Ex Parte Mathews

Patent Trial and Appeal Board

Sep 27, 2017

11799068 (P.T.A.B. Sep. 27, 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.
11/799,068 04/30/2007 Thomas J. Mathews 5264-000019 7222
27572 7590 09/29/2017
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
EXAMINER
ATTEY, JOEL M
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
09/29/2017 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):
troymailroom @hdp. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS J. MATHEWS
Appeal 2016-004760
Application 11/799,068
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
2, 3, 5, 6, 11, 12, 14, 15, and 21—25. Claims 1, 4, 7—10, 13, and 16—20 have
been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-004760
Application 11/799,068
CLAIMED SUBJECT MATTER
The claims are directed to an air handler unit fan installation and
control method. Sole independent claim 21, reproduced below, is
representative of the claimed subject matter:
21. A method for installing a variable-frequency
drive in an HVAC system having an air-handler fan
previously operable only at a full speed, an HVAC
controller, a cooling unit with a plurality of cooling
stages, including a first cooling stage and a second
cooling stage, and a heating unit with a plurality of
heating stages, including a first heating stage and a
second heating stage, wherein the HVAC controller
operates the air-handler fan at the full speed when
there is a call for the first cooling stage, a call for the
second cooling stage, a call for the first heating stage,
and a call for the second heating stage, the method
comprising:
installing the variable-frequency drive in the
HVAC system to drive the air-handler fan at a plurality
of speeds, the variable-frequency drive having a
variable-frequency drive controller;
configuring the variable-frequency drive controller
to communicate with the HVAC controller and to
receive the calls for the cooling and heating stages
generated by the HVAC controller for controlling the
plurality of heating stages and the plurality of cooling
stages;
programming the variable-frequency drive
controller with a control strategy that includes a first
speed for operating the air-handler fan when the call
for the first cooling stage is received, a second speed
for operating the air-handler fan when the call for the
second cooling stage is received, a third speed for
operating the air-handler fan when the call for the first
heating stage is received, and a fourth speed for
operating the air-handler fan when the call for the
second heating stage is received, the first speed being
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Application 11/799,068
less than the second speed, the third speed being less
than the fourth speed, and the second speed and the
fourth speed being less that the full speed of the air-
handler fan;
operating at least one of the plurality of cooling
stages and at least one of the plurality of heating stages
of the HVAC system and monitoring at least one of a
temperature, a pressure, and an air flow of the HVAC
system during the operating;
adjusting the control strategy by programming the
variable-frequency drive controller with a
modification to at least one of the first speed, the
second speed, the third speed, and the fourth speed,
based on the monitoring.
REFERENCES
Parker
Powell
Bahel
Ares
Helt
Whitehead
Stanimirovic
US 4,931,948
US 5,255,529
US 5,303,561
US 6,021,644
US 6,282,910 B1
US 2004/0249597 A1
US 2005/0006488 A1
June 5, 1990
Oct. 26, 1993
Apr. 19, 1994
Feb. 8, 2000
Sept. 4, 2001
Dec. 9, 2004
Jan. 13, 2005
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Application 11/799,068
REJECTIONS
Claims 5, 6, 14, 15, 21—23, and 25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Helt, Whitehead, and Stanimirovic. Final
Act. 2.
Claim 24 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Helt, Whitehead, Stanimirovic, and Powell. Id. at 11.
Claims 2 and 3 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Helt, Whitehead, Stanimirovic, Powell, and Ares. Id.
at 12.
Claim 25 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Helt, Whitehead, and Stanimirovic, and Bahel. Id. at 13.
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Helt, Whitehead, Stanimirovic, Bahel, and Parker. Id.
at 14.
ANALYSIS
Claims 5, 6, 14, 15, 21—23, and 25—
Unpatentable over Helt, Whitehead, and Stanimirovic
Appellant argues claims 5, 6, 14, 15, 21—23, and 25 as a group. App.
Br. 10—21. We select sole independent claim 21 as representative of the
group, and decide the appeal of the rejection on the basis of claim 21 alone.
37 C.F.R. §41.37(c)(l)(iv).
The Examiner relies on Helt to teach the method of claim 21, except
for the limitations requiring: (1) the variable frequency drive to include a
variable frequency drive controller configured to receive calls for the heating
and cooling stages; (2) the second and fourth speeds to be less than the full
speed of the air handler; and (3) adjusting the control strategy by modifying
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at least one of the first, second, third or fourth speeds. Final Act. 2—6. For
the first of these limitations, the Examiner relies on Whitehead. Id. at 5.
The Examiner finds that element 48 of Figure 1 of Whitehead corresponds to
the claimed variable frequency drive controller configured to receive calls
for heating and cooling stages from element 24, which corresponds to the
claimed HVAC controller. Id. (citing Whitehead 148, Fig. 1). According to
the Examiner, it would have been obvious to have modified Helt with
Whitehead such that Whitehead’s variable frequency drive controller is
programmed with Helt’s various control strategies “to have modular design
while being able to control the overall building.” Id. (citing Whitehead
47-48). The Examiner also determines that separating the HVAC and
variable frequency controllers amounts to the obvious separation of an
integral structure into separate elements. Id.
For the limitation requiring the second and fourth speeds to be less
than the full speed of the air handler, the Examiner asserts that the
general concept of the second speed and the fourth speed being
less than the full speed of the air-handler fan falls within the
realm of common knowledge as optimization of a result effective
variable since the operating method of Helt and the operating
method of applicant’s invention would provide the same function
of providing cooling to an enclosure, and one having ordinary
skill in the art would have been motivated to include the use of
the second speed and the fourth speed being less than the full
speed of the air-handler fan in order to conserve energy, thus
reducing utility costs.
Id. at 5—6.
For the limitation requiring adjusting the control strategy, the
Examiner relies on Stanimirovic. Id. at 6. The Examiner finds that
Stanimirovic teaches “adjusting the control strategy ... by
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Application 11/799,068
changing/modifying the settings of the variable speed drive.” Final Act. 6
(citing Stanimirovic 1483). The Examiner concludes that it would have
been obvious “to modify the programming [of Helt and Whitehead] with the
changes of Stanimirovic ... to achieve the best means of temperature
control with the equipment.” Id. (citing Stanimirovic 1270).
Appellant raises several arguments in support of its position that the
Examiner erred in rejecting claim 21. First, in response to the Examiner’s
proposed combination of Helt and Whitehead, Appellant argues that (1)
“Helt is silent with respect to a variable-frequency drive controller
configured to receive calls for heating and cooling stages from an HVAC
controller” (App. Br. 13); and (2) Whitehead is silent “as to any specific
communication between the building controller 24 and the variable
frequency drive or any particular control strategy for the variable frequency
drive” (App. Br. 14). However, the Examiner correctly characterizes these
arguments as “attacking references individually where the rejections are
based on the combinations of references.” Ans. 17 (citing In re Keller, 642
F.2d 413 (CCPA 1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir.
1986)). The Examiner relies on Whitehead, not Helt, to teach a variable
frequency drive controller separate from, and receiving instructions from, an
HVAC controller; the Examiner relies on Helt, not Whitehead, to teach a
control strategy using multiple blower speeds. See Ans. 3—5, 16—18, 22—23;
see also Final Act. 2—5. As such, the Examiner relies on the combination of
Helt and Whitehead to teach the installing and configuring steps of claim 21.
Thus, these arguments are unpersuasive.
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Appellant next argues that the Examiner fails to support with
documentary evidence the assertion that “[t]he general concept of the second
speed and the fourth speed being less than the full speed of the air-handler
fan falls within the realm of common knowledge as optimization of a result
effective variable.” App. Br. 15—16 (quoting Final Act. 5). Appellant
characterizes the Examiner’s position as taking “[o]fficial notice
unsupported by documentary evidence,” which, under MPEP § 2144.03(A),
can only be done for findings of fact that “are capable of instant and
unquestionable demonstration as being well-known.” App. Br. 15—16
(quoting MPEP § 2144.03(A)); see also id. at 20. Further, Appellant denies
that the claimed control strategy is “capable of instant and unquestionable
demonstration as being well-known.” App. Br. 16; see also id. at 20. In
Response, the Examiner states that the rejection “is based on optimization
result-effective variables and not official notice as Appellant asserts.” Ans.
21 (internal quotation marks omitted). As such, according to the Examiner,
MPEP § 2144.05, not § 2144.03(A), applies. Id. In the Reply Brief,
Appellant continues to allege that the Examiner “is stating what is alleged to
fall within the realm of common knowledge,” which “falls squarely within
the ambit of [MPEP] § 2144.03(A).” Reply Br. 7 (internal quotation marks
omitted).
Although the Examiner’s use of the term “the realm of common
knowledge” in the Final Action does result in some uncertainty in the
Examiner’s position, the Examiner makes clear in the Answer that the
Examiner finds that the limitation setting the second and fourth speeds to be
less than the air handler’s full speed is an obvious matter of “optimizing a
result-effective variables,” and that the Examiner is not taking official notice
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of any fact. Ans. 21. Thus, we agree with the Examiner that MPEP
§ 2144.03(A) does not apply. Further, because Appellant failed to respond
to the Examiner’s result-effective-variable finding, Appellant has waived
any argument concerning that finding. See 37 C.F.R. § 41.37(c)(l)(iv). In
any event, we agree with the Examiner that setting the second and fourth
speeds to be less than the air-handler’s full speed would have been an
obvious matter of optimizing a result-effective variable. Specifically, it was
known in the art that under certain circumstances a single-speed blower
operating at its relatively high design speed wastes energy by moving more
air than is necessary or desired, and that energy can be conserved by
operating the blower at reduced speeds. See, e.g., Helt 2:37—67.
Accordingly, Appellant’s arguments are not persuasive that the Examiner
erred in concluding that this limitation would have been obvious.
Regarding the Examiner’s proposed combination of Stanimirovic with
Helt and Whitehead, Appellant contends that Stanimirovic “is silent as to
adjusting a control strategy by programming a variable-frequency drive
controller with a modification to at least one of the first speed, the second
speed, the third speed, and the fourth speed, based on monitoring, as recited
in claim 21.” App. Br. 15. Again, Appellant argues against a reference
individually when the rejection is based on a combination of references, and
Appellant’s argument is, therefore, unpersuasive. See Ans. 18—20, 23—24.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 21 as unpatentable over
Helt, Whitehead, and Stanimirovic. Accordingly, we sustain the Examiner’s
rejection of claim 21 as unpatentable over Helt, Whitehead, and
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Stanimirovic. We further sustain the Examiner’s rejection of claims 5, 6, 14,
15, 22, 23, and 25, which fall with claim 21.
The Remaining Rejections
In responding to separately rejected claims 2, 3, 11, 12, 24, and 25,
Appellant relies on the arguments presented for claim 21. App. Br. 21—22.
Accordingly, for the reasons discussed above, we sustain the Examiner’s
rejections of claims 2, 3, 11, 12, 24, and 25.
DECISION
For the above reasons, we AFFIRM the Examiner’s decision to reject
claims 2, 3, 5, 6, 11, 12, 14, 15, and 21—25.
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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