Ex Parte Anderson

Patent Trial and Appeal Board

Mar 22, 2018

13963590 (P.T.A.B. Mar. 22, 2018)

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.
13/963,590 08/09/2013 Shawn W. Anderson 06005/562748 7620
45372 7590 03/26/2018
Marshall, Gerstein & Borun LLP (Emerson)
233 South Wacker Drive
6300 Willis Tower
Chicago, IL 60606
EXAMINER
KABIR, SAAD M
ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
03/26/2018 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHAWN W. ANDERSON1
Appeal 2017-010689
Application 13/963,590
Technology Center 2100
Before CARLA M. KRIVAK, MELISSA A. HAAPALA, and
DAVID J. CUTITTAII, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—3 and 5—21.2 We have jurisdiction over this appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the Applicant, Fisher Controls International LLC, which,
according to the Appeal Brief, is the real party in interest. See Appeal Br. 3.
2 Claim 4 is cancelled. See Appeal Br. A-l.
Appeal 2017-010689
Application 13/963,590
STATEMENT OF THE CASE
Introduction
According to Appellant, the claimed invention relates to a “process
control device [that] includes a process control valve, an actuator, a digital
valve controller (‘DVC’), and a processor.” Spec. 13.3 Data associated
with fluid flowing through the process control device is obtained and
aggregated, and diagnostics are performed to reduce undesirable effects of
high levels of pollutants, particulates, and moisture in the fluid flow. See
Spec. 1 8, 9.
Exemplary Claim
Claims 1, 12, and 18 are independent. Claim 1 is exemplary of the
claimed subject matter and is reproduced below with disputed limitations
emphasized:
1. A process control device, comprising:
a process control valve;
an actuator coupled to the process control valve and
configured to control a position of the process control valve;
a digital valve controller communicatively coupled to the
process control valve and the actuator, wherein the digital valve
controller is configured to:
obtain first data associated with a fluid flow
through the digital valve controller at a first point in time,
and
obtain second data associated with the fluid flow
through the digital valve controller at a second point in
time different from the first point in time; and
3 Throughout this Decision, we refer to: (1) Appellant’s Specification, filed
August 9, 2013 (“Spec.”); (2) the Final Office Action (“Final Act.”), mailed
June 27, 2016; (3) the Appeal Brief filed February 6, 2017 (“Appeal Br.”);
and (4) the Examiner’s Answer (“Ans.”), mailed June 2, 2017.
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Application 13/963,590
a processor arranged to:
aggregate the first data and the second data, and
perform one or more diagnostic and/or prognostic
techniques based on the aggregated data, the one or more
diagnostic and/or prognostic techniques including
estimating a state of one or more components of the
process control device.
Appeal Br. A-1, Claims Appendix.
REFERENCES
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Tinker
Affaticati et al.
(“Affaticati”)
Yasuda et al.
(“Yasuda”)
Taylor
US 4,546,442
US 2009/0256090
US 2010/0070240
US 2012/0061233
Oct. 8, 1985
Al Oct. 15,2009
Al Mar. 18,2010
Al Mar. 15,2012
REJECTIONS
Claims 1—3, 5—16, and 18—20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Yasuda and Tinker. Final Act. 4—16.
Claim 17 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Yasuda, Tinker, and Affaticati. Final Act. 16—17.
Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Yasuda, Tinker, and Taylor. Final Act. 17—18.
Our review in this appeal is limited only to the above rejections and
issues raised by Appellant. We have not considered other possible issues
that have not been raised by Appellant and which are, therefore, not before
us. See Manual of Patent Examining Procedures (“MPEP”) § 1205.02; 37
C.F.R. §§41.37(c)(l)(iv), 41.39(a)(1).
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Application 13/963,590
ISSUES
(1) Whether the Examiner errs in finding the combination of
Yasuda and Tinker teaches or suggests “a digital valve controller . . .
configured to: obtain first data associated with a fluid flow through the
digital valve controller at a first point in time, and obtain second data
associated with the fluid flow through the digital valve controller at a second
point in time,” as recited in claim 1.
(2) Whether the Examiner’s rationale for modifying Yasuda in
view of Tinker is improper?
ANALYSIS
The Examiner finds Yasuda teaches obtaining first data associated
with a fluid flow at a first point in time and obtaining second data associated
with a fluid flow at a second point in time. Final Act. 5 (citing Yasuda
H 50, 54). The Examiner finds Tinker’s discussion of fluid flowing through
pneumatic relays 200 teaches “fluid flow through the digital valve
controller.” Final Act. 5 (citing Tinker 6:54—57).
Appellant disputes the Examiner’s factual findings. Appellant argues
that because “Yasuda fails to teach or suggest fluid flowing through the
control unit A2 (which allegedly corresponds to ‘the digital valve controller’
of claim 1)” it follows that “Yasuda fails to teach or suggest that the control
unit A2 (‘the digital valve controller’) obtains first and second data
associated with a fluid flow through the control unit A2 . . . at first and
second points in time, respectively.” Appeal Br. 8. Appellant argues
“Tinker does not teach or suggest obtaining first and second data associated
with fluid flowing through the pneumatic relay 200, much less that the
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Application 13/963,590
pneumatic relay 200 itself obtains data associated with the fluid flowing
therethrough, as would be required to cure the deficiencies of Yasuda.”
Appeal Br. 9.
We are unpersuaded. Appellant’s argument does not address the
actual reasoning of the Examiner’s rejection. Instead Appellant attacks the
references singly for lacking teachings that the Examiner relied on a
combination of references to show. It is well established that one cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). This form of argument is inherently unpersuasive to show
Examiner error. Our reviewing court requires that references must be read,
not in isolation, but for what they fairly teach in combination with the prior
art as a whole. Merck, 800 F.2d at 1097 (Fed. Cir. 1986).
Moreover, the Examiner responds to Appellant’s argument by
explaining:
Yasuda teaches obtaining of the first and second data as
outlined in the rejection above (Para. 50, 54). Tinker teaches
digital valve controller because Tinker teaches pneumatic relays
used with valve (Col. 6 Fines 54-57). Thus, the combination of
Yasuda and Tinker teaches obtaining data from the relay
(within the fluid flow) of Tinker.
Ans. 22. Appellant does not respond to the Examiner’s clarifications in the
Answer (Ans. 21—22) by filing a Reply Brief. Appellant, consequently, has
not shown error in the Examiner’s factual findings.
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Appellant next argues “the rationale provided by the final Office
action for modifying Yasuda with Tinker — ‘in order to operate valves’ — is
improper” because it is “a conclusory statement.” Appeal Br. 9-10.
We are unpersuaded because Appellant’s argument does not address
the Examiner’s actual reasoning. The Examiner determines “[o]ne of
ordinary skill in the art would have been motivated to do this modification in
order to operate valves, as suggested by Tinker (Col. 6 Lines 57—59).” Final
Act. 6 (emphasis added). The portion of Tinker cited by the Examiner as
providing a reason for modifying Yasuda with Tinker discloses “[t]he use of
pneumatic relays 200 in addition to solenoid valves 201 permits the solenoid
valves to be operated by very low relay coil currents of about 250
milliamperes.” Tinker 6: 57—59. Appellant does not demonstrate the
Examiner’s rationale is a conclusory statement because Appellant does not
address this additional reason cited by the Examiner from Tinker.
Appellant further argues “it would not make any sense” to modify
Yasuda with Tinker “in order to operate valves” because the Yasuda and
Tinker devices are already operable. Appeal Brief. 9. We are unpersuaded.
The Examiner finds that although Yasuda teaches controlling valves, Yasuda
does not disclose operating valves in the manner suggested by Tinker (using
pneumatic relays, which have been interpreted as a digital valve controller,
with solenoid valves). See Ans. 23. Appellant does not address these
findings provided by the Examiner, and therefore, does not convince us of
error. Accordingly, the Examiner has provided sufficient reasoning with
rational underpinnings for combining the teachings of Yasuda with Tinker.
See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on
obviousness grounds [require] some articulated reasoning with some rational
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underpinning to support the legal conclusion of obviousness”) (cited with
approval inKSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Appellant, moreover, fails to provide any evidence demonstrating the
Examiner’s proffered combination would have been “uniquely challenging
or difficult for one of ordinary skill in the art,” Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007).
For the reasons discussed, Appellant has not shown error in the
Examiner’s factual findings or conclusion of obviousness. Accordingly, we
sustain the Examiner’s 35 U.S.C. § 103 rejection of independent claim 1 as
well as the rejection of independent claims 12 and 18, which are argued for
similar reasons as independent claim 1. See Appeal Br. 10, 11. Dependent
claims 2, 3, 5—11, 13—17, and 19-21 are not argued separately and so the
rejection of these claims are sustained for the reasons given for independent
claim 1. See Appeal Br. 11—12.
DECISION
We affirm the Examiner’s decision rejecting claims 1—3 and 5—21
under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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