Ex Parte Authier

Patent Trial and Appeal Board

Oct 31, 2016

12570407 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/570,407 0913012009
28291 7590 11/02/2016
SMART & BIGGAR
1000 DE LA GAUCHETIERE ST. W.
SUITE 3300
MONTREAL, QC H3B 4W5
CANADA
FIRST NAMED INVENTOR
Michel AUTHIER
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
89003-30C 1103
EXAMINER
PAIK, SANG YEOP
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
USPTO.MTL@SMART-BIGGAR.CA
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHEL AUTHIER
Appeal2014-008659
Application 12/570,407
Technology Center 3700
Before JOSEPH A. FISCHETTI, CYNTHIA L. MURPHY, and
BRUCE T. WIEDER, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner's
rejections of claims 42--46 and 51---60. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appellant identifies the real party in interest as "GECKO ALLIANCE
GROUP INC." (Appeal Br. 3.)
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Application 12/570,407
STATEMENT OF THE CASE
The Appellant's invention "relates to bathing unit systems that are
operative to heat the water used therewith via power generated from solar
energy." (Spec. 1, lines 13-15.)
Illustrative Claim2
42. A control system for a bathing unit system, the bathing unit
system having a water receptacle holding water and a set of
bathing unit components, the set of bathing unit components
including a heating module, said control system comprising:
a) a first input for receiving electrical power from a first
power source;
b) a second input for receiving electrical power from a
second power source, wherein the second power source
is distinct from the first power source;
c) a controller in communication with said heating module,
said first input and said second input, said controller
being programmed for:
i) monitoring parameters of operation of the bathing unit
system;
ii) determining if the bathing unit system is being used
by one or more bathers at least in part by processing
the monitored parameters;
iii) selecting at least one of the first power source and the
second power source to supply electrical power to the
heating module of the bathing unit system, the
selecting being made at least in part based on results
of the determining; and
iv) operating the heating module by using electrical
power supplied by the selected at least one of the first
power source and the second power source.
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 21-24 of the Appeal Brief.
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Appeal2014-008659
Application 12/570,407
Bajka
Ishikawa
Cline
Authier
References
us 4,322,297
us 4,697,136
US 6,407 ,549 B 1
US 6,476,363 Bl
Rejections
Mar. 30, 1982
Sept. 29, 1987
June 18, 2001
Nov. 5, 2002
The Examiner rejects claims 42, 43, 45, and 51---60 under 35 U.S.C.
§ 103(a) as unpatentable over Authier, Bajka, and Ishikawa. (Final
Action 2.)
The Examiner rejects claims 44 and 46 under 35 U.S.C. § 103(a) as
unpatentable over Authier, Bajka, Ishikawa, and Cline. (Id. at 5.)
ANALYSIS
Claims 42, 51, and 56 are the independent claims on appeal, with the
rest of the claims on anneal (claims 43--46. 52-55. and 57---60) denendirn.?:
_.__._ ' / / / _._ '-'
therefrom. (Claims App.) Independent claims 4 2, 51, and 5 6 are each
directed to a "control system for a bathing unit system." (Id.) The Examiner
finds that Authier discloses such a control system. (See Final Action 2.)
Authier shows, in Figure 1, a "hot tub spa system." (Authier, col. 1,
lines 17-18.)
Independent claims 42, 51, and 56 each recites a "heating module," a
"first power source," and a "controller in communication with said heating
module." (Claims App.) The Examiner finds that Authier discloses such
components. (See Final Action 2.) In Authier's hot tub spa system, water is
pumped "through heater 3 where it is heated by heating element 5" which is
connected "to a suitable power source, such as a standard household electric
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Application 12/570,407
circuit." (Authier, col. 1, lines 17-24, 45--46.) Authier also discloses a spa
controller 7 that "is programed to remove the voltage to regulation relay
111" whereby "power to the heating element 5 will be interrupted." (Id. at
col. 2, lines 50-51, 53-56; see also id. Fig. 1.)
Independent claims 42, 51, and 56 also recite a "second power
source" and require the controller to be programmed for "selecting at least
one of the first power source and the second power source to supply
electrical power to the heating module." (Claims App.) The Examiner finds
that it would have been obvious, in view of the teachings ofBajka of
Ishikawa, to "adapt Authier with a power source that is powered by an
electrical source and a solar source" and "to modify and program" Authier' s
spa controller 7 to selectively select the first non-solar power source and/or
the second solar power source. (Final Action 4--5.)3
Independent claims 42, 51, and 56 further recite limitations relating to
the criteria used by the controller to select the first and/or second power
sources. As these limitations differ among the independent claims, we
address them separately below.
Independent Claim 42
Independent claim 42 recites that the controller is programmed for
"determining if the bathing unit system is being used by one or more bathers
at least in part by processing the monitored parameters" and that the
selection of the power source is "made at least in part based on results of the
3 Insofar as the Appellant argues that any of the Examiner's above-discussed
findings are incorrect, incomplete, or otherwise erroneous with respect to
independent claims 42, 51, and 56, we are not persuaded by these
arguments.
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Application 12/570,407
determining." (Claims App.) The Examiner finds that Authier discloses
such a determination and explains that, in Authier, "maintaining the
temperature level" in the water receptacle "is based on and controlled by the
user that sets or uses the bathing unit system to function." (Final Action 3.)
Authier discloses that "[a] user of the spa can set the desired temperature of
the water inside tub 2 to a predetermined level from a keypad 200" and
"[ w ]hen the temperature of the water inside the tub reaches the
predetermined level," spa controller is programmed to [interrupt] power to
heating element 5." (Authier, col. 2, lines 51-56.)
The Appellant argues the feature of "determining if the bathing unit
system is being used by one or more bathers at least in part by processing the
monitored parameters" is absent in Authier. (See Appeal Br. 9.) The
Appellant emphasizes the term "bathers" in this limitation and contends that
this limitation requires "determining if one or more people may be using the
water receptacle of the bathing unit system to bathe." (Id. at 9.) The
Appellant acknowledges that Authier teaches a "user" of the spa providing
an input on a control panel (i.e., keypad 200), but argues that "[ n Jo mention
is made of such user using the receptacle to bathe" and so "nothing in
Authier provides an indication as to whether the system 'is being used by
one or more bathers.'" (Id. at 10, 12.)
We are not persuaded by this argument because claims "are to be
given their broadest reasonable interpretation consistent with the
[S]pecification." In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004). Here, the Specification conveys that "there are many ways
that the control unit can detect that the bathing unit system is in use."
(Spec. 17, lines 3--4, reference numeral(s) omitted.) For example, "the
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Application 12/570,407
control unit 54 can detect[] that the cover is off" or "the control unit 54 can
detect that the system is in use when a user activates a 'start' button on the
control panel 32." (Id. at lines 4--8.) In other words, the Specification
conveys that a controller's detection of a user input can indeed provide an
indication as to whether the system is being used by one or more bathers.
The Appellant does not adequately address why a user's input on Authier's
keypad 440 would not likewise provide such an indication.
The Appellant additionally argues that it is incorrect to conclude that
"knowledge that Authier' s bathing unit system is functioning serves, in and
of itself, as a determination that the bathing unit system 'is being used by
one or more bathers.'" (Appeal Br. 11.) We are not persuaded by this
argument because our decision relies upon the Examiner's findings
regarding Authier' s disclosure that its spa controller 7 detects user input on a
keyboard 400. (See Final Action 3.)
Thus, we are unpersuaded by the Appellant's position that the
Examiner errs in finding that Authier teaches the determination required by
independent claim 42. We are likewise unpersuaded, therefore, by the
Appellant's argument that "without carrying out the claimed determining
step" it is impossible for the prior art "to teach a feature that is dependent
upon such determining." (Appeal Br. 11.)
Thus, we sustain the Examiner's rejection of independent claim 42
under 35 U.S.C. § 103(a) as unpatentable over Authier, Bajka, and Ishikawa.
Independent Claim 51
Independent claim 51 requires the selection of the power source be
"made, at least in part, on [a] stored alternating usage pattern." (Claims
App.) The Examiner finds that it would have been obvious, in view of the
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teachings of Bajka and Ishikawa, to modify and program Authier' s spa
controller to select the power source based on an alternating usage pattern.
(See Final Action 4--5.) The Examiner explains that such modification is "a
matter of routine experimentations" to conserve the use of the non-solar
power source "to save energy and cost." (Id. at 5.)
The Appellant argues that Bajka "does not actually disclose a time-
based selection of the source of the heating." (Appeal Br. 15.) According
to the Appellant, in Bajka, "the actual source to be used (gas or solar or
both) is decided by the circuit, based on external factors (e.g., temperature
and available heat) and not based on a programming choice (or stored
alternating usage pattern). (Id.)
We are not persuaded by this argument because the Examiner "need
not seek out precise teachings directed to the specific subject matter of the
challenged claim" as "the inferences and creative steps that a person of
ordinary skill in the art would employ" can be taken into account. KSR Int'!
Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Here, Bajka discloses
"preferential solar heating," "time-switched operation," and "a combination
thereof." (Bajka, Abstract.) Bajka also teaches that "[s]olar panels can be
set to operate during the time of day when solar energy is most likely to be
available." (Id. at col. 2, lines 5-7.) One of ordinary skill in the art would
infer from these teachings that the selection of a solar versus non-solar
power source for heating a spa tub could be based on a stored alternating
usage pattern. (See Final Action 4--5.) Insofar, as Bajka teaches that time-
switched operation should be used only in tandem with external factors, we
note that independent claim 52 recites that the selection is made "at least in
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part based on [the] stored alternating usage pattern." (Claims App.,
emphasis added.)
Thus, we sustain the Examiner's rejection of independent claim 51
under 35 U.S.C. § 103(a) as unpatentable over Authier, Bajka, and Ishikawa.
Independent Claim 56
Independent claim 56 recites that the controller is programmed for
"deriving energy consumption information associated with the bathing unit
system at least in part by processing information conveying an amount of
usage of at least one [sic] the first power source and the second power
source over a time period" and that the selection of the power source is
"made at least in part based on the derived energy consumption
information." (Claims App.) The Examiner finds that it would have been
obvious, in view of the teachings of Bajka and Ishikawa, to modify and
program Authier' s spa controller to select the power source based on "an
amount of usage of either the power sources." (See Final Action 4--5.) The
Examiner explains that such modification is "a matter of routine
experimentations" to conserve the use of the non-solar power source "to
save energy and cost." (Id. at 5.)
The Appellant argues that Bajka does not consider "'deriving energy
consumption information' by processing usage of the power sources 'over a
time period' and then selecting the power source to be used to supply
electrical power 'at least in part based on the derived energy consumption
information."' (Appeal Br. 19.)
We are not persuaded by this argument because the Specification
conveys that "[t]he energy consumption information derived by the control
unit can include the [] amount of time the second power source is in use."
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Application 12/570,407
(Spec. 24, lines 21-27, reference numeral( s) omitted.) As discussed above,
claims are to be given their broadest reasonable interpretation consistent
with the Specification. Bajka discloses that its controller possesses
"programmable input means" for the "receipt and storage of time sequence
input and temperature input." (Bajka, col. 3, lines 43--45.) Bajka also
teaches that "solar heating, when possible, will be preferred to non-solar."
(Id. at col. 6, lines 22-23.) The Appellant does not adequately address why
one of ordinary skill in the art would not infer that Bajka's controller could
derive (i.e., recall) stored/programmed time information and corresponding
usage of its solar power source during these stored time periods. 4 And Bajka
discloses that its controller produces time-based signals based, at least in
part, on such stored time information. (See id. at col. 3, lines 45--46.)
Thus, we sustain the Examiner's rejection of independent claim 56
under 35 U.S.C. § 103(a) as unpatentable over Authier, Bajka, and Ishikawa.
Dependent Claims 43--46, 52-55, and 57-60
The Appellant does not argue dependent claims 43 and 45 separately
from independent claim 42; does not argue dependent claims 52-55
separately from independent claim 51; and does not argue dependent claims
57---60 separately from independent claim 56 (see Appeal Br. 8, 14, 17); and
so these dependent claims fall with their base independent claims. The
Appellant's arguments with respect to dependent claims 44 and 46 are
premised only upon the additional prior art reference (Cline) not remedying
4 As also discussed above, the Examiner "need not seek out precise
teachings directed to the specific subject matter of the challenged claim" as
"the inferences and creative steps that a person of ordinary skill in the art
would employ" can be taken into account. KSR 550 U.S. at 419.
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the above-discussed alleged deficiencies in the Examiner's rejection of
independent claim 42 (see id. at 20) and so these dependent claims also fall
with independent claim 42.
Thus, we sustain the Examiner's rejection of dependent claims 43, 56,
52-55, and 57---60 under 35 U.S.C. § 103(a) as unpatentable over Authier,
Bajka, and Ishikawa; and we sustain the Examiner's rejection of dependent
claims 43 and 45 under 35 U.S.C. § 103(a) as unpatentable over Authier,
Bajka, Ishikawa, and Cline.
DECISION
We AFFIRM the Examiner's rejections of claims 42--46 and 51---60.
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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