Ex Parte McEwen et al

Patent Trial and Appeal BoardFeb 21, 2019

12550976 (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/550,976 08/31/2009 14941 7590 02/25/2019 HONEYWELL/WICK PHILLIPS Honeywell International Inc 115 Tabor Road PO Box 377 MORRIS PLAINS, NJ 07950 FIRST NAMED INVENTOR Shane Lee McEwen 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. H0024711_5706-33100 1885 EXAMINER ROGERS, DAVID A ART UNIT PAPER NUMBER 2856 NOTIFICATION DATE DELIVERY MODE 02/25/2019 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): patentservices-us@honeywell.com wppatents@wickphillips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHANE LEE McEWEN, PHILLIP W. BENSON, CLIVE W. KENNARD, and ARUN BHARGA VA Appeal2018-003444 Application 12/550,976 Technology Center 2800 Before ROMULO H. DELMENDO, MARK NAGUMO, and MERRELL C. CASHION, JR., Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Applicants ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Primary Examiner's decision to reject claims 1, 2, 7-22, and 24--28. 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 The Appellants identify the real party in interest as "Honeywell International Inc." (Appeal Brief filed July 10, 2017 ("Appeal Br."), 4). 2 Appeal Br. 13-30; Non-Final Office Action entered February 10, 2017 ("Non-Final Act."), 3-25; Examiner's Answer entered December 12, 2017 ("Ans."), 2-11. Appeal2018-003444 Application 12/550,976 I. BACKGROUND This is the second time the subject application has been on appeal. In a previous appeal, this Board affirmed the Examiner's final decision to reject claims 1-28 under pre-AIA 35 U.S.C. Â§ 103(a) as unpatentable over various prior art references and the admitted prior art. Ex parte McEwen, https://e- foia.uspto.gov/Foia/RetrievePdf?system=BP AI&f1Nm=fd2013005143-09- 23-2015-1. Following continued examination pursuant to 37 C.F.R. Â§ 1.114, in which revised claims were rejected under 35 U.S.C. Â§ 103(a) over the same evidence, the Appellants filed this second appeal. The subject matter on appeal relates to a gas detector that exhibits visual indications and to a method for determining whether the gas detector is in compliance with organizational safety policies pertaining to testing and calibration (Specification filed August 31, 2009 ("Spec."), ,r 1 ). In particular, the Appellants explain that the claimed gas detectors include control circuits that intermittently activate ( e.g., by blinking) an LED to provide a compliance or confidence indication (id. ,r 15). "Where the detector is out of compliance, the indicator is not activated[,] providing indicia that the detector needs maintenance" (id., Abstract). Representative claim 1 is reproduced from the Claims Appendix to the Appeal Brief, as follows: 1. A gas detector comprising: a housing, the housing carrying control circuits; and a compliance indicator, carried by the housing and coupled to the control circuits, wherein the control circuits are configured to: evaluate whether a previous calibration attempt had been successful, establish a first pre-set time interval until the next 2 Appeal2018-003444 Application 12/550,976 calibration attempt is to be made when the previous calibration attempt was successful, evaluate whether a previous bump test had been successful, establish a second pre-set time interval until the next bump test is to be made when the previous bump test was successful, and intermittently activate the compliance indicator to indicate that the gas detector is in compliance with pre-established calibration requirements and with pre-established bump test requirements when the previous calibration attempt had been successful and when the first pre-set time interval has not expired, and when the previous bump test had been successful and when the second pre-set time interval has not expired, wherein the compliance indicator is not activated if the calibration test attempt fails, the bump test attempt fails, the first predetermined time interval has lapsed without a new calibration attempt, or the second predetermined time interval has lapsed without a new bump test attempt. II. REJECTIONS ON APPEAL On appeal, the Examiner maintains two rejections under pre-AIA 35 U.S.C. Â§ I03(a), as follows: A. Claims 1, 2, 7-11, 16-22, and 24--28 as unpatentable over Koyano et al. 3 ("Koyano") in view of the admitted prior art (Spec. ,r,r 2-3), Bray et al. 4 ("Bray"), Rabbett et al. 5 3 US 6,744,373 B2, issued June 1, 2004. 4 US 2007/0296569 Al, published December 27, 2007. 5 US 2003/0145644 Al, published August 7, 2003. 3 Appeal2018-003444 Application 12/550,976 ("Rabbett"), Campman, 6 and Parekh; 7 and B. Claims 12-15 as unpatentable over the same evidence- namely, Koyano in view of the admitted prior art, Bray, Rabbett, Parekh, and Campman. (Ans. 2-10; Non-Final Act. 3-25.) III. DISCUSSION Rejection A. The Appellants focus on claims 1 and 24 but do not argue any particular other claim separately (Appeal Br. 13-25). Therefore, we confine our discussion to claim 1, which we select as representative pursuant to 37 C.F.R. Â§ 4I.37(c)(l)(iv). As provided by this rule, claims 2, 7-11, 16-22, and 24--28 stand or fall with claim 1. 1. The Examiner's Position The Examiner finds that Koyano describes a portable gas sensor provided with alarms (Non-Final Act. 3). In contrast to claim 1, the Examiner finds that "Koyano ... does not teach performing a bump test or monitoring the calibration of the sensor and issuing an alarm if the calibration is not within specified limits" (id. at 4). The Examiner finds, however, that the Appellants' Specification states "that it is known to determine if sensor are in compliance with various standards and to perform periodic bump tests as well as periodic calibration tests" (id.). In addition, the Examiner finds that: (i) Bray teaches a system designed to monitor calibration of a gas sensor and to issue an alarm when the calibration is not within specified limits; (ii) Rabbett teaches that it is known to calibrate a gas 6 US 7,279,688 B2, issued October 9, 2007. 7 US 2001/0018844 Al, published September 6, 2001. 4 Appeal2018-003444 Application 12/550,976 sensor and to determine continuously the time until the next calibration event; (iii) Campman teaches that it is known to provide a gas sensor with a compliance indicator to inform the operator that the sensor is ready-i.e., a confidence indicator or a compliance indicator; and (iv) Parekh teaches that it is known to calibrate a gas sensor and to continuously determine if a previous calibration attempt was successful (id. at 4--5). Based on these findings, and the Decision in the prior appeal, the Examiner concludes that the subject matter recited in claim 1 would have been obvious to a person having ordinary skill in the art (id. at 5---6; Ans. 3). 2. The Appellants' Contentions The Appellants contend that the Examiner's reliance on the prior Decision is misplaced because "the present claims were amended after the [D]ecision in the last appeal to recite elements not previously considered along with combinations not previously addressed" (Appeal Br. 13). Specifically, the Appellants argue that, in contrast to the claims in the previous appeal, current claim 1 recites that the compliance indicator is activated only when each specified condition is satisfied and, if not, the compliance indicator is not activated (id.). In the Appellants' view, these limitations raise new issues not previously considered (id. at 13-14). Furthermore, the Appellants argue that no prima facie case of obviousness has been established because the Examiner's rejection fails to address these limitations (id. at 14). With respect to the "not activated" limitations recited in claim 1, the Appellants point out that the claim "does not require a deactivation of the compliance indicator but rather ... that the compliance indicator is not activated if any of the four recited conditions are present" (id. at 15). Additionally, the Appellants argue that "there are four 5 Appeal2018-003444 Application 12/550,976 conditions under which the compliance indicator would not be activated, whereas the [Examiner's] purported differences only list three" (id. (referring to Non-Final Act. 10)). The Appellants also argue that the Examiner's interpretation of "intermittently activate" recited in claim 1 is unreasonable (id. at 16-18). The Appellants contend that the Examiner's "interpretation of 'intermittent activation' as including O Hz would require that the indicator never be activated or always be activated" (id. at 17-18). The Appellants argue that the Examiner "does not provide a citation to a specific reference for disclosing any of the conditions or non-activation of the compliance indicator" and that "[ w ]ithout some citation to some teaching in the prior art of the recited elements, a given feature of a claim cannot be entirely created and supplied in a rejection of the claims" (Appeal Br. 15). In the Appellants' view, the relied-upon evidence does not teach or suggest providing an indication if the tests were successful, but instead "all of the references that discuss the use of indicators teach that an indicat[ion] is provided when the device is non-compliant, which is the opposite of the device being claimed" (id. at 19-20, 21 ). The Appellants also argue that "[a]ny modification of these portions of these references to not alarm for a non-compliant condition would necessarily make them unsuitable for their intended use" and "attempting to modify the references to remove any notification of non-compliance also removes the principle of operation from the references" (id. at 25). 3. Opinion The Appellants' arguments fail to identify any reversible error in the Examiner's rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). 6 Appeal2018-003444 Application 12/550,976 The Appellants acknowledge that, in the prior art, "[g]as detectors which might be used in toxic or explosive environments are usually periodically checked for compliance with applicable safety standards," although these audits are often performed manually rather than automatically (Spec. ,r,r 2, 4). The Appellants also admit that, in the prior art, "[s]uch standards include determining if the respective detector has been periodically exposed to a respective gas, or gases, usually known as a bump test" and "periodic calibration ... usually required to comply with applicable safety standards" (id. ,r 3). Bray teaches that an air sensor alarm system may be programmed to undergo a power-on sequence for verifying satisfactory operation, such as by programming the system to provide a "blinking light to indicate ... potential problems with the system ... such as poor sensing element calibration" (Bray, ,r,r 2, 14, 21 ). In addition, Rabbett teaches automatic testing of a carbon monoxide detector and calibration of the detector based on the test results (Rabbett, ,r 30). In particular, Rabbett discloses a microcontroller . . . designed to operate the detector . . . and provide all the normal functionality of a carbon monoxide detector, calculate the time to initiate a calibration event, control the calibration event and initiate any calibration changes or other events that the result of the calibration event requires (id. ,r 66). According to Rabbett, a display or alarm may be provided to indicate a fault condition (id. ,r,r 66-67). Parekh teaches checking the calibration of an air monitor before every use to obtain accurate sensor readings by checking the accuracy of the sensors to determine whether recalibration is necessary (Parekh, ,r 35). Given the need to periodically conduct a bump test and periodically check calibration on a gas detector, as acknowledged in the admitted prior 7 Appeal2018-003444 Application 12/550,976 art, a person having ordinary skill in the art would have found it obvious- through nothing more than common sense and ordinary creativity-to formulate a suitable algorithm or programming logic to permit carrying out the bump and calibration tests on a periodic basis ( e.g., automatically as would have been suggested by Rabbett ), and to provide a visual indication, as would have been suggested by Bray, when either the bump or calibration test result is not in compliance with pre-set standards or has expired. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418, 421 (2007). See also Ex parte McEwen at 6-8. Although Bray teaches providing a blinking or flashing light8 to indicate potential problems or non-compliance (Bray, ,r,r 14, 21), a person having ordinary skill in the art would have understood that a visual indication (e.g., a blinking light as described in Bray) could alternatively signal the opposite-i.e., an operational, problem-free, or "ready" status-as indeed would have been suggested by Campman (Campman, col. 6, 11. 58- 60), and as Parekh reinforces by determining continuously whether the previous calibration attempt was successful (Parekh, ,r 35). Conversely, a person having ordinary skill in the art would have understood through nothing more than common sense that the absence of such an indication may be used to indicate a test failure-i.e., a problem with the detector----or, if the tests are not conducted automatically on a periodic basis, that a new test is required. KSR, 550 U.S. at 421 ("When there is a design need ... to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within 8 The current Specification makes clear that a blinking light may be used to provide an "intermittently active" compliance indication (Spec. ,r 15). 8 Appeal2018-003444 Application 12/550,976 his or her technical grasp"); In re Preda, 401 F.2d 825, 826 (CCPA 1968) ("[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom."). We find no merit in the Appellants' argument that the conditions recited in claim 1 must be disclosed explicitly in the prior art references (Appeal Br. 15). First, the Supreme Court of the United States has rejected such a rigid approach to analyzing obviousness. KSR, 550 U.S. at 415. Second, our reviewing court explained that an obviousness analysis "may include recourse to logic, judgment, and common sense available to the person of ordinary skill that do not necessarily require explication in any reference or expert opinion." Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009). The Appellants' argument (Appeal Br. 16-18) that the Examiner's interpretation of "intermittently activate" recited in claim 1 is unreasonable----even if correct----does not reveal harmful error because Bray shows that it was known to provide a blinking or flashing light to indicate a condition. As we discussed above, although Bray uses a blinking light to provide a problem condition, a person having ordinary skill in the art would have understood that some display indication including the same blinking light could be used to indicate an opposite (i.e., a "ready" or compliant) condition, as would have been suggested by Campman (Campman, col. 6, 11. 58-60) as well as by Parekh (Parekh, ,r 37). As for the Appellants' argument (Appeal Br. 15) that "not activated" ( claim 1) does not require deactivation, 9 Appeal2018-003444 Application 12/550,976 a deactivated compliance indicator (i.e., a deactivated blinking light) would not be activated, as required by claim 1. For these reasons, we uphold the rejection as maintained against claim 1. Rejection B. The Appellants argue claims 12-15 as a group (Appeal Br. 26-29), focusing on claim 12. Therefore, we confine our discussion to claim 12. 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Appellants rely on many of the same arguments offered in support of claim 1, which we found unpersuasive. For example, the Appellants fault the Examiner for "not provid[ing] any citation to any reference for the teaching or suggestion of' the conditions recited in the "not activated" limitations and that, therefore, no prima facie case of obviousness has been established (Appeal Br. 26). As we discussed above, such a rigid approach to analyzing obviousness has been flatly rejected by the courts. KSR, 550 U.S. at 415; Perfect Web, 587 F.3d at 1329. Accordingly, we uphold the Examiner's rejection as maintained against claim 12. IV. SUMMARY Rejections A and Bare sustained. Therefore, the Examiner's decision to reject claims 1, 2, 7-22, and 24--28 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 10