Command Alkon Incorporated

Patent Trials and Appeals Board

Sep 25, 2020

15268294 - (D) (P.T.A.B. Sep. 25, 2020)

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.
15/268,294 09/16/2016 Robert W. Phare P0C1959US08NJ 7193
23378 7590 09/25/2020
BRADLEY ARANT BOULT CUMMINGS LLP
INTELLECTUAL PROPERTY DEPARTMENT
1819 FIFTH AVENUE NORTH
BIRMINGHAM, AL 35203-2104
EXAMINER
GRIFFIN, WALTER DEAN
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
09/25/2020 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):
devans@bradley.com
ipdocketing@bradley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT W. PHARE and CHARLENE HOHL
Appeal 2019-006856
Application 15/268,294
Technology Center 1700
Before JEFFREY T. SMITH, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 16–19 under 35 U.S.C. § 103 as
unpatentable over Andersen (US 2011/0004332 A1, pub. Jan. 6, 2011) in
view of Hudelmaier (US 2002/0169517 A1, pub. Nov. 14, 2002). We have
jurisdiction under 35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Command Alkon
Incorporated. Appeal Brief (“Appeal Br.”) filed June 28, 2019, at iii.
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We AFFIRM.2
CLAIMED SUBJECT MATTER
The invention relates to a system and process for mixing concrete
having desired strength characteristics. Spec. 1, Title. More specifically,
Appellant discloses a system for mixing a concrete batch to have a
predetermined compressive strength, the system comprising a processor, a
concrete truck, and a concrete manufacturing plant. Id. ¶ 8. The processor
includes a transceiver to transmit/receive signals, a database having
laboratory and field information, and an algorithm for calculating a water to
concrete (“W/C”) ratio and comparing the ratio against information in the
database. Id. The concrete truck includes a water input system and a
transceiver to transmit/receive signals to/from the processor. Id. The
concrete manufacturing plant comprises a plant water input system, a plant
cement input system, and a transceiver to transmit/receive signals to/from
the processor. Id.
Claim 16, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter:
16. A system for mixing a concrete batch to have a
predetermined compressive strength, the system comprising:
a server that maintains a database of characteristics and
properties for various families of concrete including calculated
water-to-cement ratios and actual concrete strengths;

2 This Decision also cites to the Specification (“Spec.”) filed September 16,
2016, the Examiner’s Answer (“Ans.”) dated July 19, 2019, and the Reply
Brief (“Reply Br.”) filed September 19, 2019.
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a processor programmed to calculate a W/C ratio for a
concrete mixture and to compare the W/C ratio to
characteristics set forth in the database;
a concrete manufacturing plant for pre-mixing
constituent materials for concrete according to a formula
determined to be most suitable for a construction site and to
achieve a predetermined compressive strength, said plant
including a water measuring device and a cement-measuring
device connected to a communications device for transmitting
to the processor a mass of water and cementitious material
added to the concrete mixture;
a concrete truck for receiving concrete mixture mixed at
the plant and having a water measuring device connected to a
communications device for communicating to the processor
added water amounts;
the processor being included in the server or being
located at the plant or truck;
wherein the processor is programmed to calculate from
the cement weight added at the plant and the added water
weight measured by the water-measuring devices of the plant
and of the truck a batch water-to-cement ratio, correlate the
batch water-to-cement ratio to a predicted concrete strength
according to the database of concrete family characteristics, and
prior to pouring the concrete transmit to a driver or other person
responsible for pouring the concrete a notification of the
predicted concrete strength.
OPINION
We review the appealed rejection for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
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the alleged error in the examiner’s rejections.”). After considering the
argued claim and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejection. We offer the following for
emphasis only.
Appellant does not separately argue the rejected claims, but instead
focuses on the limitations of independent claim 16. Accordingly, claims 17–
19 stand or fall with claim 16. 37 C.F.R. § 41.37(c)(1)(iv) (2018).
The Examiner finds that Andersen discloses a system for mixing a
concrete batch to have a predetermined compressive strength substantially as
recited in claim 16, except that Andersen fails to disclose the plant includes
water and cement measuring devices connected to a communications device
for transmitting to the processor the mass of water and cementitious material
added to the concrete mixture, or that the truck includes a communications
device for transmitting to the processor the amount of water added. Ans. 3–
4. For these features, the Examiner finds that Hudelmaier discloses a system
for mixing a concrete batch comprising a concrete processing plant having
water and cement measuring devices connected to a communications device
for transmitting to a processor the mass of water and cement added to the
concrete mix, and a concrete truck connected to a communications device
for communicating to the processor the amounts of water added. Id. at 4–5.
The Examiner concludes that it would have been obvious to incorporate
measuring and communications devices into the plant and truck of Andersen
“in order to allow for continuous monitoring and control from the start
through to the conclusion of the concrete manufacturing process, thereby
improving the overall quality of concrete produced, as disclosed in
Hudelmaier.” Id. at 5.
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Appellant argues that the Examiner improperly interprets
Hudelmaier’s concrete manufacturing plant to include elements of the
cement plant, the processing site, and the construction site into a single
super-plant. Appeal Br. 11. Appellant asserts that Hudelmaier teaches that
mixing is done using the truck at or near the construction site and away from
the cement plant to specifically avoid the need for additional water being
added during transport after initial mixing. Id. Appellant contends that
neither of Hudelmaier’s communication devices 8, 18 are present at the
cement plant. Id. at 12–13. Appellant also contends that Hudelmaier only
adds water at the construction site and thus does not transmit the mass of
water and cement added to the concrete mix. Id. at 12–13.
This argument is not persuasive of reversible error because it
mischaracterizes the rejection which is based on a modification to
Andersen’s system to include water and cement measuring devices at the
plant, and communication devices at both the plant and the truck. It is well
established that the obviousness inquiry does not ask “whether the
references could be physically combined but whether the claimed inventions
are rendered obvious by the teachings of the prior art as a whole.” In re
Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc); see also 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.”).
With regard to the water and cement measuring devices, Andersen
already teaches that the particular amounts of water and cement are mixed in
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order to provide desired W/C ratios, thereby suggesting that Andersen’s
plant must have water and cement measuring devices. Further, the Examiner
finds, and Appellant does not dispute, that Andersen teaches a server with a
database storing “fingerprints” charts for various concrete families including
W/C ratios and actual concrete strengths, as well as a processor programmed
to calculate a W/C ratio for a concrete mixture and to compare the W/C ratio
to characteristics in the database. The rejection relies on Hudelmaier merely
for the teaching that it was known in the art to provide communication
devices at and along the concrete manufacturing and delivery process to
facilitate the monitoring and control of the concrete manufacture from at
least the filling of a truck to the construction site. See Hudelmaier ¶ 16.
Those skilled in the art, therefore, would have recognized providing such
communication devices at both the plant and the truck would have facilitated
use of Andersen’s “fingerprint” charts to ensure that the concrete dispensed
from the truck met desired compressive strength and slump requirements.
Thus, that Hudelmaier teaches a different process than Andersen is not
relevant to whether or not it would have been obvious to have provided
communications devices to transmit the amounts of water and cement added
at Andersen’s plant to the processor.
Appellant next argues that Andersen fails to teach a water measuring
device on the truck. Appeal Br. 14–15. Appellant contends that because
Andersen’s disclosure of adding and noting an amount of water at the truck
to calculate the actual total amount of water in the concrete mix is merely
performed as a controlled test, it is more likely that the amount of water
added is measured at the plant site, rather than using a separate measuring
device on the truck. Id. at 15.
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We disagree. As the Examiner explains, since Andersen discloses that
the amount of water added at the truck is tracked, a water measuring device
is associated with the truck. Ans. 7. The Examiner determines that even if
this device is not physically attached to the truck such that the truck has the
device, it would nonetheless have been obvious to have provided Andersen
with such a configuration “as one of a finite number of possible
configurations for a water measuring device associated with a truck.” Id.
Although Appellant urges that the water measuring device could be
associated with the plant or performed manually because Andersen fails to
teach what or who is noting the amount of water added to the truck,
Andersen’s teaching suggests that the amount of water initially added to the
concrete mix must be measured and the amount of water added to the truck
after the initial mix is received and prior to dispensing must also be
measured. Because water is often added to the truck at or near the
construction site and away from the plant, the more reasonable conclusion is
that a measuring device is provided both at the plant and on the truck in
order to facilitate the monitoring of the amounts of water added at each
location.
Appellant next argues that Andersen provides predicted concrete
strength information to the concrete designer rather than to the driver or
other person responsible for pouring the concrete. Appeal Br. 16; Reply Br.
8. Appellant also contends that Andersen teaches providing a predicted
concrete strength available to the designer prior to mixing the concrete
ingredients and fails to teach providing this information prior to pour, but
after water has been added to the already mixed batch in order to determine
whether the specific batch has the requisite compressive strength. Id.
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These arguments are not persuasive of reversible error because they
mischaracterize Andersen’s teachings and the implications which an
ordinary artisan would draw therefrom. As the Examiner finds, Andersen
teaches notifying “a technician, operator, engineer or other person for the
purpose of making or otherwise using the concrete composition.” Ans. 8;
Andersen ¶ 88. A technician, operator, engineer, or other person using the
concrete composition would reasonably include a person responsible for
pouring the concrete. In addition, we note that because Andersen
contemplates that water is added to the concrete mix at the truck prior to
pouring, providing the final predicted concrete strength would be transmitted
at that time. See Andersen ¶ 20.
Appellant further argues that the asserted modification of Andersen in
view of Hudelmaier would impermissibly alter Andersen’s manner or
principle of operation. Appeal Br. 17. Appellant asserts that Andersen’s
principle of operation is to prepare a better-designed concrete batch from the
beginning, based on an analysis of known compositions. Id. On the other
hand, Appellant asserts that Hudelmaier is not about concrete batch
composition design at all, but instead is directed to avoiding variance in
amounts of added water and poor compaction at a construction site. Id. As
such, Appellant asserts that Hudelmaier provides a specially designed truck
to carry the solid components and water separately until they are mixed at or
near the construction site to eliminate problems during transport and the
need to add more water at the construction site. Id. at 18. Appellant also
argues that there is no motivation to combine Andersen with Hudelmaier
because the references are speaking from completely different sets of
assumptions. Id. at 19. According to Appellant, a person would not look to
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Hudelmaier to modify Andersen because Andersen assumes that cement and
water will be mixed at the plant and that more water will be added to the mix
in the truck, while Hudelmaier’s solution obviates adding more water to the
mix in the truck. Id. at 19–20.
Similar to Appellant’s prior arguments, these arguments are not
persuasive of reversible error because they mischaracterize the rejection. As
explained above, Andersen is not being modified to correspond to
Hudelmaier’s process as Appellant suggests. See Etter, 756 F.2d at 859;
Keller, 642 F.2d at 425. Instead, Andersen is being modified to include
communication devices such as taught by Hudelmaier for facilitating
monitoring and control of Andersen’s concrete manufacturing process. As
such, Andersen’s principle of operation is not being modified in any way to
correspond to Hudelmaier’s process.
Accordingly, we sustain the Examiner’s obviousness rejection of
claim 16, and dependent claims 17–19, over the Andersen in view of
Hudelmaier.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Answer, the Examiner’s decision to reject claims 16–19 under 35
U.S.C. § 103 is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
16–19 103 Andersen,
Hudelmaier
16–19
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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