Ex Parte DANIEL

Patent Trial and Appeal Board

Nov 26, 2018

14132496 (P.T.A.B. Nov. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/132,496 12/18/2013 JOSEPH A. DANIEL
115182 7590 11/28/2018
Calfee, Halter & Griswold LLP
1405 East 6th Street
Cleveland, OH 44114
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.
22976/04186 7037
EXAMINER
WARD, THOMAS JOHN
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
11/28/2018 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):
ipdocket@calfee.com
wfrick@calfee.com
ip@lincolnelectric.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH A. DANIEL
Appeal 2018-001921
Application 14/132,496
Technology Center 3700
Before LINDA E. HORNER, WILLIAM A. CAPP, and
NATHAN A. ENGELS, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Lincoln Global, Inc. is the Applicant and real party in interest. Appeal
Br. 3.
Appeal 2018-001921
Application 14/132,496
THE INVENTION
Appellant's invention involves computer software that is related to
welding. Spec. ,r 2. Claim 1, reproduced below, is illustrative of the subject
matter on appeal.
1. A weld sequence editor, said weld sequence editor
compnsmg:
a computer having at least one processor, a computer
memory, and a display device; and
a weld sequence editor software application stored on the
computer memory including computer-executable instructions
configured to be executed by the at least one processor,
wherein the weld sequence editor software application is
configured to provide a graphical user interface having a tool
bar section, a function selection section, and a programmable
flowchart section, and
wherein the programmable flowchart section is configured
to provide a space for a user to generate a welding sequence, for
guiding an operator to assemble a part, by:
defining functional weld sequence groups,
programming one or more functional weld sequence
steps for each of the functional weld sequence groups, and
programming a functional flow through the functional
weld sequence groups.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Takaoka
Fuhlbrigge
Rouault
Daniel
us 6,167,328
US 2006/0178778 Al
US 7,102,098 B2
US 2007 /0056942 Al
2
Dec. 26, 2000
Aug. 10, 2006
Sept. 5, 2006
Mar. 15, 2007
Appeal 2018-001921
Application 14/132,496
The following rejections are before us for review:
1. Claims 1-5 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fuhlbrigge and Takaoka.
2. Claims 6 and 7 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fuhlbrigge, Takaoka, and Rouault.
3. Claims 8-14 are rejected under 35 U.S.C. § 103 as being
unpatentable over Fuhlbrigge, Takaoka, and Daniel.
OPINION
Unpatentability of Claims 1-5
over Fuhlbrigge and Takaoka
Appellant argues claims 1-5 as a group. Appeal Br. 8-12. We select
claim 1 as representative. See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Fuhlbrigge discloses the invention
substantially as claimed except for providing flowchart space to generate a
welding sequence. Final Action 4. The Examiner relies on Takaoka for this
limitation. Id. The Examiner concludes that it would have been obvious to
a person of ordinary skill in the art at the time of the invention to modify the
program of Fuhlbrigge with the teachings of Takaoka to achieve the claimed
invention. Id. at 5. According to the Examiner, a skilled artisan would have
done this to provide user defined sequences in a welding apparatus. Id.
Appellant first argues that Fuhlbrigge is concerned with controlling a
robot and is not concerned with guiding an operator to assemble a part.
Appeal Br. 9. This argument is not persuasive. Fuhlbrigge is directed to a
method of developing an executable software program. Fuhlbrigge ,r 13. A
plurality of software segments are selected from a library by a user,
graphically depicted, and then connected. Id.
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Appeal 2018-001921
Application 14/132,496
The program development wizard is runnable on the CPU to
execute a method of developing an executable robot control
software program. In accordance with the method, information
is elicited from a user and information is received from the
user. Using the received user information, a plurality of the
segments are selected from the library. Graphical
representations of the selected segments are displayed on the
display and the selected segments are combined. The robot
controller executes the robot control software program to
control the robot.
Id. ,r 15 ( emphasis added). Appellant provides no persuasive explanation as
to why the "user" in Fuhlbrigge does not correspond with the "operator" of
claim 1. The computer software program developed by Fuhlbrigge is used
to control robotic device 14 that performs an industrial operation such as
welding work piece 20. A sequence of welding steps is illustrated in
Figure 8. Id. ,r 56, Fig. 8. Appellant's argument fails to patentably
distinguish Fuhlbrigge from the limitation of claim 1 directed to a welding
sequence for guiding an operator to assemble a part. Claims App., claim 1.
Appellant next argues that Takaoka fails to disclose a "flowchart
section" as in claim 1. Appeal Br. 9. According to Appellant:
Id.
The floating windows of Takaoka do not provide the flowchart
approach of independent claim 1 of the present application to
generate a welding sequence for guiding an operator to
assemble a part.
In response, the Examiner takes the position that Figure 8 of
Fuhlbrigge discloses a flow chart of a welding sequence. Ans. 8.
A flow chart or welding sequence is seen in the software of
Fuhlbrigge et al (Fig. 8) as seen in "Begin Sequence: Welding
Program.["] The welding sequence has various steps that allow
for processing of a material to be weld[ed]. The welding
sequence of Fuhlbrigge et al can be displayed on editor 108
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Appeal 2018-001921
Application 14/132,496
Id.
with toolbar denoted by 204 (Fig. 14), section 208 which is
made of descriptors and symbols 160 which a user can drag and
drop programs segments 112 (function selection section) into
program 12 to create a programmable flowchart for a process
(paragraph 0065, lines 1-12).
In reply, Appellant essentially repeats the same arguments that were
presented in the Appeal Brief and argues, generally, that the Examiner's
Answer fails to overcome such arguments. See generally, Reply Br.
Takaoka is directed to a robot language processing apparatus for a
welding torch. Takaoka, Abstract, col. 8, 11. 52---64. Takaoka discloses
graphical language window 104 that displays a group of programming
commands displayed as a three-dimensional path. Takaoka, Fig. 8. Various
commands are indicated by sequentially numbered circular dots along the
path. Id. Takaoka then discloses a floating window 108 that overlays
portions of the graphical language window and depicts various welding joint
conditions that may be selected by the user for each of the illustrated
command dots in the sequence. Id. col. 10, 1. 62---col. 11, 1. 37, Figs. 11-14.
In view of the foregoing disclosure, the Examiner's finding that Takaoka
discloses a programmable flowchart section configured to provide a space
for a user to generate a welding sequence for guiding an operator to
assemble a part is supported by a preponderance of the evidence.
Finally, Appellant argues that Fuhlbrigge teaches away from using a
"flowchart approach." Appeal Br. 10, citing Fuhlbrigge ,r 7. This argument
is not persuasive. Teaching away requires "clear discouragement" from
implementing a technical feature. In re Ethicon, Inc., 844 F.3d 1344, 1351
(Fed. Cir. 2017). However, the "mere disclosure of alternative designs does
not teach away." In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012). At
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Appeal 2018-001921
Application 14/132,496
most, paragraph 7 of Fuhlbrigge, which appears in the Background of the
Invention Section, recognizes that certain programming methods that use
"standard icons" in a "flowchart form" have met with only "limited success"
in complex robotic applications. Fuhlbrigge ,r 7 ("standard icons may not be
very descriptive and may require a programmer to be intimately familiar
with the symbology of the graphical programming language"). The passage
of Fuhlbrigge quoted by Appellant falls short of a "clear discouragement" of
using a flowchart section.
Furthermore, as broadly but reasonably construed by the Examiner,
Fuhlbrigge actually uses a "flowchart," and, therefore, cannot be said to
teach away from using a flowchart. Ans. 8; see In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (explaining that during patent
prosecution, claims are given their broadest reasonable construction
consistent with the specification). Similar to and consistent with Appellant's
Specification, Figure 8 of Fuhlbrigge depicts a sequence of steps annotated
by icons depicting circles and arrows. Compare Fuhlbrigge, Fig. 8, with
Spec. ,r,r 89 ( describing a programmable flowchart section configured to
allow a user to generate a welding sequence by programming weld sequence
groups and functional weld sequence steps, among other things), 91, 93, 98,
Fig. 9. Appellant fails to explain why the Examiner's construction for
"flowchart" or "programmable flowchart section" is unreasonably broad in
light of the Specification. See generally, Appeal Br.; Reply Br.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
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Appeal 2018-001921
Application 14/132,496
Accordingly, we sustain the Examiner's unpatentability rejection of
claims 1-5.
Unpatentability of Claims 6 and 7
over Fuhlbrigge, Takaoka, and Rouault
Appellant does not argue for the separate patentability of claims 6
and 7 apart from arguments presented with respect to claim 1, which we
have previously considered. We sustain the Examiner's unpatentability
rejection of claims 6 and 7 over Fuhlbrigge, Takaoka, and Rouault. See 37
C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue claims).
Unpatentability of Claims 8-14
over Fuhlbrigge, Takaoka, and Daniel
Appellant does not argue for the patentability of claims 8-14 apart
from arguments that we have previously considered. Appeal Br. 14. We
sustain the Examiner's unpatentability rejection of claims 8-14 over
Fuhlbrigge, Takaoka, and Daniel. 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
The decision of the Examiner to reject claims 1-14 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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