Ex Parte Kaminski et al

Patent Trial and Appeal Board

Nov 15, 2013

11540243 (P.T.A.B. Nov. 15, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte BENJAMIN MARTIN KAMINSKI and
DAVID J. BIBELHAUSEN1
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Appeal 2011-005296
Application 11/540,243
Technology Center 2100
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Before CAROLYN D. THOMAS, JASON V. MORGAN, and
LARRY J. HUME, 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 1-24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The Real Party in Interest is Rockwell Automation Technologies, Inc.
App. Br. 2.
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STATEMENT OF THE CASE2
The Invention
Appellants’ invention generally relates to systems for monitoring and
protection of mechanical systems and, more particularly, “to a technique for
rapidly analyzing and responding to changing dynamic operating conditions
of machine systems via a monitor that employs a multiple-core processor for
performing monitoring functions and computations for such monitoring
rapidly and in parallel.” Spec. ¶ [0001].
Exemplary Claims
Claims 1 is an exemplary claim representing an aspect of the
invention which we reproduce below (emphasis added):
1. A dynamic condition monitoring system
comprising:
a dynamic condition monitor configured to be coupled to
at least one sensor for detecting a dynamic condition of a
machine system and to receive signals from the sensor
representative of the dynamic condition; and
a multi-core processor operative in the monitor for
receiving data derived from the signals and for performing
dynamic condition analysis based upon the received signals.

2 Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed
Oct. 18, 2010); Reply Brief (“Reply Br.,” filed Feb. 2, 2011); Examiner’s
Answer (“Ans.,” mailed Dec. 3, 2010); Final Office Action (“FOA,” mailed
Apr. 13, 2010); and the original Specification (“Spec.,” filed Sep. 29, 2006).
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Prior Art
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Tubbs US 5,752,071 May 12, 1998
Song US 5,800,331 Sep. 1, 1998
Lightner US 6,732,031 B1 May 4, 2004
Rejections on Appeal
Claims 1-24 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Song and Tubbs. Ans. 3.
ISSUE
Appellants argue (App. Br. 7-8; Reply Br. 2-4) that the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Song and Tubbs is in error. These contentions present us
with the following issue:
Did the Examiner err in finding that the combination of Song and
Tubbs teaches or suggests the limitation of “a multi-core processor operative
in the monitor for receiving data derived from the signals and for performing
dynamic condition analysis based upon the received signals,” as recited in
claim 1?
ANALYSIS
We only consider those arguments actually made by Appellants in
reaching this Decision. Arguments which Appellants could have made but
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chose not to make in the Briefs have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
We disagree with Appellants’ conclusions with respect to claim 1, and
we 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 by the Examiner in the Examiner’s Answer in response to
Appellants’ Arguments. However, we highlight and address specific
findings and arguments regarding claim 1 for emphasis as follows.
Appellants contend each of independent claims 1, 9, and 23 recites, “a
multi-core processor operative in the monitor for receiving data derived
from the signals and for performing dynamic condition analysis based upon
the received signals.” App. Br. 7. Appellants further contend, “Tubbs
teaches two separate processors coupled to one another. Furthermore, there
is no teaching in Tubbs that either of the separate processors (100 and 190)
are multi-core processors (that is, e.g., a processor with multiple processing
cores), as recited in independent claims 1, 9, and 23.” Id. Thus, Appellants’
argument is that the claims on appeal require a processor that is a multi-core
processor, i.e., more than one processing core on a single die, and that the
Specification discloses examples of such processors. App. Br. 7 (citing
Spec. Fig. 4, elements 102, 104, and 106; p. 5:16-24, and p. 12:28-30).
In response to Appellants’ contentions, the Examiner finds “the term
‘multi-core processor’ does not exclude a system having two tightly-coupled
processors on separate dies.” Ans. 6. In addition, the Examiner finds
“Tubbs explicitly discloses an embodiment in which ‘the function
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coprocessor is in the same integrated circuit package as the processor.’” Id.
(citing Tubbs col. 8:52-54).
Appellants make additional arguments in the Reply Brief, i.e., “the
function coprocessor 100 of Tubbs is a coprocessor, distinct from a
microprocessor . . . .” Reply Br. 2. Further, “appellants respectfully submit
that multi -core processors for use in a system taught by Tubbs were not
even available at the time of filing of Tubbs (July 17, 1995) or at the time of
issue of Tubbs (May 12, 1998).”3 Reply Br. 3. Due to lack of timeliness in
presenting this new argument and lack of any evidence in support thereof,
we do not consider this argument in reaching our Decision.
We note Appellants’ Specification states, “[a]s illustrated in FIG. 4,
the monitor processing circuitry 82 includes a multi-core processor 102
having two processing cores 104, 106 on a single die. Such processors are
commercially available from various sources, including Texas Instruments
Inc. of Dallas Texas . . . .” Spec. ¶ [0038]. The Specification further
discloses, “[i]n a presently contemplated implementation, however, the cores
of the multi-core processor need not be identical.” Spec. ¶ [0041]. We find
that such a disclosure is merely an example of a processing circuitry
configuration, and does not necessarily limit the claimed multi-core
processor to a single die.

3 Appellants have not explained why, nor is it apparent that, this argument
was necessitated by a new point in the Answer or any other circumstance
constituting “good cause” for its belated presentation. See Ex parte Borden,
93 USPQ2d 1473, 1473-74 (BPAI 2010) (“informative”) (absent a showing
of good cause, the Board is not required to address argument in Reply Brief
that could have been presented in the principal Brief).
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We note Appellants have not presented any evidence on the record
before us that Tubbs’ coprocessor located in the same package as its
microprocessor cannot be reasonably construed as teaching the limitation in
dispute, i.e., “a multi-core processor operative in the monitor for receiving
data derived from the signals and for performing dynamic condition analysis
based upon the received signals.” We also note that, even if the argument in
the Reply Brief was timely submitted, which it was not, there is no evidence
on the record before us that multi-core processors were not available or
contemplated at the time of Tubbs’ filing, as asserted by Appellants, as cited
above.
Appellants’ assertions amount to unsupported attorney argument, and
therefore we give them little weight. See In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997); see also In re Huang, 100 F.3d 135, 139-140 (Fed. Cir.
1996). Accordingly, we do not find error in the Examiner’s reliance on the
combined teachings and suggestions of Song and Tubbs.
We agree with the Examiner’s finding cited above that the
combination of Song and Tubbs teaches or suggests Appellants’ limitation
of “a multi-core processor operative in the monitor for receiving data
derived from the signals and for performing dynamic condition analysis
based upon the received signals,” as recited in claim 1. We also agree with
the Examiner’s legal conclusion that it would have been obvious to combine
Song with Tubbs in the manner suggested to render Appellants’ claimed
invention unpatentable. Ans. 4.
Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s
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characterization of the cited art and related claim construction. Therefore,
we are constrained by the evidence of record to sustain the Examiner’s
obviousness rejection of independent claim 1, and independent claim 9,
which Appellants did not separately argue.
Appellants further contend the Examiner erred in rejecting
independent claim 23 over the combination of Song and Tubbs because
claim 23 additionally requires a “portable dynamic condition monitor,” and
neither Tubbs nor Song purportedly teaches or suggests such portability.
App. Br. 8.
In response, the Examiner finds that both Song and Tubbs “discuss
applications relating to ‘portability’ . . . [i.e.,] Song discusses detecting
imbalance in drive systems such as those used in automobiles, while the
system of Tubbs can be used in devices such as telephones, network devices,
and mobile devices.” Ans. 6-7 (internal citations omitted). We agree with
the Examiner’s findings and legal conclusion of obviousness of claim 23 in
this regard.
Appellants also contend the Examiner erred in rejecting independent
claims 11 and 17 over the combination of Song and Tubbs because these
claims further recite transmission of data to a remote device, and neither
Song nor Tubbs purportedly teaches or suggests such remote data
transmission. App. Br. 9.
In response, the Examiner finds Appellants’ recitation of “remote” is
extremely broad, and that
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both Song and Tubbs disclose numerous examples of
transmissions to remote devices . . . [e.g.,] Fig. 2 of Song shows
transmission of data from the signal processor and the host
processor to various remote devices, including the drive
control, the motor, and the environment control . . . [and] Fig. 3
of Tubbs shows a bus . . . used to transmit data to an external
data memory. All of these are examples of “remote devices”.
Ans. 7. We also note that Appellants’ Specification lacks a specialized
definition of what Appellants mean by use of the word “remote,” such that
we find the Examiner’s interpretation to be reasonable. We therefore agree
with the Examiner’s findings and legal conclusion of obviousness of claims
11 and 17 in this regard.
Further, while Appellants raised additional arguments for patentability
of dependent claims 2, 12, 18, and 24, rejected on the same basis as claims
1, 11, 17, and 23, respectively (App. Br. 10-12), we find that the Examiner
has rebutted each of those arguments in the Answer by a preponderance of
the evidence (Ans. 7-8). The Examiner’s rebuttal includes a response and
submission of evidence (i.e., Lightner) to Appellants’ allegation that the
Examiner improperly took Official Notice that receipt of data via a wireless
data communications protocol is well-known in the art. Ans. 8. Therefore,
we adopt the Examiner’s findings and underlying reasoning, which we
incorporate herein by reference. We therefore agree with the Examiner’s
findings and legal conclusion of obviousness of claims 2, 12, 18, and 24.
As Appellants have not provided separate, substantive arguments with
respect to dependent claims 3-8, 10, 13-16, and 19-22, we find that these
claims fall with their respective independent claims 1, 9, 11, and 17.
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CONCLUSION
Based on the record before us, the Examiner did not err with respect
to the unpatentability rejection of claims 1-24 under 35 U.S.C. § 103(a) over
the combination of Song and Tubbs, and we sustain the rejection.
DECISION
The decision of the Examiner to reject claims 1-24 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)(1)(iv) (2011).
AFFIRMED

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