Ex Parte Farrugia et al

Patent Trials and Appeals Board

Mar 25, 2019

13713902 - (D) (P.T.A.B. Mar. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/713,902 12/13/2012 Steven Paul Farrugia
147311 7590 03/27/2019
Botos Churchill IP Law LLP
430 Mountain A venue
Suite 401
New Providence, NJ 07974
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.
RESMED 3.3-069 C (798) 9350
EXAMINER
COMLEY, ALEXANDER BRYANT
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
03/27/2019 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):
pto@bciplaw.com
rchurchill@bciplaw.com
rbotos@bciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN PAUL FARRUGIA,
KRISTIAN THOMSEN, MATTHEW ALDER, and
TRACEY BULLIVANT 1
Appeal2017-005367
Application 13/713 ,902
Technology Center 3700
Before LINDA E. HORNER, LISA M. GUIJT, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision finally rejecting claims 3 5--4 7. 2 Appellant presented
arguments at an oral hearing on February 28, 2019. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 The Appeal Brief indicates that ResMed Limited ( the Applicant) is the real
party in interest. Appeal Br. 4.
2 Claims 1-34 have been cancelled. Appeal Br. 15 (Claims App.).
Appeal2017-005367
Application 13/713,902
THE CLAIMED SUBJECT MATTER
The claimed invention is directed to a system for the estimation of
flow in a positive airway pressure (PAP) device without the use of sensors.
Spec. ,r 2. Claim 35 is the sole independent claim on appeal and is
reproduced below with emphasis added.
35. A blower, comprising:
a motor for powering a fan operatively coupled to the
motor, the fan supplying a flow of air at a controlled pressure;
a sensor operable to measure an actual speed associated
with the motor;
circuitry coupled to the motor and operable to sense an
actual motor current associated with the motor;
a controller coupled to the circuitry and motor, the
controller being operable to use as input parameters the actual
speed associated with the motor and a desired motor current,
the desired motor current being a current determined to
maintain a desired motor speed, and
wherein the controller uses the desired motor current and
actual motor speed to estimate an airflow value associated with
the flow of air supplied at the controlled pressure through the
blower, and the controller is operable to filter motor load
torque perturbationsl3l to maintain a substantially constant
speed, and
wherein airflow fluctuations through the blower vary in
association with a subject's respiratory cycle.
Appeal Br. 15 (Claims App.).
REFERENCES RELIED ON BY THE EXAMINER
Wedeen
Brydon
Farrugia
us 5,349,278
us 5,740,795
US 6,332,463 B 1
Sept. 20, 1994
Apr. 21, 1998
Dec. 25, 2001
3 In the discussion below, the terms "torque pulsations," "torque
perturbations," "torque fluctuations," and "ripple" have the same meaning.
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Application 13/713,902
THE REJECTIONS ON APPEAL
I. Claims 35, 36, and 39-47 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Brydon and W edeen. 4
II. Claims 37 and 38 is rejected under 35 U.S.C. § 103(a) as
unpatentable over Brydon, Wedeen, and Farrugia.
ANALYSIS
Rejection I, Brydon and Wedeen
Claim 35
(a)
The Examiner finds that Brydon discloses most of the features
required by claim 35, including a blower comprising a controller (power
supply 16 and motor controller 18) that maintains a substantially constant
speed via a feedback loop. See Final Act. 4--5. However, the Examiner
finds that Brydon does not disclose that its controller is operable to filter
motor load torque perturbations to maintain a substantially constant speed.
See id. at 5.
The Examiner finds that the teachings of W edeen remedy this
deficiency in that "W edeen discloses another motor control circuit (Fig. 1;
Abstract) in which an electric motor 11 is utilized as a driving source, and
which is specifically aimed at eliminating motor torque pulsations/ripples
4 Claim 38 depends from claim 37. Appeal Br. 15 (Claims App.). However,
the Final Office Action erroneously includes the rejection of claim 3 8 in the
rejection based on only Brydon and Wedeen (Rejection I), rather than with
the rejection of claim 37 (Rejection II), which is based on Brydon, Wedeen,
and Farrugia. See Final Act. 4, 6, 8. We review the patentability of claim 38
according to claim 38's dependence on claim 37 and pursuant to Rejection
II.
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Application 13/713,902
(i.e. perturbations) in order to stabilize system operation." Id. at 5.
Additionally, the Examiner finds that Wedeen teaches that motor torque
perturbations cause undue wear and vibrations, and W edeen solves this
problem with circuitry ( compensation circuit 20) in a speed feedback loop.
Id. (citing Wedeen 1:13-16, 5:30-41). The Examiner reasons that
modifying the speed feedback loop taught by Brydon to incorporate
compensation circuit 20 of W edeen "would help to stabilize operation of the
motor, reduce wear, and provide a more constant motor speed with reduced
changes in speed." Id. at 5---6.
In traverse, Appellant asserts "one simply cannot replace Brydon's
algorithm with that found in Wedeen given that Brydon's and Wedeen's
controllers require different inputs and employ entirely different input and
output circuitry."5 Appeal Br. 8. Specifically, Appellant contends that the
controller in Brydon receives an input speed signal 22, whereas the
controller in W edeen receives a combination of (i) the output of
compensation circuit 20, and (ii) a torque command signal from an
accelerator pedal 15. See id. at 8-9 (citing Brydon 3:37-39; Wedeen
3:12-17, 3:27-30). In Appellant's words, "Wedeen's algorithm is not
looking for a speed feedback signal." Id. at 9. Appellant also contends that
the outputs of the controllers in Brydon and Wedeen control different types
5 Appellant begins ( and concludes) this portion of the argument by briefly
asserting that, in rejecting claim 35, the Examiner did not give the claim its
broadest reasonable interpretation in light of the Specification. See Appeal
Br. 8-9. However, Appellant's argument in this section of the Appeal Brief
focuses on the comb inability of the teachings of Brydon and W edeen. See
id. at 8-9.
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Application 13/713,902
of devices. Id. Based on these alleged differences, Appellant asserts,
"Wedeen cannot make up for the 'lack of correct controller programming' in
Brydon[; t ]he different inputs and applications between Brydon and Wedeen
forecloses simply plopping Wedeen's program into Brydon's controller."
Id.
The Examiner responds by noting that both Brydon and W edeen teach
controlling electric motor speed and using electric motor speed as an input
signal. Ans. 10-11 (citing Brydon Fig. la, 3:33-39; Wedeen Fig. 1,
3:10-22, 3:35---62). In this regard, the Examiner reiterates that the rejection
relies, in part, on Wedeen's disclosure of controller 21 and compensation
circuit 20. Id.
In reply, Appellant asserts Wedeen's controller 21 does not receive
speed as an input. See Reply Br. 1--4. Appellant contends that, instead,
"W edeen could not be clearer, the output of the summation device 17 that is
input to the controller is a 'compensated torque command signal,"' and
"[t]here is no credible basis or rational[e] to assert that a feedback speed
signal from Wedeen' s tachometer is used by his controller 21." Id. at 4.
Appellant reiterates the assertion that the controllers disclosed by Brydon
and W edeen receive different input signals, and, therefore, the teachings of
these references are not combinable as proposed by the Examiner. See
Reply Br. 5-7.
For the reasons explained below, Appellant's arguments on this point
are unavailing. The Examiner's finding that Wedeen teaches that torque
perturbations are damaging to electric motors (Final Act. 5) is supported by
Wedeen's background discussion, which states, "torque pulsations can cause
motor bearing and tire wear" and "torque pulsations can also cause
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Application 13/713,902
undesirable drive [t]rain/vehicle vibration" (Wedeen 1:14--16). Wedeen
discloses that compensation circuit 20 reduces or eliminates torque
fluctuations. Wedeen 3:35---62. Thus, the Examiner's reasoning that "by
modifying Brydon' s speed feedback loop to further incorporate the
compensation circuit/filter 20 of W edeen, the same torque compensation
improvements would be obtained" (Final Act. 5---6) is supported by rational
underpinnings.
Assuming, arguendo, Appellant's allegation that Brydon's and
Wedeen's controllers require different inputs and provide different outputs
(see Appeal Br. 8) is correct, the argument that such differences preclude the
combination of teachings proposed by the Examiner rests on a bodily
incorporation of controller 21 of Wedeen within the system disclosed by
Brydon. This is not the proper obviousness inquiry. In re Keller, 642 F .2d
413,425 (CCPA 1981) (holding that "[t]he test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of a primary reference; ... [ r ]ather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.") ( citations omitted); see also KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007) ("[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton"). In light of the disclosure
in Wedeen that torque pulsations are a problem and the corresponding
disclosure of compensation circuit 20 to ameliorate this problem, we agree
with the Examiner that a person of ordinary skill in the art would have had
reason to implement such a solution in the system disclosed by Brydon.
Even if, as asserted by Appellant, "[ t ]he different inputs and applications
between Brydon and Wedeen forecloses simply plopping Wedeen's program
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into Brydon's controller" (Appeal Br. 9), Appellant makes no argument that
incorporating Wedeen's teaching regarding reducing torque pulsations
would have been beyond the level of skill in the art. Thus, Appellant's
argument regarding different inputs and outputs used by controller 18 in
Brydon and controller 21 in W edeen does not apprise us of Examiner error.
Furthermore, the rejection of claim 35 relies on the addition of
compensation circuit 206 ofWedeen, not controller 21, to Brydon's system.
See Final Act. 6 ("it would have been obvious to one of ordinary skill in the
art at the time of the invention to modify the speed feedback loop 22 of
Brydon with the additional torque compensation circuit 20 (i.e. torque
compensation circuit/filter) of Wedeen in order to obtain predictable results
[specifically, filtering out torque perturbations]"). Thus, Appellant's
arguments as to the specific inputs provided to controller 21 of Wedeen do
not address the Examiner's rejection of claim 35.
(b)
Appellant next contends "W edeen never discusses maintaining a
constant speed," and, instead, deliberately changes motor speed in order to
eliminate torque fluctuations. Appeal Br. 10. Appellant states, "Wedeen
teaches that the 'fluctuations of the motor speed can be sensed and used to
modulate or compensate the motor speed and/or slip and/or commutation
angle and/ or motor current and/ or motor field current to eliminate the
torque fluctuations of the drive train."' Id. (quoting Wedeen 2:66-3:2).
6 Appellant admits that compensation circuit 20 of Wedeen receives a signal
indicative of motor speed. See Reply Br. 3 ("Therefore, in effect, the
capacitor 24 [ of compensation circuit 20 in Wedeen] filters the speed signal
to obtain a torque ripple signal. So speed can never get to controller since it
is already filtered out by capacitor 24.").
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Application 13/713,902
Appellant argues that, in light of this functionality, "Wedeen actually
teaches away from maintaining a 'substantially constant motor speed."' Id.
at 11.
In response, the Examiner notes that W edeen teaches changing
parameters other than motor speed in order to eliminate torque pulsations,
and, moreover, compensation circuit 20 in Wedeen reduces speed
pulsations. See Ans. 14--15 (citing Wedeen Abstract, 1 :44--51, 2:57-3:2).
Appellant's argument on this point does not apprise us of Examiner
error. The statement in W edeen teaching that the motor speed can be sensed
and used to modulate or compensate the motor speed to eliminate torque
pulsations (Wedeen 2:66-3:2) means that Wedeen makes adjustments to
make the motor speed more stable (see id. at 2:58-3:2). In other words, the
"use" W edeen makes of fluctuations of motor speed is that such fluctuations
are sensed and then counteracted with compensation circuit 20. In this
regard, Wedeen states, "[t]he speed signal derived from the tachometer 14 is
coupled to a compensation circuit 20 in accordance with the present
invention," and "[t]he output signal from the compensation circuit 20
compensates or modulates the torque command signal in a manner that
reduces or eliminates fluctuations experienced at the drive shaft 13 of the
motor 11." Wedeen 3:24--27, 3:30-34 (emphasis omitted). We do not agree
that compensating a torque command signal to eliminate fluctuations
experienced at a drive shaft amounts to teaching away from maintaining a
substantially constant motor speed.
In any event, as noted by the Examiner (Ans. 14), compensation
circuit 20 in Wedeen is able to eliminate torque fluctuations by modulating
parameters other than the motor speed. See Wedeen 2:66-3:2 ("The
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fluctuations of the motor speed can be sensed and used to modulate or
compensate the motor speed and/or slip and/or commutation angle and/or
motor current and/ or motor field current to eliminate the torque fluctuations
of the drive train."). Appellant provides no persuasive argument or evidence
to the effect that modulating such parameters is incompatible with the
system disclosed by Brydon. That is to say, we do not agree that the
teachings of Brydon and W edeen are "at odds with each other" as asserted
by Appellant. Appeal Br. 10.
(c)
Although the rejection of claim 35 modifies Brydon's system to
incorporate Wedeen's teaching of reducing torque perturbations via the
addition of a compensation circuit (such as compensation circuit 20),
Appellant argues that the controller recited in claim 3 5 has two input
parameters, and, according to Appellant, the controllers in Brydon and
Wedeen each accept only one input signal. Reply Br. 5
To the extent Appellant's argument on this point is a reiteration of the
assertion that the controllers disclosed by Brydon and Wedeen receive
different input signals and are, therefore, not combinable, this argument is
addressed above. To the extent Appellant's argument is that the proposed
combination of the teachings of Brydon and Wedeen provides a controller
lacking the requisite number of input signals, this argument is raised for the
first time in the Reply Brief and is not responsive to any position newly
raised in the Examiner's Answer. Appellant does not show good cause why
this new argument should be considered. Accordingly, this argument is
waived and will not be further addressed. See 37 C.F.R. § 4I.47(b)(2).
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We have considered all of Appellant's timely arguments in support of
the patentability of claim 35, but find them unavailing. Accordingly, we
sustain the rejection of claim 35 as unpatentable over Brydon and Wedeen.
We address Appellant's separate arguments regarding dependent claims 36,
42, and 46 (and claims 43, 44, and 47 depending therefrom) below.
Claim 36
Claim 36 recites, "[t]he blower of claim 35, wherein the controller
uses a two-dimensional look-up table to estimate the airflow value." Appeal
Br. 15 (Claims App.). The Examiner finds that Figure 3a of Brydon
qualifies as a two-dimensional look-up table inasmuch as this figure depicts
a graph of flow versus time. See Final Act. 6.
We agree with Appellant's contention that the graph depicted in
Figure 3a of Brydon is not a two-dimensional look-up table. See Appeal Br.
12. Although Figure 3a provides information in the form of a curve plotted
along two axes, this plot is not a "table" as required by claim 3 6.
Accordingly, we do not sustain the rejection of claim 36, as unpatentable
over Brydon and Wedeen.
Claims 42-44
Claim 42 recites, "[t]he blower of claim 35, wherein the controller
comprises a two stage controller having a first section and a second section,
the first and second sections arranged in a feedback loop." Appeal Br. 16
(Claims App.). The Examiner finds "the controller (16, 18) [of Brydon]
comprises a two stage controller having a first section (18) and a second
section (16) that are arranged in a feedback loop (Fig. la)." Final Act. 7.
Appellant argues that Brydon refers to element 16 as a "power
supply," and the Examiner has not established that this power supply is a
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Application 13/713,902
section of a controller as claimed. Appeal Br. 12. The Examiner does not
address this argument in the Answer. See Ans. 8-18.
Appellant has the better position because (i) the Examiner does not
explain adequately how element 16 qualifies as a section of a controller, and
the Examiner does not explain adequately how a controller with two parts
qualifies as a two stage controller as recited in claim 42. 7 In other words,
the Examiner has not established that a controller with two parts is
necessarily a two stage controller with first and second sections in a
feedback loop. Finally, the Examiner does not address whether it would
have been obvious to modify Brydon to include two sections in its
controller. For the reasons discussed above, we do not sustain the rejection
of claim 42, and claims 43 and 44 depending therefrom, as unpatentable
over Brydon and Wedeen.
Claims 46 and 47
Claim 46 recites, "[t]he blower of claim 35, further comprising a filter
coupled to the sensor, the filter being operable to filter out perturbations
from the actual measured motor speed." Appeal Br. 16 (Claims App.). The
Examiner finds that compensation circuit 20 of W edeen corresponds to the
filter recited in claim 46. Final Act. 7.
Appellant contends, "substituting elements of [W edeen' s] ...
circuitry into Brydon's circuitry would change the function and operation of
Brydon's circuitry[, and a]s any electrical engineer will attest, changing
7 Despite extensive briefing addressing the rejection of claim 35, Appellant
did not contest the Examiner's finding in this rejection that Brydon discloses
a controller (16/18). Claim 35 does not specify that the recited controller is
a "two stage" controller having different sections in a feedback loop.
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circuit elements in a portion of a circuit changes not only its functionality
but may render it in operable." Appeal Br. 13.
Appellant's argument in support of claim 46 amounts to a restatement
of the bodily incorporation argument discussed above regarding claim 35,
and, for the same reasons, does not apprise us of Examiner error. We sustain
the rejection of claim 46 as unpatentable over Brydon and Wedeen.
Appellant does not present separate arguments for the patentability of claim
4 7, which depends from claim 46, and therefore, for essentially the same
reasons as stated for claim 46, we sustain the rejection of claim 4 7. Appeal
Br. 13 (submitting that claim 47 is patentable over Brydon and Wedeen
based on its dependency from claim 46).
Claims 39-41 and 45
Appellant makes no additional arguments for the patentability of
claims 39-41 and 45 (see Appeal Br. 13 (submitting that claims 39-41 and
45 "rise and fall" with claim 35)), and these claims fall with claim 35, from
which they depend.
Rejection II, Brydon, Wedeen, and Farrugia
Claims 37 and 38
In the rejection of claim 37, the Examiner relies on Farrugia to teach
features related to polynomial coefficients. See Final Act. 8. Thus, the
Examiner's use of the teachings of Farrugia does not remedy the deficiency
discussed above regarding the rejection of claim 36. Accordingly, as claim
37 depends from claim 36, we do not sustain the rejection of claim 37, and
claim 3 8 depending therefrom, over Brydon, Wedeen, and Farrugia.
DECISION
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I. We affirm the rejection of claims 35, 39-41, and45--47 as
unpatentable over Brydon and Wedeen, and reverse the same rejection as to
claims 36 and 42--44.
II. We reverse the rejection of claims 37 and 38 as unpatentable over
Brydon, Wedeen, and Farrugia.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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