Ex Parte TownsendDownload PDFPatent Trial and Appeal BoardSep 1, 201713432171 (P.T.A.B. Sep. 1, 2017) Copy Citation 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. 13/432,171 03/28/2012 Randolph G. Townsend 203185-10001 6313 3705 7590 09/06/2017 ECKERT SEAMANS CHERIN & MELLOTT, LLC 600 GRANT STREET 44TH FLOOR PITTSBURGH, PA 15219 EXAMINER BARAKAT, MOHAMED ART UNIT PAPER NUMBER 2689 NOTIFICATION DATE DELIVERY MODE 09/06/2017 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): ipmail @ eckertseamans. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RANDOLPH G. TOWNSEND Appeal 2017-004661 Application 13/432,1711 Technology Center 2600 Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and JESSICA C. KAISER, Administrative Patent Judges. KAISER, Administrative Patent Judge. DECISION ON APPEAL Introduction Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1, 3—14, and 16—38, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 2 and 15 have been cancelled. We AFFIRM-IN-PART and enter NEW GROUNDS OF REJECTION under 37 C.F.R. § 41.50(b). 1 According to Appellant, the real party in interest is Air Heater Seal Company, Inc. Br. 1. Appeal 2017-004661 Application 13/432,171 EXEMPLARY CLAIM Claim 1, reproduced below, is illustrative of the claimed subject matter with disputed limitations emphasized: 1. A method of providing an indication regarding an apparatus that is structured to be switched between one state and an operated state, the method comprising: detecting at least one of: that the apparatus has been switched to the operated state, and that the apparatus is in the operated state; and periodically outputting an audible notification representative of at least a first spoken word whose literal content includes a duration of time that the apparatus has remained in the operated state. REJECTIONS Claims 37 and 38 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Volodarsky (US 2006/0202848 Al; published Sept. 14, 2006). Final Act. 2-4. Claims 1, 5, 8, 10, 11, 14, 18, 20, 22, 23, and 32—34 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky and Ueda (US 4,517,431; issued May 14, 1985). Final Act. 4—10. Claims 3, 4, 16, 17, 24—26, 30, and 31 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, and White (US 2009/0017404 Al; published Jan. 15,2009). Final Act. 10-18. Claims 6, 7, 9, 12, 13, 19, 21, 35, and 36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, and Thiessen (US 6,552,647 Bl; issued Apr. 22, 2003). Final Act. 18—23. 2 Appeal 2017-004661 Application 13/432,171 Claim 27 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, White, and Thiessen. Final Act. 23— 24. Claims 28 and 29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, White, and Heilman (US 2008/0136581 Al; issued June 12, 2008). Final Act. 24—26. ANALYSIS Anticipation: Claims 37 and 38 Appellant contends the Examiner erred in finding Volodarsky discloses “periodically outputting an audible notification representative of a duration of time that the apparatus has remained in the operated state,” as recited in claim 38 and similarly recited in claim 37. Br. 5—8. Specifically, Appellant argues Volodarsky provides a “periodic audible and visual signal,” e.g., “a beep,” “to remind a person that the [cooking] range is on” but that signal does not “convey[] a duration of time that an apparatus has remained” on to a user. Br. 5—6 (emphasis omitted). Additionally, Appellant argues “Volodarsky merely states that the portable warning receiver unit (70) is capable of supporting the communication of [a cooking range’s operating time] information but provides no disclosure of outputting [the cooking range’s operating time] information.” Br. 7 (citing Volodarsky 131). We are not persuaded. The Examiner finds (Final Act. 2—3; Ans. 9), and we agree, Volodarsky teaches a “portable warning receiver unit[]” which “provide[s] a non-invasive audible and visual warning to indicate to [a] person that [a cooking] range is on. The warning emitted by the receiver 3 Appeal 2017-004661 Application 13/432,171 may be a medium length audible signal emitted at intervals of two to three minutes (or other programmable interval)” (Volodarsky 111; see Volodarsky 130). Appellant’s arguments that Volodarsky’s audible warning signal is “meaningless to a user from the standpoint of conveying a duration of time that an apparatus has remained in an operated state” and requires “mental reflection” to determine the time indicated by the warning (Br. 5—7) are not commensurate with the scope of the claims. Claims 37 and 38 do not require a user to understand or calculate the duration of time the apparatus has remained operational. Instead, these claims only require the notification is “representative of a duration of time” the apparatus has remained operational. Furthermore, the Specification does not provide any definition limiting how the notification represents time. Volodarsky’s warnings are “emitted at intervals of two to three minutes” while the apparatus is in operation. Volodarsky 111; see id. 130. As such, each warning represents a duration of two to three minutes from the last warning, i.e., the first warning represents operation of the apparatus for two to three minutes, the second warning represents operation of the apparatus for four to six minutes, etc. Additionally, Appellant’s argument that Volodarsky “supports] the communication of [cooking range operating time] information but provides no disclosure of outputting [cooking range operating time] information” (Br. 7 (citing Volodarsky 131)) does not address the Examiner’s finding that Volodarsky’s periodic warnings, which occur at set intervals, represent a duration of time the apparatus remains operational, as discussed supra. 4 Appeal 2017-004661 Application 13/432,171 Accordingly, we are not persuaded the Examiner erred in finding Volodarsky discloses “periodically outputting an audible notification representative of a duration of time that the apparatus has remained in the operated state,” as recited in claim 38 and similarly recited in claim 37. Obviousness Claims 1 and 14 Appellant contends the Examiner erred in finding Ueda teaches “an audible notification representative of at least a first spoken word whose literal content includes a duration of time that the apparatus has remained in the operated state,” as recited in claim 1 and similarly recited in claim 14. Br. 8—11. Specifically, Appellant argues Ueda’s audio notifications are “general in nature and are neither stated to be nor are intended to be representative of an actual (i.e., accurate and meaningful) ‘duration of time.’” Br. 8—9. Appellant further argues Ueda’s audio notifications are “a period in advance of when an event will occur,” rather than how long the event has been occurring. Id. at 9. Additionally, Appellant argues “Ueda provides no periodic outputting of a duration time.” Id. We are not persuaded. As discussed supra, we agree with the Examiner’s finding (Final Act. 4; Ans. 10) that Volodarsky teaches a system which “provide[s] a non-invasive audible and visual warning to indicate to [a] person that the range is on ... at intervals of two to three minutes (or [some] other programmable interval)” (Volodarsky 111; see Volodarsky 11 8, 30-31). The Examiner further finds (Ans. 10), and we agree, Volodarsky teaches “communication of other information, such as . . . range operating time” to a person (Volodarsky 131). The Examiner further finds, 5 Appeal 2017-004661 Application 13/432,171 and we agree, Ueda teaches audio “output notification^] that [are] representative of at least a spoken wor[d] whose literal content includes duration of time” (Ans. 10), e.g., “about 8 minutes” (Ueda 8:31—36). Appellant’s arguments that Ueda’s audio notifications are “general in nature” and are not “representative of an actual (i.e., accurate and meaningful) ‘duration of time’” (Br. 8—9), are not commensurate with the scope of the claims. Claims 1 and 14 do not require any particular level of precision when reporting time. Nor does the Specification define “duration of time” as having a particular level of precision. As such, Ueda’s audio notifications of “about 8 minutes” or “2 to 3 minutes” (Ueda 8:35—36, 45— 46) are representative of durations of time within the meaning of claims 1 and 14. Further, Appellant’s arguments that Ueda’s audio notifications only provide advance event notification and, additionally, are not periodic (Br. 9) improperly attack Ueda individually when the rejection is based on a combination of Volodarsky and Ueda. In re Keller, 642 F.2d 413, 426 (CCPA 1981). In particular, Appellant has not persuasively addressed the Examiner’s combination, which applies Ueda’s spoken time notifications to Volodarsky’s periodic operational status notifications to result in periodic notifications announcing the amount of time a device has been operating. Ans. 10 (the combination “allows the user to hear the duration of time regarding the operating state”); Final Act. 5. Accordingly, we are not persuaded the Examiner erred in finding the combination of Volodarsky and Ueda teaches “an audible notification representative of at least a first spoken word whose literal content includes a 6 Appeal 2017-004661 Application 13/432,171 duration of time that the apparatus has remained in the operated state,” as recited in claim 1 and similarly recited in claim 14. Claims 3, 16, and 30 Appellant contends the Examiner erred in finding the combination of Volodarsky, Ueda, and White teaches “an audible sound tag representative of one or more spoken words whose literal content includes the operational level,” as recited in claim 3 and similarly recited in claims 16 and 30. Br. 12—14. Specifically, Appellant argues the references do not teach “spoken words whose literal content includes the operational level.'1'’ Id. at 12. We are not persuaded. As discussed supra, we agree with the Examiner’s finding that the combination of Volodarsky and Ueda teaches periodic time notifications relaying how long a device has been operating. Ans. 10; Final Act. 5. The Examiner further finds, and we agree, White teaches determining the operational level of a device. Final Act. 11 (citing White 1131-32, 42, 56). Appellant’s argument that “the references, whether considered individually or in combination, fail to disclose, teach or suggest. . . spoken words whose literal content includes the operational lever (Br. 12) is without elaboration and does not address the Examiner’s combination of Volodarsky, Ueda, and White. In particular, Appellant does not address the Examiner’s modification of Volodarsky and Ueda, teaching a notification regarding the operating state of an apparatus, with White, teaching the apparatus’s state includes different operating levels, resulting in additional notification information regarding the operating level of the apparatus. Ans. 13; Final Act. 11. 7 Appeal 2017-004661 Application 13/432,171 Accordingly, we are not persuaded the Examiner erred in finding the combination of Volodarsky, Ueda, and White teaches “an audible sound tag representative of one or more spoken words whose literal content includes the operational level,” as recited in claim 3 and similarly recited in claims 16 and 30. Claims 6, 19, 27, 35, and 36 Appellant contends the Examiner erred in finding Thiessen teaches “detecting ... a flame” and “another audible notification [which is] a number of spoken words whose literal content includes the existence of the flame,” as recited in claim 6 and similarly recited in claims 19 and 27. Br. 15, 17—19. Specifically, Appellant argues Thiessen “discloses a carbon monoxide (CO) detector” but “detection of carbon monoxide is not the same as the detection of a flame.” Id. at 15 (emphasis omitted). We are persuaded by Appellant’s argument. Although the Examiner finds Thiessen teaches that the “detection of CO is used to detect the existence (condition) of a flame ‘fire’” (Final Act. 18 (citing Thiessen 10:24—33); Ans. 17), Thiessen does not teach that its CO detector detects a flame. Instead, we find Thiessen’s CO detector detects “dangerous conditions such as, e.g., the presence of CO” (Thiessen 1:65) and in response “caus[es] the offending . . . flame to extinguish” (Thiessen 5:66— 6:4; see Thiessen 2:58—62, 3:3—7; 10:30-34). That is, Thiessen uses a CO detector to detect dangerous amounts of CO, not to detect whether a flame exists. Accordingly, we are persuaded the Examiner erred in finding Thiessen teaches “detecting ... a flame” and “another audible notification [which is] a number of spoken words whose literal content includes the 8 Appeal 2017-004661 Application 13/432,171 existence of the flame,” as recited in claim 6 and similarly recited in claims 19 and 27. As such, we do not sustain the Examiner’s rejection of claims 6, 19, and 27. Additionally, claims 35 and 36, similarly reciting an “audible notification . . . whose literal content includes the existence of a fire,” are “analyzed and rejected” by the Examiner for the same reasons as claims 6 and 19. Final Act. 23. Appellant contends the references do not disclose these limitations. App. Br. 18—19. We do not sustain the Examiner’s rejection of claims 35 and 36 for the same reasons discussed above. However, we make the following new grounds of rejection based on our authority under 37 C.F.R. § 41.50(b). Specifically, we determine that the subject matter recited in claims 6, 19, 35, and 36 would have been obvious over Volodarsky, Ueda, and Thiessen and that the subject matter recited in claim 27 would have been obvious over Volodarsky, Ueda, White, and Thiessen. As discussed supra, we agree with the Examiner’s finding that the combination of Volodarsky and Ueda teaches a system which provides notifications that a cooking range is operating. Ans. 10; Final Act. 5. Further, Thiessen teaches “inform[ing] designated, responsible persons ... of the nature of each sensed event.” Thiessen 3:12—18. Additionally, Thiessen teaches “an environmental condition sensor which senses . . . flame” (Thiessen 1:40-42); i.e., a sensed event may be the existence of a flame. We conclude it would have been obvious to modify Volodarsky and Ueda with Thiessen to detect a flame and to provide a notification of the detected presence of a flame on a cooking range. In particular, it would have been obvious for an ordinarily skilled artisan to apply Thiessen’s event 9 Appeal 2017-004661 Application 13/432,171 notification technique to improve the cooking range warning system taught by the Volodarsky and Ueda combination. Furthermore, Volodarsky teaches a “warning” for a cooking range “supporting] the communication of other information” regarding the cooking range’s operation (Volodarsky H 30- 31). It would have been obvious for a skilled artisan to extend Volodarsky’s warnings to warn that a flame has been detected using Thiessen’s flame detector. Providing a notification that a flame is detected on a cooking range would improve, for example, the safety of the cooking range by providing an additional notification of potentially unintended or errant range operation. Accordingly, we enter a new ground of rejection of claims 6, 19, 35, and 36 as obvious over Volodarsky, Ueda, and Thiessen and a new ground of rejection of claim 27 as obvious over Volodarsky, Ueda, White, and Thiessen. Claim 7 As set forth above, we do not sustain the Examiner’s rejection of claim 6. Because claim 7 depends from claim 6, we do not sustain the Examiner’s rejection of claim 7. Although we have rejected claims 6, 19, 35, and 36 under 37 C.F.R. § 41.50(b), we have not reviewed claim 7, which depends from claim 6, to the extent necessary to determine whether that claim is unpatentable under 35 U.S.C. § 103(a). We leave it to the Examiner to determine the appropriateness of any further rejections based thereon. See Manual of Patent Examining Procedure (“MPEP”) § 1213.02 (9th ed., rev. 07.2015, Nov. 2015). 10 Appeal 2017-004661 Application 13/432,171 Claim 12 Appellant contends the Examiner erred in finding the combination of Volodarsky, Ueda, and Thiessen teaches “detecting a touch input on a controller of the apparatus; and providing another audible notification that is representative of one or more spoken words whose literal content includes an identity of the controller,” as recited in claim 12. Br. 16—17. Specifically, Appellant argues that a “touch input on a keyboard panel” is not “the type of ‘sensed event’ for which Thiessen . . . would generate a spoken word message.” Id. at 16. We are not persuaded. The Examiner finds (Final Act. 20), and we agree, Thiessen teaches input “panel 114 interfaces the user or installer with the system 10, and allows him or her to configure and to operate the system” (Thiessen 7:43—46; see id. at 4:24—26, 8:5—8). Thiessen further teaches a “voice/data unit,” which “allow[s] text or voice messages to be communicated” for monitoring {id. at 3:45—51). The Examiner concludes it would have been obvious “to provide an audible notification representative of an identity of the controller in order to allow extensive safety measures and to provide a more secure apparatus.” Final Act. 20. Appellant’s argument that a touch input is not the “type of ‘sensed event’” for which Thiessen would generate a notification (Br. 16) does not sufficiently address the Examiner’s conclusion of obviousness based on the teachings of the references, particularly Thiessen’s teaching of using of voice/data unit for remote monitoring (Thiessen 7:43 46). The Examiner has articulated a reason that a person of ordinary skill in the art would have provided a notification of the identity of the controller (Final Act. 20), and we find the Examiner’s reasoning sufficient to support the conclusion of obviousness 11 Appeal 2017-004661 Application 13/432,171 because identifying a controller that is being operated is indeed a type of monitoring. Accordingly, we are not persuaded the Examiner erred in concluding that the combination of Volodarsky, Ueda, and Thiessen renders obvious “detecting a touch input on a controller of the apparatus; and providing another audible notification that is representative of one or more spoken words whose literal content includes an identity of the controller,” as recited in claim 12. Claim 13 Appellant contends the Examiner erred in finding the combination of Volodarsky, Ueda, and Thiessen teaches “wirelessly receiving from a remote device a command representative of a change to the operated state,” as recited in claim 13. Br. 17. Specifically, Appellant argues the Examiner finds “that the word ‘wirelessly’ can be found in Volodarsky and that the generation of commands can be found in Thiessen,” but “[t]he mere existence of these two words in two separate references does not constitute a disclosure, teaching, or suggestion of ‘wirelessly receiving.’” Id. We are not persuaded. The Examiner finds (Final Act. 20), and we agree, Volodarsky teaches a “range transmitter unit 50 can be in wireless communication with the sensor assembly 20” (Volodarsky 135). The Examiner further finds, and we agree, Thiessen teaches a “remote device or user interface provides ... a command that will change the operating state in accordance with the command.” Final Act. 21 (citing Thiessen 3:23—31, 4:26—30; 7:43—52). The Examiner applies Volodarsky’s wireless 12 Appeal 2017-004661 Application 13/432,171 transmission to Thiessen’s received command signals, resulting in wirelessly transmitted and, correspondingly, wirelessly received command signals. Id. Appellant’s argument (Br. 17) improperly attacks Volodarsky and Thiessen individually when the rejection is based on a combination of Volodarsky and Thiessen. Keller, 642 F.2d at 426. Thus, Appellant does not persuade us the combination of Volodarsky and Thiessen fails to teach the disputed limitation. Accordingly, we are not persuaded the Examiner erred in finding the combination of Volodarsky, Ueda, and Thiessen teaches “wirelessly receiving from a remote device a command representative of a change to the operated state,” as recited in claim 13. Remaining Claims 4, 5, 8—11, 17, 18, 20—26, 28, 29, and 31—34 Appellant does not argue separate patentability for dependent claims 4, 5, 8—11, 17, 18, 20-26, 28, 29, and 31—34, which depend directly or indirectly from claims 1 and 14. See Br. 10-16, 18, and 20. Accordingly, for the reasons set forth above, we sustain the Examiner’s decision to reject claims 4, 5, 8—11, 17, 18, 20—26, 28, 29, and 31—34. DECISION The Examiner’s rejection of claims 37 and 38 under 35 U.S.C. § 102(b) as being anticipated by Volodarsky is affirmed. The Examiner’s rejection of claims 1, 5, 8, 10, 11, 14, 18, 20, 22, 23, and 32—34 under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky and Ueda is affirmed. 13 Appeal 2017-004661 Application 13/432,171 The Examiner’s rejection of claims 3, 4, 16, 17, 24—26, 30, and 31 under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, and White is affirmed. The Examiner’s rejection of claims 9, 12, 13, and 21 under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, and Thiessen is affirmed. The Examiner’s rejection of claims 6, 7, 19, 35, and 36 under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, and Thiessen is reversed. The Examiner’s rejection of claim 27 under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, White, and Thiessen is reversed. The Examiner’s rejection of claims 28 and 29 under 35 U.S.C. § 103(a) as being unpatentable over Volodarsky, Ueda, White, and Heilman is affirmed. In new grounds of rejection, we reject claims 6, 19, 27, 35, and 36 under 35 U.S.C. § 103(a). TIME TO RESPOND This decision contains new grounds of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: 14 Appeal 2017-004661 Application 13/432,171 (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under §41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the MPEP § 1214.01. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f). AFFIRMED-IN-PART; 37 C.F.R, § 41.50(b) 15 Copy with citationCopy as parenthetical citation