Ex Parte Balsamo

Patent Trial and Appeal Board

Apr 2, 2015

12422286 (P.T.A.B. Apr. 2, 2015)

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.
12/422,286 04/12/2009 Joseph S. Balsamo 266146 6364
7590 04/02/2015
Phillip M. Pippenger
Miller, Matthias & Hull
One North Franklin Street, Suite 2350
Chicago, IL 60606
EXAMINER
TRUONG, THOMAS
ART UNIT PAPER NUMBER
2834
MAIL DATE DELIVERY MODE
04/02/2015 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
____________

Ex parte JOSEPH S. BALSAMO
__________

Appeal 2013-005988
Application 12/422,286
Technology Center 2800
____________

Before TERRY J. OWENS, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1–20. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellant’s invention is directed to a system and method of
harnessing and distributing electrical power from alternative power sources
(Spec. ¶ 1; claims 1, 12). Appellant discloses harnessing energy from the
fitness machines in a health equipment facility and distributing that energy
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for use or storage by the health equipment facility (Spec. ¶ 4). Any excess
energy is sent to the electrical grid. Id.
Claims 1 and 12 are illustrative:
1. A system for harnessing and distributing electrical power from a
fitness machine located in a building and operated by a human or animal
operator, the system comprising:
an electrical power generator coupled to the fitness machine for
generating electrical power in response to an interaction of the operator with
the fitness machine;
an energy storage device capable of storing at least some of the
generated electrical power; and
a power controller adapted for accepting input of generated electrical
power from the power generator, the power controller distributing the
generated electrical power among one or more of the energy storage device,
a building power distribution system, and a power grid external to the
building, wherein the power grid supplies power to the building power
distribution system.

12. A method for harnessing and distributing electrical power from
a fitness machine located in a building and operated by a human or animal
operator, the method comprising:
generating electrical power in response to an interaction of the
operator with the fitness machine;
receiving an input of the generated electrical power;
assessing power consumption requirements for the building at a
particular point in time; and
based on the assessment, distributing the generated electrical power among
an energy storage device, a building power distribution system, and a power
grid external to the building, wherein the power grid supplies power to the
building power distribution system.

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Appellant appeals the following rejections:
1. Claims 1, and 4–6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks (US 2009/0271336 A1, published Oct. 29,
2009) in view of Mulenburg (US 5,616,104, issued Apr. 1, 1997).
2. Claims 2 and 3 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks in view of Mulenburg and Janky (US
7,161,254 B1, issued Jan. 9, 2007).
3. Claims 7–9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks in view of Mulenburg and Culp (US
4,916,328, issued Apr. 10, 1990).
4. Claims 10 and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks in view of Mulenburg and Pagliosotti (US
7,911,075 B2,issued Mar. 22, 2011).
5. Claims 12 and 15–18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks in view of Culp.
6. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks in view of Culp and Vasilovich (US
7,504,737 B2, issued Mar. 17, 2009).
7. Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Franks in view of Culp and Pagliosotti.

Appellant’s arguments focus on the subject matter of independent claims
1 and 12 only (Br. 9–12). The rejection of the dependent claims 2–11 and
13–20 will stand or fall with our analysis of the rejection of the independent
claims from which they depend.

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FINDINGS OF FACT AND ANALYSES
Claim 1
The Examiner finds that Franks teaches an apparatus as recited in
claim 1, except for a power controller adapted for accepting input of
generated electrical power from the power generator, the power controller
distributing the generated electrical power among one or more of the energy
storage devices (Final Act. 2–3). The Examiner finds that Mulenburg
teaches a power controller 100 adapted for accepting input of generated
electrical power from the power generator 98, the power controller 100
distributing the generated electrical power among one or more of the energy
storage devices 104 (Final Act. 3). The Examiner concludes that it would
have been obvious to modify Franks to have Mulenburg’s power controller
adapted for accepting input of generated electrical power from the power
generator and distributing the power to one or more electrical storage
devices in order to control and maintain the turntable RPM as well as levels
of torque delivered by pedal mechanism (Final Act. 3). The Examiner
further finds that one of ordinary skill in the art would have known that
using a controller would simplify the controlling mechanism by avoiding
hardwiring of the components and a controller would have increased the
flexibility of adding or reducing components of the device without
substantially increasing or decreasing the amount of circuit wiring (Final
Act. 3). The Examiner determines that using a controller in Franks’ device
would have made it easier to distribute power among different entities in a
system (Ans. 7).
Appellant argues that the Examiner’s reason for modifying Franks to
have Mulenburg’s power controller based upon maintaining the turntable
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RPM is irrelevant to Franks, because Franks’ apparatus does not include a
turntable (Br. 9). We agree with Appellant that that particular reason is
faulty. However, the Examiner provides another reason for the combination
that is based upon combining Mulenburg’s controller to make Franks’
device easier to distribute power and more versatile when adding or
removing components (Final Act. 3; Ans. 7).
Appellant contends that using a controller would not have made
Franks’ device simpler because using a controller includes complexities such
as the need for decisions, control logic multiplexing and other complications
that arise when running a single input to multiple outputs (Br. 9).
Appellant’s argument fails to provide any evidence to substantiate this
argument that the device’s complexity would have created further
complications not simplifications. Appellant’s argument does not address
the Examiner’s finding that the simplification arises from having a control
mechanism that makes it easier to add or remove components to the system
with changing the system (Final Act. 3; Ans. 7).
The Examiner further concludes that one of ordinary skill in the art
would have modified Franks’ device using Mulenburg’s power controller
because using a controller makes it easier to distribute power among
different entities in a system (Ans. 7). Appellant’s argument does not
address this reason for modifying Franks with Mulenburg’s power
controller.
As we understand the rejection, the Examiner conclusion is based
upon the premise that the ordinarily skilled artisan would have known that
using a controller makes it easier to distribute power. Indeed, Franks
teaches that “when electrical power 205 from on-site energy source 215 is
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insufficient to fully power environmentally-friendly fitness center 786,
additional electrical power may preferably be obtained from utility company
270” (Franks ¶ 51) (emphasis added). Franks further teaches that “when on-
site energy source 215 generates a surplus of electrical power 205, such
surplus of electrical power 205 may preferably be sent to utility company
270” (id. )(emphasis added). In other words, Franks teaches that the output
of the on-site electrical generator must be monitored to determine when to
divert electricity to or receive electricity from the grid. We agree with the
Examiner that it would have been obviously easier to use a controller to
monitor the electrical usage and output, and to determine when to divert
electricity in Franks’ system to particular entities, such as the grid, storage
systems or for local immediate use. See KSR Int’l Co. v. Teleflex Inc., 550
US 398, 421 (2007) (“A person of ordinary skill is also a person of ordinary
creativity, not an automaton.”).
Appellant further argues that the Examiner has improperly interpreted
on page 14 of the Final Action the claim phrase “the power controller
distributing the generated electrical power among one or more of the energy
storage device, a building power distribution system, and a power grid
external to the building” as only requiring distribution to one of the three
entities (Br. 9–10). Appellant contends that the claim as correctly construed
requires that the controller is adapted to distribute among three destinations
and that at any given time will be distributing to one or more of the
destinations (Br. 10).
As found by the Examiner, the claim recites that the power controller
distributes the generated electrical power “among one or more” of the three
listed places. While the claim may include distributing the electrical energy
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to all three places (i.e., storage, grid, and on-site building power
distribution), the claim language plainly includes selecting only one of the
places for distribution of the electrical energy. Appellant’s argument is not
persuasive.
On this record, we affirm the Examiner’s § 103 rejection over Franks
in view of Mulenburg.

Claim 12
The Examiner finds that Franks teaches the method of claim 12,
except for the step of assessing power consumption requirements for the
building at a particular point in time and, based on the assessment,
distributing the generated electrical power (Final Act. 9). The Examiner
finds that Culp teaches assessing power consumption requirements for the
building at a particular point in time and based upon that assessment
distributing generated electricity (Final Act. 9–10). The Examiner concludes
that it would have been obvious to modify Franks’ method by assessing
power consumption requirements for the building at a particular point in
time and, based on that assessment, distributing the generated electrical
power, as taught by Culp, to assure proper power consumption maintenance
without abrupt discontinuities (Final Act. 10).
Appellant argues that Culp fails to teach distributing the electrical
energy to an energy storage device, a building power distribution system,
and a power grid external to the building based upon the assessment of the
building’s energy (Br. 11–12). Appellant contends that Culp teaches that the
energy for the building comes from the electrical grid, so it would make no
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sense to take power from the grid and put the same power back on the grid
(Br. 12).
Appellant’s arguments attack the references individually instead of
addressing what the combined teachings would have suggested to the
ordinarily skilled artisan. In re Keller, 642 F.2d 413, 425 (CCPA 1981). In
the present appeal, the Examiner relies on Franks to teach distributing
electrical energy produced by a fitness center user to power the fitness center
building, to store the energy in batteries, or to send the excess power back to
the grid. As we understand the Examiner’s rejection, the Examiner is not
proposing to bodily incorporate all of Culp’s method steps into Franks’
method. Rather, the Examiner relies on Culp to teach that it was known to
take an assessment of the building to determine how the power should be
distributed. We find that Franks’ disclosure in paragraph 51 that electrical
power is sent to various locations to meet electrical demands indicates that
Franks would have suggested taking an assessment of the various electrical
demands, including the electrical demand of the fitness center building, to
determine how to distribute the fitness center generated energy. Franks
suggests the disputed step because it would not be possible to determine
where the electrical needs exists without performing an assessment.
Therefore, the teachings of Franks and Culp, as a whole, would have
suggested assessing power consumption requirements for the building at a
particular point in time and then using that information to distribute the
generated electrical power among an energy storage device, a building
power distribution system, and a power grid external to the building as
recited in claim 12.
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Appellant argues that the Examiner’s reason for modifying Franks
with Culp’s teachings is to avoid abrupt discontinuities in power (Br. 12).
Appellant argues that Culp’s abrupt discontinuities in power are caused by
the load shedding in Culp which is not a problem in Franks. Id.
In response to these arguments, the Examiner finds that every system
would need a power conservation/consumption process in order to keep
electrical power at a predetermined level (Ans. 10). The Examiner finds that
such a desire would have motivated one of ordinary skill in the art to modify
Franks’ method by distributing the generated power by adding or shredding
the power based on the need of the system to ensure proper consumption as
taught by Culp. Id. Appellant does not respond to these findings of the
Examiner. Moreover, as noted above, we find the Examiner relies on Culp
to teach the steps of assessing and distributing the electrical energy based on
the electrical needs of a building. We agree with the Examiner that one of
ordinary skill would have had a reason to modify Franks’ method to include
a step of assessing and distributing the electrical energy based on the
electrical needs of the building because such steps would have to be
performed in order for Franks to know how to distribute the electrical energy
produced in the fitness center.
On this record, we affirm the Examiner’s § 103 rejection of claim 12
over Franks in view of Culp.
In light of our affirmance of the § 103 rejections of claims 1 and 12,
we affirm the Examiner’s §103 rejections of the dependent claims 2–11 and
13–20 for the same reasons.

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DECISION
The Examiner’s decision is affirmed.
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).
ORDER
AFFIRMED
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