In Re Chevalier ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
(Serial No. 11/407,778)
IN RE GILBERT CHEVALIER, ALAIN VILLERMET,
AND CHRISTIAN LARQUET
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2012-1254
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Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences.
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Decided: January 7, 2013
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ALLEN E. WHITE, Air Liquide USA, LLC, of Houston,
Texas, for appellants.
RAYMOND T. CHEN, Solicitor, Office of the Solicitor,
United States Patent and Trademark Office, of Alexan-
dria, Virginia, for respondent. With him on the brief were
MONICA B. LATEEF and SYDNEY O. JOHNSON, JR., Associate
Solicitors.
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Before PROST, MAYER, and MOORE, Circuit Judges.
PROST, Circuit Judge.
IN RE CHEVALIER 2
Gilbert Chevalier, Alain Villermet, and Christian
Larquet (“Chevalier”) appeal from a decision of the Board
of Patent Appeals and Interferences (“Board”). The Board
affirmed the examiner’s rejection of claims 1-6, 8, 9, 11
and 12 of U.S. Patent Application 11/407,778 (“Chevalier
Application”) covering a device for stirring a liquid in a
reactor and for injecting gas into the liquid in order to
form a gas-liquid dispersion under 35 U.S.C. § 103. We
affirm.
I. BACKGROUND
A. The Chevalier Application
The claims of the Chevalier Application are drawn to
a device that stirs a liquid while injecting a gas into the
liquid in order to form a gas-liquid dispersion. Claim 1 is
representative:
A device for stirring a liquid in a reactor and for
injecting a gas into the said liquid in order to form
a gas-liquid dispersion, comprising:
a) a drive device positioned above the re-
actor, provided with a vertical output
shaft fitted at its lower end with at least
one axial flow rotor immersed in the liq-
uid;
b) means for introducing gas above the ax-
ial flow rotor; and
c) a deflector placed above the axial flow
rotor preventing the gas-liquid dispersion
from rising, wherein said device comprises
a deflector secured to the shaft placed be-
low the axial flow rotor converting the ax-
ial flow of the said rotor into a radial flow.
3 IN RE CHEVALIER
The claimed apparatus comprises a drive device,
which has a vertical output shaft fitted with one or more
axial rotors and deflector at its lower end. During opera-
tion the shaft is immersed in liquid and a deflector, which
is attached to the shaft below the rotor, converts the axial
flow into a radial flow. The drive device also includes a
means for introducing gas above the axial flow rotor and a
second deflector, placed above the axial flow rotor, to
prevent the gas-liquid dispersion from rising. The specifi-
cation explains that one of the essential features of the
invention lies in the deflector that is placed below the
axial flow rotor and converts the axial flow created by the
rotor into a radial flow.
B. Proceedings Below
The Board affirmed the examiner’s rejection under 35
U.S.C. § 103(a) based on the following prior art: (1) U.S.
Patent No. 4,290,885 issued September 22, 1981 to Do-
chan Kwak (“Kwak”) (2) U.S. Patent No. 4,310,437 issued
January 12, 1982 to Anselm Schreiber (“Schreiber”); (3)
U.S. Patent No. 6,142,458 issued November 7, 2000 to
Richard A. Howk (“Howk”); and (4) U.S. Patent No.
6,270,061 issued August 7, 2001 to Florent Bouquet et al.
(“Bouquet”). Claims 1-6, 8, 9, and 11 were rejected as
obvious over the combination of Kwak and either Howk or
Schreiber.1 Claim 12 was rejected as obvious over the
combination of Kwak and either Howk or Schreiber in
view of Bouquet. Chevalier limits his challenge of the
Board’s decision to claim 1 and does not argue that the
other claims are independently patentable. As such, we
limit our discussion to claim 1.
1 The Board found the Schreiber and Howk ref-
erences to be cumulative and selected only Howk for
discussion. Likewise, we too limit our discussion to the
Howk reference.
IN RE CHEVALIER 4
Kwak teaches a device for injecting a gas into a liquid
that creates a flow pattern in the gas-liquid mixture to
achieve effective aeration. The Board found that Kwak
teaches each limitation of claim 1, except that Kwak’s
deflector is not attached to the drive shaft. The Kwak
deflector, like the Chevalier deflector, is placed below the
rotor and converts the axial flow of the liquid-gas mixture
into radial flow. The Kwak deflector, however, is at-
tached to the floor of the basin rather than the drive
shaft.
Howk also teaches a device for dispersing gas into a
liquid. Howk utilizes a deflector to covert the axial flow of
the liquid-gas mixture into radial flow. Like the deflector
of the claimed invention, the Howk deflector is secured to
the drive shaft below the rotor.
The examiner found and the Board agreed that it
would have been obvious to one skilled in the art to mod-
ify the Kwak device in view of the teachings of Howk by
attaching the deflector to the drive shaft in order to
facilitate a more rapid and more complete conversion of
axial flow to radial flow in the gas-liquid mixture.
II. DISCUSSION
A. Standard of Review
“Obviousness is a question of law based on underlying
findings of fact.” In re Kubin, 561 F.3d 1351, 1355 (Fed.
Cir. 2009). Factual inquiries relevant to the obviousness
determination include: (1) the scope and content of the
prior art, (2) the differences between the prior art and the
claims at issue, (3) the level of ordinary skill in the perti-
nent art, and (4) secondary considerations of nonobvious-
ness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
5 IN RE CHEVALIER
(2007) (citing Graham v. John Deere Co. of Kan. City, 383
U.S. 1, 17-18 (1966)). Additionally, “[t]he presence or
absence of a motivation to combine references in an
obviousness determination is a pure question of fact.” In
re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). This
court reviews the Board’s determination of obviousness de
novo and the Board’s factual findings for substantial
evidence. Id. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938). “[T]he possibility of drawing
two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being
supported by substantial evidence.” Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966).
B. Obviousness
Chevalier contends that there is no motivation to
combine the teachings of Kwak and Howk because the
resulting combination would be inoperable. Chevalier
bases his argument on his own interpretive drawings,
which allegedly demonstrate that a literal physical com-
bination of the Kwak and Howk devices would not effec-
tively convert the axial flow of the gas-liquid mixture to
radial flow. According to Chevalier, the combination
device would direct the radial liquid flow into the wall of a
tube wall found in the Kwak device, thus preventing the
gas-liquid mixture from achieving suitable aeration. The
examiner disagreed and explained that the length of the
drive shaft could be easily modified by one of ordinary
skill in order to avoid this alleged problem associated with
physically combining the prior art devices. The Board
reviewed Chevalier’s contentions and the examiner’s
answer and chose to credit the examiner’s explanation.
IN RE CHEVALIER 6
We find the Board’s determination both well reasoned and
supported by substantial evidence.
Moreover, Chevalier’s arguments demonstrate that he
misapprehends the nature of the obviousness inquiry.
The obviousness inquiry does not ask “whether the refer-
ences could be physically combined but whether the
claimed inventions are rendered obvious by the teachings
of the prior art as a whole.” In re Etter, 756 F.2d 852, 859
(Fed. Cir. 1985) (en banc); see also In re Keller, 642 F.2d
413, 425 (CCPA 1981) (stating “[t]he test for obviousness
is not whether the features of a secondary reference may
be bodily incorporated into the structure of the primary
reference”). Rather, in a case such as this where each of
the elements of the claim are known to the art, the obvi-
ousness inquiry requires a finding that the combination of
known elements was obvious to a person with ordinary
skill in the art. KSR, 550 U.S. at 420. Here, each of the
elements of the claim is taught by Kwak with the excep-
tion that the Kwak deflector is not attached to the drive
shaft. This deficiency in Kwak is supplemented by Howk,
which teaches a deflector attached to the drive shaft. The
examiner found, and the Board affirmed, that one of
ordinary skill would be motivated to modify Kwak in view
of Howk because the modification “would facilitate a more
rapid and more complete conversion from axial flow to
radial flow of the liquid exiting from the bottom of the
device.” Ex Parte Gilbert Chevalier, Alain Villermet &
Christian Larquet, No. 2010-008166, 2011 WL 6747404
(B.P.A.I. Dec. 21, 2011). Chevalier does not challenge this
finding. Accordingly, we find no error in the Board’s
determination that Kwak and Howk could be combined to
achieve the claimed invention, nor do we find any error in
the Board’s determination that one of ordinary skill would
be motivated to combine these references to achieve an
aeration device that more rapidly and more completely
7 IN RE CHEVALIER
converts axial flow to radial flow in the gas-liquid mix-
ture.
Our conclusion is strengthened by Chevalier’s admis-
sion that the deflectors of Kwak and Howk are “recog-
nized equivalents performing the same function of
converting axial flow to radial flow.” Appellant’s Br. 9.
The Supreme Court stated in KSR that “when a patent
claims a structure already known in the prior art that is
altered by the mere substitution of one element for an-
other known in the field, the combination must do more
than yield a predictable result.” KSR, 550 U.S. at 416
(citing United States v. Adams, 383 U.S. 39, 50-51 (1966)).
Here, the claimed invention merely substitutes the deflec-
tor of Howk, which is attached to the drive shaft, for the
deflector of Kwak, which is attached to the floor of the
basin. This substitution achieved only the predictable
result of converting the axial flow of the gas-liquid mix-
ture to radial flow.
III. CONCLUSION
For the foregoing reasons, this court concludes that
the decision of the Board is supported by substantial
evidence. Therefore, the decision of the Board is affirmed.
AFFIRMED