Ex Parte Josserand et al

Patent Trial and Appeal Board

Mar 14, 2016

12521472 (P.T.A.B. Mar. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/521,472 11124/2009 Olivier Josserand
87059 7590 03/16/2016
Cantor Colburn LLP - Carrier
20 Church Street, 22nd Floor
Hartford, CT 06103
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.
PA-0002189-US 7961
EXAMINER
GAMI, TEJAL
ART UNIT PAPER NUMBER
2127
NOTIFICATION DATE DELIVERY MODE
03/16/2016 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLIVIER JOSSERAND, ERIC ROYET,
JEANPHILIPPE GOUX, and PATRICK RENAULT
Appeal2014-004333
Application 12/521,472 1
Technology Center 2100
Before LARRY J. HUME, JOHN P. PINKERTON, and
JAMES W. DEJMEK, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-16. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is Carrier Corp. App.
Br. 1.
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Application 12/521,472
STATEMENT OF THE CASE2
The Invention
Appellants' claimed "invention is related to air-conditioning systems,
and more particularly to an algorithm to optimize the free cooling mode
related to controllers and systems driving hydronic products such as water
terminals and. air handling units." Spec. i-f 1 ("Field of the Invention").
Exemplary Claims
Claims 1, 4, 6, and 8, reproduced below, are representative of the
subject matter on appeal (emphases and/or labeling added to contested
limitations):
1. A method to create energy savings in a local zone
water terminal of an air conditioning system of the type having
an air handling unit and a building management system
compnsmg:
[L 1] obtaining a signal from said building management
system to enable a free cooling mode of operation where
outside air is of a temperature to satisfy the air-conditioning
demand of a zone with no thermal pre-treatment of the outside
air by said air handling unit;
[L2] responsively opening a fresh air damper of said
local zone water terminal to a fully open position, said local
zone water terminal including a coil for conditioning supply air
to a local zone and a cooling fan for moving air over said coil;
and
2 Our decision relies upon Appellants' Appeal Brief ("Br.," filed
Feb. 27, 2012); Examiner's Answer ("Ans.," mailed July 18, 2013); Final
Office Action ("Final Act.," mailed Nov. 25, 2011); and the original
Specification ("Spec.," filed June 26, 2009). We note Appellants did not file
a Reply Brief in response to the factual findings and legal conclusions in the
Examiner's Answer.
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[L3] controlling opening of said fresh air damper and
[L4] a speed of said cooling fan in response to a zone
temperature setpoint during free cooling mode.
4. The method of claim 3 further comprising:
responsively operating a local zone proportional coolant
fluid flow control valve in a proportional-integral control loop
depending on said local temperature error.
and
6. The method of claim 5 further comprising:
obtaining a zone temperature;
obtaining a zone temperature setpoint;
obtaining an occupied mode zone temperature
control deadband;
determining an occupied mode lower deadband
temperature limit;
determining an occupied mode upper deadband
temperature limit;
determining an occupied mode deadband
hysteresis control point; and
determining an occupied mode upper satisfied
temperature limit.
8. The method of claim 7 further comprising:
determining that said zone temperature is being reduced;
changing from cooling demand mode to cooling satisfied
mode as the temperature reduces to said occupied mode
deadband hysteresis control point.
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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Bitterli et al. ("Bitterli") us 4,253,153 Feb.24, 1981
Dick us 5,337,574 Aug. 16, 1994
Carlson et al. ("Carlson") us 5,404,934 Apr. 11, 1995
Reese et al. ("Reese") us 5,976,010 Nov. 2, 1999
Sekhar et al. ("Sekhar") US 2005/0028970 Al Feb. 10,2005
Rejections on Appeal
RI. Claims 1-3 and 5 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Dick and Sekhar. Ans. 4.
R2. Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Dick, Sekhar, and Carlson. Ans. 9.
R3. Claims 6-9 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Dick, Sekhar, and Bitterli. Ans. 10.
R4. Claims 10-12 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Dick, Sekhar, and Reese. Ans. 14.
R5. Claims 13-16 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Dick, Sekhar, Reese, and Bitterli. Ans. 17.
CLAIM GROUPING
Based on Appellants' arguments (Br. 3-8), we decide the appeal of
obviousness Rejection RI of claims 1-3 and 5 on the basis of representative
claim 1; and we decide the appeal of obviousness Rejection R3 of claims 6,
7, and 9 on the basis of representative claim 6.
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We decide the appeal of separately argued obviousness Rejection R2
of claim 4, and we also decide the appeal of separately argued obviousness
Rejection R3 of claim 8, infra.
Remaining claims 10---16 in rejections R4 and R5, not argued
separately, stand or fall with independent claim 1 from which they
ultimately depend. 3
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 1-16,
and we incorporate herein and adopt as our own: ( 1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellants' arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments regarding claims 1, 4,
6, and 8 for emphases as follows.
3 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
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1. Rejection RI of Claims 1-3 and 5
Issue 1
Appellants argue (Br. 3-5) the Examiner's rejection of claim 1 under
35 U.S.C. § 103(a) as being obvious over the combination of Dick and
Sekhar is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method that includes steps [L 1] through [L4] as recited in
claim 1?
Analysis
Limitation [LI] -Free-Cooling Mode
Appellants contend "Dick makes no reference to a free cooling mode .
. . [ t ]his section of Dick actually describes a vapor compression mode of
cooling, where refrigerant is compressed by compressor 12, evaporated in
coil 16 and condensed in coil 15. This is the opposite of free cooling ... as
claimed." Br. 3.
As pointed out by the Examiner, "[f]ullfresh air or full re-circulating
air modes, or a combination of mixed and re-circulating air can be used."
Dick, Abstract (emphases added). Further, "[t]he invention relates to a
heating and cooling system for air, for example for maintaining a desired air
temperature in a building using fresh air or re-circulating room air or a
mixture thereof" Dick, col. 1, 11. 12-14 (emphasis added).
Therefore, based on the above-cited disclosure, we agree with the
Examiner's findings that Dick teaches or at least suggests contested
limitation [L 1].
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Br. 4.
Limitation fL2j-Local Zone Water Terminal
Appellants contend:
Dick describes a heat pump, which can be run in heating or
cooling modes ... it is not clear which mode the Office Action
is referring to in applying Dick, as both modes do not operate at
the same time. Regardless, neither mode represents use of a
local zone water terminal as claimed. Coil 15 and coil 16 are
not water terminals. Both these coils rely on the compression,
expansion and condensation of a refrigerant, not water.
In response, the Examiner finds "[l]ocal zone water terminals are
known in the art as water-side economizers (or water-side heat exchangers),"
and cites to Dick at column 29, lines 39--46 for support of this finding.
Ans. 24.4
We note Appellants have not cited to a definition of "local zone water
terminal" in the Specification that would preclude the Examiner's broader
reading. 5 Br. 2.
4 "One purpose of this accessory would be to heat or preheat hot water tank
makeup so that some relatively warm water could be generated when the
system is running, independently of the mode of operation, that is, when it is
operating in either heating or cooling. The amount of heat rejected by the
refrigerant could be controlled by controlling the flow of cooling medium,
that is water through the heat exchanger." Dick, col. 29, 11. 39--46
(emphasis added).
5 Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
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Therefore, based on the above-cited disclosure, we agree with the
Examiner's findings that Dick teaches or at least suggests contested
limitation [L2].
Br. 5.
Limitation [L3 J - Damper Control in Free Cooling Mode
Appellants contend:
While Dick does disclose controlling dampers 58 and 62, there
is disclosure of doing so in a free cooling mode. The section
cited in the Office Action (column 18, lines 17-39) is directed
to a heating mode (see column 17, line 67 to column 18, line 1)
where coil 16 acts as a condenser (column 18, line 58). As such,
the cited portion of Dick lacks "controlling opening of said
fresh air damper and a speed of said cooling fan in response to a
zone temperature setpoint during free cooling mode."
In response, and contrary to Appellants' contentions, the Examiner
finds (Ans. 25), Dick teaches or at least suggests contested limitation [L3].
See Dick, col. 13, 11. 12-19 CFull Fresh Air Mode-Cooling;;). We agree
with the Examiner's findings.
Therefore, based on the above-cited disclosure, we agree with the
Examiner's findings that Dick teaches or at least suggests contested
limitation [L3].
Limitation [L4]- Controlling Fan Speed in Free Cooling Mode
Appellants contend paragraph 36 of Sekhar, as cited by the Examiner
(Final Act. 4), lacks a teaching or suggestion of contested limitation [L4]
because the "broad recitation of controlling a fan and damper provides no
meaning; however, a patentee must clearly express that intent in the written
description.").
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support for disclosing a free cooling mode or the use of a local zone water
terminal as claimed. As such, Sekhar fails to cure the deficiencies of Dick
discussed above." App. Br. 5.
We note, "one cannot show non-obviousness by attacking references
individually where ... the rejections are based on combinations of
references." In re Keller, 642 F.2d413, 426(CCPA1981).
The U.S. Supreme Court has held the relevant inquiry is whether the
Examiner has set forth "some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness." In re Kahn,
441F.3d977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int'! Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007).
Further, we find the Examiner has established a prima facie case of
obviousness under § 103 by providing factual findings regarding the
teachings and suggestions of the cited prior art, including Sekhar. Final
Act. 4--5. In addition, the Examiner has provided articulated reasoning for
combining the references in the manner suggested, as required by KSR. Id.;
Ans. 7.
Moreover, Appellants have not demonstrated that the Examiner's
proffered combination of references would have been "uniquely challenging
or difficult for one of ordinary skill in the art." See Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418). Nor have Appellants provided objective evidence of secondary
considerations which our reviewing court guides "operates as a beneficial
check on hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and Powder
Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
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Therefore, based on the above-cited disclosure and considering our
binding precedent, supra, we agree with the Examiner's findings that Sekhar
teaches or at least suggests contested limitation [L4].
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitations of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claims 2, 3, and 5 which fall therewith. See Claim Grouping, supra.
2. Rejection R2 of Claim 4
Issue 2
Appellants argue (Br. 5---6) the Examiner's rejection of claim 4 under
35 U.S.C. § 103(a) as being obvious over the combination of Dick, Sekhar,
and Carlson is in error. These contentions present us with the following
issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 3, further including the step of
"responsively operating a local zone proportional coolant fluid flow control
valve in a proportional-integral control loop depending on said local
temperature error," as recited in claim 4?
Analysis
Appellants generally contend Carlson does not make up for the
purported deficiencies of Dick and Sekhar in connection with Rejection RI
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of claim 1. Br. 5. "Even if Dick, Sekhar and Carlson are combined, the
features of claim 4 do not result." Br. 6. Appellants more specifically argue
the portion of Dick relied upon by the Examiner in the rejection of claim 4
(Final Act. 6 (citing Dick, col. 23, 11. 54--62)) "cites a heating mode of Dick
as corresponding to the claimed free cooling mode in claim 4. As such, the
reliance on Dick is flawed and the rejection of claim 4 based on Dick,
Sekhar and Carlson should be reversed." Br. 6.
In response, the Examiner finds, and we agree, "Dick discloses
various modes," including a cooling mode. Ans. 26 (citing Dick, col. 18,
11. 25-39). We note Appellants do not contest the Examiner's reliance upon
the teachings and suggestions of Carlson (Br. 5---6), nor do Appellants rebut
the Examiner's findings and legal conclusions by filing a Reply Brief.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 4, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of dependent 4.
3. Rejection R3 of Claims 6, 7, and 9
Issue 3
Appellants argue (Br. 6) the Examiner's rejection of claim 6 under 35
U.S.C. § 103(a) as being obvious over the combination of Dick, Sekhar, and
Bitterli is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "an occupied mode," as recited in various limitations of claim 6?
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Analysis
Appellants generally contend "Bitterli is relied upon as disclosing
occupied mode operations, but fails to cure the deficiencies of Dick and
Sekhar discussed with reference to claim 1. As such, even if Dick, Sekhar
and Bitterli are combined, the features of claims 6-7 and 9 do not result."
Br. 6. Appellants further contend, "Sekhar does not disclose an occupied
mode of claim 6 as recited in the Office Action. Sekhar discloses that as
occupancy decreases, ventilation needs are diminished and fan speed is
modulated, but this does not correspond to an 'occupied mode' as recited."
Id.
In response, the Examiner finds, and we agree, "Sekhar teaches an
occupied mode (e.g., occupancy of the room)." Ans. 10 (citing Sekhar
i-f 36).6 In addition, the Examiner finds Sekhar provides additional examples
of a teaching of the recited "occupied mode," e.g., "occupied zones of a
building" in paragraph 13; "occupancy of the room diminishes" in paragraph
36, and "occupancy levels" in paragraph 40. Ans. 27. In further support of
the Examiner's finding that utilization of an "occupied mode" in connection
with air conditioning control is known in the art, the Examiner also points to
the Carlson reference, for example, at column 11, lines 16-20.7 We agree
6 "For instance, when the occupancy of the room 42 diminishes, the
ventilation requirement also diminishes. The fresh air fan speed is
modulated accordingly .... " Sekhar i-f 36. We find this disclosure teaches
or at least suggests using an occupancy status which, at least in part, is used
control the system.
7 "In the unoccupied mode, controller 123 applies additional hysteresis,
including additional heating and cooling offsets, to reduce system cycling
and conserve energy." Carlson, col. 11, 11. 16-19 (emphasis added).
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with the Examiner's findings concerning the teachings and suggestions of the
cited prior art.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined disclosures of
the cited prior art combination to teach or suggest the disputed limitation of
claim 6, nor do we find error in the Examiner's resulting legal conclusion of
obviousness. Therefore, we sustain the Examiner's obviousness rejection of
dependent 6, and grouped claims 7 and 9 which fall therewith. See Claim
Grouping, supra.
4. Rejection R3 of Claim 8
Issue 4
Appellants argue (Br. 7) the Examiner's rejection of claim 8 under 35
U.S.C. § 103(a) as being obvious over the combination of Dick, Sekhar, and
Bitterli is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 7, that further includes, inter alia, the step
of "changing from cooling demand mode to cooling satisfied mode as the
temperature reduces to said occupied mode deadband hysteresis control
point," as recited in claim 8?
Analysis
Appellants generally contend "Bitterli is relied upon as disclosing a
deadband hysteresis control point, but fails to cure the deficiencies of Dick
and Sekhar discussed with reference to claim 1. For at least this reason, the
rejection of claim 8 should be reversed." Br. 7. Appellants specifically
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contend "[i]t is not clear now a heating mode from Dick can be applied to
the claimed cooling mode ... [such that t]he reliance on Dick in the Office
Action is flawed." Id.
In response, the Examiner finds, and we agree, Dick discloses
changing from a "cooling demand mode to a cooling satisfied mode."
Ans. 27 (citing Dick, col. 25, 11. 4--15). The Examiner makes further
detailed findings regarding this teaching, which we adopt as our own and
incorporate herein by reference. Ans. 27-28.
Therefore, based upon the findings above, unrebutted by Appellants,
and on this record, we are not persuaded of error in the Examiner's reliance
on the combined teachings and suggestions of the cited prior art combination
to teach or suggest the disputed limitation of claim 8, nor do we find error in
the Examiner's resulting legal conclusion of obviousness. Therefore, we
sustain the Examiner's obviousness rejection of dependent 8.
5. Rejections R4 and R5 of Claims 10-16
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R4 and R5 of claims 10-16 under§ 103 (see
Br. 7-8), we sustain the Examiner's rejection of these claims. We deem
arguments not made waived.
CONCLUSION
The Examiner did not err with respect to obviousness Rejections RI
through R5 of claims 1-16 under 35 U.S.C. § 103(a) over the cited prior art
combinations of record, and we sustain the rejections.
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DECISION
We affirm the Examiner's decision rejecting claims 1-16.
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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