ABB Technology AG

Patent Trials and Appeals Board

Jan 1, 2021

2020000435 (P.T.A.B. Jan. 1, 2021)

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.
14/796,264 07/10/2015 Wolfgang Wimmer PG-CH-13004-US-CNT 1099
167938 7590 01/01/2021
SLATER MATSIL, LLP / ABB Power Grids
17950 PRESTON RD, SUITE 1000
DALLAS, TX 75252-5793
EXAMINER
KARIM, ZIAUL
ART UNIT PAPER NUMBER
2119
NOTIFICATION DATE DELIVERY MODE
01/01/2021 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):
docketing@slatermatsil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WOLFGANG WIMMER
Appeal 2020-000435
Application 14/796,264
Technology Center 2100
Before LARRY J. HUME, IRVIN E. BRANCH, and NABEEL U. KHAN,
Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3–5, and 7. See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We refer to the Specification, filed July 10, 2105 (“Spec.”); Final Office
Action, mailed December 18, 2018 (“Final Act.”); Appeal Brief, filed May
28, 2019 (“Appeal Br.”); Examiner’s Answer, mailed August 22, 2019
(“Ans.”); and Reply Brief, filed October 18, 2019 (“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as ABB Schweiz AG,
Assignee of the present patent application. Appeal Br. 2.
Appeal 2020-000435
Application 14/796,264
2
CLAIMED SUBJECT MATTER
The claims are directed to an Industrial Automation and Control
System (IACS) for an industrial process. Abstract. Claim 1, reproduced
below with disputed limitation emphasized in italics, is illustrative of the
claimed subject matter:
1. An Industrial Automation and Control System [(IACS)]
controlling an industrial process with a process structure
including two zones connected via a connecting primary device,
the IACS comprising:
a number of communicatively interconnected Intelligent
Electronic Devices [(IEDs)], the IEDs including:
low level IEDs interacting with primary devices of
the industrial process, and
two high level IEDs each implementing high level
functions on behalf of one of the two zones, respectively[;]
a logical communication link between the two high level
IEDs which is configured to transmit, in case of unavailability of
a connecting IED interacting with the connecting primary
device, process information originating from a first of the two
zones and being relevant for a high level function on behalf of a
second of the two zones, and
a supervisory module supervising the connecting IED and
activating the logical communication link upon detecting a
failure of the connecting IED.
REFERENCES AND REJECTION
Claim 1, 3–5, and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Zhao (WO 2012/019351 A1; pub. Feb. 16, 2012) and
Smit (US 2013/0265680 A1; pub. Oct. 10, 2013). Final Act. 3–7
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. We have considered in this Decision only those arguments
Appellant actually raised in the Briefs. Any other arguments Appellant
Appeal 2020-000435
Application 14/796,264
3
could have made but chose not to make in the Briefs are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv).
To the extent consistent with our analysis herein, we adopt as our own
the findings and reasons set forth by the Examiner in (1) the action from
which this appeal is taken (Final Act. 3–7) and (2) the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 7–9) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
35 U.S.C. § 1033
Appellant contends:
[T]he combination of Zhao and Smit fails to teach or suggest a
supervisory module supervising a connecting IED that interacts
with the connecting primary device and activating the logical
communication link between the two high level IEDs [and]
activating the logical communication link upon detecting a
failure of the connecting IED.
Appeal Br. 4. Appellant further contends that “even in combination, one
skilled in the art would not arrive at the presently claimed invention.” Id.

3 Because Appellant argues the dependent claims based on claim 1, we
review Appellant’s arguments with respect to claim 1, and, except for our
ultimate Decision, do not mention the remaining claims further.
Appeal 2020-000435
Application 14/796,264
4
The Examiner refers to Zhao’s Figures 1 and 2, reproduced below:

Figure 1 depicts a schematic view of the power distribution devices at two
adjacent domains.

Figure 2 depicts a schematic view of communication between two master
devices.
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Application 14/796,264
5
The Examiner finds the claimed “primary device” connecting two
zones reads on “tie switch 15,” (Figure 1) and that it is controlled, along
with all other primary devices (e.g., circuit breaker (11), switch (13), feeder
line (14) and load (12)), by a master (ref. no 21) through IEDs (ref. no.. 22).
Ans. 4; see Zhao 4 (“All primary devices in each domain are controlled by
one master device through several IEDs connected therewith.”). The
Examiner also find that Zhao discloses “[t]he IED may be attached on the
primary devices or arranged in a separate way[, but, as] long as the IED has
a cable or link to the primary device, any suitable arrangement is applicable
to the embodiments of present invention.” Id.; see Zhao 4. The Examiner
finds that this discloses “a supervisory module supervising the connecting
IED and activating the logical communication link” (Final Act. 4 (citing
Zhao 5 (“a master device controls all primary and secondary devices within
its domain through vertical communication. And a master device (Master 1)
communicates with other master devices (e.g., Master 2) through horizontal
communication (25, 26)”)) but that “Zhao does not explicitly teach
activating the logical communication link upon detecting a failure of the
connecting IED.” Ans. 4–5 ((citing Zhao p. 5, ll. 18–38) (“a master device
has an indirect access to the electrical devices of neighboring domains
through the horizontal communication”)). The Examiner finds that “Smit
teaches activating the logical communication link upon detecting a failure of
the connecting IED.” Id. (citing Smit ¶ 47 (“the protection logic of the
initiating IED issues a fault detection signal . . . to other (responding) IEDs
to communicate when its logical conditions are fulfilled for a fault . . . .”)).
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time of Appellant’s invention to modify Zhao’s
functionality such as adjusting the rotational speed of a fan according to a
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Application 14/796,264
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time-variable rate of current with Smit’s failure detection to protecting
power distribution feeder systems. Id. (citing Smit ¶ 2).
Appellant contends “a person of ordinary skill in the art would
understand that the IED 22 does not connect to, nor interact with, the tie-
switch 15,” and “[e]ven if one were to consider a master device as being a
supervisory module (which Appellant does not concede), Zhao still fails to
teach a supervisory module supervising a connecting IED that interacts with
a connecting primary device which connects two zones of a process
structure.” Appeal Br. 8 (referring to Zhao Fig. 2).
Appellant’s arguments in this regard are unpersuasive in view of
Zhao’s explicit disclosure that “[a]ll primary devices in each domain are
controlled by one master device through several IEDs connected therewith,”
and that the master device “controls all primary and secondary devices
within its domain” and “has an indirect access to the electrical devices of
neighboring domains through the horizontal communication.” Zhao 4–5
(emphasis added). Appellant does provide a persuasive argument or
evidence rebutting the Examiner’s findings that Zhao’s master device is a
supervisory module and that Zhao’s IEDs do not “interact[] with a
connecting primary device which connects two zones of a process structure.”
Ans. 7–8; see Zhao 4–5. Although the Examiner does not explicitly state
that a master device can be either an IED (e.g., Master 2) or a supervisory
module (e.g., Master 1), Appellant’s arguments do not consider this
possibility, and we do not find any reason that this interpretation is
precluded by the teachings of the references, as would be understood by a
skilled artisan.
We also find unpersuasive Appellant’s argument that “Zhao does not
indicate that tie-switch 15 is a primary device” because Zhao does not
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include tie-switch 15 as a primary device in its listing of primary deices in
each domain. Reply Br. 3 (quoting Zhao 4 (“In each domain, several
primary devices as well as load are included e.g. busbar, transformer, circuit
breaker (11), switch (13), feeder line (14) and load (12).”). The abbreviation
“e.g.” denotes a non-exhaustive list of examples, so this is unpersuasive
evidence that tie-switch 15 is not a primary device.
Appellant’s arguments alleging that Smit fails to disclose “activating
the logical communication link upon detecting a failure of the connecting
IED” (Appeal Br. 9–10; Reply Br. 4–5) are unpersuasive because they
overlook Smit’s express disclosure that “the protection logic of the initiating
IED issues a fault detection signal . . . to other (responding) IEDs to
communicate when its logical conditions are fulfilled for a fault . . . .” (Smit
¶ 47). Moreover, we find Appellant’s arguments unpersuasive because they
fail to consider what the combined teachings of the references would have
taught or suggested to one of ordinary skill in the art. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”)
Appellant also argues “if a person of ordinary skill in the art were to
modify Zhao’s system with the teachings of Smit, the skilled artisan would
merely adjust Zhao’s IEDs 22 to include the protection logic of Smit in order
to isolate a faulted line section,” so “the combination of Zhao and Smit
would not result in a system comprising a supervisory module supervising a
connecting IED which interacts with the tie-switch 15 and further activating
the horizontal communication 25/26 upon detecting a failure of the
connecting IED.” Appeal Br. 11. We are not persuaded.
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“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of [those]
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining
the teachings of references does not involve an ability to combine their
specific structures”).
Appellant’s arguments against the Examiner’s reasons for combining
the references unpersuasively assume a bodily incorporation of Smit’s fault
detection into Zhao’s structure. Final Act. 5; Ans. 9; see In re Keller, 642
F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference. . . . Rather, the test is what the combined
teachings of [those] references would have suggested to those of ordinary
skill in the art.”) In rejecting claims under 35 U.S.C. § 103, it is incumbent
upon the Examiner to establish a factual basis to support the legal conclusion
of obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). The
Examiner can satisfy this burden by showing “‘some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). “‘The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.’” Leapfrog
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Application 14/796,264
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Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007)
(quoting KSR, 550 U.S. at 416).
We find the Examiner’s articulated reasoning (Final Act. 5) is based
on rational underpinning (Smit ¶ 2) and, therefore, find Appellant’s
arguments unpersuasive (Appeal Br. 10–11; Reply Br. 5–6).
DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Basis Affirmed Reversed
1, 3–5, 7 103 Zhao, Smit 1, 3–5, 7
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED