Ex Parte Sunderland et al

Patent Trial and Appeal Board

Mar 20, 2017

13023264 (P.T.A.B. Mar. 20, 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.
13/023,264 02/08/2011 Ted Wayne Sunderland 047177-9286-02 8337
23409 7590 03/22/2017
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN AVENUE
Suite 3300
MILWAUKEE, WI 53202
EXAMINER
FURDGE, LARRY L
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
03/22/2017 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TED WAYNE SUNDERLAND, CRAIG STEVEN REICHERT,
and DENNIS L. DICKERSON
Appeal 2015-005559
Application 13/023,264
Technology Center 3700
Before MURRIEL E. CRAWFORD, BRADLEY B. BAYAT, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
BAYAT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ted Wayne Sunderland et al. (Appellants)1 appeal under
35 U.S.C. § 134(a) from the decision rejecting claims 1—6 under 35 U.S.C.
§ 103(a) as unpatentable over Vogh,2 Levine,3 and Bunch.4 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify “Hussmann Corporation” as the real party in interest.
Appeal Br. 2 (filed Nov. 3, 2014).
2 Vogh, III, US 2005/0268627 Al, pub. Dec. 8, 2005.
3 Levine et al., US 4,759,498, iss. July 26, 1988.
4 Bunch et al., US 7,240,501 B2, iss. July 10, 2007.
Appeal 2015-005559
Application 13/023,264
CLAIMED SUBJECT MATTER
Appellants’ “invention relates to a control system for a refrigerated
merchandiser that heats a glass door of the merchandiser to eliminate
condensation on the glass door.” Spec. 12. Claim 1, the sole independent
claim on appeal, is representative of the claimed subject matter.
1. A method of operating a refrigerated merchandiser including a
case defining a product display area, and at least one door
providing access to the product display area, the method
comprising:
sensing a parameter of an ambient environment adjacent
the case;
delivering a signal indicative of the sensed parameter to a
controller;
determining a duty cycle using the controller based on
the signal indicative of the sensed parameter;
detecting a change in the sensed parameter using the
controller;
interrupting the duty cycle by initiating a clearing
interval using the controller in response to the controller
receiving the signal indicative of the change in the sensed
parameter; and
clearing condensation from the door during the clearing
interval.
Appeal Br. 11, Claims App.
ANALYSIS
We are not persuaded by Appellants’ arguments that the Examiner
erred in asserting that the combination of references renders claims 1—6
obvious. Upon consideration of Appellants’ assertions (Appeal Br. 5—10),
we agree with the Examiner’s findings, rationale, and response to arguments,
set forth on pages 2—11 of the Answer (“Ans.,” mailed Mar. 3, 2015), as
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Application 13/023,264
fully responsive to Appellants’ assertions. Accordingly, we adopt them as
our own. We add the following for emphasis only.
In the Reply Brief, Appellants contend that the Examiner’s proposed
combination
to somehow arrive at Appellants’ claimed invention - is based
on faulty premises: 1) modifying Vogh in view of Levine
would change the principle of operation of Vogh, 2) modifying
Vogh in view of Bunch (with or without Levine) would change
the principle of operation of Vogh, and 3) Bunch does not teach
or suggest a system that interrupts the duty cycle by initiating a
clearing interval using the controller in response to the
controller receiving the signal indicative of a change in a sensed
ambient parameter.
Reply Br. 3 (filed May 4, 2015).
We are not persuaded by Appellants’ contentions supra that
combining the references, as the Examiner proposes, would change the
principle of operation of Vogh. See Reply Br. 3—5. What Appellants
overlook is that references need not be capable of physical combination in
order to show obviousness. In re Etter, 756 E.2d 852, 859 (Led. Cir.
1985) (in banc); see also, In re Nievelt, 482 E.2d 965, 968 (CCPA
1976) (“Combining the teachings of references does not involve an ability to
combine their specific structures”); In re Andersen, 391 L.2d 953, 958
(CCPA 1968)(“There is a distinction between trying to physically combine
the two separate apparatus disclosed in two prior art references on the one
hand, and on the other hand trying to learn enough from the disclosures of
the two references to render obvious the claims in suit. . . . Claims may be
obvious in view of a combination of references, even if the features of one
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Application 13/023,264
reference cannot be substituted physically into the structure of the other
reference.”).
Here, the Examiner has not proposed to substitute or physically
combine prior art structures in rejecting the method of claim 1. See Final
Act. 3^4. In fact, all the elements recited in claim 1 are disclosed by the
cited prior art references. And, the Supreme Court in KSR made clear that a
claimed combination of known prior art elements is obvious if the
improvement is no more than the predictable use of those prior art elements
according to their established functions. KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 417 (2007). We are not persuaded otherwise, that such familiar
elements would not have been obvious to combine by an artisan possessing
ordinary skill using known methods in a manner that would have yielded
predictable results.
Furthermore, Appellants assert that “Bunch does not teach or suggest
a system that interrupts the duty cycle by initiating a clearing interval using
the controller in response to the controller receiving the signal indicative of a
change in a sensed ambient parameter.” Reply Br. 5. In particular,
Appellants argue that Bunch
discloses a preset system that prevents condensation on
refrigerator doors and that only “overrides” the preset times
when condensation continues to be detected beyond the preset
times. Bunch at col. 4:35—42 (stating that “the sensor
measurements can override the preset times ... in the event the
pre-set cycle time is insufficient to prevent condensation ...
and cause the heater to run until no more condensation is
detected.”). Emphasis added. In other words, the “override” is
not responsive to a change in a sensed parameter (let alone a
sensed ambient parameter); instead, the “override” is only
responsive to a continuation of the same sensed parameter (i.e.
condensation). This distinction is significant. Appellants’
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Application 13/023,264
claimed invention encompasses interruption of a duty cycle to
clear condensation from a door when the sensed parameter has
changed, whereas Bunch only considers an override when
condensation still remains on the surface beyond the preset
time.
Id. at 6.
We are not persuaded of error by Appellants’ arguments because
“[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). According to the Examiner,
Levine was used to teach a duty cycle (DN) using a controller
(at least microprocessor 110; Fig. 1) based on a signal
indicative of a sensed parameter (TA “ambient temperature;
Col. 13, lines 10-35; where temperature is measured and used
to determine a duty cycle factor DN which corresponds to a
specific duty cycle as depicted in Fig. 5) for the advantage of
allowing the temperature modifying apparatus to maintain
ambient temperature at a desired level (Col. 13, lines 43—47)
and Bunch was used to teach interrupting the duty cycle by
initiating a clearing interval using the controller in response to
the controller receiving the signal indicative of the change in
the sensed parameter (Col. 4, lines 37-43; where sensors can
override pre-set heating times and initiate operation of a heater
in response to condensation caused by a change in humidity)
for the advantage of allowing the system to be activated prior to
the formation of condensation and also allows the system to be
activated when condensation is sensed by a sensor by
overriding the preset activation times (Col. 2, lines 22—29).
Ans. 9—10.
Appellants’ argument regarding Bunch does not apprise us of error as
to the rejection because Bunch’s “pre-set stop times are set to provide for 15
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Application 13/023,264
minute duty cycles.” Bunch 4:35—36. “[I]n the event the pre-set cycle time is
insufficient to prevent condensation, the sensor reading can override the pre­
set “off’ time.” Id. at 4:37—39. In other words, we agree with the Examiner
that each override of a pre-set cycle time in effect interrupts that 15 minute
duty cycle, as required by the claim. And, as the Examiner finds supra,
Levine teaches using duty cycle control to allow the temperature modifying
apparatus to maintain ambient temperature at a desired level. Thus, by
attacking Bunch individually when the rejection is predicated upon a
combination of teachings, Appellants fail to take into account the combined
teachings of Levine and Bunch, as articulated by the Examiner in the
rejection.
Accordingly, we sustain the rejection of claims 1—6 under 35 U.S.C.
§ 103(a).
DECISION
The Examiner’s decision to reject claims 1—6 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).
AFFIRMED
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