Ex Parte Blevins et al

Patent Trial and Appeal Board

Aug 17, 2017

11537975 (P.T.A.B. Aug. 17, 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.
11/537,975 10/02/2006 Terrence L. Blevins 06005/40573 1270
45372 7590 08/21/2017
Marshall, Gerstein & Borun LLP (Emerson)
233 South Wacker Drive
6300 Willis Tower
Chicago, IL 60606
EXAMINER
OCHOA, JUAN CARLOS
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
08/21/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TERRENCE L. BLEVINS,
WILHELM K. WOJSZNIS, and MARK J. NIXON
Appeal 2015-007577
Application 11/537,975
Technology Center 2100
Before JUSTIN BUSCH, JAMES W. DEJMEK, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1—48 under 35 U.S.C. § 103(a). We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2015-007577
Application 12/537,975
CLAIMED SUBJECT MATTER
Claims 1,15, 30, and 43 are independent claims. The claims relate
generally to using process simulation in an operating process environment.
Spec. Abstract. Claim 1 is reproduced below:
1. A non-transitory computer readable storage medium
storing instructions executable by a processor to implement a
simulation system for use in simulating the operation of a portion
of an operating process plant communicatively coupled to the
simulation system, the operating process plant including one or
more process controllers communicatively coupled to one or
more field devices processing physical materials to produce a
product, the instructions comprising code executable to
implement:
one or more simulation blocks configured to perform
simulation of one or more pieces of equipment within the portion
of the operating process plant, each simulation block including:
a process model that models the portion of the
operating process plant;
a simulation routine that uses the process model to
simulate the operation of the portion of the operating
process plant to produce a simulated output value for an
on-line process element associated with the portion of the
operating process plant;
an input to accept from the operating process plant
an actual output value of the on-line process element
corresponding to the simulated output value for the on-line
process element;
a model regeneration unit that compares the actual
output value of the on-line process element with the
simulated output value of the on-line process element to
automatically develop an updated process model based on
the comparison of the actual output value and simulated
output value; and
updating at least one simulation block by replacing
the process model with the updated process model.
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REJECTIONS
Claims 1—9, 11, 13, 15—22, 24-40, and 42-47 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Kodosky (US 7,219,306 B2;
May 15, 2007) (“Kodosky ’306”), Kodosky (US 7,865,349 B2; Jan. 4, 2011)
(“Kodosky ’349”), and Emigholz (US 2006/0073013 Bl; Apr. 6, 2006).
Final Act. 3—36.
Claims 10, 12, 14, 23, 41, and 48 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kodosky ’306, Kodosky ’349,
Emigholz, and West (US 2005/0158701 Al; July 21, 2005). Final Act. 36—
38.
OPINION
Appellants contend Kodosky ’349 does not teach various limitations
that the Examiner finds Kodosky ’349 teaches or suggests. App. Br. 11—26.
Specifically, Appellants argue Kodosky ’349 fails to teach “a model
regeneration unit that compares the actual output value of the on-line process
element with the simulated output value of the on-line process element to
automatically develop an updated process model based on the comparison of
the actual output value and simulated output value,” as recited in
independent claim 1 and commensurately recited in independent claims 15,
30, and 43. App. Br. 12—19; Reply Br. 2—3. Appellants assert no other
arguments with respect to the independent claims. Appellants also
separately argue dependent claims 5, 7, 8, 16, 21, 31, 35, and 46. App.
Br. 19-26; Reply Br. 3—6. Each of Appellants’ arguments are addressed
below.
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Application 12/537,975
Independent Claims 1,15,30, and 43
We are not persuaded by Appellants’ argument that Kodosky ’349
fails to teach or suggest the recited model regeneration unit. Appellant
argues Kodosky ’349 fails to teach the model regeneration unit because
Kodosky ’349 “describes comparing simulated values to desired other
simulated values.” App. Br. 12; see App. Br. 13—19; Reply Br. 2—3.
Appellants acknowledge that Kodosky ’349 discloses interactions between a
measurement/control program and a simulation program. E.g., App. Br. 14.
Appellants also acknowledge that the measurement/control program in
Kodosky ’349 receives an output value from the simulation program and
compares that output to either setpoint values or other “values recorded
during previous iterations of the loop.” Id. at 15—16 (quoting Kodosky ’349,
12:33—41). Appellants attempt to distinguish Kodosky ’349 from the
independent claims because Kodosky ’349 allegedly never compares an
actual value to a simulated value.
The Examiner quotes various sections of Kodosky ’349 explaining the
interactions between the measurement/control program and the simulation
program, including the interchangeability and bidirectional flow of data
between programs. See, e.g., Final Act. 7—8 (quoting Kodosky ’349, Fig. 5,
5:54—61, 7:3-24, 10:58-65, 11:46-60, 12:32^17); see also Kodosky ’349,
11:24—26 (“Output produced by the measurement/control program 200 may
be viewed as input to the simulation program 202 and vice versa.”).
Kodosky ’349 further discloses that its measurement/control program can
interact with either the system or the simulated system without changes to
the programming. Kodosky ’349, 5:35—41. Additionally, Kodosky ’349
discloses that the simulation program and measurement/control program can
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run on a single networked computer system integrated with the actual system
so the measurement/control program can switch easily between the system
and the simulation program. Id. at 8:2—9.
With respect to the teaching of a comparison of actual values to
simulated values, the Examiner cites the disclosure in Kodosky ’349
explaining that the measurement/control program processes received input,
which may include comparing the values received from the simulation
program to previously recorded values or performing any other process.
Final Act. 7 (quoting Kodosky ’349, 12:32-41). Kodosky ’349 discloses a
closed-loop system — i.e., the functions, inputs, and outputs of the
measurement/control program and the simulation program may be passed to
and affect each other. See Kodosky ’349, 1:32, 37, 11:24—26. The
Examiner also cites the disclosure in Kodosky ’349 that the
measurement/control program produces an output command in response to
processing the received input. Final Act. 8 (quoting Kodosky ’349, 12:42—
45). In turn, changing system variable values may alter the operation of the
model, thus generating different results in subsequent iterations of the same
simulation. See Kodosky ’349, 12:42-49.
Appellants’ contentions fail to take into account the context of the
prior art and the background knowledge and capabilities of a person of
ordinary skill in the art. An artisan is presumed to possess both skill and
common sense. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)
(“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.”). The Examiner repeatedly states that the rejection depends on
mapping the values from the “real” system, as opposed to the simulated
system, to the actual output value recited in claim 1. We read the
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Examiner’s rejection to include the knowledge of an ordinarily skilled
artisan, so that such a person would have understood the disclosed
comparison could include comparison of an actual value to a simulated value
in order to update the simulated system variables to more accurately reflect
the real-world results. The level of ordinary skill in the art with respect to
such background knowledge can be gleaned from Emigholz, also cited by
the Examiner. See Okajima v. Bourdeau 261 F.3d 1350, 1355 (Fed. Cir.
2001). In particular, Emigholz indicates that a person having ordinary skill
in the art of systems similar to those of the claimed invention would know
that to improve certain simulated systems, it is valuable to continually
compare the actual process output with the simulation output to re-train the
model. Emigholz 1105.
As discussed above, Kodosky ’349 explicitly discloses including the
simulation program in a fully functioning “actual” system including the
measurement/control program, and switching between the real system and
the simulation program. Kodosky’349, 8:2—9. Furthermore, Kodosky’349
at least suggests improving the accuracy of its simulation model by updating
system variable values. Id. at 12:36-41. Finally, given Emigholz’s
indication that an ordinarily skilled artisan would understand the value of
comparing real and simulated values, we agree with the Examiner’s findings
that the proposed combination teaches or at least suggests “a model
regeneration unit that compares the actual output value of the on-line process
element with the simulated output value of the on-line process element to
automatically develop an updated process model based on the comparison of
the actual output value and simulated output value.” Accordingly, we are
not persuaded by Appellants’ argument that the combination of Kodosky
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’306, Kodosky ’349, and Emigholz fails to teach or suggest the recited
limitation in claim 1, and commensurately recited in independent claims 15,
30, and 43.
Claims 5.16. and 31
Appellants also argue the proposed combination fails to teach or
suggest “the input is communicatively connected to a user input device to
accept a user provided value of the on-line process element,” as recited in
claim 5 and commensurately recited in claims 16 and 31. App. Br. 19—21;
Reply Br. 4—5. In particular, Appellants assert that the graphical user
interface (GUI) disclosed in Kodosky ’349 merely demonstrates that “an
operator is controlling the system using the virtual controls,” whereas claim
5 requires a user provided value of the process element to be used when the
actual value is not available. Reply Br. 5; App. Br. 20.
The Examiner finds Kodosky ’349 describes GUIs for the
measurement/control program and the simulation program providing
controls for “regulating a system or a simulated system” and controlling or
affecting output commands from the measurement/control program, the state
of the simulated system, and the operation of the measurement/control
program. Final Act. 11 (citing Kodosky’349, 12:50-61. Additionally, the
Examiner explains this disclosure by Kodosky ’349 is consistent with the
disclosure in Appellants’ Specification regarding the use of a user-supplied
value. Ans. 11—13 (citing Spec. 1118, Fig. 9).
We are not persuaded by Appellants’ argument because we agree with
the Examiner that the disclosure of controlling the state of the simulated
system and regulating the simulated system via a user interface would have
at least suggested to a person of ordinary skill in the art that the various
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inputs and outputs could include simulated values of on-line process
elements. As such, we agree with the Examiner that the cited portions of
Kodosky ’349 are sufficient to at least suggest the disputed limitation to a
person having ordinary skill in the art. Specifically, an ordinarily skilled
artisan would have known that the provided user interface could be used to
modify the simulated values of on-line process elements in order to run
simulations with values from the real system to update or refine the model.
See Emigholz 1105.
Claims 6.20. and 34
Appellants present no separate substantive arguments with respect to
claims 6, 20, and 34. Therefore, we are unpersuaded the Examiner erred for
the same reasons discussed above regarding independent claims 1,15, 30,
from which claims 6, 20, and 34 respectively depend. Moreover, to the
extent a portion of the limitations recited in claims 6, 20, and 34 are similar
to those limitations argued with respect to claims 5, 16, and 21, the
arguments with respect to claims 5,15, and 21 are unpersuasive for the
reasons discussed above.
Claims 7. 8.21. and 35
Appellants contend the proposed combination fails to teach or suggest
“the model regeneration unit determines if the measurement signal is
available, and regenerates the process model based on the measurement
signal when the measurement signal is available and regenerates the process
model based on the user provided input when the measurement signal is not
available,” as recited in claim 7 and the limitations of similar scope recited
in claims 8, 21, and 35. App. Br. 21—24; Reply Br. 5—6. Appellants argue
Kodosky ’349 “merely assumes that the output command [equated to the
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recited measurement signal] is available, rather than performing a
determination step,” and, without the determination step, Kodosky ’349
“cannot provide any instructions or actions that should be based on such a
determination step.”1 App. Br. 22.
Initially, we note claim 7 recites each of the regenerating actions
occurs “when” certain conditions exist. In accord with our precedent,
conditional limitations need not be performed. See Ex Parte Schulhauser,
Appeal 2013-007847, 2016 WL 6277792, at *3-5 (PTAB Apr. 28, 2016)
(precedential) (holding that in a method claim, a step reciting a condition
precedent does not need to be performed if the condition precedent is not
met). Although the limitations at issue in Schulhauser were rendered
conditional by the recitation of “if,” see id. at *6—8, we discern no
meaningful distinction between the recitation of “if’ and “when” in this
context. Thus, given that one regenerating action occurs when a certain
condition exists (i.e., when the measurement signal is available) and the
other regenerating action occurs when that condition does not exist (i.e.,
when the measurement signal is not available), only one of the regenerating
actions needs to be performed.
We are not persuaded by Appellants’ argument that Kodosky ’349
merely assumes the output command is available or valid rather than
determining whether it is available. App. Br. 22, 24. Appellants’ argument
again fails to consider the context of the prior art and the background
1 Appellants also state with respect to claims 7, 8, 21, and 35 that “the claims
recite a model regeneration unit (i.e., structure, not merely function.” Reply
Br. 5. We note, however, that claim 15, from which claim 21 ultimately
depends, actually recites “a model regeneration routine,” and claim 35,
which ultimately depends from claim 30, recites a method.
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knowledge and capabilities of a person of ordinary skill in the art.
Appellants’ argument also fails to consider that the execution coordination
kernel in Kodosky ’349 intercepts an output command from the
measurement/control program and routes the command to the simulation
program. Ans. 17 (quoting Kodoksy ’349, 11:6—23). Appellants’ do not
address the Examiner’s further explanation in the Answer regarding the
determinations made by the measurement/control program and the execution
coordination kernel. Appellants do not explain why the steps disclosed by
Kodosky ’349 are insufficient to at least suggest that the measurement signal
is determined to be available and/or valid. Accordingly, we agree with and
adopt the Examiner’s findings and conclusions that Kodosky ’349 teaches or
suggests the determining recited in claims 7 and 8, and similarly recited in
claims 21 and 35.
We are also unpersuaded by Appellants’ contention that the proposed
combination does not teach or suggest regenerating the model “based on the
user provided input when the measurement signal is not available.” App.
Br. 22—23. Appellants’ argument depends on its assertion that Kodosky
’349 does not teach or suggest a user provided input recited in claim 6
(similar to the limitation recited in claim 5). For similar reasons as
discussed above with respect to claim 5, we agree with the Examiner that the
proposed combination at least suggests “a user input device to accept a user
provided input indicative of a value of the on-line process element,” as
recited in claim 6. Accordingly, we disagree with Appellants’ assertion that
“by virtue of its dependence to claim 6,” Kodosky ’349 cannot disclose the
limitation recited in claim 7. Id. at 23.
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Appellants also argue, for the first time in their Reply Brief, that
regulating one or more simulated system variables does not teach or suggest
updating a process model. Reply Br. 5—6. Arguments raised for the first
time in the Reply Brief are waived, absent a showing of good cause.
37 C.F.R. § 41.41(b)(2). Nevertheless, we find Appellants’ argument
unpersuasive because Appellants have not explained sufficiently why
updating simulated system variables, which changes values relied upon by
the simulation, does not teach or suggest “automatically develop [ing] an
updated process model.”
With respect to claim 35, Appellants argue only that “[cjlaim 35 is
allowable over the combination of Kodosky [’306], Kodosky [’349], and
Emigholz for at least reasons similar to those discussed above in relation to
claim 7.” Appellants present separate, but substantively similar arguments
for claims 8 and 21. App. Br. 23—24. Thus, we are not persuaded the
Examiner erred in rejecting claims 7, 8, 21, and 35 for the reasons discussed
above.
Claims 25 and 46
Appellants contend the proposed combination fails to teach or suggest
“the simulation system provides the updated process model developed by the
model regeneration routine for one of the simulation blocks to the one of the
control blocks for use by the one of the control blocks to perform the online
process control activity,” as recited in claim 25 and similarly recited in claim
45. App. Br. 25—26. Appellants argue Kodosky ’349, “at best describe^]
updating the simulation program,” but does not disclose providing the
updated model “for use by the one of the control blocks to perform the on­
line process control activity, as recited in claim 25.” Id. at 25.
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The Examiner cites the disclosure in Kodosky ’349 regarding the
closed-loop feedback of the measurement/control program and the
simulation program or the system as teaching or suggesting the on-line
process control activity and the feedback from the simulation program to the
measurement/control program. Final Act. 20 (citing Kodosky ’349, 8:64—
9:19, 12:32-47, Figs. 3A, 3B). In the Answer, the Examiner did not respond
to Appellants’ argument that Kodosky ’349 only describes updating the
simulation program and does not disclose “provid[ing] an updated process
model... for use by the one of the control blocks to perform the on-line
process control activity,” as recited in claim 25, and commensurately recited
in claim 46.
The Examiner does not provide sufficient persuasive reasoning or
evidence regarding how the cited disclosures of Kodosky ’349 teach or
suggest the limitation recited in claims 25 and 46. Specifically, the
Examiner points only to disclosure regarding updating variable values in the
simulation program and has not explained how or why that disclosure would
have suggested, to a person of ordinary skill in the art, updating a control
block in the process model for performing the on-line process control
activity.
Therefore, on this record, the Examiner has not demonstrated that it
would have been obvious to an ordinarily skilled artisan to use the
simulation program to provide an “updated process model developed by the
model regeneration routine for one of the simulation blocks to the one of the
control blocks for use by the one of the control blocks to perform the online
process control activity,” as recited in claim 25 and commensurately recited
in claim 46. Accordingly, we do not sustain the Examiner’s rejection of
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claims 25 and 46 as obvious in view of the proposed combination of
Kodosky ’306, Kodosky ’349, and Emigholz.
Summary
For the reasons discussed above, we are not persuaded the Examiner
erred in rejecting claims 1—24, 26-45, 47, and 48. We are, however,
persuaded the Examiner erred in rejecting claims 25 and 46.
DECISION
For the above reasons, we affirm the Examiner’s decision to reject
claims 1—24, 26-45, 47, and 48 under 35 U.S.C. § 103(a) and we reverse the
Examiner’s decision to reject claims 25 and 46 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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED-IN-PART
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