Javid Majid

Patent Trials and Appeals Board

Feb 3, 2022

2021003380 (P.T.A.B. Feb. 3, 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. 16/158,599 10/12/2018 Javid Majid WLM4-64456- USNP/BAO1740US 9826 44639 7590 02/03/2022 CANTOR COLBURN LLP-BAKER HUGHES OILFIELD OPERATIONS LLC 20 Church Street 22nd Floor Hartford, CT 06103 EXAMINER RAEVIS, ROBERT R ART UNIT PAPER NUMBER 2861 NOTIFICATION DATE DELIVERY MODE 02/03/2022 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): usptopatentmail@cantorcolburn.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAVID MAJID Appeal 2021-003380 Application 16/158,599 Technology Center 2800 Before BEVERLY A. FRANKLIN, JEFFREY R. SNAY, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4-10, and 12-14. See Non-Final Act. 2, 3, 4, 5. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM and enter a new ground of rejection of claims 4 and 12 pursuant to 37 C.F.R. § 41.50(b). 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Baker Hughes Holdings LLC (Baker Hughes, a GE company, LLC with subsequent name change).” Appeal Br. 1. Appeal 2021-003380 Application 16/158,599 2 CLAIMED SUBJECT MATTER Claims 1 and 14, reproduced below, are illustrative of the claimed subject matter: 1. A sensor system for a sub-surface system comprising: a pressure sensor comprising a strain gauge positioned in a first orientation; a gravity sensor arranged proximate to the pressure sensor, the gravity sensor detecting a direction of gravity relative to the first orientation; and a data acquisition system operatively connected to each of the pressure sensor and the gravity sensor of the subsurface system, the data acquisition system determining a gravity compensated pressure value of pressure detected by the pressure sensor corrected for gravity acting on the pressure sensor relative to the first orientation. 14. A method of calibrating a subsurface pressure sensor comprising: positioning the subsurface pressure sensor comprising a strain gauge in a calibration system in a first orientation; positioning a gravity sensor in the calibration system; sensing gravity acting on the subsurface pressure sensor positioned in the first orientation; determining a calibration coefficient of the subsurface pressure sensor; and determining a gravity based correction factor based on gravity acting on the subsurface pressure sensor in the first orientation. Claims Appendix (Appeal Br. 18, 19). Appeal 2021-003380 Application 16/158,599 3 REFERENCES2 The Examiner’s rejections rely on the following prior art references: Name Reference Date Zhang US 2019/0145842 A1 May 16, 2019 Barbely US 2018/0128099 A1 May 10, 2018 Li US 2017/0241257 A1 Aug. 24, 2017 Anderson US 2014/0058686 A1 Feb. 27, 2014 Oto US 2012/0216621 A1 Aug. 30, 2012 Corder US 9,395,386 B2 July 19, 2016 REJECTIONS The Examiner maintains the following rejections3: Claims Rejected 35 U.S.C. § Reference(s)/Basis 4, 12 112 Written Description 4, 12, 14 112 Enablement 1, 2, 4-7 112 Indefiniteness 1, 5-8, 13 103 Li, Corder 2, 9, 10 103 Li, Corder, Zhang 4, 12 103 Li, Corder, Oto 14 103 Li, Corder, Cottles OPINION Written Description Claim 4 depends from claim 1 and additionally recites: “wherein the pressure sensor comprises a quartz based sensor.” Claim 12 depends from independent claim 8 (which recites similar structure as claim 1) and recites 2 The Examiner states that Anderson and Barley are “made of record and not relied upon” but are “considered pertinent to applicant’s disclosure.” Non- Final Act. 6. 3 The Examiner withdraws the rejection of claim 6 over Li, Corder, and Zhang. Examiner’s Answer of April 16, 2021 (“Ans.), 3. Appeal 2021-003380 Application 16/158,599 4 the same. The Examiner rejects claims 4 and 12 for failure to meet the written description rejection under section 112. Non-Final Act. 2. The Examiner explains that the plain language of claim 1 and claim 8 recites “a pressure sensor comprising a strain gauge” and dependent claims 4 and 12 narrow the scope of the pressure sensor by furthering requiring that the “pressure sensor comprise[] a quartz based sensor.” See id. Based on the interpretation that the claim language requires “a single pressure sensor that individually and separately includes ‘a strain gauge’ and ‘a quartz based sensor,’” the Examiner concludes that the Specification does not support a pressure sensor having both a strain gauge and a quartz based sensor. Ans. 3; see also Non-Final Act. 2. Id. Appellant argues that the Examiner reversibly erred because “claims 4 and 12 do not describe the use of two different sensors but rather a pressure sensor in the form of a strain gauge that may operate on either one of two principles, e.g., an electro resistive strain gauge or a quartz based strain gauge.” Appeal Br. 6. Appellant argues, based on paragraph 16 of the Specification, a person of ordinary skill in the art “would understand that the pressure sensor may take the form of either an electro-resistive strain gauge or a quartz-based strain gauge.” Id. The Specification provides that “[p]ressure sensor 62 may take the form of a strain gauge 80” and that, “pressure sensor 62 may take on other forms such as quartz based pressure sensors.” Spec. ¶ 16 (cited in Appeal Br. 6). The same paragraph in the Specification also provides that [s]train gauge may take on various forms including electro-resistive strain gauges.” Id. The originally filed independent claim 1 recites only “a pressure sensor.” The originally filed claim 3 depends from claim 1 and recites “wherein the Appeal 2021-003380 Application 16/158,599 5 pressure sensor comprises a strain gauge” whereas original claim 4 which also depends from claim 1 recites “wherein the pressure sensor comprises a quartz based sensor.” Under the broadest reasonable interpretation, the plain language of claims 4 and 12 does not require the strain gauge and quartz based pressure sensor be separate and distinct structures included in the same pressure sensor. Appellant, however, likewise does not provide any evidence showing that a person of ordinary skill in the art “would understand that the pressure sensor may take the form of either an electro-resistive strain gauge or a quartz-based strain gauge.” Appeal Br. 6 (arguing without citation). Moreover, Appellant argues, again without evidentiary support: “One of ordinary skill in the art, would clearly understand that paragraph [0016] describes that the pressure sensor is a strain gauge that can either be an electro-resistive gauge or a quartz based gauge.” Reply Br. 2. That is, Appellant essentially argues that the electro-resistive strain gauge and the quartz based gauge are alternative embodiments of the pressure sensor. The passage of the Specification relied upon by Appellant, however, is ambiguous as to whether it describes distinct pressure sensors or distinct types of strain gauges which may be provided in a pressure sensor. See Spec. ¶ 16. “[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 899 (2014). In this case, neither the Specification nor does Appellant provide evidence to illuminate whether each of claims 4 and 12 requires both a strain Appeal 2021-003380 Application 16/158,599 6 gauge and a quartz-based pressure sensor. Appellant’s argument that dependent claims 4 and 12 recite alternative embodiments of independent claims 1 and 9 further renders the scope of the dependent claims ambiguous. Based on the foregoing, we enter a new ground of rejection of claims 4 and 12 for indefiniteness under section 112. We procedurally reverse the written description rejection of claims 4 and 12 because review of the written description rejection would require considerable speculation as to the scope of the claims. Such speculation would not be appropriate in light of our new ground of rejection of indefiniteness. See In re Steele, 305 F.2d 859, 862 (CCPA 1962). Enablement Rejection of Claims 4 & 12 The Examiner rejects claims 4 and 12 for failing to comply with the enablement requirement citing reasons similar to those supporting the written description rejection. Non-Final Act. 3. Namely, the Examiner finds that the enablement requirement is not met because the Specification does not teach how the two “fundamentally different (i.e., strain gauge 80 and quartz based) sensors [are] employed to together to provide a (single) pressure value[.]” Id. Based on our indefiniteness rejection of claims 4 and 12, we procedurally reverse the enablement rejection of claims 4 and 12 because review of the enablement rejection of claims 4 and 12 would require considerable speculation as to the scope of the claims. Such speculation would not be appropriate in light of our new ground of rejection of indefiniteness. See Steele, 305 F.2d at 862. Appeal 2021-003380 Application 16/158,599 7 Obviousness (Claims 4 & 12) The dispositive issue on this appeal with regard to claims 4 and 12 is whether prior art reference Oto teaches or suggests a “pressure sensor [that] comprises a quartz based sensor.” See Appeal Br. 14. Review of the rejection under 35 U.S.C. § 103(a) would require considerable speculation as to the scope of the claims. Such speculation would not be appropriate in light of our new ground of rejection of indefiniteness. Steele, 305 F.2d at 862 ("[W]e do not think a rejection under 35 U.S.C. § 103 should be based on such speculations and assumptions."). We, therefore, procedurally reverse the 35 U.S.C. § 103(a) rejection of claims 4 and 12.4 Remaining Rejections We review the appealed rejection for error based upon the issues identified by Appellant and in light of the arguments and evidence produced 4 We additionally note that Appellant’s argument that the Examiner reversibly erred by failing to provide a rationale to combine the references (Appeal Br. 14) is unpersuasive. Appellant does not address the Examiner’s rationale that “Otto teaches (Para 7) employing quartz diaphragm and pressure sensitive elements of a diaphragm type pressure sensor to prevent deterioration, suggestive of usage of such in Li.” Compare id., with Non- Final Act. 5; Compare Reply Br. 4 (arguing only that “[t]he Examiner does not however point to any such reference or to a reference that employs a quartz-based strain gauge, let alone a quartz based strain gauge arranged as in claim 1”), with Ans. 12 (“Oto merely illustrates that diaphragm employing pressure sensors also include that of a quartz crystal. One of ordinary skill reading Para 33 of Li would recognize that there are more (like Otto, for instance) particular types of diaphragm measuring type pressure sensors that sense strain on the diaphragm like the few particularly listed in Para 33 of Li. One of ordinary skill would not limit his vision to such a strict reading of Para 33. Any known type of diaphragm pressure type sensor would effectively serve for Li.”). Appeal 2021-003380 Application 16/158,599 8 thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that reversible error has been identified, and we affirm the Examiner’s rejections discussed below for the reasons expressed in the Non-Final Office Action, the Answer of April 2, 2021, and the Answer of April 16, 2021. We add the following primarily for emphasis. Enablement Rejection of Claim 14 The Examiner rejects claim 14 for failing to comply with the enablement requirement because “the specification does not show how [the recited ‘calibration coefficient’ and ‘correction factor’] are determined, and also does not provide any algorithm regarding how the 2 are incorporated (i.e., combined together mathematically to) result in a calibrated ‘pressure sensor’ (line 1) that will actually produce a signal indicative of pressure.” Non-Final Act. 3. Appellant argues that “determining a correction factor (an adjustment due to internal workings of the sensor) and determining a correction coefficient (an adjustment in the pressure value needed to account for the correction factor) are concepts that are well known in the art and therefore need not be discussed in the application.” Appeal Br. 9. Appellant’s argument is unpersuasive. From the outset, claim 14 recites “determining a calibration coefficient” and “determining a gravity based correction factor” and Appellant’s argument regarding “correction factor” and “correction coefficient” does not address the precise claim terms. Moreover, Appellant’s Appeal 2021-003380 Application 16/158,599 9 argument that “a correction factor” is “an adjustment due to internal workings of the sensor” and that “a correction coefficient” is “an adjustment in the pressure value needed to account for the correction factor” is unsupported by evidence. “Attorneys’ argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Appellant also argues that “[o]ne of ordinary skill in the art would clearly understand how to calibrate a pressure sensor and then rely on that calibration to adjust values sensed by that sensor.” Appeal Br. 9. Appellant’s argument is unpersuasive again because it is does not address the precise claim terms - namely “determining a calibration coefficient” and “determining a gravity based correction factor” - on which the Examiner’s rejection is based. Appellant’s argument is unpersuasive also because it is unsupported by evidence. Johnston, 885 F.2d at 1581. Appellant lastly argues that the Examiner reversibly erred by failing to provide “any argument, evidence, or a discussion of a single one of the Wands factors in support the lack of enablement rejection.” Appeal Br. 9. Appellant, however, does not dispute that “the amount of direction or guidance presented” (Wands factor 2, In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988)) is lacking and that there is an “absence of working examples” (Wands factor 3). Appellant also does not dispute that “the breadth of the claims” (Wands factor 8) is broad. No reversible error has therefore been identified in the Examiner’s findings in support of the enablement rejection of claim 14. See Enzo Biochem Inc. v. Calgene Inc., 188 F.3d 1362, 1371 (Fed. Cir. 1999) (holding that Wands factors are factual inquiries underlying the enablement conclusion); see also Jung, 637 F.3d at 1365 (“[I]t has long Appeal 2021-003380 Application 16/158,599 10 been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). We sustain the enablement rejection of claim 14. Indefiniteness The Examiner rejects claims 1, 2, and 4-7 for indefiniteness because the claim term “the data acquisition system determining a gravity compensated pressure value of pressure detected by the pressure sensor corrected for gravity acting on the pressure sensor relative to the first orientation”5 is ambiguous. Non-Final Act. 3. The Examiner finds that the claim term is unclear whether the claim term means “corrected for the direction of gravity acting on the pressure sensor relative to the first orientation” or more broadly “that the data acquisition system embraces correction for direction or even and other feature(s) of gravity that are different from direction.” Id. Appellant argues that “the examiner appears to have missed the amendment to claim 14 which clearly states that the gravity sensor detects a direction of gravity relative to the first orientation. Thus, the examiner’s suggestion that other features may be in play is moot.” Appeal Br. 10. Appellant’s argument is unpersuasive because it is directed to method claim 14 which is not rejected for indefiniteness. Appellant’s argument does not address systems claims 1, 2, and 4-7 that the Examiner rejects for indefiniteness. 5 A single claim covering both an apparatus and a method of using that apparatus is indefinite because it is unclear what acts constitute infringement of the claim. IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005). Should prosecution continue, the Examiner may consider whether the claims are indefinite for this additional reason. Appeal 2021-003380 Application 16/158,599 11 Appellant’s argument that “the plain meaning of the text would suggest to one of ordinary skill in the art that the data acquisition system adjusts for a direction of gravitational force acting on the pressure sensor in order to improve measurement accuracy” (Appeal Br. 10) is unpersuasive. To the extent that it is directed to claim 1 (rather than claim 14), Appellant’s argument lacks evidentiary support. Johnston, 885 F.2d at 1581. The indefiniteness rejection is sustained. Obviousness (Claim 1)6 Appellant argues that the Examiner reversibly erred because “[i]t is unclear how pressure sensor 200 [of Li] could be considered to be a strain gauge.” Appeal Br. 11. Appellant argues that “[p]ressure sensor 200 does not measure stresses on housing 202.” Id. Appellant argues that because Li teaches “to decouple housing 202 from an underlying support. Nothing would be gained by sensing strain on housing 202.” Id. Appellant argues that “replacing pressure sensor 200 with an actual strain gauge that measures strain on the underlying support would defeat the purpose of Li’s invention and render the device unsuitable for its intended purpose.” Id. From the outset, we note that Appellant does not dispute the Examiner’s finding that Li teaches pressure responsive member 252 as the recited “strain gauge.” Compare Reply Br. 2-5, with Ans. 9-10 (citing and annotating Li Figure 2A). Appellant’s arguments are not persuasive because 6 Appellant does not separately argue for the obviousness rejection of claims 5, 7, and 8 in view of Li and Corder. See Appeal Br. 10-13 (stating that “[i]ndependent claim 8 generally describes” various structures without separately arguing any specific claim element). These claims stand or fall with claim 1 with respect to the obviousness rejection in view of Li and Corder. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-003380 Application 16/158,599 12 the arguments are not commensurate in scope with the claim language and do not structurally distinguish the prior art. “[T]he patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). Claim 1 recites “a pressure sensor comprising a strain gauge.” Appellant’s arguments regarding that the prior art pressure sensor “does not measure stresses on housing 202” (Appeal Br. 11) do not structurally distinguish the prior art structure, nor is it based on the claim language which does not require the recited pressure sensor to carry out any intended use such as measuring stress in a particular location. Appellant next argues that “Corder does not teach or suggest that the electronic tilt compensation system is applicable to other gauges, such as strain gauges, that do not employ a diaphragm.” Appeal Br. 11. Appellant’s argument is unpersuasive. From the outset, Appellant does not explain why the plain language of claim 1 excludes the structure of a diaphragm. In any event, “[i]f a person of ordinary skill can implement a predictable variation [of a known work], § 103 likely bars its patentability.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). In this case, the recited structures are known in the art and the Examiner’s finding that it is within the ordinary skill to use a known structure for a known purpose is supported by the record before us. See id. Appellant’s argument that “given the unique structure of a diaphragm gauge, that is an element that may deflect due to a presence of fluid pressure, one of ordinary skill in the art, at the time of invention, would not have found it obvious to extend the teachings of Corder to non-diaphragm based Appeal 2021-003380 Application 16/158,599 13 gauges that react to strain” (Appeal Br. 11-12) is unpersuasive because it lacks evidentiary support. Johnston, 885 F.2d at 1581. Appellant’s argument that the Examiner reversibly erred for failing to provide a rationale to combine the references is unpersuasive. The Examiner finds that a skilled artisan would have combined the prior art teachings “because Corder teaches that diaphragm type pressure sensors benefit by correction for the angle of orientation.” Non-Final Act. 4. Appellant does not address the Examiner’s rationale in support of the rejection (Appeal Br. 11- 13) and we are in turn unpersuaded that the Examiner reversibly erred here. The obviousness rejection of claim 1 is sustained. Obviousness (Claims 6 & 13) From the outset, Appellant’s briefing with regard to the obviousness rejection of claims 6 and 13 (Appeal Br. 13) does not comply with 37 C.F.R. § 41.37(c)(1)(iv), which requires that “any claim(s) argued separately or as a subgroup shall be argued under a separate subheading that identifies the claim(s) by number.” Claim 6 depends from claim 1 and further recites “wherein each of the pressure sensor and the gravity sensor are mounted to a tubular member extending into a sub-surface formation.” Claim 13 depends from claim 8 and further recites “wherein the pressure sensor is mounted to a tubular member extending into a sub-surface formation.” Appellant argues that the Examiner reversibly erred in rejecting claims 6 and 13 because “[t]he Examiner simply stated that diaphragm type sensors employ round diaphragms which would be suggestive of a round mounting” but “has not stated, with any rationale whatsoever, how it would Appeal 2021-003380 Application 16/158,599 14 be obvious to mount the pressure sensors taught in either Li or Corder to a tubular member.” Appeal Br. 13 (emphases removed). Contrary to Appellant’s argument, the Examiner finds that “downhole elements are generally cylindrically shaped to match the casing of the instrument that is placed down hole.” Non-Final Act. 4. The Examiner also finds that “[a] circular diaphragm 252 in Figure 2A [of Li] would suggest to one of ordinary skill that the surrounding elements 207, 202 are also circular in nature.” Ans. 11. Appellant does not dispute these findings. See Appeal Br. 13; see also Reply Br. 2-6. The Examiner’s rationale is supported by undisputed evidence in the record. KSR Int’l Co., 550 U.S. at 418 (“[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.”). Appellant does not identify reversible error in the Examiner’s fact findings. The obviousness rejection of claims 6 and 13 over Li and Corder is sustained. Obviousness (Claims 2 & 10) The dispositive issue on this appeal with regard to claims 2 and 10 is whether Zhang teaches or suggests a “pressure sensor [that] is surrounded by an isolation fluid.” See Appeal Br. 14. Appellant states: “It is unclear how either Li or Corder would remain functional if the sensors were surrounded by an isolation fluid allegedly taught by Zhang ‘842.” Appeal Br. 14. Appellant does not adequately explain why this statement shows that the Examiner reversibly erred in the fact findings in support of the rejection. Appeal 2021-003380 Application 16/158,599 15 Appellant’s argument that the Examiner reversibly erred by failing to provide a rationale to combine the references (id.) is unpersuasive. Appellant does not address the Examiner’s rationale that “it would have been obvious to employ isolation fluid for a down hole pressure sensor because Zhang teaches that such may be readily protected via surround fluid.” Compare id., with Non-Final Act. 5. The rejection of claims 2 and 10 is accordingly sustained. Obviousness (Claim 9) Claim 9 indirectly depends from claim 1 and further recites: “wherein the data acquisition system includes a non-volatile memory having stored thereon a gravity compensated pressure value for the pressure sensor.” Appellant argues that the Examiner finds Zhang teaches or suggests “storing pressure readings for subsequent retrieval downhole” but does not explain “how storing pressure readings even remotely relates to the limitations in claim 9.” Appeal Br. 15. Appellant, however, does not dispute the Examiner’s finding that “one of ordinary skill in the art would grasp the need for storing values rather than committing them to memory.” Compare Reply Br. 4, with Ans. 12. Appellant also does not address paragraph 25 of Zhang which the Examiner cites in support of the rejection. Compare Appeal Br. 15, with Non-Final Act. 5 (citing Zhang ¶ 25). Our rules require that an Appeal Brief include “arguments” that “shall explain why the examiner erred.” 37 C.F.R. § 41.37(c)(1)(iv). “[M]ere statements of disagreement . . . do not amount to a developed argument.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). In this case, Appellant does not address the Examiner’s fact findings and the argument is no more than a statement that “[a]t no point has the Appeal 2021-003380 Application 16/158,599 16 Examiner explained how storing pressure readings as opposed to committing them to memory even remotely relates to the limitations in claim 9.” Reply Br. 4. As noted supra, “the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure.” Catalina Mktg. Int’l, Inc., 289 F.3d at 809. Appellant does not structurally distinguish the apparatus recited in claim 9, nor does Appellant dispute the Examiner’s finding that it is within the ordinary skill to store certain data on a non-volatile memory. No reversible error has been identified here. Appellant also argues that “the Examiner has failed to identify a reason with any underpinning let alone rational underpinning that would have prompted a person of ordinary skill in the relevant field to combine” the references. Appeal Br. 15. “If a person of ordinary skill can implement a predictable variation [of a known work], § 103 likely bars its patentability.” KSR Int’l Co., 550 U.S. at 417. Given that Appellant does not dispute all the structures recited in claim 9 are known in the prior art and the combination yields no more than predictable result (id.), the obviousness rejection of claim 9 is supported by evidence in the record and sustained. Obviousness (Claim 14) Appellant argue that the Examiner “does not provide any rationale supporting that a diaphragm-based gauge is functionally equivalent to a strain gauge.” Appeal Br. 15. Appellant’s argument is unpersuasive for reasons provided in detail supra. Namely, claim 14 does not require the strain gauge be used to perform any particular function and Appellant’s argument does not identify reversible error in the Examiner’s fact findings and does not structurally distinguish the prior art. Appeal 2021-003380 Application 16/158,599 17 Appellant next argues that “[a]t no point does Cottles teach to calibrate a pressure sensor, in the form of a strain gauge, to account for gravitational effects.” Appeal Br. 16. Appellant’s argument is unpersuasive as it attacks the references individually, rather than considering what the combined references - in this case the combined prior art teaching including Li, Corder, and Cottles - would have suggested to the person of ordinary skill in the art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.”). More specifically, the Examiner finds that Corder teaches the recited step of “determining a gravity based correction factor.” Ans. 13. Appellant does not dispute this finding. Compare Reply Br. 4, with Ans. 13. Appellant lastly argues that “at no point has the Examiner identified a reason that would have prompted a person of ordinary skill in the relevant field to combine the elements in Li and Corder with Cottles in the way the claimed new invention does.” Appeal Br. 16. Appellant, however, does not address the Examiner’s rationale that “it would have been obvious to obtain a calibration coefficient[] for the sensor because Cottles et al teach (ABSTRACT) calculating a coefficient to provide a calibrated pressure sensor that employs a diaphragm.” Compare id., with Non-Final Act. 6; Compare Reply Br. 4, with Ans. 13. The rejection of claim 14 is accordingly sustained. CONCLUSION The Examiner’s written description rejection is procedurally reversed. Appeal 2021-003380 Application 16/158,599 18 The Examiner’s enablement rejection of claim 14 is affirmed. The Examiner’s indefiniteness rejection is affirmed. The Examiner’s obviousness rejections of claims 1, 2, 5-10, 13, and 14 are affirmed. The Examiner’s obviousness rejections of claims 4 and 12 is procedurally reversed. The Examiner’s enablement rejection of claims 4 and 12 is procedurally reversed. Claims 4 and 12 are rejected for indefiniteness under section 112 in a new ground of rejection. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 4, 12 112 Written Description 4, 12 4, 12 112 Enablement 4, 12 14 112 Enablement 14 4, 12 112 Indefiniteness 4, 12 1, 2, 4-7 112 Indefiniteness 1, 2, 4-7 1, 5-8, 13 103 Li, Corder 1, 5-8, 13 2, 9, 10 103 Li, Corder, Zhang 2, 9, 10 4, 12 103 Li, Corder, Oto 4, 12 14 103 Li, Corder, Cottles 14 Overall Outcome 1, 2, 4-10, 12-14 4, 12 Appeal 2021-003380 Application 16/158,599 19 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. Appeal 2021-003380 Application 16/158,599 20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED; 37 C.F.R. § 41.50(B)