Ex Parte Buschnakowski et alDownload PDFPatent Trial and Appeal BoardApr 30, 201812734120 (P.T.A.B. Apr. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121734, 120 140216 7590 Endress+Hauser, Inc. PatServe US 2350 Endress Place Greenwood, IN 46143 04/12/2010 05/02/2018 FIRST NAMED INVENTOR Stephan Buschnakowski 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 ATTORNEY DOCKET NO. CONFIRMATION NO. CD0292-WO/US 5593 EXAMINER SATANOVSKY,ALEXANDER ART UNIT PAPER NUMBER 2857 NOTIFICATION DATE DELIVERY MODE 05/02/2018 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): patserveus@patserve.endress.com chris.powers@patserve.endress.com lisa.harden@patserve.endress.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHAN BUSCHNAKOWSKI, TOBIAS MIETH, and SVEN-MATTHIAS SCHEIBE Appeal2017-003403 Application 12/734, 120 Technology Center 2800 Before ADRIENE LEPIANE HANLON, N. WHITNEY WILSON, and MERRELL C. CASHION, JR., Administrative Patent Judges. WILSON, Administrative Patent Judge, DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's May 27, 2015 decision rejecting claims 25-28 (Non-Final Act.). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We affirm. 1 Appellants state that the real party in interest is Endress + Hauser Conducta Gessellshaft Fur Mess- und Regeltechnik MBH +Co. KG. (Appeal Br. 2). Appeal2017-003403 Application 12/734, 120 CLAIMED SUBJECT MATTER Appellants' invention relates to a system for process automation with a plurality of intelligent sensors, and an associated method, where each sensor determines or monitors a physical or chemical process variable of a medium (Abstract). Each sensor has a primary side plug connector element and a secondary side plug connector element with a sensor element (id.). Energy supply and data communication occurs between the two plug connector elements via a releasable plug-in connector coupling (id.). Each sensor is associated with a Web service interface, through which the sensor is connectable to a wide area network (WAN) or to a local area network (LAN) (id.). Claim 25 is representative and is reproduced below from the Claims Appendix of the Appeal Brief: 25. A method for calibrating sensors, comprising steps of: providing a system for process automation comprising: a plurality of intelligent sensors, wherein each sensor serves for determining or monitoring a physical or chemical process variable of a medium and each sensor element has a primary side plug connector element, and a secondary side plug connector element; a releasable plug-in connector between the two plug connector elements for energy in supply and data communication to occur, wherein said plug-in connector coupling is a galvanically isolated interface, wherein said galvanically isolated interface is an inductive interface; wherein in each secondary side plug connector element, a data memory is provided, in which sensor-specific data including data for identification, for parameterization or calibration, 2 Appeal2017-003403 Application 12/734, 120 and last measured, measurement data are contained, wherein these data are permanently associated with the matching sensor and wherein a microcontroller is integrated in the secondary side plug connector element; associated with each sensor is a Web service interface, via which the sensor is connectable to a wide area user network (WAN) or to a local area user network (LAN), said Web service interface in the primary side plug connector element being automatically uniquely accessible via an associated Web address; and a control unit or a server, which at least provides software for generating a virtual measurement transmitter; wherein an input unit is provided, via which a user can directly access said virtual measurement transmitter, as a Web server which is accessible via a Web browser; and wherein communication between said virtual measurement transmitter and the sensors occurs via said Web service interface; removing, for maintenance and calibration purposes, one or more of the sensors from the system; connecting the one or more of the sensors to a laboratory network (LAN) to be addressable via a Web address; via a Web address a corresponding sensor is addressed and an automatic conforming of the calibration data of the sensor with the data stored in the virtual measurement transmitter (VM) occurs; calibrated by the2 calibrating the sensors by a user via the Web service interface; and 2 The Examiner objected to claim 25 on the grounds that the words "calibrated by the" five lines up from the bottom of the claim (as written herein) should be removed (Non-Final Act. 2). The objection is not before us, but we make note of it so that this section of the claim is more understandable. 3 Appeal2017-003403 Application 12/734, 120 removing the calibrated sensors from the laboratory network and following completed calibration integrating the calibrated sensors back into the system. REJECTION Claims 25-28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Frank3 in view of Wittmer, 4 and further in view of Lindmueller, 5 further in view of Anderson, 6 and further in view of Nasle. 7 DISCUSSION Appellants do not separately argue any of dependent claims 26-28 (Appeal Br. 13-14). Accordingly, we focus our discussion on the rejection of claim 25. The details of the rejection are set forth in the Non-Final Action at pages 3-12. Appellants' first argument is that the references are not properly combinable, because they relate to different fields (Appeal Br. 11 ). The analogous-art test requires that a reference either be in the field of the applicant's endeavor or be reasonably pertinent to the problem with which the inventor was concerned in order to be relied on as a basis for rejection. In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992). References are selected 3 Frank, US 7,269,527 Bl, issued September 11, 2007. 4 Wittmer et al., US 2006/0125484 Al, published June 15, 2006. 5 Lindmueller et al., US 2006/0254911 Al, published November 16, 2006. 6 Anderson et al., US 7 ,026,807 B2, issued April 11, 2006. 7 Nasle, US 2009/0076749 Al, published March 19, 2009. 4 Appeal2017-003403 Application 12/734, 120 as being reasonably pertinent to the problem based on the judgment of a person having ordinary skill in the art. Id. As stated by the Examiner, different features of the claim relate to known and broadly recited activities in multiple fields of technologies and the cited references address those different technologies (Ans. 7). Appellants have not persuasively challenged the Examiner's determination that the cited references are pertinent to the problems with which the inventors were concerned, as set forth in the statement of the rejection. Appellants also appear to suggest that the fact that the rejection relies on five references suggests that impermissible hindsight was used in formulating the rejection (Appeal Br. 11 ). However, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991). Appellants also argue that Frank teaches away from claim limitations involving ( 1) removal of the sensors from the system for calibration, (2) calibration of the sensors while attached to a LAN, and (3) reintegrating the sensors into the system because Frank is directed towards in situ calibration of sensors (Appeal Br. 11-12). Frank discloses that calibration of the sensors is desirable and plainly prefers a system for in situ calibration (Frank 2: 9-10, 12-14). However, Frank's preference for in situ calibration is not a teaching away from using other known alternative calibration techniques. "A reference does not teach away, however, if it merely expresses a general preference for an alternative invention but does not 'criticize, discredit, or otherwise discourage' investigation into the invention claimed." DePuy Spine, Inc. v. Medtronic 5 Appeal2017-003403 Application 12/734, 120 Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)). Appellants do not dispute that Anderson discloses a different method for calibration (removal and connection to a LAN); nor do Appellants allege that calibration of sensors was not generally known in the art. Thus, the combination of Anderson with Frank is merely a substitution of one known method (Frank's in situ calibration) with another (prior art's laboratory calibration). Although Frank prefers the in situ calibration method, Frank does not teach away from such a substitution nor do Appellants direct us to any portion of Frank that persuasively supports a determination that Frank teaches away. Therefore, we agree with the Examiner's determination that a person of skill in the art would have combined Anderson's LAN calibration method with Frank's system if such a procedure were thought to be useful based on certain sensor requirements (Non-Final Act. 11; Ans. 9). Nor would combining Anderson with Frank change Frank's principle of operation, or render the entire system unsatisfactory for its intended purpose. Although the in situ calibration unit would no longer be necessary the overall purpose of Frank's system is not in situ calibration, but instead is directed to a sensor interface system and a sensor integration module supporting individual sensors and sensor arrays, with network connectivity and critical functions required for analog and digital sensors when deployed in field applications used for chemical, biological, radiation, nuclear and explosives (CBRNE) material identification (Frank, Abstract). Appellants have not directed us to any evidence establishing that Frank's 6 Appeal2017-003403 Application 12/734, 120 system would not still be functional if the calibration method were changed to that of Anderson. Finally, Appellants argue that Nasle does not disclose or suggest the feature of calibrating the sensors by a user via the web service interface (Appeal Br. 13). According to Appellants, Nasle discloses an update to a virtual system model, and fails to disclose or suggest a calibration of individual sensors via a web service interface. However, the Examiner finds that Nasle: "discloses calibrating (adjusting) individual sensors by a user (the client 128 can use the central analytics server 422, and vice versa, to modify and/or adjust the operating parameters of analytics server A 414 and utilize the same to modify and/or adjust the operating parameters of the sensors interfaced with monitored system A 402 [0085]) and teaches that the sensors are accessed via their network interfaces/addresses (analytics server 116 can comprise various drivers configured to interface with the various types of sensors, etc., comprising data acquisition system 202 [0093]; Fig.5: sensors 519 are web- connected (518) to the Analytics server 116, i.e. via implied corresponding web service interfaces)." (Ans. 5---6). Appellants do not challenge these specific findings (see, Reply Br. generally), which are sufficient to support the obviousness rejection. CONCLUSION We AFFIRM the rejection of claims 25-28 under 35 U.S.C. § 103(a) as being unpatentable over Frank in view of Wittmer, and further in view of Lindmueller, further in view of Anderson, and further in view ofNasle. AFFIRMED 7 Copy with citationCopy as parenthetical citation