Ex Parte Hammill et al

Patent Trial and Appeal Board

Oct 30, 2017

14028988 (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.
14/028,988 09/17/2013 Donald R. Hammill 111078-030600US 5304
102197 7590 11/01/2017
Chamberlain, Hrdicka, White, Williams
& Aughtry, P.C.
1200 Smith Street, 14th Floor
Houston, TX 77002
EXAMINER
SMALL, NAOMI J
ART UNIT PAPER NUMBER
2682
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):
Patents @ chamberlainlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD R. HAMMILL, THOMAS MADDEN,
THOMAS NEILS ON, and DANIEL BRENT BAXTER
Appeal 2017-005947
Application 14/028,988
Technology Center 2600
Before BRADLEY W. BAUMEISTER, HUNG H. BUI, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—20, which are all the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part and, pursuant to our authority under 37 C.F.R.
§ 41.50(b), enter a new ground of rejection for claim 1.
1 Appellants identify Cameron Int’l Corp. as the real party in interest. App.
Br. 3.
Appeal 2017-005947
Application 14/028,988
STATEMENT OF THE CASE
Appellants’ invention is directed to
collecting and retrieving characterization data of measurement
devices, such as flow meters. The system includes a meter, a
radio frequency identification (RFID) tag for storing the meter
characterization data, and electronics, such as a totalizer, to read
the characterization data from the RFID tag and calibrate the
meter measurements using the characterization data.
Abstract.
Claims 1 and 11 are illustrative of Appellants’ claimed invention:
I. A measurement system comprising:
a meter characterizable by characterization data;
a radio frequency identification (RFID) tag to store the
meter characterization data;
meter electronics in communication with the meter and
comprising a communication interface in wireless
communication with the RFID tag; and
wherein the meter characterization data is readable by the
meter electronics and useable by the meter electronics in
processing meter measurements.
II. A method of measuring comprising:
calibrating a meter and obtaining characterization data
from the meter;
digitally storing the characterization data for the meter in
a radio frequency identification (RFID) tag;
attaching the RFID tag to the meter;
receiving measurements from the meter and the
characterization data for the meter from the RFID tag; and
processing the received measurements from the meter
and calibrating the measurements using the characterization
data.
App. Br. 20-21 (Claims App’x).
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Application 14/028,988
Rejections
Claims 1— 3 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Blankenship (US 6,267,291 Bl; July 31, 2001) and Priyadarshana
(US 2014/0238148 Al; Aug. 28, 2014). Final Act. 3^1.
Claims 4—10 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combination of Blankenship, Priyadarshana, and various additional
references. Final Act. 4—8.
Claims 11, 13, 15, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hays (US 2007/0193334 Al; Aug. 23, 2007), Liu
(US 2007/0029388 Al; Feb. 8, 2007), and Blankenship. Final Act. 8-10.
Claims 12, 14, 16—18, and 20 stand rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Hays, Liu, Blankenship, and various
additional references. Final Act. 10—13.
ANALYSIS
Claim 1
In rejecting claim 1, the Examiner finds Blankenship teaches “a radio
frequency identification (RFID) tag to store the meter characterization data,”
as recited. Final Act. 3 (citing 11:57—58, 12:15—23, 13:12—20 (discussing
RFID tags 138, as shown in Figs. 19—20)). Appellants argue “the RFID tags
138 in Blankenship do not store and include any information related to the
claimed meter characterization data, which is data unique to the flow
meter, such as calibration data, that is used by the meter electronics to
interpret and process the measurements from the meter.” App. Br. 10—11.
The Examiner responds that Blankenship teaches storing gas flow rate in the
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Application 14/028,988
RFID tag 138, which constitutes characterization data for flow meter 190.
Ans. 2 (citing Blankenship 13:4—11).
We agree with Appellants that the Examiner errs. The Examiner
relies on the following passages of Blankenship for teaching storing gas flow
rate in the RFID tag that constitutes “meter characterization data” states:
The memory component in RFID tag 138 on tank 188 includes
data regarding the amount of gas initially in the tank, and a flow
meter 190 is operable during the welding process to output a
signal 65 through line 192 to system controller 186 which is
indicative of the gas flow rate and thus the quantity of gas used.
Blankenship 12:61—66.
System controller 186 includes a reader 198 for RFID tag 138
on gas tank 188, and a reader 200 for RFID tag 138 on wire
barrel 184. In response to the inputs to system controller 186
through lines 192 and 196, readers 198 and 200 respectively
write back to RFID tag 138 on tank 188 and RFID tag 138 on
barrel 184 to change the corresponding memory for the latter to
reflect the usage and provide the current quantity of gas and
wire in the respective container.
Blankenship 13:4—11.
These passages only support the proposition that the RFID tag 138
stores information about the gas in a tank or wire in a barrel, not data that
characterizes a meter. We note Blankenship teaches storing “further
information” in the RFID tag for a wire barrel, which information is for use
in a program to control a welding apparatus and which includes information
for controlling process parameters related to the particular welding wire in
the barrel, such as a gas flow rate. Blankenship 12:17—23; see also id. at
13:12—20. The described “further information,” however, is unrelated to and
does not characterize any particular meter or type of meter.
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Application 14/028,988
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 1. Because the Examiner relies on the same finding
related to Blankenship discussed above in the rejections of dependent
claims 2—10, we likewise do not sustain those claims’ rejections.
Claim 11
Appellants argue the Examiner errs in the rejection of claim 11
because
Hays, Liu, and Blankenship, whether considered separately or
in combination, do not teach or suggest attaching to a meter an
RFID tag having stored meter characterization data and
receiving measurements from the meter and the characterization
data for the meter from the RFID tag for processing and
calibrating the measurements from the meter, as the claims
recite.
App. Br. 15.
Specifically, Appellants contend “Hays discusses having the meter
calibration values stored in the meter electronics, such as before the flow
meter is shipped from the factory or by a user in the field, but not storing
calibration values in any location other than the meter electronics, such as in
an RFID tag.” Id. (citing Hays 34).
This argument is unpersuasive because the Examiner relies on Liu,
not Hays, for storing meter characterization data using RFID technology.
Final Act. 9 (finding Liu 1 6 teaches “receiving . . . characterization data for
the meter from the RFID tag,” as recited).
Appellants further contend “Liu only discloses storing data for a
sensor in RFID components, and if anything, specifically teaches away
from the use of RFID technology[,] arguing that the technology is not cost
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Application 14/028,988
effective.” App. Br. 15 (citing Liu 6); see also Reply Br. 10 (citing
Liu 131).
This argument also is unpersuasive. A teaching away requires a
reference to actually criticize, discredit, or otherwise discourage the claimed
solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Simply
because a product is described as “inferior” in some respects does not by
itself constitute a teaching away from using the product. In re Gurley,
27 F.3d 551, 553 (Fed. Cir. 1994). A teaching that a result would be inferior
or less desirable is not a teaching away unless the use “would render the
result inoperable.” In re ICON Health and Fitness, Inc., 496 F.3d 1374,
1381 (Fed. Cir. 2007). Although Liu criticizes the cost-effectiveness of
using RFID tags, it specifically teaches their use for storing calibration data,
e.g., for flow sensors (see Tffl 3, 6), and Liu does not criticize or otherwise
discredit the invention of claim 11.
The relevant inquiry is whether the claimed subject matter would have
been obvious to those of ordinary skill in the art in light of the combined
teachings of the prior art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
“[W]hen a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007) (quoting Sakraida v. Ag
Pro, Inc., 425 U.S. 273, 282 (1976)). The operative question is “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id.
The Examiner finds, and we agree, Hays teaches a tag that includes
meter calibration data attached to a flow meter, and Liu teaches using RFID
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Application 14/028,988
technology to store such meter calibration data. Final Act. 8 (citing Hays
134, Liu 1 6). Appellants provide no persuasive argument or evidence that
the Examiner errs in finding the combination of Hays and Liu teaches or at
least suggests the recited requirements for “digitally storing the
characterization data for the meter in a radio frequency identification (RFID)
tag,” “attaching the RFID tag to the meter,” and “receiving ... the
characterization data for the meter from the RFID tag,” as recited. Further in
support of the Examiner’s finding that Blankenship teaches the requirement
for “receiving measurements from the meter” (Final Act. 9 (citing
Blankenship 13:8—11; see also Blankenship 12:63—66)), we note Hays’s
disclosure of a flow meter monitoring system also teaches this requirement
(see, e.g., Hays Fig.l, 128).2
In view of the foregoing, we disagree with Appellants’ contention that
“Hays and Liu, thus, are both completely silent with respect to attaching to
a meter an RFID tag having stored meter characterization data and
receiving measurements from the meter and the characterization data for
the meter from the RFID tag for processing and calibrating the
measurements from the meter.” App. Br. 15. Accordingly, we sustain the
Examiner’s § 103 rejection of claim 11, and also the rejections of its
dependent claims 12—20, for which Appellant provides no substantive
argument separate from claim 11.
2 We note that, in view of the plain language of claim 11 and Appellants’
Specification, the requirement to receive “measurements from the meter,” as
recited, does not require these measurements to come from the RFID tag.
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New Ground of Rejection for Claim 1
Pursuant to our authority under 37 C.F.R. § 41.50(b), as a new ground
of rejection, we conclude, as discussed below, that the combination of Hays
and Liu renders claim 1 obvious under 35 U.S.C. § 103(a).3
Hays teaches “A measurement system comprising: a meter
characterizable by characterization data,” as recited. See Hays Fig. 1, || 28,
34. Hays’s flow meter monitoring system 100 and flow meter 150 combined
are a measurement system, and flow meter 150 is characterized by its meter
calibration values.
Liu in view of Hays teaches “a radio frequency identification (RFID)
tag to store the meter characterization data,” as recited. Liu discloses that
“RFID provides another technique for calibration and data storage” (1 6) for
sensors such as a “flow sensor” (| 3). Although Liu does not specifically
disclose a “tag” for RFID data storage of calibration data, in view of Hays’s
disclosure of “a tag attached to the flow meter” that is “stamped, embossed,
or printed with the factory-measured meter calibration values” (Hays 34),
it would have been obvious to an ordinarily skilled artisan to combine the
teachings of Liu and Hays to arrive at the recited RFID tag.
Although Liu claims RFID technology’s cost of five to ten cents per
sensor is too high for “extremely low cost sensor designs” (Liu | 6), the
artisan still would have been motivated to combine Liu’s RFID storage of
sensor calibration data into the tags of Hays, at least for sensors that are not
“extremely low cost.” The rationale would have been to take advantage of
the known efficiency advantages provided from having the calibration data
3 We leave it to the Examiner to evaluate dependent claims 2—10, consistent
with our decision.
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Application 14/028,988
available in non-volatile, digital storage at a relatively low cost for sensors
that may require re-programming in the field “in the event of power loss,
memory loss, re-configuration, etc.” (Hays 34).
Hays in view of Liu teaches “meter electronics in communication with
the meter and comprising a communication interface in wireless
communication with the RFID tag; and wherein the meter characterization
data is readable by the meter electronics and useable by the meter electronics
in processing meter measurements,” as recited. See Hays Fig. 1, H 5, 15,
28, 33—36. Hays’s flow meter monitoring system 100 communicates
through interface 101 with flow meter 150 over network 170, which may be
a wireless link, to obtain the meter calibration values for use in flow
measurement (see 133). Although Hays does not disclose reading meter
calibration values from an RFID tag, Liu in view of Hays, as discussed
above, teaches or suggests including meter calibration data in an RFID tag.
The ordinarily skilled artisan would have understood Hays’s teaching of
using a wireless link for reading flow meter data to teach reading calibration
data from such an RFID tag.
Thus, claim 1 would have been obvious to an ordinarily skilled artisan
in view of the combination of Hays and Liu. Accordingly, pursuant to our
authority under 37 C.F.R. § 41.50(b), we enter a new ground of rejection of
claim 1 as unpatentable under 35 U.S.C. § 103(a) over Hays and Liu.
DECISION
For the above reasons, we—
(a) reverse the Examiner’s rejection of claims 1—10 under § 103(a);
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(b) affirm the Examiner’s rejection of claims 11—20 under § 103(a);
and
(c) enter a new ground of rejection of claim 1 under § 103(a).
Rule 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.” This rule also
provides:
When the Board enters such a non-final decision, the
appellant, within two months from the date of the decision,
must exercise one of the following two options with respect to
the new ground of rejection to avoid termination of the appeal
as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence
relating to the claims so rejected, or both, and have the
matter reconsidered by the examiner, in which event the
prosecution will be remanded to the examiner. The new
ground of rejection is binding upon the examiner unless
an amendment or new Evidence not previously of Record
is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the
decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board upon
the same Record. The request for rehearing must address
any new ground of rejection and state with particularity
the points believed to have been misapprehended or
overlooked in entering the new ground of rejection and
also state all other grounds upon which rehearing is
sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure (MPEP) § 1214.01.
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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)(l)(iv).
AFFIRMED-IN-PART
37 C.F.R. $ 41.50(b)
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