Ex Parte Almubarak

Patent Trial and Appeal Board

Aug 30, 2017

13548310 (P.T.A.B. Aug. 30, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
212,165 6768
EXAMINER
FIGUEROA, KEVIN W
ART UNIT PAPER NUMBER
2124
MAIL DATE DELIVERY MODE
13/548,310 07/13/2012
38137 7590 08/31/2017
ABELMAN, FRAYNE & SCHWAB
666 THIRD AVENUE, 10TH FLOOR
NEW YORK, NY 10017
Yousef Husain ALMUBARAK
08/31/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YOUSEF HUSAIN ALMUBARAK
Appeal 2017-002060
Application 13/548,310
Technology Center 2100
Before BRUCE R. WINSOR, AMBER L. HAGY, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 1—8 and 17—24. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant identifies the Saudi Arabian Oil Company as the real party in
interest. App. Br. 2.
Appeal 2017-002060
Application 13/548,310
Introduction
Appellant describes the invention as “relating] generally to the
application of fuzzy logic to distributed control systems to detect and
classify faults in electrical machinery, such as air compressors.” Spec. 1:9—
10. Claim 1 is illustrative (shown here with a disputed requirement
emphasized in italics):
1. A fuzzy expert system to detect a fault in an
electrical machine, the fuzzy expert system comprising:
a distributed control system (DCS) including: a non­
volatile memory device that stores calculation modules and data;
a processor coupled to the memory; a human-machine interface;
input and output circuitry; at least one bus; and at least one
communications protocol; wherein information from sensors is
transmitted to the input circuitry using the at least one
communications protocol, with the input circuitry then
transmitting the information to the processor over the at least one
bus; and wherein the processor transmits instructions to the
output circuitry, with the output circuitry then transmitting the
instructions to final elements;
a first calculation module that continually monitors at least
two analog variables received by the DCS, comprising lube oil
pressure and lube oil temperature, from sensors associated with
the electrical machine;
a second calculation module that is preprogrammed with:
at least one input membership function for each of
the at least two continually-monitored analog variables,
wherein each of the input membership functions includes
a shape and at least one membership boundary;
normal, high and high-high output membership
functions, representing performance levels for the
electrical machine, wherein each of the output
membership functions includes a shape and at least one
membership boundary; and
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a plurality of rules, each rule comprising an
antecedent of one or more input membership functions,
and further comprising a consequent of one of the output
membership functions, wherein in the case of an
antecedent of two or more input membership functions,
the rule further comprises a fuzzy operator;
a third calculation module that, for each rule, continually
receives from the first calculation module the analog
measurements of the variable or variables that corresponds to
the one or more input membership functions in the antecedent,
and that fuzzifies each precise analog measurement into a truth
value for the corresponding input membership function;
a fourth calculation module that defines a final antecedent
truth value, wherein:
for each rule with only one membership function
defined in the antecedent, the final antecedent truth value
is equal to the fuzzified truth value calculated by the third
calculation module for the input membership function of
that rule, and
for each rule with a plurality of membership
functions defined in the antecedent, the predetermined
fuzzy operator is applied to the plurality of fuzzified truth
values that were calculated by the third calculation module
for the input membership functions of that rule, and the
result is defined as the final antecedent truth value;
a fifth calculation module that, for each rule, implicates
the final antecedent truth value onto the output membership
function, using the minimum function, yielding an output fuzzy
set;
a sixth calculation module that aggregates the output fuzzy
sets from the fifth calculation module into a combined output
fuzzy set, using the maximum function; and
a seventh calculation module that applies a predetermined
defuzzification method to the combined output fuzzy set, to
determine a crisp value representing the health of the electrical
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Application 13/548,310
machine; and that stores the crisp value in memory and makes it
available to an operator via the human-machine interface.
App. Br. 30-31 (Claims App’x).
Rejections
Claims 1,5, 17, and 21 stand rejected under 35 U.S.C. § 112(b) as
being indefinite for failing to particularly point out and distinctly claim the
invention. Non-Final Act. 2—3.
Claims 1—3, 5—7, 17—19, and 21—23 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Gayme (US 2005/0021212 Al; publ. Jan.
27, 2005). Non-Final Act. 3—6.
Claims 4, 8, 20, and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gayme in view of S. C. Liu et al., An Efficient
Expert System for Machine Fault Diagnosis, 21 Int’l J. Adv. Manuf. Tech.
691-98 (2003) (“Liu”). Non-Final Act. 6-7.
ISSUES
Based on Appellant’s arguments, the issues are whether the Examiner
errs in the rejection:
(a) of claim 1 under § 112(b) as indefinite (see App. Br. 18—20
(arguing claims 1, 5, 17, and 21 as a group, from which we select
claim 1 as representative (see 37 C.F.R. § 41.37(c)(l)(iv))));
(b) of claim 1 under § 102(b) as anticipated (see App. Br. 20-23
(arguing claims 1—3, 5—7, 17—19, and 21—23 as a group, from
which we select claim 1 as representative)); and
(c) of claim 4 under § 103(a) as obvious (see App. Br. 24—26 (arguing
claims 4, 8, 20, and 24 as a group, from which we select claim 4
as representative)).
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Application 13/548,310
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions of reversible error. We disagree with Appellant’s conclusions.
Instead, we adopt the Examiner’s findings and reasons as set forth in the
Non-Final Office Action from which this appeal is taken and as set forth in
the Examiner’s Answer. We highlight the following for emphasis.
35 U.S.C. § 112(b) Indefiniteness Rejection
The first step in analyzing a claim for indefmiteness is to determine
the scope of the claim. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).
A claim under examination is given its broadest reasonable interpretation
consistent with the underlying specification. In re Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Our reviewing court “counsels
the PTO to avoid the temptation to limit broad claim terms solely on the
basis of specification passages.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004). In the absence of an express definition of a claim term in the
specification or a clear disclaimer of scope, the claim term is interpreted as
broadly as the ordinary usage of the term by one of ordinary skill in the art
would permit. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007).
The Examiner’s rejection establishes a prima facie case of
indefmiteness by explaining how the scope of a pending claim is unclear
because of identified words or phrases. See In re Packard, 751 F.3d 1307,
1310 (Fed. Cir. 2014) (per curiam). One way to establish indefmiteness is to
show “a claim is amenable to two or more plausible claim constructions,” in
which case “the USPTO is justified in requiring the applicant to more
precisely define the metes and bounds of the claimed invention by holding
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the claim unpatentable ... as indefinite.” Ex parte Miyazaki, 89 USPQ2d
1207, 1211 (BPAI 2008) (precedential).
Here, the Examiner rejects claim 1 as indefinite because the claim
term “precise” in the requirement to fuzzily “each precise analog
measurement” is a “highly relative” term for which there is no definition in
either the claim or the Specification and, thus, “one of ordinary skill in the
art would not be reasonably apprised of the scope of the invention.” Non-
Final Act. 2—3. Appellant argues the Examiner errs because, based on the
Specification, an ordinarily skilled artisan
would understand the term “precise measurement” to refer to
repeated measurements that provide answers very close to each
other with little scatter. That is, the invention does not require a
specific level of precision based on the instrumentation used.
Rather, the use of the word “precise” in the claims and
specification is understood by one of ordinary skill in the art to
mean that the values of the measured parameters must be
forwarded to the DCS with whatever level of precision the
measuring instruments afford, and that those same values must
be directly processed by fuzzy logic as described and claimed
(i.e., without undertaking the extensive statistical pre-processing
required by Gayme).
App. Br. 19 (citing Spec. 5:18—19, 6:19—20).
Appellant’s argument is unpersuasive. We first note there is no
requirement in claim 1 for “precise analog measurement,” in view of the
Specification, to refer in any way to “repeated measurements that provide
answers very close to each other with little scatter,” as argued.
The term “precise” results in multiple reasonable interpretations of
“precise analog measurement,” as recited. On the one hand, “precise” can
mean “exactly or sharply defined” or, similarly, “minutely exact.” Ans. 8
(citing Merriam-Webster; see www.merriam-webster.com/dictionary/
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precise (last accessed Aug. 25, 2017)). Consistent with those definitions, the
Examiner reasons that an ordinarily skilled artisan would, in view of the
Specification and plain meaning of the claim language, would both
(a) consider “precise analog measurement” to imply a necessary level of
precision for the measurement and (b) be unable to discern what level of
precision is necessary to consider a particular measurement to qualify as
precise. See Non-Final Act. 2—3; Ans. 8. This is a plausible interpretation.
On the other hand, “precise” can mean “distinguished from every
other.” Ans. 8 (citing Merriam-Webster). By arguing “precise” is
irrelevant to a numerical level of precision, Appellant interprets “precise
analog measurement” consistent with this latter definition. See App. Br. 19.
This also is a plausible interpretation. During prosecution, in the situation at
hand, i.e., two reasonably plausible, competing interpretations for “precise
analog measurement,” the Examiner does not err in concluding claim 1 is
indefinite under 35 U.S.C. § 112(b). Ex parte Miyazaki, 89 USPQ2d at
1211; see also Ex parte McAward, No. 2015-006416, slip. op. 9 (PTAB
Aug. 25, 2017) (precedential) (noting that the Supreme Court’s decision in
Nautilus, Inc. v. BiosigInstruments, Inc., 572 U.S.__ , 134 S. Ct. 2120, 2129
(2014), did not mandate a change in the Office’s approach to indefmiteness
in patent-examination matters in which “the claims are interpreted under the
broadest reasonable interpretation standard”); cf. In re Packard, 751 F.3d at
1313—14 (affirming an indefmiteness rejection when the applicant chose to
rely on the specification for clarification of claim language in lieu of
amending the claims).
Accordingly, we sustain the § 112(b) indefmiteness rejection of claims
1,5, 17, and 21.
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35 U.S.C. § 102(b) Anticipation Rejection
We address the dispute between Appellant and the Examiner over the
§ 102(b) rejection of claim 1 notwithstanding that we sustain the
indefmiteness rejection. Unlike the situation in In re Steele, 305 F.2d 859
(CCPA 1962), where a claim’s indefmiteness under § 112 rendered it
inappropriate to address the Examiner’s prior art rejection under § 103(a)
(see id. at 862—63), here we find the dispute over the § 102(b) rejection
capable of resolution.
Appellant argues “Gayme does not disclose the limitation of a
‘calculation module that, for each rule, continually receives ... the analog
measurements of the variable or variables . . . and that fuzzifies each precise
analog measurement into a truth value.’” App. Br. 22. Appellant contends
“[wjhether the word ‘precise’ is present or not, the rejection on Section 102
grounds is clear error.[2] Appellant’s membership function is directly
applied to continually-received discrete samples of the sensed analog
measurements of the variables.” Id. at 23 (citing Spec. 6:19-20). Appellant
argues Gayme, which teaches augmenting measured data by calculating
“residuals” and then using fuzzy logic with the augmented data for fault
detection (see Gayme Tflf 22—24, Figs. 1—2), does not disclose the disputed
requirement because “Gayme fuzzifies the rate of change of residuals, and
most certainly does not fuzzify ‘precisely whatever value [the analog value]
2 We note that Appellant’s contention that the term “precise” is immaterial
to the prior art rejection is relevant to our determination that In re Steele
does not compel us to decline to address the merits of the § 102(b) rejection
Our analysis is the same regardless of the interpretation given to “precise.”
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is at. ’ Thus, it is clear error to say that Gayme is fuzzifying analog
measurements.” App. Br. 23 (brackets in original).
The Examiner answers by reasoning that “[t]he claim limitation does
not recite any limitation that the data is transferred from the sensor to the
fuzzy logic module with nothing in between. Precise measurement from a
sensor does not preclude intermediate data handling.” Ans. 9. We agree.
Claim 1 does not preclude using augmented data. An ordinarily skilled
artisan would have understood Gayme’s augmented data includes both the
measured data and the calculated residuals, both of which are inputs to the
fuzzy logic. See Gayme Fig. 10, ]Hf 22—24, 57—58 (describing fuzzy logic
rules that use both the measured sensor data and the calculated residual data
as inputs).
While Gayme focuses on the improvement to fault detection that
results from the augmentation of the data, this does not negate Gayme’s
embodiments’ use of the measured data that is augmented, as specifically
illustrated by the fuzzy logic rules shown in Figure 10. Thus, we disagree
with Appellant’s characterization that Gayme only fuzzifies “augmented
non-precise values.” Reply Br. 4.
We further disagree that “the claim language absolutely] precludes
augmenting the data . . . .” Id. at 5. The term “comprising” is open-ended
and does not exclude additional elements or method steps. CIAS, Inc. v.
Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007). Claim 28
recites a method “comprising” certain steps, none of which include language
that precludes the additional use of augmented data.
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Accordingly, we sustain the § 102 rejection of claim 1, and also of
claims 2, 3, 5—7, 17—19, and 21—23, which Appellant argues together with
claim 1.
35 U.S.C. § 103(a) Obviousness Rejection
Claim 4 recites “[t]he fuzzy expert system of claim 1, wherein the
electrical machine is an air compressor.” The Examiner finds Liu, which
discusses using fuzzy logic for machine fault diagnosis, and specifically
mentions troubleshooting air compressor technology (Liu 692), in
combination with Gayme, renders claim 4 obvious. Non-Linal Act. 7.
Appellant reiterates the Examiner errs based on the limitation
discussed above for claim 1, and further argues Gayme teaches away from
the invention. App. Br. 25—26. The Examiner answers that “[t]he Gayme
reference does not teach away from the application simply because it has
intermediate data processing.” Ans. 11.
We agree with the Examiner. A teaching away requires a reference to
actually criticize, discredit, or otherwise discourage the claimed solution.
See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). “The degree of
teaching away will of course depend on the particular facts; in general, a
reference will teach away if it suggests that the line of development flowing
from the reference’s disclosure is unlikely to be productive of the result
sought by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
Simply because an approach is described as inferior does not by itself
constitute a teaching away from using the inferior approach. Id. at 553. A
teaching that a result would be inferior or less desirable is not a teaching
away unless the use “would render the result inoperable.” In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1381 (Fed. Cir. 2007).
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Application 13/548,310
Gayme teaches using augmented data and fuzzy logic to improve fault
detection and, as discussed above, the augmented data includes the “actual”
or “precise” data along with additionally calculated “residual” data. Thus,
Gayme teaches an improvement to the requirements of claim 1, but not away
from claim 1.
Accordingly, we sustain the § 103(a) rejection of claim 4, and also of
claims 8, 20, and 24, which Appellant argues together with claim 4.
DECISION
For the above reasons, we affirm the rejections—
of claims 1, 5, 17, and 21 under 35 U.S.C. § 112(b);
of claims 1—3, 5—7, 17—19, and 21—23 under 35 U.S.C. § 102(b); and
of claims 4, 8, 20, and 24 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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