Ex Parte Lewis et al

Patent Trial and Appeal Board

Apr 26, 2016

11945715 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111945,715 11/27/2007
60601 7590 04/26/2016
Muncy, Geissler, Olds & Lowe, P,C,
4000 Legato Road
Suite 310
FAIRFAX, VA 22033
FIRST NAMED INVENTOR
Joseph Lewis
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.
1006/0122PUS1 7869
EXAMINER
BAUER, CASSEY D
ART UNIT PAPER NUMBER
3744
MAILDATE DELIVERY MODE
04/26/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH LEWIS, ANDREW BAYLEY,
SCOTT ROGERS, and JAMES WAGNER
Appeal2014-001544
Application 11/945,715
Technology Center 3700
Before JENNIFER D. BAHR, JAMES P. CALVE, and
FREDERICK C. LANEY, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Joseph Lewis et al. (Appellants) appeal under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 1-8 and 11-15, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
Appeal2014-001544
Application 11/945,715
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An auxiliary climate control system for a vehicle having a
primary climate control system with a primary compressor, a
primary condenser, a primary controller and a primary blower
motor controlled by the primary controller, the auxiliary climate
control system, comprising:
an auxiliary compressor;
an auxiliary condenser in fluid communication with the
auxiliary compressor;
an auxiliary evaporator in fluid communication with the
auxiliary compressor and the auxiliary condenser;
an auxiliary blower motor;
an auxiliary controller configured to control the auxiliary
climate control system; and
wherein the auxiliary controller is configured to
determine whether a vehicle is parked and to control the
primary blower motor or a fresh air door of the primary
climate control system when the vehicle is parked; and
wherein the auxiliary climate control system is adapted to
heat and cool the vehicle independently of the primary climate
control system of the vehicle.
REJECTIONS
I. Claims 1--4 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Moffa (US 2001/0027660 Al, pub. Oct. 11,
2001), Kalmbach (US 4,947,657, iss. Aug. 14, 1990), and
Brummett (US 6,932,148 Bl, iss. Aug. 23, 2005).
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Application 11/945,715
IL Claims 5, 6, and 11-14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Brummett, Kalmbach, and Davlin (US
2004/0039456 Al, pub. Feb. 26, 2004).
III. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Moffa, Kalmbach, Davlin, and Iwanami (US 2005/0109499
Al, pub. May 26, 2005).
IV. Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Brummett, Kalmbach, Davlin, and I wanami.
DISCUSSION
Rejection I
Independent claim 1 recites that "the auxiliary controller is configured
to determine whether a vehicle is parked and to control the primary blower
motor or a fresh air door of the primary climate control system when the
vehicle is parked." Appeal Br. 16 (Claims App.). Independent claim 7
recites "a sensor in communication with the auxiliary controller [that] is
configured to detect an operating parameter that indicates if the vehicle is
running" and recites that "the auxiliary climate control system is adapted to
... control the primary blower motor or a fresh air door of the primary
climate control system when the operating parameter is not detected." Id. at
18. The Examiner finds that the feature of the auxiliary control system
determining via a sensor whether the system is parked is not taught by Moffa
or Kalmbach. Final Act. 4. Further, the Examiner does not rely on
Brummett to overcome this deficiency. See id. at 5---6. However, the
Examiner notes that both Moffa and Kalmbach teach using the primary
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Application 11/945,715
control system when the engine is running and the auxiliary control system
when the engine is not running. Id. According to the Examiner:
One skilled in the art would know that it would be beneficial
for the climate control system to switch from the primary to the
auxiliary climate control system automatically. Since it is a
well known mechanical expedient to perform automatic control
by utilizing a sensor to sense and determine a condition and
then perform an operation automatically without human input,
it would have been obvious to one having ordinary skill in the
art at the time the invention was made, to modify the apparatus
of Moffa and Kalmbach so that the auxiliary control system
determines whether the system is parked via a sensor in order to
perform automatic switching of the control system from
theprimary to auxiliary climate control system without operator
input.
Id. at 4--5. The Examiner adds that the statement that one skilled in the art
would know that automatic switching from the primary to auxiliary climate
control system would be beneficial "does not take official notice but merely
describes the understanding and general knowledge of one of ordinary skill
in the art." Id. at 14. Noting that the Examiner may take into account
"[f]actors other than the disclosures of the cited prior art" to support the
conclusion of obviousness, and "may also take into account 'the inferences
and creative steps that a person of ordinary skill in the art would employ,'"
the Examiner explains that the statement in question "is simply defining the
understandings of one skilled in the art which provides a factual basis for
'filling in the gaps' between the claimed invention and the prior art." Id. at
14--15 (emphasis omitted).
Appellants contend that the Examiner's conclusion of obviousness is
based on assertions of technical facts or specific knowledge of the prior art
lacking evidentiary support in the record. Appeal Br. 6; Reply Br. 3.
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Application 11/945,715
The Examiner finds that Appellants did not rebut the factual findings
made by the Examiner, and, thus, "the contested statement of fact is indeed
now considered [Appellants'] admitted prior art." Ans. 17-21.
As stated in In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011)
(citations omitted):
"[T]he prima facie case is merely a procedural device that
enables an appropriate shift of the burden of production." The
Patent and Trademark Office ("PTO") satisfies its initial burden
of production by "adequately explain[ing] the shortcomings it
perceives so that the applicant is properly notified and able to
respond." In other words, the PTO carries its procedural
burden of establishing a prima facie case when its rejection
satisfies 35 U.S.C. § 132, in "notify[ing] the applicant ... [by]
stating the reasons for [its] rejection, or objection or
requirement, together with such information and references as
may be useful in judging of the propriety of continuing the
prosecution of [the] application." That section "is violated
when a rejection is so uninformative that it prevents the
applicant from recognizing and seeking to counter the grounds
for rejection."
The Examiner does not provide Appellants with adequate notice of the
factual basis for the Examiner's statement (regarding the knowledge in the
art that it would be beneficial to switch automatically from the primary to
the auxiliary climate control system) to satisfy the procedural burden set
forth in 35 U.S.C. § 132. The Examiner, on the one hand, insists that the
statement does not take official notice and, on the other hand, admonishes
Appellants for not having properly rebutted the factual finding in that
statement, thereby purportedly rendering the factual finding in the statement
Appellants' admitted prior art. The Examiner's admonishment of
Appellants is unjustified, as Appellants do, in fact, take issue with the
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Examiner's statement. See Appeal Br. 7 (stating that, in addition to the
statement being directed to a fact not capable of being officially noticed, "it
is contrary to reasonable assumptions regarding the operation of vehicular
cooling systems. It would generally be undesirable to switch to an auxiliary
system 'without human input' as proposed by the [E]xaminer.").
According to Appellants, "[t]here is no need to automatically activate
an auxiliary system every time a driver turns off a truck engine, when
parking and leaving the truck, for example." Id. Appellants' reasoning calls
into question the accuracy or reasonableness of the Examiner's factual
finding regarding what a person of ordinary skill in the art would have
known, and suggests that the Examiner's statement goes beyond taking
account of the inferences and creative steps that a person of ordinary skill in
the art would employ. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (stating that "the [obviousness] analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
[the PTO] can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ"). Further, to the extent that the
Examiner may be relying on official notice, Appellants have adequately
challenged the Examiner's statement of what would have been known to a
person of ordinary skill in the art to require the Examiner to produce
evidence in support of the notice. The Examiner does not proffer any such
evidence, and, thus, fails to establish the requisite factual basis to support the
legal conclusion of obviousness.
Accordingly, we do not sustain the rejection of independent claims 1
and 7, or claims 2--4, which depend from claim 1, under 35 U.S.C. § 103(a)
as unpatentable over Moffa, Kalmbach, and Brummett.
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Rejection II
Independent claim 5 requires "an auxiliary controller configured to
... communicate with the primary climate control system" and independent
claim 11 requires an "auxiliary controller configured to ... communicate
with the primary controller." Appeal Br. 17-19 (Claims App.). The
Examiner finds that "Brummett and Kalmbach fail to teach communication
between the auxiliary and primary climate controls."1 Final Act. 8.
The Examiner finds that "it is known in the art of control circuitry to
allow two separate controllers[,] ... which each control two separate
components[,] ... to communicate with each other," as evidenced by
Davlin, "for synchronization and status or redundancy checking purposes
and the like." Id. (citing Davlin i-f 26). The Examiner explains that
providing communication between the auxiliary control system and the
primary control system of Brummett and Kalmbach would afford the climate
control system with benefits of the type recognized by Davlin-specifically,
controller synchronization "(i.e.[,] to ensure that only one climate control
system was running at a time so as not to waste energy [or to enable the
auxiliary system to] provide additional cooling when the primary cooling
system was insufficient for the cooling load)" and redundancy (i.e.,
"allow[ing] the primary control system to provide control to the auxiliary
climate control system should the auxiliary control system fail and vice
versa"). Ans. 25.
1 This finding appears to overlook Kalmbach's teaching that "[t]he primary
evaporator blower may be operated either by the primary air conditioning
system controls when the primary air conditioning system is being operated,
or by the auxiliary air conditioning control system when the auxiliary air
conditioning system is being operated." Kalmbach, col. 4, 11. 4--9.
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Appellants do not specifically challenge the Examiner's reasoning.
Rather, Appellants argue that the fact that redundant controllers "are used in
the slave components of a master-slave industrial control in no manner
suggests making two different controllers in two independently controllable
climate control systems communicate with each other" and that "nothing in
the record suggests that the controller of the auxiliary system would be able
to control any element of the primary system as required by claim 5."
Appeal Br. 12. Appellants make the same arguments for claim 11. Id. at 13.
Appellants' arguments asserting lack of suggestion in the prior art do
not point to error in the rejection. "The obviousness analysis cannot be
confined by a formalistic conception of the words teaching, suggestion, and
motivation, or by overemphasis on the importance of published articles and
the explicit content of issued patents." KSR, 550 U.S. at 419. Instead, the
relevant inquiry is whether the Examiner has set forth "some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with
approval in KSR, 550 U.S. at 418). As noted above, the Examiner has
articulated reasons (ensuring efficient and effective cooling and redundant
control in the case of failure of one of the controllers) for providing
communication between the primary and auxiliary climate control systems
and their independent controllers in the climate control system of Brummett
and Kalmbach. These reasons have some rational underpinning, and
Appellants have not cogently explained why the Examiner's reasoning is
flawed.
Appellants' argument regarding absence of a suggestion in the record
that the auxiliary system controller could control any element of the primary
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system is inapposite because neither claim 5 nor claim 11 requires such.
Moreover, Kalmbach's teaching that "[t]he primary evaporator blower may
be operated either by the primary air conditioning system controls when the
primary air conditioning system is being operated, or by the auxiliary air
conditioning control system when the auxiliary air conditioning system is
being operated" (col. 4, 11. 4--9) belies Appellants' argument.
For the above reasons, Appellants fail to apprise us of error in the
rejection of claims 5 and 11. Accordingly, we sustain the rejections of
claims 5 and 11 under 35 U.S.C. § 103(a) as unpatentable over Brummett,
Kalmbach, and Davlin.
Claim 6 depends from claim 5, and further recites that "the auxiliary
controller operates a fresh air door of the primary climate control system."
Appeal Br. 17 (Claims App.). Appellants argue that "the art of record does
not show or suggest [these] features" and "does not support officially
noticing any facts to support the rejection of claim 6." Id. at 12.
Appellants' arguments fail to show error in the Examiner's rejection,
which does not rely on either official notice or a finding of a showing or
suggestion of these features in Brummett, Kalmbach, or Davlin. See Final
Act. 9 (articulating an apparent reason why it would be advantageous to
permit the auxiliary controller of Brummett's system to operate a fresh air
door of the primary system-to permit a person in Brummett's sleeper cab
to be able to select either fresh air or recirculated air via the auxiliary
controller instead of having to enter the cab to reach the primary controller).
Appellants do not point to any flaw in the Examiner's reasoning.
Accordingly, we sustain the rejection of claim 6 under 35 U.S.C.
§ 103(a) as unpatentable over Brummett, Kalmbach, and Davlin.
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Application 11/945,715
Claim 12 depends from claim 11 and recites that "the auxiliary
controller is configured to communicate with the primary controller to cause
the primary controller to operate a fresh air door of the primary climate
control system." Appeal Br. 19 (Claims App.). Appellants' arguments in
attacking the rejection of claim 12 are essentially the same as those
presented against the rejections of claims 11 and 6. See id. at 13-14. They
do not address the Examiner's reasoning explaining why it would be
beneficial to provide communication between the auxiliary controller and
the primary controller to operate a fresh air door of the primary system in
Brummett's climate control system. See Ans. 10-11. Thus, Appellants fail
to apprise us of error in the rejection of claim 12. Accordingly, we sustain
the rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable over
Brummett, Kalmbach, and Davlin.
The rejection of claims 13 and 14, which require a sensor for
detecting whether the vehicle is running, suffers from the same deficiency as
the rejection of claims 1 and 7, discussed above. See Final Act. 11.
Accordingly, for the same reasons, we do not sustain the rejection of claims
13 and 14 under 35 U.S.C. § 103(a) as unpatentable over Brummett,
Kalmbach, and Davlin.
Rejection III
The rejection of claim 8 suffers from the same deficiency as the
rejection of claim 7, from which claim 8 depends. See Final Act. 12. The
Examiner's application of Iwanami does not make up for that deficiency.
See id.; Appeal Br. 10-11. Accordingly, we do not sustain the rejection of
claim 8 under 35 U.S.C. § 103(a) as unpatentable over Moffa, Kalmbach,
Davlin, and Iwanami.
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Rejection IV
The rejection of claim 15 suffers from the same deficiency as the
rejection of claim 14, from which claim 15 depends. See Final Act. 13. The
Examiner's application of Iwanami does not make up for that deficiency.
See id.; Appeal Br. 14. Accordingly, we do not sustain the rejection of claim
15 under 35 U.S.C. § 103(a) as unpatentable over Brummett, Kalmbach,
Davlin, and Iwanami.
DECISION
The Examiner's decision rejecting claims 1--4 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over Moffa, Kalmbach, and Brummett is
REVERSED.
The Examiner's decision rejecting claims 5, 6, 11, and 12 under
35 U.S.C. § 103(a) as unpatentable over Brummett, Kalmbach, and Davlin is
AFFIRMED.
The Examiner's decision rejecting claims 13 and 14 under 35 U.S.C.
§ 103(a) as unpatentable over Brummett, Kalmbach, and Davlin is
REVERSED.
The Examiner's decision rejecting claim 8 under 35 U.S.C. § 103(a)
as unpatentable over Moffa, Kalmbach, Davlin, and Iwanami is
REVERSED.
The Examiner's decision rejecting claim 15 under 35 U.S.C. § 103(a)
as unpatentable over Brummett, Kalmbach, Davlin, and Iwanami is
REVERSED.
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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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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