Ex Parte Giaimo et al

Patent Trial and Appeal Board

Dec 18, 2018

13570073 (P.T.A.B. Dec. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/570,073 08/08/2012
69316 7590 12/20/2018
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
FIRST NAMED INVENTOR
Edward C. Giaimo III
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.
336873-US-NP 9234
EXAMINER
VORTMAN, ANATOLY
ART UNIT PAPER NUMBER
2835
NOTIFICATION DATE DELIVERY MODE
12/20/2018 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):
usdocket@microsoft.com
chriochs@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD C. GIAIMO III, YI HE, ROBERT D. YOUNG, and
ANDREW D. DELANO
Appeal2018-000418
Application 13/570,073
Technology Center 2800
Before CATHERINE Q. TIMM, MONTE T. SQUIRE, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 2, 4--13, and 18-21. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 We refer to the Specification ("Spec.") filed August 8, 2012; Final Office
Action ("Final Act.") dated March 31, 2016; Appellants' Appeal Brief
("Br.") filed September 30, 2016; and Examiner's Answer ("Ans.") dated
December 6, 2016.
2 Appellants identify Microsoft Technology Licensing, LLC, as the real
party in interest. Br. 3.
Appeal2018-000418
Application 13/570,073
BACKGROUND
The subject matter on appeal relates to managing a heat transfer
device, such as to transfer heat from a heat-generating component of a
computing device. Spec. ,r,r 1-2. According to the Specification, the
efficiency of certain heat transfer pipes can be affected by their orientation.
Id. ,r 17. Appellants describe, inter alia, operating transfer pipe cooling fans
such that a fan associated with a pipe in a high efficiency orientation is
driven at a greater speed than that of a fan associated with a lower efficiency
oriented pipe. Id. Claim 1 is illustrative:
1. A device comprising:
a housing;
a heat-generating device disposed within the housing;
a heat transfer device disposed within the housing, the
heat transfer device having a powered active cooling device and
a plurality of heat pipes arranged in opposing directions, one to
another, each of the plurality of heat pipes having an evaporator
and a condenser formed as a single continuous linear portion;
and
one or more modules that are configured to perform
adjustments to the powered active cooling device to control
temperature within a target temperature range, the adjustments
to the powered active cooling device specified according to a
plurality of operational modes, a specific operational mode
determined by weighting strategies depending upon a detected
orientation and a current fan speed.
Br. 36 (Claims Appendix).
Claim 18 is similar to claim 1, with the recited heat transfer
components provided in a computing device. Each remaining claim on
appeal depends from claim 1 or 18.
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Application 13/570,073
REJECTIONS
I. Claims 1, 2, 4--13, and 18-21 stand rejected under 35 U.S.C. § 112,
first paragraph, for lacking adequate written description. 3
II. Claims 1, 2, 4--13, and 18-21 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Liao4 and Lee. 5
III. Claims 1, 2, 4--13, and 18-20 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Liao, Pimlott, 6 and Lee.
OPINION
Rejection I
Claim 1 requires at least one module configured to adjust an active
cooling device, wherein the adjustments are made "according to a plurality
of operational modes," with "a specific operational mode determined by
weighting strategies depending upon a detected orientation and a current fan
speed." (Emphasis added). Claim 18 similarly requires a module
configured to perform fan speed adjustments based on "the detected
orientation and a current fan speed." (Emphasis added). The Examiner
determines that the Specification lacks written description of adjusting fan
speed based in part on a current fan speed. Final Act. 2-3. See also, Ans. 3
("[I]n the present invention the adjustments of the powered active device is
[sic] not based on the current fan speed, but only on the orientation and
3 The Examiner's statement of this Rejection mistakenly includes claims 14--
17. Final Act. 2. Those claims are withdrawn and not before us. See
Response to Restriction Requirement, filed November 18, 2014.
4 US 2013/0081779 Al, published April 4, 2013 ("Liao").
5 US 6,712,129 Bl, issued March 30, 2004 ("Lee").
6 US 2013/0333871 Al, published December 19, 2013 ("Pimlott").
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Application 13/570,073
temperature of the device to be cooled.") (Emphasis and internal quotes
omitted).
Appellants argue that the Examiner's rejection is in error because it is
premised on an incorrect interpretation that the claims require detection of
current fan speed. Br. 13. Particularly, Appellants argue that the Examiner
incorrectly construes the phrase "detected orientation and a current fan
speed" as requiring detection of a current fan speed. Id. Appellants further
argue that the Specification implicitly describes detection and use of a
current fan speed because "[t]o adjust the fan speed either up or down, the
current fan speed must be reasonably ascertained." Id. at 14.
Appellants' arguments are unpersuasive of reversible error. The
Examiner's rejection is based on a determination that the Specification lacks
adequate written description of using current fan speed as a basis for
performing fan speed adjustment. That determination does not involve or
require the claim interpretation which Appellants contend would be
improper. The issue involved in the Examiner's§ 112 rejection is not
whether the term "detected" modifies "current fan speed" in the phrase
"detected orientation and a current fan speed," but whether the Specification
describes using a current fan speed as a basis for fan speed adjustment.
Appellants' claim construction argument neither addresses nor identifies
reversible error in the Examiner's determination that the Specification lacks
such description.
Regarding Appellants' inherency argument, Appellants do not
persuasively explain why fan speed adjustment necessarily is based on a
current fan speed. The Examiner identifies various techniques by which fan
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Application 13/570,073
speed can be adjusted without knowledge or use of current fan speed. Ans.
4--5. Appellants do not challenge that reasoning. 7
For the foregoing reasons, Appellants to not identify reversible error
in the Examiner's rejection under 35 U.S.C. § 112, first paragraph.
Rejection I is sustained.
Rejection II
With regard to Rejection II, the Examiner finds that Liao discloses a
heat management device which operates to control fan speed based on
temperature and orientation of the device. Final Act. 4. The Examiner
presents no evidence of any teaching in Liao that a current fan speed is used
in the disclosed fan speed control. Rather, the Examiner reasons that,
because Liao teaches fan control being based on temperature and device
orientation, "it is clear that Liao et al can be inherently interpreted as
teaching" adjusting fan speed according to operational modes determined
based upon a detected orientation and a current fan speed. Id. Particularly,
the Examiner adopts the same inherency argument presented by Appellants
in connection with Rejection I. See Ans. 8 n. 1 (applying Appellants'
inherency argument made against the § 112 rejection to support a finding
that adjusting fan speed necessarily involves detection and use of a current
fan speed). Appellants challenge the Examiner's inherency finding. 8 Br. 16.
7 No reply brief has been received.
8 It bears noting that Appellants dispute in Rejection II (Br. 16) the same
inherency argument that Appellants assert in connection with Rejection I (id.
at 14), whereas the Examiner oppositely rejects in Rejection I (Ans. 4--5) the
same inherency argument that the Examiner relies upon in Rejection II (Ans.
8). In either instance, we are not presented with persuasive evidence or
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Application 13/570,073
Inherency "may not be established by probabilities or possibilities.
The mere fact that a certain thing may result from a given set of
circumstances is not sufficient." Continental Can Co. USA, Inc. v.
Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991) (quoting In re Oelrich,
666 F.2d 578, 581 (CCPA 1981)). An inherent characteristic must be
inevitable. See Oelrich, 666 F .2d at 581. We see no distinction between the
Examiner's and Appellants' inherency arguments. Neither is supported by
evidence. The Examiner's own explanation as to why fan speed adjustment
does not necessarily involve knowledge or use of a current fan speed (Ans.
4--5) aptly demonstrates why the inherency finding adopted in support of the
obviousness determination is flawed. Lee is not relied upon in a manner that
addresses the foregoing deficiency.
Rejection II is not sustained.
Re} ection III
As an alternative to the above-discussed inherency rationale,
Rejection III is premised on the Examiner's finding that Pimlott teaches fan
speed adjustment based on, inter alia, a current fan speed. Final Act. 12. In
support of that finding, the Examiner solely points to Pimlott's identification
of a "series of speed values." Ans. 12 ( citing Pimlott Abstract). Appellants
argue that Pimlott lacks any such teaching. Br. 29.
The relied-upon phrase in Pimlott's Abstract appears in the following
sentence:
The controller (120) is constructed and arranged to determine a
speed value for the cooling device (118) in accordance with a
technical reasoning that would support a finding that adjusting fan speed
necessarily uses current fan speed as a basis for the adjustment.
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Application 13/570,073
temperature input received from a temperature sensor (122)
associated with the apparatus, the speed value being selected
from a set ofN speed values.
The referenced set of N speed values refers to a set of values from which the
controller selects to provide an adjusted cooling device speed based on
temperature. Particularly, Pimlott discloses determining a suggested
theoretical fan speed based on the difference between actual temperature and
a target temperature, and translating the suggested fan speed to one of a
predetermined set of allowable speeds. Pimlott ,r,r 72, 73. These passages
do not support the Examiner's finding that Pimlott teaches adjusting fan
speed based on a current speed. Nor does the Examiner point to any other
disclosure in Pimlott for that purpose.
For the foregoing reasons, we are persuaded that the Examiner's
finding concerning the teachings of Pimlott is not supported by a
preponderance of evidence. Accordingly, Rejection III is not sustained.
CONCLUSION
The Examiner's rejection under 35 U.S.C. § 112 is sustained.
The Examiner's rejections under 35 U.S.C. § 103 are not sustained.
DECISION
The Examiner's decision rejecting claims 1, 2, 4--13, and 18-21 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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