Ex Parte Cupples et al

Board of Patent Appeals and Interferences

Jun 22, 2009

11199749 (B.P.A.I. Jun. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte KENNETH ALAN CUPPLES,
JAMES ROBERT CHAMPION, and WOJTEK MILLER
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Appeal 2009-003225
Application 11/199,749
Technology Center 2600
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Decided:1 June 22, 2009
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Before JOHN C. MARTIN, MAHSHID D. SAADAT, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Application 11/199,749

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 (2002) from the Examiner’s
final rejection of claims 2-9, 11-18, and 20-22. We have jurisdiction under
35 U.S.C. § 6(b) (2002). We affirm.

A. Appellants’ invention
[Appellants’] invention relates to tank level monitors that
can broadcast an output signal indicative of the liquid level of
the tank to a cellular communications network, through which
the tank level information is transferred to a user. The monitor
includes a processor that conserves power of the monitor by
only operating the monitor periodically.
Br. 2.

B. The claims
Independent claim 5 is illustrative.2 It reads as follows:
5. A stand-alone tank monitor apparatus, for monitoring a
liquid level in a tank, the tank monitor apparatus comprising:
a liquid-level sensor providing a sensor-signal indicative
of the liquid level in the tank;
a cellular communication device operatively connected to
the liquid level sensor and configured for transmitting a
broadcast output signal, indicative of the liquid level in the
tank, directly to a cellular communications network; and
a processor for conserving power by operating the
monitor periodically, rather than continuously.

2 Appellants argue claims 3-7, 12-18, 21, and 22 together as a group. See Br.
4-8. Accordingly, we select independent claim 5 as representative of these
claims. See 37 C.F.R. § 41.37(c)(1)(vii).
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C. The references and rejections
The Examiner relies on the following prior art references to show
unpatentability:
Dulphy-Vigor US 6,345,214 B1 Feb. 5, 2002
Masar US 2003/0028336 A1 Feb. 6, 2003
Pasko US 2004/0084359 A1 May 6, 2004
Brun US 2004/0093942 A1 May 20, 2004
1. Claims 3-7, 12-18, 21, and 22 stand rejected under 35 U.S.C. § 103(a)
as obvious over Masar in view of Pasko.
2. Claims 2, 11, and 20 stand rejected under 35 U.S.C. § 103(a) as
obvious over Masar in view of Pasko and Brun.
3. Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as obvious
over Masar in view of Pasko and Dulphy-Vigor.
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Brief and the Answer for their respective details.3 In this
decision, we have considered only those arguments actually made by
Appellants. Arguments which Appellants could have made but did not make
in the Brief have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).

ISSUE
The Examiner asserts: (1) Masar discloses a tank monitor that
includes all of the elements of claim 5 except for a processor that operates
the monitor periodically, rather than continuously (Ans. 4); (2) Pasko

3 We refer to (1) the Appeal Brief filed February 21, 2008; and (2) the
Examiner’s Answer mailed April 23, 2008, throughout this opinion.
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teaches a monitor having “a processor for conserving power by operating the
monitor periodically, rather than continuously” (id.); and (3) it would have
been obvious to modify Masar’s tank level monitor such that it can be
operated periodically so as to enable a low power requirement (id.).
Appellants assert that “a prima facie case of obviousness of the
invention as claimed cannot be established based on the proposed
modification of Masar in view of Pasco.” Br. 4 (emphasis omitted). But
rather, combining Pasko’s teachings would render Masar unsatisfactory for
its intended purpose (Br. 5-7); modifying Masar according to Pasko would
produce no reasonable expectation of success (Br. 7-8); and combining the
prior art improperly changes the principle of Masar’s operation (Br. 8-9).
More specifically, Appellants assert (1) Masar’s tank level monitoring
system “operates on a polling principle whereby the monitor is prompted by
an instruction from . . . the base station . . . to transmit data indicative of the
current conditions within the storage tank;” (2) Masar includes no teaching
or suggestion that the tank level monitor itself may determine when to
transmit data, but instead is completely reliant upon the base station
transmitting a request for information to be transmitted; and as such (3) the
cellular communications device of Masar’s monitor must always be turned
on so that it is ready to receive a polling call from the base station. Br. 5.
Therefore, if Masar’s cellular communications device were modified
according to Pasko so as to be turned off until an alarm condition occurs,
Masar would not be able to receive a polling inquiry from a user or from the
base station. Br. 6.
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The issue before us, then, is: have Appellants shown that the
Examiner erred in finding that the cited prior art collectively teaches or
suggests a tank monitor apparatus including a processor that operates the
monitor periodically?

FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence:
1. Appellants’ Specification states, “[f]or example, the processor may be
configured to periodically sample and store values of the sensor-signal,
according to a sampling schedule, and to periodically cause the cellular
communication device 47 to transmit the broadcast output signal 16.” Spec.
¶ 0029.
2. Pasko discloses “[a] liquid level monitoring system for detecting high
liquid levels in a wastewater handling system” that includes “wireless sensor
modules, a wireless network, and a processor system.” Pasko, Abstract.
3. Pasko’s sensor module 22 includes circuit board 54, antenna cable 66,
and antenna 82. Pasko, Figs. 2A, 2B; ¶¶ 0043-0048.
4. The circuit board 54 of Pasko’s sensor module includes wireless
communications device 58 and capacitive sensing alarm circuit 60. Id.
5. The capacitive sensing alarm circuit 60 of Pasko’s circuit board may
include liquid level sensor 60a, which is coupled to probe 70 and capable of
detecting high and low liquid levels on probe 70. Pasko, ¶¶ 0050-0051;
Figs. 2A, 2B.
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6. The wireless communications device 58 of Pasko’s sensor module
includes processor/software 59 and transmits event messages and
notifications via antenna cable 66 and antenna 82. Pasko, ¶¶ 0042, 0048;
Figs. 2A, 2B.
7. Pasko’s processor/software 59 includes event alarm monitor 59a,
power/wake/sleep control 59b, and message generator 59c. Pasko, ¶¶ 0053-
0054; Figs. 2A, 2B.
8. In the event Pasko’s probe is submerged in liquid, the alarm circuit
detects the high water level and activates the wireless communication device
58, thus transmitting an event message via an antenna 82 and a wireless
network to a remote processing system 28. E.g., Pasko, Abstract; ¶ 0048;
Figs. 1, 2A, 2B. Pasko’s “[e]vent alarm monitor 59a is activated upon
receiving a signal from alarm circuit 60. Upon receiving the signal, event
alarm monitor 59a activates power/wake/sleep control 59b to wake
communication device 58 from a low power state.” Pasko, ¶ 0053; Figs. 1,
2A, 2B. “Event message generator 59c generates event message 34
depending upon predetermined programming, parameters stored in memory
59f, input signals received from alarm circuit 60 and processing system 28,
via communication receiver transmitter 58a, and input from
power/wake/sleep control 59b.” Pasko, ¶ 0054; Figs. 1, 2A, 2B.

PRINCIPLES OF LAW
1. 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). In so
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doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966) (noting that 35 U.S.C.
§ 103 leads to three basic factual inquiries: (1) the scope and content of the
prior art; (2) the differences between the prior art and the claims at issue;
and (3) the level of ordinary skill in the art). Furthermore, the Examiner’s
obviousness rejection must be based on
“some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness” . . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
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)).
If the Examiner’s burden is met, the burden then shifts to Appellants
to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).
2. Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See Kahn, 441 F.3d at 985-86.

ANALYSIS
“Before considering the rejections . . ., we must first [determine the
scope of the] claims . . . .” See In re Geerdes, 491 F.2d 1260, 1262 (CCPA
1974). Appellants’ Specification does not provide any express definition of
what constitutes “operating the monitor periodically.” But the Specification
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does state, “[f]or example, the processor may be configured to periodically
sample and store values of the sensor-signal, according to a sampling
schedule, and to periodically cause the cellular communication device 47 to
transmit the broadcast output signal 16.” FF 1. One skilled in the art would
understand then, that the processor itself must be continuously operating in
some manner4 in order for the processor to be able to perform its intended
functions. See In re Preda, 401 F.2d 825, 826 (CCPA 1968) (noting that “in
considering the disclosure of a reference, it is proper to take into account not
only specific teachings of the reference but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom”).
However, claim 5 recites a stand-alone tank monitor apparatus that
includes a liquid-level sensor, a cellular communication device, and a
processor. Restated, the processor is a subcomponent, or part, of the
monitor apparatus. Strictly speaking then, the claim language–“operating
the monitor periodically”–is a non sequitur; the entire monitor apparatus
cannot operate only periodically if its subcomponent processor operates
continuously. In light of this ambiguity we interpret the claim language
“operating the monitor periodically” not to preclude operating continuously
but performing certain operations, such as sampling or broadcasting, only
periodically.
Turning to the cited prior art, Pasko discloses “[a] liquid level
monitoring system for detecting high liquid levels in a wastewater handling

4 For example, during those periods when no level sampling or signal
broadcasting is occurring, the processor may be either in an active mode, or
it may be in a sleep mode that is responsive to some internally-clocked or
external “wake-up” signal.
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system” that includes “wireless sensor modules, a wireless network, and a
processor system.” FF 2. The sensor module 22 includes circuit board 54,
antenna cable 66, and antenna 82. FF 3. The sensor module’s circuit board
54 includes wireless communications device 58 and capacitive sensing alarm
circuit 60. FF 4. Capacitive sensing alarm circuit 60 may include liquid
level sensor 60a, which is coupled to probe 70 and capable of detecting high
and low liquid levels on probe 70. FF 5. The wireless communications
device 58 includes processor/software 59 and transmits event messages and
notifications via antenna cable 66 and antenna 82. FF 6. The
processor/software 59 includes event alarm monitor 59a, power/wake/sleep
control 59b, and message generator 59c. FF 7.
In the event the probe is submerged in liquid, the alarm circuit detects
the high water level and activates the wireless communication device 58,
thus transmitting an event message via an antenna 82 and a wireless network
to a remote processing system 28. FF 8. More specifically, “[e]vent alarm
monitor 59a is activated upon receiving a signal from alarm circuit 60.
Upon receiving the signal, event alarm monitor 59a activates
power/wake/sleep control 59b to wake communication device 58 from a low
power state.” Id. Additionally, “[e]vent message generator 59c generates
event message 34 depending upon predetermined programming, parameters
stored in memory 59f, input signals received from alarm circuit 60 and
processing system 28, via communication receiver transmitter 58a, and input
from power/wake/sleep control 59b.” Id. (emphasis added).
Restated, Pasko’s wireless communications device 58–either alone or
alternatively in combination with capacitive sensing alarm circuit 60–
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constitutes “a processor for conserving power by operating the monitor
periodically.” Moreover, Pasko expressly discloses that this processor may
transmit event messages in response to input signals received from the
remote processing system, or in Appellants’ parlance, in response to polling
inquiries from the base station.
Accordingly, Pasko itself refutes Appellants’ assertion that Masar’s
cellular communications device, when modified according to Pasko, would
not be able to receive a polling inquiry from a user or from the base station.
Rather, one of ordinary skill in the art would understand such a modification
to result in a tank monitor apparatus possessing (1) all of Masar’s base-
station-initiated polling functionality; (2) Pasko’s ability to send event
messages without polling being initiated by a base station; and additionally
(3) Pasko’s power/sleep/wake functionality of placing the monitor in a sleep
state during those periods when no event or base-station-initiated polling is
taking place.
For the foregoing reasons, Appellants have not persuaded us of error
in the Examiner’s obviousness rejection of representative claim 5.
Accordingly, we will sustain the Examiner’s rejection of that claim and
claims 3, 4, 6, 7, 12-18, 21, and 22, which fall with claim 5.
With respect to the remaining rejections of (1) claims 2, 11, and 20
over Masar, Pasko, and Brun, and (2) claims 8 and 9 over Masar, Pasko, and
Dulphy-Vigor, Appellants provide no patentability arguments directed to the
additional references of Brun or Dulphy-Vigor. Rather, Appellants repeat
the arguments directed to claim 5 and apply them to the remaining
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rejections. Br. 9. Accordingly, for the reasons discussed above, we also
sustain the rejections of claims 2, 8, 9, 11, and 20.

CONCLUSION OF LAW
Appellants have not shown that the Examiner erred in finding that the
cited prior art collectively teaches or suggests a tank monitor apparatus
including a processor that operates the monitor periodically. As such,
Appellants have not shown that the Examiner erred in rejecting claims 2-9,
11-18, and 20-22 under § 103.

DECISION
We sustain the Examiner's rejections with respect to all pending
claims on appeal. Therefore, the Examiner’s rejection of claims 2-9, 11-18,
and 20-22 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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