Ex Parte Schweitzer et al

Patent Trial and Appeal Board

Oct 5, 2017

12753698 (P.T.A.B. Oct. 5, 2017)

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.
12/753,698 04/02/2010 Edmund O. Schweitzer III 09-022 5192
63023 7590 10/10/2017
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EXAMINER
Law Department
2350 NE HOPKINS COURT
KAYES, SEAN PHILLIP
PULLMAN, WA 99163-5603 ART UNIT PAPER NUMBER
2833
NOTIFICATION DATE DELIVERY MODE
10/10/2017 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):
IPMail @ selinc .com
Rick_Edge @ selinc. com
rosemary_fitzgerald @ selinc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDMUND O. SCHWEITZER III, KENNETH J. FODERO,
VESELIN SKENDZIC, DAVID E. WHITEHEAD,
and CHRISTOPHER HUNTLEY
Appeal 2016-003882
Application 12/753,698
Technology Center 2800
Before LINDA GAUDETTE, KAREN M. HASTINGS, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final decision rejecting claims 1—7, 12—16, 22—25, 27, and 28
under 35 U.S.C. § 103(a) over the combined prior art of at least Read (US
6,236,623 Bl, issued May 22, 2001) and Weiss (US 2009/0129208 Al, May
21, 2009).2
1 The real party in interest is stated to be Schweitzer Engineering
Laboratories, Inc. (Br. 1).
2 While the Examiner applies additional references to various dependent
claims (see, Final Act. 15, 16), Appellants present arguments directed only
to the first ground of rejection based on Read and Weiss which includes all
the independent claims on appeal (Claims 1, 12, and 28) (generally Br.
7-14).
Appeal 2016-003882
Application 12/753,698
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Independent claim 1 below is illustrative of the subject matter on
appeal:
1. A method of time signal drift correction for an intelligent
electronic device comprising:
a first Intelligent Electronic Device (IED) generating a
first local time signal;
the first IED receiving an external time signal from an
external time source;
the first IED calculating a first signal drift rate of the first
local time signal relative to the external time signal by
comparing the first local time signal to the external time
signal;
the first IED generating a first adjusted time signal based
on the first local time signal and the calculated first signal
drift rate;
the first IED transmitting the external time signal to a
second IED during a first period in which the external time
signal is available; and
the first IED transmitting the first adjusted time signal to
the second IED during a second period in response to losing
reception of the external time signal the second intelligent
electronic device generating a second local time signal.
Independent claim 12 is directed to an IED configured to operate as
recited in claim 1, and independent claim 28 is directed to a method of time
drift signal correction that includes a step of averaging first and second time
adjusted signals (Claim Appendix).
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Appeal 2016-003882
Application 12/753,698
ANALYSIS
We have reviewed each of Appellants’ arguments against the
obviousness rejections and are unpersuaded that Appellants have identified
reversible error. In re Jung, 637 F.3d 1356, 1365—66 (Fed. Cir. 2011)
(explaining the Board’s long-held practice of requiring Appellants to
identity the alleged error in the Examiner’s rejection). Therefore, we sustain
the obviousness rejections for essentially the same reasons expressed by the
Examiner in the Final Action and in the Answer. We add the following
comments for emphasis.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int 7 Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). Likewise, it is also well settled that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In reFritch, 972 F.2d 1260, 1264—65 (Fed.
Cir. 1992).
Appellants argue that the Examiner used “undocumented evidence” to
reject the claims (Br. 7, see also Br. 8, 10, 11), made conclusory assertions
of obviousness (Br. 8), and used impermissible hindsight to reject the claims
(Br. 9, 10, 13).
Appellants’ arguments are not persuasive of reversible error.
Appellants’ arguments do not adequately address the rejection made by the
Examiner. The Examiner explains that, contrary to the Appellants’ position,
the Examiner did not use undocumented evidence and that, e.g., the reliance
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Appeal 2016-003882
Application 12/753,698
on statistical averaging is de facto supported by the applied references, and
the knowledge of one of ordinary skill (Ans. 2, 3). One of ordinary skill
would have readily appreciated the principle of averaging larger sample
sizes generally leads to increased precision and/or accuracy (noting further
that the principle of statistical averaging is only relied upon by the Examiner
as needed for the rejection of independent claim 12; see, e.g., Final Action
10).
Appellants have not shown reversible error in the Examiner’s de facto
determination that one of ordinary skill would have readily inferred that the
steps as recited in the independent claims encompasses the method and
device of Read, and that further support as needed is provided by Weiss (see,
e.g., Ans. 5, 6). KSR Inti, 550 U.S. at 418; see also id. at 421 (“A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”);
Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d
984, 993 (Fed. Cir. 2009) (Under the flexible inquiry set forth by the
Supreme Court, the PTO must take account of “the inferences and creative
steps,” as well as routine steps, that an ordinary artisan would employ.).
Appellants have also not directed our attention to any persuasive
reasoning or credible evidence to establish that the Examiner’s claim
interpretation is unreasonable, nor to any portion of the Specification that
limits the definition of the claim terms to exclude the type of drift correction
found in Read/Weiss as pointed out by the Examiner (e.g., Ans. 6; generally
Final Action). In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007) (If the Specification does not provide a definition for claim
terms, the broadest reasonable interpretation consistent with the
Specification is applied.).
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Application 12/753,698
Accordingly, for all the reasons stated above and in the Answer, and
taking into account “the inferences and creative steps that a person of
ordinary skill in the art would employ,” KSR Int’l, 550 U.S. at 418,
Appellants have not shown reversible error in the Examiner’s obviousness
determination.
We sustain the Examiner’s § 103 rejections on appeal.
DECISION
The Examiner’s § 103(a) rejections are 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)(1).
AFFIRMED
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