Ex Parte Cheng et al

Patent Trial and Appeal Board

Oct 25, 2016

12628821 (P.T.A.B. Oct. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/628,821 12/01/2009
45372 7590 10/27/2016
Marshall, Gerstein & Bornn LLP (Emerson)
233 South Wacker Drive
6300 Willis Tower
Chicago, IL 60606
FIRST NAMED INVENTOR
Xu Cheng
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.
06005/642210 6642
EXAMINER
CHAD,ANISS
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
10/27/2016 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 XU CHENG, RICHARD W. KEPHART, CHENG TAO WEN, and
B. ERIK YDSTIE
Appeal2015-007545
Application 12/628,821
Technology Center 2100
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Action rejecting claims 1-7, 11-17, 25-29, and 33-35. Claims 8-10,
18-24, and 30-32 are objected to as being dependent upon a rejected base
claim but would otherwise be allowable if rewritten in independent form to
include all of the limitations of the base claims and any intervening claims.
We reverse.
Appeal2015-007545
Application 12/628,821
STATEMENT OF THE CASE
Claims 1---6, 11-16, 25-27, 29, and 33-35 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Blevins (US 7, 110,835 B2; issued
Sept. 19, 2006) and Itou Akio et al., EJX910 Multivariable Transmitter,
Yokogawa Technical Report English Edition, No. 42 (2006) ("Itou"). Final
Act. 8-14. 1
Claims 7, 17, and 28 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Blevins, Itou, and Fabricius S.M.O, et al., Modelica
Library for Hybrid Simulation of Mass Flow in Process Plants, in Proc. of
the 2d Int'l Modelica Conf., 225-34 (Mar. 18, 2002) ("Fabricius"). Final
Act. 15.
We have jurisdiction under 3 5 U.S. C. § 6(b ). We review the appealed
rejections for error based upon the issues identified by Appellants, and in
light of the arguments and evidence produced thereon. Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
SUMMARY OF THE INVENTION
Appellants' invention simulates a physical plant through which mass
flows. Spec i-f 14. One embodiment simulates a plant element using
information from downstream elements. Id. i-f 47. Successive simulation
cycles use this downstream feedback to create a more accurate overall
simulation. Id.
1 Throughout this opinion, we refer to (1) the Final Action mailed November
6, 2014 ("Final Act."); (2) the Appeal Brief filed March 11, 2015
("App. Br."); (3) the Examiner's Answer mailed July 2, 2015 ("Ans."); and
(4) the Reply Brief filed August 11, 2015 ("Reply Br.").
2
Appeal2015-007545
Application 12/628,821
Independent claim 1, reproduced below with our emphasis, is
illustrative:
1. A distributed simulation system for simulating the
operation of a set of physical plant elements through which mass
flows, comprising:
a computer network including a plurality of drops and a
communication network that communicatively couples the
plurality of drops, wherein each of the plurality of drops includes
a processor; and
a multiplicity of processor implemented simulation
modules, each of the multiplicity of simulation modules
including a process model that models the operation of a different
one of the physical plant elements,
wherein a first one of the simulation modules is an
upstream simulation module located in a first drop of the
plurality of drops that models the operation of a first one of the
set of physical plant elements and a second one of the simulation
modules is a downstream simulation module located in a second
drop of the plurality of drops different from the first drop that
models the operation of a second one of the set of physical plant
elements disposed downstream of the first one of the set of
physical plant elements;
wherein the downstream simulation module operates via a
processor to communicate a value of a process variable
calculated by the downstream simulation module to the upstream
simulation module, and the process model of the upstream
simulation module operates via a processor to use the value of
the process variable calculated by the downstream simulation
module to produce an output associated with the operation of the
physical plant element modeled by the upstream simulation
module, so that the upstream and downstream simulation
modules communicate calculated process variable information
between one another to perform simulation of mass flow between
the first physical plant element and the second physical plant
element.
3
Appeal2015-007545
Application 12/628,821
SUMMARY
In the Final Action, the Examiner finds that Blevins does not teach a
downstream simulation module communicating a calculated variable to an
upstream simulation module that uses that variable. Final Act. 8-10. In the
Answer, however, the Examiner changes the thrust of this rejection by
making additional findings regarding communications between Blevins's
modules. See Ans. 5-7 (citing Blevins, Fig. 8; col. 29, 1. 66-col. 30, 1. 5). In
particular, the Examiner makes new findings, which concern Blevins's
Figure 8. Compare Ans. 6-7 with Final Act. 8-10 (citing neither Figure 8
nor the corresponding description in columns 29 or 30). In the Reply Brief,
Appellants rebut these new findings. Reply Br. 6-8.
Although these two rationales are not designated as separate grounds
of rejection, we nevertheless separately address the Examiner's reasoning in
the Final Action (Final Act. 8-10) and the Answer (Ans. 5-7).
THE FINAL ACTION'S OBVIOUSNESS REJECTION OVER
BLEVINS AND ITOU
Contentions
In the Final Action, the Examiner finds that Blevins teaches every
recited element of claim 1 except a downstream simulation module
communicating a calculated variable to an upstream simulation module.
Final Act. 9. In concluding that claim 1 would have been obvious, the
Examiner finds that Itou teaches this limitation. Id. at 9-10. According to
the Examiner, Itou's EJXMVTool corresponds to the recited upstream
simulation module, and Itou's EJX910 transmitter corresponds to the recited
downstream simulation module. Ans. 10-11. The Examiner finds that
4
Appeal2015-007545
Application 12/628,821
Itou's EJX910 transmitter has a simulation module. Id. at 7 (citing Itou 16).
The results of Itou's mass-flow calculations (Ans. 8-9), in the Examiner's
view, are verified by the EJX910 transmitter (downstream) and incorporated
at the EJXMVTool (upstream). Id. at 11.
Appellants contend that Itou lacks upstream and downstream modules
that communicate in the manner recited in claim 1. App. Br. 13-14;
Reply Br. 3-9. In Appellants' view, Itou's EJX910 transmitter (the
Examiner-mapped downstream module) calculates the mass-flow rate using
measured quantities and parameters. App. Br. 13; Reply Br. 4. But
according to Appellants, Itou' s EJX910 transmitter is a measurement system
that does not simulate anything. Reply Br. 4. Moreover, Appellants argue
that the EJXMVTool (the Examiner-mapped upstream module) simulates
the EJX910 transmitter, not a different physical element, as claimed. Id.
Accordingly, in Appellants' view, Itou lacks a module simulating a
downstream element and communicating a value to an upstream module to
be used in the simulation of a different physical-plant element. Id. at 9.
Analysis
Claim 1 expressly imposes two relevant requirements. First, the
recited downstream module communicates a value to an upstream simulation
module (i.e., "the downstream simulation module operates via a processor to
communicate a value of a process variable calculated by the downstream
simulation module to the upstream simulation module.") Second, the recited
upstream and downstream simulation modules must model the operation of
different physical-plant elements (i.e., "each of the multiplicity of simulation
modules including a process model that models the operation of a different
one of the physical plant elements.") We are persuaded by Appellants'
5
Appeal2015-007545
Application 12/628,821
contention that the Examiner, in the Final Action, has not shown that it
would have been obvious to perform a communication that satisfies both of
these requirements. See App. Br. 13-14; Reply Br. 3-9.
For instance, the Examiner has not shown that the cited simulated
flow-rate calculations or any other process model are performed by the
EJX910 transmitter-i.e., the Examiner-mapped downstream module. See
Ans. 10 (quoting Itou 16). Rather, Itou attributes the simulated calculations
to the EJXMVTool-i.e., the Examiner-mapped upstream module. See Itou
15-16. Whereas Itou's EJXMVTool simulates mass-flow rate calculations
(id. at 16, item (7)), Itou's EJX910 transmitter calculates mass-flow rates
from actual measurements (id. at 14).
On this record, we agree with Appellants that the EJXMVTool
simulates the EJX910' s calculation, instead of a downstream simulation
communicating values to another different simulation upstream, as claimed.
See Reply Br. 4. That is, the Examiner has shown only that Itou simulates,
at most, one process-not two different processes that communicate from
downstream to upstream. See id.
To be sure, the EJXMVTool and EJX910 transmitter exchange data.
Accord Ans. 11, citing Itou, Fig. 6. For example, Itou' s EJX910 transmitter
calculates mass-flow rate using parameters downloaded from the
EJXMVTool and is part of the mass flow rate measurement system, as stated
and shown in Figure 4. Itou 14. Itou's EJXMVTool creates files and reports
from parameters sent from the EJX910 transmitter as well as downloads
these files to the transmitter. Id. at 15. But the Examiner has not shown that
this exchange is between two simulations of different elements, as claimed
(e.g., the recited process models of an upstream simulation module and a
6
Appeal2015-007545
Application 12/628,821
downstream simulation module, each module modeling the operation of a
different physical plant element). See Final Act. 9-10; Ans. 10-11. At best,
Itou teaches "the sensor inputs in Figure 9 [are] applied as simulated inputs."
Itou 15, Fig. 9. Although the Examiner cites to this figure in passing
(Ans. 10), the Examiner has not elaborated sufficiently to establish that one
sensor input is from the downstream simulation module. See id.; see also
Final Act. 9-10.
Rather, Itou's communication outputs involve parameters for the same
mass flow calculation, but with two different inputs---one simulated (Itou
16, item (7)) and another based on actual measurement (id. at 14).
Additionally, the Examiner focuses on the upstream and downstream
pressure of a single element (e.g., an orifice) and not different elements, as
recited. Ans. 8 (stating "EJX910 measures the difference between the
upstream and downstream pressure of the orifice in the process.")
Accordingly, we are persuaded that the Examiner erred in finding that Itou
teaches a downstream simulation module communicating a calculated
variable to an upstream simulation module for use in its simulation
(Final Act. 9).
Accordingly, we will not sustain the Examiner's rejection of claim 1
(id. at 8-10). Nor do we sustain the rejections of claims 2-6, 11-16, 25-27,
29, and 33-35, which are based on the Examiner's rationale for claim 1 (see
id. at 8-14).
7
Appeal2015-007545
Application 12/628,821
THE ANSWER'S UNDESIGNATED NEW GROUND OF REJECTION
Contentions
In the Answer, the Examiner cites Blevins's Figure 82 in responding
to Appellants' arguments against claim 1 's rejection. See Ans. 5-7 (citing
Blevins, Fig. 8; col. 29, 1. 66-col. 30, 1. 5). For example, the Examiner
quotes Blevins's discussion of process module 202 communicating with a
control module 200. Ans. 7.
In response to these findings, Appellants argue that Blevins's control
module 200 is not a simulation module. Reply Br. 6-7 (citing Blevins,
col. 29, 1. 66-col. 30, 1. 5). According to Appellants, Blevins's control
module performs actual control of the same physical element simulated by
the process module (the Examiner-mapped simulation module). Reply Br. 7.
So in Appellants' view, the Blevins-Hou combination still lacks a
downstream simulation module "to communicate a value of a process
variable calculated by the downstream simulation module to the upstream
simulation module" to be used in the upstream simulation, as recited in
claim 1. Id.
Analysis
We are persuaded by Appellants' argument (id.) that the Examiner has
not shown Blevins's downstream simulation element communicates a value
to an upstream module that, in tum, uses it in a different simulation of a
different physical plant element.
2 Blevins's Figure 8 labels element 202 as "CONTROL MODULE." But the
corresponding description calls it the "process module." See Blevins,
col. 29, 1. 66-col. 30, 1. 5. Consistent with this description (id.), we
understand Blevins's element 202 to be the process module.
8
Appeal2015-007545
Application 12/628,821
As the Examiner points out, Blevins's upstream elements
communicate values to downstream elements. See Blevins col. 26, 11. 1-24,
quoted in Ans. 6; accord Ans. 7. But here, the Examiner does not identify a
downstream element communicating values to one upstream. See Ans. 7.
Although Blevins system can connect elements in various ways (see Blevins
col. 25, 11. 3-28), the Examiner does not identify the recited downstream-to-
upstream connection in Blevins. See Ans. 5.
Blevins's Figure 8 does show two elements with connections between
them. See Blevins Fig. 8 (showing modules 202 and 200). In the Answer,
the Examiner reproduces Blevins's Figure 8 with annotations. See Ans. 6
(showing annotations to elements 206 and 217). But the Examiner's
annotations are illegible. And the Examiner's comments that follow Figure
8 do not clarify the meaning of these illegible annotations. See id. at 7.
Nevertheless, to the extent that the Examiner intends to map Blevins's
modules 200 and 202 to the respectively recited upstream and downstream
simulation modules, the Examiner has not identified a simulation performed
by Blevins's control module 200 that is used in some other upstream
simulation module. See id. at 6-7. To the contrary, we agree with
Appellants that Blevins's control module 200 controls an actual physical
element. See Reply Br. 7. For example, control module 200 produces
values that control the mixer's input valve actuator elements to control the
amount of different fluids provided to the plant's actual mixer. Blevins
col. 29, 11. 36-40.
Blevins does state that control module 200 may run in a simulated
mode. Blevins col. 30, 11. 16-17. However, Blevins further explains that
this simulated mode entails using the "valid simulation data (as provided by
9
Appeal2015-007545
Application 12/628,821
the simulation process module 202) ... during off-line operator training or
to test the control module 200." That is, both stated examples of the
simulation mode still entail sending simulation signals to an actual control
module-not to a simulation module.
Moreover, even if we were to assume, without deciding, that control
module 200 reasonably could be interpreted as constituting a simulation
module when operating in control mode, it would not change our conclusion.
That is, the Examiner has not explained sufficiently on the record how this
discussed control module 200 and the process module 202 in Blevins relate
to different physical plant elements, as recited. See Ans. 5-7; Final Act. 9.
Therefore, the Examiner has not shown that Blevins's process module 202
constitutes a downstream simulation module that communicates a value to
an upstream simulation module, which, in tum, uses the value in a
simulation of a different physical plant element.
Accordingly, we will not sustain the Examiner;s rejection of claim 13
(Final Act. 8-10; Ans. 5-7). Nor do we sustain the rejections of claims 2-6,
11-16, 25-27, 29, and 33-35, which are based on the Examiner's rationale
for claim 1 (see Final Act. 8-14).
3 We take no position whether it was known to provide feedback from a
downstream module to an upstream module---either in simulation systems or
in actual practice. Our review of the rejections for error is limited to the
issues identified by Appellants, and in light of the arguments and evidence
produced thereon. See Frye, 94 USPQ2d at 1075. Here, the Examiner has
not provided sufficient evidence that this feature would have been obvious in
view of the Blevins-Hou combination.
10
Appeal2015-007545
Application 12/628,821
THE OTHER OBVIOUSNESS REJECTIONS
We do not sustain the Examiner's rejection of dependent claims 7, 17,
and 28 (id. at 15) for the same reasons discussed above in connection with
claims 1, 14, and 27. The additional reference, Fabricius, was not relied
upon to teach the recited limitation that is missing from Blevins and Itou,
and, thus, does not cure the deficiency explained previously.
DECISION
The Examiner's decision rejecting claims 1-7, 11-17, 25-29, and 33-
3 5 is reversed.
REVERSED
11