Ex Parte Sawodny et al

Patent Trial and Appeal Board

Aug 9, 2016

12456753 (P.T.A.B. Aug. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/456,753 0612212009
28249 7590 08/10/2016
DILWORTH & BARRESE, LLP
Dilworth & Barrese, LLP
1000 WOODBURY ROAD
SUITE405
WOODBURY, NY 11797
FIRST NAMED INVENTOR
Oliver Sawodny
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.
298-199 CON 4171
EXAMINER
BUTLER, MICHAELE
ART UNIT PAPER NUMBER
3653
MAILDATE DELIVERY MODE
08/10/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLIVER SA WODNY, JORG KUMPEL,
CRISTINA TARIN-SAUER, HARALD ASCHEMANN,
EBERHARD P. HOFER, and KLAUSS SCHNEIDER
Appeal2014-007787
Application 12/456,753
Technology Center 3600
Before EDWARD A. BROWN, ARTHUR M. PESLAK, and
SEAN P. O'HANLON, Administrative Patent Judges.
O'HANLON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Oliver Sawodny et at. (Appellants 1) appeal under 35 U.S.C. § 134
from the Examiner's May 8, 2013 final decision rejecting claims 14--43. 2
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
1 According to Appellants, the real party in interest is Liebherr-Werk
Nenzing GmbH. Br. 3.
2 Claims 1-13 are canceled. Id. at 13.
Appeal2014-007787
Application 12/456,753
SUMMARY OF DECISION
We AFFIRM.
SUMMARY OF INVENTION
Appellants' invention is directed to "a crane or excavator for
traversing a load hanging from a support cable that has a computer-
controlled regulation system to damp the swinging of the load." Spec. 1. 3
Claim 14, reproduced below from pages 13-14 (Claims Appendix) of the
Appeal Brief, is the sole independent claim and is illustrative of the claimed
subject matter:
14. A crane for transversing a load hanging on a load cable,
the crane comprising:
a gyroscope positioned along the load cable effective to
follow movement of the load cable to detect an angle of the
load cable and to generate a gyroscopic signal in response;
a rotating mechanism for rotating the crane,
a luffing mechanism for elevating and lowering a jib,
a lifting mechanism for raising and lowering the load
hanging on the load cable, and
a computer-based control system for damping the
oscillations of the load, the control system including
a path planning module,
a centripetal force compensating device
at least one axis controller for the rotating mechanism,
an axis controller for the luffing mechanism, and
an axis controller for the lifting mechanism,
wherein the control system is effective calculate the
angle of oscillation and the speed of oscillation of the load
based on the gyroscopic signal and to control the path planning
3 As used herein, "Specification" and "Spec." refer to the Substitute
Specification filed on September 25, 2009.
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Application 12/456,753
module, the centripetal force compensating device, and the axis
controllers in response.
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Ray us 4,113,112 Sept. 12, 1978
Kanki us 5,816,098 Oct. 6, 1998
Durrant-Whyte us 6, 126,023 Oct. 3, 2000
Robinett US 6,496,765 Bl Dec. 17, 2002
Sawodny US 7,627,393 B2 Dec. 1, 2009
REJECTIONS
Claims 14--16, 18-23, and 27-30 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over F'-obinett and Durrant-\,Th)rte.
Claims 17, 24--26, and 31--42 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Robinett, Durrant-Whyte, and Ray.
Claim 43 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Robinett, Durrant-Whyte, and Kanki.
Claims 14--39 are rejected under the judicially created doctrine of
double patenting over claims 1-30 of Sawodny.
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Application 12/456,753
ANALYSIS
Obviousness Rejections Based on Robinett and Durrant-Whyte
As Appellants have not presented arguments for the patentability of
claims 15, 16, 18-23, and 27-30 apart from independent claim 14 (see Br.
7-11), we select claim 14 as representative, treating claims 15, 16, 18-23,
and 27-30 as standing or falling with representative claim 14. See 37 C.F.R.
§ 41.37(c)(l)(iv).
Regarding claim 14, the Examiner finds that Robinett discloses the
invention substantially as claimed, including, inter alia, a gyroscope
effective to determine an angle of the load cable and to generate a
gyroscopic signal in response. Final Act. 2-3. The Examiner relies on the
teachings of Durrant-Whyte regarding placement of the gyroscope, and
concludes that it would have been obvious to a skilled artisan "to place a
gyroscope along the load cable to follow movement of the load cable as a
gyroscope can measure angle relative the earth and is not disoriented by
boom orientation and acceleration as taught by [Durrant-Whyte]." Id. at 3.
Appellants first argue that "[Durrant-Whyte] fails to disclose that the
gyroscope is positioned along the load cable." Br. 9. Rather, Appellants
continue, the Durrant-Whyte gyroscope is "attached to the head block 15,"
which does not satisfy the limitations of claim 14 because "[a] gyroscope
attached to a head block is not and cannot be equated with a gyroscope
positioned along a load cable." Id. at 10.
The Examiner answers by providing a dictionary definition of "along"
to mean "[i]n a line parallel with the length or direction of," and asserts that
"[a]long does not require being on or intersecting with the cable." Ans. 4.
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The Examiner also points out that Appellants only disclose placement of
their gyroscope on the load hook, "which is along the load cable just as
[Durrant-Whyte] does." Id.
We first construe the recited phrase "along the load cable." We give
claim terms their broadest reasonable interpretation consistent with the
Specification as it would be interpreted by one of ordinary skill in the art.
See In re Suitco Swface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010); In re
Morris, 127 F.3d 1048, 1054--55 (Fed. Cir. 1997).
Appellants do not explain what is meant by "along the load cable" or
otherwise propose a construction of this phrase. In this regard, Appellants
do not direct us to, nor does our review reveal, any instance of "along the
load cable" in the Specification. Rather, the Specification consistently
discloses placement of the gyroscope "on the load hook." See Spec. 18, 37,
61. Indeed, Appellants concede that placement "along the load cable," as
claimed, is exemplified by placement on the load hook. See Br. (Summary
of the Claimed Subject Matter) 5 (citing Spec. 18). We note that Appellants'
load hook is positioned at the distal end of the load cable, connected thereto
by load traversing gear 9. See Spec. 9, 7 6, Fig. 1. Furthermore, the
Examiner notes that one dictionary defines "along" as "in a line parallel with
the length or direction of' (see Ans. 4 ), which is consistent with the
placement of the gyroscope on the load hook as disclosed in the
Specification.
Based on the foregoing, we conclude that "a gyroscope positioned
along the load cable" includes placement of the gyroscope at the distal end
of the load cable, including indirect coupling through intermediate
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Application 12/456,753
components, such as a load hook. Appellants have not indicated that they
have disclaimed this construction. Moreover, any construction of "along the
load cable" excluding placement on the load hook would appear to constitute
unsupported and impermissible new matter, and thus, would be improper.
Appellants argue that Durrant-Whyte's gyroscope, placed on its head
block 15, "will measure movement of the sheave and pulley arrangement 30,
the reeving arrangement 18, the sheave and pulley arrangement 40 and the
head block 15." Br. 10. While that may be true, Appellants have not
persuasively set forth why Durrant-Whyte's gyroscope would not also be
able to measure angular movement of its load cable (i.e., reeving cables 221,
222, 224, 225). Moreover, the Examiner proposes to modify the positioning
of Robinett's gyroscope based on the teaching of Durrant-Whyte, but does
not propose to add Durrant-Whyte's sheave, pulley arrangements, or reeving
to Robinett's crane. See Final Act. 3. Appellants' arguments, therefore, are
unpersuasive.
As Appellants concede that gyroscope placement "along the load
cable" encompasses placement on the load hook (see Br. (Summary of the
Claimed Subject Matter) 5; Spec. 18), we interpret Appellants' argument
that "[a] gyroscope attached to a head block is not and cannot be equated
with a gyroscope positioned along a load cable" (Br. 10) effectively as an
attempt to differentiate Appellants' load hook from Durrant-Whyte's head
block. Appellants, however, do not provide any rationale for this assertion,
nor do we discern any pertinent difference between the two structures.
Appellants' conclusory argument fails to apprise us of error in the
Examiner's rationale. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
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Application 12/456,753
1997) (holding that attorney arguments or conclusory statements are
insufficient to rebut a prima facie case of obviousness).
Appellants also assert that "[a]ccording to the teaching of [Durrant-
Whyte ], a complete inertial unit including three gyroscopes and a 3-axial
accelerometer must be applied," and argue that "[t]he claims of the present
application recite that only one gyroscope is required for detecting an angle
of the load cable and to generate a gyroscopic signal, without the need for
any accelerometer." Br. 10-11.
We find these arguments to be unpersuasive. As noted by the
Examiner, the "sensor system of [Durrant-Whyte] provides measurements in
six degrees of freedom." Ans. 6; see also Durrant-Whyte 13:46-67.
According to Durrant-Whyte, "[t]he sensors include three gyroscopes and a
3-axial accelerometer ... for measuring the angular velocity and linear
accelerations of the head block 15 in three orthogonal directions x, y and z."
Id. at 13:52-56. A fair reading of this disclosure indicates that each of the
three gyroscopes makes measurements with respect to a separate one of the
three orthogonal directions, and that the accelerometer measures linear
accelerations. Thus, each of the gyroscopes detects an angle of the load
cable, and, as noted by the Examiner, each of the gyroscopes satisfies the
requirements of claim 14. See Ans. 7; see also KCJ Corp. v. Kinetic
Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000) (citations omitted) ("an
indefinite article 'a' or 'an' in patent parlance carries the meaning of 'one or
more' in open-ended claims containing the transitional phrase
'comprising"'). Appellants' arguments regarding the accelerometer are
unpersuasive because a fair reading of Durrant-Whyte indicates that the
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accelerometer is used to provide additional information (i.e., linear
accelerations) than is required by the claim, and, thus, is not used to detect
an angle of the load cable. Additionally, claim 14 uses the open-ended
transitional phrase "comprising" and, therefore, does not preclude the
presence of additional components.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of independent claim 14 as being unpatentable over Robinett and
Durrant-Whyte. We similarly sustain the rejection of claims 15, 16, 18-23,
and 27-30, which fall with claim 14. See 37 C.F.R. § 41.37(c)(l)(iv).
Obviousness Rejections Based on Robinett, Durrant-Whyte, and Ray
Appellants have not addressed the obviousness rejection of claims 17,
24--26, and 31--42 over Robinett, Durrant-Whyte, and Ray. See Br. 7-11.
Accordingly, Appellants have waived any argument of error, and we
summarily sustain the rejection of these claims. See llyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance
without consideration of the substantive merits is appropriate where an
appellant fails to contest a ground of rejection).
Obviousness Rejections Based on Robinett, Durrant-Whyte, and Kanki
Appellants have not addressed the obviousness rejection of claim 43
over Robinett, Durrant-Whyte, and Kanki. See Br. 7-11. Accordingly,
Appellants have waived any argument of error, and we summarily sustain
the rejection of this claim. See Hyatt, 551 F.3d at 1314.
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Double Patenting Rejection
Appellants do not contest the Examiner's rejection of claims 14--39 on
the ground of nonstatutory obviousness-type double patenting as
unpatentable over claims 1-30 of Sawodny. Br. 11. Accordingly,
Appellants have waived any argument of error, and we summarily sustain
the rejection of these claims. See Hyatt, 551 F.3d at 1314.
DECISION
The Examiner's decision to reject the claims 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)(l )(iv).
AFFIRMED
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