Ex Parte Fink et al

Patent Trial and Appeal Board

Aug 26, 2013

11996020 (P.T.A.B. Aug. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DIETER FINK, DETLEF GERHARD,
THOMAS MATSCHULLAT, DETLEF RIEGER, and
REINHARD SESSELMANN
____________________

Appeal 2011-007294
Application 11/996,020
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, JOHN W. MORRISON, and
HYUN J. JUNG, Administrative Patent Judges.

JUNG, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Dieter Fink et al. (Appellants) appeal under 35 U.S.C. § 134 from a
rejection of claims 1-30. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
The claims are directed to method for determining at least one state
variable of an electric arc furnace and an electric arc furnace. Claims 1, 7,
and 21 are independent. Claims 1 and 21, reproduced below, are illustrative
of the claimed subject matter:
1. A method for determining at least one state
variable of an electric arc furnace with at least one
electrode, comprising the steps of:
determining the energy supplied to the
electric arc furnace with the aid of at least one
electric sensor,
measuring structure-borne noise oscillations
on the electric arc furnace, and
determining the at least one state variable
with the aid of a transfer function which is
determined by evaluation of the measured
structure-borne noise oscillations and by
evaluation of measured data of the at least one
electric sensor.

21. An electric arc furnace comprising:
a furnace casing,
at least one electrode,
a current lead for each electrode,
at least one electric sensor on a current lead
and at least one structure-borne noise sensor for
sensing structure-borne noise oscillations is
provided on the wall of the furnace casing.

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THE REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Maes
Benson
Klippel
Fera
US 4,559,630
US 5,051,916
US 5,438,625
US 6,405,147 B1
Dec. 17, 1985
Sep. 24, 1991
Aug. 1, 1995
Jun. 11, 2002
Stendera
Bogdahn
Fritz
Ezaki
Sesselmann
US 2002/0040623 A1
US 2005/0069015 A1
CA 2,129,407
JP 07310080 A
DE 19801295
Apr. 11, 2002
Mar. 31, 2005
May 2, 1995
Nov. 28, 1995
Jul. 22, 1999

THE REJECTIONS
The Appellants seek our review of the following rejections:
Claims 1, 2, 4, 5, 14-18, 21, 22, 24-26, and 30 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Fritz and Stendera.
Claims 3 and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Fritz, Stendera, and Ezaki.
Claims 5, 6, 8, 9, 19, and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Fritz, Stendera, and Sesselmann.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Fritz, Stendera, and Klippel.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Fritz, Stendera, and Benson.
Claims 11-13 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Fritz, Stendera, Benson, and Fera.
Claim 27 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Fritz, Stendera, and Bogdahn.
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Claims 28 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Fritz, Stendera, Bogdahn, and Maes.

ANALYSIS
Claims 1-20
For independent claims 1 and 14, the Examiner finds that “Fritz
discloses a method for determining at least one state variable of an electric
arc furnace . . . comprising the step of . . . determining the at least one state
variable with the aid of a transfer function which is determined by
evaluation of the measured structure-borne noise oscillations.” Ans. 4
(citing Fritz 8, ll. 1-5, and 9, ll. 8-10). The Examiner also finds that Fritz
fails to disclose “determining the energy supplied to the electric arc furnace
with the aid of at least one electric sensor and by evaluation of measured
data of the at least one electric sensor” but cites Stendera for disclosing such
a determining step. Id. (citing Stendera, paras. [0029]-[0030] and fig. 1).
The Examiner concludes that “[i]t would have been obvious . . . to utilize in
Fritz . . . determining the energy supplied to the electric arc furnace with the
aid of at least one electric sensor and by evaluation of measured data of the
at least one electric sensor, as taught by Stendera . . . for the purpose of
maintaining optimum slag foam levels by continually monitoring furnace
parameters.” Id. at 4-5.
For independent claims 1 and 14, the Appellants argue that the
“Examiner failed to show that Fritz discloses at least an equivalent method
step” because “the Examiner failed to explain how a transfer function can be
determined in the arrangement of Fritz when Fritz explicitly does not teach
to measure the excitation signals in the embodiment using sound level
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measuring.” Br. 5-6. The Appellants also argue “that Fritz discloses an
alternative embodiment in which the electric operational parameters of the
electric arc furnace are used for level measuring” but that “Fritz
distinguishes this embodiment from the sound level measuring
embodiment.” Id. The Appellants thus assert that “Fritz neither discloses or
suggests to combine the embodiment using sound level measuring with the
embodiment using electric operational parameters to determine a transfer
function by evaluation of the measured structure-borne noise oscillations and
by evaluation of measured data of the at least one electric sensor.” Id. at 6-
7. The Appellants state that a “transfer function is generally known to a
person skilled in the art as the function that transforms an input signal into
an output signal” and that the “present specification is in line with this
general interpretation of the term ‘transfer function’.” Id. at 7 (citing Spec.
18).
The Examiner responds that “Fritz discloses at least an equivalent
method step as claimed by the Appellants, such as ‘measuring structure-
borne noise oscillations on the electric arc furnace’.” Ans. 13 (citing Fritz 7-
8). The Examiner also states that Fritz discloses “an equivalent method step
of transfer function as described by the Appellants, ‘[a] transfer function is
generally known to a person skill in the art as the function that transforms as
input signal into an output signal’” and that, in Fritz, “the input is the level
measurement, Pmeas, with a preadjusted reference harmonic spectrum, Pset,
and the output is Pcorr.” The Examiner further states that pages 7-8 of Fritz
“teach to measure the excitation signal in the embodiment using sound level
measuring.” Ans. 14.
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The Appellants’ arguments are not persuasive. Pages 7-8 of Fritz
disclose “a level measuring means 22 . . . designed as a microphone, which
takes up the noise produced by the electric arc 4 . . . transmitting it to a
control system 24 as a measuring signal.” Fritz further discloses that the
“control system . . . in which . . . the noise level Pmeas within a frequency
range characteristic of slag forming [is] detected;” that “Pmeas subsequently is
compared with a reference noise level Pset already known for the electric arc
furnace 1 within the same frequency range;” and that the “result of the
comparison of the reference noise level Pset with the measured noise level
Pmeas is transmitted as a correcting factor Pcorr to a controller 26, which, in
turn, automatically takes the measures that are required to raise or lower the
layer height 10 of the foamed slag 9 to a predetermined value.” Fritz 8.
Thus, Fritz discloses, by a preponderance of the evidence, a transfer function
or a “function that transforms an input signal into an output signal,” as
asserted by the Appellants. Specifically, in Fritz, an input Pmeas is
transformed into an output Pcorr through a comparison between the input
Pmeas and a reference value Pset. See Fritz 7-8.
Also, the Examiner need not find a suggestion in Fritz “to combine
the embodiment using sound level measuring with the embodiment using
electric operational parameters,” as asserted by the Appellants. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (Rejecting the rigid
requirement of a teaching, suggestion or motivation to combine known
elements in order to show obviousness, but nonetheless making clear that
“rejections on obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.”)
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(citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The Examiner
provides an articulated reasoning “of maintaining optimum slag foam levels
by continually monitoring furnace parameters” based on the Examiner’s
factual findings from Fritz and Stendera. See Ans. 4-5.
Moreover, Fritz teaches using a combination of several inputs. See
Ans. 15 and Fritz 9 (stating “the measurement/control of the height of the
foamed slag also may be [a]ffected by a combination of several variants (e.g.
noise level measuring and current harmonic wave analysis)”).
The Appellants further argue that “Fritz discloses to measure the noise
and compare its spectrum with a reference spectrum” and thus “in this
embodiment, no transfer function is determined.” Br. 7 (citing Fritz, page 8,
lines 1-10). The Appellants also argue that “Fritz discloses to determine
from the electrical operational parameters of the electric arc furnace a
harmonic spectrum which again is used with a reference spectrum to
determine a correction factor” and “this alternative embodiment does not use
the acoustic measurement” so “no transfer function is determined.” Br. 7
(citing Fritz, page 8, last para. to page 9, first para.).
The Appellants’ argument is not persuasive. Fritz discloses a transfer
function or how its input signal Pmeas is transformed into an output signal
Pcorr, as discussed supra, for its embodiment that uses structure-borne noise
oscillations for a level measuring means 22. See also Fritz 7-8. Fritz
compares input Pmeas to a reference Pset to form the output Pcorr. Thus, Fritz
has determined its transfer function to be a comparison of the input Pmeas to a
reference Pset to form the output Pcorr. See id. Fritz also discloses a variant
where “voltage (V) and intensity (I) of the electric arc furnace are applied
for level measuring” and an “evaluation unit 25 incorporates a special DSP
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(digital system processor) transformer [for] rapidly detecting the effective
values of the electric operational parameters and a current harmonic
spectrum.” Fritz 8-9. The “harmonic spectrum or a partial spectrum based
on the former . . . serves as a measurable variable Pmeas [that] is subsequently
used, with a preadjusted reference harmonic spectrum Pset to generate the
correction factor Pcorr for the controller 26 – in a manner similar to sound
level measuring.” Id. at 9. Thus, Fritz has determined that, for the variant
using voltage V and intensity I, the transfer function is a comparison of the
input Pmeas to a reference Pset to form the output Pcorr, in a manner similar to
sound level measuring. See id. Therefore, Fritz discloses by a
preponderance of the evidence a transfer function that is determined by
evaluation of measured structure-borne noise oscillations or by evaluation of
voltage and intensity.
The Appellants argue that “Fritz fails to disclose a combination of the
first embodiment which uses the acoustic measurements and the alternative
embodiment which uses the electric furnace parameters as claimed.” Br. 7.
In particular, the Appellants argue that “Fritz merely states that the
measurement/control of the height of the foamed slag also may be [a]ffected
by a combination of several variants (e.g., noise level measurement and
current harmonic wave analysis)” but that “it is completely unclear how such
a combination would effectively be conducted let alone whether such a
combination would include the determination of a transfer function.” Id.
(citing Fritz, page 9, first full paragraph).
As discussed supra, Fritz discloses the determination of a transfer
function for an embodiment using sound level measurement and a variant
using voltage and intensity. Also, the Examiner finds that Stendera discloses
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determining the energy supplied to an electric arc furnace with the aid of at
least one electric sensor. Ans. 4 (citing Stendera, paras. [0029]-[0030]).
Paragraphs [0029]-[0030] of Stendera teach “an electrical system including
one or more sensors 20 connected, for example, . . . to one or more
electrodes” and “can include a detector 22, e.g. a foaming indicator, in
electrical communication 21with sensor 20” which is “capable of generating
a detectable signal representative of the nature or quality of the slag as, for
example, generating a detectable signal representative of the intensity of the
current passing through the arc.” The Examiner further finds that Fritz
discloses that the control of the height of foamed slag may be affected by
noise level measuring and current harmonic wave analysis. Ans. 15. What a
reference teaches a person of ordinary skill is not limited to what a reference
specifically “talks about” or what is specifically “mentioned” or “written” in
the reference. Syntex (U.S.A.) LLC v. Apotex, Inc. 407 F.3d 1371, 1380
(Fed. Cir. 2005). “[A] person of ordinary skill is also a person of ordinary
creativity, not an automaton.” KSR v. Teleflex, 550 U.S. 398, 421 (2007).
Although Fritz does not specifically describe an embodiment using both
structure-borne noise oscillations and data from an electrical sensor, Fritz
does indicate controlling slag height can be done with both noise level
measuring and current harmonic wave analysis. See Fritz 9. The Appellants
do not show why the Examiner’s proposed combination of Fritz and
Stendera would be beyond the level of ordinary skill. Thus, Appellants’
argument is not persuasive.
Citing an Advisory Action wherein the Examiner stated that “the
evaluation unit 25 incorporates a special DSP [which] is equivalent or the
same as the transfer function,” the Appellant argues that a “DSP whether
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special or not is not equivalent or the same as a transfer function.” Br. 8.
Although a DSP may not be the equivalent of a transfer function, pages 8-9
of Fritz discloses that its “DSP transformer” rapidly detects electrical
operational parameters and a current harmonic spectrum to determine Pcorr to
aid in executing the transfer function. Also, the Examiner’s rejection does
not rely on finding the DSP of Fritz to be a transfer function. Therefore, the
Appellants’ argument regarding the Advisory Action does not indicate error
in the Examiner’s rejection.
The Appellants argue that “Stendera merely measures the electric
parameters of the electric arc furnace to control slag foaming” and “does not
teach to determine a transfer function let alone to determine such a function
from the measured structure-borne noise oscillations and data of the at least
one electric sensor as claimed.” Br. 8. However, as discussed supra, the
Examiner finds that Fritz discloses determining a transfer function, and the
Examiner’s proposed combination of Fritz and Stendera includes a transfer
function determined by evaluation of the measured structure-borne noise
oscillations and by evaluation of measured data of at least one electric
sensor. Thus, the Appellants’ arguments regarding Stendera alone are not
persuasive.
The Appellants contend that “the Examiner failed to show that [it] is
obvious to use the electric parameters as an input parameter and the acoustic
measurements as an output parameter for determination of a transfer
function.” Br. 8. However, claims 1 and 14 do not require “electric
parameters as an input parameter and the acoustic measurements as an
output parameter for determination of a transfer function.” Thus, the
argument is not persuasive.
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The Appellants “submit that the dependent [c]laims 2-13 and 15-20
are allowable to the extent of the independent [c]laim [1 or 14] to which they
refer, respectively.” Br. 8. Accordingly, for the reasons supra, we sustain
the Examiner’s rejections under 35 U.S.C. § 103(a) of: claims 1, 2, 4, 5, and
14-18 as unpatentable over Fritz and Stendera; claim 3 as unpatentable over
Fritz, Stendera, and Ezaki; claims 5, 6, 8, 9, 19, and 20 as unpatentable over
Fritz, Stendera, and Sesselmann; claim 7 as unpatentable over Fritz,
Stendera, and Klippel; claim 10 as unpatentable over Fritz, Stendera, and
Benson; and claims 11-13 as unpatentable over Fritz, Stendera, Benson, and
Fera.
Claims 21-30
For independent claim 21, the Examiner finds that “Fritz discloses an
electric arc furnace 1 (Fig. 1) comprising . . . at least one structure-borne
noise sensor 22 (Fig. 1) for sensing borne noise oscillations [that] is
provided on the wall of the furnace casing except for the at least one electric
sensor on a current lead and an electric sensor is provided for each
electrode.” Ans. 5.
The Appellants argue that “Fritz does not disclose to provide at least
one structure-borne noise sensor for sensing structure-borne noise
oscillations on the wall of the furnace casing” and that “Fritz specifically
teaches to incorporate a level measuring means 22 in the off gas duct of the
furnace.” Br. 9 (citing Fritz, page 7, last para.). The Appellants also argue
that “Fritz discloses to arrange the microphone outside the electric furnace at
a lateral distance therefrom.” Id. (citing Fritz, page 8, last full para.).
The Examiner responds that Fritz discloses that “the level measuring
means is installed in the offgas seizure means of the electric arc furnace or in
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the furnace vessel above the foamed slag.” Ans. 17 (citing Fritz 5, last full
para.) (emphasis omitted). The Examiner also further finds that Fritz
discloses “[i]nstead of the microphone 22, a high-temperature measuring
means . . . could be installed in the offgas duct 21 or at any suitable point at
the furnace” Id. (citing Fritz 8, last full para.) (emphasis omitted).
The Appellants’ arguments are not persuasive. Figure 1 of Fritz
shows a level measuring means 22 on an off gas duct 21 of the arc furnace 1.
The figure also shows that the off gas duct 21 is part of the wall of the arc
furnace 1. Fritz states that “[i]n this off gas duct, there is incorporated a
level measuring means 22, which in the exemplary embodiment illustrated,
is designed as a microphone, which takes up the noise produced by the
electric arc 4 (the sound waves being represented by 23), transmitting it to a
control system 24 as a measuring signal.” Fritz 7-8. Moreover, the
Examiner finds that Fritz discloses that “the level measuring means is
installed . . . in the furnace vessel above the foamed slag.” See Ans. 17 and
Fritz at 5. Thus, Fritz by a preponderance of the evidence supports the
Examiner’s finding that Fritz discloses at least one structure-borne noise
sensor for sensing structure-borne noise oscillations on the wall of the
furnace casing.
The Appellants argue that “dependent [c]laims 22-30 are allowable at
least to the extent of the independent [c]laim to which they refer,
respectively.” Br. 9. Accordingly, for the reasons supra, we sustain the
Examiner’s rejections under 35 U.S.C. § 103(a) of: claims 21, 22, 24-26, and
30 as unpatentable over Fritz and Stendera; claim 23 as unpatentable over
Fritz, Stendera, and Ezaki; claim 27 as unpatentable over Fritz, Stendera,
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and Bogdahn; and claims 28 and 29 as unpatentable over Fritz, Stendera,
Bogdahn, and Maes.

DECISION
The Examiner’s rejection of claims 1, 2, 4, 5, 14-18, 21, 22, 24-26,
and 30 under 35 U.S.C. § 103(a) as unpatentable over Fritz and Stendera is
affirmed.
The Examiner’s rejection of claims 3 and 23 under 35 U.S.C. § 103(a)
as unpatentable over Fritz, Stendera, and Ezaki is affirmed.
The Examiner’s rejection of claims 5, 6, 8, 9, 19, and 20 under 35
U.S.C. § 103(a) as unpatentable over Fritz, Stendera, and Sesselmann is
affirmed.
The Examiner’s rejection of claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Fritz, Stendera, and Klippel is affirmed.
The Examiner’s rejection of claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Fritz, Stendera, and Benson is affirmed.
The Examiner’s rejection of claims 11-13 under 35 U.S.C. § 103(a) as
unpatentable over Fritz, Stendera, Benson, and Fera is affirmed.
The Examiner’s rejection of claim 27 under 35 U.S.C. § 103(a) as
unpatentable over Fritz, Stendera, and Bogdahn is affirmed.
The Examiner’s rejection of claims 28 and 29 under 35 U.S.C. §
103(a) as unpatentable over Fritz, Stendera, Bogdahn, and Maes is affirmed.

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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