Ex Parte Hofer et al

Patent Trial and Appeal Board

Mar 18, 2016

12736675 (P.T.A.B. Mar. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121736,675 10/29/2010
134145 7590
Staas & Halsey LLP
1201 New York Ave., NW
Suite 700
Washington, DC 20005
03/22/2016
FIRST NAMED INVENTOR
Joachim Hofer
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.
2454.1186 2911
EXAMINER
GONZALES, VINCENT
ART UNIT PAPER NUMBER
2122
NOTIFICATION DATE DELIVERY MODE
03/22/2016 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):
ptomail@s-n-h.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOACHIM HOFER and LUTZ LEUTEL T
Appeal2014-003433
Application 12/736,675
Technology Center 2100
Before ERIC S. FRAHM, JOHN P. PINKERTON, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 17-35, which constitute all of the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 Appellants identify SIEMENS AKTIENGESELLSCHAFT as the real
party in interest. App. Br. 1.
Appeal2014-003433
Application 12/736,675
STATEMENT OF THE CASE
Introduction
Appellants' invention is generally directed to recognizing a state of a
noise-generating machine. Spec. i-f 2.2
Claim 17 is representative and reproduced below:
17. A method for recognizing a state of a noise-generating
object to be investigated that generates noise during operation,
where the noise is not purposely generated by the noise-
generating object, but results from the operation thereof,
compnsmg:
automatically adapting a statistical basic classification
model of acoustic features generated for at least one reference
object, based on acoustic features of a noise generated by the
noise-generating object, by using a processor to obtain an
individually adapted statistical classification model; and
classifying, by the processor, the state of the noise-
generating object based on the individually adapted statistical
classification model.
References
Casey US 2001/0044719 Al Nov. 22, 2001
Klein US 2009/0012783 Al Jan. 8,2009
2 Our Decision refers to the Final Office Action mailed Feb. 14, 2013 ("Final
Act."), Appellants' Appeal Brief filed June 18, 2013 ("App. Br."), the
Examiner's Answer mailed Oct. 10, 2013 ("Ans."), Appellants' Reply Brief
filed Dec. 11, 2013 "(Reply Br."), and the amended Specification filed Oct.
29, 2010 ("Spec.").
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Application 12/736,675
Rejection on Appeal
Claims 17-35 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Casey and Klein.
Issues
Appellants' arguments in the Briefs raise the following issues:
1. Does the combination of Casey and Klein teach or suggest
"recognizing a state of a noise-generating object to be
investigated that generates noise during operation, where the
noise is not purposely generated by the noise-generating object,
but results from the operation thereof," as recited in claim 17,
and as similarly recited in independent claims 33 and 35?
2. Does the combination of Casey and Klein teach or suggest
"adapting a statistical basic classification model of acoustic
features ... based on acoustic features of a noise generated by
the noise-generating object" (the "adapting limitation"), as
recited in claim 17, and as similarly recited in independent
claims 33 and 35?
3. Does the combination of Casey and Klein teach or suggest
wherein said adapting "occurs during commissioning of the
noise-generated object, either at regular maintenance intervals
or when there is a change in an acoustic environment of the
noise-generating object," as recited in claim 20?
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Application 12/736,675
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
arguments in the Appeal Brief and Reply Brief that the Examiner has erred.
We disagree with Appellants' arguments. Unless otherwise noted, we adopt
as our own the findings and reasons set forth by the Examiner in the Office
Action from which this appeal is taken (Final Act. 2-9) and in the
Examiner's Answer in response to Appellants' Appeal Brief (Ans. 9-12), and
we concur with the conclusions reached by the Examiner. For emphasis, we
consider and highlight Appellants' arguments relating to the issues noted
above.
Issue 1
In the Appeal Brief, Appellants argue it was asserted, in the Final
Office Action, that paragraphs 54 and 95 of Casey teach "recognizing a state
of a noise-generating object to be investigated that generates noise during
operation, where the noise is not purposely generated by the noise-
generating object, but results from the operation thereof." App. Br. 4. After
quoting paragraphs 54 and 95 of Casey, Appellants argue nothing in Casey
or Klein describes "adapting a statistical basic classification model of
acoustic features ... of a noise generated by the noise-generating object."
Id. at 4--5. Appellants also argue nothing in paragraph 135 of Casey
describes "adapting a statistical basic classification model of acoustic
features." Id. at 5. In the Reply Brief, Appellants argue nothing in
paragraph 40 of Klein or paragraph 55 of Casey, which was cited in the
Answer, teaches or is relevant to "recognizing a state of a noise-generating
object." Reply Br. 1-3.
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Application 12/736,675
We are not persuaded by Appellants' arguments. In the Final Office
Action, the Examiner finds, and we agree, paragraph 95 of Casey teaches or
suggests "recognizing a state of a noise-generating object to be investigated"
because it teaches sounds vary over time and "my model partitions the
acoustic signal generated by a particular source or sound class into a finite
number of states." Final Act. 2. The Examiner also finds, and we agree,
paragraph 13 5 of Casey teaches determining "an optimal number of states
for the given data." Id. at 3. In the Briefs, Appellants failed to address these
findings of the Examiner. Although Appellants referred to the Examiner's
citation of paragraphs 54 and 95 of Casey in the Appeal Brief in regard to
the limitation of "recognizing a state of a noise-generating object to be
investigated," Appellants argue that these paragraphs do not teach the
"adapting limitation" and "where the noise is not purposely generated by the
noise-generating object." App. Br. 4--5. Appellants also argue that
paragraph 13 5 of Casey does not teach the "adapting limitation" and "noise"
as described in the preamble. App. Br. 5. These arguments are not
persuasive because, instead of addressing the teachings of paragraphs 95 and
13 5 of Casey in regard to the limitation of "recognizing a state of a noise-
generating object," Appellants assert these paragraphs do not teach the
"adapting limitation" and the limitation "where the noise is not purposely
generated by the noise-generating object." Non-obviousness cannot be
established, however, by attacking references individually where the
rejection is based upon the teachings of a combination of references. In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller,
642 F.2d 413, 425(CCPA1981)). In addition, Appellants argument that
nothing in paragraph 40 of Klein or paragraph 55 of Casey teaches or is
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Application 12/736,675
relevant to "recognizing a state of a noise-generating object" is not
persuasive because the Examiner did not cite these paragraphs as teaching
the limitation of "recognizing a state of a noise-generating object." See
Reply Br. 1-3. Thus, because Appellants have not provided persuasive
evidence or argument to rebut the Examiner's findings regarding the
teachings of paragraphs 9 5 and 13 5 of Casey, we agree with the Examiner
that Casey teaches "recognizing a state of a noise-generating object."3
Regarding the limitations of a noise-generating object "that generates
noise during operation, where the noise is not purposely generated by the
noise-generating object, but results from the operation thereof," Appellants
argue in the Appeal Brief that these limitations are not taught by paragraphs
54 and 95 of Casey. App. Br. 5. In the Answer, the Examiner relies on
paragraph 55 of Casey as teaching these limitations. Ans. 10-11. In
particular, the Examiner finds the teaching in Casey that "a glass smashing
can be distinguished from a glass bouncing, or a clay pot smashing" teaches
"[ w ]herein the sound of glass smashing is not purposely generated by the
glass but results ... [from] the operation thereof." Id. at 11. In the Reply
Brief, Appellants quote paragraph 55 of Casey and argue it "is not related to
recognizing a state of a noise-generating object," but instead to recognizing
the object itself, as in paragraph 54. Reply Br. 2-3. This argument is not
3 In the Reply Brief, Appellants argue nothing has been cited or found in
Casey and Klein as teaching the state of a noise-generating object is being
"classified." See Reply Br. 3. This argument is, however, waived as it was
raised for the first time in the Reply Brief without a showing of good cause.
See 37 C.F.R. § 41.41(b)(2) (2012); see also Ex parte Borden, 93 USPQ2d
14 73, 14 7 4 (BP AI 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.").
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persuasive because it does not address the Examiner's finding that paragraph
55 of Casey teaches or suggests "where the noise is not purposely generated
by the noise-generating object, but results from the operation thereof."
Thus, for these reasons, we agree with the Examiner that Casey
teaches or suggests "recognizing a state of a noise-generating object to be
investigated that generates noise during operation, where the noise is not
purposely generated by the noise-generating object, but results from the
operation thereof," as recited in claim 17, and as similarly recited in
independent claims 3 3 and 3 5.
Issue 2
Appellants contend nothing in paragraphs 54 and 95 of Casey, and
nothing found elsewhere in Casey or Klein, teaches or suggests "adapting a
statistical basic classification model of acoustic features ... based on
acoustic features of a noise generated by the noise-generating object," as
recited in claim 17, and as similarly recited in independent claims 33 and
35.4 App. Br. 4--5. The Examiner cites paragraph 40 of Klein as teaching
the adapting limitation. Final Act. 3 ("Klein shows a classifier that adapts
according to the acoustic conditions in the environment"); Ans. 10. In the
Reply Brief, Appellants quote paragraph 40 of Klein and argue it was
relevantly cited in the final Office Action with respect to the operation of
"adapting a statistical basic classification model," but the Answer fails to
explain how this paragraph teaches or suggests "recognizing a state of a
4 To the extent Appellants' argument may be based on the alleged failure of
Casey and Klein to teach the limitations "where the noise is not purposely
generated by the noise-generating object, but results from the operation
thereof," see the discussion supra regarding these limitations with respect to
issue 1.
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noise-generating object." Reply Br. 1-2. This argument is not persuasive
because the Examiner relies on paragraph 40 of Klein as teaching the
adapting limitation, rather than the limitation of "recognizing a state of a
noise-generating object." As previously stated, non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck, 800 F.2d at
1097. Appellants have not provided persuasive evidence or argument to
rebut the Examiner's finding that paragraph 40 of Klein teaches the adapting
limitation. Thus, we agree with the Examiner's finding that Klein teaches or
suggests "adapting a statistical basic classification model of acoustic features
... based on acoustic features of a noise generated by the noise-generating
object."
Issue 3
Appellants contend claim 20 distinguishes over the combined
teachings of Casey and Klein by reciting said adopting "occurs during
commissioning of the noise-generated object, either at regular maintenance
intervals or when there is a change in an acoustic environment of the noise-
generating object." App. Br. 6. The Examiner finds, and we agree,
paragraph 35 of Klein teaches "[t]he adaptive classifier 308 is adaptive
because features (e.g., speech, noise, and distractors) change and are
dependent on acoustic conditions in the environment." Ans. 11-12. In the
Reply Brief, Appellants argue a person of ordinary skill in the art would not
find paragraph 35 of Klein suggests adapting the statistical model "during
commissioning of the noise-generating object," as recited in claim 20, but
rather this paragraph only suggests there may be a change in the acoustic
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environment of the noise-generating object, which needs to be taken into
account at some unspecified point in time. Reply Br. 3--4.
We are not persuaded by Appellants' arguments. Regarding the
interpretation of claim 20, it is unclear whether the "either-or" clause at the
end modifies "commissioning." The Specification states the adaptation of
the basic classification model can take place during commissioning of the
object to be investigated or, in an alternative embodiment, "at regular
maintenance intervals, for example once a day," or in a further embodiment,
"when there is a change in the acoustic environment of the object to be
investigated." Spec. i-f 28. Thus, the Specification is consistent with the
"either-or" clause not modifying "commissioning" and, therefore, we
conclude the broadest reasonable interpretation of claim 20 is that adapting
of the model occurs during commissioning, or at regular maintenance
intervals, or when there is a change in an acoustic environment. We also
agree with the Examiner's finding that paragraph 35 of Klein teaches or
suggests adaptation of the basic classification model when there is a change
in an acoustic environment, as recited in claim 20, because it teaches the
adaptive classifier is adaptive and "dependent on acoustic conditions in the
environment." See Klein i-f 3 5.
CONCLUSION
We do not find error ( 1) in the Examiner's findings that the
combination of Casey and Klein teaches or suggests the limitations in
dispute in claims 17 and 20, or (2) in the Examiner's conclusion that the
combination of Casey and Klein renders claims 1 7 and 20 obvious.
Accordingly, we sustain the Examiner's rejection of claims 17 and 20, as
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Application 12/736,675
well as claims 18, 19, and 21-35, which are not argued separately. See App.
Br. 6.
DECISION
We affirm the Examiner's decision rejecting claims 17-35 under 35
U.S.C. § 103(a).
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
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