Ex Parte Enyedy

Patent Trial and Appeal Board

Jun 26, 2013

11120240 (P.T.A.B. Jun. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte EDWARD A. ENYEDY
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Appeal 2011-001989
Application 11/120,240
Technology Center 3700
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Before MURRIEL E. CRAWFORD, JAMES A. TARTAL, and PHILIP J.
HOFFMANN, Administrative Patent Judges.

TARTAL, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE1
Edward A. Enyedy (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s final decision rejecting claims 1, 2, 7-15, 20-26, and
34-57. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
Appellant’s claimed invention relates to wire feeders used in arc
welding, and more particularly, to protecting a wire feeder motor during the
feeding of welding wire. Spec. 1.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A wire feeder for arc welding comprising a wire feed
motor, a power supply in electrical communication with said
wire feed motor and a control circuit that controls a current, a
voltage, and combinations thereof to said wire feed motor, said
control circuit varying a current control level, a voltage control
level, and combinations thereof to said wire feed motor over at
least a portion of a wire feed speed range of said wire feeder,
said current control level, said voltage control level, and
combinations thereof is a calculated value based on a particular
wire feed speed.
The Examiner relies upon the following evidence:
Reinhold US 2003/0234627 A1 Dec. 25, 2003
Meckler US 2005/0205543 A1 Sep. 22, 2005
Ihde US 2006/0070986 A1 Apr. 6, 2006
Kaufman US 2006/0131293 A1 Jun. 22, 2006
Claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38 stand rejected on the
ground of nonstatutory obviousness-type double patenting over claims 1 and

1 Our decision will make reference to Appellant’s Appeal Brief (“App. Br.,”
filed Sep. 14, 2009) and Reply Brief (“Reply Br.,” filed Sep. 1, 2010), and
the Examiner’s Answer (“Ans.,” mailed Jul. 21, 2010).
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3 of co-pending application no. 10/805,944, which issued as U.S. Patent No.
7,098,425.
Claims 1, 2, 7-12, 14, 15, 20-25, and 34-53 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Kaufman.
Claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Meckler.
Claims 35, 37, 39, 42, 45, 48, 51, and 53 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Kaufman.
Claims 13 and 26 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kaufman and Reinhold.
Claims 54-57 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kaufman and Ihde.
FINDINGS OF FACT
We find that the findings of fact which appear in the Analysis below
are supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
ANALYSIS
Obviousness-Type Double Patenting
Claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38
Claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38 stand rejected on the
ground of non-statutory obviousness-type double patenting over claims 1
and 3 of co-pending application no. 10/805,944, which issued as U.S. Patent
No. 7,098,425 (the ’425 patent). Claim 1 of the ’425 patent discloses a
“power conditioner” that adjusts the current, voltage, and combinations
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thereof to “properly power” a welding wire motor. The instant application
claims a “control circuit” that adjusts the current, voltage, and combinations
thereof to a wire feed motor “based on a particular wire feed speed.”
Appellant contends that the ’425 patent does not teach or suggest the
claimed invention because it does not provide for modifying current,
voltage, or combinations thereof based on a selected wire feed speed. App.
Br. 4.
The Examiner asserts that “the claims of the instant application are
merely broader in scope than that of the copending application [for the ’425
patent] and are obvious variants based on engineering expediency.” Ans. 12.
The Examiner does not explain how controlling a wire feed motor based on
a particular wire feed speed is “broader in scope” than limiting a claim to
“properly power” a welding wire motor. The Examiner also provides no
articulated rationale for why it would be obvious to use wire feed speed as
the basis for modifying current and/or voltage in place of properly powering
the motor, as set forth in the ’425 patent. Accordingly, we cannot sustain the
Examiner’s nonstatutory obviousness-type double patenting rejection of
claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38.
Anticipation Based on Kaufman
Claims 1, 2, 7-12, 14, 15, 20-25, and 34-53
We find not persuasive Appellant’s contention that Kaufman does not
teach the element of calculating a current and/or voltage level based on a
selected wire feed speed or controlling current, voltage, or power based on a
command determined by a selected wire speed feed. See App. Br. 11. We
see no merit to Appellant’s attempt to distinguish the claims from Kaufman
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by asserting that “applicant’s invention calculates the control level based on
the selected speed as opposed to assuring that the selected speed and actual
speed are the same.” See App. Br. 11. Kaufman may seek to assure the
selected speed and actual speed are the same, but it discloses precisely what
Appellant broadly claims: calculating a current and/or voltage level based on
a selected wire feed speed. We adopt the findings and reasoning of the
Examiner stating that:
Kaufman explicitly discloses comparing the actual wire feed
speed (WFS) to the calibrated WFS and, if a variation is
present, incrementing or decrementing a current, voltage and/or
power level of a calibration profile for a given wire feed motor
in order to achieve a certain wire feed speed, thereby adjusting
the calibration profile accordingly (pages 3-4, paragraphs 28-
37). In addition, Kaufman discloses the term of “incrementing/
decrementing” may not be simple “addition/subtraction”. The
“simple” or not “simple” “incrementing/decrementing”
disclosure is clearly a calculating step to supply a necessary
current, voltage, and/or power level to achieve a given speed.

Ans. 12-13. Accordingly, we conclude Appellant has not overcome the
Examiner’s rejection of claims 1, 2, 7-12, 14, 15, 20-25, and 34-53 as being
anticipated by Kaufman.
Anticipation Based on Meckler
Claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38
Appellant offers no argument in their Appeal Brief to overcome the
Examiner’s rejection of claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38 as
anticipated by Meckler. In the Reply Brief and for the first time, Appellant
belatedly argues that Meckler does not anticipate the claims because it does
not disclose that current, voltage, and combinations thereof be varied based
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on a particular wire feed speed. See Reply Br. 7-8; see also Ex parte
Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply
brief [is not] an opportunity to make arguments that could have been made
in the principal brief on appeal to rebut the Examiner’s rejections, but were
not.”). Appellant has waived such arguments since they are untimely.
Moreover, Appellant’s arguments mirror the arguments Appellant raised
with regard to the double patenting rejection addressed above, which we
found not to be persuasive. Accordingly, we summarily sustain this
rejection.
Obviousness Based on Kaufman
Claims 35, 37, 39, 42, 45, 48, 51, and 53
For the same reasons discussed above with respect to the anticipation
rejection based on Kaufman, we find not persuasive Appellant’s generalized
argument that Kaufman does not teach or suggest the claimed subject matter.
We further find not persuasive Appellant’s assertion that Kaufman “does not
provide any description that would cause one of ordinary skill to provide a
control circuit that calculates a control level or provides a command
current/voltage/combination based on the selected wire feed speed.” See
App. Br. 12. We find that the Examiner articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness by
stating that “Kaufman clearly teaches the use of a control circuit to control
the current, voltage and/or power levels based on a given wire feed speed
and a maximum value in a calibration profile of Kaufman would prevent a
detrimental condition to the user, workpiece, and or apparatus.” See Ans.
14; see also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (when
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considering obviousness “a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ”).
Obviousness Based on Kaufman and Reinhold
Claims 13 and 26
Regarding claims 13 and 26, Appellant repeats the arguments
Appellant raised with regard to the anticipation and obviousness rejections
based on Kaufman, which we find not persuasive for the same reasons
discussed above. Appellant’s argument that Reinhold fails to disclose
controlling the current and/or voltage with respect to a selected wire feed
speed is also not persuasive because the Examiner does not rely on Reinhold
as disclosing this feature. Accordingly, we conclude Appellant has not
overcome the Examiner’s determination that claims 13 and 26 are
unpatentable over Kaufman and Reinhold.
Obviousness Based on Kaufman and Ihde
Claims 54-57
Regarding claims 54-57, Appellant repeats the arguments Appellant
raised with regard to the anticipation and obviousness rejections based on
Kaufman, which we find not persuasive for the same reasons discussed
above. Appellant’s argument that Ihde fails to disclose controlling the
current and/or voltage with respect to a selected wire feed speed is also not
persuasive because the Examiner does not rely on Ihde as disclosing this
feature. Accordingly, we conclude Appellant has not overcome the
Examiner’s determination that claims 54-57 are unpatentable over Kaufman
and Ihde.

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CONCLUSIONS OF LAW
We conclude that Appellant has overcome the Examiner’s rejection of
claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38 on the ground of nonstatutory
obviousness-type double patenting over claims 1 and 3 of co-pending
application no. 10/805,944, which issued as U.S. Patent No. 7,098,425.
We further conclude that Appellant has not overcome the Examiner’s
rejection of claims 1, 2, 7-12, 14, 15, 20-25, and 34-53 under 35 U.S.C. §
102(e) as being anticipated by Kaufman.
We further conclude that Appellant has not overcome the Examiner’s
rejection of claims 1, 2, 7, 8, 14, 15, 20, 21, 34, 36, and 38 under
35 U.S.C. § 102(e) as being anticipated by Meckler.
We further conclude that Appellant has not overcome the Examiner’s
rejection of claims 35, 37, 39, 42, 45, 48, 51, and 53 under 35
U.S.C. § 103(a) as being unpatentable over Kaufman.
We further conclude that Appellant has not overcome the Examiner’s
rejection of claims 13 and 26 under 35 U.S.C. § 103(a) as being
unpatentable over Kaufman and Reinhold.
We further conclude that Appellant has not overcome the Examiner’s
rejection of claims 54-57 under 35 U.S.C. § 103(a) as being unpatentable
over Kaufman and Ihde.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1, 2, 7-15,
20-26, and 34-57.
Appeal 2011-001989
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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) (2011).
AFFIRMED

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