13512714 (P.T.A.B. Nov. 27, 2018)

Ex Parte Wagger

Patent Trial and Appeal BoardNov 27, 2018

13512714 (P.T.A.B. Nov. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/512,714 08/07/2012 105968 7590 11/29/2018 Neal Gerber & Eisenberg, LLP - Studio Torta Two North LaSalle Street Suite 1700 Chicago, IL 60602 FIRST NAMED INVENTOR Klaus Wagger 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. 025117-0057 7922 EXAMINER KLEINMAN, LAIL A ART UNIT PAPER NUMBER 3668 NOTIFICATION DATE DELIVERY MODE 11/29/2018 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): amasia@ngelaw.com habern@ngelaw.com ipusmail@ngelaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KLAUS W AGGER Appeal2018-002261 Application 13/512,714 Technology Center 3600 Before, JOHN C. KERINS, LEE L. STEPINA, and RICHARD H. MARSCHALL, Administrative Patent Judges. MARSCHALL, Administrative Patent Judge. DECISION ON APPEAL Klaus Wagger ("Appellant") 1 seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's decision rejecting claims 18--49. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appellant identifies Prinoth S.P.A. as the real party in interest. Appeal Br. 2. Appeal2018-002261 Application 13/512,714 THE CLAIMED SUBJECT MATTER The claimed subject matter relates to "a snow groomer for grooming ski slopes." Spec. 1:4--5. Independent claim 18, reproduced below, is illustrative of the claimed subject matter. 18. A snow groomer comprising: a snow groomer frame; an internal combustion engine; at least one snow groomer attachment movably connected to the snow groomer frame; at least one hydraulic assembly including: at least one actuator configured to position the at least one snow groomer attachment with respect to the snow groomer frame, and at least one valve configured to control the at least one actuator; a variable-flow pump including a regulating device configured to regulate the variable-flow pump to adjust an amount of flow delivery outputted from the variable flow pump between a minimum flow rate and a maximum flow rate, said adjustment being independent of a speed of the internal combustion engine, said variable-flow pump configured to supply the at least one hydraulic assembly; and a snow groomer control system configured to: (i) calculate a total flow rate demand of the at least one hydraulic assembly by sensing a flow rate, and (ii) control the variable-flow pump as a function of the calculated total flow rate demand of the at least one hydraulic assembly, wherein the regulating device is driven by a regulating signal based on the function of the calculated total flow rate demand to regulate a displacement of the variable-flow pump to adjust the amount of flow delivery outputted from the variable-flow 2 Appeal2018-002261 Application 13/512,714 pump to be approximately equal to the calculated total flow rate demand of the at least one hydraulic assembly. Appeal Br. 16 (Claims App.). THE REJECTI0NS 2 Appellant seeks review of the following rejections on appeal: 1. Claims 18, 20, 21, 24--26, 28, 29, 32-36, 38, 39, 42, and 43 under 35 U.S.C. Â§ 103 as unpatentable over Myers3 and Price. 4 2. Claims 19, 22, 23, 27, 30, 31, 37, 40, and 41 under 35 U.S.C. Â§ 103 as unpatentable over Myers, Price, and Thomas. 5 3. Claims 44--49 under 35 U.S.C. Â§ 103 as unpatentable over Myers, Price, and Karakama. 6 ANALYSIS The Examiner found that Myers discloses a snow groomer that includes many of the limitations of claim 18, but that Myers does not disclose a control system meeting the requirements of claim 18. Final Act. 3-5. The Examiner further found that Price discloses a snow groomer control system configured to calculate a total flow rate demand of the at least one hydraulic assembly by sensing a flow rate and controlling the variable- 2 For each of the three rejections, the claims listed in the heading of the rejection do not match the claims addressed in the substantive analysis that follows the heading. See Final Act. 3-22. We group the claims below as they were addressed by the Examiner in the body of the rejections. Appellant's arguments do not focus or tum on the discrepancies in the headings of the rejections. 3 U.S. Patent No. 4,739,616, issued April 26, 1988 ("Myers"). 4 U.S. Patent Pub. No. 2003/0115866 Al, published June 26, 2003 ("Price"). 5 U.S. Patent Pub. No. 2006/0129280 Al, published June 15, 2006 ("Thomas"). 6 U.S. Patent No. 5,259,192, published November9, 1993 ("Karakama"). 3 Appeal2018-002261 Application 13/512,714 flow pump as a function of the calculated total flow rate. Id. at 5 (citing Price ,r,r 24, 26). The Examiner determined that it would have been obvious to modify the snow groomer of Myers to include the features taught by Price "to improve operational performance of the snow groomer's hydraulic assembly." Id. at 6. Appellant argues that the Examiner failed to properly support the finding that the proposed combination would improve operational performance of the hydraulic assembly. Appeal Br. 10. Appellant also argues that the proposed modification lacks support because the modification would change the principle of operation of Myers. Id. at 10- 11. As to the limitations of claim 18, Appellant argues that Price does not disclose sensing a flow rate at all, and therefore fails to disclose calculating a flow rate demand based on sensing the flow rate. Id. at 12. In response, the Examiner found that "the reason to combine Price and Myers is to balance considerations of load and user input to effectively operate a hydraulic circuit, like the hydraulic circuit of Myers." Ans. 4. As to Appellant's argument that Price does not disclose sensing a flow rate, the Examiner found that Price discloses controlling flow by using a speed sensor, and that "pump speed is indicative of hydraulic flow rate" because they "are in direct linear proportion" according to well known affinity laws. Id. at 4--5. The Examiner further found that Price discloses using the sensed pump speed to calculate flow rate demand. Id. at 5 (citing Price ,r 32). Appellant acknowledges that Price discloses sensing speed and using speed as an input in the controller, but argues that Price still fails to sense the flow rate, despite the known relationship between speed and flow rate. Reply Br. 6. 4 Appeal2018-002261 Application 13/512,714 We agree with Appellant that the Examiner's finding that Price discloses "a snow groomer control system configured to: (i) calculate a total flow rate demand of the at least one hydraulic assembly by sensing a flow rate" lacks adequate support. Appeal Br. 16 (Claims App.) ( emphasis added). The Examiner acknowledges that Price merely discloses sensing pump speed, and does not directly sense the flow rate. Ans. 4--5. While speed may be "indicative" of flow rate in some sense due to the direct relationship between the two variables, as the Examiner found, sensing something generally indicative of flow rate is not the same thing as directly sensing the flow rate. See id.; Price ,r 23. Because the paragraphs the Examiner relies upon in Price do not discuss "sensing a flow rate" or using the sensed speed to determine the flow rate, at best Price merely discloses sensing a variable that could allow one to determine a flow rate. See Price ,r,r 19, 23, 32. We do not construe "sensing" so broadly that it encompasses Price's disclosure of a sensed speed. Accordingly, we do not sustain the rejection of claim 18. 7 The Examiner made similar findings, and Appellant raises similar arguments, regarding independent claims 26 and 35. See Final Act. 10-16; Appeal Br. 13; Ans. 5; Reply Br. 7. We, therefore, do not sustain the rejection of independent claims 26 and 35, or any of the claims that depend from independent claims 18, 26, and 35, for the same reasons discussed above. 7 The Examiner did not find that Price fails to disclose sensing a flow rate, but that it would have been obvious to do so based on Price's speed sensing or other art, and we do not consider that issue in this appeal. 5 Appeal2018-002261 Application 13/512,714 DECISION We reverse the decision of the Examiner to reject claims 18--49. REVERSED 6