Ex Parte Gu et al

Patent Trial and Appeal Board

Dec 9, 2015

12589735 (P.T.A.B. Dec. 9, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/589,735 10/28/2009
92556 7590
HONEYWELL/HUSCH
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
12/11/2015
FIRST NAMED INVENTOR
Ji Gu
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.
H0022260
8364/110461/2980
CONFIRMATION NO.
3100
EXAMINER
GOOD JOHNSON, MOTILEWA
ART UNIT PAPER NUMBER
2616
NOTIFICATION DATE DELIVERY MODE
12/11/2015 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):
patentservices-us@honeywell.com
amy.hammer@huschblackwell.com
pto-chi@huschblackwell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte JI GU, YUSI LIU, and THOMAS A. PLOCHER1
Appeal2013-011022
Application 12/589,735
Technology Center 2600
Before BRUCE R. WINSOR, NABEEL U. KHAN, and AMBER L. HAGY,
Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify Honeywell International, Inc., as the real party in
interest. (App. Br. 2.)
Appeal2013-011022
Application 12/589,735
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-5, 7, 8, 10-12, and 15-19. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Introduction
According to Appellants, the invention pertains to "[a] method of
displaying smoke propagation in a region [that] minimizes distractions due
to building structural elements so that a user can focus on the smoke flow.
An associated apparatus includes a plurality of smoke detectors and a
display device which respond to smoke in the building." (Abs.)
Exemplary Claim
Claim 1, reproduced below with key limitations italicized, is
exemplary of the claimed subject matter:
1. A method comprising:
sensing a smoke condition m a predetermined, multi-
floor region;
establishing the presence of a developing fire condition;
dynamically responding to sensed smoke conditions in
the region to present, on at least one selected display unit, a
multi-floor representation of the sensed smoke condition by at
least one of,
i. providing display altering slide bars to alternate
and balance visual focus of smoke and building elements
relative to one another,
ii. automatically determining an initial point of smoke
detection, automatically forming clipping planes centered
around the initial point of smoke detection, and adaptively
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Application 12/589,735
clipping the clipping planes to eliminate unnecessary, occluding
building elements,
111. adaptive switching of building elements between
two dimensional and three dimensional representations,
including generating a display of some building elements in a
two dimensional format in the absence of smoke in the
associated area, and, responsive to smoke propagation into the
area, automatically converting the building elements from two
dimensional representations into three dimensional
representations, or,
iv. providing an exploded view with perspective
alteration and an indicator of direction of smoke propagation,
including enlarging a distance of vertical smoke propagation,
wherein, when smoke propagates between floors of the region,
providing at least one indicator of propagation of smoke
between the floors of the region.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Satoh
Boyd
Li
US 6,701,281 B2 Mar. 2, 2004
US 7,518,611 B2 Apr. 14, 2009
US 2008/0248450 Al Oct. 9, 2008
Glenn P. Forney and Kevin B. McGrattan, Users Guide for
Smokeview Version 4: A Tool for Visualizing Fire Dynamics Simulation
Data, NSIT, Spec. Pub. 1017, 1-84 (2004) (hereinafter "Forney").
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Application 12/589,735
REJECTIONS
Claims 1-5, 7, 8, 10-12, 15, 18, and 19 stand rejected under 35 U.S.C
§ 103(a) as being unpatentable over Forney, Boyd, and Li. (Final Act. 2-
11.)
Claims 16 and 17 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Forney, Li, Boyd, and Satoh. (Final Act. 11-12.)2
ISSUE
The dispositive issue presented on appeal is:
Did the Examiner err in finding the combination of Forney, Boyd and
Li teaches or suggests "providing display altering slide bars to alternate and
balance visual focus of smoke and building elements relative to one
another," as recited in claim 1 ?3
2 Appellants have not addressed the Examiner's rejection of claims 16 and
17. (See App. Br. 2 (identifying only claims 1-5, 7, 8, 10-12, and 15, 18,
and 19 as appealed).) Accordingly, we summarily sustain the Examiner's 35
U.S.C. § 103(a) rejection of claims 16 and 17. See Manual of Patent
Examining Procedure (MPEP) § 1205.02, 8th ed., Rev. 8, July 2010 ("If a
ground of rejection stated by the examiner is not addressed in the appellants'
brief, that ground of rejection will be summarily sustained by the Board.").
3 Appellants collectively argue the rejection of all argued claims with regard
to the Examiner's obviousness rejections of claim 1 under 35 U.S.C.
§ 103(a). (App. Br. 13-14.) Separate patentability is not argued for claims
2-5, 7, 8, 10-12, 15, 18 or 19. Therefore, based on Appellants' arguments,
we decide the appeal of claims 1-5, 7, 8, 10-12, 15, 18, and 19 based on
claim 1 alone. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 12/589,735
ANALYSIS
We have reviewed the Examiner's rejection of claims 1-5, 7, 8, 10-
12, 15, 18, and 19 in light of Appellants' arguments the Examiner has erred. 4
In particular, Appellants argue the Examiner's rejection of claim 1 by
challenging the Examiner's findings regarding "the four optional claim
elements of claim 1." (App. Br. 8 (emphasis added).) As an initial matter,
we conclude that, because these four elements are presented in the
alternative, as Appellants acknowledge, claim 1 is satisfied if any one of
these optional elements is satisfied. 5 Therefore, the rejection of claim 1 may
be sustained based on a finding that any one of these limitations is taught or
suggested by the prior art.
As further discussed herein, we sustain the Examiner's rejection on
the basis of the Examiner's findings and conclusions regarding the first of
the "optional claim elements" recited in claim 1, namely: "providing display
altering slide bars to alternate and balance visual focus of smoke and
building elements relative to one another." As to that limitation, we disagree
with Appellants' conclusions and we adopt as our own: ( 1) the findings and
reasons set forth by the Examiner regarding that limitation in the action from
which this appeal is taken (Final Act. 2-5, 13); and (2) the reasons set forth
by the Examiner regarding that limitation in the Examiner's Answer in
4 Only those arguments actually made by Appellants have been considered
in this decision. Arguments Appellants did not make in the briefs have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2012).
5 Although the Examiner did not articulate this conclusion on the record,
claim construction is an issue of law that we review de nova. Cordis Corp.
v. Boston Scientific Corp., 561F.3d1319, 1331 (Fed. Cir. 2009).
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Application 12/589,735
response to Appellants' Appeal Brief (Ans. 4--7, 14--15, 17.) We concur
with the conclusions therein reached by the Examiner. We highlight the
following for emphasis.
The Examiner correctly finds Forney teaches providing a display that
allows a user to "alternate and balance visual focus of smoke and building
elements relative to one another." (Final Act. 2-3, citing Forney, 4, 12, 29-
30; Ans. 4--5.) In particular, Forney teaches modifying display of
"blockages" (i.e. building components) to have a transparency "ranging from
0.0 for completely transparent to 1.0 for completely opaque." (Forney, 4.)
Forney further explains "[t]his allows one to see through a solid enclosure
by defining 'windows' to be partially transparent." (Id.) Forney similarly
teaches modifying transparency values for display of smoke. (Forney, 12.)
Fomey's teachings in this regard are very similar to the disclosure in
Appellants' Specification, which states:
The user manually alternates the visual strength of smoke and
building elements separately or consistently. When users want
to check the information of smoke, they can turn up the visual
strength of smoke and turn down the visual strength of building
elements. When users want to locate smoke in certain area of
the building model, they can tum up the visual strength of
building elements.
(Spec. i128 (emphases added).)
The Examiner concedes Forney does not teach making these display
modifications using "display altering slide bars," but cites Boyd as teaching
"providing slide bars to reduce particle size in creating a smoke effect."
(Final Act. 4, citing Boyd Figs. 99, 101-119, col. 80 11. 33-50; Ans. 7.) In
connection with dependent claims 2 and 3, the Examiner explicitly finds
Boyd teaches using a slide bar "to balance visualization strength of smoke
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and building elements." (Final Act. 5; Ans. 7-8.) We agree the Examiner's
findings are supported by the teachings of the cited references. We further
agree the Examiner has provided an articulated reason for combining Forney
and Boyd that includes a rational underpinning. In particular, the Examiner
concludes it would have been obvious to combine the teachings of Forney
and Boyd "to alternate and balance visual focus of smoke and building
elements taught by Forney, [using] the slide bars taught by Boyd to allow a
user to adjust the balance easier by providing an alternate graphical user
interface." (Final Act. 5; Ans. 7.)
Appellants, however, argue the Examiner's findings are in error
because "Boyd et al. is merely directed to a library used for creating special
effects for computer animations." (App. Br. 9.) Appellants further contend
"Forney et al. merely discloses methods used by Smokeview for displaying
smoke." (Id.) Appellants then state, in conclusory fashion, that nowhere
within Forney, Li or Boyd, or the combination of references, is there "any
disclosure" of the disputed limitation. (Id.)
Appellants' arguments do not persuade us of Examiner error. With
regard to Appellants' challenges to the Examiner's findings regarding the
individual references, Appellants' arguments miss the mark for two reasons.
First, Appellants' attacks on each reference are factually inapposite because
they point out features of the references that do not rebut or contradict the
Examiner's findings as they pertain to Appellants' claimed invention.
Second, Appellants' piecemeal approach is inherently unpersuasive. One
cannot show nonobviousness by attacking references individually when the
rejection is based on a combination of references. In re Keller, 642 F .2d
413, 425 (CCPA 1981). Each reference cited by the Examiner must be read,
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not in isolation, but for what it fairly teaches in combination with the prior
art as a whole. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
Appellants do not address the Examiner's findings regarding the
combined teachings of the cited references other than to merely restate the
disputed element of the claim and simply argue that element is missing from
the combined references. (App. Br. 9; Reply Br. 2.) In so doing, Appellants
fail to present any persuasive arguments why the Examiner's explicit fact
findings are in error. See Ex parte Belinne, No. 2009-004693, 2009 WL
2477843 (BPAI 2009) (informative); 37 C.F.R. § 41.37(c)(l)(iv) ("A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim."); see also In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board
reasonably interpreted Rule 41.3 7 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.").
Appellants' arguments regarding the alleged lack of a "prima facie"
basis for obviousness are also unpersuasive. (App. Br. 11-14.) Appellants'
conclusory arguments-which are premised primarily on an alleged lack of
express teaching in the references themselves-are contrary to the Supreme
Court's holding in KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007),
and indeed rely almost entirely on outdated caselaw. We are unpersuaded in
particular by Appellants' contention "none of the cited references ...
recognize the problem solved by the claimed invention." (App. Br. 13
(emphasis added).) As the Court explained in KSR, the problem purportedly
addressed by a claimed invention need not be expressly recognized in the
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prior art. Rather, "[u]nder the correct analysis, any need or problem known
in the field of endeavor at the time of invention and addressed by the patent
can provide a reason for combining the elements in the manner claimed."
KSR, 550 U.S. at 420.
Moreover, Appellants' argument is not commensurate with their
claims. According to Appellants, the alleged "problem solved by the
claimed invention" is "recognizing the need for various alternative methods
of quickly enhancing and viewing smoke propagation." (App. Br. 13
(emphasis added).) This statement supposes that the claims require selecting
from a plurality of available alternative methods. To the contrary, as noted
at the outset of this Decision, and as Appellants have otherwise
acknowledged, the claims recite four optional limitations. As we have
concluded, only one of these options must be satisfied. Thus, even leaving
aside the legal flaws in Appellants' argument, Appellants' statement of the
"problem" finds no anchor in their claims.
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding the combination of Forney, Li, and Boyd teaches or
suggests the first three limitations of claim 1 (which have not been
challenged on appeal) and also teaches or suggests at least the first
"optional" limitation recited in claim 1. We, therefore, sustain the
Examiner's 35 U.S.C. § 103(a) rejection of claim 1 over Forney, Li, and
Boyd, and further sustain the rejection of claims 2-5, 7, 8, 10-12, 15, 18,
and 19, which Appellants do not argue separately. (App. Br. 13-14.)
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DECISION
For the above reasons, the Examiner's rejections of claims 1-5, 7, 8,
10-12, and 15-19 are 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)(l )(iv).
AFFIRMED
kis
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