Ex Parte FICHTLSCHERER et al

Patent Trial and Appeal Board

Dec 10, 2018

13312011 (P.T.A.B. Dec. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/312,0ll 12/06/2011
27799 7590 12/12/2018
Cozen O'Connor
277 Park A venue, 20th floor
NEW YORK, NY 10172
FIRST NAMED INVENTOR
Martin FICHTLSCHERER
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.
5029-883-314284 2157
EXAMINER
AMRANY,ADI
ART UNIT PAPER NUMBER
2836
NOTIFICATION DATE DELIVERY MODE
12/12/2018 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):
patentsecretary@cozen.com
patentdocket@cozen.com
patentsorter@cozen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN FICHTLSCHERER, PHILIPP LOHDEFINK, and
MARIO MAIER1
Appeal2018-000398
Application 13/312,011
Technology Center 2800
Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and
JENNIFER R. GUPTA, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-16. We have jurisdiction under 35 U.S.C.
§ 6(b ). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to fail-safe switching modules.
E.g., Spec. ,r 1; Claim 1. Claim 1 is reproduced below from page 12 ( Claims
Appendix) of the Appeal Brief:
1 According to the Appellants, the real party in interest is Siemens AG. App.
Br. 2.
Appeal2018-000398
Application 13/312,011
1. A fail-safe switching module comprising:
a first relay having windings and contacts;
a second relay having windings and contacts, the first and second
relays being configured to switch a load via an activator formed
by the first and second relays;
a first temperature sensor arranged on the first relay;
a second temperature sensor arranged on the second relay;
a first deactivator;
a second deactivator, the first relay being arranged in series with
the first deactivator and the second deactivator;
a third deactivator; and
a fourth deactivator, the second relay being arranged in series
with the third deactivator and the fourth deactivator;
wherein the first deactivator and the third deactivator react to the
first temperature sensor and the second deactivator and the fourth
deactivator react to the second temperature sensor, the first,
second, third and fourth deactivators being arranged to switch off
the first and second relays in an event of an overtemperature of
the first relay or the second relay.
REJECTIONS ON APPEAL 2
The claims stand rejected under 35 U.S.C. § 103(a) as follows:
1. Claims 1-10 and 14 over Pullmann I (US 6,628,015 B2, issued
Sept. 30, 2003) and Kelley (US 3,622,849, issued Nov. 23, 1971);
2. Claims 11 and 16 over Pullmann I, Kelley, and Dickoff
(US 6,570,272 B2, issued May 27, 2003); and
3. Claims 12, 13, and 15 over Pullmann I, Kelley, and Pullmann II
(US 7,705,492, issued Apr. 27, 2010).
2 The Examiner withdrew a rejection under 35 U.S.C. § 112, ,r 1. Ans. 2.
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Application 13/312,011
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellants and the Examiner, we determine that
the Appellants have not identified reversible error in the Examiner's
rejections. Accordingly, we affirm the rejections for reasons set forth below,
in the Non-Final Action dated Aug. 4, 2016 ("Act."), and in the Examiner's
Answer. See generally Act. 2-5, 9-16; Ans. 2-9.
The Appellants argue the claims as a group. See App. Br. 8-10. We
select claim 1 as representative, and the remaining claims will stand or fall
with claim 1.
The Examiner finds that Pullmann I teaches each element of claim 1
except that Pullmann I does not expressly disclose that the first and second
sensors are temperature sensors. Act. 10. The Examiner finds that Kelley
teaches a similar fail-safe switching module "comprising a safety feature of
temperature sensors (27, 28) arranged on the switches, whereby temperature
readings cause the 'deactivation' of the switches." Id. at 11 (internal citation
omitted). The Examiner determines that "it would have been obvious to
modify safety sensors taught by Pullmann to include a temperature sensor,
as taught by Kelley .... to make the system more robust by guarding
against additional parameters," such as excessive heat. Id.
The Appellants' first argument on appeal is that the "deactivators" of
Pullmann I identified by the Examiner are not "deactivators," as claimed.
App. Br. 9-10. Namely, the Appellants appear to argue that "deactivators"
as claimed must be "relays," and that Pullmann I's output terminals and
associated contacts are not relays. E.g., id. at 9 ("[T]he contact points (22,
24), which the Examiner asserts corresponds to Appellants' claimed
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Application 13/312,011
deactivators, are merely contacts within the switching devices (10, 12, 14) of
Pullman[ n] I. Applicants[] have disclosed and repeatedly described the
'deactivators' as switch-off devices, i.e., relays."); Reply Br. 4 (arguing that
,r,r 11, 13, and 14 "provide support for interpreting the claimed 'deactivators
(i.e. switching-off devices)' as relays.").
That argument is not persuasive. "During patent examination the
pending claims must be interpreted as broadly as their terms reasonably
allow." In re Zietz, 893 F.2d 319,321 (Fed. Cir. 1989). The portions of the
Specification cited by the Appellants do not establish that a deactivator is
limited to a relay. On the contrary, the Specification discloses a relay as an
example of switching device. E.g., Spec. ,r 14 ("If a switching device, such
as a relay .... " (emphasis added)). The word "relay" appears more than ten
times in claim 1, but nowhere does claim 1 ( or the Specification) limit the
recited "deactivator" to a relay. "[D]uring patent prosecution when claims
can be amended, ambiguities should be recognized, scope and breadth of
language explored, and clarification imposed." Zietz, 893 F.2d at 321. On
this record, and in view of the claim interpretation standard that is applicable
to this proceeding, we are not persuaded that the recited deactivator should
be limited to relays.
Beyond the argument that deactivators must be relays, the Appellants
do not meaningfully dispute or otherwise assert error in the Examiner's
findings that the components of Pullmann I cited by the Examiner
"interrupt[]" a connection between output terminals and cause switching
devices to switch off, thereby falling within the scope of the term
"deactivator." See Ans. 6-7.
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Application 13/312,011
The Appellants also argue that the Examiner has identified only one
component in Pullmann I as corresponding to each of the recited first
deactivator and second deactivator. App. Br. 9-10. For reasons explained
by the Examiner in the Answer, that is incorrect; the Examiner has identified
different components in Pullmann I's Figure 1 as corresponding to the first
and second deactivators. Ans. 8.
In the Reply Brief, the Appellants argue for the first time that the
components in Pullmann I identified by the Examiner as corresponding to
the claimed relays "are not relays." E.g., Reply Br. 4. That argument is
untimely because it was not presented in the Appeal Brief, and the
Appellants have not attempted to show good cause for presenting it for the
first time in the Reply Brief. See 37 C.F.R. § 4I.41(b)(2). Accordingly, that
argument is waived and we decline to consider it.
On this record, we are not persuaded of reversible error in the
Examiner's rejection. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
("[I]t has long been the Board's practice to require an applicant to identify
the alleged error in the examiner's rejections .... ")
CONCLUSION
We AFFIRM the Examiner's rejections of claims 1-16.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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