Ex Parte Frampton et al

Patent Trial and Appeal Board

Oct 30, 2017

14578378 (P.T.A.B. Oct. 30, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/578,378 12/20/2014 Isaac S. Frampton 3357.011US2 8698
21123 7590 11/01/2017
SCHWEGMAN LUNDBERG & WOESSNER / CISCO
P.O. BOX 2938
MINNEAPOLIS, MN 55402-0938
EXAMINER
GONZALEZ, JULIO CESAR
ART UNIT PAPER NUMBER
2831
NOTIFICATION DATE DELIVERY MODE
11/01/2017 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):
SLW @ blackhillsip.com
uspto@slwip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ISAAC S. FRAMPTON and ERIC D. ALBSMEIER
(Applicant: Kohler Co.)1
Appeal 2017-003285
Application 14/578,378
Technology Center 2800
Before MICHAEL P. COLAIANNI, DONNA M. PRAISS, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal the Examiner’s decision finally rejecting claims 1—
8 and 13—24, which constitute all the claims pending in this application.
35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Kohler Co. as the real party in interest. App. Br. 2.
2 In our Decision, we refer to the Specification filed December 20, 2014
(“Spec.”); Final Office Action dated April 14, 2016 (“Final Act.”); Appeal
Brief dated August 19, 2016 (“App. Br.”); Examiner’s Answer to the Appeal
Brief dated November 8, 2016 (“Ans.”); and Reply Brief dated December
22,2016.
Appeal 2017-003285
Application 14/578,378
The Claimed Invention
Appellants’ disclosure relates to a method of controlling speed of a
variable speed generator using a measured load of the variable speed
generator. Spec. 12; Abstract. Claim 1 is illustrative of the claimed subject
matter on appeal and is reproduced below from the Claims Appendix to the
Appeal Brief (App. Br. 17) (key disputed claim language italicized and
bolded and indentation added):
1. A method of controlling speed of a variable speed
generator comprising:
detecting a load supplied by the variable speed
generator, wherein the variable speed generator is
configured to supply power over a range of operating
speeds depending on the load',
determining a target speed for the variable speed
generator based on the load supplied by the variable
speed generator, and
using a controller to adjust the speed of the
variable speed generator based on the target speed.
The References
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Waldron US 4,427,896 Jan. 24, 1984
Okamoto US 4,749,944 June 7, 1988
Maekawa US 5,703,410 Dec. 30, 1997
Thome et al.,
(hereinafter “Thome”)
US 6,014,015 Jan. 11,2000
Kawamura et al., US 6,230,479 B1 May 15,2001
(hereinafter “Kawamura”)
Fattal US 2008/0157724 Al July 3, 2008
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The Rejections
On appeal, the Examiner maintains the following rejections:
1. Claims 1—5, 13, and 17—24 are rejected under pre-AIA
35 U.S.C. § 102(b) as being anticipated by Fattal (“Rejection 1”). Final Act.
4; Ans. 2.
2. Claims 1—5, 13, and 17—24 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Okamoto in view of Fattal
(“Rejection 2”). Final Act. 5; Ans. 2.
3. Claims 3, 6, 7, 15, and 24 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Fattal and/or Okamoto and
further in view of Maekawa (“Rejection 3”). Final Act. 6; Ans. 2.
4. Claim 8 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Fattal and/or Okamoto and further in view of Kawamura
(“Rejection 4”). Final Act. 7; Ans. 3.
5. Claim 13 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Fattal and/or Okamoto and further in view of Thome
(“Rejection 5”). Final Act. 7; Ans. 3.
6. Claims 14 and 16 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Fattal and/or Okamoto and/or
Thome, and Maekawa as applied to claims 1,13, and 15 above, and in
further view of Waldron (“Rejection 6”). Final Act. 8; Ans. 3.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellants in light of this appeal record, we affirm the Examiner’s
rejections for the reasons set forth in the Answer to the Appeal Brief and
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Final Office Action, which we adopt as our own. We highlight and address
specific findings and arguments below for emphasis.
Rejection 1
Appellants present substantive argument for the patentability of
independent claims 1,17, and 21, but do not present any additional
substantive argument for the patentability of dependent claims 2—5, 13, 18—
20, and 22—24. App. Br. 9, 12. The arguments as to claims 1, 17, and 21 do
not differ in substance. Id. at 9, 12. We select claim 1 as representative and
the remaining claims subject to this rejection stand or fall with claim 1.
37C.F.R. §41.37(c)(l)(iv).
The Examiner determines that Fattal discloses a method for
controlling an electric power generation system satisfying all of the steps of
claim 1 and thus, anticipates the claim. Final Act. 4 (citing Fattal 15, 22,
24).
In particular, the Examiner finds that Fattal discloses: (1) an electric
power generation system having a controller and a variable speed generator
34; (2) the generator is configured to supply power over a range of operating
speeds depending on the load; (3) a target speed for the generator is
obtained; and (4) that a controller is used for adjusting the speed of the
generator. Final Act. 4 (citing Fattal ]Hf 15, 22). The Examiner further finds
that Fattal discloses that both AC and DC currents are used in the system as
well as proportional integral controllers. Id. at 4 (citing Fattal 124).
Appellants argue that the Examiner’s rejection of claim 1 should be
reversed because Fattal does not teach determining any speeds based on a
detected load. App. Br. 10. In particular, Appellants argue that although
Fattal discloses a variable speed generator, the reference does not teach or
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suggest “detecting a load supplied by the variable speed generator ” and
“determining a target speed for the variable speed generator based on the
load supplied,” as recited in the claim. Id. at 10, 11; see also Reply Br. 2—\.
Appellants further argue that Fattal does not teach or suggest “using a
controller to adjust the speed of the variable speed generator based on the
target speed,” as claimed. App. Br. 12; see also Reply Br. 4—5.
We do not find Appellants’ arguments persuasive of reversible error
in the Examiner’s rejection. To serve as an anticipatory reference, “the
reference must disclose each and every element of the claimed invention.”
In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009).
Based on the record before us, we find that a preponderance of the
evidence supports the Examiner’s determination (Ans. 3—5; Final Act. 4)
that Fattal discloses each and every element of claim 1. Fattal H 15, 16, 18,
19, 22, 23, 24, 33, 35, 38, 39, 41, Figs. 2, 6.
Contrary to what Appellants argue, Fattal does disclose the limitations
“detecting a load supplied by the variable speed generator” and “determining
a target speed for the variable speed generator based on the load supplied.”
As the Examiner finds (Ans. 3), Fattal discloses that the rotational speed of
the engine 32 corresponds to the rotational speed of the generator 34 and the
speed “varies over a selected operating range in response to changes in
electrical loading of the system.” Fattal 115. Fattal further discloses that,
over the selected operating range, “rotational speed increases to meet larger
power demands concomitant with an increasing electrical load on system
28.” Id. 115.
As the Examiner finds (Ans. 3—4), Fattal also discloses detecting a
load supplied by the generator and functioning over a range of operating
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speeds depending on the load. Fattal 123 (disclosing that “[sjpeed
adjustment with logic 102 can arise with changes in electrical loading”), |
35 (disclosing that the target speed may be “determined based on the
normalized load”).
We do not find Appellants’ argument that Fattal does not teach or
suggest “using a controller to adjust the speed of the variable speed
generator based on the target speed” (App. Br. 12) persuasive of reversible
error for the well-stated reasons provided by the Examiner at pages 3—5 of
the Answer and page 4 of the Final Office Action. The preponderance of
evidence in the record supports the Examiner’s finding (Ans. 5) that Fattal
teaches using processor 100 and hardware/software being for controlling the
system, including adjusting the speed of the variable speed generator based
on the target speed. Fattal 16, 18, 19, 22, 38, 39, 41, Fig. 6.
In particular, Fattal discloses that:
[Processor 100 includes genset power request control logic 102
to regulate rotational speed of genset 30 relative to system 28
operations. Logic 102 provides input signals to genset 30 that
are representative of a requested target load to be powered by
genset 30. Genset governor 103 of genset 30 responds to logic
102 to adjust engine rotational speed, which in turn adjusts
rotational speed of generator 34.
Fattal 122; see also id. 135 (“The target genset speed is then determined
based on the normalized load.”)
Appellants’ arguments do not reveal reversible error in the
Examiner’s analysis and factual findings in this regard.
Appellants’ assertion that “the PI controller in Fattal. . . does not
perform the control method as recited in claim 1” (App. Br. 10) and
comments regarding “DC currents” {id. at 10-11) are not persuasive of
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reversible error because they are conclusory and Appellants do not provide
an adequate technical explanation or sufficient evidence in the record to
support them. Attorney argument is not evidence. In re De Blauwe, 736
F.2d 699, 705 (Fed. Cir. 1984).
Accordingly, we affirm the Examiner’s rejection of claims 1—5, 13,
and 17—24 under 35 U.S.C. § 102(b) as being anticipated by Fattal.
Rejection 2
Appellants argue claims 1—5, 13, and 17—24 as a group. App. Br. 14.
We select claim 1 as representative of this group and the remaining claims
subject to this rejection stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner determines that the combination of Okamoto and Fattal
suggests a method satisfying all of the steps of claim 1 and, thus, would have
rendered the claim obvious. Final Act. 5 (citing Okamoto, Abstract, col. 1,
11. 19-35, col. 2,11. 63, 64, col. 3,11. 20-63, Fig. 4; Fattal H 15, 61, 65, 80,
Figs. 2, 3).
In particular, the Examiner finds (1) that Okamoto discloses
controlling the speed of a generator based on a detected load in which a
target speed of the generator is based on a load and (2) that a controller is
used to adjust the speed of the generator. Final Act. 5 (citing Okamoto,
Abstract, col. 1,11. 19—35, col. 3,11. 20-63). The Examiner further finds that
Okamoto discloses AC current being used in the detection and that
correcting a target speed is done via a PID
(proportion+integration+differentiation) controller. Id. at 5 (citing Okamoto,
col. 2,11. 63—64, Figs. 2, 3). The Examiner also finds Fattal discloses that it
was well known in the art that a variable speed generator being driven by an
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engine operates at different speeds. Id. at 5 (citing Fattal H 15, 61, 65, 80,
Figs. 2, 3).
Based on the above findings, the Examiner concludes that:
It would have been obvious to one having ordinary skill in the
art at the time the invention was made to design the controlling
method as disclosed by Okamoto and to show explicitly that a
variable speed generator operates at different speeds for the
purpose of accurately recognizing electrical load changes as
disclosed by Fattal.
Final Act. 5.
Appellants argue that the Examiner’s rejection should be reversed for
the same reasons previously presented in response to the Examiner’s
Rejection 1. App. Br. 14. We do not find this argument persuasive of
reversible error in the Examiner’s rejection for the same reasons previously
discussed above in affirming the Rejection 1.
Moreover, we find that the preponderance of the evidence and sound
technical reasoning support the Examiner’s analysis and determination (Ans.
7; Final Act. 5) that the combination of Okamoto suggests all of the
limitations of claim 1 and conclusion that the combination would have
rendered the claim obvious. Okamoto, Abstract, col. 1,11. 19-35, col. 2,11.
63, 64, col. 3,11. 20—63, Fig. 4; Fattal 15, 61, 65, 80, Figs. 2, 3.
The Examiner also provides a reasonable basis and identifies a
preponderance of the evidence in the record to evince why one of ordinary
skill would have combined the teachings of the references to arrive at
Appellant’s claimed invention. Final Act. 5; see also KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.”).
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Appellants’ assertions at page 14 of the Appeal Brief that Okamoto
“does not and cannot teach” certain limitations of claims 1,17, and 21,
respectively, are conclusory and, without more, insufficient to establish
reversible error in the Examiner’s findings and analysis in this regard. A
naked assertion that the prior art fails to teach or suggest a claim’s
limitations is not an argument in support of separate patentability. In re
Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011); 37 C.F.R.
§ 41.37(c)(l)(iv); De Blauwe, 736 F.2d at 705.
Appellants also argue that the Examiner’s use of Okamoto in
combination with Fattal is improper because Okamoto is non-analogous art.
App. Br. 13. In particular, Appellants contend that because Okamoto is
directed to a constant-speed generator, modifying Okamoto to operate as a
variable speed generator would render Okamoto unsatisfactory for its
intended purpose. Id. at 12, 13; see also Reply Br. 6—7.
Appellant’s argument is not persuasive because it too narrowly
construes the scope of Okamoto’s disclosure, particularly the applicable
field of endeavor and relevance to the problem addressed by the claimed
invention. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). As the
Examiner finds (Ans. 9), Okamoto and Fattal are analogous because they
both concern a generator being driven by a diesel engine and controlling the
engine in order to control the load output of the generator.
In particular, we concur with the Examiner’s finding (Ans. 10; Final
Act. 5) that Okamoto discloses controlling the speed of a generator based on
a detected load in which a target speed of the generator is based on a load
and that a controller is used to adjust the speed of the generator (Okamoto,
Abstract, col. 1,11. 19-35, col. 2,11. 63, 64, col. 3,11. 20—63), which is
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directly pertinent to the limitations of and problem addressed by Appellants’
claim 1.
We do not find Appellants’ argument that the combination of
Okamoto and Fattal would render Okamoto unsatisfactory for its intended
purpose (App. Br. 12, 13) persuasive of reversible error because Appellants
do not provide an adequate technical explanation or direct us to sufficient
evidence in the record to support it.
Contrary to what Appellants’ argument suggests, the fact that
Okamoto discloses controlling the engine so that the transient speed
difference of the generator becomes small (Okamoto, col. 1,11. 31—35) does
not take away from Okamoto’s broad disclosure regarding controlling the
speed of a generator based on a detected load. A reference is good for all
that it teaches, including the reasonable inferences that would be drawn by
the skilled artisan. See In re Preda, 401 F.2d 825, 826 (CCPA 1968).
As the Examiner points out (Ans. 8), Okamoto discloses that the
generator may be driven at different speeds due to “a substantial change of
engine speed” caused by the load (Okamoto, col. 1,11. 26—32) and, thus,
suggests controlling at least small speed differences of the generator (id. at
col. 1,11. 32-35).
Accordingly, we affirm the Examiner’s rejection of claims 1—5, 13,
and 17—24 under 35 U.S.C. § 103(a) as obvious over the combination of
Okamoto and Fattal.
Rejections 3, 4, 5, and 6
Appellants do not present any additional substantive arguments in
response to the Examiner’s Rejections 3—6, stated above. Rather, Appellants
rely on the same arguments presented above in response to the Examiner’s
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Rejection 1 regarding the Fattal reference and Rejection 2 regarding the
combination of Okamoto and Fattal, respectively. App. Br. 15
Accordingly, based on the findings and technical reasoning provided
by the Examiner and for the same reasons discussed above for affirming
Rejections 1 and 2, we affirm the Examiner’s Rejections 3—6.
DECISION/ORDER
The Examiner’s rejections of claims 1—8 and 13—24 are affirmed.
It is ordered that the Examiner’s decision 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).
AFFIRMED
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