ROCKWELL AUTOMATION TECHNOLOGIES, INC.

Patent Trials and Appeals Board

Jul 19, 2021

2020002559 (P.T.A.B. Jul. 19, 2021)

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.
15/720,735 09/29/2017 Scott A. Miller 2017P-204-US
(ALBR:0694)
9386
42982 7590 07/19/2021
Rockwell Automation, Inc./FY
Attention: Linda H. Kasulke E-7F19
1201 South Second Street
Milwaukee, WI 53204
EXAMINER
LEE, LAURENCE J
ART UNIT PAPER NUMBER
2624
NOTIFICATION DATE DELIVERY MODE
07/19/2021 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):
docket@fyiplaw.com
raintellectualproperty@ra.rockwell.com
todd@fyiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SCOTT A. MILLER, JEROME R. ANDERSON,
RANDY A. CANNADY, TIMOTHY A. CAINE,
MICHAEL J. ANTHONY, and DOUGLAS A. COULTER
_____________

Appeal 2020-002559
Application 15/720,735
Technology Center 2600
____________

Before ST. JOHN COURTENAY III, MARC S. HOFF, and
CATHERINE SHIANG, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–20, which constitute all the claims pending in this application. We
have jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). According to Appellant, the real party in interest in this
appeal is Rockwell Automation Technologies, Inc. See Appeal Br. 2.
Appeal 2020-002559
Application 15/720,735

2
STATEMENT OF THE CASE 2
Introduction
Embodiments of Appellant’s claimed subject matter relate generally
to: “human machine interfaces, such as those used in industrial automation
systems.” Spec. ¶ 1.
Representative Claim 1
1. A system, comprising:
a visualization manager that, in operation, communicates
with a first thin client human machine interface (HMI) to permit
the first thin client HMI to access and display a visualization
from an industrial automation visualization source of a
controlled machine or process,
wherein the visualization manager is configured to permit
access to the visualization by a first user of the first thin client
HMI, and thereafter to permit sharing of the visualization by the
first user with at least one second user of a second HMI in real
or near-real time during operation of the controlled machine or
process;
wherein access and display by the thin client HMI is
permitted based upon first policies implemented by the
visualization manager including at least a location of the thin
client HMI and a role of the first user, and access and display
by the second HMI is permitted based upon second policies
implemented by the visualization manager including at least
one location of the second HMI and a role of the second user.
Appeal Br. 10. Claims App. (disputed claim limitations emphasized).

2 We herein refer to the Final Office Action, mailed June 6, 2019 (“Final
Act.”); Appeal Brief, filed November 12, 2019 (“Appeal Br.”); the
Supplemental Examiner’s Answer, mailed December 18, 2019 (“Ans.”); and
the Reply Brief, filed February 11, 2020 (“Reply Br.”).
Appeal 2020-002559
Application 15/720,735

3
Evidence Relied Upon by the Examiner
Name Reference Date
Green et al. (“Green”) US 2005/0190781 A1 Sept. 1, 2005
Hersans et al.
(“Hersans”) US 2011/0106808 A1 May 5, 2011
Pretlove et al.
(“Pretlove”) US 8,126,964 B2 Feb. 28, 2012
Zielinski et al.
(“Zielinski ”) US 2017/0331929 A1
Nov. 16,
2017

Table of Rejections
Rej. Claims Rejected 35 U.S.C. § Reference(s)/Basis
A
1, 2, 5–14,
17–20
103 Pretlove, Zielinski, Hersans
B 3, 4, 15, 16 103 Pretlove, Zielinski, Hersans, Green

ISSUES AND ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. To the extent Appellant has not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are forfeited
or waived.3 See, e.g., 37 C.F.R. § 41.37(c)(1)(iv). Throughout this opinion,

3 See In re Google Technology Holdings LLC, 980 F.3d 858, 862 (Fed. Cir.
2020) (some internal citation omitted):
Appeal 2020-002559
Application 15/720,735

4
we give the claim limitations the broadest reasonable interpretation (BRI)
consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997). We highlight and address specific findings and arguments
for emphasis in our analysis below.

Rejection A under 35 U.S.C. § 103 of Representative Claim 1
We consider the following issue raised by Appellant’s arguments:

Issue: Under 35 U.S.C. § 103, did the Examiner err by finding that
the combination of Pretlove, Zielinski, and Hersans teaches or suggests the
following disputed “wherein” clause limitation of independent claim 1?
wherein access and display by the thin client HMI is
permitted based upon first policies implemented by the
visualization manager including at least a location of the thin
client HMI and a role of the first user, and access and display
by the second HMI is permitted based upon second policies
implemented by the visualization manager including at least
one location of the second HMI and a role of the second user.
Claim 1 (emphasis added).

It is well established that “[w]aiver is different from forfeiture.”
United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a
known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)) (additional citations omitted). The two scenarios can
have different consequences for challenges raised on appeal, id.
at 733–34, and for that reason, it is worth attending to which label
is the right one in a particular case.
Appeal 2020-002559
Application 15/720,735

5
In the Appeal Brief, Appellant advances three principal arguments:
(1) “[N]one of the references discloses policies for access and display
of visualizations based on location and user role.” Appeal Br. 5.
(2) “[N]one of the references discloses such policies when based on
the location of a thin client device HML.” Appeal Br. 8.
(3) “[T]he references are inconsistent and incompatible in regards
their strategies and references to ‘location’ and user role, making any
combination antithetical to one or more of them.” Id.
The Examiner disagrees with Appellant, and further explains the basis
for the rejection in the Answer:
Regarding Appellant’s point 1, the Examiner notes:
Hersans was relied upon for its teaching (at least at paragraph
85) that an administrator may categorize users according to
their roles and locations; such users are allowed to see
(visualize) data items categorized with matching user
categories; users and data items may be categorized such that
only users with appropriate permissions, or levels of authority,
are able to view data items categorized with the user categories.
Ans. 4.
Regarding Appellant’s point 2, the Examiner finds:
Hersans teaches (at paragraph 27) that certain users might
utilize a thin client netbook, thus a thin client device HMI, as
netbooks are capable both of providing a human machine
interface and of determining their current location. As
indicated above, Hersans teaches a policy for data access based
on user role and location, which could be the current location of
the device itself. In fact, it would be beneficial for user and
device to be co-located, as indicated below.

Ans. 4.
Appeal 2020-002559
Application 15/720,735

6
Regarding Appellant’s third principal argument, the Examiner finds:
Hersans teaches user location, which could be a current
location, especially considering that in order to view data items,
a user’s thin-client HMI device should be co-located (else said
user would find it difficult to view data items); thus, Hersans'
teaching suggests that the location of the thin-client HMI device
is essentially the same as the current location of the user
him/herself. Pretlove does teach that users may be in different
locations, but, again, each user’s thin client HMI device could
be co-located (which would be helpful to view and especially
share data items).

Id. (emphasis added).
In the Reply Brief, Appellant focuses on Hersans, and contends:
almost none of these passages relates to delivery at a particular
location, much less control of visualization delivery based on
location (and user role). In those passages that appear to relate
to location for content delivery, in no case does this appear to
be a restrictive criterion (along with user role). That is, a
“policy” for permitting content access. For example, the
passage from paragraph 84 of Hersans, which the examiner
appeared to rely on particularly, merely indicates that the users
may be categorized by role and location, but not that the content
(and certainly not an industrial automation visualization) should
be restricted based on policies of such criteria.
Reply Br. 2.
We begin our analysis by considering Appellant’s first contention that
“[n]one of the references discloses policies for access and display of
visualizations based on location and user role.” Appeal Br. 5 (emphasis
added).
As an initial matter of claim construction, we consider the broadest
reasonable interpretation consistent with the Specification for the claim 1
language “role of the first user” and “role of the second user.” We find no
Appeal 2020-002559
Application 15/720,735

7
limiting definition of a user “role” in the claim itself. Turning to the
Specification for context, we find only one non-limiting, exemplary
embodiment of a user role, i.e., “such as maintenance personnel:”
Still further, the presently contemplated sharing techniques
allow for designating individual users, individual roles, or
groups of users and devices as indicated by reference numeral
276. In some embodiments, the user sharing a visualization
may designate a specific role, such as maintenance personnel,
for viewing a desired visualization.
Spec. ¶ 57 (emphasis added).
Given this supporting description in the Specification (id.), we
conclude the claimed “roles” of the first and second users are not limited to
any particular roles for the respective first and second users.
As found by the Examiner (Final Act. 3), Pretlove discloses roles of
first and second users in the context of an industrial control system that uses
thin clients: 4
This is a great advantage within the area of sharing data
handled by an industrial control system. A first user may share
information displayed on his computer or PDA etc with a
second user, who may be a technical expert, a Help Desk
person, a colleague and so on, so as to explore or discuss a
technical issue concerning a device or process or product.
Pretlove ¶ 3 (emphasis added).
See also, e.g., Pretlove’s claim 37, in pertinent part, as cited by the
Examiner (Final Act. 3):
37. An industrial control system for a first user to obtain
technical assistance by displaying data provided by a server
process of a server of said industrial control system to a thin

4 We note Hersans also teaches the use of “a thin-client netbook” at
paragraph 27.
Appeal 2020-002559
Application 15/720,735

8
client process running on a first machine of the first user to at
least one other user, which session is logged by said server
process, the system comprising:

Pretlove, col. 14 (emphasis added).
Regarding the location of the thin client, the Examiner finds that
“taking user role and user location into consideration when making data
access and data sharing decisions [was] common in the art.” Final Act. 5
(emphasis added).
We agree, and further find that under normal circumstances, the users
would be at the location of their respective client devices. We also agree
with the Examiner’s finding that “displaying and sharing visualization data
of industrial processes [was] known in the art.” Final Act. 4.
Moreover, in reviewing the record, Appellant has not traversed the
Examiner’s findings by stating that the purported well-known facts were not
considered to be common knowledge or well-known in the art. See MPEP
§ 2144.03(C) (“To adequately traverse such a finding, an applicant must
specifically point out the supposed errors in the examiner’s action, which
would include stating why the noticed fact is not considered to be common
knowledge or well-known in the art. See 37 CFR 1.111(b).” (Emphasis
added)). An adequate rebuttal of the Examiner’s taking of Official Notice
must contain sufficient information or argument to create on its face a
reasonable doubt regarding the circumstances justifying the Examiner’s
notice of what was well known to one of ordinary skill in the art. In re
Boon, 439 F.2d 724, 728 (CCPA 1971).
The Examiner further relies on Hersans at paragraph 85, which
expressly discloses the categorization of “users according to their roles and
Appeal 2020-002559
Application 15/720,735

9
locations.” See Final Act. 5. Appellant acknowledges that Hersans
categorizes user location. See Reply Br. 4. We find that the user location in
Hersans (¶ 85) at least suggests the corresponding client device location,
because under normal circumstances the users would be at the location of
their respective client devices, as noted above.
We therefore disagree with Appellant’s second principal of argument
that “[n]one of the references discloses such policies when based on the
location of a thin client device HML.” Appeal Br. 8. Moreover, we
emphasize that the exception that Appellant argues in the Reply Brief (of the
user moving separately from the HMI — even temporarily), is not claimed.
See Reply Br. 5.
Regarding the claimed user access to the shared visualization by the
first and second users that is permitted according to first and second policies
(that include at least one location of the respective HMI and a role of the
respective user), the Examiner finds “Hersans suggests automated policies
for data sharing that takes into account user role and user location.” Final
Act. 5. The Examiner further finds: “given that Hersans, Pretlove and
Zielinski use and disclose similar technology, the combination could have
been performed using known means, without the apparent need for undue
experimentation, and with a reasonable expectation of predictable results.”
Final Act. 6.
We note that Hersans also discloses categorizing “users and data items
with appropriate user categories in order to ensure that only users with
appropriate permissions or levels of authority are able to view the data items
categorized with the user categories.” Hersans ¶ 85. As noted above, we
Appeal 2020-002559
Application 15/720,735

10
find that the user location at least suggests the corresponding client device
location.
We emphasize that “the question under 35 USC 103 is not merely
what the references expressly teach but what they would have suggested to
one of ordinary skill in the art at the time the invention was made.” Merck
& Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In
re Lamberti, 545 F.2d 747, 750 (CCPA 1976)) (emphasis added). See also
MPEP § 2123.
We also disagree with Appellant’s third principal argument: i.e., that
the “references are inconsistent and incompatible in regards their strategies
and references to ‘location’ and user role, making any combination
antithetical to one or more of them.” Appeal Br. 8.
We note that art is analogous when it is: (1) from the same field of
endeavor as the claimed invention; or (2) reasonably pertinent to the
particular problem faced by the inventor, if the art is not from the same field
of endeavor. Bigio, 381 F.3d at 1325–26. However, “[t]he Supreme Court’s
decision in KSR . . . directs us to construe the scope of analogous art
broadly.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010).
“The field of endeavor of a patent is not limited to the specific point of
novelty, the narrowest possible conception of the field, or the particular
focus within a given field.” Unwired Planet, LLC v. Google Inc., 841 F.3d
995, 1001 (Fed. Cir. 2016).
Here, we find the cited Pretlove, Zielinski, and Hersans references are
reasonably pertinent to the particular problem faced by the inventor. We
also emphasize that “[t]he test for obviousness is not whether the features of
a secondary reference may be bodily incorporated into the structure of the
Appeal 2020-002559
Application 15/720,735

11
primary reference . . . . Rather, the test is what the combined teachings of
those references would have suggested to those of ordinary skill in the art.”
Id. at 425. In KSR, the Court held that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill . . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
We find Appellant’s arguments are not persuasive of error. The
Supreme Court has rejected the rigid requirement of demonstrating a
teaching, suggestion, or motivation to combine references in order to show
obviousness. See KSR, 550 U.S. at 419. Instead, a rejection based upon
obviousness only needs to be supported by “some articulated reasoning with
Appeal 2020-002559
Application 15/720,735

12
some rational underpinning” to combine known elements in the manner
required by the claim. Id. at 418.
Based upon our review of the record, we find the Examiner provides
sufficient “articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006). See Final Act. 4–6.
Accordingly, we agree with and adopt the Examiner’s underlying
factual findings and ultimate legal conclusion that the disputed last
“wherein” clause of claim 1 is obvious over the collective teachings and
suggestions of Pretlove, Zielinski, and Hersans.5
For at least the aforementioned reasons, we sustain the Examiner’s
rejection of representative independent claim 1. Claims 2, 5–14, and 17–20,
also rejected under Rejection A, but not separately argued, fall with claim 1.

Rejection B of Dependent Claims 3, 4, 15, and 16
In view of the lack of any substantive, separate arguments for
patentability directed to obviousness Rejection B of remaining claims 3, 4,
15, and 16, we sustain the Examiner’s rejection of these claims, which fall
with respective associated independent claim 1 or 13. Arguments not timely
made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv).

5 See Icon Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed.
Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate
the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13
(Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not
expressly make any independent factual determinations or legal
conclusions,” because it had expressly adopted the examiner’s findings).

Appeal 2020-002559
Application 15/720,735

13
CONCLUSION
The Examiner did not err in rejecting claims 1–20 as obvious under 35
U.S.C. § 103 over the cited combinations of references.

FINALITY AND RESPONSE
Claims
Rejected
35 U.S.C.
§
Reference(s)/Bas
is Affirmed Reversed
1, 2, 5–14,
17–20
103
Pretlove,
Zielinski,
Hersans
1, 2, 5–14,
17–20

3, 4, 15, 16 103
Pretlove,
Zielinski,
Hersans,
Green
3, 4, 15, 16
Overall
Outcome 1–20
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R.
§ 41.50(f)
AFFIRMED