Gary A. Dage et al.

Patent Trials and Appeals Board

Nov 12, 2019

13735136 - (D) (P.T.A.B. Nov. 12, 2019)

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.
13/735,136 01/07/2013 Gary A. Dage 83332806 4998
28395 7590 11/12/2019
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
HUNTLEY, MICHAEL J
ART UNIT PAPER NUMBER
2116
NOTIFICATION DATE DELIVERY MODE
11/12/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GARY A. DAGE and MICHAEL T. SPENCER
____________

Appeal 2018-008045
Application 13/735,136
Technology Center 2100
____________

Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and
SCOTT RAEVSKY, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 5–7, 9, 12–14, and 21–30. We have
jurisdiction over the appeal 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. Appellant identifies the real party in interest as Ford Global
Technologies, LLC. Appeal Br. 1.
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Application 13/735,136

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The present invention relates generally to a climate control system
that includes adjusting a blower speed. See Abstr.
Independent claim 1, reproduced below, is representative of the
appealed claims:
1. A computer-implemented method comprising:
initiating a blower at a locally stored default speed, the
speed determined responsive to at least one determined
environmental variable value;
receiving input changing a blower speed of the initiated
blower;
responsive to the user input, querying a user as to
whether the changed blower speed should be a new default
speed; and
responsive to user confirmation of the query, replacing a
locally stored default speed, stored in association with the
environmental variable value, with a new speed corresponding
to the changed blower speed.

Appellant appeals the following rejections:
R1. Claims 21 and 28–30 are rejected under 35 U.S.C. § 101 as being
directed to patent ineligible subject matter. Final Act. 2–4.
R2. Claims 1, 9, 21, 22, 24, 25, 27, 28, and 30 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Obradovich (US 6,131,060; iss.
Oct. 10, 2000) and Jensen (US 2012/0078420 A1; publ. Mar. 29, 2012).
Final Act. 5–10.
R3. Claims 5–7 and 12–14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Obradovich, Jensen, Nakamura (US 2008/0229768
A1; publ. Sept. 25, 2008), and Ichishi (US 7,346,440 B2; iss. Mar. 18,
2008). Final Act. 10–16.
R4. Claims 23, 26, and 29 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Obradovich, Jensen, and Klapp (US 2002/0002833
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A1; publ. Jan. 10, 2002). Final Act. 16–17.
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).

ANALYSIS
Rejection under § 101
The Examiner rejected claims 21 and 28–30 under 35 U.S.C. § 101 as
directed to the abstract idea of “An Idea of Itself.” Final Act. 2. In
response, Appellant presented numerous argument rebutting the § 101
rejection. See Appeal Br. 5–8. In view of Appellant’s arguments in the
Appeal Brief, as well as recent court decisions, the Examiner determined
that the “blower engaged at a default setting that corresponds, based on a
predefined association, to a determined environmental variable value”
qualifies as “significantly more” in light of Berkheimer. See Ans. 4;
Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) (“[w]hether
something is well-understood, routine, and conventional to a skilled artisan
at the time of the patent is a factual determination.”).
As a result, the Examiner withdrew the rejection of claims 21 and 28–
30 under 35 U.S.C. § 101. Ans. 4.

Rejections under § 103(a)
Appellant contends that “under no conceivable circumstance [in
Jensen] would the system ‘replac[e] a locally stored default speed, stored in
association with the environmental variable value, with a new speed
corresponding to the changed blower speed.’ . . . [It] would defeat the
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Application 13/735,136

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express purpose of the invention, which is to achieve noise reduction.”
Appeal Br. 9. Appellant emphasizes that “the replacement of the default
speed, is not appropriate to the teachings of Jensen.” Id.
However, the Examiner points out, and we agree, that “[i]t is
noteworthy that Jensen is only relied upon in the claim rejections to teach
limitations that involve an association of fan speed with environmental
conditions” (Ans. 5), not for teaching receiving input changing a blower
speed and replacing a locally stored default speed. Instead, the Examiner
relies upon Obradovich to teach and/or suggest changing a speed and
replacing a stored default speed. See Final Act. 6. Here, Appellant fails to
specifically rebut the findings in Obradovich. See Appeal Br. 8–9.
Furthermore, Appellant concedes that Jensen teaches an association of
fan speed with environmental conditions. See Appeal Br. 8 (“in paragraphs
[0039] and [0040] Jensen teaches that while fans may be operated based on
detected temperatures . . .”). However, Appellant fails to sufficiently rebut
the combination of Jensen and Obradovich.
Therefore, Appellant’s arguments against Jensen separately from
Obradovich does not persuasively rebut the combination made by the
Examiner. One cannot show non-obviousness by attacking references
individually, where the rejections are based on combinations of references.
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller,
642 F.2d 413, 425–26 (CCPA 1981).
Specifically, Appellant’s arguments do not take into account what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art and is therefore ineffective to rebut the Examiner’s prima
facie case of obviousness. See In re Keller, 642 F.2d at 425 (“The test for
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obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”) (citations
omitted). This reasoning is applicable here.
Accordingly, we sustain the Examiner’s rejection of claim 1.
Appellant’s arguments regarding the Examiner’s rejection of independent
claims 9 and 21 rely on the same arguments as for claim 1, and Appellant
does not argue separate patentability for the dependent claims. See App. Br.
8–10. We, therefore, also sustain the Examiner’s rejections of claims 5–7, 9,
12–14, and 21–30.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 9, 21,
22, 24, 25,
27, 28, 30
103 Obradovich, Jensen 1, 9, 21, 22,
24, 25, 27,
28, 30

5–7, 12–14 103 Obradovich, Jensen,
Nakamura, Ichishi
5–7, 12–14
23, 26, 29 103 Obradovich, Jensen,
Klapp
23, 26, 29
Overall
Outcome

1, 5–7, 9,
12–14, 21–
30

Appeal 2018-008045
Application 13/735,136

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

AFFIRMED