Ex Parte Zywicki et al

Patent Trial and Appeal Board

Mar 26, 2018

13420120 (P.T.A.B. Mar. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/420, 120
90545 7590
HONEYWELL/STW
Patent Services
115 Tabor Road
P.O. Box 377
03/14/2012
03/28/2018
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Stan Zywicki
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.
H0028087-1161.1573101 1224
EXAMINER
FENNEMA, ROBERT E
ART UNIT PAPER NUMBER
2126
NOTIFICATION DATE DELIVERY MODE
03/28/2018 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):
patentservices-us@honeywell.com
Honeywell. USPTO@STWiplaw.com
sherry. vallabh@honeywell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STAN ZYWICKI, JEFFREY BOLL, and
DANIEL SIMOUNET 1
Appeal2017-006145
Application 13/420, 120
Technology Center 2100
Before BRADLEY W. BAUMEISTER, STACEY G. WHITE, and
MICHAEL J. ENGLE, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-28. App. Br. 2. 2 We have jurisdiction under
35 U.S.C. § 6(b ).
We reverse. Pursuant to our discretionary authority under 3 7 C.F .R.
§ 41.50(b ), we issue new grounds of rejection of claims 1-6, 23, and 24 as
obvious under 35 U.S.C. § 103.
1 Appellants list Honeywell International Inc. as the real party in interest.
Appeal Brief 3, filed September 16, 2016 ("App. Br.").
2 Rather than repeat the Examiner's positions and Appellants' arguments in
their entirety, we refer to the above-mentioned Appeal Brief, as well as the
following documents, for their respective details: the Final Action mailed
March 2, 2016 ("Final Act."); the Examiner's Answer mailed December 27,
2016 ("Ans."); and the Reply Brief filed February 27, 2017 ("Reply Br.").
Appeal2017-006145
Application 13/420, 120
STATEMENT OF THE CASE
Appellants describe the present invention as
[a] remote control unit for interacting with one or more
thermostats controlling [a heating, ventilation, and air
conditioning] HV AC system[, which] may be mounted on [a]
wall near a point of entry to a building. The remote control unit
may wirelessly send one or more comm[ a ]nds to a thermostat to
operate in one or more modes at a predetermined temperature
associated with that mode.
Abstract.
Independent claim 1, reproduced below with added emphasis,
illustrates the claimed invention:
1. A control unit for use with an HVAC system that is
controlled by at least one thermostat, wherein at least one of the
at least one thermostat has one or more system modes including
at least one of a heating mode and a cooling mode, at least one
of the heating mode and cooling mode including both a first
operating sub-mode and a second operating sub-mode, the first
operating sub-mode including a corresponding existing first
temperature set point programmed into the thermostat and the
second operating sub-mode including a corresponding existing
second temperature set point programmed into the thermostat,
wherein the first temperature set point is different from the
second temperature set[]point, the control unit comprising:
a housing;
a user interface including at least a first selectable mode
option corresponding to the first operating sub-mode, and a
second selectable mode option corresponding to the second
operating sub-mode;
a controller in communication with the user interface,
wherein upon selection of the first selectable mode option, the
controller sends one or more commands to the at least one
thermostat of the HV AC system commanding the at least one
thermostat to operate in the first operating sub-mode using the
existing first temperature set point programmed into the
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Application 13/420, 120
thermostat, and wherein upon selection of the second selectable
mode option, the controller sends one or more commands to the
at least one thermostat of the HV AC system commanding the at
least one thermostat of the HV AC system to operate in the
second operating sub-mode using the existing second
temperature set point programmed into the thermostat; and
a communications interface for communicating the one or
more commands to the at least one thermostat.
Claims 1, 7-10, 12-18, 20-23, and 25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Koster (US 2009/0140063 Al; published
June 4, 2009) and Stubbendorff (US 6,012,515; issued Jan. 11, 2000). Final
Act. 2-17.
Claims 2-5 and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Koster, Stubbendorff, and Ehlers (US 2007/0043478 Al;
published Feb. 22, 2007). Final Act. 18-20.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Koster, Stubbendorff, Ehlers, and Chapman, Jr. (US 2005/0150967 Al;
published July 14, 2005). Final Act. 21.
Claims 11 and 28 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Koster, Stubbendorff, and Clercq (US 2004/02683 91 A 1;
published Dec. 30, 2004). Final Act. 21-23.
Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Koster, Stubbendorff, and Grohman (US 2009/0127346 Al; published
May 21, 2009). Final Act. 23-24.
Claims 26 and 27 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Koster, Stubbendorff, and Flocard (US 2008/0109964 Al;
published May 15, 2008). Final Act. 24--25.
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Application 13/420, 120
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
I. CLAIMS 1, 7-23, AND 25-28
Findings and Contentions
The Examiner finds that Koster discloses all of the limitations of
independent claim 1, except for the requirement of at least one of the heating
and cooling modes having a first operating sub-mode and a second operating
sub-mode. Final Act. 2--4. The Examiner finds that Stubbendorff teaches an
HV AC system with a system controller 12, wherein the controller initiates a
first or second cooling sub-modes 310, 320 depending on whether the
measured temperature is less than a selected air temperature or alternatively
greater than or equal to a selected air temperature. Id. at 4--5 (citing
Stubbendorff col. 10, 1. 62; FIG. 3A).
The Examiner finds that motivation existed "to improve the unit of
Koster by adding the features of a first operating sub-mode and a second
operating sub-mode of the at least one of the heating mode and cooling
mode as taught by Stubbendorff." Final Act. 5. The Examiner determines
"[ o ]ne would have been motivated to make such a combination to provide a
system to automatically compensate for dynamic operational and ambient
conditions associated with an HV AC system[, which conditions] may result
in temperature changes in the environment. Id. (citing Stubbendorff,
col. 1, 1. 54 ).
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Application 13/420, 120
Appellants argue, inter alia,
Stubbendorff et al. does not disclose[] the particular sub-modes
recited in claim 1. Stubbendorff et al. disclose a system and
method for automatically controlling the cabin air temperature in
an aircraft. Stubbendorff et al. disclose the use of a single cabin
air temperature selected by the user (e.g. passenger). Both the
heating and cooling of the cabin appear [to] be controlled
according to the single temperature set point. When the cooling
mode is active, Stubbendorff et al. disclose that the controller
will compare the cabin air temperature to the single cabin air
temperature set point. The controller will then select a sub-mode
of the cooling system to either provide: (1) a low rate of cooling
(if the temperature of the cabin is below the selected cabin
temperature set point); or (2) a high rate of cooling (if the
temperature of the cabin is above the selected cabin temperature
set point). As can readily be seen, the two so-called cooling sub-
modes referenced by the Examiner correspond to a low or high
cooling mode, with both referencing the same cabin air
temperature set point.
App. Br. 13-14 (underlining omitted).
In the Examiner's Answer, the Examiner clarifies the reasoning
underlying the rejection:
Stubbendorff teaches, in the field of same endeavor of air
conditioning cooling systems, []first and second sub-modes with
distinct temperature set-points associated with a cooling mode.
Stubbendorff s first sub-mode is analogous as the first sub-mode
overshoots the "desired" temperature and the second sub-mode
is initiated to maintain/fine-tune to [the] "desired" temperature
(Col. 10, 1. 65 thru Col. 11, 1. 15). Therefore, both sub-modes
have different associated temperature settings (e.g. 1st sub-mode
temperature[,] which is set to overshoot the desired selected
cabin temperature, 2nd sub-mode temperature[,] which is set to
the desired temperature to maintain/fine-tune to selected cabin
temperature). Furthermore, the second sub-mode is executed
given a specific condition (Col. 11, 1. 1) and both the first and
second cooling sub-modes are distinctively selectable (Col. 11,
1. 13). Although no specific numerical temperature set-points are
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Application 13/420, 120
given for cooling sub-modes 1 and 2, according to
Stubbendorff's disclosure, the first sub-mode temperature is
below and not including (cooler than) [the selected cabin
temperature] T cBN sEL[,] and the second sub-mode temperature is
TcBNSEL.
Ans. 3--4 (citations modified).
Analysis
The Examiner's clarification in the Answer indicates that the
Examiner is interpreting the claimed first and second temperature set points
as corresponding to the two actual temperatures that Stubbendorff achieves
in the two respective sub-modes. This interpretation is unreasonable. Any
difference in the actual temperatures is not evidence that Stubbendorff' s two
cooling modes have different set point temperatures. The Examiner has not
established that the combination of Koster and Stubbendorff teaches or
suggests an HV AC system wherein at least one of the heating or cooling
modes has two sub-modes with respectively different set point temperatures.
For the foregoing reasons, Appellants have persuaded us of error in
the Examiner's obviousness rejection of independent claim 1, as well as
independent claims 12, 18, and 23, which recite similar limitations.
Accordingly, we do not sustain the obviousness rejection of those four
independent claims, or of claims 7-10, 13-17, 20-22, and 25, which depend
from these claims.
With respect to the further obviousness rejections of dependent
claims 2---6, 11, 19, 24, and 26-28, the Examiner does not rely on any of
Ehlers, Chapman, Clercq, Grohman, or Flocard to cure the deficiency of the
obviousness rejection explained above. Final Act. 18-25. Accordingly, we
likewise do not sustain the obviousness rejections of these claims for the
reasons explained.
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II. NEW GROUNDS ON CLAIMS 1---6, 23, AND 24
Claims 2 and 3 are illustrative of dependent claims 2-5 and 24, which
were rejected over the combination of Koster, Stubbendorff, and Ehlers:
2. The control unit of claim 1, wherein the first operating sub-
mode corresponds to an occupied mode of the at least one
thermostat.
3. The control unit of claim 2, wherein the second operating sub-
mode corresponds to an unoccupied mode of the at least one
thermostat.
Findings and Contentions
The Examiner finds that Ehlers teaches a thermostat control unit that
includes button 3.06C for activating an occupancy mode selection control.
Final Act. 18-19 (citing Ehlers Fig. 3A, element 3.06C; Fig. 4C, element
4.22A; i-fi-f 11, 17, 244, 245). The Examiner additionally provides motivation
for why it would have been obvious to have included occupancy-mode
functionality into the HV AC controller of the combination of Koster and
Stubbendorff. Id.
Appellants only argue in relation to the rejection of claims 2-5 and 24
over Koster, Stubbendorff, and Ehlers that "Ehlers et al. do not appear to
remedy the noted deficiencies of Koster et al and Stubbendorff et al." App.
Br. 38.
Analysis
We disagree with Appellants' conclusory argument that Ehlers fails to
remedy the noted deficiencies of Koster and Stubbendorff. The portions of
Ehlers cited by the Examiner clearly teach an occupancy mode selection
functionality. See, e.g., FIG 3A, element 3.06C.
Moreover, Figures 4D-4F of Ehlers respectively depict three
occupancy modes of "Home," "Away," and "Vacant." Each of these three
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occupancy modes includes functionality for individually controlling the
temperature set points for both the cooling mode and the heating mode. For
example, Ehlers teaches that the cooling-mode set points can be set to the
different temperatures of 80Q F for the "Home" mode (FIG. 4D), 85Q F for
the "Away" mode (FIG. 4E), and 90Q F for the "Vacant" mode (FIG. 4F).
See Ehlers i-fi-1316, 319-322.
As such, Ehlers reasonably teaches that language of independent
claims 1 and 23 for which the Examiner relies upon Stubbendorff-the
requirement of at least one of the heating and cooling modes having distinct
first and second operating sub-modes. Ehlers likewise teaches the additional
limitations of dependent claims 2-5 and 24, as explained in the preceding
paragraph. Furthermore, Appellants do not challenge the Examiner's stated
motivation for combining Ehlers's teachings with those of Koster. See App.
Br. 38. Appellants' arguments do not dissuade us, then, that the
combination of Koster and Ehlers, with or without the further teachings of
Stubbendorff, renders obvious claims 1-5, 23, and 24. 3
We likewise conclude claim 6 is obvious over the combination of
Koster, Ehlers, and Chapman, Jr., with or without further reliance on
Stubbendorff. Appellants do not particularly point out errors in the
Examiner's reasoning regarding the additional teachings of Chapman, Jr.,
3 Because the combination of Koster and Ehlers renders the stated claims
obvious, we need not consider further the teachings of Stubbendorff or
whether reasonable motivation existed to combine Stubbendorff's teachings
with those of Koster and Ehlers. We also do not address the question of
whether Ehlers alone renders claim 1 unpatentable, but instead leave that
determination to the Examiner for consideration upon any further
examination on the merits.
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but instead merely assert that neither Ehlers nor Chapman, Jr. appears to
remedy the deficiencies of Koster and Stubbendorff that were noted in
relation to claim 1. App. Br. 38.
Because the thrust of our reasoning for rejecting the claims as obvious
differs from the Examiner's reasoning, we designate the obviousness
rejections of claims 1-6, 23, and 24 as constituting new grounds of rejection
pursuant to our discretionary authority under 37 C.F.R. § 41.50(b).
DECISION
The Examiner's decision rejecting claims 1-28 is reversed.
In new grounds pursuant to our discretionary authority under
37 C.F.R. § 41.50(b), claims 1-5 and 24 are rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Koster and Ehlers, and claim 6
is rejected under 35 U.S.C. § 103(a) as obvious over the combination of
Koster, Ehlers, and Chapman, Jr.
Rule 41.50(b) provides "[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review." Rule 41.50(b)
also provides the following:
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:
(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
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Application 13/420, 120
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 Manual of Patent Examining Procedure (MPEP) § 1214.01
(9th Ed., Rev. 9, Nov. 2015).
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.
§ 1.136(a)(l )(iv).
REVERSED
37 C.F.R. § 41.50(b)
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