Ex Parte Asenjo et al

Patent Trial and Appeal Board

Nov 9, 2017

14087977 (P.T.A.B. Nov. 9, 2017)

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.
14/087,977 11/22/2013 JuanAsenjo 2013P-162-US/ALBRP765US 7825
42981 7590 11/14/2017
ROCKWELL AUTOMATION / AT&W
ATTENTION: Linda H. Kasulke, E-7F19
1201 SOUTH SECOND STREET
MILWAUKEE, WI 53204
EXAMINER
HUNTLEY, MICHAEL J
ART UNIT PAPER NUMBER
2121
NOTIFICATION DATE DELIVERY MODE
11/14/2017 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):
hmckee@thepatentattomeys.com
raintellectu alproperty @ ra.rockwell .com
docket @ thepatentattorney s. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUAN ASENJO, JOHN STROHMENGER, STEPHEN
NAWALANIEC, BRADFORD H. HEGRAT, JOSEPH A. HARKULICH,
JESSICA LIN KORPELA, JENIFER RYDBERG WRIGHT, RAINER
HESSMER, JOHN DYCK, EDWARD ALAN HILL, and SAL CONTI
Appeal 2017-0069021
Application 14/087,977
Technology Center 2100
Before MAHSHID D. SAADAT, DENISE M. POTHIER, and
CATHERINE SHIANG, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
1 Throughout this opinion, we refer to (1) the Final Action (Final Act.)
mailed July 13, 2016, (2) the Advisory Action (Adv. Act.) mailed September
20, 2016, (3) the Appeal Brief (App. Br.) filed December 2, 2016, (4) the
Examiner’s Answer (Ans.) mailed February 1, 2017, and (5) the Reply Brief
(Reply Br.) filed March 24, 2017.
Appeal 2017-006902
Application 14/087,977
STATEMENT OF THE CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—34. App. Br. 4. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm in part.
Invention
Appellants’ invention relates to a
A cloud-based virtualization generation service [that]
collects industrial-automation system-related data from multiple
industrial automation systems of multiple industrial customers
for storage and analysis on a cloud platform. A virtualization
management component analyzes the data and generates a
virtualized industrial automation system of the industrial
automation system based on the analysis results .... The
virtualization management component receives user
interactions with the virtualized industrial automation system to
facilitate remotely interacting with and/or controlling the
industrial automation system and/or generates corresponding
control signals that it sends to the industrial automation system
to facilitate controlling operation of the industrial automation
system. The virtualization management component also
customizes a user's view of the virtualized industrial automation
system based on user's role, authorization, or location.
Spec., Abstract.
Claim 1 is reproduced below with emphasis:
1. A system, comprising:
a memory that stores computer-executable components;
a processor, operatively coupled to the memory, that
executes computer-executable components, the computer-
executable components comprising:
a collection component configured to collect a
subset of industrial data from a set of industrial devices
2 The real party of interest is listed as Rockwell Automation Technologies,
Inc. App. Br. 2.
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Application 14/087,977
of an industrial automation system and store the
industrial data in a cloud based data store on a cloud
platform, wherein the industrial automation system is
communicatively coupled to the cloud platform via a
public network; and
a virtualization management component
configured to:
generate a virtualized industrial automation
system that corresponds to the set of industrial
devices of the industrial automation system, based
on a result of an analysis of the subset of industrial
data, and
remotely control operation of the set of
industrial devices over the public network in
response to an interaction with the virtualized
industrial automation system.
App. Br. 31 (Claims App’x).
The Examiner relies on the following as evidence of unpatentability:
Farchmin
Baier
Agrusa
Staggs
Buchdunger
US 2004/0148039 A1
US 2009/0088875 A1
US 2009/0210814 A1
US 2010/0257228 A1
US 2013/0211547 A1
July 29, 2004
Apr. 2, 2009
Aug. 20, 2009
Oct. 7,2010
Aug. 15, 2013
(field Feb. 13,2013)
Ars Technica, Windows 7 Themes: how to unlock them or create your
own, dated November 12, 2009, available at
http://arstechnica.eom/information-teehnology/2009/l 1/unlock-hidden-
windows-7-themes/ (last visited November 2, 2017) (“Ars Technica”).
Recursion Software, Inc., A state-of-the-art solution that bring
mobility to SCADA alarms, dated August 29, 2012, available at
http://www.emsenergyautomation.com/brochures/scada.pdf (last visited
November 2, 2017) (“Recursion”).
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Application 14/087,977
The Rejections
Claim 15 is rejected under 35 U.S.C. § 112(b) or 12 (pre-AIA). Final
Act. 3.
Claims 1—8, 12, 17—23, 27, and 31—34 are rejected under 35 U.S.C.
§ 103 as unpatentable over Agrusa and Staggs. Final Act. 4—19.
Claims 9 and 24 are rejected under 35 U.S.C. § 103 as unpatentable
over Agrusa, Staggs, and Farchmin. Final Act. 19—21.
Claims 10 and 25 are rejected under 35 U.S.C. § 103 as unpatentable
over Agrusa, Staggs, and Buchdunger. Final Act. 21—23.
Claims 11 and 26 are rejected under 35 U.S.C. § 103 as unpatentable
over Agrusa, Staggs, Farchmin,3 and Ars Technica. Final Act. 24—25.
Claims 13—15, 28, and 29 are rejected under 35 U.S.C. § 103 as
unpatentable over Agrusa, Staggs, and Recursion. Final Act. 25—28.
Claims 16 and 30 are rejected under 35 U.S.C. § 103 as unpatentable
over Agrusa, Staggs, and Baier. Final Act. 28—30.
THE INDEFINITENESS REJECTION
The Examiner determines claim 15 is indefinite. Final Act. 3.4
Appellants present no arguments for this rejection other than requesting the
rejection’s reversal based on entry of an after-final amendment. App.
3 Although Farchmin is not included in the rejection’s heading (Final Act.
24), claims 11 and 26 depend from claims 9 and 24 respectively. Because
claims 9 and 24 are rejected based on Agrusa, Staggs, and Farchmin (Final
Act. 19—21), we include Farchmin as part of the rejection for claims 11 and
26. This oversight is considered a harmless error.
4 The indefiniteness rejection has not been withdrawn. See Ans. 2
(indicating “[ejvery ground of rejection set forth in the Office action dated
July 13, 2016 from which the appeal is taken is being maintained.”)
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Br. 12. The amendment, however, has not been entered. Adv. Act. 1.
Based on the record, we summarily sustain this rejection. See Hyatt v.
Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that when
appellant fails to contest a ground of rejection, the Board may affirm the
rejection without considering its substantive merits); see also Manual of
Patent Examining Procedure (MPEP) § 1205.02, 9th ed. Rev. 07.2015
(November 2015) (“If a ground of rejection stated by the examiner is not
addressed in the appellant’s brief, appellant has waived any challenge to that
ground of rejection and the Board may summarily sustain it.”).
THE OBVIOUSNESS REJECTION OVER AGRUSA AND STAGGS
Claims 1—4, 6—8, 12, and 17—19
Regarding independent claim l,5 the Examiner finds Agrusa teaches
many of its limitations, including a virtualization management component
configured to generate a virtualized industrial automation system that
corresponds to the set of industrial devices. Final Act. 4—6 (citing Agrusa
115, 37, 47). The Examiner turns to Staggs in combination with Agrusa to
teach the recited feature of a component configured to “remotely control
operation of the set of industrial devices over the public network in response
to an interaction with the virtualized industrial automation system.” Final
Act. 7 (citing Staggs H 2, 34).
Appellants argue Staggs does not teach the above quote limitation.
App. Br. 12—15. Specifically, Appellants contend Staggs’ real-time
functions control devices and are allocated to the local environment, thus
5 Claims 1—4, 6—8, 12, and 17—19 are argued together. We select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(l)(iv).
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failing to teach a component for remotely controlling industrial devices’
operation over a public network as recited in claim 1. Id. at 13—15 (citing
Staggs 23—24, 27—29, 35). Appellants emphasize that only non-real time
functions are performed on the cloud and over the public network. Id. at 15.
ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Agrusa and Staggs collectively would have taught or suggested “a
virtualization management component configured to . . . remotely control
operation of the set of industrial devices over the public network in response
to an interaction with the virtualized industrial automation system”?
ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of claim 1. We agree with the Examiner that an “operation of the
set of industrial devices” does not exclude non-real time functions. See Ans.
4. In particular, this recited “operation of the set of industrial devices” does
not distinguish between a real-time operation and non-real time operation.
App. Br. 31 (Claims App’x). Instead, the recited operation is an “operation
of the set of industrial devices” and is controlled remotely by a virtualization
management component. Id.
Turning to the rejection and as explained by the Examiner, Staggs
teaches various features performed by a computing cloud. Final Act. 7
(citing Staggs 2, 34); Ans. 4—5 (citing Staggs 32—34, 36). For
example, the Examiner discusses Staggs teaches cloud 108 performs
scheduling and simulation operations. Ans. 4; see also Staggs Tflf 25, 29.
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Specifically, Staggs teaches non-real time functions 206 (e.g., training real
time functions 204 or simulating products created by real time functions
204) are used to form or support real time functions 204, which includes
controlling devices, such as actual mechanical systems. Staggs Tflf 23—25,
28, Fig. 2. As such, Staggs teaches and suggests some non-real time
functions are involved in remotely controlling industrial device operations
(e.g., forming real-time functions) over the public network in response to
analyzing industrial data (e.g., interacting with a virtualized industrial
automation system). See id. Although Staggs states high-level functions,
such as scheduling, may be a function “that is not directly tied to the actual
operation of a piece of machinery” {id. 129), this passage at least suggests
controlling a scheduling operation of machinery (e.g., remotely controlling a
scheduling operation of industrial devices over the public network) in
response to an interaction with a virtualized industrial automation system.
Additionally, Staggs states manufacturing processes are carried out at
block 410 using data and processes in cloud 108 and local environment 402
without specifying what manufacturing processes. Staggs 34, Fig. 4.
Similarly, claims 1,7, 10, and 14 of Staggs recite an industrial automation
system configured to use the computing cloud’s data and processes to form
part of the manufacturing execution system (MES), which is used to control
basic automated systems 304. Staggs 16, 33, Fig. 3. As such, Staggs at
least suggests a cloud is used to control the operation of automated systems
(e.g., MES) over the public network. See id., Fig. 3.
Lastly, Staggs further teaches uploading data of real-time information
related to processes to cloud 108, applying models to identify potential
equipment failure, and allowing for proactive, preventative equipment
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maintenance. Staggs 132. This passage further suggests to one skilled in
the art using a cloud for proactively maintaining equipment (e.g., remotely
controlling industrial device operations) so as to prevent equipment failure.
See id.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and dependent claims 2-4, 6—8, 12,
and 17—19, which are not separately argued.
Claims 5, 20—23, 27, and 31—34
Independent claims 20 (a method) and 32 (a non-transitory computer-
readable medium) recite similar limitations to that disputed for claim 1.
App. Br. 34—35, 38 (Claims App’x). These claims are argued separately, but
the arguments are alike. Compare App. Br. 15—20 with id. at 12—15.
Similarly, dependent claims 5, 22, and 33 are discussed in the separate
section, but Appellants contend Agrusa and Stagg do not teach its limitations
because these references do not disclose the above disputed limitations in
claims 1, 20, and 32. App. Br. 20—21. For reasons similar to those
discussed above, Appellants have not persuaded us of error in the rejection
of independent claims 20 and 32 and dependent claims 5, 21—23, 27, 31, 33,
and 34, which are not separately argued.
OBVIOUSNESS REJECTION OVER AGRUSA, STAGGS,
AND FARCHMIN
Dependent claims 9 recites “the virtualization management
component is further configured to generate a customized view of the
virtualized industrial automation system for display on a communication
device based on a determined distance of the communication device’s user
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to an industrial device of the set of industrial devices.” App. Br. 32 (Claims
App’x). The Examiner finds (1) Agrusa teaches the virtualization
management component is configured to generate a customized view for
display as recited in claim 9 and (2) Farchmin combined with Agrusa teach
generating the customized view based on a determined user distance to an
industrial device. Final Act. 19—21 (citing Agrusa 54, 89 and Farchmin
3—20, 98); Ans. 6—8 (further citing Agrusa 195, Figs. 19—20 and
Farchmin H 3—20, 98).
Referring to the previous assertions, Appellants repeat that Agrusa
and Stagg do not teach every feature of claims 1 and 20 and that Farchmin
does not “make up for the aforementioned deficiencies.” App. Br. 21. We
are not persuaded for the above reasons. Appellants also argue Farchmin
teaches controlling machine operations as a function of an employee’s
location but does not teach using the employee’s location for customizing a
display. App. Br. 21—23.
ISSUE
Under § 103, has the Examiner erred in rejecting claim 9 by finding
that Agrusa, Staggs, and Farchmin collectively would have taught or
suggested “the virtualization management component is further configured
to generate a customized view of the virtualized industrial automation
system for display on a communication device based on a determined
distance of a user of the communication device to an industrial device of the
set of industrial devices”?
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ANALYSIS
Based on the record, we agree with Appellants that the presented
combination does not teach the above recitation. Agrasa teaches a
virtualization management component configured to generate a customized
view of an automation system for display on a communication device. Final
Act. 19—20 (citing Agrusa 1 88, Fig. 17). Additionally, the Examiner points
to Staggs’s Figures 19 and 20, which show a display view of an automation
system. See Agrusa, Figs. 19—20, reproduced in Ans. 6—7.
However, as the Examiner finds, Agrusa does not disclose this view is
based on a determined, user distance to an industrial device. Final Act.
20—21. In the Answer, the Examiner appears to modify this position,
indicating that Agrusa teaches orienting values so they are visible to the user
and maintaining proximity of the values to items (e.g., equipment 1905) the
values are intended to indicate. See Agrusa 195, cited in Ans. 7; see also
id., Figs. 19 and 20.
Although this teaches orienting values proximate to equipment so the
user can view them (e.g., customizing the view), we disagree that this further
teaches the display is customized to a “view of what a user would see if the
user were standing at the selected location” as the Examiner finds. Ans. 7.
That is, the values in Agrusa are oriented based on whether the values will
be visible to the user, such orienting values horizontally and avoiding
overlapping. See Agrusa, Figs. 19 and 20. There is no discussion that the
values are based on a user distance to any particular industrial device. See
id. 195. Farchmin additionally teaches determining when a user’s location
is within a machine zone (e.g., Zlm—Z12) and halting operations when a
user is within a specific zone in order to avoid potentially hazardous
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conditions. Farehmin || 15, 98, Fig. 1. As such, Farchmin teaches
controlling machine operations based on a user’s distance to equipment (see
id.) but does not sufficiently relate a user’s distance to a customized view,
such that the view for display is generated based on a user’s distance to an
industrial device as recited. See App. Br. 23—24.
For the foregoing reasons, Appellants have persuaded us of error in
the rejection of dependent claim 9 and claim 24, which recites
commensurate limitations.
OBVIOUSNESS REJECTION OVER AGRUSA, STAGGS,
AND BUCHDUNGER
Dependent claim 106 recites “the collection component is further
configured to: receive, over the public network from a newly added
industrial device, an indication of the newly added industrial device being
added to the industrial automation system, and inform at least one industrial
device of the set of industrial devices over the public network of the newly
added industrial device being added to the industrial automation system.”
App. Br. 32 (Claims App’x). The Examiner finds (1) Agrusa and Staggs
teach receiving data over a public network and (2) Buchdunger combined
with Agrusa and Staggs teach the collection component is configured to
receive an indication of newly added industrial devices being added to an
automation system and to inform an industrial device over the public
network of the newly added device. Final Act. 21—24 (citing Agrusa |40,
Fig. 1 and Buchdunger || 14, 45); Ans. 9.
6 Claims 10 and 26 are argued together. App. Br. 24—26. We select claim
10 as a representative claim. See 37 C.F.R. § 41.37(c)(l)(iv).
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Referring to the previous assertions, Appellants repeat that Agrasa
and Stagg do not teach every feature of claims 1 and 20 and that Buchdunger
does not “make up for the aforementioned deficiencies.” App. Br. 24—25.
We are not persuaded for the above reasons. Appellants also argue
Buchdunger discloses field access unit 4 that scans for new devices over
network buses is local to the devices and thus does not receive an indication
of newly added industrial devices over the public network as recited. App.
Br. 25—26. Additionally, Appellants assert that sending a report to web
server 6 does not inform a device of the newly added device over the public
network as recited. App. Br. 26.
ANALYSIS
Based on the record, we are not persuaded. As the rejection is
formulated, Buchdunger teaches a collection component that receives an
indication of a newly added industrial device to an industrial automation
system from the newly added device. Final Act. 22 (citing Buchdunger
145). Specifically, Buchdunger teaches field access unit 4 scans for field
devices using a listener function and, when network changes are detected in
network 9, a report is sent to web server 6 over Internet 7 (e.g., a public
network). Buchdunger || 38, 45, sole Figure; see also Ans. 9. We thus
disagree with Appellants that Buchdunger fails to receive an indication of
newly added devices over a public network as recited.
Also, once receiving a report concerning changes, Buchdunger
teaches web server 6 connects with field access unit 4 and makes the virtual
image new field device (e.g., 2) available through a cloud-computing web
service. Buchdunger 145, sole Figure. As such, Buchdunger further
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teaches informing at least one industrial device over the public network of
the newly added industrial device being added to the system. See id.; see
also Ans. 9. Moreover, Agrusa teaches a centralized data collection and
reporting system that communicates with individual controllers (e.g., 110) to
store and process data using servers over a cloud-computing environment
and via the Internet (e.g., a public network). See Agrusa Tflf 39-40, Fig. 1,
cited in Final Act. 22. When combined with Buchdunger’s system, the
references teach and suggest the recited “collection component configured
to: receive, over the public network from a newly added industrial device, an
indication of the newly added industrial device . . . and inform at least one
industrial device of the set of industrial devices over the public network of
the newly added industrial device” as recited in claim 10.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of claim 10 and claim 25, which recites commensurate
limitations.
THE REMAINING OBVIOUSNESS REJECTIONS
Claims 11, 13—16, 26, 28—30 are rejected based on Agrusa, Staggs,
and at least one other reference. Final Act. 24—30. For these rejections,
Appellants refer to the arguments presented for independent claims 1, 20,
and 32 and contend the additionally cited references do not teach the alleged
deficiencies. App. Br. 26—29. As previously stated, we are not persuaded
and refer to the discussions above for details. Accordingly, we sustain the
rejections of claims 13—16 and 28—30. On the other hand, we will not
sustain the rejection of claims 11 and 26 due to their dependency on claims 9
and 24 respectively. App. Br. 32—33, 36 (Claims App’x).
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DECISION
We affirm the Examiner’s rejection of claim 15 under 35 U.S.C.
§ 112(b) or §112,12.
We affirm the Examiner’s rejections of claims 1—8, 10, 12—23, and 25,
27-34 under 35 U.S.C. § 103.
We reverse the Examiner’s rejections of claims 9, 11, 24, and 26
under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED IN PART
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