James Vaughan. Harshman

Patent Trials and Appeals Board

Dec 30, 2019

14932721 - (D) (P.T.A.B. Dec. 30, 2019)

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.
14/932,721 11/04/2015 James Vaughan Harshman 2014P09734US01 5709
56885 7590 12/30/2019
Evoqua Water Technologies LLC
U0105
Intellectual Property Department
10 Technology Drive
Lowell, MA 01851
EXAMINER
KRCHA, MATTHEW D
ART UNIT PAPER NUMBER
1798
NOTIFICATION DATE DELIVERY MODE
12/30/2019 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):
CKent@LALaw.com
docketing@LALaw.com
intellectualproperty@evoqua.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE
THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte JAMES VAUGHAN HARSHMAN1
________________

Appeal 2019-001685
Application 14/932,721
Technology Center 1700
________________

Before ROMULO H. DELMENDO, MARK NAGUMO, and
GEORGE C. BEST, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Evoqua Water Technologies LLC (“Harshman”) timely appeals
under 35 U.S.C. § 134(a) from the Final Rejection2 of all pending claims 14,
18, 22, 30–37, and 42–49. We have jurisdiction. 35 U.S.C. § 6 (2012).
We reverse for reasons well-stated by Harshman.

1 The applicant under 37 C.F.R. § 1.46 (Application Data Sheet,
filed 04 November 2015), and hence the appellant under 35 U.S.C. § 134,
is the real party in interest, identified as Evoqua Water Technologies LLC.
(Appeal Brief, filed 21 September 2018 (“Br.”), 3.)
2 Office Action mailed 25 April 2018 (“Final Rejection”; cited as “FR”).
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OPINION
A. Introduction3, 4
The subject matter on appeal relates to the treatment of air streams to
remove offensive odiferous compounds, in particular hydrogen sulfide, H2S,
by treatment with a biotrickling filter. (Spec. 2, ll. 2–10, 18–19.) The
biotrickling filter comprises a media bed that supports and maintains a
population of H2S-oxidizing bacteria. Treatment water is sprayed on the top
of the media, and the water trickles through the media down to a sump as an
effluent. At least some of the effluent is recirculated. H2S-laden air is
circulated through the moist filter bed, and the bacteria oxidize the H2S to
sulfuric acid, H2SO4, which lowers the pH of the biofilter bed. Recirculation
of the effluent, dilution with make-up water, and treatment with alkaline
water sprayed over the bed is said to “facilitate[] stabilization and
maintenance of the pH of the biofilter bed at a level conducive for the
bacteria to thrive.” (Id. at 10, ll. 5–7.) The amount of treatment necessary

3 Application 14/932,721, Addition of alkaline materials to biotrickling
filter or bio-filter make-up water, filed 04 November 2015
as a continuation-in-part of 14/920,407, filed 22 October 2015, now U.S.
Patent No. 10,159,932, which claims benefit of 62/084,007, filed
25 November 2014, and is a continuation-in-part of 14/270,461,
filed 06 May 2014, now abandoned;
and as a continuation-in-part of 14/523,303, filed 24 October 2014, now
U.S. Patent No. 9,586,176, which claims benefit of 61/895,645,
filed 25 October 2013;
and as a continuation-in-part of 14/270,461, filed 06 May 2014, now
abandoned and claiming the benefit of 62/078,632,
filed 12 November 2014.
4 We refer to the “′721 Specification,” which we cite as “Spec.”
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varies with, e.g., the load on the sewage system, and dynamic control is said
to be desirable to optimize control of pH and use of water. (Id. at para.
bridging 14–15.)
Harshman seeks patent protection for a treatment method in which the
pH is maintained by a “fuzzy logic” controller that takes, as input, the “error
value,” that is, the difference between a target pH and the measured pH, and
the time-rate-of-change of the error value, also known as the “error-dot
value.” Rather than using “crisp” inputs, i.e., “actual measured inputs
having defined values” (Spec. at 30, ll. 4–5), a membership function is used
to define the degree to which a measurement belongs to a given fuzzy set.
For example, for the error input, three fuzzy sets may be defined, namely,
pH_low, pH_high, or pH_Good. (Spec. 31, ll. 1–4.) For the error-dot input,
two fuzzy sets may be defined, namely, pH_getting_lower (positive error-
dot) or pH_getting_higher (negative error-dot). (Id. at 32, Table 2). The
system designer determines the number of possible actions, i.e., the number
of fuzzy output value sets, and defines Rules to correspond to each fuzzy
output set. (e.g., Spec. 33, Table 3, reproduced below.)

{Table 3 shows rules for actions based on input values}
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A fuzzy logic system is said to be “inherently robust since it does not
require precise, noise-free inputs” (id. at 28, ll. 19–20), and to be readily
modified because “the fuzzy logic controller processes user-defined rules
governing the target control system” (id. at ll. 22–23).
Sole independent claim 14 is representative and reads:
A method of removing hydrogen sulfide from contaminated
air, the method comprising:
flowing the contaminated air through a biotrickling filter
including
a media bed and
a population of hydrogen sulfide oxidizing bacteria
disposed on media in the media bed,
the population of bacteria oxidizing hydrogen
sulfide in the contaminated air into sulfuric acid;
introducing water from a source of water into the
biotrickling filter;
measuring a pH of water having passed through the
media bed;
maintaining the pH of the water having passed through
the media bed within a predetermined range below
about 4 by:
adding an alkaline material to the biotrickling filter;
and
controlling an amount of one of
the alkaline material added to the biotrickling filter
per unit time and
an amount of the water added to the biotrickling
filter per unit time
utilizing a fuzzy logic algorithm performed on a
fuzzy logic-based controller,
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the fuzzy logic algorithm using
a difference between the pH of the water having
passed through the media bed and a
predetermined pH setpoint (an error value) and
a change in pH of the water having passed
through the media bed per unit time (an error-
dot value)
as sole input parameters,
the fuzzy logic algorithm having
a total of five rules and
a total of five fuzzy output sets
to determine an output used to control
the amount of the one of the alkaline material
added to the biotrickling filter per unit time and
the amount of the water added to the
biotrickling filter per unit time; and
providing sufficient water from the source of
water to the media bed to rinse salts
produced by reaction between the alkaline
material and the sulfuric acid from the media
bed to prevent clogging of the media bed.
(Claims App., Br. 11; some formatting, and emphasis added.)
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The Examiner enters the following new grounds of rejection:5, 6, 7
A. Claims 14, 18, 22, 30–34, 43, 44, and 46–49 stand rejected
under 35 U.S.C. § 103(a) in view of the combined teachings
of Parker,8 Turschmid,9 Reznik,10 and Khan.11
A1. Claim 35 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Parker, Turschmid, Reznik, Khan,
and Amir.12
A2. Claim 36 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Parker, Turschmid, Reznik, Khan,
and Osterwald.13

5 Examiner’s Answer mailed 09 November 2018 (“Ans.”).
6 Because this application was filed after 16 March 2013, the effective date
of the America Invents Act, we refer to the AIA version of the statute.
7 The Examiner adds the reference Reznik and denominates the rejection as
a new ground of rejection. The text of the Answer mailed 09 November
appears to be identical to the text of the Answer mailed 02 November, but
for the initials of a third conferee.
8 Richard D. Parker et al., Biological scrubber odor control system and
method, U.S. Patent Application Publication 2007/0180802 A1 (2007).
9 Krzysztof H. Turschmid et al., Method for scrubbing gaseous emissions
using bacteria, U.S. Patent No. 6,013,512 (2000).
10 Leonid Reznik et al., PID plus fuzzy controller structures as a design base
for industrial applications, 13 Engineering Applications of Artificial
Intelligence, 419-430 (2000).
11 Asim Ali Khan et al., Fuzzy PID controller: design, tuning and
comparison with conventional PID controller, 2006 IEEE International
Conference on Engineering of Intelligent Systems, Islamabad, 1–6 (2006).
12 David Amir et al., Wastewater treatment, U.S. Patent Application
Publication 2008/0308493 A1 (2008).
13 Mark Osterwald et al., Method and conditioning system for regenerating
replacement filters, U.S. Patent No. 5,833,766 (1998).
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A3. Claim 37 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Parker, Turschmid, Reznik, Khan,
and Scheufler.14
A4. Claim 42 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Parker, Turschmid, Reznik, Khan,
and Carnahan.15
A5. Claim 45 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Parker, Turschmid, Reznik, Khan,
and Livingstone.16
The new grounds of rejection differ from the grounds set forth in the
Final Rejection by the further reliance on Reznik; but the Examiner does not
withdraw the original grounds. (Ans. 3, § 1, and not providing the
subheading “WITHDRAWN REJECTIONS”.)
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Briefly, the Examiner finds that Kahn and Reznik provide teachings
that, the Examiner holds, would have rendered the substitution of fuzzy
logic-based controllers for conventional controllers obvious, while the

14 Fred G. Scheufler and William H. Bayard, Method of drying substrates
and use thereof, U.S. Patent Application Publication 2001/0005525 A1
(2001).
15 Robert P. Carnahan, System and method for treating wastewater
containing industrial esters, U.S. Patent No. 5,133,875 (1992).
16 David E. Livingstone et al., Regenerable air cleaning device, U.S. Patent
No. 6,454,834 B1 (2002).
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remaining references provide teachings that would have rendered obvious
the various physical limitations of the claims. (FR 3–4.)
Harshman urges (Br. 6, ll. 1–4) that the Examiner erred harmfully in
finding (FR 4, 2d para.) that Kahn teaches a fuzzy controller having a total
of five fuzzy output sets. Rather, Harshman argues, Kahn teaches nine rules.
(Br. 6, l. 4, citing Khan 3, col. 1, part c.)
The weight of the evidence (Kahn 3, § c, “Rule Base,” listing
Rules 1–9) supports Harshman on this point.
Moreover, Harshman argues, the Examiner has not shown how or why
four of the nine rules could be eliminated and provide the control described
by Kahn. (Br. 6, 1st & 2d full paras.) The addition of Reznik, according to
Harshman (Reply17 3), does not cure the deficiencies of Kahn. Moreover, in
Harshman’s view, the Examiner has not come forward with any credible
evidence or analysis based on Reznik, Kahn, and the other references, that
the removal of four of the nine rules “could be rules that the combination of
[the other prior art references] would not require for the asserted
combination.” (Id. at last para.) That conclusion, according to Harshman,
“is pure speculation, unsupported by anything in any of the cited
references.” (Id.)
Again, the weight of the evidence supports Harshman. Both Kahn
and Reznik are relatively “high level” discussions of fuzzy proportional
integral derivative (“fuzzy PID”) controllers for industrial applications. As
such, it should not be surprising that a modification of a specific set of

17 Reply Brief, filed 17 December 2018 (“Reply”).
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control rules might be characterized as conforming with general goals such
as “provid[ing] a better transitory and steady state performance as compared
with a conventional PID controller” (FR 4, 2nd & 3rd paras., last sentences),
or minimizing computational requirements (id. at 4th para., last sentence.)
But, without a demonstration that the ordinary worker would have been
motivated by prior art teachings to make such modifications, such an
argument is, in Harshman’s words, “pure speculation.” (Reply 3, 4th full
para.) Mere argument cannot take the place of evidence where, as here,
findings of fact are required. In the present case, the Examiner has not come
forward with such evidence, nor with a plausible, detailed argument, why
the nine rules described by Kahn are, given the physical criteria of the
processes and apparatuses described by Parker and the other references,
equivalent to, or would have been obvious to modify to a five-rule fuzzy
logic system within the scope of the appealed claims. Nor has the Examiner
explained what five rules would have been the obvious result of the
proposed modifications of the nine rules described by Kahn.
The Examiner raises a further argument that, due to the “open”
transitional phrase, “comprising,” the claims, which require “a total of five
rules,” are open to additional rules. (Adv.18 2, last para.; Ans. 11.)
As Harshman points out (Br. 5), our reviewing court has repudiated
repeatedly this argument. Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1343
(Fed. Cir. 2007) (“‘[c]omprising’ is not a weasel word with which to
abrogate claim limitations [quoting Spectrum Int’l, Inc. v. Sterilite Corp.,
164 F.3d 1372, 1380 (Fed. Cir. 1988)] . . . Those six enumerated steps must,

18 Advisory Action communicated 24 May 2018 (“Adv.”)
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however, all be practiced as recited in the claim for a process to infringe.”).
Both Dippin’ Dots and Spectrum are precedential opinions of the Federal
Circuit, and although they rule on patented claims rather than claims in an
application, the Examiner has not come forward with a credible explanation
why the holdings are not precedential with respect to claims on appeal
during examination.
We are persuaded by Harshman’s arguments that the Examiner’s
factual findings and legal conclusions are harmfully erroneous as to
independent claim 14. The Examiner makes no findings regarding the
remaining references that cure the deficiencies of the principal rejections.
We therefore reverse the remaining rejections.
CONCLUSION
The Examiner’s rejections are reversed.
In summary:
Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
14, 18, 22,
30–34, 43,
44, 46–49
103 Parker, Turschmid, Reznik, and Khan
14, 18, 22,
30–34, 43,
44, 46–49
35 103 Parker, Turschmid, Reznik,

Khan, and Amir 35
36 103 Parker, Turschmid, Reznik,

Khan and Osterwald 36
37 103 Parker, Turschmid, Reznik,

Khan, and Scheufler 37
42 103 Parker, Turschmid, Reznik,

Khan, and Carnahan 42
45 103 Parker, Turschmid, Reznik,

Khan, and Livingstone 45
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Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
Overall
Outcome
14, 18, 22,
30–37, 42–
49
REVERSED