Ex Parte Millet et al

Patent Trial and Appeal BoardOct 25, 2012

09977552 (P.T.A.B. Oct. 25, 2012)

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. 09/977,552 10/15/2001 Hank E. Millet 031500487DVA 4193 27572 7590 10/25/2012 HARNESS, DICKEY & PIERCE, P.L.C. P.O. BOX 828 BLOOMFIELD HILLS, MI 48303 EXAMINER FREAY, CHARLES GRANT ART UNIT PAPER NUMBER 3746 MAIL DATE DELIVERY MODE 10/25/2012 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 HANK E. MILLET, NATARAJAN RAJENDRAN, and WILLIAM W. MCCROSKEY ____________ Appeal 2010-005166 Application 09/977,552 Technology Center 3700 ____________ Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and GAY ANN SPAHN, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Hank E. Millet et al. (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 19-21, 26-28, 30, 32-34, 48, 56, 58, 66, and 69. Claims 50, 53, 54, and 59-64 have been withdrawn from consideration. Claims 1-18, 22-25, 29, 31, 35-47, 49, 51, 52, 55, 57, Appeal 2010-005166 Application 09/977,552 2 65, 67, and 68 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellants’ claimed invention relates to a compressor control and protection system. Spec. 1, ll. 7-8. Claim 69, reproduced below, is the sole independent claim and is representative of the subject matter on appeal. 69. An apparatus comprising: a compressor including a shell and a compression mechanism disposed within said shell; a control block associated with said compressor and mounted on said shell; a memory accessible to said control block and associated with said compressor, said memory storing a first image of configuration data for said compressor, said configuration data including compressor identification data, compressor application data, compressor event history data, and compressor control data including at least one compressor set point and at least one compressor pressure limit; a system master in communication with said control block that sends a configuration data request to said control block, receives a copy of said first image of said configuration data from said control block in response to said request, constructs a new image of configuration data for said compressor, said new image including compressor identification data, compressor application data, compressor event history data, and compressor control data including at least one compressor set point and at least one compressor pressure limit, and sends said new image to said control block; wherein said control block receives said new image from said system master and stores said new image in said memory in place of said first image. Appeal 2010-005166 Application 09/977,552 3 THE REJECTION Appellants seek review of the rejection of claims 19-21, 26-28, 30, 32-34, 48, 56, 58, 66, and 69 under 35 U.S.C. § 103(a) as being unpatentable over Centers (US 6,471,486 B1; iss. Oct. 29, 2002) and Culp (US 5,975,854; iss. Nov. 2, 1999). ISSUES Appellants offer arguments pertaining to all the claims subject to the sole ground of rejection and offer an additional argument for dependent claim 32. App. Br. 17-30. For the arguments pertaining to all of the claims, we select claim 69 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). We separately consider the additional argument pertaining to claim 32. Appellants argue that “the Examiner has failed to show a proper and explicit motivation for modifying the Centers reference in the manner suggested.” App. Br. 20. In particular, Appellants argue that the proposed modification of Centers would render the system unfit for its intended purpose. App. Br. 22-26. Appellants also argue that the Examiner’s rejection is based on impermissible hindsight reasoning. App. Br. 26-28. With regard to dependent claim 32, Appellants argue that “Centers does not teach initially configuring a compressor using a new image from a system master.” App. Br. 29. The issues presented by this appeal are: Did the Examiner articulate adequate reasoning based on rational underpinnings to explain why one of ordinary skill in the art would have Appeal 2010-005166 Application 09/977,552 4 been led to modify the system of Centers in the manner called for in claim 69? Would the disclosure in Centers have rendered obvious to one of ordinary skill in the art the apparatus of claim 32 wherein the compressor is initially configured by said control block receiving said new image of configuration data from said system master? ANALYSIS Claim 69 The Examiner determined that Centers discloses an apparatus for remotely configuring a compressor comprising a compressor, a control block1, a memory, and a system master. Ans. 4. The Examiner further determined that Centers stores in memory: operating data, i.e., compressor configuration information, history data, and parameter calculation results, compressor identification data, event history data, cycle time, number data, application data such as end user pressures and temperatures, and temperature and pressure limits. Ans. 5. The Examiner also determined that the system master in Centers has access to all the data in the memory and can receive and send copies of it and that the system master can connect with and monitor the control block, send and receive data from the control block and access all operating parameter service information and sensor information. Ans. 6-7. 1 With respect to claim 69, the Examiner relies on Culp to teach mounting the control block on the shell of Centers’s compressor. Ans. 6. Appellants do not contest the Examiner’s findings as to the teachings in Culp or the proposed modification of Centers with Culp. Appeal 2010-005166 Application 09/977,552 5 The Examiner acknowledged that Centers “does not specifically state that the system master makes [a] ‘request’ to the control block for an image containing the noted information or set forth that the modified or new image is sent back to the control block and stored in said memory in place of the first image.” Ans. 6. The Examiner determined, however, that the system master in Centers issues “commands” to the control block for the desired data, which the Examiner considered to be a “request” for data. Id. Thus, the Examiner found that “Centers does teach of a system master that makes [a] request to the control block for an image of configuration data, that the system master modifies this image and that the modified image is sent back to the control block.” Ans. 10-11. The Examiner identified that the difference between the claimed invention and Centers is that “the image is specified [in claim 69] as including a list of specific compressor configuration variables and data elements.” Ans. 11 (noting that “Centers does teach that the memory associated with the control block includes the data which is listed in claim 69” and “Centers does teach that the system mater can access all information stored in the memory.”). The Examiner determined that “it would have been obvious to provide whatever group of data which the system operator finds necessary for a particular application to the system master in a single image or data group in order to reduce the number of data transmissions and simplify the process.” Ans. 11. The Examiner also determined that it would have been obvious to simply receive the full image of all the required data at the system master in a single image because “transmission of a single image containing the data would minimize Appeal 2010-005166 Application 09/977,552 6 the number of operations and ensure that the data represents the conditions at a single point in time.” Ans. 7. The Examiner also determined that it would have been obvious to return the data to the memory after modification and to store the new image of the data in the same location within the memory as the old version of the data because this process “would allow the system to continue to operate without requiring the control block to reassign new memory throughout the controller software for the location of each piece of data within the memory” and it “also relieves the control block of the requirement of tracking the new locations of each of the pieces of data.” Id. The only challenge Appellants appear to make to the Examiner’s findings as to the scope and content of Centers is when Appellants argue that “the Examiner does not point to an instance where Centers stores, copies, sends, receives, or constructs anew, an image of configuration data.” App. Br. 20. The Examiner pointed to the following portions of Centers, with detailed explanation, as disclosing storing, copying, sending, receiving, and constructing anew an image of configuration data: col. 25, l. 42 – col. 26, l. 27; col. 19, ll. 33-37; col. 15, ll. 5-17; col. 6, l. 66 – col. 7, l. 45; col. 7, ll. 8- 13; col. 9, ll. 57-58; col. 9, ll. 49-65; col. 14, ll. 27-36; col. 6, ll. 66-67; col. 4, ll. 33-52; col. 14, l. 62 – col. 15, l. 17. Ans. 5-6. Appellants have not identified specific error with any of these findings. As to the meaning of the claim term “image,” the Examiner interpreted an “image” of data to encompass “any representation of the data.” Ans. 11. While Appellants argue that Centers does not explicitly Appeal 2010-005166 Application 09/977,552 7 disclose sending or receiving an “image” of the specific configuration data called for in claim 69, Appellants do not appear to contest the Examiner’s interpretation generally of the term “image” or propose a different interpretation of their own. See App. Br. 21; Reply Br. 2. Further, Appellants’ Specification does not define “image” and describes that an “image” of data can be sent in a “series of Configuration Data packets.” Spec. 16, ll. 13-16. See also Spec. 14, l. 22 – Spec. 15, l. 3 (describing that a Configuration Read message is sent from the system master to the slave node to “command” the slave node to send its configuration data by means of one or more data packets and a Configuration Data message is used to send data packets containing the slave node’s configuration data stored in the slave node’s EEROM of Flash memory storage) and Spec. 15, ll. 14-15 (describing that a message type may have up to eight packets and that each packet is sent in a separate message). As such, the Examiner’s interpretation of “image” is consistent with Appellants’ Specification and the Examiner’s finding that Centers discloses storing, copying, sending, receiving, and constructing anew, an image of compressor configuration data is supported by a preponderance of the evidence. Appellants also argue that the Examiner’s proposed modification would render Centers unfit for its intended purpose because “[w]hen monitoring and updating individual parameters, the serviceperson [of Centers] would be concerned only with the current values of the specific parameters, rather than an image of all data” and “[t]he Examiner’s proposed modification to Centers would provide the service person with a time Appeal 2010-005166 Application 09/977,552 8 dependent snapshot of all of the systems parameters, but would not necessarily provide the most current value for the requested parameter, thereby defeating the primary objective of the Centers’ system.” App. Br. 24. See also App. Br. 25 (arguing the modification would “add unneeded complexity to the task and defeat the ‘real time’ nature of the monitoring, fine tuning, and adjusting that is the focus of the Centers reference”) and Reply Br. 8 (a service person interested in fine tuning a compressor “would not want to request or receive an entire image of all configuration data of the compressor when only the specific parameters under evaluation are of concern.”) These arguments are based on attorney speculation as to what types of data a service person using the system of Centers would be interested in receiving. Such attorney argument cannot take the place of evidence. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). We find that the Examiner’s articulated reasons for modifying Centers to send configuration data as an image and for storing the image in the same place as the previous image are based on rational underpinnings (see Ans. 7, 16). As acknowledged by Appellants in the Appeal Brief, “[i]n designing any system, two issues encountered are reducing the computational complexity and increasing the accuracy and reliability of data.” App. Br. 27, ll. 16-18. Appellants also argue that the Examiner has engaged in impermissible hindsight reconstruction by citing “the advantages of Applicants’ claimed Appeal 2010-005166 Application 09/977,552 9 apparatus over Centers as a basis for the rejection.” App. Br. 26-27. Appellants state: As taught in the claims, the system master constructs a new image of configuration data for the compressor and sends the new image to the control block, which in turn stores the new image in the memory. This provides a marked advantage when, for example, configuring a replacement compressor or initializing a compressor. As the Examiner notes, Applicants’ use of an image of configuration data reduces the computational complexity of the system, i.e., reduces the amount of operations, and ensures that the configuration data is accurate, i.e. data represents the conditions at a single point in time. See Office Action, 10/22/2008, p. 5. App. Br. 27. Appellants appear to agree by this statement that the Examiner’s reason for modifying the system of Centers in the manner claimed is based on rational underpinnings and Appellants fail to show how the Examiner’s reasoning is based on hindsight. As noted by the Examiner, “the applicant’s disclosure does not set forth or recognize the examiners [sic] reasons and motivations for combining as technical advantages of his system.” Ans. 15. The Examiner’s reasoning is instead grounded in common sense and the background knowledge of one of ordinary skill in the relevant art. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[T]he analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”). As such, we sustain the Examiner’s rejection of representative Appeal 2010-005166 Application 09/977,552 10 claim 69, and claims 19-21, 26-28, 30, 33, 34, 48, 56, 58, and 66, which fall with claim 69. Claim 32 Appellants argue that “[n]owhere does Centers teach or suggest a compressor that is ‘initially configured by said control block receiving said new image of compressor data from said system master’ as recited by [dependent] claim 32.” Reply Br. 10. See also App. Br. 29. Appellants point to paragraph [0064], lines 1-11 of their published application as describing the subject matter of claim 32. App. Br. 14. The pertinent disclosure in this portion of Appellants’ Specification describes: The compressor is shipped with the data preconfigured. The system master may send a Configuration Request to a selected compressor node and get an image of the stored data. It may modify that data or it may construct a completely new image and send it to the compressor for storage by sending it in the appropriate series of Configuration Data packets. Spec. 16, ll. 12-16. This description appears to describe using a new image to reconfigure the preconfigured compressor. To the extent Appellants characterize this reconfiguration as initially configuring the compressor, then the Examiner’s findings discussed supra as to the scope and content of Centers in combination with the Examiner’s proposed modification to Centers and the reasoning articulated therefor, set forth an adequate showing of how Centers renders obvious the subject matter of claim 32. Appellants admit in their arguments that Centers “suggests that a previously configured compressor package may be reconfigured remotely, by resetting certain parameters.” App. Br. 29. This is the same disclosure, however, as is found Appeal 2010-005166 Application 09/977,552 11 in Appellants’ own Specification, which Appellants point to as disclosing initially configuring a compressor. As such, we sustain the Examiner’s rejection of claim 32. CONCLUSIONS The Examiner articulated adequate reasoning based on rational underpinnings to explain why one of ordinary skill in the art would have been led to modify the system of Centers in the manner called for in claim 69. The disclosure in Centers would have rendered obvious to one of ordinary skill in the art the apparatus of claim 32 wherein the compressor is initially configured by said control block receiving said new image of configuration data from said system master. DECISION We AFFIRM the decision of the Examiner to reject claims 19-21, 26- 28, 30, 32-34, 48, 56, 58, 66, and 69. 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)(1)(iv). AFFIRMED mls