Michael R. Bradenv.Mark Chaffin

Patent Trial and Appeal Board

Jul 28, 2015

10370343 (P.T.A.B. Jul. 28, 2015)

Trials@uspto.gov Paper: 10
571-272-7822 Entered: July 28, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
MICHAEL R. BRADEN,
Petitioner,
v.
MARK N. CHAFFIN,
Patent Owner.
_________________
Case IPR2015-00539
Patent 6,932,912 B2
_________________

Before MICHAEL P. TIERNEY, GRACE KARAFFA OBERMANN,
and KRISTINA M. KALAN, Administrative Patent Judges.

OBERMANN, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
Petitioner requests an inter partes review of claims 7, 14, 20–22,
and 24 of U.S. Patent No. 6,932,912 B2 (Ex. 1001, “the ’912 patent”).
Paper 1 (“Pet.”). Patent Owner filed a Preliminary Response. Paper 9
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(“Prelim. Resp.”). Applying the standard set forth in 35 U.S.C. § 314(a),
which requires demonstration of a reasonable likelihood that Petitioner
would prevail with respect to at least one challenged claim, we decline to
institute an inter partes review.
I. BACKGROUND
A. Related Proceedings
Petitioner identifies a district court action involving the ’912 patent, in
which Petitioner is named as the defendant. Pet. 1 (identifying Chaffin v.
Braden, No. 6-14-CV-00027 (S.D. Tex.)).
B. The ’912 Patent (Ex. 1001)
The ’912 patent is directed to a wastewater treatment system for
residential septic systems. Ex. 1001, Title. The system exploits the venturi
effect to draw chlorine from a supply canister into a stream of sewage
effluent. Id. at 2:10–15; 4:7–21. The parties agree that the venturi effect is a
reduction in pressure that occurs when fluid flows through a constricted
section of a tube. Pet. 3–4; Prelim. Resp. 21.
The claims of the ’912 patent require a chlorine supply canister that is
connected, by a supply tube and a venturi chamber, to a recirculation pipe,
which discharges into a storage-mixing tank that receives sewage effluent
from a source. Id. at claims 7, 20, 22 (independent challenged claims);
Fig. 1. A pump in the storage-mixing tank drives sewage effluent through
the recirculation pipe and the venturi chamber. Id. As sewage effluent
flows through the venturi chamber, a significant drop in pressure draws
chlorine from the supply canister through the supply tube and into the flow
of sewage effluent moving through the recirculation pipe. Id. at 2:6–15.
“The layman term for this phenomenon is . . . ‘suction.’” Id. at 2:16–17.
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Figure 1 of the ’912 patent is reproduced below.

Figure 1 is a schematic illustration of the liquid chlorination treatment
system disclosed in the ’912 patent. Id. at 2:62–65.
Each challenged claim includes terms that require a continuous flow
of chlorine from supply canister (44) through venturi chamber (38) as
effluent flows through recirculation pipe (32). That requirement factors into
our analysis of the asserted grounds of unpatentability, and is highlighted
below in illustrative claim 7.

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C. Illustrative Claim
Claim 7 is illustrative of the subject matter at issue in this proceeding:
7. A wastewater treatment system for septic systems,
comprising:

a storage-mixing tank having an inlet for receiving
sewage effluent from a source;

a pump located within said storage-mixing tank and
having an inlet opening and a pump discharge in said
storage-mixing tank;

a recirculation pipe within said storage-mixing tank
receiving sewage effluent from said pump discharge
and having a terminal end located within said storage
mixing tank and defining a recirculation discharge
opening;

a chlorine supply canister having an internal volume
adapted to contain a supply of chlorine; and

a venturi chamber in communication with said
recirculation pipe;

a chlorine supply tube having a first end and a second
end, said tube first end in communication with said
venturi chamber and said tube second end in constant
fluid communication with substantially the entire
contained chlorine supply in said internal volume of said
chlorine supply canister,

wherein as recirculating pumped sewage effluent flows
through said venturi chamber, chlorine from said
internal volume of said supply canister is continuously
drawn into said venturi chamber and into said
recirculation pipe.

Ex. 1001, 8:29–56 (emphasis added).
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D. Prior Art Relied Upon
Petitioner asserts grounds based on the following prior art references:
Michael R. Braden, U.S. Patent No. 6,627,071 B1, issued
Sept. 30, 2003 (Ex. 1002) (hereinafter “Braden”);1

Karl E. Longley, et al., U.S. Patent No. 4,333,833, issued June
8, 1982 (Ex. 1003) (hereinafter “Longley”);

Stephen R. Agueda, et al., U.S. Patent No. 5,266,216, issued
Nov. 30, 1993 (Ex. 1004) (hereinafter “Agueda”);

Richard A. Sweet, U.S. Patent No. 6,306,304 B1, issued
Oct. 23, 2001 (Ex. 1005) (hereinafter “Sweet”).

E. The Asserted Grounds of Unpatentability
Petitioner challenges claims 7, 14, 20–22, and 24 of the ’912 patent on
the grounds set forth in the chart below. See Pet. 17, 28, 37, 49.
References Basis Claim(s)
Challenged
Braden § 102 7, 14, 20–22,
and 24
Braden and Longley § 103 7, 14, 20–22,
and 24
Agueda and Longley § 103 7, 14, 20–22,
and 24
Sweet and Longley § 103 7, 14, 20–22,
and 24
In addition to the prior art references, Petitioner relies on the
Declaration of James W. Weishuhn, P.E. Ex. 1006.

1 Patent Owner consistently maintains that Braden is not prior art to the ’912
patent. See Prelim. Resp. 1–2 (contesting prior art status of Braden);
Ex. 2003 pp. 9, 32, 56 (“Applicant makes no admission that Braden is prior
art to the claimed invention.”) (from prosecution history).
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II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable interpretation in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b); Office Patent Trial
Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012); see In re
Cuozzo Speed Techs., LLC, No. 2014-1301, 2015 WL 4097949, at *5–8
(Fed. Cir. July 8, 2015). Claim terms are given their ordinary and customary
meaning, as understood by one of ordinary skill in the art in the context of
the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007).
Our analysis of the asserted grounds of unpatentability turns on
whether the applied prior art satisfies certain terms that require chlorine to
be drawn continuously from the chlorine supply canister, when the pump is
operating to move sewage effluent through the recirculation pipe. Those
terms, in the independent challenged claims, are as follows.
Claim 7 requires that chlorine from an “internal volume of [a] supply
canister is continuously drawn into” the venturi chamber and recirculation
pipe “as recirculating pumped sewage effluent flows through said venturi
chamber.” Ex. 1001, 8:52–56 (claim 7) (emphasis added). Claim 22
similarly requires that “pumped sewage effluent flowing through [the]
venturi chamber creates a suction continuously drawing chlorine from said
chlorine supply canister and continuously discharging chlorine into the
pumped sewage effluent flowing downstream through said venturi
chamber.” Id. at 12:29–34 (claim 22) (emphasis added).
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Claim 20 contains somewhat different terms, which require that “the
volume of chlorine drawn from the chlorine supply canister during a period
of continuous sewage effluent recirculation varies with the duration period
of continuous sewage effluent recirculation.” Id. at 11:33–41 (claim 20)
(emphasis added). The presence of the term “continuous” or “continuously”
in the challenged claims informs our decision on institution, as explained
below.
B. The Applied Prior Art
We next turn to the prior art references asserted in the Petition and, in
particular, to what they would have conveyed to an ordinary artisan about
the state of the art at the time of the invention. We consider the applied prior
art as representative of the level of ordinary skill in the art.
i. Braden
Braden relates to a chlorinator for wastewater treatment systems that
delivers “a determined quantity of disinfectant fluid,” such as chlorine, to
wastewater to be treated. Ex. 1002, Abstract; see Fig. 3A (reproduced
below, depicting internal elements of chlorinator (11) and “determined
quantity,” or uniform volume, of chlorine (23)).
Figure 2, reproduced below, illustrates Braden’s system, including
chlorinator (11), chlorine supply line (21), storage-mixing tank (16), pump
(17), sewage effluent (15), recirculation pipe (13), and flow return line (12).
A venturi chamber is depicted as element (20).
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Figure 2 is a partial cut-away side view of the wastewater treatment
system pump tank of Braden’s invention. Id. at 2:52–53.
Figure 3A, reproduced below, shows chlorinator (11), including
buoyant container (30) containing a uniform volume of chlorine (23).

Figure 3A is a partial cut-away side view of the exemplary chlorinator
of Braden. Id. at 54–55.
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Referring to Figure 3A, buoyant container (30) intakes a uniform
volume of chlorine (23), through check valve (40), from a quantity of
chlorine (14) stored in tank (11). Id. at Abstract; 4:13–26. Pump (17)
(illustrated in Figure 2) is activated by a timer or by the level of wastewater,
and operates until the end of the timed cycle, or until wastewater falls below
a specified level. Id. at 2:62–63; 3:18–22; Figs. 2, 5.
When pump (17) (illustrated in Figure 2) is operating, check valve
(40) (illustrated in Fig. 3A) is closed. Id. at 5:6–13. Check valve (40) thus
prevents the flow of additional chlorine into container (30) when pump (17)
is operating to drive effluent through the venturi chamber (20). Id. at
Abstract; 4:23–26. Operation of the pump causes effluent to circulate
through venturi chamber (20) and, thereby, draw the uniform volume of
chlorine (23) into flow return line (12) and mix with sewage effluent (15)
within storage tank (16). Id. at Abstract; 3:37–47; Figs. 2, 3A, 5. After
cessation of pump (17) operation, check valve (40) opens to reestablish a
uniform volume of chlorine (23) in buoyant container (30). Id. at 3:53–57;
see Fig. 3A. Braden exhausts the entire volume of chlorine into the
wastewater “in under a minute.” Id. at 3:48–53. Thus, under normal
operating conditions, regardless of the duration of the pump cycle, a uniform
volume of chlorine is supplied to the sewage effluent to be treated. Id.
at 3:18–22, 45–56.
Critically important to our analysis, when pump (17) is operating,
“check valve 40 prevents additional disinfectant fluid from entering
container 30.” Id. at 5:6–10. Thus, “[o]nce volume 23 is disbursed,
chlorinator 11 ceases to supply additional disinfectant fluid 14 and instead
supplies air, which is drawn from container 30.” Id. at 3:53–57. Uniform
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volume (23) “is the maximum volume of disinfectant fluid 14, which can be
communicated to container 30 based on the buoyancy of float 33 and
container 30 when check valve 40 is open.” Id. at 4:23–26.
ii. Longley
Longley discloses an in-line contactor adapted to bring about intimate
contact between a disinfectant and a wastewater stream. Ex. 1003, Abstract.
Figure 1, reproduced below, illustrates Longley’s in-line contactor.

Figure 1 is a schematic drawing illustrating a wastewater treatment
system, including Longley’s in-line contactor. Id. at 4:33–38.
A wastewater stream is pumped through successive stages of
Longley’s in-line contactor, which includes input section (14) having a
converging nozzle that projects the stream at high velocity into throat section
(16). Id. at Abstract; 5:20–33; 6:16–20. Throat (16) feeds the stream at high
velocity through mixing section (17), which educes a disinfectant, such as
chlorine stored in chlorinator (12), into mixing section (17). Id. at Abstract;
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5:34–39; see 6:20–22 (“[d]isinfectant from the chlorine supply coupled to
the throat is educed into the mixing pipe”). A turbulent stream in mixing
section (17) works to intermingle the chlorine with the wastewater, which is
discharged through output section (19). Id. at Abstract; 5:39–54; 6:20–26.
iii. Agueda and Sweet
Neither Agueda nor Sweet relates to the treatment of wastewater with
chlorine. See Ex. 1004 (Agueda); Ex. 1005 (Sweet). Agueda relates to the
use of ozone to purify water. Ex. 1004, Title; Abstract. In Agueda’s system,
an ozone-containing air stream is drawn into water by force of a vacuum
generated as water passes through a venturi section within a mixer. Id.
at 3:44–53. Sweet, by contrast, discloses an aerobic treatment apparatus and
method in which septic tank effluent is intermittently pumped through an
air-modified venturi flow system to increase the oxygen content of the
effluent. Ex. 1005, Abstract; 3:12–25.
C. Analysis of the Grounds of Unpatentability
Braden and Longley previously were presented to the Office during
prosecution of the ’912 patent. Ex. 1001 (references cited). Patent Owner
asks that we deny the Petition under 35 U.S.C. § 325(d) because “the same
or substantially the same prior art or arguments previously were presented to
the Office” during prosecution. Prelim. Resp. 2–3, 24; see Ex. 2003, pp. 66,
68 (from prosecution history). Petitioner admits that, “[d]uring
prosecution,” Patent Owner’s “most-significant hurdle to patentability was
Braden.” Pet. 19. Braden and Longley previously were considered by the
Office, which ultimately allowed claims 7, 14, 20–22, and 24 to issue. We
decline to exercise our discretion to deny review under § 325(d), however,
and instead turn to the asserted grounds of unpatentability.
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i. Alleged Anticipation by Braden
We agree with Petitioner that, “[w]hen activated,” Braden’s pump
causes flow through flow return line (12) and venturi chamber (20), which
draws chlorine from container (30) and into effluent tank (16). Pet. 19; see
Ex. 1002, Figs. 2, 3A (depicting those features in Braden). We also agree
with Petitioner that, “[a]fter the pump (17) deactivates, the check valve (40)
opens to allow the container (30) to refill with” chlorine “from the
surrounding tank (25).” Pet. 19; see Ex. 1002, Figs. 2, 3A. And, on a point
critical to our analysis, we agree with Petitioner that, “[b]ecause of the check
valve (40), the volume of [chlorine] dispensed during any pump-on interval
is limited to no more than the amount the container (30) holds at the time the
pump (17) is activated.” Pet. 19; see Ex. 1002, Figs. 2, 3A.
On this record, Petitioner does not show sufficiently that, in Braden’s
system, chlorine from an “internal volume of [a] supply canister is
continuously drawn into” a venturi chamber and recirculation pipe “as
recirculating pumped sewage effluent flows through said venturi chamber.”
Ex. 1001, 8:29–56 (claim 7). Nor does Petitioner show sufficiently that, in
Braden’s system, “pumped sewage effluent flowing through [the] venturi
chamber creates a suction continuously drawing chlorine from said chlorine
supply canister and continuously discharging chlorine into the pumped
sewage effluent flowing downstream through said venturi chamber.” Id.
at 12:29–34 (claim 22) (emphasis added). Neither claim 7 nor claim 22,
therefore, is met by Braden’s system, which exhausts its discrete dosage of
chlorine (23) and then supplies air while the pump is still operating to
circulate effluent through the venturi chamber. Id. at 3:53–57.
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Petitioner argues that, “while Braden may exhaust its chlorine supply
more quickly than the” system of the ’912 patent, “that’s simply because of
the size of the respective supply containers, which isn’t a limitation of the
challenged claims.” Pet. 20–21 (capitalization omitted). That argument is
unpersuasive, because claims 7 and 22 unambiguously require a chlorine
supply canister adapted to allow for continuous delivery of chlorine into a
recirculation pipe as effluent flows through the venturi chamber. Ex. 1001
(claims 7, 22). Braden discloses a system that delivers a uniform volume of
chlorine (23), followed by air, as effluent flows through the venturi chamber.
Ex. 1002, 3:53–57. On this record, Petitioner does not show sufficiently that
Braden meets the limitations of claim 7 or claim 22, which require a
continuous flow of chlorine as effluent flows through the venturi chamber.
The only other independent claim challenged is claim 20, which is
directed to a method whereby “the volume of chlorine drawn from the
chlorine supply canister during a period of continuous sewage effluent
recirculation varies with the duration period of continuous sewage effluent
recirculation.” Id. at 11:33–41 (claim 20) (emphasis added). Petitioner
submits that “Braden teaches that chlorine is drawn from the inner canister
(30)” and that “the volume of chlorine dispensed varies during that period—
i.e., from the start of pumping until the inner canister is exhausted.” Pet. 20.
We disagree that this feature of Braden anticipates the requirement that the
volume of chlorine drawn must vary with the duration of continuous
recirculation. Braden’s system dispenses a uniform volume of chlorine (23)
during recirculation. On this record, Petitioner does not show sufficiently
that, in Braden’s system, “the volume of chlorine drawn from the chlorine
supply canister during a period of continuous sewage effluent recirculation
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varies with the duration period of continuous sewage effluent recirculation.”
Ex. 1001, 11:33–41 (claim 20) (emphasis added).
Each of the other challenged claims depends from claim 7, 20, or 22.
Ex. 1001 (claims 14, 21, 24). Accordingly, on this record, we determine that
Petitioner is not reasonably likely to prevail in showing that any challenged
claim is anticipated by Braden.
ii. Alleged Obviousness over Braden and Longley
Petitioner asserts that it would have been obvious, at the time of the
invention, to replace Braden’s chlorinator (11) with Longley’s chlorinator
(12). Pet. 29–30 (bridging paragraph); id. at 31–32 (claim chart). Longley
discloses chlorinator (12) in a multi-stage in-line contactor system. Pet. 29–
30; see Ex. 1003, Fig. 5 (illustrating Longley’s in-line contactor).
Even if we accept that an ordinary artisan would have made the
proposed substitution, Petitioner does not establish adequately that
Longley’s chlorinator is capable of providing a continuous flow of chlorine
in the modified apparatus of Braden. See Pet. 29 n.50 (citing Ex. 1006 ¶ 80)
(Mr. Weishuhn’s view that Longley “teaches a chlorinator with a supply
tube connected to an injector”). Longley discloses very little about the
chlorinator.2 See generally Ex. 1003. Petitioner directs us to this disclosure

2 Mr. Weishuhn admits that “Longley does not show internal components of
the ‘chlorinator,’” but states that “[chlorinators] were well-known in 2002.”
Ex. 1006 ¶ 80 n.40. For support, Mr. Weishuhn directs us, without further
comment, to Figure 26.2 of Exhibit 1009, Operations of Municipal
Wastewater Treatment Plants (Water Environment Federation 5th ed. 1996).
Mr. Weishuhn does not explain, and Petitioner does not address, how that
figure establishes that Longley’s chlorinator, in the modified apparatus of
Braden, would have been capable of providing a continuous flow of chlorine
as required by the challenged claims.
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in Longley: “Chlorinator 12 is coupled to throat 16 through a lateral port
18.” Pet. 31 (claim chart, quoting Ex. 1003, 5:34–35) (emphasis omitted).
Petitioner also highlights this disclosure in Longley: “Disinfectant from the
chlorine supply coupled to the throat is educed into the mixing pipe and
intermingled with the turbulent stream.” Id. at 32 (claim chart, citing Ex.
1003, 6:16–22) (emphasis omitted). Neither disclosure is sufficient to show
that Longley’s chlorinator, in the modified apparatus of Braden, would have
been capable of continuously supplying chlorine as recirculating pumped
sewage effluent flows through the venturi chamber.
On this record, Petitioner is unlikely to prevail on the ground that any
challenged claim would have been obvious over Braden and Longley.
iii. Alleged Obviousness over Longley and Agueda or Sweet
Regarding Agueda’s ozone water purification system, Petitioner
argues that a person of ordinary skill in the art, at the time of the invention,
“could have substituted the Longley chlorinator for the Agueda ozone
generator.” Pet. 39; see Ex. 1006 ¶¶ 83–90 (Mr. Weishuhn, stating that an
ordinary artisan “could” have made the substitution, but expressing no
opinion on whether, or why, that artisan would have done so). Patent Owner
points out that Agueda expressly avoids using chlorine to purify drinking
water because “[t]here is evidence that chlorine has cause the formation of
cancer-causing compounds.” Prelim. Resp. 35 (quoting Ex. 1004, 1:45–54)
(emphasis omitted).
Regarding Sweet’s system for aerobic water treatment, Petitioner
argues that an ordinary artisan “could have substituted the Longley
chlorinator into Sweet to treat the effluent with chlorine by connecting the
chlorinator to the unattached end of the air tube.” Pet. 50–51; see Ex. 1006
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¶¶ 91–96 (Mr. Weishuhn, stating that an ordinary artisan “could” have made
the substitution, but expressing no opinion on whether, or why, that artisan
would have done so). Patent Owner responds that drawing chlorine, instead
of air, into Sweet’s holding tank would have been counterintuitive, because
Sweet’s system is directed to supplying oxygen to maintain the aerobic
bacteria in Sweet’s effluent. Prelim. Resp. 40–41.
Even if we accept that an ordinary artisan would have made one of the
proposed modifications, Petitioner has not shown sufficiently that any
challenged claim is unpatentable over Longley and Agueda or Sweet. Our
analysis of Longley in the context of the ground based on Braden and
Longley applies equally to the grounds based on Agueda or Sweet and
Longley. Specifically, Petitioner does not show sufficiently that Longley’s
chlorinator is adapted to provide a continuous flow of chlorine, during pump
operation, as required by each challenged claim.
III. CONCLUSION
Taking into account the information presented in the Petition and the
Preliminary Response, we determine that Petitioner does not establish a
reasonable likelihood of prevailing with respect to at least one of claims 7,
14, 20–22, and 24 of the ’912 patent based on the asserted grounds of
unpatentability. Accordingly, we deny the Petition and decline to institute
an inter partes review.
IV. ORDER
It is
ORDERED that the Petition is denied and no inter partes review is
instituted.
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PETITIONER:
Michael Paul
Edward Marvin
Gunn, Lee& Cave, P. C.
mpaul@gunn-lee.com
emarvin@gunn-lee.com

PATENT OWNER:
Douglas Rommelmann
Lloyd Davis
Andrews Kurth LLP
dougrommelmann@andrewskurth.com
leedavis@andrewskurth.com