthon and would have been rendered Harthon unsatisfactory for its enunciated purpose of reducing the twisting in its lines and wires.” Appeal Brief 22. Appellant further argues that, “Douglas does not indicate that its hinged and spring-biased arms 20 would be suitable for urging transducer shoes against the pipe wall-only wheels.” Appeal Brief 23. Appellant argument is unpersuasive of Examiner error for the same reasons as stated above. See Keller, 642 F.2d at 425. Appellant contends: Claim 1 recites “a couplant entry fluidly coupled to the cone at a position between the cone tip portion and the sensor mounting end.” Harthorn, Frankel, and Douglas, whether taken singly or combined, fail to disclose or render obvious these features for reasons identical to those presented in [regard to claim 1’s obviousness rejection over Harthorn, Frankel and Levesque]. Particularly, Douglas is not relied upon for such features, and in any event, fails to cure the deficiencies of Harthorn and Frankel. Appeal Brief 24. Appeal 2021-004986 Application 15/990,046 12 Accordingly, we sustain the Examiner’s obviousness rejection of claims 1 and 21 for the same reasons as stated above. CONCLUSION Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-4, 7, 8, 14, 21 Double Patenting 1-4, 7, 8, 14, 21 1, 2, 7, 8, 14, 17, 19, 21 Double Patenting 1, 2, 7, 8, 14, 17, 19, 21 7-15, 17-20 103 Harthorn, Levesque 7-15, 17-20 1-6, 21 103 Harthorn, Frankel, Levesque 1-6, 21 16 103 Harthorn, Levesque, Kawabata 16 1, 21 103 Harthorn, Frankel, Douglas 1, 21 Overall Outcome 1-21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(v). AFFIRMED