Ex Parte Lawry et al

Patent Trial and Appeal Board

Oct 31, 2017

13975903 (P.T.A.B. Oct. 31, 2017)

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 Claims 16—20 have been withdrawn.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