FISHER-ROSEMOUNT SYSTEMS, INC.

Patent Trials and Appeals Board

Jun 10, 2021

2020000890 (P.T.A.B. Jun. 10, 2021)

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.
14/753,939 06/29/2015 Trevor D. Schleiss 06005/38871B 5852
45372 7590 06/10/2021
Marshall, Gerstein & Borun LLP (Emerson)
233 South Wacker Drive
6300 Willis Tower
Chicago, IL 60606
EXAMINER
NORTON, JENNIFER L
ART UNIT PAPER NUMBER
2117
NOTIFICATION DATE DELIVERY MODE
06/10/2021 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte TREVOR D. SCHLEISS, RAM RAMACHANDRAN,
MARK J. NIXON, and JOHN M. LUCAS

Appeal 2020-000890
Application 14/753,939
Technology Center 2100
________________

Before JOHN A. JEFFERY, KRISTEN L. DROESCH, and
JASON J. CHUNG, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–2, 4, 6–8, 10 and 12–20.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Fisher-Rosemount Systems, Inc.
is the real party in interest. Appeal Br. 3.
2 Claims 9 and 11 are canceled. Appeal Br. 5. Claims 3 and 5 are objected
to as being upon a rejected base claim, but would be allowable if rewritten in
independent form including all of the limitations of the base claim and any
intervening claim. Final Act. 21.
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INVENTION
The invention relates to process plants and, more particularly, to an
intelligent operator environment that enables viewing and device condition
detection functionality at the system level of a distributed control process
plant. Spec. ¶ 2. Claim 1 is illustrative of the subject matter on appeal and
is reproduced below:
1. A system including an object entity within an object oriented
programming environment for programming functionality and a
display of a process plant, the system comprising:
a computer readable memory;
an object stored on the computer readable memory and
executable on a processor, the object representing a process
entity of a plurality of process entities corresponding to a
process flow module within the process plant to control a field
device associated with the process entity within the process plant
and including:
a data storage which stores (i) parameter data for the
process entity corresponding to the object and (ii) one or more
data inputs or outputs which communicate with different objects
representing different process entities within the process plant;
a graphic representation for use on a control display, the
graphic representation pictorially depicting the process entity of
the plurality of process entities, wherein the process entity
corresponds to the object;
a status indicating a current operating state of the process
plant entity; and
a method memory storage that stores one or more
methods, which when executed on the processor, perform
functions related to the process entity using the parameter data
for the process entity corresponding to the object and the one or
more data inputs or outputs including parameter data
corresponding to the different objects representing the different
process entities,
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wherein an instance of the object is included on the control
display that is communicatively coupled to a control module that
controls the field device associated with the process entity.
Appeal Br. A-1 (Claims Appendix).

REJECTIONS
Claims 1, 2, 4, 6–8, 10, 12, and 13 are rejected under pre-AIA
35 U.S.C. §103(a) as being unpatentable over Irwin (US 6,385,496 B1, iss.
May 7, 2002) in view of Crater (US 5,950,006 A, iss. Sept. 7, 1999), Lewis
(US 5,812,394 A, iss. Sept. 22, 1998), and Engdahl (US 6,282,455 B1, iss.
Aug. 28, 2001). Final Act. 6–15.
Claim 14 is rejected under pre-AIA 35 U.S.C. §103(a) as being
unpatentable over Irwin (US 6,385,496 B1, iss. May 7, 2002), Crater (US
5,950,006 A, iss. Sept. 7, 1999), Lewis (US 5,812,394 A, iss. Sept. 22,
1998), and Engdahl (US 6,282,455 B1, iss. Aug. 28, 2001) in further view of
Nixon (US Pat. Pub. 2002/0013629 A1, pub. Jan 31, 2002). Final
Act. 15–16.
Claims 15–17 and 20 are rejected under pre-AIA 35 U.S.C. §103(a) as
being unpatentable over Irwin (US 6,385,496 B1, iss. May 7, 2002), Crater
(US 5,950,006 A, iss. Sept. 7, 1999), Lewis (US 5,812,394 A, iss. Sept. 22,
1998), and Engdahl (US 6,282,455 B1, iss. Aug. 28, 2001) in further view of
Simmons (US Pat. Pub. 2003/0074164 A1, pub. April 24, 2003). Final
Act. 16–19.
Claim 18 is rejected under pre-AIA 35 U.S.C. §103(a) as being
unpatentable over Irwin (US 6,385,496 B1, iss. May 7, 2002), Crater (US
5,950,006 A, iss. Sept. 7, 1999), Lewis (US 5,812,394 A, iss. Sept. 22,
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1998), Engdahl (US 6,282,455 B1, iss. Aug. 28, 2001), and Simmons (US
Pat. Pub. 2003/0074164 A1, pub. April 24, 2003) in further view of Stewart
(US 4,280,356 A, iss. July 28, 1981). Final Act. 19.
Claim 19 is rejected under pre-AIA 35 U.S.C. §103(a) as being
unpatentable over Irwin (US 6,385,496 B1, iss. May 7, 2002), Crater (US
5,950,006 A, iss. Sept. 7, 1999), Lewis (US 5,812,394 A, iss. Sept. 22,
1998), Engdahl (US 6,282,455 B1, iss. Aug. 28, 2001), and Simmons (US
Pat. Pub. 2003/0074164 A1, pub. April 24, 2003) in further view of Pai (US
Pat. Pub. 2004/0068529 A1, pub. April 8, 2004). Final Act. 20.
ANALYSIS
Claim 1 Rejected Under 35 U.S.C. § 103(a)
A. The combination of Irwin and Engdahl teaches the limitation perform
functions related to the process entity parameter data corresponding to
different objects representing the different process entities
The Examiner finds Irwin teaches that a controller executes process
control routines using configuration data of unit module objects that are
based on alias resolution tables and input parameters of phase classes, and
the unit module objects are corresponding to particular hardware or
equipment within the process, which teaches the limitation “perform
functions related to the process entity using at least one of the parameter data
and the one or more data inputs or outputs for the process entity
corresponding to the object.” Ans. 21; Final Act. 7–8 (citing Irwin col. 4,
ll. 57–62; col. 7, ll. 52–54; col. 8, ll. 34–53; col. 9, ll. 13–29; col. 10,
ll. 13–20 and 50–63; col. 12, ll. 52–60).
The Examiner finds Engdahl teaches nodes that represent objects
provide methods or software routines allowing them to process data
represented by proper ties of their own or other, which teaches “performing
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functions related to the one or more data inputs or outputs including
parameter data corresponding to the different objects.” Ans. 21–22; Final
Act. 12–13 (citing Engdahl col. 2, ll. 10–12; col. 5, ll. 52–59 and col. 6,
ll. 1–10).
The Examiner concludes the combination of Irwin and Engdahl
teaches the limitation “perform functions related to the process entity using
. . . the one or more data inputs or outputs including parameter data
corresponding to the different objects representing the different process
entities.” Final Act. 12–13; Ans. 21–22.
Appellant argues that none of Irwin, Crater, Lewis, and Engdahl,
alone or in combination discloses “one or more methods which perform
functions related to the process entity parameter data corresponding to
different objects representing the different process entities ” because the
Examiner finds in the Final Office Action dated April 22, 2019 that “[t]he
combination of Irwin in view of Carter in further view of Lewis and Engdahl
does not expressly teach different objects represent different process
entities.” Appeal Br. 11 (citing Final Act. 13); Reply Br. 2–3.
We disagree with Appellant’s argument that none of Irwin, Crater,
Lewis and Engdahl, alone or in combination teach the limitation “perform
functions related to the process entity using . . . the one or more data inputs
or outputs including parameter data corresponding to the different objects
representing the different process entities,” as recited in claim 1. Appeal
Br. 11; Reply Br. 2–3. Appellant’s arguments pertaining to Irwin and
Engdahl fail to demonstrate error in the Examiner’s findings. Appeal Br. 11.
In order to rebut a prima facie case of unpatentability, Appellant must point
out the supposed Examiner errors distinctly and specifically, and the specific
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distinctions believed to render the claims patentable over the applied
references. See 37 C.F.R. § 41.37(c)(vii) (“A statement which merely points
out what a claim recites will not be considered an argument for separate
patentability of the claim.”); see also Lovin, 652 F.3d at 1357; cf. Baxter,
952 F.2d at 391. In this case, Appellant merely concludes that “none of
Irwin, Crater, Lewis and Engdahl, alone or in combination discloses one or
more methods which perform functions related to the process entity
parameter data corresponding to different objects representing the different
process entities” without pointing out the supposed Examiner errors
distinctly and specifically.
Nonetheless, Irwin teaches a controller executes process control
routines using configuration data of unit module objects that are based on
alias resolution tables (i.e., this teaches parameter data corresponding to the
object) and input parameters of phase classes (i.e., this teaches one or more
data inputs or outputs), and the unit module objects are corresponding to
particular hardware or equipment within the process (i.e., this teaches
different objects representing different process entities), which teaches
“perform functions related to the process entity using at least one of the
parameter data and the one or more data inputs or outputs for the process
entity corresponding to the object.” Ans. 21; Final Act. 7–8 (citing Irwin
col. 4, ll. 57–62; col. 7, ll. 52–54; col. 8, ll. 34–53; col. 9, ll. 13–29; col. 10,
ll. 13–20 and 50–63; col. 12, ll. 52–60). The cited portion of Engdahl
teaches nodes that representing objects provide methods or software routines
allowing them to process data represented by proper ties of their own or
other (i.e., this teaches using data from different objects), which teaches the
limitation “perform functions related to . . . the one or more data inputs or
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outputs including parameter data corresponding to the different objects.”
Ans. 21–22; Final Act. 12–13 (citing Engdahl col. 2, ll. 10–12; col. 5, ll. 52–
59 and col. 6, ll. 1–10).
Appellant’s arguments above have ignored the combined teachings
and suggestions of Irwin and Engdahl. Specifically, we find no error with
the Examiner’s finding that an ordinarily skilled artisan would have had
sufficient motivation to apply the teachings of Irwin—to perform functions
related to the process entity using at least one of the parameter data and the
one or more data inputs or outputs for the process entity corresponding to the
object (see Final Act. 7–8)—to the teachings of Engdahl—to perform
functions related to the one or more data inputs or outputs including
parameter data corresponding to the different objects (id. at 12–13)
collectively to arrive at the limitation “perform functions related to the
process entity using . . . the one or more data inputs or outputs
including parameter data corresponding to the different objects representing
the different process entities” recited in claim 1.
Therefore, Appellant does not persuade us of error in the Examiner’s
finding that the combination of Irwin and Engdahl teaches the limitation
“perform functions related to the process entity using . . . the one or more
data inputs or outputs including parameter data corresponding to the
different objects representing the different process entities” recited in
claim 1.
B. The combination of Irwin and Lewis teaches a status indicating a
current operating state of the process plant entity
The Examiner finds that Irwin teaches a status associated with an
object (Final Act. 8; Ans. 22–23 (citing Irwin col. 4, ll. 13–17; col. 19,
ll. 63–67 and col. 20, ll. 1–4)) and Lewis teaches process objects display
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numeric and text status information during a run-time to monitor each
defined aspect of a process (Final Act. 11; Ans. 23 (citing Lewis col. 3,
ll. 24–31 and col. 88, ll. 25–29)). The Examiner concludes that the
combination of Irwin and Lewis teaches the limitation “a status indicating a
current operating state of the process plant entity.” Ans. 23.
Appellant argues that Lewis fails to teach the limitation “a status
indicating a current operating status of the process plant entity” because the
cited portion of Lewis does not teach or suggest a status indicating an
operating state of a process entity, much less an object within an object
oriented programming environment representing a process entity, where the
object includes a status indicating a current operating state of the process
entity as recited in claim 1. Appeal Br. 11 (citing Lewis col. 3, ll. 24–31).
According to Appellant, the status of each aspect of a process described in
Lewis is not necessarily the status of the operating state of a process plant as
recited in claim 1, and Lewis does not provide any definitions or examples
of the “status, performance, and variables” mentioned in col. 88 lines 25–29.
Appeal Br. 12 (citing Lewis col. 88, ll. 25–29). We disagree with Appellant.
In this case, Irwin teaches a status associated with an object (Final
Act. 8; Ans. 22–23 (citing Irwin col. 4, ll. 13–17; col. 19, ll. 63–67 and
col. 20, ll. 1–4). The cited portion of Lewis teaches a run-time environment
allows an operator to monitor the status (i.e., this teaches the status) of field
sensors and control devices (i.e., this teaches process plant entity) and
screens display numeric and text information during a run-time that allow an
operator to monitor the status (i.e., this teaches the operating status),
performance and variables associated with each defined aspect of a process,
which teaches the limitation “a status indicating a current operating status of
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the process plant entity” recited in claim 1. Final Act. 12–13; Ans. 23
(citing Lewis col. 3, ll. 24–31 and col. 88, ll. 25–29). Furthermore, we note
that Lewis discloses “[c]ommands might be sent to other equipment as a
result of the pump's current status” and “[s]tate logic examines conditions of
Modes, Faults, Setpoints, etc. to determine the current State of the device,”
which explicitly teaches the limitation “current operating status” recited in
claim 1. See Lewis col. 4, ll. 50–52 and col. 26, ll. 36–40 (emphases added).
Therefore, we agree with the Examiner’s conclusion that the
combination of Irwin and Lewis teaches “a status indicating a current
operating status of the process plant entity,” as recited in claim 1. Ans. 22–
23 (citing Irwin col. 4, ll. 13–17; col. 19, ll. 63–67; col. 20, ll. 1–4 and col. 3,
ll. 24–31 and col. 88, ll. 25–29). Appellant does not persuade us of error.
C. The Examiner provides a sufficient reason for combining Irwin
and Engdahl
The Examiner finds that Engdahl teaches one or more data inputs or
outputs to allow an object to process data represented by properties of their
own or different objects (Final Act. 12–13; Ans. 24–25 (citing Engdahl
col. 2, ll. 10–12; col. 5, ll. 52–59 and col. 6, ll. 1–10)) and the Examiner
concludes that it would have obvious to a person having ordinary skill in the
art at the time of invention to combine Engdahl and Irwin’s use of the one
or more data inputs or outputs of an object for communicating with other
objects representing other process plant entities within the process plant to
provide a graphical representation of a system for efficient control of the
system. Final Act. 12–13; Ans. 25.
Appellant argues that the Examiner does not provide articulated
reasoning with some rational underpinning for combining the cited
references because the Examiner provides a conclusory statement that all of
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the prior art is directed to configurable system and the only difference is the
combination of “old elements.” Appeal Br. 13. In addition, Appellant
argues that the Examiner does not explain how one of the ordinary skill in
the art could combine the references to arrive at the invention recited in
claim 1. Id.
We agree with the Examiner’s conclusion. That is, the Examiner’s
conclusion relies on column 2, line 10–12 of Engdahl when combining with
Irwin. Final Act. 12–13 (citing Engdahl col. 2, ll. 10–12; col. 5, ll. 52–59
and col. 6, ll. 1–10). The above-noted teachings from § A of this Decision
suggest that the combination involves the predictable use of prior art
elements according to their established functions. The Supreme Court has
held that in analyzing the obviousness of combining elements, a court need
not find specific teachings, but rather may consider “the background
knowledge possessed by a person having ordinary skill in the art” and “the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418(2007). To be
nonobvious, an improvement must be “more than the predictable use of prior
art elements according to their established functions,” id. at 417, and the
basis for an obviousness rejection must include an “articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” Id. at 418 (citation omitted). Here, the Examiner provides a
rationale for the combination, which is to provide a graphical representation
of a system for efficient control of the system. Ans. 25 (citing Engdahl
col. 2, ll. 10–12). Accordingly, we conclude that the Examiner provides
sufficient motivation for combining Irwin with the teachings of Engdahl.
And we conclude the Examiner has set forth sufficient “articulated reasoning
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with some rational underpinning to support the legal conclusion of
obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 at (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
Moreover, Appellant does not provide persuasive evidence that
combining the respective teachings of the references (as proffered by the
Examiner – Final Act. 12–13; Ans. 25) would have been “uniquely
challenging or difficult for one of ordinary skill in the art,” or that such a
combination would have “represented an unobvious step over the prior art.”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007). Nor does Appellant provide any objective evidence of secondary
considerations, which, as our reviewing court explains, “operate[] as a
beneficial check on hindsight.” Cheese Systems, Inc. v. Tetra Pak Cheese
and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Accordingly, Appellant does not persuade us of error in the
Examiner’s conclusion that a person having of ordinary skill in the art at the
time of the invention would have combined Irwin with Engdahl.
D. The Examiner provides proper reasoning for combining the
cited references
The Examiner finds that Irwin teaches to use one or more data inputs
or outputs of an object for communicating with other objects representing
other process plant entities within the process plant Final Act. 7–8 (citing
Irwin col. 4, ll. 57–62; col. 7, ll. 52–54; col. 8, ll. 34–53; col. 9, ll. 13–29;
col. 10, ll. 13–20 and 50–63; col. 12, ll. 52–60) and Engdahl teaches to use
the one or more data inputs or outputs to allow an object to process data
represented by properties of their own or different objects (Final Act. 12–13
(citing Engdahl col. 2, ll. 10–12; col. 5, ll. 52–59 and col. 6, ll. 1–10)). The
Examiner concludes that it would have been obvious to a person of ordinary
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skill in the art at the time of the invention to combine Engdahl with Irwin to
provide a graphical representation of a system for efficient control of the
system. Final Act. 12–13 (citing Engdahl col. 2, ll. 10–12).
Appellant argues that it would not have been obvious for one or
ordinary skill in the art to combine cited references to arrive at the invention
recited in claim 1 because the Examiner reaches a legal conclusion of
obvious only through impermissible hindsight. Appeal Br. 13. According to
Appellant, the Examiner appears to use claims as a roadmap to modify the
references since none of the references, alone or in combination, discloses
one or more methods which perform functions related to the process entity
using parameter data corresponding to different objects representing the
different process entities. Id.
As discussed above, we agree with the Examiner’s conclusion that the
combination of Irwin and Engdahl teaches the limitation “perform functions
related to the process entity using . . . the one or more data inputs or outputs
including parameter data corresponding to the different objects representing
the different process entities,” as recited in claim 1.
Regarding Appellant’s hindsight argument, we are cognizant that our
reviewing courts have not established a bright-line test for hindsight. In KSR
International Co. v. Teleflex, Inc., 550 U.S. 398 (2007), the Supreme Court
guides that “[a] factfinder should be aware, of course, of the distortion
caused by hindsight bias and must be cautious of argument reliant upon ex
post reasoning.” KSR, 550 U.S. at 421 (citing Graham v. John Deere Co. of
Kansas City, 383 U.S. 1, 36 (1966)). Nevertheless, the Supreme Court
qualified the issue of hindsight by stating, “[r]igid preventative rules that
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deny factfinders recourse to common sense, however, are neither necessary
under our case law nor consistent with it.” Id.
In reviewing the record here, Appellant does not identify any
knowledge relied upon by the Examiner that was gleaned only from
Appellant’s disclosure and that was not otherwise within the level of
ordinary skill in the art at the time of application filing. See In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). In this case, the Examiner
relies on column 2, lines 10–12 of Engdahl for the conclusion that a person
of ordinary skill of art would have combined Irwin and Engdahl. Final
Act. 12–13 (citing Engdahl, col. 2, ll. 10–12; col. 5, ll. 52–59 and col. 6,
ll. 1–10). Therefore, the Examiner’s knowledge was not gleaned only from
Appellant’s disclosure.
Moreover, Appellant does not provide persuasive evidence that
combining the respective teachings of the references (as proffered by the
Examiner – Final Act. 12–13) would have been “uniquely challenging or
difficult for one of ordinary skill in the art,” or that such a combination
would have “represented an unobvious step over the prior art.” Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d at 1162. Nor does Appellant
provide any objective evidence of secondary considerations, which, as our
reviewing court explains, “operate[] as a beneficial check on hindsight.”
Cheese Systems, Inc. v. Tetra Pak Cheese and Powder Systems, Inc., 725
F.3d at 1352.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2, 4, 6–8, 10, and 12–20 not argued separately with
particularity. Therefore, we sustain the Examiner’s rejection of:
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(1) independent claim 1; and (2) dependent claims 2, 4, 6–8, 10, and 12–20
under pre-AIA 35 U.S.C. § 103(a).
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4, 6–8,
10, 12, 13
103(a) Irwin, Crater,
Lewis, Engdahl
1, 2, 4, 6–8,
10, 12, 13

14 103(a) Irwin, Crater,
Lewis, Engdahl,
Nixon
14
15–17, 20 103(a) Irwin, Crater,
Lewis, Engdahl,
Simmons
15–17, 20
18 103(a) Irwin, Crater,
Lewis, Engdahl,
Simmons, Stewart
18
19 103(a) Irwin, Crater,
Lewis, Engdahl,
Simmons, Pai
19
Overall
Outcome
1, 2, 4, 6–8,
10, 12–20