Ex Parte Holmes et al

Patent Trial and Appeal Board

Mar 23, 2016

12890294 (P.T.A.B. Mar. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/890,294 09/24/2010
34431 7590 03/25/2016
HANLEY, FLIGHT & ZIMMERMAN, LLC
150 S. WACKER DRIVE
SUITE 2200
CHICAGO, IL 60606
FIRST NAMED INVENTOR
David Farrell Holmes
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.
20040/3657PT 8044
EXAMINER
TITCOMB, WILLIAM D
ART UNIT PAPER NUMBER
2141
NOTIFICATION DATE DELIVERY MODE
03/25/2016 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):
mailroom@hfzlaw.com
jflight@hfzlaw.com
mhanley@hfzlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte DAVID FARRELL HOLMES, DALE HENRY PERRY,
DONALD ROBERT LATTIMER, DAVID MICHAEL PARSONS, and
HARRY ALAN BARNS
Appeal2014-000770
Application 12/890,294
Technology Center 2100
Before JEAN R. HOMERE, CHRISTA P. ZADO, and JESSICA C.
KAISER, Administrative Patent Judges.
ZADO, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 file this appeal under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 1-16, 20-25, 29-32, and 39. 2 We have
jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
1 Appellants identify Fisher-Rosemount Systems, Inc. as the real party in
interest. App. Br. 2.
2 Claims 17-19, 26-28, and 33-38 are canceled. App. Br. 32, 34, 35.
Appeal2014-000770
Application 12/890,294
STATEMENT OF THE CASE3
Claim 1 is exemplary:
1. A method to display process control information, the method
compnsmg:
receiving in a processor a first status of a first mode element
associated with an object of a process control device;
receiving in the processor a second status of a second mode
element associated with the object of the process control device;
combining the first status and the second status;
determining a mode of the object based on the combination of
the first status and the second status, the mode indicating a condition
of the object of the process control device; and
displaying the mode of the object of the process control device
within a user interface as a graphic.
THE REJECTION
Claims 1-16, 20-25, 29-32, and 39 stand rejected under§ 102(b) as
anticipated by U.S. Pat. Publ. 2008/0097637 Al (published Apr. 24, 2008)
("Nguyen").
ANALYSIS
We agree with Appellants that the Examiner erred in finding Nguyen
discloses "determining a mode of the object based on the combination of the
first status and the second status, the mode indicating a condition of the
3 We refer to the Appeal Brief and Reply Brief for the positions of
Appellants and the Final Office Action and Answer for the positions of the
Examiner. Only those arguments actually made by Appellants have been
considered in this Decision. Arguments that Appellants did not make in the
Briefs have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv).
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Appeal2014-000770
Application 12/890,294
object of the process control device" and "displaying the mode of the
object," as recited in independent claim 1, and similarly recited in
independent claims 16 and 25. App. Br. 13-16. We also agree that the
Examiner erred in finding Nguyen discloses a mode of an object "wherein
the mode of the object is based on a combination of statuses associated with
the object," as recited in independent claim 29. App. Br. 25-26.
As to claims 1, 16, and 25, the Examiner finds that a process for
polymerizing polypropylene reads on the claimed "object," and that control
variables CVl, CV2, and CV3, representing dependent temperatures,
pressures, compositions and flows measuring a process state (Nguyen
i-f 277), are statuses of mode elements associated with the polypropylene
process. Ans. 20-21. Claims 1, 16, and 25 require combining a first and
second status, determining a mode of the object based on the combination of
statuses, and displaying the mode within a user interface as a graphic. With
respect to combining statuses and determining a mode, the Examiner relies
on Nguyen's disclosure of a multivariable constraint controller ("MVCC")
that receives control variables CVl, CV2, and CV3 as inputs. Ans. 21-22
(citing Nguyen i-f 270, Fig. 7). The Examiner finds that Nguyen combines
the inputs, and furthermore, that the inputs measure a process state in the
vicinity of a specific sensor, and a specific time. Id.
The Examiner has not sufficiently identified any portion in Nguyen
that discloses the claimed "mode." The Examiner finds Figure 22 of
Nguyen shows a display of the mode of the object on the ground that it
depicts "a composite rendering of individual events or collective events both
of which indicate a mode and presents a combination of status or statu[ s ]es
to the operator of the object the propylene process." Ans. 22. The
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Appeal2014-000770
Application 12/890,294
Examiner, however, does not sufficiently explain how the information
depicted in Figure 22 of Nguyen is related to the combination of inputs CVl,
CV2, and CV3 in the MVCC, or what within that figure teaches the
displayed "mode."
"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability." In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). "[A]nticipation of a claim
under § 102 can be found only if the prior art reference discloses every
element of the claim .... " In re King, 801F.2d1324, 1326 (Fed. Cir. 1986)
(citing Lindemann Maschinenfabrik GMBH v. Am. Hoist & Derrick Co., 730
F.2d 1452, 1457 (Fed. Cir. 1984)). "[A ]bsence from the reference of any
claimed element negates anticipation." Kloster Speedsteel AB v. Crucible
Inc., 793 F.2d 1565, 1571 (Fed. Cir 1986). In light of the foregoing reasons,
the Examiner has not clearly identified determination of a "mode" based on
the combination of two of CVl, CV2, and CV3, and displaying the mode
that is determined based on that combination, as required by claims 1, 16,
and 25.
On the record before us we, therefore, do not sustain the Examiner's
rejection of independent claims 1, 16, and 25, and claims 2-15 and 20-24
depending directly or indirectly therefrom.
As to independent claim 29, the Examiner does not clearly identify a
"mode of the object" that "is based on a combination of statuses associated
with the object," as required by the claim. The Examiner relies on Nguyen's
disclosure of controller monitor calculations that include calculating the
accumulation of the length of time during which a measurement is not
meeting and criss-crossing a set point, as well as the accumulation of the
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Appeal2014-000770
Application 12/890,294
deviation between the measurement and the setpoint to detect controller
malfunction. Ans. 30-31 (citing Nguyen Fig. 36); see also Nguyen i-f 132
(describing Fig. 36). Absent from the Examiner's findings is a clear
identification of a portion in Nguyen that discloses statuses of an object and
a mode of the object based on a combination of the statuses. As noted
above, the Examiner bears the burden of making a prima facie case of
unpatentability. However, the Examiner has not met that burden because the
Examiner has not identified or sufficiently explained how Nguyen discloses
each element of claim 29.
On the record before us we, therefore, do not sustain the Examiner's
rejection of independent claim 29, and claims 30-32 and 39 depending
directly or indirectly therefrom.
DECISION
The Examiner's decision rejecting claims 1-16, 20-25, 29-32, and 39
is reversed.
REVERSED
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