Ex Parte Kneisl

Patent Trial and Appeal Board

Apr 17, 2017

11308515 (P.T.A.B. Apr. 17, 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.
11/308,515 03/31/2006 Philip Kneisl 22.1597-US-NP 3514
35204 7590 04/19/2017
SCHLUMBERGER ROSHARON CAMPUS
10001 Richmond
IP - Center of Excellence
Houston, TX 77042
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
04/19/2017 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):
u sdocke ting @ sib .com
jalverson@slb.com
SMarckesoni@slb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP KNEISL
Appeal 2015-005758
Application 11/308,515
Technology Center 3600
Before MICHAEL L. HOELTER, SCOTT A. DANIELS, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner’s final rejection of claims 1—8. App. Br. 2. Claim 9 has been
cancelled and claim 10 has been withdrawn. App. Br. 2. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-005758
Application 11/308,515
THE CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to an explosive system for
seismic charges which is safe from detonation by radio frequency (RF)
signals and electrostatic discharge (ESD).” Spec. 11. Claims 1, 4, and 7 are
independent claims. Claim 1 is illustrative of the claims on appeal and is
reproduced below:
1. An explosive package for use in seismic exploration that
requires a first arming signal, a second arming signal, and a firing
signal to be detonated, comprising:
a seismic charge;
an addressable switch that receives the first arming signal and
the second arming signal, the addressable switch being responsive to
the first arming signal, the first arming signal being for use in
selecting the seismic charge for detonation, the second arming signal
being passed on to a fireset based on a response of the addressable
switch to the first arming signal;
the fireset being responsive to the second arming signal and
being operatively coupled to the addressable switch for receiving a
firing signal via the addressable switch and for producing an actuation
voltage at its output based on the firing signal; and
a Detonating Device which is operatively coupled to the output
of the fireset for detonating the seismic charge upon presentation of
the actuation voltage to the Detonating Device.
THE REJECTIONS ON APPEAL
Claims 1, 3, 4, 6, and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hendrix, Lerche, and Dieman, Jr.
REFERENCES RELIED ON BY THE EXAMINER
Hendrix
Dieman, Jr.
Vaynshteyn
Lerche
US 5,404,820
US 5,477,785
US 6,179,064 B1
US 7,007,756 B2
Apr. 11, 1995
Dec. 26, 1995
Jan. 30, 2001
Mar. 7, 2006
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Application 11/308,515
Claims 2, 5, and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hendrix, Lerche, Dieman, Jr., and Vaynshteyn.
ANALYSIS
The rejection of claims 1, 3, 4, 6, and 7
as unpatentable over Hendrix, Lerche, and Dieman, Jr.
Appellant argues claims 1, 3, 4, 6, and 7 together. App. Br. 4—9. We
select independent claim 1 for review, with claims 3, 4, 6, and 7 standing or
falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner primarily relies on the teachings of Hendrix for
disclosing the limitations of claim 1, including the disclosure of a switch that
passes a second arming signal on to a device.1 Final Act. 2—3. However, the
Examiner relies on the teachings of Lerche for disclosing an explosive
package using “an addressable switch” and on the teachings of Dieman Jr.
for disclosing an arming signal being “passed on to a fireset.” Final Act. 3.
The Examiner thereafter provides reasons for combining the teachings of
Hendrix with those of Lerche and Dieman, Jr. Final Act. 3.
Appellant challenges the Examiner’s “premise that Hendrix discloses
‘a switch’ as claimed.” App. Br. 5; see also App. Br. 7. Appellant’s
Specification does not expressly define a “switch,” but it states that the
recited “switch” is used “to isolate the firing circuit of the detonator from the
lead wire input until the detonator has been properly addressed and then
armed.” Spec. 1 8; see also Spec. 110 (stating that the switch is “for use in
1 To be specific, the Examiner identifies Hendrix’s “electronic safing and
microcontroller in figure 5” as correlating to the claimed “switch.” Final
Act. 2; see also Ans. 5.
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Application 11/308,515
selecting that seismic charge for detonation”). Such usage in Appellant’s
Specification is also consistent with its various dictionary definitions.2
Appellant further explains that a “switch” is a device “that manages and
selectively passes along multiple different incoming arming signals as a
prerequisite to firing.” App. Br. 6.
In accordance with such explanations (i.e., Appellant’s usage of the
term “switch” in the Specification, its dictionary definitions, and its
definition as stated in the Appeal Brief), Appellant fails to explain how
Hendrix’s “electronic safmg and microcontroller in figure 5” (Final Act. 2)
is not also embodied by their explanations and definitions. For example,
Appellant does not explain how Hendrix’s “switch” fails “to isolate the
firing circuit of the detonator from the lead wire input until the detonator has
been properly addressed and then armed.” Spec. 1 8. Likewise, Appellant
does not explain how Hendrix’s “switch” fails to “manage[]and selectively
2 Microsoft Computer Dictionary, Fifth Edition, copyright 2002, page 505,
defines “switch” as follow:
switch n. 1. A circuit element that has two states: on and off. 2.
A control device that allows the user to choose one of two or
more possible states. 3. In communications, a computer or
electromechanical device that controls routing and operation of
a signal path. 4. In networking, a device capable of forwarding
packets directly to the ports associated with particular network
addresses. See also bridge, multilayer, router. 5. In operating
systems such as MS-DOS, an argument used to control the
execution of a command or an application, typically starting
with a slash character (/).
https://www.merriam-webster.com/dictionary/switch defines this term
as: “a device for making, breaking, or changing the connections in an
electrical circuit.” See also
https ://en. oxforddictionaries. com/ definition/ switch.
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Application 11/308,515
pass[] along multiple different incoming arming signals as a prerequisite to
firing.” App. Br. 6.
Instead, Appellant references an earlier Decision by the Board in
which the Examiner was reversed. App. Br. 5 (referencing Decision on
Appeal No. 2010-006431 (Application No. 11/308,515), dated February 15,
2013). However, this reversal was based on other grounds; and that earlier
Decision did not address the issue before us now, i.e., whether or not
Hendrix’s “electronic safmg and microcontroller in figure 5” can be properly
correlated to the claimed “switch.” Hence, Appellant’s reliance on this
earlier Decision is unpersuasive.
Appellant further alleges that, in Hendrix, “there is no indication that
the microcontroller ‘receives’ signals from elsewhere or selectively ‘passes
on’ one of the signals to a fireset, etc. as claimed.” App. Br. 7; see also
Reply Br. 3. Appellant’s contentions are not persuasive because figure 5 of
Hendrix clearly illustrates Hendrix’s corresponding “switch” as receiving
signals ARM 1 and ARM 2. See Hendrix 5:34—36 (“arming the system may
require the presence of two independent arming command signals 40 and
41 ”); see also Ans. 6. Regarding Appellant’s contention concerning the
passing on of the signal to a fireset (see Reply Br. 3), even presuming for the
sake of argument that Hendrix does not disclose such teaching (but see, e.g.,
Hendrix 5:28-44), Appellant does not explain how the Examiner’s
additional reliance on Dieman, Jr. for this teaching is in error.3 Final Act. 3
(referencing both Hendrix and Dieman, Jr. for such teachings).
3 Appellant states, “this deficiency is not cured by any other reference on
record.” Reply Br. 3. Appellant does not provide any evidence to support
this allegation, and it is not otherwise self-evident from the record.
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Application 11/308,515
Appellant also appears to be alleging improper hindsight because
Appellant contends the Examiner relied on Appellant’s Specification in
rendering the rejection. App. Br. 8—9. Indeed, the Examiner has
acknowledged deficiencies in the teachings of Hendrix, but to fill these
deficiencies, the Examiner expressly relied on the teachings of Lerche and
Dieman, Jr., not Appellant’s Specification. See Final Act. 3.
Regarding Hendrix’s lack of a disclosure of an “addressable” switch,
as indicated supra, the Examiner relies on Lerche for this teaching. Final
Act. 3. Furthermore, Appellant’s Specification supports the Examiner’s
reliance on Lerche for such teaching by stating, “[addressable switch
technology has been commercially available in the mining and blasting
industry for several years.” Spec. 1 8; see also Ans. 6.
Appellant also raises new arguments in the Reply Brief that were not
raised earlier. See Reply Br. 4—6. For example, Appellant contends that
employing wires instead of fiber optics (as in Hendrix) “would
impermissibly require a fundamental change in [Hendrix’s] operating
principle” and as such, “would render Hendrix unsatisfactory for its intended
purpose.” Reply Br. 4. Appellant also refers to such contentions as “these
additional reasons.” Reply Br. 4. Appellant also, for the first time, presents
separate arguments regarding claims 4 and 7. See Reply Br. 4—6. In
Appellant’s Appeal Brief, Appellant simply submitted “that the obviousness
rejection of independent claims 1, 4 and 7 in light of Hendrix, Lerche and
Dieman is erroneous” without arguing claims 4 and 7 separately from claim
1. App. Br. 9; see also supra. We decline to address these new arguments
because “an issue not raised by an appellant in its opening brief... is
waived.” Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d 978,
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Application 11/308,515
989 (Fed. Cir. 2006); see also Ex Parte Borden, 93 USPQ2d 1473 (BPAI
2010) (informative) (“The failure to raise all issues and arguments diligently,
in a timely fashion, has consequences.”). Furthermore, as per 37 C.F.R.
§ 41.41(b)(2), absent a showing of good cause, the Board is not required to
address arguments in a Reply Brief that could have been presented in the
principal Brief. Appellant provides no indication that such arguments could
not have been raised earlier, or that raising them now is justified by a
showing of a good cause.
Accordingly, and based on the record submitted, we are not persuaded
the Examiner erred in rejecting claims 1, 3, 4, 6, and 7 as being obvious over
Hendrix, Lerche, and Dieman, Jr.
The rejection of claims 2, 5, and 8 as unpatentable over
Hendrix, Lerche, Dieman, Jr., and Vaynshteyn
When addressing this rejection based on the additional reference to
Vaynshteyn, Appellant does not indicate how the Examiner erred in relying
on this additional citation. Instead, Appellant states, “the fact remains that
Hendrix, relied upon for teaching a switch that it does not teach, remains at
issue.” App. Br. 9. In short, Appellant fails to explain how the Examiner’s
additional reliance on Vaynshteyn (in combination with Hendrix, Lerche,
and Dieman, Jr.) for disclosing the additional teachings of dependent claims
2, 5, and 8 is wrong or in error. Accordingly, we sustain the Examiner’s
rejection of claims 2, 5, and 8 as being obvious over Hendrix, Lerche,
Dieman, Jr., and Vaynshteyn.
DECISION
The Examiner’s rejections of claims 1—8 are affirmed.
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Application 11/308,515
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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