US 11353391

I'll search for this specific patent number and related litigation information.

Let me search specifically for litigation and CAFC docket activity.

I found a potential CAFC 2026 entry. Let me investigate whether it relates to this patent.

Summary — US Patent 11,353,391 B2

Caveat on the search scope: I could not query USPTO PatentCenter or PACER directly; findings below come from the authoritative full patent text (Google Patents) plus secondary sources (Justia, CAFC docket listings, CourtListener). No CAFC 2026 appeal specifically involving patent 11,353,391 was found. See the "Litigation check" section for a disambiguation that matters here.

Bibliographic data (per the full patent text)

Abstract (verbatim)

"An infiltration apparatus is disclosed herein. In various aspects, the infiltrometer apparatus includes a cylinder that defines a cylinder passage coupleable to a base that defines a base passage to form an infiltrometer passage. The infiltrometer apparatus includes a baffle removably emplacable within the infiltrometer passage, in various aspects. The baffle is in gapped relation with a soil surface of a soil when the base coupled to the cylinder is inserted into the soil and the baffle is emplaced within the infiltrometer passage, in various aspects. In various aspects, the infiltrometer apparatus includes a level detector to detect a water surface level of a water surface within the infiltrometer passage. The level detector may communicate by network with a computer to communicate data indicative of the water surface level to the computer. Related methods of use of the infiltrometer apparatus are also disclosed herein."

Plain-language overview of the independent claims

Claim 1 (apparatus, in claimable/as-supplied form): A falling-head infiltrometer made of four cooperating parts:

1. A cylinder with an internal bore ("cylinder passage").
2. A base with its own bore, attachable to the lower end of the cylinder so the two bores line up into a single vertical, circular-cross-section "infiltrometer passage."
3. A baffle that can be placed inside that passage to keep the act of pouring water in from disturbing (sorting/eroding) the soil surface.
4. A level detector attachable to the top end of the cylinder that senses the water level inside the passage and can be linked over a network to a computer to send water-level data.

The claimed point is that the sensed water level represents the hydraulic head on the soil surface, which decreases continuously for the entire duration of the falling-head test, and that the apparatus measures hydraulic conductivity at the soil surface within the circular footprint, with that soil surface left undisturbed.

Claim 10 (apparatus, in assembled/in-use form): The same combination, but recited in the state of use rather than as a kit of attachable parts: the base is attached and inserted into soil to a depth d limited by a structure of the base, enclosing a soil surface within the passage; the baffle is placed in the passage; and the level detector is attached to the top of the cylinder and linked by network to a computer. Same functional closing language: continuously decreasing head throughout the test and hydraulic conductivity measured at the undisturbed soil surface.

Dependent claims (brief)

• Depends from claim 1: a level detector comprising a tube extending into the passage plus a pressure transducer measuring air pressure pₐ in the tube passage as an indicator of water level (cl. 2); a base structure limiting insertion depth d (cl. 3); wireless network (cl. 4); data comprising multiple water levels at multiple times (cl. 5); data further comprising GPS location (cl. 6); computer calculating hydraulic conductivity at the GPS location (cl. 7); computer forming a hydraulic-conductivity map across multiple GPS locations (cl. 8); apparatus also measuring porosity, sorptivity, or intrinsic permeability (cl. 9).
• Depends from claim 10: tube + pressure transducer (cl. 11); a laser water-level detector (cl. 12); multiple water levels at multiple times (cl. 13); GPS location data (cl. 14); additional measurement of porosity, sorptivity, or intrinsic permeability (cl. 15).

Litigation check — important disambiguation

A CAFC 2026 docket does exist for a similarly named party, but it appears unrelated to this patent:

• Upstream Holdings, LLC v. Brekunitch, Nos. 2024-1924 / 2024-2143 (Fed. Cir.), appeal from C.D. Cal. No. 2:22-cv-03513 (Judge Scarsi). Oral argument 2026-04-13; Rule 36 summary affirmance entered 2026-04-14 (Moore, C.J., Lourie, Reyna). Nature of suit: patent infringement. However, the oral-argument transcript and briefing concern gutter covers, and the parties are "Upstream Holdings, LLC"/Midway Metals/Contractor Metals/Bachman individuals — not Upstream Technologies Inc, and not infiltrometers. I therefore cannot tie docket 24-1924 to patent 11,353,391, and no other CAFC 2026 docket naming this patent was found.

Uncertainty noted explicitly: I have no authoritative confirmation of any district-court or PTAB proceeding, or any CAFC appeal, that specifically asserts or challenges US 11,353,391. Absence of a search hit is not proof that none exists; PACER/PatentCenter were not directly queried.

I'll search for litigation involving US patent 11353391 across patent litigation databases.

Let me search more specific litigation databases.

No litigation found yet. Let me check dedicated litigation databases and possible suits by the patent owner.

Litigation Search Report — U.S. Patent No. 11,353,391

Bottom line

No litigation involving U.S. Patent No. 11,353,391 was found in the sources I searched. I found no district court complaints, no PTAB proceedings (IPR/PGR), and no Federal Circuit or PACER records asserting or challenging this specific patent.

I want to be transparent: this is a negative finding based on the searches I was able to run, not a certification that no case exists. See the limitations section below.

Searches performed

Patent/ownership context relevant to the absence of litigation

• Assignee: Upstream Technologies Inc. (New Brighton / Fridley, Minnesota) — a small entity per the USPTO legal events ("ENTITY STATUS: SMALL ENTITY"). This is a small commercial stormwater/soil-testing company, not a litigious NPE.
• Family: The '391 patent is a continuation of U.S. App. Ser. No. 15/660,883, which issued as U.S. Patent No. 10,739,242 ("Infiltrometer apparatus and related methods of use"), priority date 2017-07-26, filed 2020-06-18, granted 2022-06-07, adjusted expiration 2037-11-10.
• No post-grant activity: The USPTO legal-events record for the '391 shows ordinary prosecution (non-final action, response, allowance) and grant. There is no IPR/PGR certificate, no reexamination, and no adverse PTAB event.
• The Google Patents page lists only forward citations (three Chinese applications, none litigation-related) — again consistent with a patent that has not been asserted.

Limitations of this report (important)

1. Database access: The Unified Patents litigation caselist and PACER are not directly queryable through the tools available to me; I could only reach them indirectly via web search, and those searches returned no hits for this patent number. A definitive PACER/Docket Navigator/Lex Machina check is warranted for a litigation clearance opinion.
2. Recency: Litigation could have been filed after the most recent data I could retrieve. My search results did not surface anything dated later than the patent's own 2022 grant and 2025 maintenance-fee payment in a way that would reflect a suit.
3. No fabrication: I am not aware of any case, so I am not listing plaintiff/defendant/jurisdiction/case-number fields — inventing placeholder entries would be improper. If no litigation is known, the correct answer is that none is known.

Recommended next steps to confirm

• Run a PACER "Party Name" search for "Upstream Technologies" in all district courts (D. Minn. is the most likely venue given the assignee's location).
• Query Docket Navigator / Lex Machina by patent number 11353391 and by the family (10739242).
• Check the Unified Patents litigation portal and USPTO Patent Trial and Appeal Board (PTAB) API by patent number.
• Check the assignee's corporate/investor filings for any disclosed IP enforcement activity.

If you need, I can draft a short clearance opinion paragraph reflecting "no known litigation" with these caveats, suitable for a freedom-to-operate or IP due-diligence memo.

I'll start by verifying the structured block's default against live sources, since the task asks me to flag anything the ODP hasn't indexed.

Nothing yet. Let me search for the patent owner and family to see if any AIA petition was filed at all.

Let me run a few final targeted checks on the PTAB/ litigation front before concluding.

⚠️ Bottom line up front

There is no AIA trial activity on US 11,353,391. The USPTO Open Data Portal structured block is the canonical source here, and it returns zero IPR/PGR/CBM proceedings. My independent web checks found nothing to contradict that — no PTAB petition, no Final Written Decision, no Federal Circuit appeal, and no reexamination.

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Proceedings overview

Total AIA trial proceedings on US 11,353,391: 0 — zero active, zero claims invalidated, zero claims sustained, zero settled, zero institution denials. The defensive posture this gives a defendant is the inverse of "hardened": the patent has never been tested at the PTAB at all. No claim of the '391 has been canceled, so nothing in a demand letter can be met with "that claim is already dead." Equally, nothing has been sustained, so you are not foreclosed from filing first — you would be the first petitioner, with a clean § 315(e)(2) slate.

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No proceedings to report — and what I checked

I did not manufacture proceeding numbers to fill this section. Instead, here is the negative-search record:

Caveat I want to be explicit about: the number 11353391 does appear in one unrelated web result — an SEC Form 10-K association ID for Enstar Group Limited. That is a coincidental numeric collision in an EDGAR metadata field, not this patent. Likewise, the "Citations" table on the Google Patents page (e.g., US4884436 Automated tension infiltrometer; US5157959 Automated ponded infiltrometer; US6938461 Constant-head soil permeameter; US9371729 Permeameter probe) is the examiner's citation list from prosecution — these are not IPR grounds and were not raised in any AIA trial.

I also could not confirm any district court assertion of this patent, which is consistent with the absence of IPRs: patents that are never asserted rarely attract petitions. I flag that as a search limitation, not a verified negative.

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Strategic summary

Claim status: all 15 claims UNTESTED. No claim of the '391 has ever been canceled, narrowed, or confirmed by the PTAB. Independent claim 1 (the "attachable/emplaceable/linkable" kit-style claim) and independent claim 10 (the in-use counterpart, reciting the base "inserted into a soil to a depth d") remain fully intact, along with dependents 2–9 and 11–15. The family sibling US 10,739,242 ("Infiltrometer apparatus and related methods of use," app. 15/660,883, filed 2017-07-26) is likewise untested. Both are listed Active — the '391's 4th-year maintenance fee was paid 2025-08-29, and adjusted expiration runs to 2037-11-10 (the '242 to 2037-11-05). This is a live, ~12-year-tail patent with no validity adjudication.

Estoppel landscape — favorable to a new petitioner. Because no IPR was ever instituted against the '391 (or the '242), § 315(e)(2) estoppel has never attached to anyone. There is no prior petitioner whose grounds are foreclosed, and no privity chain to worry about. A defendant today can raise any § 102/§ 103 ground, including art the examiner never saw. That said, the corollary is that you get no free win from the PTAB — there is no FWD to point to, and no IPR-based § 315(e)(2) estoppel to assert against the patent owner in litigation either.

What the prosecution history suggests is attackable. The distinguishing language added to the '391's independent claims is heavily functional and relative: "the water surface level indicative of a hydraulic head applied to the soil surface that decreases continuously throughout an entirety of a falling head infiltration test" and "the soil surface being undisturbed." Both are outcome-defined limitations with no recited structure, and claim 1's preamble specifies "measures hydraulic conductivity at the soil surface within the circular cross-section." That is classic § 112(a) written-description/enablement territory (how do you know the head decreased "continuously throughout an entirety of" the test? what bounds "undisturbed"?), alongside § 103 over the ADI/MTD-style automated falling-head art. Claim 12's bare "a laser to detect the water surface level" is also notably broad. Notably, the inventor list (Schwidder, Kuntz) and the specification's own admission that the pressure-transducer-over-a-tube approach detects head via compressed air p_a gives you a concrete structural theory to attack. Pattern signals: no repeat petitioner, no defensive aggregator (no Unified Patents / RPX involvement surfaced), and the patent owner has never pursued a PTAB appeal on this family — there is no litigation-tested patent owner here.

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Recommended next steps

1. Treat "no IPR" as an opportunity, not a comfort. The absence of PTAB activity means the '391's validity has never been stress-tested. If you are accused, the strongest move is a § 102/§ 103 IPR (or PGR if you can show a § 112 ground tied to the continuation's new matter) targeting claim 1 and claim 10 — and a parallel § 112 invalidity theory in district court built on "decreases continuously throughout an entirety of" and "undisturbed."
2. Pull the full file wrapper before filing. The '391 is a continuation filed 2020-06-18 of app. 15/660,883 (the '242), priority 2017-07-26. The legal events show a Non-Final Action mailed 2021-12-01 and allowance 2022-03-17 — the claim amendments that produced the "decreases continuously" / "undisturbed" language are in that window. That Office Action/response pair is your best evidence of what the applicant conceded about the prior art.
3. Watch both family members. Assertion of the '391 will likely be paired with the '242 (same priority date, same specification). Any IPR strategy should cover both, mindful of the 1-year § 315(b) bar running from service of a complaint.
4. No trial deadlines to track — there is no live proceeding, no institution-decision clock, and no statutory 1-year FWD deadline running on any docket.
5. Verify before you rely. Run a fresh PTAB E2E / ODP docket search at PTAB E2E and the Google Patents family page at the time you need this, since a petition could be filed and not yet indexed. Because I found no proceeding to cite, there is no FWD or CAFC opinion link to provide — I am not going to invent one.

I'll research the assignment record and ownership history before reconstructing the chain.

Let me verify the assignment record details and check for any litigation or NPE activity.

Assignment & Ownership Reconstruction — US 11,353,391 B2

Patent: US 11,353,391 B2 — "Falling head infiltrometer apparatus"
Application: 16/946,381 · filed 2020-06-18 · granted 2022-06-07
Priority: 2017-07-26 (continuation of Ser. No. 15/660,883 → US 10,739,242 B2)
Current assignee of record: Upstream Technologies Inc (Minnesota)

Evidence limitation, stated up front. The only assignment record retrievable for this patent in this session is the one mirrored in the Google Patents legal-events table below (Reel 061048/0082). Google Patents does not publish the correspondent of record field, and the Assignment Center's per-record detail page (https://assignmentcenter.uspto.gov/ — search by patent number 11353391) could not be queried interactively here. The correspondent attorney/firm for the recorded assignment is therefore NOT verified and is not stated below. I will not name a correspondent I could not read off the record. That field remains the single open item in this reconstruction.

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Inventors

Pattern assessment: No unusual pattern. Both inventors are officers/principals of the assignee itself — Schwidder is the named founder of Upstream Technologies (founded 2011) and Kuntz has been its CEO (verified on the company's own team page, https://upstreamtechnologies.us/about.shtml). There is no "all inventors departed within 12 months of filing" signal: both are still listed in leadership roles, and both are the assignors on the 2022 recorded assignment. Inventor residence (New Brighton / Big Lake, MN) is consistent with the assignee's Minnesota HQ. This is a founder-inventor small-company fact pattern, not a corporate-research-lab fact pattern.

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Original assignee

Upstream Technologies Inc (originally New Brighton, MN; now 5201 E River Rd Ste 303, Fridley, MN 55421).

• Primary line of business: Stormwater / water-pollution-prevention hardware. Product line: SAFL Baffle (sump sediment-retention device, commercialized 2011, developed at the University of Minnesota St. Anthony Falls Laboratory), SKUNK garbage/debris trap, and the MPD Infiltrometer (launched April 2016, per the Uponor press release at http://uponor.media-resources-ordp.com/2016/_docs/uponor-increases-upstream-tech.pdf).
• Does it ship a product embodying the claims? Yes — directly on point. The claims recite a falling-head infiltrometer with a cylinder, base, baffle, and networked level detector measuring hydraulic conductivity at the soil surface. Upstream's own product pages state: "Upstream Technologies has automated this ASTM standard… Upstream Technologies has patented this automation. U.S. Patent #10,739,242" (https://www.upstreamtechnologies.us/products/mpd/mpd-demo.shtml — the parent of the patent at issue, same specification, same baffle + level-detector disclosure). US 11,353,391 is the continuation covering the same commercial MPD device.
• Current status: Operating. Independent signals: the company website is live with current product/pricing content and a "Build America Buy America" certificate; Google Patents shows the 4th-year maintenance fee paid 2025-08-29 with patent owner entity status = SMALL ENTITY (a maintenance-fee signal inconsistent with a large aggregator); company profiles list ~7 employees and a 2015-founded/2011-founded Minnesota operation (https://www.datanyze.com/companies/upstream-technologies/355995257; https://www.cbinsights.com/compare/magna-4-vs-upstream-technologies).
• Investment, not assignment: Uponor, Inc. took a minority stake via Uponor Innovations LLC in August 2014 and a second-round investment in March 2016. That is an equity stake in the operating company — it is not a recorded assignment of this patent and does not appear in any assignment record here. CB Insights also lists Omphalos Venture Partners and JWI Capital in the cap table. None of these is an assignee of record.
• No bankruptcy, no dissolution, no acquisition of the assignee is evidenced in any source checked.

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Assignment timeline

The Assignment Center / Google Patents legal-events record for this patent contains exactly one recorded assignment. Chronologically:

• 2017-07-26 (filing date of parent Ser. No. 15/660,883) — no separate reel/frame surfaced in the legal-events table for this application's own filing; the parent named "UPSTREAM TECHNOLOGIES, INC., New Brighton, MN" as Applicant on its face, indicating original-owner filing rather than a recorded inventor-to-company transfer being the operative link for the family.

  • Conveyance: n/a in the retrieved record
  • Context: initial filing by the operating company.

• 2022-08-17 (executed) / recorded 2022-09-09 — Reel 061048/0082

  • Conveyance: Assignment — "ASSIGNMENT OF ASSIGNORS INTEREST"
  • Assignor: SCHWIDDER, ARTHUR J; KUNTZ, RICHARD A
  • Assignee: UPSTREAM TECHNOLOGIES INC, MINNESOTA (recorded with owner address in Minnesota; REEL/FRAME: 061048/0082)
  • Correspondent: not retrieved — this field is absent from the Google Patents legal-events mirror, and the Assignment Center detail page was not accessible in this session. Verify at https://assignmentcenter.uspto.gov/ by searching patent number 11353391. No recurrence claim can be made without it.
  • Context: Confirmatory / chain-of-title perfection, not a sale. Date arithmetic matters here: executed 2022-08-17, i.e. ~2 months after the 2022-06-07 grant and ~5 years after the 2017-07-26 priority date. The assignee is identical to the original applicant. This is the classic signature of a nunc pro tunc / confirmatory assignment filed to paper the file on the continuation (typically so the continuing application and any later-filed relatives stand on a clean, bright-line record of the inventors' rights). There is no consideration-paid, third-party buyer, no name change, no merger, no security interest, and no release in the record.

• 2022-09-09 — Corresponding Assignment entry recorded; assignors Schwidder and Kuntz; effective date 20220817. (Same event as above, recorded view.)

• 2025-08-29 — Legal event MAFP: payment of maintenance fee, 4th year, small entity. Not an assignment, but a negative-control signal: the original assignee is still the paying owner three years post-grant.

No other recordings exist for this patent — no Security Agreement, no Merger, no Change of Name, no License, no Release, no Correction. The family table confirms both members (US 10,739,242 and US 11,353,391) remain with the same entity; there is no "Family Applications After" transfer and no related-family assignee divergence.

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Timeline diagram

timeline
    title Ownership of US 11353391
    2017 : Priority filing by Upstream Technologies
    2020 : Continuation filed Ser 16 946 381
         : Application published as US 20200319076A1
    2022 : Patent issued as US 11353391 B2
         : Inventors assign to Upstream Technologies
         : Recorded at reel 061048 frame 0082
    2025 : Fourth year maintenance fee paid

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NPE / troll-pattern signals

1. Shell-entity transfer — Not present. The single recorded assignment (2022-08-17 / recorded 2022-09-09, Reel 061048/0082) runs from the inventors to the original operating company, Upstream Technologies Inc, not to any "…IP / Holdings / Licensing / Ventures" vehicle. The assignee address of record is in Minnesota, matching an operating HQ with a live product catalog and ~7 employees — not a registered-agent service address. There is no single-purpose Delaware/Texas LLC anywhere in the chain.

2. Known asserter in the chain — Not present. The only assignee, ever, is Upstream Technologies Inc. It does not appear on any of the listed NPE rosters (Acacia, Marathon, IV, IPNav, Wi-LAN, Mosaid/Conversant, Vringo, Pendrell, Innovatio, MPHJ, Lumen View, Round Rock, Document Generation Corp, Spangenberg entities), and none of those entities appears in the assignment record, the family table, or the citation lists (the 12 examiner citations are all operating-company/university instrument patents — Soilmoisture Equipment, Iowa State, Visteon, Bechtel BWXT, Hortau, Netafim, J.R. Simplot).

3. Repeat correspondent across the chain — Unclear / not determinable. This is the one signal I cannot close out. Reel 061048/0082 has a single entry in the chain, so intra-chain recurrence is structurally impossible to observe; and the correspondent field for that entry was not retrievable here (Google Patents omits it; Assignment Center detail page not accessible this session). I am explicitly declining to name or infer a correspondent. Action item: open Reel 061048/0082 at https://assignmentcenter.uspto.gov/ and read the correspondent block — with only one assignment on the patent, it cannot itself establish recurrence, but it can be checked against Upstream's other patent family (the SAFL Baffle patents US 8,715,507 / 8,663,466 / 9,506,237, which the company's site lists identically at https://upstreamtechnologies.us/about.shtml).

4. Cascading transfers — Not present. One assignment in ~8 years of pendency and over 4 years of issuance. No consecutive LLC-to-LLC hops, no <24-month chain, no shared correspondent addresses to compare (only one link exists).

5. Pre-litigation transfer — Not present. The only assignment (executed 2022-08-17) falls after grant and would precede any suit by definition — but critically, it is assignee-identity-preserving (same entity as applicant), so it cannot be a venue- or standing-manufacturing transfer. No infringement action naming this patent surfaced in the sources checked; I could not complete a full district-court docket sweep, so treat "no litigation" as unverified rather than affirmatively proven.

6. Bankruptcy fire-sale — Not present. No Chapter 7/11 for Upstream Technologies was surfaced; contra-indicators are positive (maintenance fee paid 2025-08-29; active sales site; equity investors Uponor Innovations LLC, Omphalos Venture Partners, JWI Capital still associated).

7. Privateering — Not present. The operating company (Upstream) itself holds and pays for the patent; there is no transfer to an NPE asserting on Upstream's behalf. Note the distinction: Uponor's minority equity in Upstream is an investment, not a patent transfer, and no Uponor entity is an assignee of record.

8. Defensive aggregator (anti-NPE) — Not present. No RPX, AST, LOT Network, Unified Patents, or OIN recording exists; the chain does not terminate at a defensive aggregator.

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Verdict

Insufficient data — only the original assignment is recorded.

Justification: the entire recorded chain consists of a single confirmatory assignment executed 2022-08-17 and recorded 2022-09-09 at Reel 061048/0082, transferring inventors SCHWIDDER and KUNTZ → Upstream Technologies Inc, Minnesota — the same entity that was the applicant of record on the parent US 10,739,242 and that sells the MPD Infiltrometer described as practicing this family. That is the textbook "no records beyond the original assignment" condition in this rubric, so I cannot select an NPE or an operating-company-assertion verdict: there is zero evidence of assertion (no suit identified) and zero NPE signals (no shell transfer, no asserter, no cascade, no bankruptcy, no privateering) — the patent simply remains with the original operating, small-entity assignee, which paid the 4th-year maintenance fee on 2025-08-29. The one substantive follow-up is the correspondent of record on Reel 061048/0082, which was not retrievable here and should be pulled manually.

Verify the chain at: https://assignmentcenter.uspto.gov/ (search patent number 11353391; record to open: Reel 061048 / Frame 0082). Mirror used for this analysis: https://patents.google.com/patent/US11353391/en (Legal Events; Patent Citations; Family Applications; Also Published As).

I'll verify the patent and its cited references through targeted searches before analyzing.

Let me verify the remaining cited references.

Prior-Art Analysis — U.S. Patent No. 11,353,391 B2

0. Method and exact-number verification (stop-gap disclosure)

Exact-match confirmation (no similar-number substitution). I did not retrieve results for any near-miss number (e.g., 11,353,591 / 11,353,391-family variants). The record I analyzed is, verbatim:

Source limitation, stated up front: I could not query USPTO PatentCenter / the USPTO Full-Text (PatFT) search API directly with the tools available. The authoritative text I worked from is the Google Patents full document for US11353391B2 (which reproduces the USPTO front page, "Patent Citations," "Family Cites Families," and "Cited By" tables), supplemented by web-verified full texts of individual references. Where I could not retrieve a reference's full text, I say so explicitly and describe only what the bibliographic record supports — I do not invent claim content.

Cross-reference to earlier sections: The prior "Patent summary" and "Litigation summary" sections are consistent with this record (same claims count of 15, same dates, no litigation/PTAB activity found). One new fact, not a contradiction: the parent has a larger citation record — the Google Patents "Patent Citations" table for US 10,739,242 B2 shows 36 references, versus only 12 in the '391 table. That difference is material and is discussed in §3.

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1. The legal test I applied (so the "anticipates" column is meaningful)

• The '391 patent has a 2017-07-26 effective filing date. Because that is after 2013-03-16, the AIA version of 35 U.S.C. §102 governs (§102(a)(1) — patented/published/on-sale/public-use before the effective filing date; §102(a)(2) — U.S. patents and application publications "effectively filed" before it).
• Every one of the 12 references below issued between 1975 and 2016, i.e., more than a year before 2017-07-26. Each therefore independently qualifies as prior art under §102(a)(1) and/or §102(a)(2). Qualification is not the issue; scope is.
• Anticipation (§102) requires a single reference to disclose every element of the claim, arranged as in the claim (compare MPEP §2131). A reference that discloses only one recited element — e.g., a pressure-based water-level detector — cannot anticipate claim 1, and therefore cannot anticipate any of claims 2–9 either, because a dependent claim incorporates all limitations of the claim from which it depends. The same holds for claims 10–15.
• The closing language of claims 1 and 10 ("the soil surface being undisturbed"; "measures hydraulic conductivity at the soil surface within the circular cross-section") is functional/result-oriented. Under In re Schreiber, functional language in a product claim is still measured against the reference's disclosed structure, but a reference whose disclosed operation is inconsistent with the recited function (e.g., an apparatus that contacts or excavates the soil surface) will not anticipate.

Consequence: the "potentially anticipates" question has to be answered honestly as mostly "none." What these references actually establish is an obviousness (§103) landscape and a §112 support landscape — not §102 anticipation.

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2. Reference-by-reference: the 12 "Patent Citations" of US 11,353,391

2.1 US 3,898,872 A — Tensiometer for soil moisture measurement

2.2 US 4,164,139 A — Asphalt penetration indicator

2.3 US 4,884,436 A — Automated tension infiltrometer ★ (closest on the level-detection architecture)

2.4 US 5,345,820 A — Geohydraulic permeability determination

2.5 US 5,780,720 A — Outflow meter

2.6 US 6,351,993 B1 — Fluid level sensor without moving parts

2.7 US 6,742,405 B2 — Deep lysimeter

2.8 US 6,938,461 B1 — Constant-head soil permeameter ★ (closest on the "measures hydraulic conductivity" element — but teaches away from "falling head")

2.9 US 7,437,957 B2 — Porous medium tensiometer

2.10 US 7,631,545 B2 — Jet-action plunger-based tensiometer apparatus

2.11 US 8,714,181 B2 — Irrigation control system

2.12 US 9,371,729 B2 — Permeameter probe ★ (closest "in-situ hydraulic conductivity" reference)

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3. The "Family Cites Families" set (22) — and why it matters more than the 12

These are references cited during prosecution of the family (principally the parent, US 10,739,242 B2, whose citation table lists 36 references). They are not the '391's own examiner citations, but they are directly relevant because the '391 and '242 share a specification. Table data below is from the authoritative patent-text record:

3.1 US 5,157,959 A — Automated ponded infiltrometer (the closest structural art I actually verified)

3.2 US 4,956,993 A — Soil infiltrometer

3.3 Other family-cited items of note

• US 8,909,484 B2 (Soilmoisture Equipment Corp., "Automated hydraulic property measurement apparatus," 2014-12-09) — the most directly relevant item to the automation + soil-property determination aspects (claims 5, 9, 13, 15).
• US 8,756,991 B2 (Graco, liquid-level pneumatic indicator, 2014-06-24) and US 5,105,662 A (Bindicator, liquid level measurement system, 1992-04-21) — level-sensing art relevant to claims 2/11/12.
• WO 2007/088534 A1 (Ben-Gurion, "Method and system for monitoring soil properties," 2007-08-09) — relevant to the network/remote monitoring + mapping concept in claims 6–8 and 14.
• US 6,105,418 A and GB 0112903 D0, US 6,810,755 B1, WO 2003/095985 A1 — constant-head/permeameter art; all disclose constant, not falling, head, and are therefore non-anticipatory for claims 1/10 by the same logic as reference 2.8.

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4. Forward citations — expressly not prior art

The "Families Citing this family" table lists three later applications: CN 111474100 A (priority 2020-04-26), CN 117451593 B (priority 2023-10-30), CN 119901626 B (priority 2025-01-21). All post-date the '391's 2017-07-26 priority and are therefore outside the §102 window; they are evidence of the field's later development only. Likewise, the sibling documents US 10,739,242 B2 and US 2019/0033196 A1 are the same-family, same-inventor, same-assignee disclosure and are not §102 prior art to the '391 (they are excepted as the inventors' own earlier disclosure / commonly owned subject matter under §102(b)(2), and in any event the '391 claims the benefit of that very disclosure).

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5. Ranked results and the §102 bottom line

Ranking by closeness to claims 1 and 10:

Bottom line on §102: No reference cited against US 11,353,391 — and no family-cited reference I could verify — anticipates any of claims 1–15. The two independent claims require, in a single apparatus, (i) a cylinder + base forming a circular-cross-section, vertically aligned infiltrometer passage, (ii) a baffle emplaced within that passage to prevent fill-induced disturbance, (iii) a level detector attachable to the second cylinder end and linkable by network to a computer, and (iv) operation such that the head decreases continuously throughout the entire falling-head test while hydraulic conductivity is measured at an undisturbed soil surface. The cited art splits cleanly into two groups that cannot be merged under §102: level/head-sensing art (US 3,898,872; US 4,884,436; US 5,157,959; US 6,351,993; US 7,437,957; US 7,631,545; US 5,105,662; US 8,756,991) and permeability/infiltration art (US 5,345,820; US 6,938,461; US 9,371,729; US 4,956,993; US 3,548,635; US 3,945,247; US 6,810,755; WO 2003/095985). Not one of them discloses the gapped baffle, and both closest structurally similar devices contact the soil with a ring, plate, or filter — the opposite of the "undisturbed soil surface" the claims require.

Where the real exposure lies: the baffle-in-gapped-relation and the "continuous head decrease throughout the entire test / undisturbed surface" functional requirement are the load-bearing limitations. The examiner's 12-reference set is best understood as §103 fodder for the pressure-transducer/automation elements; the validity question turns on whether the ~1990–2016 infiltrometer art (US 5,157,959, US 4,884,436, US 4,956,993, US 8,909,484) renders the gapped-baffle-plus-falling-head combination obvious. That is a §103 inquiry, and on this record it is the inquiry that matters — not anticipation.

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6. Caveats (please read before relying on §2)

1. Direct USPTO database access was not available to me. Everything above is grounded in the authoritative full patent text of US 11,353,391 (Google Patents mirror of the USPTO record) plus web-verified full texts for US 3,898,872, US 4,884,436, US 5,157,959, and US 6,938,461. For the other references I relied on the bibliographic/title record; their full texts were not retrieved, so their "description" fields are deliberately thin and their §102 verdicts are structural ("cannot disclose the baffle/ring/network combination") rather than element-by-element.
2. Two references should be pulled in full before any final §102 opinion: US 4,956,993 A (Marathon Oil, "Soil infiltrometer") and US 8,909,484 B2 (Soilmoisture Equipment, "Automated hydraulic property measurement apparatus").
3. The parent's 36-reference citation table (US 10,739,242 B2) was not itemized in the material available to me; I reconstructed the relevant subset from the "Family Cites Families (22)" table. A full pull of the '242 face would likely surface additional infiltrometer-specific art (e.g., US 4,956,993, US 5,157,959) that was considered against the shared disclosure but not re-listed on the '391.
4. No litigation or PTAB activity exists to test these claims (consistent with the earlier Litigation summary in this analysis), so there is no adjudicated claim construction to anchor the "undisturbed soil surface," "gap," or "continuously throughout an entirety" language. My §102 conclusions therefore rest on the plain claim language and the specification's own definitions (gap L1/L2/L3; baffle "does not contact soil surface"; falling head = decreasing water surface over time).

If you want, I can draft the §103 obviousness narrative (inventive combination: level-sensing art + permeameter art, with the gapped baffle as the missing element) or a claim-chart mapping each limitation of claim 1 to the closest disclosed element per reference.

I'll ground this analysis in the prior-art references listed in the patent record, pulling details on the most likely primary and secondary references.

Obviousness Analysis — U.S. Patent No. 11,353,391 B2

"Falling head infiltrometer apparatus" under 35 U.S.C. § 103

Scope note. This analysis uses (i) the prior art listed in the "Prior Art" section of the patent record (the 12 examiner citations and 22 family citations), (ii) the applicant's own admissions in the '391 Background, and (iii) full-text/abstract verification I retrieved for the five references most likely to carry the analysis (US 4,884,436; US 5,157,959; US 8,909,484; US 9,371,729; US 5,105,662). References I could retrieve only by title are flagged as such. This builds on — and does not repeat — the earlier bibliographic, claim-summary, and litigation sections.

Cross-reference / consistency check. The previously generated sections are consistent with the full patent text. One internal discrepancy is worth flagging because it drives the whole §103 analysis: the Abstract and Brief Summary emphasize the baffle's "gapped relation with a soil surface," and the Detailed Description devotes substantial text to gaps L₁/L₂/L₃ (spec, FIG. 2, 5A, 5B). Neither granted independent claim recites any gap. Claims 1 and 10 require only that the baffle be "emplaceable within" / "placed within" the infiltrometer passage. The asserted novelty therefore lives in the specification, not in the claims — and §103 is judged on the claims as granted.

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I. Bottom line

On the face of the cited art, claims 1 and 10 are, in my assessment, more likely than not invalid under §103, and the dependent claims add little. The two clauses that appear to have been added to secure allowance — "decreases continuously throughout an entirety of a falling head infiltration test" and "the soil surface being undisturbed" — are intended-result / functional language that describes what a falling-head single-ring test does rather than any structure the apparatus must possess. The examiner's allowance (non-final action 2021-12-01 → response 2022-03-05 → allowance 2022-03-17, per the USPTO legal events) is consistent with applicant having amended around the constant-head art (US 6,938,461; US 5,157,959; US 8,909,484) by adding falling-head language.

Confidence: moderate-to-high on claims 1, 3–8, 10, 11, 13–15; moderate on claim 9/15 (additional-property measurement); lowest on claim 12 (laser), where the specific reference point is weakest but the substitution argument (KSR) is straightforward.

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II. Level of ordinary skill in the art (Graham factor 1)

A POSA here would have: a B.S. in civil, agricultural, or geological engineering (or hydrology/soil science), plus ~2–5 years' experience with in-situ soil infiltration/hydraulic-conductivity instrumentation, or equivalent. Critically, the POSA:

• routinely reads both the infiltrometer literature (single-ring/falling-head, double-ring, tension, ponded) and the generic instrumentation art (pressure transducers, data loggers, telemetry, GPS); and
• designs field instruments around accuracy, field-portability, and unattended data capture — the stated problems in US 5,157,959 ("Soil variability necessitates… measurements at numerous sites"; "automated data collection"; "rapid set-up and movement in the field") and US 4,884,436 ("automated measurement," "quick and reliable derivation of results").

That skill profile matters: it means the §103 analysis is not confined to "infiltrometer patents." KSR instructs that if a technique improves one device, the POSA will apply it to analogous devices.

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III. Claim construction points that shape the analysis

1. Claims 1 and 10 are apparatus claims ending in "whereby"-style result clauses.
   • "…the water surface level indicative of a hydraulic head… that decreases continuously throughout an entirety of a falling head infiltration test…"
   • "…wherein said falling head infiltrometer apparatus measures hydraulic conductivity at the soil surface within the circular cross-section, the soil surface being undisturbed."
     Under Minton v. NASD and Texas Instruments v. ITC, a "whereby" clause carries patentable weight only if it defines structure or manipulates process steps. "Falling head" is a test modality, and "undisturbed" / "measures hydraulic conductivity" are results. The apparatus itself does not become a different machine by being used in a falling-head mode. This is the central vulnerability of both independent claims.
2. Claim 1 is a capability/kit claim ("attachable," "emplaceable," "linkable"); claim 10 is the in-use counterpart ("attached," "inserted," "linked"). Claim 1 is broader and easier to meet.
3. "the assembly" (claims 2, 11) has no antecedent basis. Claims 1 and 10 never recite an "assembly"; the antecedent exists only in the specification (assembly 60/460). This is a §112(b) defect that would likely be construed to mean "the level detector / the second cylinder end," but it illustrates that these dependent claims were copied from the specification with minimal claim-drafting rigor.
4. No gap limitation in the claims (see the cross-reference check above). The "undisturbed soil surface" language is the only thing gesturing at the gap.

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IV. Mapping the cited prior art to the claim-1 elements

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V. The obviousness combinations

Combination A (strongest): Admitted single-ring falling-head practice + US 5,157,959 + US 8,909,484 + US 9,371,729

The references.

• Admitted art (applicant's own Background): a single-ring cylinder defining a passage, inserted into soil, water added, and falling head observed/recorded. Applicant is bound by this admission.
• US 5,157,959 (Ankeny, Iowa State, 1992) — Automated ponded infiltrometer: base + reservoir forming a passage; two pressure transducers (top of reservoir, base); datalogger 60 + computer 70 recording paired readings at regular intervals; and — importantly — a containment ring with "an outwardly extending flange (92) having a lower face (94) disposed to contact the soil and act as a depth stop" (antecedent for claim 10's "depth d limited by a structure of the base" and claim 3).
• US 8,909,484 (Farsad, Soilmoisture Equipment, 2014) — Automated hydraulic property measurement apparatus: in-situ, unattended measurement of saturated/unsaturated hydraulic conductivity, K-sat, sorptivity, and porosity; a perforated, energy-dissipating end cap expressly to "minimize erosion" of the medium; and a data processing device with GPS functionality (claim 5) storing time/date-stamped readings.
• US 9,371,729 (J.R. Simplot, 2016) — Permeameter probe: a standpipe (graduated cylinder) for hydraulic-conductivity measurement; an "electronic measurement device… magnetic, sonic, or other electronic measurement schemes to determine the level of a liquid in the standpipe"; and a transmitter for sending measurement data to a remote location with digital display.

Motivation to combine (why the POSA would do it):

1. Same field, same problem. All four concern in-situ measurement of soil hydraulic properties and the conversion of a water-level/flow signal into hydraulic conductivity.
2. Automation motivation is explicit and admitted. The '391 Background itself states that user observation "may be subject to error" and that calculation is "laborious." US 5,157,959 and US 4,884,436 both state as objects the provision of automated data collection and improved precision — a direct teaching, not mere hindsight.
3. Same sub-problem, same solution. The '391's stated problem is disturbance of the soil surface by pouring water in. US 8,909,484 addresses the identical problem with the identical mechanism: a perforated element that reduces kinetic energy and "minimizes erosion." Same problem → strongest possible KSR motivation.
4. The baffle element does not require a gap. Because claims 1/10 omit the gap, US 8,909,484's cap (which abuts the medium) reads on "baffle emplaceable within the infiltrometer passage." Even if one imports the gap, the '391 itself teaches the trade-off that motivates it: a contacting baffle "may also interfere with water infiltration… thus introducing error." Choosing to space a known energy dissipater is a predictable design choice, not invention.
5. Telemetry and GPS are conventional, ancillary improvements. US 9,371,729 expressly suggests a remote transmitter; US 8,909,484 expressly suggests GPS. Combining data logging with telemetry and geotags was a well-known practice in field instrumentation (cf. US 8,714,181, Irrigation control system, wireless control; and US 5,105,662, remote display).

Why the falling-head clause does not save claim 1. Clauses A+B+C+D together disclose a single-ring, surface-seated, baffled, pressure-instrumented, computer-linked, geotagged infiltrometer. Adding "the head falls during the test" describes the test protocol, and the admitted Background already discloses that protocol for a single ring. Result-clause limitations do not patentably distinguish apparatus that is otherwise disclosed.

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Combination B: US 4,884,436 + US 5,157,959 + US 8,909,484 (fallback / alternative primary)

US 4,884,436 (Ankeny, Iowa State, 1989) is a particularly close structural match and should be treated as a primary reference, not merely secondary art:

• It has a base 12 with a porous plate assembly 20 (fine-mesh nylon filter over an apertured acrylic face plate) mounted in the lower end — an in-passage, water-permeable element interposed between the water column and the medium (claimed "baffle").
• It uses two pressure transducers (28, 44) "to continuously measure pressure changes" and derives water level from the pressure difference; precision is quantified (SD = 2.2 mm).
• It is expressly "adapted to be operatively connected to control means such as a computer so that its operation and readings… can be completely automated" and can feed a data logger (Campbell 21X).
• It measures infiltration rate from the change in water height in the column, i.e., the falling (or changing) head is the measurand.

Combining US 4,884,436 (structure: base + passage + porous in-passage element + dual pressure transducers + computer automation + measurement of sorptivity/unsaturated K/macroporosity per its Background) with US 5,157,959 (single-ring surface geometry, depth-stop ring flange, top-of-column transducer placement) and US 8,909,484 (energy-dissipation rationale; GPS; time-stamped automated computation) yields every element of claims 1 and 10. Motivation: both Ankeny references are by the same inventors and expressly incorporate one another (US 5,157,959 "has been described previously by Ankeny et al. (U.S. Pat. No. 4,884,436)"), which is an unusually strong, self-documenting combination incentive.

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Combination C: US 8,909,484 (primary) + US 9,371,729 + US 5,105,662

• US 8,909,484 supplies: automated in-situ hydraulic-property measurement; energy-dissipating perforated cap; GPS; computed K-sat/sorptivity/porosity (claim 9/15); time-stamped data.
• US 9,371,729 supplies: a graduated standpipe with electronic level sensing and a remote transmitter, and expressly frames the device around hydraulic-conductivity measurement.
• US 5,105,662 (Bindicator, 1992) supplies, with particularity, the claim-2/11 structure: "a hollow conduit composed of a first conduit section having an upper end coupled to a pressure sensor and a lower end disposed within the vessel," where the pressure of air captured in the conduit indicates liquid level — i.e., a tube with a pressure transducer detecting air pressure pₐ as an indication of water level, exactly as claim 2 recites. It also provides a remote display (network communication).

Motivation: US 8,909,484 already discloses the physics of measuring level via a bubbler/gas column and expressly seeks freedom from "bubbling noise"; US 5,105,662 teaches a cleaner air-column pressure-level arrangement. A POSA seeking accuracy would substitute the known pressure-sensor-over-air-column level detector for the weight-based measurement — the classic case of "substitution of one known element for another to obtain the predictable result." (KSR)

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VI. The one limitation the cited art does not flatly teach — and why it likely doesn't matter

"…decreases continuously throughout an entirety of a falling head infiltration test."

This is the pivot on which the patentee must rely, because the closest automated references (US 5,157,959; US 8,909,484) are constant-head devices (bubble-tube regulation to ±1 mm; bubbler/weighing subsystems), and the Ankeny '436 is a tension infiltrometer. The patentee would argue that no combination of constant-head automation art reaches a falling-head test whose head decreases throughout the entire duration.

Why I still think this fails:

1. Intended-use / result language. The clause describes how the apparatus is operated, not an added structure. Under In re Schreiber and In re Pearson, apparatus claims are not rendered patentable by reciting a new use. Nothing in claim 1 structurally distinguishes a falling-head device from a constant-head device except the omission of a head-regulating element (the bubble tube/Mariotte control) — and omission of a known element, with its ordinary consequence, is the epitome of obviousness.
2. The applicant's own Background supplies it. Applicant concedes that single-ring falling-head infiltrometers, and the act of observing/recording the falling head, were known. In re Nomiya / applicant-admission doctrine makes that concession usable as prior art against the claims.
3. US 9,371,729's standpipe is a water-level-declining column whose level is read (manually or electronically) over time — falling-head behavior in all but name — and it is expressly about hydraulic conductivity. I could not retrieve the full text of US 4,956,993 ("Soil infiltrometer," Marathon Oil) or US 3,548,635 ("Method of and apparatus for testing dynamic permeability and hydrodynamic surface drainage"), but their titles and the '391's own classification history suggest at least one discloses a falling-head single-ring arrangement; full-text verification is the single most valuable next step (see §IX).
4. "Throughout an entirety" is a negative/absolute limitation that reads on ordinary operation of any unregulated falling-head column and is very likely to be construed broadly (or held to lack written-description support for anything narrower than "an unregulated single-ring falling-head test").

Counter-consideration the patentee has: if a court reads the "undisturbed soil surface" and "falling head throughout" clauses as structural — i.e., the apparatus must maintain a hydraulic head on an intake face that is never contacted or reworked — the patentee gains leverage. But that argument at once contradicts the specification (which expressly contemplates the baffle remaining in place or being removed, and contemplates spacer geometry) and runs into §112 written-description problems.

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VII. Dependent-claim chart

Claim 8 note: the "map of hydraulic conductivity at multiple GPS locations" is the only dependent claim with a plausible aggregation/algorithmic flavor, but the motivation is squarely supplied by US 5,157,959's express statement of the field-scale problem, and the '391 describes the aggregation at a level of generality ("may aggregate… thereby mapping") that reads on routine tabulation and plotting.

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VIII. Rebuttal analysis — the patentee's best non-obviousness arguments, and why they are weak

Additional structural weakness: the dependent claims depend on the narrowest reading of the independent claims for their validity, yet claims 2 and 11 contain a clear antecedent-basis defect ("the assembly"). If litigated, both the independent and dependent claims are exposed — the independents to §103, the dependents partly to §112.

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IX. Limitations of this analysis (stated explicitly)

1. Full-text gaps. I retrieved verified text for US 4,884,436; US 5,157,959; US 8,909,484; US 9,371,729; and US 5,105,662. I did not retrieve full text for US 4,956,993A ("Soil infiltrometer"), US 3,548,635A, US 5,780,720A ("Outflow meter"), US 6,938,461B1 ("Constant-head soil permeameter"), US 6,105,418A, US 8,756,991B2, or US 8,714,181B2; those mappings rest on titles and general knowledge and must be verified. US 4,956,993A is the highest-value reference to pull in full, because if it discloses a falling-head single-ring device it collapses the patentee's principal remaining argument.
2. Prosecution history not inspected. I inferred from the USPTO legal events (non-final action 2021-12-01; response 2022-03-05; allowance 2022-03-17) that the "falling head / undisturbed" language was added for allowability. The actual Office action rejection and applicant's remarks should be pulled from PatentCenter to confirm what art was applied and overcome.
3. No anticipation analysis. I did not find a single reference disclosing every element; the correct theory is §103, which is what I have applied.
4. Post-2017 forward citations are not prior art. The three Chinese family-citing publications (CN 111474100A; CN 117451593B; CN 119901626B) post-date the 2017-07-26 priority date and are irrelevant to validity. US 10,739,242B2 is the parent in the same family (common inventors/assignee) and is not §102/§103 prior art.
5. Date discrepancy in the task header. The task header states "Current Date: April 26, 2026"; the session's operating date is 2026-09-29. Nothing in this analysis turns on the difference (no post-grant events after the 2025-08-29 maintenance-fee payment appear in the record), but I flag it rather than silently reconcile it.

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X. Conclusion

Recommended §103 statement: Claims 1 and 10 are unpatentable as obvious over the admitted prior art single-ring falling-head infiltrometer in view of US 8,909,484 (energy-dissipating in-passage cap; automated in-situ hydraulic-property computation; GPS/timestamped data), US 5,157,959 (base-and-cylinder infiltrometer passage, depth-stop ring, pressure-transducer level detection, data logger and computer), and US 9,371,729 (standpipe level measurement with an electronic measurement device and remote transmitter). Claims 2 and 11 are further obvious over US 5,105,662. Claims 3–9 and 12–15 are obvious over these references plus routine engineering choices, with US 4,884,436 and US 8,909,484 supplying the additional-property measurements (sorptivity, porosity, K) of claims 9/15 and US 5,157,959 supplying the field-scale multi-site rationale of claim 8.

The patent's apparent distinguishing feature — a baffle that dissipates pour energy without touching the soil — is real in the specification but absent from the claims; and the claims' closing "falling head" and "undisturbed soil surface" language is most naturally read as intended-use/result language under Minton/Texas Instruments rather than as a structural limitation. That is the decisive point for the §103 conclusion.