Ex Parte FICHTLSCHERER et alDownload PDFPatent Trial and Appeal BoardDec 10, 201813312011 (P.T.A.B. Dec. 10, 2018) Copy Citation 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. 2 Appeal2018-000398 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 3 Appeal2018-000398 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. 4 Appeal2018-000398 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 5 Copy with citationCopy as parenthetical citation