Ex Parte Nemer et al

Patent Trials and Appeals BoardJun 28, 2019

14227476 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/227,476 03/27/2014 117849 7590 07/02/2019 Kelly, Holt & Christenson, P.L.L.C. 141 West 1st Street, Suite 100 Waconia, MN 55387 FIRST NAMED INVENTOR Joseph C. Nemer 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. R290.12-0064 1427 EXAMINER KRCHA, MATTHEW D ART UNIT PAPER NUMBER 1798 NOTIFICATION DATE DELIVERY MODE 07/02/2019 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): wmalherek@khcip.com patents@khcip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEPH C. NEMER, BEHZAD REZV ANI, ANNI S. WEY, and JAMES D. KRAMER Appeal2018-007596 Application 14/227,476 Technology Center 1700 Before LINDA M. GAUDETTE, MARK NAGUMO, and BRIAND. RANGE, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellant1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1, 2, 4, and 6. We have jurisdiction. 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellant is the Applicant, Rosemount, Inc., which, according to the Appeal Brief, is also the real party in interest. Appeal Br. 3. Appeal2018-007596 Application 14/227,476 STATEMENT OF THE CASE2 An in situ or in process flue gas analyzer is commonly used for monitoring, optimizing, and/or controlling combustion processes. Spec. ,r 3. Appellant describes the invention as relating to an in situ flue analyzer with improved communication abilities. Id. ,r 5. In particular, Appellant explains that the invention uses two different communication protocols simultaneously in order to overcome bandwidth constraints. Appeal Br. 6-7. Claim 1, reproduced below, is the only independent claim on appeal and is illustrative of the claimed subject matter: 1. An in situ flue gas analyzer comprising: a probe extendable into a flue, the probe having a measurement cell providing a signal responsive to a concentration of a gas within the flue; a controller coupled to the probe and configured to provide an output based on the signal from the measurement cell, wherein the output comprises communicated flue gas stream constituent information; a first media access unit coupled to the controller and operably coupleable to a first process communication link, the first media access unit programmed to communicate in accordance with an all-digital process communication protocol over the first process communication link; a second media access unit coupled to the controller and operably coupleable to a second process communication link, the second media access unit programmed to communicate in accordance with a hybrid process communication protocol over the second process communication link; and 2 In this Decision, we refer to the Final Office Action dated October 16, 2017 ("Final Act."), the Appeal Brief filed March 8, 2018 ("Appeal Br."), and the Examiner's Answer dated April 19, 2018 ("Ans."). 2 Appeal2018-007596 Application 14/227,476 wherein the first and second media access units are enabled simultaneously such that the controller is programmed to provide the output using the first process communication link. Appeal Br. 15 (Claims App.). REJECTION On appeal, the Examiner maintains (Ans. 3) the rejection of claims 1, 2, 4, and 6 under 35 U.S.C. Â§ 103 as unpatentable over Bailey (U.S. Patent Application No. 2011/0012040 Al, publ. Jan. 20, 2011) ("Bailey") in view of Packwood et al. (U.S. Patent No. 6,959,356 B2, iss. Oct. 25, 2005) ("Packwood") as evidenced by The HART Digital/Analog Hybrid Standard (http://www.iamechatronics.com/notes/ general-engineering/285-the-hard- digitalanalog-hybrid-standard as obtained using the Wayback Machine on April 19, 2011) ("IAM"). Final Act. 3. ANALYSIS We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections."). After considering the evidence presented in this Appeal and each of Appellant's arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the 3 Appeal2018-007596 Application 14/227,476 Examiner's rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. The Appellant presents separate arguments for claims 1 and 4. Appeal Br. 5, 13. We limit our discussion to those claims. Claims 2 and 6 will stand or fall with claim 1, from which they depend. 37 C.F.R. Â§ 4I.37(c)(l)(iv) (2013). As to claim 1, the Examiner finds that Bailey teaches an in situ flue gas analyzer comprising the analyzer elements of claim 1. Final Act. 3 (citing Bailey). The Examiner finds that Bailey is silent as to having two media units with two communication paths as claim 1 recites. Id. The Examiner, however, finds that Packwood teaches two media units with two paths as recited in claim 1 (60 to 66 and 58 to 66). Id. at 3--4 (citing Packwood). The Examiner provides a rationale for why a person of skill in the art would have had reason to use Packwood's communication architecture in combination with Bailey. Id. at 4. The Examiner cites IAM as evidence that one of Packwood's communication protocols, HART, is a hybrid communication standard. Id. at 5. Appellant first argues that Packwood does not include a "second media access unit" because Packwood interface 58 "includes a modem and a circuit for adjusting amplitude." Appeal Br. 10. The Examiner, however, finds that Packwood's communication interface block 58 processes communication utilizing the HART protocol. Ans. 3--4. In this respect, it is the same as the second media unit described by Appellant's Specification. Spec. ,r 15. Appellant does not explain why having a modem or circuit for adjusting amplitude would make interface 58 not be a media access unit. 4 Appeal2018-007596 Application 14/227,476 Appellant's argument does not persuasively identify error in the Examiner's finding that Packwood teaches a second media access unit. Appellant also argues that Packwood teaches that its communications occur via a single bus 30 and that Packwood therefore does not teach a "second process communication link." Appeal Br. 10-11. The Examiner's rejection, however, identifies the lines connecting Packwood's items 58 and 66 and items 60 and 66 as meeting claim 1 's two recited links. Ans. 4. Appellant does not dispute this rationale. Because Appellant's argument does not squarely address the Examiner's stated rejection, it does not identify error. Appellant further argues that Packwood does not teach simultaneous communications. Appeal Br. 11-12. The Examiner, however, finds that Packwood's teachings at column 7 lines 32-38 and 47-52 indicate simultaneously enabled communications. Ans. 5. Appellant does not persuasively explain why the Examiner's reasoning in this regard is incorrect. Finally, Appellant argues that Packwood lacks a controller programmed to output information using the first process communication link. Appeal Br. 12. The Examiner, however, addresses how Packwood teaches this recitation (Ans. 5), and Appellant's terse argument does not identify error in the Examiner's reasoning. Claim 4 recites "[t]he in situ flue gas analyzer of claim 1, wherein a communication rate of the all-digital process communication protocol is faster than a communication rate of the hybrid process communication protocol." Appeal Br. 16 (Claims App.). Appellant argues that Packwood does not teach this recitation. The Examiner, however, finds that this 5 Appeal2018-007596 Application 14/227,476 recitation is taught by Packwood at column 2, lines 54---61. Final Act. 5. The preponderance of the evidence supports the Examiner's position. In particular, Packwood identifies a high speed digital protocol and a low-speed HART protocol. Packwood 2:54---61. Appellant's Specification admits that HART is a hybrid protocol. Spec. ,r 4. Also, the Examiner cites IAM as teaching that HART is a hybrid communication standard. Final Act. 5. Because Appellant's arguments do not identify error, we sustain the Examiner's rejection. DECISION For the above reasons, we affirm the Examiner's rejection of claims 1, 2, 4, and 6. 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 6