Ex Parte Carlin et al

Patent Trial and Appeal Board

Dec 29, 2016

13678603 (P.T.A.B. Dec. 29, 2016)

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.
13/678,603 11/16/2012 Jeremiah D. Carlin ROC920110208US2 3479
46296 7590 01/03/2017
MARTIN & ASSOCIATES, LLC
P.O. BOX 548
CARTHAGE, MO 64836-0548
EXAMINER
SEFCHECK, GREGORY B
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
01/03/2017 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEREMIAH D. CARLIN,
MICHAEL T. KALMBACH, and MARK D. SCHROEDER
Appeal 2015-008175
Application 13/678,603
Technology Center 2400
Before MICHAEL J. STRAUSS, IRVIN E. BRANCH, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
Final Rejection of claims 1—19. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM and designate our affirmance as a new ground of
rejection pursuant to 35 C.F.R. § 41.50(b).
Appeal 2015-008175
Application 13/678,603
STATEMENT OF THE CASE
Appellants’ invention is directed to mitigating the effects of predicted
failures in a mobile network base station due to weather. Spec. 12. Claims
1 and 8, reproduced below, are representative of the claimed subject matter:
1. A method for mitigating predicted failures in a mobile
data network due to weather, the method comprising the steps
of:
on a breakout system in a basestation performing the
steps of:
breaking out user data from an intercepted data
stream from a user equipment so that the breakout system
can perform a service for the user equipment;
obtaining a local weather forecast for the
basestation;
obtaining local environmental conditions outside
of the basestation and inside of the basestation;
obtaining a historical data pattern derived from
historical data of the basestation;
using the local weather forecast, the local
environmental conditions and the historical data pattern
to determine if there is a predicted failure;
if there is a predicted failure then taking pre­
emptive action to mitigate the predicted failure; and
wherein the action taken to mitigate the predicted
failure comprises communicating with environmental
systems to take pre-emptive measures, and the
preemptive measures include cooling an internal
environment of the basestation having mobile basestation
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equipment beyond a normal range in preparation for a
forecasted abnormally hot condition.
8. The method of claim 1 wherein the action taken to mitigate the
predicted failure comprises gracefully ending breakout of user data of
all user equipment on the breakout system and then shutting down the
breakout system.
REJECTIONS
Claims 1, 3—7, and 11 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Fox et al. (US 2012/0129517
Al; published May 24, 2012) (“Fox”), Fischer (US 2011/0021186 Al;
published Jan. 27, 2011) and Weaver et al. (US 8,160,752 B2; issued Apr.
17, 2012) (“Weaver”).
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Fox, Fischer, Weaver and Brockel et
al. (US 6,058,260; issued May 2, 2000) (“Brockel”).
Claims 13 andl5—18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Fox and Fischer.
Claims 9, 10, 12, and 14 stand rejected 35 U.S.C. § 103(a) as being
unpatentable over the combination of Fox, Fischer, and Brockel.
Claim 8 stands rejected 35 U.S.C. § 103(a) as being unpatentable over
the combination of Fox, Fischer, Weaver and May (US 7,894,335 B2; issued
Feb. 22,2011).
ANALYSIS
Issue 1: Did the Examiner err in finding the combination of Fox,
Fischer and Weaver teaches or suggests “using the local weather forecast,
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the local environment conditions and the historical data pattern to determine
if there is a predicted failure,” as recited in independent claim 1, and
commensurately recited in independent claims 1, 9, and 13?
Appellants contend “Fischer is concerned with reducing the need for
cooling capacity, not predicting failures.” App. Br. 5. Specifically,
Appellants assert while Fischer “does teach to consider weather forecasts,
the cited paragraphs do not teach ‘mitigating predicted failures’ ‘due to
weather’ as implied by the Examiner.” Id. Appellants further argue
“reducing heat and increasing efficiency does not teach or suggest mitigating
predicted power failures[.]” Reply Br. 3.
We are not persuaded by Appellants’ arguments and agree with the
Examiner’s findings. Final Act. 2—3; Ans. 16—17. Figure 9, relied upon by
the Examiner (Final Act. 3), depicts a process for managing rectifiers,
including determining when and how to rotate or schedule rectifiers into and
out of an online state. Fischer || 110, 113. The process “may reduce the
mean time between failures for the rectifier and switch circuit 630, which
may reduce maintenance calls and/or cell site 100 outages.” Fischer 1113.
Further, Fischer describes that by running the rectifiers more efficiently, it
will “reduce[] the strain on cooling systems and reduces the power needed to
operate cooling systems at the cell site 100.” Id. Fischer describes
monitoring temperatures in the cell site (H 116, 119, 136), weather data or
forecasts (H 119, 136), environmental conditions (1119), and historical
information (]f]f 118, 139). The power controller then uses that information
to determine whether a change or adjustment to the number of rectifiers is
necessary flflf 20, 121, Table III).
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We disagree with Appellants that the disclosure in Fischer does not
teach or suggest mitigating predicted failures due to the weather. Rather, as
described above, Fischer discusses reducing the strain on cooling systems
and reducing the mean time between failures in order to reduce maintenance
calls and/or cell site outages by adjusting the number of rectifiers based on
various conditions, including the weather. For example, in paragraph 136,
Fischer describes adding one or more additional rectifiers during cold
weather, if the temperature of the battery circuit drops below a certain
threshold, in order to keep the batteries from freezing. We agree with the
Examiner that such disclosure teaches or suggests the disputed limitation.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Fox, Fischer, and Weaver teaches or suggests the disputed
limitation.
Issue 2\ Did the Examiner err in finding the combination of Fox,
Fischer and Weaver teaches or suggests “pre-emptive measures include
cooling an internal environment of the basestation having mobile basestation
equipment beyond a normal range in preparation for a forecasted abnormally
hot condition,” as recited in independent claim 1 ?
The Examiner relies on the combination of Fischer and Weaver to
teach or suggest the disputed limitation. Final Act. 4. Appellants contend
Weaver is concerned with monitoring equipment and making
changes. Nothing in Weaver is ‘pre-emptive’ to mitigate
failure. The pre-cooling in Weaver was to save money, not to
pre-empt a failure as claimed.
App. Br. 6.
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We are not persuaded by Appellants’ arguments and agree with the
Examiner’s findings. Final Act. 4; Ans. 16—17. Appellants’arguments
attack the Weaver reference in isolation, but do not substantively address the
combined teachings and suggestions of Fischer and Weaver.
Nonobviousness cannot be established by attacking the references
individually when the rejection is based upon a combination of prior art
disclosures. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986). The Examiner relies on Weaver only to “explicitly show[] the step of
proactively heating or cooling equipment housed within a structure based
upon anticipated weather patterns.” Ans. 17. Weaver describes that an
“[ejnergy manager 100 may use the anticipation of a coming weather pattern
. . . to take pro-active steps.” Weaver, col. 6:60—63. As described supra, the
Examiner relies on Fischer to teach or suggest the pre-emptive action to
mitigate the predicted failure. Accordingly, we are not persuaded the
Examiner erred.
For the foregoing reasons, we sustain the Examiner’s 35 U.S.C.
§ 103(a) rejections of independent claims 1, 9, and 13. For the same
reasons, we sustain the Examiner’s 35 U.S.C. § 103(a) rejections of
dependent claims 2, 4, 5, 7, 10—12, and 14—18, which were not separately
argued. See App. Br. 9—12.
Issue 3: Did the Examiner err in finding the combination of Fox,
Fischer, and Weaver teaches or suggests “wherein the predictive failure
mechanism determines the historical data pattern from historical load data,
where the historical data pattern includes external and internal temperatures
that are known to cause a failure at a specific loading percentage and where
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the specific loading percentage typically occurs at a specific time of a
week,” as recited in dependent claim 3?
The Examiner relies on paragraphs 118, 119, 127, and 132 of Fischer
to teach or suggest the disputed limitation. Final Act. 4—5; Ans. 18.
Appellants contend the cited discussion in Fisher concerns estimated or
predicted load demand, and the historical load demand is not concerned with
a predicted failure, but rather is used to increase the efficiency of the system.
App. Br. 8. Appellants also contend “Fischer does not teach ‘loading
percentages.’” Id.
We are not persuaded by Appellants’ arguments and agree with the
Examiner’s findings. See Final Act. 4—5; Ans. 18. Fischer describes
The power controller 610 may estimate or predict the present
load demand based on historical information, e.g., historical
load demand information that correlates time, date, and/or
environmental conditions (e.g., ambient temperature) to an
estimated or predicted load demand.
Fischer 1118. Fischer also describes that the power controller 610 can
determine the number of rectifiers to bring online or to take offline based
upon, inter alia, the capacity and efficiency of the rectifiers, the time of day,
date, battery circuit temperature, and/or any other suitable factors. Fischer
11 127, 132. As described above, we disagree Fischer does not teach a
predicted failure. Moreover, we agree with the Examiner that one of
ordinary skill in the art would recognize that the historical data in Fischer
could be represented in a variety of ways, including as recited in claim 3.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of dependent claim 3.
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Issue 4\ Did the Examiner err in finding the combination of Fox,
Fischer, and Weaver teaches or suggests “wherein the action taken to
mitigate the predicted failure comprises reducing a workload on the breakout
system by selecting users that will not be broken out based on collected
usage patterns for the users,” as recited in dependent claim 6?
The Examiner relies on paragraphs 30, 31, 194, 196, 202, 206—210,
and 249-256 of Fox to teach or suggest the disputed limitation. Final Act. 5;
Ans. 18—19. Appellants argue “Fox teaches to use the priority of users or
application types in the breakout decision. However, this does not teach or
suggest to reducing a workload on the breakout system by selecting users
that will not be broken out based on collected usage patterns for the users.
There is no link in Fox for priority of users and usage patterns, and there is
no teaching in Fox of selecting users that will not be broken out.” App. Br.
9.
We are not persuaded by Appellants’ arguments and agree with the
Examiner’s findings. Final Act. 5; Ans. 18—19. Fox describes managing
traffic during high load situations based on decision criteria to offload
certain users and/or application types. Fox 1202. For example, Fox
describes maintaining high priority users on the core network path and/or
high priority application types, such as VoIP.” Id. Fox also describes that
“a high value customer (e.g., a corporate customer or a subscriber with on a
high tariff contract) may be given priority over a low value customer.” Fox
1212. We note Appellants describe “the predictive failure mechanism may
give priority or deference to certain types of customers or certain data types.
The collected usage patterns could contain customer identifiers and their
data usage by data rate and/or type.” Spec. 1125. Accordingly, we agree
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with the Examiner that Fox’s disclosure teaches or suggests the disputed
limitation. We, therefore, sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of dependent claim 6.
Issue 5: Did the Examiner err in finding the combination of Fox,
Fischer, Weaver, and May teaches or suggests “wherein the action taken to
mitigate the predicted failure comprises gracefully ending breakout of user
data of all user equipment on the breakout system and then shutting down
the breakout system,” as recited in dependent claim 8?
The Examiner relies on Figure 2 and column 5, line 48 through
column 6, line 4 of May to teach or suggest the disputed limitation. Final
Act. 13—14. Appellants contend the graceful restart in May does not teach or
suggest the disputed limitation. App. Br. 12.
We are persuaded by Appellants’ arguments. May describes that,
upon failure of an active routing component, a standby routing component
may be started up, which may include performing a graceful/hitless restart.
May, col. 5,1. 48—6,1. 4. The Examiner has not sufficiently shown how
performing a graceful restart teaches or suggests gracefully ending breakout
of user data, or how it teaches or suggests shutting down the breakout
system, as claimed.
However, we observe that the limitation in dispute is a conditional
limitation. Under the broadest reasonable interpretation, the claimed step
“wherein the action taken to mitigate the predicted failure comprises
gracefully ending breakout of user data of all user equipment on the
breakout system and then shutting down the breakout system” is contingent
upon “if there is a predicted failure then taking pre-emptive action to
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mitigate the predicted failure.” If this condition is not satisfied, the disputed
limitation need not be performed nor taught by the prior art. See Ex parte
Schulhauser, No. 2013-007847, 2016 WL 6277792, at *3-6 (PTAB April
28, 2016) (concluding the broadest reasonable interpretation of a claim
encompassed situations in which conditional method steps “need not be
reached”) (precedential); Ex parte Katz, 2011 WL 514314, *4 (BPAI 2011)
(citing In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). Therefore, the broadest reasonable interpretation of the method
encompasses a situation where the method ends when there is no predicted
failure, and therefore no pre-emptive action need be taken to mitigate the
predicted failure. The Examiner determined the prior art would have
rendered this method (described in claim 1) obvious. Final Act. 2-A; Ans.
16—17. We find the conditional limitation recites optional events that may
not occur and, therefore, processing recited as dependent on the condition
need not be performed or taught by the prior art in the obviousness analysis.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of dependent claim 8, and dependent claim 19, which recites the same
limitation. Because our analysis of claims 8 and 19 differs from that of the
Examiner, we designate the affirmance of the rejection a new ground of
rejection pursuant to our authority under 37 C.F.R. § 41.50(b).
DECISION
We affirm the Examiner’s 35 U.S.C. § 103(a) rejection of claims 1—7
and 9-18.
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We affirm the Examiner’s 35 U.S.C. § 103(a) rejection of claims 8
and 19 and designate this affirmance as a new ground of rejection under 37
C.F.R. § 41.50(b).
This Decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . .
shall not be considered final for judicial review.”
Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the examiner, in
which event the proceeding will be remanded to the examiner. The
new ground of rejection is binding upon the examiner unless an
amendment or new Evidence not previously of Record is made which,
in the opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request for
rehearing must address any new ground of rejection and state with
particularity the points believed to have been misapprehended or
overlooked in entering the new ground of rejection and also state all
other grounds upon which rehearing is sought.
37 C.F.R. § 41.50(b). Further guidance on responding to a new ground of
rejection can be found in the Manual of Patent Examining Procedure
§ 1214.01.
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).
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AFFIRMED
37 C.F.R. § 41.501b)
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