Ex Parte 7686587 et al

Patent Trial and Appeal Board

Mar 31, 2016

95002008 (P.T.A.B. Mar. 31, 2016)

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.
95/002,008 06/01/2012 7686587 144074.00751 9436
26710 7590 04/01/2016
QUARLES & BRADY LLP
Attn: IP Docket
411 E. WISCONSIN AVENUE
SUITE 2350
MILWAUKEE, WI 53202-4426
EXAMINER
DOERRLER, WILLIAM CHARLES
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
04/01/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

HAYWARD INDUSTRIES, INC.
Requester/Cross-Appellant

v.

PENTAIR LTD.
Patent Owner/Appellant
____________________

Appeal 2015-007909
Reexamination Control 95/002,008
Patent US 7,686,587 B21
Technology Center 3900
____________________
Before JOHN C. KERINS, DANIEL S. SONG, and BRETT C. MARTIN,
Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued to Koehl March 30, 2010 (the ’587 patent).
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STATEMENT OF THE CASE
The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 315(a) from
the Examiner’s rejection of claims 1–15. The Requester also cross-appeals
under 35 U.S.C. §§ 134(c) and 315(b) from the Examiner’s non-adoption of
certain rejections of claims 1–15. We have jurisdiction under 35 U.S.C. §§
134 and 315.
We are informed that the ’587 patent is subject to litigation in the
United States District Court for the Eastern District of North Carolina (Case
No. 5:11-CV-459, Pentair Water Pool and Spa, Inc. et al. v. Hayward
Industries, Inc. et al.). PO App. Br. 1. The ’587 Patent also is a divisional
application of United States Patent Application No. 10/730,747, now U.S.
Patent No. 8,540,493, which is related to (A) U.S. Patent Nos. 8,641,385;
8,444,394; 7,990,091; 7,983,877; 7,976,284; 7,857,600; 7,821,215;
7,815,420; 7,751,159; 7,704,051; 7,612,510; and 7,572,108, (B) U.S.
Application Nos. 11/980,096; 12/973,778; 14/322,744; 14/338,939;
14/444,782; 14/446,018; and 14/444,812, and (C) Reexamination Control
Nos. 95/002,005 and 95/002,007,2 and (D) Case IPR2013-00287. Id.
We AFFIRM-IN-PART in that we REVERSE with respect to the
Patent Owner's appeal, but AFFIRM with respect to the Requester's cross-
appeal.

THE CLAIMED SUBJECT MATTER
The Patent Owner’s claims are directed generally to “pumps and
pumping methods, and more particularly to pump motor controllers and

2 This panel issued a decision in this appeal on March 31, 2015.
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control methods.” Spec., col. 1, ll. 12–14. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method of detecting a fault condition in a motor of a
pump, the method comprising:
measuring a bus current being provided to the motor;
generating a fault condition code if the bus current is
greater than a bus current upper limit setting;
shutting down a drive to the motor for a predetermined
time period in order to stop the pump when the bus current is
greater than the bus current upper limit setting; and
restarting the drive to the motor after the predetermined
time period has elapsed in order to restart the pump.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Genheimer
Profio
Gerlowski
Krohn
Anastos
Webber
Ligman
Wang
US 4,286,303
US 4,647,825
US 4,913,625
US 5,076,761
US 5,076,763
US 5,672,050
US 5,828,200
US 2003/0063900 A1
Aug. 25, 1981
Mar. 3, 1987
Apr. 3, 1990
Dec. 31, 1991
Dec. 31, 1991
Sept. 30, 1997
Oct. 27, 1998
Apr. 3, 2003

Baldor Motors and Drives, Series 10 Inverter Control Installation and
Operating Instructions (Feb. 2000) (hereinafter “Baldor”).
Control Techniques, Commander SE Advanced User Guide (Nov. 2002)
(hereinafter “the Commander Guide”).
Control Techniques, Dinverter 2B User Guide (Nov. 1998) (hereinafter
“Dinverter”).
Yu and Figoli, AC Induction Motor Control Using Constant V/Hz Principle
and Space Vector PWM Technique with TMS 320C240, Digital Signal
Processing Solutions (April 1998) (hereinafter “Yu”).
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Carrow, Electrician’s Technical Reference: Variable-Frequency Drives,
Delmar (2001) (hereinafter “Carrow”).
THE REJECTIONS ON APPEAL
The Examiner made the following rejections, which we have
renumbered sequentially for ease of reference:
1. Claims 1and 4 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Genheimer. RAN 10.
2. Claims 2 and 3 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Genheimer. Id.
3. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Genheimer and Krohn. Id.
4. Claims 1–4, 10, 12, and 13 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Baldor. RAN 11.
5. Claims 2, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Baldor. Id.
6. Claims 1–4, 12, and 13 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gerlowski and Baldor. RAN 12.
7. Claims 5–7 and 9–14 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Genheimer and Carrow. Id.
8. Claims 5–7 and 9–14 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Baldor and Carrow. RAN 13.
9. Claims 8 and 15 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to provide an adequate written description. RAN 14.
10. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Genheimer and Yu. Id.
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11. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Baldor and Yu. Id.
12. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gerlowski, Baldor, and Yu. Id.
13. Claims 1, 5–7, and 9–11 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Carrow. RAN 15.

The Requester also appealed the non-adoption of certain rejections, a
listing of which may be found in the Requester’s Appeal Brief. Req. App.
Br. 3–5.

ANALYSIS
THE ADOPTED REJECTIONS
Rejections involving Genheimer
One dispositive issue permeates all of the pending rejections that rely
upon Genheimer as the main reference, which is whether Genheimer’s
starter is a drive as claimed or a switch as asserted by the Patent Owner.
See, e.g., App. Br. 7. As explained by the Patent Owner’s expert, Dr.
Collins, “[a] power supply used to supply variable frequency power to AC
motors is often called a ‘variable speed drive (VSD)’. . .‘variable frequency
drive,’ [‘]adjustable speed drive,’ or…[t]he generic name ‘motor drive’ is
also used.” Collins Dec. ¶ 28. While neither side proffers an actual
definition of the term “drive” or explains its common understanding in this
art beyond Dr. Collins’ discussion of the term, the Patent Owner does
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explain how the system of Genheimer is for operation of single-speed
motors and not variable motors. PO App. Br. 7–8.
The Requester counters that “the words ‘variable speed’ are not
mentioned anywhere in Claims 1 and 4” such that it would disqualify the
teachings of Genheimer as disclosing a drive as claimed. Req. Resp. Br. 3.
The closest thing to a definition is provided by the Examiner, who construes
the term such that “drive is seen to be a term of art for the electronics that
produce the proper electrical signal to power the electric motor.” ACP 27.
The Examiner further elaborates that Genheimer meets this definition
because it “provides the proper magnitude, phase[,] and frequency for the
motor (although not necessarily a variable frequency).” RAN 30. The
Patent Owner disagrees with this assertion and argues that “[t]he starter 36
of Genheimer is nothing more than an on/off switch that does not produce
(or even reasonably ‘provide’. . .) the proper electrical signal, but acts as a
mere conduit for electricity (of whatever magnitude, phase, frequency, etc.)
from the power supply.” PO App. Br. 8.
While we agree that the claims do not specifically claim a variable
speed motor or drive, what does seem apparent based upon the evidence
presented to us is that the ’587 patent, as a whole, contextually discloses a
variable speed motor and associated drive. See PO App. Br. 7. It seems that
both sides agree that a switch is not a drive, but disagree whether
Genheimer’s starter is a switch or a drive. Accordingly, our decision on this
point hinges upon whether Genheimer merely teaches a switch or not. Even
using the Examiner’s broad construction regarding producing or providing
power, we cannot see how Genheimer’s starter is anything other than a
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switch. While it may have circuitry that stands between the power lines and
the motor, that circuitry does nothing more than allow the power to pass
through to the motor. This does nothing to “produce the proper electrical
signal to power the electric motor” as stated by the Examiner and referenced
supra. As the Patent Owner states, “Gehnheimer fails to disclose or suggest
that the starter 36 in any way modifies, conditions, or alters the power
supplied by the conventional three-phase power supply.” PO App. Br. 7
(citing Supp. Collins Dec. ¶ 18). It merely passes along whatever power it
receives without regard to whether that power is proper for the motor on the
other side of the circuitry.
Furthermore, because neither side has specifically argued what the
term “drive” actually means other than to say whether something is or is not
as generally construed by the Examiner, we accept Dr. Collins’ statement
that the term “motor drive” applies to a variable speed motor drive. See
Collins Dec. ¶ 28. Accordingly, while the claims do not specifically recite a
variable speed motor, or a variable speed motor drive, we construe “drive”
in view of the Specification of the ’587 patent to have a meaning as
explained by Dr. Collins such that “drive” in these claims refers to a variable
speed drive. This is consistent with the Examiner’s requirement that the
drive “produce the proper electrical signal,” which implies the capability to
do more than just pass on the power provided by the source. As such,
Genheimer does not teach a drive as claimed, but merely teaches a switch
that does nothing to condition the power as would be required in a variable
speed drive. None of the references used in combination with Genheimer
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cures this deficiency. Accordingly, we reverse rejections 1–3, 7, and 10
listed above.

Rejections Involving Baldor and Gerlowski
Baldor
Regarding Baldor, the Patent Owner argues that “the Baldor
overcurrent faults rely on output frequency measurements rather than bus
current measurements, as specified by Claim 1.” PO App. Br. 14. Although
Baldor teaches overcurrent fault codes, Baldor specifically states that these
faults are triggered by measurements taken of output frequency, not of
current itself as required by the claims. See Baldor 3–15.3 Requester's
declarant, Dr. Emadi, states that in Baldor, the “drive can be programmed to
detect whether an overcurrent condition [occurs].” Supp. Emadi Dec. ¶ 25.
Detection of an overcurrent condition, however, is not the same as
“measuring bus current” and subsequently “generating a fault condition code
if the bus current is greater than a bus current upper limit setting,” as recited
in the claimed method.
Additionally, we agree with the Patent Owner that the Requester’s
evidence does not teach an affirmative disclosure, but relies on the absence

3 Requester emphatically states that “nowhere does Baldor state that the
overcurrent faults (F16, F17, and F18) require frequency measurements.”
Req. Resp. Br. 7. We find such a statement troubling considering that
Baldor very clearly states “[i]f the motor loading is large enough to drive the
inverter below this output frequency, the inverter will trip an overcurrent
fault (F16, F17, or F18).” Baldor 3-15 (emphasis added). Accordingly, it is
not the actual measurement of overcurrent that produces the fault, but the
proxy measurement of frequency.
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of a teaching to allegedly inferentially disclose the claimed feature. PO
App. Br. 15. Specifically, Dr. Emadi states, “the controller still monitors
current being supplied to the motor (bus current), and determines whether
the current exceeds a pre-defined threshold, since the Baldor manual does
not disclose that current monitoring is not overrided when the device is in
torque limit mode.” Supp. Emadi Dec. ¶ 27. Not disclosing that current
monitoring is not overridden is not the same as disclosing that current
monitoring is taking place. Even granting that point however, it is still clear
that the fault code arises from a frequency measurement, not based upon the
monitoring of current, the latter being required by the claims.
Furthermore, regarding the Requester’s assertion of fault code 20 in
Baldor, we agree with the Patent Owner that this fault code references a
timed overload fault condition rather than an overcurrent condition as
claimed. See PO App. Br. 15. As the Patent Owner argues, this overload
condition “specifically allows the drive to operate after an upper limit has
been exceeded as it relies on an ‘overload’ measurement that requires, at a
minimum, current over a time period.” PO App. Br. 15 (citing Supp. Collins
Dec. ¶ 42); see also Baldor 3-11. Accordingly, we do not agree that Baldor
operates in a manner where an overcurrent is measured and then the motor is
shut down in accordance with the claimed method. As none of the
references used in combination with Baldor cures this deficiency, we reverse
rejections 4, 5, 8, and 11.
Gerlowski
As with Genheimer, we agree with the Patent Owner that Gerlowski
also fails to teach the claimed “drive,” but instead merely teaches “sending a
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signal to trip a switch through which power to a pump is flowing.” PO App.
Br. 21. Similar to the prior discussion, whether Gerlowski discloses a drive
depends on the proper understanding of what a “drive” is. As discussed
above, the Examiner’s definition of drive does not take into account the
context of the ’587 patent, which requires a narrower definition equating to a
variable speed drive. In this drive/switch dichotomy, Gerlowski also teaches
something more akin to a switch than a variable speed drive.
As to the Examiner’s proposed combination of Baldor’s restart feature
with Gerlowski, we agree with the Patent Owner that such a restart would
not be desirable in Gerlowski. See PO App. Br. 23. The Examiner points to
the fact that, in Gerlowski, “the control flowchart of figure 3 returns to the
initial step 60 after protective measures have been taken in step 75.” ACP
32. As the Patent Owner points out, however, this actually “highlights the
incompatibility of incorporating an automatic restart with
Gerlowski….[because] Gerlowski specifically requires that protective
measures are taken before returning to step 60.” PO App. Br. 23–24. In
other words, Gerlowski requires some intervention, i.e., protective measures,
to occur before the restart. Gerlowski’s shutdown appears to involve a pump
failure, not simply a temporary condition that could be cured with a
temporary shutdown. As specifically stated, Gerlowski relies on protective
measures to be undertaken, which, as the Patent Owner argues, would
appear to teach away from using an automatic restart. Yu fails to cure the
deficiencies of this combination. Accordingly, we find this combination to
be deficient and reverse rejections 6 and 12.

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Anticipation by Carrow
The Patent Owner argues, and we agree, that Carrow fails to teach the
claimed “predetermined time period” during which the drive is shut down,
after which the motor is restarted. As the Patent Owner points out, “Carrow
discloses that a ‘drive can be programmed to automatically attempt a restart
up to ten times at two-minute intervals.’” PO App. Br. 25 (citing Carrow
62). We agree that this is a time period between attempted, unsuccessful
restarts rather than the claimed predetermined time period during which the
drive is shut down. We are unpersuaded that this time period represents the
time after shutdown for the first restart to occur as alleged by the Requester.
Req. Resp. Br. 12. Carrow states that restarts may occur “when conditions
permit” (Carrow 62), but is silent as to how much time may be necessary for
“conditions [to] permit” as stated. Carrow does not specifically tie the two-
minute wait time between restart attempts to this basis for allowing a restart
in the first place. We see no disclosure that teaches a predetermined time
period as claimed.
Additionally, we agree with the Patent Owner that whatever restart
occurs, it happens due to an under-voltage condition, not an overcurrent fault
as claimed. See PO App. Br. 26. The mere mention in Carrow that other
reasons besides under-voltage may cause the motor to trip does not amount
to an express disclosure that an overcurrent condition would also cause a trip
and automatic restart, as would be required in an anticipation rejection.
Accordingly, we reverse rejection 13.

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Written Description Rejections
The Examiner rejects claims 8 and 15, finding that the Specification
of the ’587 patent fails to “disclose providing direct current to the bus when
the drive is shut down for a period of time.” RAN 14. The Patent Owner,
however, persuasively explains in detail how the ’587 patent disclosure
supports these claims. PO App. Br. 27–30. Although the totality of the
explanation persuades us that the limitation is sufficiently described, we find
particularly persuasive the fact that the ’587 patent discloses that “the status
indicator LEDs can be lit continuously or can flash at various rates…to
indicate the status of the drive 46 of the motor 16. In one embodiment, LED
A…can be lit continuously when power is being applied, but the controller
24 is not driving the motor 16.” Spec., col. 12, ll. 10–15. We agree with the
Patent Owner that this supports the conclusion that the ’587 patent
“discloses that the drives 46, which are powered by the DC bus, can be
powered while not driving the motor 16.” PO App. Br. 29. In other words,
if LED A is lit, it signifies power is supplied to the drive 46, but as stated,
controller 24, of which drive 46 is a part, is not driving the motor, so the lit
LED A indicator indicates that the motor is powered even when the drive is
not driving the motor, i.e., the drive is shut down. Accordingly, we do not
agree with the Requester that this fails to teach the claim language at issue.
See Req. Resp. Br. 15. As such we reverse this rejection.

CROSS-APPEAL
Both the Examiner and the Patent Owner adequately rebut the
Requester’s positions regarding the non-adopted rejections. See generally,
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RAN 24–30 and PO Resp. Br. 3–15. We highlight certain representative
arguments below regarding these rejections to further explain why the
Examiner was correct in the decision not to adopt the rejections appealed by
the Requester.
Commander Guide
The Requester argues that the Examiner erred in refusing to adopt the
proposed rejections based on the Commander Guide because the
Commander Guide discloses restarting the drive as claimed. See Req. App.
Br. 5–9. As the Patent Owner points out, however, the Commander Guide
teaches a reset, not a restart, whereby a reset “means updating parameters
and drive states.” PO Resp. Br. 4. Additionally, as the Patent Owner points
out, a reset “can occur while the drive is still running.” Id. Accordingly, the
reset described in the Commander Guide cannot be the same as a restart,
which requires first shutting down the motor. As none of the references
used in combination with the Commander Guide cure this deficiency, we
affirm the Examiner’s decision not to adopt the rejections involving the
Commander Guide.
Ligman
The issue with Ligman is that it allegedly does not teach the
predetermined time period before restarting. The Requester argues that a
predetermined time period exists because the restart is implemented on a
microcontroller and microcontrollers “operate in synchronization with the
clock signal such that instructions in the software programs are fetched and
executed in response to the clock signals.” Req. App. Br. 9. As the
Examiner states, however, under this rationale, “all systems that rely on
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microprocessors use only predetermined times.” RAN 37. Such an all-
encompassing interpretation of a predetermined time period would not allow
for non-predetermined time periods when a microcontroller is used and, as
such, is an unreasonably broad interpretation that cannot be a proper basis
for assertion of a predetermined time period. Also, the mere use of clock
signal does not mean that the restart is done after a predetermined time
period. Depending on what else is happening within the microcontroller, it
may take more or less time to perform the instructions such that calling for a
restart may take different amounts of time. Accordingly, there is no
disclosure of a predetermined time period as claimed. Because none of the
references proposed to be combined with Ligman cures this deficiency, we
affirm the Examiner’s decision not to adopt the rejections involving Ligman.
Profio
The Requester argues that Profio was not properly considered because
the Examiner erred in determining that it does not teach an automatic restart.
See Req. App. Br. 12–13. We agree with the Examiner, however, that Profio
teaches that “the motor cannot be manually started during the predetermined
time period and the reference never discusses automatically restarting the
motor.” RAN 20. The Examiner continues by explaining that the “motor is
blocked from starting during the time period” and does not disclose “that the
motor is restarted after the predetermined time has elapsed.” Id. Further, we
agree with the Patent Owner that, as with the Commander Guide, the
Requester improperly equates a reset with a restart. PO Resp. Br. 7–8.
Profio makes clear that in the context of the predetermined time, “the
memory of recent operation or overload [prevents] a restart until the motor
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has had a predetermined time to cool.” Profio, col. 6, ll. 2–4 (emphasis
added). There is, however, no express disclosure of an automatic restart
after that predetermined cooling time. Accordingly, we affirm the
Examiner’s decision not to adopt the rejection involving Profio and Krohn,
which does not cure the deficiency in Profio.
Anastos
The Patent Owner points out that, unlike with Genheimer, the
Examiner properly concluded that Anastos teaches a switch, not a drive as
claimed. PO Resp. Br. 8. Both parties assert that Genheimer and Anastos
are similar and should be treated similarly. While we agree that they are
both similar, we side with the Patent Owner and the Examiner that Anastos
merely teaches a switch and not a drive. Accordingly, we agree with the
Examiner’s decision not to adopt rejections involving Anastos.
Wang
The Requester argues mainly that the Examiner erred in asserting that
Wang teaches away from a combination with the Commander Guide. Req.
App. Br. 16–18. As the Patent Owner argues, however, Wang deals with a
fan in an HVAC system and the shutdown alleged by the Requester is
merely a one second interrupt of the input signal to the fan motor that does
not stop the fan. PO Resp. Br. 11. The system of Wang then continues to
operate in this mode of repeated one second shutdowns until the error
corrects itself or an operator arrives to shut the system down entirely and
diagnose the problem. Supp. Collins Dec. ¶ 32. As the Examiner further
correctly notes, “Wang is directed to an HVAC fan, which would not stop if
the power were interrupted for one second” contrary to the language of
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claim 1 requiring a shutdown of the drive to stop the pump. RAN 38.
Accordingly, we agree that the Examiner properly determined that Wang is
insufficient to support an obviousness rejection.
Webber
The Requester asserts that the Examiner incorrectly refused to adopt
the proposed rejection involving Webber. Req. App. Br. 19–20. As the
Patent Owner correctly states, however, Webber teaches only shutting down
and does not teach restarting without repair by an operator. PO Resp. Br.
12. After conceding the Patent Owner’s general point, the Requester
counters that Webber “further provides for simple removal of power from
the pump when the pump draws excessive current without requiring the
pump to be repaired or replaced.” Req. App. Br. 19 (citing Webber’s
disclosure that “[p]ower is also removed from the pump 20 by the pump
motor fault detect portion if the pump 20 draws excessive current for more
than two seconds.” Col. 12, ll. 21-24.) We see nothing in this disclosure
that discusses a restart. The only thing disclosed in this passage is that
power is removed. Accordingly, we affirm the Examiner’s decision not to
adopt the rejection involving Webber.
Remaining Rejections
The remainder of the Requester’s arguments deal with art used in
rejections already addressed in relation to the Patent Owner’s appeal or
already addressed supra in connection with the Requester’s cross-appeal.
As such, the deficiencies noted apply and the rejections were properly not
adopted for the reasons already discussed.
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DECISION
For the above reasons, we REVERSE the Examiner’s decision to
reject claims 1–15 and we AFFIRM the Examiner’s decision not to adopt the
additional rejections proposed by the Requester, thus denying the
Requester’s cross-appeal. Accordingly, no pending claim remains under an
affirmed rejection.
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). In the event
neither party files a request for rehearing within the time provided in
37 C.F.R. § 41.79, and this decision becomes final and appealable under
37 C.F.R. § 41.81, a party seeking judicial review must timely serve notice
on the Director of the United States Patent and Trademark Office. See
37 C.F.R. §§ 90.1 and 1.983.

REVERSED; CROSS-APPEAL DENIED

msc

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PATENT OWNER:
QUARLES & BRADY LLP
ATTN: IP DOCKET
411 E. Wisconsin Avenue
Suite 2350
Milwaukee, WI 53202-4426

THIRD PARTY REQUESTER:
McCARTER & ENGLISH, LLP NEWARK
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102