Ex Parte Abel et al

Patent Trial and Appeal Board

Nov 17, 2014

11494263 (P.T.A.B. Nov. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PETER ABEL and HELMUT SPAETH
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Appeal 2012-008285
Application 11/494,263
Technology Center 3600
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Before JOHN C. KERINS, EDWARD A. BROWN and TIMOTHY J.
GOODSON, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Peter Abel and Helmut Spaeth (Appellants) seek our review under 35
U.S.C. § 134 of the Examiner’s final rejection of claims 1, 2, and 4–20. We
have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was conducted on
October 5, 2014, with John D. Russell, Esq., appearing on behalf of
Appellants. We REVERSE and ENTER A NEW GROUND OF
REJECTION UNDER 37 C.F.R. § 41.50(b).

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THE INVENTION
Appellants’ invention is directed to a method and system for
determining the admissible load capacity of a crane. Independent claim 1 is
illustrative:
1. A method for determining the admissible load
capacity of a crane, in which the load capacity is determined in
dependence on at least one first and one second parameter, the
method comprising:

a first step in which the load capacity is determined for a
value of the first parameter with different values of the second
parameter by calculation or by interpolation or extrapolation on
the basis of known values of the load capacity with specific
values of the first parameter; and

a second step in which a determination of the load
capacity for a value of the second parameter is performed on
the basis of values of the load capacity determined in the first
step for different values of the second parameter by calculation
or by interpolation or extrapolation,

wherein the first and second parameters are parameters
which influence the admissible load capacity of the crane,
wherein values of the first and second parameters are arbitrarily
freely selectable values within a range, wherein the first and
second steps are performed by a unit of the crane to determine
the admissible load capacity of the crane, and wherein the
admissible load capacity of the crane is a load capacity that is
safe in operation.

THE REJECTION
The Examiner has rejected claims 1, 2, and 4–20 under 35 U.S.C.
§ 103 as being unpatentable over Yoshimatsu (US 6,170,681 B1, issued Jan.
9, 2001) in view of Sanchez (US 3,638,211, issued Jan. 25, 1972).
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ANALYSIS
Claims 1, 2, and 4–20--35 U.S.C. § 103--Yoshimatsu/Sanchez
When the method set forth in claim 1 is performed using interpolation,
it is, at its essence, executing a bilinear interpolation with two parameters
that influence the admissible load capacity of a crane, whose values are
arbitrarily freely selectable within a range of values.1 The import of the
parameter values being arbitrary and freely selectable, albeit within
prescribed ranges, is that a crane boom may be positioned where values of
load capacity for the two pertinent parameters are not known, yet a load
capacity at that position can be determined using the claimed process. See,
e.g., Appeal Br. 15 (“the calculation of load capacity is not restricted to
specific parameters where the capacity is known”).
The Examiner finds that Yoshimatsu discloses that a calculation of an
admissible work load can be done by calculation or interpolation, but does
not explicitly disclose the exact process of interpolatory calculation. Ans. 5.
The Examiner cites to Sanchez as teaching a first step in which the load
capacity is determined, by interpolation, for a value of a first parameter with
different values of a second parameter. Id. at 6. The Examiner
acknowledges that Sanchez does not explicitly disclose a second step as
claimed. Id. The Examiner concludes that it would have been obvious “to
have performed a second step of calculating a specific value of a second
parameter (e.g. the work radius) based on the result of the first step (load for
the specific angle) for the purpose of calculating the value of the load
capacity for the specific second parameter.” Id. The Examiner further

1 See http://en.m.wikipedia.org/wiki/Bilinear_interpolation, last accessed on
November 6, 2014.
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concludes that it would have been obvious “to have included the calculation
method of Sanchez and used it in the system of Yoshimatsu for the purpose
of calculating the load capacity for specific values of the crane.” Id. at 7.
Appellants maintain that neither Yoshimatsu nor Sanchez discloses
performing a second step as claimed in arriving at an admissible load
capacity, and that it would not have been obvious to modify the method
resulting from the combined teachings to utilize such a second step. Appeal
Br. 16. The control and warning system of Sanchez indeed operates such
that the value of only one parameter, i.e., boom angle, is arbitrarily freely
selectable within a range, resulting in the need to perform only a single step
linear interpolation to determine the admissible load capacity at that boom
angle.2 Sanchez, col. 5, ll. 44–55. Data representing the effect of other
parameters, namely, boom length, deployment or nondeployment of
outriggers, and swing angle (using quadrants as the applicable units) is
permanently stored in a memory unit, and the appropriate data is selected
based upon currently sensed values of those parameters. Id., col. 3, ll. 31–
39, and col. 4, ll. 4–12.
Notwithstanding Appellants’ assertion that Yoshimatsu’s disclosure of
preparing data tables that are stored together as a data map, from which “a
middle point is determined by interpolatory calculation,” involves only a
single step of interpolation, Yoshimatsu does not clearly evidence whether

2 The Examiner appears to find that Sanchez discloses that the values of
plural parameters are freely selectable within a range, referencing column 4,
lines 60–75, and the mention therein of values θ1, θ, θ2, S1, S, and S2. See
Ans. 6. However, of these parameters, only θ is a parameter having a freely
selectable value, whereas S is to be calculated by interpolation and the rest
represent known values of maximum stresses at corresponding boom angles.
See Appeal Br. 19.
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only one or more than one step of interpolation is performed. In this regard,
Yoshimatsu does not characterize the interpolation as “an” interpolatory
calculation or suggest in any other manner whether one step or more than
one step is performed.
Neither Appellants’ position nor the Examiner’s position is
particularly enlightening on this point. Appellants point to the disclosure in
Yoshimatsu that “only the rated load Wo corresponding to the current swing
angle θ and work radius R may be calculated every moment” as standing for
the proposition that “it is not possible to additionally calculate the rated load
at second values of these parameters.” Appeal Br. 18. Appellants maintain
that this constitutes an explicit teaching away from using any calculation
method twice in the manner claimed. Id. Appellants do not make clear the
relevance of not being able to calculate the rated loads at second values of
swing angle and work radius. What does appear to be relevant is whether or
not Yoshimatsu’s data map and data tables contain data for the current
values of swing angle and work radius. If data related to one of these is
present, then only a single step of interpolation is necessary to determine the
rated load Wo based on the value for the other parameter, much in the same
manner as the approach used in Sanchez. However, if no data exists for
either the current swing angle or work radius, it would not be possible to
determine the rated load Wo in a single step of interpolation. Instead, it
appears that resort would be had to a bilineal interpolation approach, were
interpolation used exclusively, or possibly some other, different approach
that might or might not include an interpolation step.
The Examiner takes the position that one of ordinary skill in the art
“would clearly realize that there are indeed multiple steps to calculate the
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rated work load and nowhere in Yoshimatsu does it say that only ONE step
is required to perform the calculation of a load capacity of the crane.” Ans.
14. The Examiner further reasons that:
Yoshimatsu discloses of two methods of
calculating the load capacity. The first method is
through a strict mathematical expression (the
relation among R, .theta. and W may be stored
in terms of a functional expression.”), and of an
interpolatory calculation method (“According to
another method, the work radius R for each unit
swing angle (say 1.degree.[”]) proportional to
work conditions such as boom length LB and
outrigger jack protrusion quantity is tabulated as a
data table, then plural such tables are stored
together as a data map [arbitrary freely selectable
values since using the data from the table we can,
using interpolation calculate for the load capacity
of an unknown angle and an unknown work
radius R], and a middle point is determined by
interpolatory calculation. . . . Thus clearly
multiple steps would clearly be required to
determine the load capacity of the crane not just
ONE step.
Id. (emphasis added).
The italicized passage in the above quote does not accurately
represent any specific disclosure in Yoshimatsu. As we have noted above in
discussing Appellants’ position, Yoshimatsu fails to make clear whether
there might be only one, or more than one, parameter for which the value
would be arbitrary and freely selectable.3 It is possible, for example, that the
tabulation of work radius R proportional to work conditions such as boom

3 And, as noted previously, the Examiner, at least initially, was relying on
Sanchez as disclosing a plurality of parameters whose values were arbitrary
and freely selectable. See fn. 2, supra.
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length and outrigger jack protrusion quantity “for each unit swing angle (say
1°)” effectively removes the swing angle from the realm of parameters
whose value is arbitrary and freely selectable, or for which there may be no
data at particular values. In other words, the incremental unit selected for
the swing angle, in a manner similar to the selection of quadrants in
Sanchez, may be deemed appropriate to provide reliable data regardless of
the exact swing angle such that a rated load Wo can be determined for a
particular work radius R in a single interpolation step. On the other hand,
the interpolatory calculation contemplated by Yoshimatsu could include
interpolation at swing angle values between the known swing angle values
as well as interpolation between known work radii. Since it would be
speculative to find that the latter was intended by Yoshimatsu, the
preponderance of the evidence does not support a finding that Yoshimatsu
necessarily employs successive interpolation steps as set forth in claim 1.
We thus view the proper obviousness analysis to be whether a person
of ordinary skill in the art, when considering the teachings of Yoshimatsu
and Sanchez, would have found it obvious to design a system that would
allow operation of a crane in circumstances in which values for two different
parameters affecting load capacity would have to be determined by
calculation, interpolation, or extrapolation.4 Sanchez notes that its system,
which is specifically designed to require determination of the value of only
one parameter (boom angle) prior to finding maximum stress (admissible

4 We note, in this regard, that while the prosecution of the application has
focused on whether the prior art renders obvious a method employing two
interpolation steps, claim 1 allows, for example, for the possibility of
employing two calculation steps, as well as performing one step as a
calculation and the other step as an interpolation or extrapolation.
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load capacity), results in “control and process circuitry [that is] greatly
simplified” while still providing information “quickly to the alarm device.”
Sanchez, col. 5, ll. 50–55. For its part, Yoshimatsu discloses that, when it
comes to actually controlling a crane, the shorter time required to make the
necessary calculation using interpolatory calculation is preferred over the
longer time required to perform the calculation using the functional
expression approach. Yoshimatsu, col. 9, ll. 8–13. Given that speed in
providing the needed results is of importance in both references, the
preponderance of the evidence does not support a conclusion that it would
have been obvious to perform the method in Yoshimatsu with first and
second successive interpolation steps, as the Examiner maintains.
Accordingly, the rejection of claim 1 under 35 U.S.C. § 103(a) as
being unpatentable over Yoshimatsu in view of Sanchez is not sustained.
Claims 2 and 4–20 either depend from claim 1 or are independent claims
having the same limitations found in claim 1 and discussed above. The
rejection of those claims as being unpatentable over Yoshimatsu and
Sanchez is also not sustained.
Claim 12—NEW GROUND OF REJECTION—35 U.S.C. §112, ¶2
Claim 12 depends from claim 1 and recites that, “when a parameter
limit is exceeded, another parameter value is set, which provides a lower
load capacity, instead of the value measured by a sensor.” Claim 1 requires
that “values of the first and second parameters are arbitrarily freely
selectable values within a range.” Appeal Br. 32.
Claim 1 provides no indication that any parameter value is measured
by a sensor, only that values are arbitrarily and freely selectable. Claim 12
is thus indefinite on the basis that it is unclear what “the value measured by a
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sensor” refers to. Further, if the parameter values are selectable only within
a particular range, as recited in claim 1, it would appear that the “parameter
limit” recited in claim 12 would be the upper or lower limit of the range.
Claim 12, however, does not make clear how a value would be selected
within that range, and also at the same time fall outside the upper or lower
limit of the range.
Alternatively, if the recited parameter limit or limits are not
coextensive with the upper and/or lower limits of the recited range, but are
somehow within the recited range, the rejection of the actual value in favor
of some other value correlating to a lower load capacity required by claim 12
appears to be in conflict with the recitation in claim 1 that the values
employed in the first and second steps of the process are arbitrarily and
freely selectable within the prescribed range. In other words, if values
within the recited range can be overridden by some limit imposed within the
range, then those values within the range that exceed the limit are not
arbitrarily and freely selectable for use in the first and/or second recited step
of the method.
For the foregoing reasons, claim 12 is rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter regarded as Appellants’ invention. This is
a NEW GROUND OF REJECTION pursuant to our authority under 37
C.F.R. § 41.50(b).
DECISION
The rejection of claims 1, 2 and 4–20 under 35 U.S.C. § 103(a) as
being unpatentable over Yoshimatsu in view of Sanchez is REVERSED.
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Claim 12 is rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim that
which Appellants regard as the invention. This rejection is a NEW
GROUND OF REJECTION pursuant to our authority under 37 C.F.R.
§ 41.50(b).
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
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).

REVERSED; 37 C.F.R. § 41.50(b)
rvb