Michael R. Bradenv.Mark ChaffinDownload PDFPatent Trial and Appeal BoardJul 28, 201510370343 (P.T.A.B. Jul. 28, 2015) Copy Citation 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 IPR2015-00539 Patent 6,932,912 B2 2 (“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. IPR2015-00539 Patent 6,932,912 B2 3 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. IPR2015-00539 Patent 6,932,912 B2 4 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). IPR2015-00539 Patent 6,932,912 B2 5 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). IPR2015-00539 Patent 6,932,912 B2 6 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). IPR2015-00539 Patent 6,932,912 B2 7 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). IPR2015-00539 Patent 6,932,912 B2 8 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. IPR2015-00539 Patent 6,932,912 B2 9 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 IPR2015-00539 Patent 6,932,912 B2 10 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; IPR2015-00539 Patent 6,932,912 B2 11 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. IPR2015-00539 Patent 6,932,912 B2 12 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. IPR2015-00539 Patent 6,932,912 B2 13 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 IPR2015-00539 Patent 6,932,912 B2 14 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. IPR2015-00539 Patent 6,932,912 B2 15 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 IPR2015-00539 Patent 6,932,912 B2 16 ¶¶ 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. IPR2015-00539 Patent 6,932,912 B2 17 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 Copy with citationCopy as parenthetical citation