Ex Parte Kantzes et al

Patent Trials and Appeals Board

Feb 19, 2019

13191614 - (D) (P.T.A.B. Feb. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/191,614 07/27/2011
117849 7590 02/21/2019
Kelly, Holt & Christenson, P.L.L.C.
141 West 1st Street, Suite 100
Waconia, MN 55387
FIRST NAMED INVENTOR
Christopher P. Kantzes
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.
P32.12-0079 4437
EXAMINER
BROCK, ROBERTS
ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
02/21/2019 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):
wmalherek@khcip.com
patents@khcip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER P. KANTZES, BRAD N. MATHIOWETZ,
TODD M. TOEPKE, KUN YANG, and ADAME. LUND
Appeal2017-010830
Application 13/191,614
Technology Center 2100
Before ELENI MANTIS MERCADER, JOHN P. PINKERTON, and
CARLL. SILVERMAN, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-5, 7-9, and 12-14, which constitute
all of the claims pending in this application. Claims 6, 10, and 11 are
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Fisher-Rosemount Systems, Inc. as the real party in
interest. Br. 3.
Appeal2017-010830
Application 13/191,614
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention is generally described as
follows:
A handheld field maintenance tool and associated method
are provided. The handheld field maintenance tool includes a
process communication module configured to communicate in
accordance with a process industry communication standard. A
controller is coupled to the process communication module and
is configured to access a device description relative to a selected
simulated field device. A user interface is configured to receive
a user input relative to a parameter of the simulated field device.
The controller generates communication through the process
communication module to simulate the selected field device
based on the user input.
Spec. ,r 4. 2
Claim 1 is representative and reproduced below (with the disputed
limitation emphasized):
1. A handheld field maintenance tool comprising:
a user interface configured to receive a user input
selecting at least one field device to simulate and a simulated
output value for each simulated field device:;
a process communication module configured to
communicate on a process communication loop in accordance
with a process industry communication standard;
a controller coupled to the process communication
module, the controller being configured to generate
communication through the process communication module to
2 Our Decision refers to the Final Office Action mailed Nov. 30, 2016
("Final Act."), Appellants' Appeal Brief filed Mar. 8, 2017 ("Br."), the
Examiner's Answer mailed Jul. 19, 2017 ("Ans."), and the original
Specification filed July 27, 2011 ("Spec.").
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Application 13/191,614
provide the simulated output value for each simulated field
device over the process communication loop based on the user
input.
Rejections on Appeal
Claims 1, 2, 4, 7-9, and 12-14 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Lefebvre (US 2004/0193287 Al;
published Sept. 30, 2004) and Foundation Fieldbus Blocks Manual, Fisher-
Rosemount, 00809-0100-4783, Rev.BA (2000) ("Rosemount").
Claims 3 and 5 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Lefebvre, Rosemount, and Zielinski et al. (US 7,426,452
B 1; issued Sept. 16, 2008) ("Zielinski").
ANALYSIS
Rejection of Claims 1, 2, 4, 7-9, and 12-14 under§ 103(a)
We have reviewed the Examiner's rejection in light of Appellants'
arguments that the Examiner erred. See Br. 6-17. We have also reviewed
the Examiner's detailed and comprehensive response to Appellants'
arguments. See Ans. 2-15. After considering Appellants' arguments, the
Examiner's findings of fact and conclusions of law, the applied prior art, and
Appellants' claims and Specification disclosures, we determine that
Appellants' arguments are insufficient to identify reversible error in the
Examiner's obviousness rejections. In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011 ). Appellants did not file a Reply Brief to address the Examiner's
findings in the Answer. We determine a preponderance of the evidence
supports the Examiner's findings of fact with respect to the Examiner's
conclusion that Appellants' claims on appeal are unpatentable for
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Application 13/191,614
obviousness over the applied prior art. Therefore, we sustain the Examiner's
rejections based on the findings of fact, conclusions of law, and reasons set
forth by the Examiner in the Final Office Action from which this appeal is
taken (Final Act. 3-12) and in the Examiner's Answer in response to the
Appeal Brief ( Ans. 2-15), which we adopt as our own, and incorporate
herein, without repetition. We add the following for emphasis.
As the Examiner finds, throughout their Brief, Appellants refer to
portions of the disclosures of Lefebvre and Rosemount, and assert that these
portions do not teach a claim limitation, but Appellants provide no
explanation of why the reference fails to teach or suggest the limitation. See
Ans. 3-5 ( re gar ding claim 1), 9 (regarding claims 7 and 13), 11-12
(regarding claim 8), 14 (regarding claim 14). For example, regarding claim
1, the Examiner finds that Appellants' refer to portions of paragraphs 10, 11,
and 14 of Lefebvre, and allege they do not teach or suggest the disputed
limitation of claim 1, but Appellants provide "no explanation of the
distinction" between the Lefebvre disclosure and the claimed limitation. Id.
at 3. We are not persuaded by these assertions of Appellants' regarding the
disputed limitations of claims 1, 7, 8, 13, and 14 because the assertions are
conclusory and fail to provide any specific reasoning or explanation of why
Appellants' contend the Examiner's findings are in error. In other words,
Appellants fail to rebut the Examiner's findings or otherwise address the
findings with any particularity. Therefore, Appellants' assertions provide no
basis to reject the Examiner's findings with respect to these limitations. See
37 C.F.R. § 4I.37(c)(l)(iv) ("A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim"); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
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(holding that "the Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art").
Regarding claim 1, for several additional reasons, we are not
persuaded by Appellants' arguments that the combination of Lefebvre and
Rosemount fails to teach or suggest a controller "to provide the simulated
output value for each simulated field device over the process communication
loop based on the user input." Br. 2-8. First, we agree with the Examiner's
findings that Lefebvre teaches simulating actual field devices to provide
simulated output values because (1) "Lefebvre is using a 'copy' of the field
device software so that another device may 'simulate' the actual device" and
(2) Lefebvre teaches "the simulating device is using the actual field device
software program and it will generate output in the same way." Ans. 5-7
(citing Lefebvre ,r,r 10, 11, 14). Second, the Examiner finds, and we agree,
that paragraph 34 of Lefebvre teaches or suggests the claimed
"communication loop" because it "discloses two communication loops, i.e,
the COM-DTM and 'data bus D. "' Id. at 3--4. Third, the Examiner finds,
and we agree, that Rosemount teaches or suggests "a simulated output value
for each simulated field device" because Rosemount's disclosure regarding
the Fieldbus protocol "supports the setting of an output in the 'manual
mode' for simulation," and "it would [have] been obvious to add the manual
simulation setting to Lefebvre['s] user interface to utilize the functionality
present in [the] Fieldbus protocol devices of Lefebvre." Id. at 8 (citing
Lefebvre ,r 8); Final Act. 4--5 ( citing Rosemount p. 2-1 ,r 2).
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Regarding independent claim 8, Appellants make similar assertions
and arguments regarding certain comparable limitations of claim 8 as they
do with respect to claim 1. For the same reasons we are not persuaded by
Appellants' arguments and assertions with respect to claim 1, we are not
persuaded by the same or similar arguments regarding the comparable
limitations of claim 8. In addition, we are not persuaded by Appellants'
arguments that Lefebvre does not teach or suggest "receiving user input
relative to at least one process variable indicated by the device description to
be a variable measurable by the simulated field device to provide as an
output." Br. 15-16. Instead, we agree with the Examiner that paragraph 10
of Lefebvre "demonstrates that an input 'relative to' a variable (i.e. TotSum)
is received and an output occurs for this variable (i.e. 'outputs the desired
value')." Ans. 13. We also are not persuaded by Appellants' argument that
"the teachings of Lefebvre would become nonsensical if the virtual interface
were modified to be able to receive user input process variable information"
because "the results could be disastrous as process variable readings ...
[could] be inaccurate." Br. 16. The Examiner finds, and we agree, that
Appellants' position is unsupported by the claims and that, in any event,
Lefebvre discloses allowing users to treat the simulated field devices as
actual field devices-including "receiving input and providing output of
process variables (e.g. TotSum)." Ans. 13-14 (citing Lefebvre ,r,r 10, 14).
Accordingly, we sustain the Examiner's rejection of independent
claims 1 and 8, as well as dependent claims 7, 13, and 14, and claims 2, 4, 9,
and 12, which are not separately substantively argued.
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Rejection of Claims 3 and 5 under§ 103(a)
As indicated above, the Examiner rejects claims 3 and 5 for
obviousness over the combination of Lefebvre, Rosemount, and Zielinski.
Final Act. 12-13. Regarding claim 3, the Examiner finds that Zielinski
teaches "wherein the process communication module is a wireless process
communication module" because Zielinski discloses that "[a] dual-protocol
handheld field maintenance tool is provided with radio frequency
communication." Id. at 12 (citing Zielinski, Abstract) (emphasis omitted).
Regarding claim 5, the Examiner finds that Zielinski teaches ( 1) "at least one
secondary wireless communication module coupled to the controller" (id. at
13 (citing Zielinski, Abstract)) and (2) "wherein the controller is configured
to access the device description using the at least one secondary wireless
communication protocol module" (id. (citing Zielinski, 3:62---67, 4:5-8)).
Appellants do not dispute these findings. Instead, Appellants argue that the
proposed combination of Lefebvre and Zielinski would undermine or defeat
a stated purpose of Lefebvre because "it would attempt to modify the
operating program to communicate with the field device and such a
communication would frustrate, if not completely defeat, the purpose of the
offline parametering ( e.g., obtaining device description information while
the field device is offline or performing uninterruptable functions)." Br. 18.
Appellants also argue that the Examiner has not provided a valid reason for
the proposed modification because the Examiner "does not identify any
teachings that explain why the offline parametering of a field device of
Lefebvre would need to be improved (i.e., that they are somehow
deficient)." Id. at 18-19.
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We are not persuaded by Appellants' arguments. First, as the
Examiner explains in the Answer, the rejection does not rely on "tool 22
communicating with field devices 20 of Zielinski," as Appellants' argue, but
on the "wireless interfaces" of Zielinski and the controller and simulated
field devices of Lefebvre. Ans. 15. In that regard, the Examiner finds, and
we agree, that "[e]ach of the Zielinski citations in the rejection clearly
demonstrate[s] that the wireless interfaces of Zielinski are relied upon." Id.
at 16-1 7. Thus, the Examiner finds, and we agree, that combining the
wireless interfaces (used in the controller and field devices) of Zielinski with
the controllers and field devices of Lefebvre "would not render the devices
or methods of Lefebvre inoperable," as Appellants contend. Id. at 17.
Second, contrary to Appellants' arguments, the Examiner finds, and
we agree, that the Examiner provides a valid reason for the proposed
modification that improves Zielinski. Id. at 18. Specifically, the Examiner
finds that "the modification would provide a known technique (i.e. wireless
communication) from the same field of endeavor (i.e. field devices) to
provide a predictable result of 'convenient interaction' [the 'convenient
interaction' being explicitly recognized and disclosed by Zielinski]." Id.;
see also Final Act. 12-14 ( citing Zielinski 2: 59-60 ("improved handheld
field maintenance tool facilitates convenient interaction with individual field
devices"). We agree with the Examiner's stated rationale for combining the
references and find it constitutes articulated reasoning with some rational
underpinning for the proposed combination in accordance with KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007).
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Thus, we sustain the Examiner's rejection of claims 3 and 5 under
§ 103(a). 3
DECISION
We affirm the Examiner's decision rejecting claims 1-5, 7-9, and 12-
14 under 35 U.S.C. § 103(a).
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). See 37
C.F.R. § 41.50(±).
AFFIRMED
3 Appellants also argue claims 3 and 5 are allowable based on their
dependence on claim 1 because "Zielinski does not remedy the deficit of
Lefebvre and Rosemount in regards to independent claim 1." Br. 19.
Because we have determined, as discussed supra, that there is no "deficit" in
the combined teachings of Lefebvre and Rosemount concerning claim 1, we
are not persuaded by Appellants' argument.
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