Ex Parte Buschnakowski et al

Patent Trial and Appeal Board

Apr 30, 2018

12734120 (P.T.A.B. Apr. 30, 2018)

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,
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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.
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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.
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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
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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
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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
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