Ex Parte Lawry et alDownload PDFPatent Trial and Appeal BoardOct 31, 201713975903 (P.T.A.B. Oct. 31, 2017) Copy Citation 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. 13/975,903 08/26/2013 Brian Douglas Lawry 262214-2 (552-0188US) 6295 91959 7590 11/02/2017 (TF, FtPO- Transnnrtatinn- The .Small Patent T aw Omim EXAMINER 901 Main Avenue 3rd Floor ROBERSON, JASON R Norwalk, CT 06851 ART UNIT PAPER NUMBER 3669 NOTIFICATION DATE DELIVERY MODE 11/02/2017 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): gpo.mail@ge.com marie.gerrie@ge.com lori.E.rooney@ge.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN DOUGLAS LAWRY and JARED KLINEMAN COOPER Appeal 2016-008619 Application 13/975,903 Technology Center 3600 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE General Electric Company (“Appellant”)1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—15. See Appeal Br. 6. Claims 16—20 have been withdrawn. See id. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 General Electric Company is the applicant, as provided in 37 C.F.R. § 1.46, and is identified as the real party in interest. Appeal Br. 4. Appeal 2016-008619 Application 13/975,903 CLAIMED SUBJECT MATTER Appellant’s disclosed invention relates to “systems and methods of controlling at least one of tractive or braking efforts of a vehicle system having a plurality of linked vehicles.” Spec. 12. Claims 1 and 11 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A system comprising: an effort-monitoring system configured to control vehicle tractive efforts (TEs) individually produced by plural propulsion-generating vehicles in a vehicle system to propel the vehicle system along a route, wherein the effort-monitoring system is configured to control each of the propulsion generating vehicles to provide a respective prescribed TE, the vehicle system operating at a system TE when each of the propulsion-generating vehicles is providing the respective prescribed TE, wherein the prescribed TEs are determined by at least one of an operating plan of the vehicle system or a first regulation that limits TE or ground speed of the vehicle system; wherein, in response to determining that a first vehicle of the plural propulsion-generating vehicles is providing a reduced TE that is less than the prescribed TE of the first vehicle, the effort-monitoring system is configured to control a second vehicle of the plural propulsion-generating vehicles to exceed the prescribed TE of the second vehicle so that the vehicle system is operating at or below the system TE. The Examiner relied on the following evidence in rejecting the claims EVIDENCE on appeal: McSparran Brooks US 3,593,076 US 2008/0201028 A1 July 13, 1971 Aug. 21,2008 2 Appeal 2016-008619 Application 13/975,903 REJECTIONS The following rejections are before us for review:2 I. Claims 1, 2, 4—9, 11, 12, 14, and 15 stand rejected under 35 U.S.C. § 103 as being unpatentable over Brooks. Final Act. 6-14. II. Claims 3, 10, and 13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Brooks and McSparran. Id. at 14—16. ANALYSIS Rejection I— Claims 1, 2, 4 9, 11, 12, 14, and 15 as unpatentable over Brooks In contesting the rejection of independent claims 1 and 11, Appellant argues that the Examiner failed to establish that Brooks renders obvious the claimed subject matter. See Appeal Br. 19—20; Reply Br. 1—5. For the reasons that follow, Appellant does not apprise us of error in the Examiner’s factual findings as to the disclosure of Brooks, which are supported by a preponderance of the evidence, or the Examiner’s reasonable conclusion of obviousness, which is rationally articulated. In rejecting the independent claims, the Examiner found that Brooks discloses a system, substantially as claimed, except that “Brooks does not specifically disclose the following: the effort-monitoring system is configured to control a second vehicle of the plural propulsion-generating vehicles to exceed the prescribed TE of the second vehicle so that the 2 We note that a rejection of claims 1 and 11 under 35 U.S.C. § 102(a)(1) as anticipated by Brooks has been withdrawn by the Examiner and thus is not before us for review as part of the instant appeal. Ans. 2. 3 Appeal 2016-008619 Application 13/975,903 vehicle system is operating at or below the system TE.” Final Act. 7—8 (emphasis omitted); see also id. at 14 (the Examiner, in rejecting claim 11, relying on the same findings and reasoning articulated with respect to claim 1). However, the Examiner cited various teachings in Brooks, and concluded that, given these teachings, it would have been obvious to have configured the system of Brooks to control a second vehicle of the plural propulsion-generating vehicles to exceed the prescribed TE of the second vehicle in response to determining that a first vehicle is providing a reduced TE less than the prescribed TE, with the motivation of providing a locomotive consist that meets the single prescribed tractive effort while reducing emissions. Further, the results would have been predictable. Id. at 8. The Examiner clarifies in the Answer that Brooks discloses “automatically operating the locomotives at different motoring or braking powers from the operator[-] submitted notch command independently of the coupled power settings, according to a power operating plan.” Ans. 7 (citing Brooks, Abstract, 1131). The Examiner explains that “Brooks further describes an optimizer that generates optimized power operating plans by determining operating characteristics (speed, fuel, emissions, etc.) and determines power setting controls for locomotives based on a determined optimized value.” Id. According to the Examiner, “inputs are then sent to the master controller, remote control locomotive controller, or a distributed power drive controller,” which “includes changing the notch setting for a locomotive above or below the operator[-]prescribed notch command in order to meet optimized fuel consumption needs, emissions levels, or the like.” Id. (emphasis omitted) (citing Brooks Tflf 169, 170, 182—89). 4 Appeal 2016-008619 Application 13/975,903 In other words, the Examiner’s position is that Brooks discloses controlling a locomotive to exceed a prescribed TE (i.e., to increase horsepower), and also discloses determining that a locomotive is providing a reduced TE (i.e., loss of horsepower), but that “Brooks does not specifically disclose controlling a second vehicle to exceed that vehicle’s prescribed TE in response to determining that a first vehicle is providing a reduced TE less than the prescribed TE.” Id. at 8 (boldface omitted). However, the Examiner also points out that Brooks “discloses autonomously performing a ‘re-planning’ of a power optimization plan, due to loss of horsepower due to equipment failure.” Ans. 9 (citing Brooks 193). Brooks also suggests a desire to maintain a planned arrival time. See, e.g., Brooks 93 (“the exemplary embodiment of the present invention can . . . alert the operator and dispatcher how much of the time can be made up”). The Examiner determines that “it is reasonable to assume that one of ordinary skill would have conceived of having a second locomotive in the vehicle system increase its power output in response to a loss of horsepower within a locomotive in order to maintain the system operating at or below a system TE.” Id. According to the Examiner, “[t]he results of this responsive action would clearly be predictable,” and “motivation to do so includes accommodating for the resulting delay at expense of increased fuel use).” Id. (citing Brooks 193). Appellant argues that “Brooks describes re-planning based on [a] loss of horsepower when it is desired to change the original objectives,” and also “describes modifying a plan while keeping the same trip objectives, but loss of horsepower due to equipment failure is not one of the triggers for merely modifying an existing plan.” Reply Br. 2 (citing Brooks 92—94); see id. 5 Appeal 2016-008619 Application 13/975,903 at 3 (asserting that “Brooks mentions increasing horsepower for reducing emission output and noise, but does not describe or suggest increasing horsepower in a locomotive in response to a loss of horsepower due to an equipment failure in another locomotive”). Although we appreciate Appellant’s observation that Brooks does not explicitly disclose that the horsepower increase for one locomotive is in response to determining a loss of horsepower in a second locomotive, merely asserting a difference in a single reference is insufficient to identify error in the conclusion of an obviousness rejection (as opposed to an anticipation rejection). Appellant’s argument amounts to a contention that the claimed invention would not have been obvious to one of ordinary skill in the art at the time of the invention because Brooks does not explicitly disclose every limitation recited in the claim. However, as discussed above, the Examiner acknowledged that Brooks does not explicitly disclose the disputed limitation. Instead, the Examiner concluded that, given the various teachings of Brooks, it would have been obvious to one of ordinary skill in the art to configure the system of Brooks to increase the power output of a second locomotive (i.e., to exceed a prescribed TE) in response to a loss of horsepower for a first locomotive (i.e., a reduced TE) in order to predictably result in the overall system TE being maintained. See Final Act. 8; Ans. 9 (explaining that a “motivation . . . includes accommodating for the resulting delay at expense of increased fuel use”) (citing Brooks 193). In this regard, Appellant does not persuasively refute the Examiner’s position. Namely, Appellant has not provided any factual evidence or persuasive technical reasoning to explain why the Examiner’s proposed modification of Brooks would yield anything other than a predictable result, 6 Appeal 2016-008619 Application 13/975,903 or that doing so would be somehow beyond the level of ordinary skill in the art. See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). We have considered Appellant’s other arguments and find them to be without merit.3 We note that any other arguments not specifically addressed in detail herein have been thoroughly considered by the panel but are not persuasive for the reasons expressed in the Examiner’s Answer. Regarding dependent claims 2, 5, 12, and 15, although Appellant addresses these claims under separate headings (see Appeal Br. 20—22), Appellant’s arguments are unconvincing for the same reasons discussed above with respect to independent claims 1 and 11. Namely, Appellant does not specifically address or identify error in the Examiner’s findings or reasoning articulated in support of the conclusion of obviousness based on the disclosure of Brooks, particularly as thoroughly explained in the Answer. See Final Act. 6—8, 14; Ans. 3—10. After careful consideration of all the evidence of record, Appellant’s arguments do not apprise us of error in the Examiner’s findings or reasoning in support of the conclusion of obviousness. Accordingly, we sustain Rejection I. 3 For example, we note that Appellant asserts that, “[t]o the extent that the final Office Action is taking Official Notice, Appellant respectfully traverses the taking of Official Notice.” Appeal Br. 19. This assertion does not apprise us of error, as it is not responsive to the rejection presented, which does not rely on a finding of Official Notice. See Final Act. 6—8; Ans. 9—10. Rather, the Examiner concluded that, given the disclosure of Brooks, the claimed subject matter would have been obvious to one of ordinary skill in the art. See Final Act. 8; Ans. 9. In this regard, Appellant does not persuasively refute the Examiner’s reasoning articulated in support of the conclusion of obviousness. 7 Appeal 2016-008619 Application 13/975,903 Rejection II— Claims 3, 10, and 13 as unpatentable over Brooks and McSparran In rejecting dependent claims 3 and 13, the Examiner found that Brooks discloses that “the effort-monitoring system is configured to receive route condition data that is representative of a route condition along the route and (Paragraphs [0064] (see ‘performance of locomotive traction transmission’) and [0065] (see ‘data may be provided to the locomotive 42 in a number of ways’)).” Final Act. 14 (emphasis omitted); see also id. at 16 (the Examiner, in rejecting claim 13, relying on the same findings and reasoning articulated with respect to claim 3). The Examiner acknowledged that Brooks does not disclose that the system is configured to identify that the route condition is an adverse route condition based on the route condition data, . . . wherein the effort- monitoring system is configured to, in response to identifying the adverse route condition, adjust the vehicle TEs of the plural propulsion-generating vehicles so that the vehicle system is at or below the system TE, but found that McSparran teaches this feature. Id. at 14—15 (boldface omitted) (citing McSparran, col. 1,11. 30-34). The Examiner concluded that, given the teachings of the prior art, it would have been obvious for a person having ordinary skill in the art “to have incorporated the teachings of McSparran into the invention of Brooks, with the motivation of complying with prescribed operating speeds that may vary with the train’s location on the track.” Id. at 15 (citing Brooks 17). Appellant argues that McSparran “does not teach or suggest identifying or determining an adverse route condition of the route.” Appeal Br. 23. In particular, Appellant asserts that McSparran “is not concerned with conditions of the route itself, but rather conditions of the traction 8 Appeal 2016-008619 Application 13/975,903 vehicle on the route, such as whether or not the traction vehicle has wheel slippage.” Id. According to Appellant, McSparran “describes remedial actions taken in response to detecting wheel slippage of the traction vehicle, not actions taken in response to identifying an adverse route condition.” Id. (citing McSparran, col. 1,11. 30-34). This argument is not convincing. In response to Appellant’s argument, the Examiner explains that “Brooks discloses utilizing information about changes over the route, such as condition of the rails, and updating the power plan to reflect such changes as needed,” and that “[t]his information is transmitted via wireless communication from a central or wayside location to the locomotive.” Ans. 14—15 (emphasis added) (citing Brooks 1 65). The Examiner also explains that “McSparran teaches a sensing system that detects a wheel slip condition by comparison of axle speeds . . . due to bad track conditions,” and that “the comparison of axle speeds of McSparran clearly meets the determination step of identifying that the route condition is an adverse route condition.” Id. at 15 (citing McSparran, col. 1,11. 10, 30-32). The Examiner takes the position that ice is a well-known adverse route condition, and concludes that updating Brooks’s trip plan based on icy rail conditions “would be a mundane (and obvious) task to one of ordinary skill in the art.” Id. In this regard, Appellant does not specifically address or identify error in the Examiner’s position, particularly as thoroughly explained in the Answer. See id. at 14—15. After careful consideration of all the evidence of record, Appellant’s arguments do not apprise us of error in the Examiner’s findings or reasoning as to the disclosure of Brooks and McSparran, which are supported by a preponderance of the evidence, or the Examiner’s reasonable conclusion of 9 Appeal 2016-008619 Application 13/975,903 obviousness, which is rationally articulated based on prior art teachings. Accordingly, we sustain Rejection II. DECISION We AFFIRM the Examiner’s decision rejecting claims 1, 2, 4—9, 11, 12, 14, and 15 under 35 U.S.C. § 103 as being unpatentable over Brooks. We AFFIRM the Examiner’s decision rejecting claims 3, 10, and 13 under 35 U.S.C. § 103 as being unpatentable over Brooks and McSparran. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation