Ex Parte Santacatterina et alDownload PDFPatent Trial and Appeal BoardFeb 9, 201612973287 (P.T.A.B. Feb. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/973,287 12/20/2010 173 7590 02/11/2016 WHIRLPOOL CORPORATION - MD 3601 2000 NORTH M63 BENTON HARBOR, MI 49022 FIRST NAMED INVENTOR Gianpiero Santacatterina 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. PAT-IT20020057-US-CNT2 1605 EXAMINER NORTON, JENNIFER L ART UNIT PAPER NUMBER 2126 NOTIFICATION DATE DELIVERY MODE 02/11/2016 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): whirlpool_patents_co@whirlpool.com mike_lafrenz@whirlpool.com deborah_tomaszewski@whirlpool.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte GIANPIERO SANTACATTERINA, MATTEO SANTINATO, ETTORE ARIONE, and ROCCO PETRIGLIANO Appeal2014-000508 Application 12/973,287 Technology Center 2100 Before CAROLYN D. THOMAS, DANIEL J. GALLIGAN, and SHARON PENICK, Administrative Patent Judges. GALLIGAN, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. § 134(a) of the Examiner's final rejection of claims 1-7. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 2 1 The Appeal Brief identifies Whirlpool Corp. as the real party in interest. App. Br. 2. This appeal relates to Appeal No. 2014-000311 (Application Serial No. 12/821,644). 2 Our Decision refers to Appellants' Appeal Brief filed May 6, 2013 ("App. Br."); Appellants' Reply Brief filed September 26, 2013 ("Reply Br."); Examiner's Answer mailed July 29, 2013 ("Ans."); Final Office Action mailed December 6, 2012 ("Final Act."); and original Specification filed December 20, 2010 ("Spec."). Appeal2014-000508 Application 12/973,287 Culp STATEMENT OF THE CASE Exemplary Claim on Appeal Claim 1, which is the only independent claim, is reproduced below: 1. A process for managing power demand of simultaneously operating appliances, some of which are capable of executing multiple cycles of operation including a normal power consumption cycle of operation and a lower power consumption cycle of operation, the normal power and lower power consumption cycles of operation each having multiple phases, the process comprising: forecasting for each of the appliances a future energy consumption profile corresponding to the cycle of operation being executed; summing the future energy consumption profiles corresponding to the cycles of operation; determining if the sum indicates one or more peaks in power demand that exceeds a peak threshold; and providing a lower power consumption cycle of operation to one or more of the appliances executing a normal power consumption cycle of operation such that any peak in the power demand indicated by the sum of the future energy consumption profiles is less than the peak threshold. References Shavit et al. us 4,612,619 us 5,543,667 EP 0 620 631 Al Sept. 16, 1986 Aug. 6, 1996 Oct. 19, 1994 Ru go 2 Appeal2014-000508 Application 12/973,287 Examiner ;s Rejections (1) Claims 1-7 stand provisionally rejected for obviousness-type double patenting over claims 2-5, 12, and 14 of U.S. Patent Application No. 12/821,644, which is the subject of Appeal No. 2014-000311. Final Act. 6- 10. (2) Claims 1--4, 6, and 7 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Shavit and Rugo. Final Act. 10-14. (3) Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Shavit, Rugo, and Culp. Final Act. 14--16. ANALYSIS We have considered Appellants' arguments (App. Br. 5-23; Reply Br. 1---6), but we are not persuaded of Examiner error. We concur with the Examiner's conclusion that the claims are unpatentable as obvious. We highlight the following for emphasis. Obviousness-Type Double Patenting Rejection As stated in the Appeal Brief, "Appellants are not challenging the [double patenting] rejection." App. Br. 23. As such, we summarily sustain this rejection. Rejection of Claims 1-3, 6 and 7 under 35 US.C. § 103(a) Appellants make several arguments contending error in the Examiner's rejection of independent claim 1under35 U.S.C. § 103(a). See App. Br. 7-18. 3 Appeal2014-000508 Application 12/973,287 First, Appellants contend that, in construing claim 1, the Examiner did not give patentable weight to the recitation of "the normal power and lower power consumption cycles of operation each having multiple phases" in the preamble of claim 1. App. Br. 7-8. We are not persuaded of error because to the extent a step in the method makes reference to this preamble language, as Appellants argue (App. Br. 8), the Examiner has addressed the language by addressing the claim limitations themselves. See Final Act. 10-12. For example, the Examiner's rejection, based on the combined teachings of Shavit and Rugo, relies on Shavit for teaching normal power consumption and lower power consumption operations and relies on Rugo for teaching cycles of operation having multiple phases. See id. Therefore, even if the preamble recitation of "the normal power and lower power consumption cycles of operation each having multiple phases" is a limitation of the claims, we are not persuaded the combination of Shavit and Rugo does not teach this limitation. Appellants contend the Examiner has not set forth a prima facie case because "no rational basis exists for making the combination" (App. Br. 8- 10) of Shavit and Rugo and because "the rejection improperly relies on impermissible hindsight" (App. Br. 10-11). The Examiner's rejection relies on Shavit for teaching many of the limitations of the independent claim 1. See Final Act. 10-12. Shavit is directed to managing power consumption by controlling device power "loads." Shavit, col. 1, 11. 8-15, col. 3, 11. 8-22. An example of such a device is a variable speed fan. Shavit, col. 11, 11. 49- 54. Although we find that one of ordinary skill in the art would associate Shavit's variable speed fan with an appliance, the rejection acknowledges that "appliances" are "[ n Jot explicitly taught" in Shavit, so the Examiner 4 Appeal2014-000508 Application 12/973,287 relies on Rugo for explicitly teaching "appliances" having cycles of operation with multiple phases. Final Act. 11-12 (citing Rugo, col. 1, 11. 1- 5, col. 3, 11. 6-23, col. 4, 11. 5-11, 44--54). The Examiner concludes that it would have been obvious at the time of Appellants' invention to modify the teaching of Shavit to include the addition of the limitations of household appliances; and cycles of operation having multiple phases for limiting the total power absorbed by the appliances, while minimizing the waiting periods of appliances having lower priority to be activated in a priority sequence. Final Act. 12 (citing Rugo, col. 2, 11. 9-12). We are not persuaded the Examiner erred in combining the teachings of Shavit and Rugo. The Examiner's stated rationale for combining the teachings of the references comes from Rugo, which is directed to "provid[ ing] a management system for domestic electric loads which can limit the total power absorbed by the appliances, while minimizing the waiting periods of the appliances having lower priority." Rugo; col. 2; 11. 9- 12 (cited at Final Act. 12). As Appellants acknowledge, "Rugo '631 is similar to Shavit '667 in that Rugo '631 relates to priority-based adding/shedding of loads, albeit in the context of household appliances." App. Br. 14. Therefore, the Examiner's proposed combination relies on applying known techniques (power management techniques) to power- consuming devices ("loads" in Shavit and "appliances" in Rugo ). The Supreme Court has stated that, "if a technique has been used to improve one device; and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless Hs actual application is beyond his or her skill." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Appellants have not presented 5 Appeal2014-000508 Application 12/973,287 persuasive evidence that combining the teachings of the references would be beyond the skill of a person of ordinary skill in the art Appellants next contend the Examiner has not set forth a prima facie case because "the differences between the prior art and the claims at issue ha[ ve] not been properly ascertained." App. Br. 11. Appellants argue: In rejecting claim 1, the Examiner ignores elements of the claim and re-writes each claim limitation using generic terminology to force the limitations to fit the disclosure of Shavit '667 and then attempts to revert back to Appellants' actual claim by simply substituting terminology found in Rugo '637 which corresponds to Appellants' terminology into the Examiner's rewritten claim. App. Br. 12. Appellants then reproduce quotes from the Examiner's rejection and highlight where the Examiner has allegedly misquoted the language of independent claim 1. See App. Br. 12-13. We are not persuaded the Examiner erred in laying out the rejection in this manner. Contrary to Appellants' contention, the rejection does not "rewrite" claim limitations by mapping what Shavit teaches with respect to "devices," rather than "appliances," as recited in claim 1. See id. Rather, the rejection is presented in this manner because the Examiner acknowledges that "appliances" are "[ n Jot explicitly taught" in Shavit. Final Act. 11. Appellants also contend the combination of Shavit and Rugo does not teach or suggest the limitations of independent claim 1. See App. Br. 13-18. Appellants' arguments are directed to the limitations of claim 1 reciting "forecasting for each of the appliances a future energy consumption profile corresponding to the cycle of operation being executed" and "providing a lower power consumption cycle of operation to one or more of the 6 Appeal2014-000508 Application 12/973,287 appliances executing a normal power consumption cycle of operation such that any peak in the power demand indicated by the sum of the future energy consumption profiles is less than the peak threshold." See App. Br. 18. Based on their arguments regarding the individual disclosures of Shavit and Rugo, Appellants argue "the combination of Shavit '667 and Rugo '631 would result in nothing more than the priority-based adding/shedding method of Shavit '667 used with a household appliance, such as is disclosed by Rugo '631." App. Br. 18. We disagree with Appellants' characterizations of the teachings of Shavit and Rugo, and, as a result, we disagree with Appellants' argument regarding the combination. First, Appellants argue "Shavit '667 is admittedly silent regarding household appliances each having a normal power and lower power consumption cycle of operation having multiple phases, and thus inherently cannot disclose forecasting for each of the appliances a future energy consumption profile corresponding to the cycle of operation being executed." App. Br. 14. However, the Examiner relies on Shavit for teaching energy consumption forecasting for a device in combination with Rugo 's teachings regarding power consumption of an "appliance." Final Act. 11-12 (citing Shavit col. 11, 11. 5-9; Rugo col. 1, 11. 1-5, col. 4, 11. 44-- 54). Therefore, Appellants' argument is not persuasive because it does not address the Examiner's findings based on the combined teachings of the references. "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted). 7 Appeal2014-000508 Application 12/973,287 Further, Appellants acknowledge "Shavit '667 discloses adding/shedding a load or partially adding/shedding a load, such as by changing the operating point of a device to increase or decrease the output of the device (e.g. reducing the fan speed of a variable speed fan or decreasing a temperature set point)." App. Br. 14 (citing Shavit, col. 11, 11. 39-54). However, according to Appellants, if "the operation of a fan is considered a cycle of operation, it would be a cycle of operation with a single phase - ON - and a single parameter - speed - not a cycle of operation having multiple phases. Changing the speed would be tantamount to stopping, i.e, shedding, the first cycle of operation and starting a new cycle of operation." App. Br. 18. This argument is not persuasive because the Examiner relies on Rugo for teaching multiple phases in a cycle of operation in combination with Shavit, not Shavit alone. See Final Act. 11-12. Furthermore, Appellants' suggestion that changing a "parameter" of an operating cycle, such as speed, does not teach "providing a lower power consumption cycle of operation" is contradicted by claim 3, which depends from claim 1 and recites, "wherein the providing the lower power consumption cycle of operation comprises modifj;ing at least one operating parameter of the multiple phases of the normal power consumption cycle of operation." (Emphasis added). Because claim 3 depends from and narrows claim 1, "modifying at least one operating parameter" is at least one way of "providing a lower power consumption cycle of operation" in claim 1. Therefore, Appellants' own characterization of Shavit supports the Examiner's rejection of claim 1 over Shavit and Rugo. 8 Appeal2014-000508 Application 12/973,287 With respect to Rugo, Appellants acknowledge "Rugo '631 discloses household appliances having operating programmes with multiple working phases," but they argue "Rugo '631 teaches temporarily stopping, i.e. shedding, a household appliance to manage energy" (App. Br. 18) and "has no disclosure relevant to providing a new, lower power consumption cycle of operation to replace an already executing normal power consumption cycle of operation" (App. Br. 17). Therefore, according to Appellants, "[t]he shedding disclosed by Rugo '631 results in the operative programme being stopped." App. Br. 15. We are not persuaded. Although Rugo teaches that appliances can be stopped to conserve power, Rugo also teaches that power can be shared among devices when one device switches to a "working phase involving lower power consumption," such as when "only a part of the heating elements of the oven are to be energized." Rugo, col. 6, 11. 4---6. In this example, Rugo teaches that "[ t ]he central unit 5 in this case enables concurrent operation of the two appliances until the said maximum power value is possibly exceeded." Rugo, col. 6, 11. 10-13. We note that Rugo's teaching of operating an oven with fewer than all heating elements is similar to an exemplary implementation in Appellants' Specification that Appellants highlight in their brief. See App. Br. 16-17 (citing Spec. i-f 31, Fig. 8). Therefore, we disagree with Appellants' contention that Rugo "has no disclosure relevant to providing a new, lower power consumption cycle of operation to replace an already executing normal power consumption cycle of operation." App. Br. 17. Based on the teachings of the references, we are not persuaded by Appellants' argument that, "no matter how Shavit '677 and Rugo '631 are 9 Appeal2014-000508 Application 12/973,287 combined, the combination would still result in stopping/shedding a household appliance as disclosed by Rugo '631 as this is the only disclosure of how to manage household appliances having cycles of operation with multiple phases." App. Br. 18. Shavit explicitly teaches that a benefit of its disclosure is that it is not necessary to completely stop or shed a load to maintain a power level: "With the inclusion of multispeed fans and other analog loads to building automation systems, it is no longer necessary to shed entire loads to maintain power consumption below the second predetermined level." Shavit, col. 2, 1. 65 - col. 3, 1. 1. In light of the teachings of Shavit, we agree with the Examiner's findings that decreasing the operating point of a device, such as reducing the speed of a fan in Shavit, teaches providing a lower power consumption operation or cycle. See Final Act. 11. We also agree with the Examiner that Rugo teaches appliances having cycles with multiple phases. See Final Act. 12. We are not persuaded the Examiner erred in rejecting claim 1 over the combination of Shavit and Rugo, and therefore we sustain the rejection of claim 1under35 U.S.C. § 103(a). Appellants do not present separate persuasive arguments for patentability of dependent claims 2, 3, 6, and 7, and, therefore, we sustain the rejection of these claims under 35 U.S.C. § 103(a). Rejection of Claim 4 under 35 US.C. § 103(a) Claim 4 depends from claim 1 and recites that "the appliances are controlled through on-off switching and wherein the providing the lower power consumption cycle of operation comprises synchronizing the on-off 10 Appeal2014-000508 Application 12/973,287 switching of the appliances or at least one component in the appliances in order to limit peaks of power demand." Appellants argue that the "claimed synchronizing and the priority- based adding/shedding process of Shavit '667 are not the same." App. Br. 19. However, Appellants do not provide a definition of "synchronizing" in support of their argument. Appellants' Specification states: Fig. 6 shows schematically an exemplary embodiment of the present invention where the controls 14a-d of an appliance 13 are connected to the system 1 the different controls 14a-d for the different actuators 15a-d are "synchronized" by a control circuit 16 that organizes the ON-OFF switching of the single actuator in order to limit the current peak level absorption from the mains. Spec. i-f 28. Appellants' Specification appears to use the term "synchronize" broadly to describe organizing power consumption among multiple devices. Appellants have not presented sufficient evidence or argument to persuade us of error in the Examiner's finding that Shavit's disclosure of prioritizing loads teaches or suggests synchronizing, as that term is used in the claims and broadly described in Appellants' Specification. See Final Act. 13 (citing Shavit, col. 4, 11. 1-12). Appellants also argue "Shavit '667 has no disclosure relevant to synchronizing the ON-OFF switching of components in the appliances to limit peaks of power demand in the future." App. Br. 20 (emphasis added). This argument is not persuasive because, as correctly noted by the Examiner (Ans. 25), the "component" limitation of claim 4 is recited in the alternative ("synchronizing the on-off switching of the appliances or at least one component in the appliances in order to limit peaks of power demand"). The Examiner's findings address on-off switching of devices or loads (i.e., 11 Appeal2014-000508 Application 12/973,287 appliances). See Final Act. 13; Ans. 25-27. Because we are not persuaded of Examiner error with respect to the findings addressing one of the alternatives required by the claim, we sustain the rejection of claim 4. Rejection of Claim 5 under 35 US.C. § 103(a) Claim 5 recites: The process according to claim 4, wherein each on-off switching is based on a duty cycle and wherein a synchronizer puts in a sequence all the duty cycles starting with the duty cycle having a load with a highest power level, then organizes them inside a selected period of control, each duty cycle being placed in a precise position inside the period of control avoiding unnecessary simultaneous activation of loads in the future. Appellants contend the combination of Shavit, Rugo, and Culp does not teach or suggest the limitations of claim 5. App. Br. 20-22. In particular, Appellants argue: Culp '619 fails to disclose a synchronizer that puts in a sequence all the different duty cycles then organizes them inside a selected period of control. Culp '619 simply discloses a duty cycle routine that can be used with a load shedding energy management system that sequentially turns loads ON and OFF in which the duty cycle OFF times are spread uniformly throughout the time interval so that there is a uniform gap between adjacent OFF times. App. Br. 22. Appellants' arguments do not rebut persuasively the Examiner's findings with respect to Culp. See Final Act. 14--15. For example, as found by the Examiner, Culp teaches organizing duty cycles "inside a selected period of control" by disclosing "[a] system for leveling energy consumption of loads being controlled by a duty cycle routine, the loads having on times 12 Appeal2014-000508 Application 12/973,287 and off times within a predetermined period of time established by the duty cycle routine." Culp, Abstract (cited at Final Act. 14--15). Because we are not persuaded of error, we sustain the rejection of claim 5. DECISION We affirm the Examiner's decision to reject claims 1-7. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation