Ex Parte Bartos et al

Patent Trial and Appeal Board

Feb 22, 2017

12853643 (P.T.A.B. Feb. 22, 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.
12/853,643 08/10/2010 Ronald P. Bartos 028460-8171-US02 6248
104408 7590 02/24/2017
Michael Best & Friedrich LLP (Regal-Beloit)
100 East Wisconsin Avenue
Suite 3300
Milwaukee, WI 53202
EXAMINER
LETTMAN, BRYAN MATTHEW
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
02/24/2017 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD P. BARTOS, BRIAN T. BRANECKY,
HOWARD RICHARDSON, WILLIAM LOUIS MEHLHORN,
and ANDREW WILLIAM PHILLIPS
Appeal 2015-003973
Application 12/853,643
Technology Center 3700
Before JOHN C. KERINS, WILLIAM A. CAPP, and
GEORGE R. HOSKINS, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1—24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-003973
Application 12/853,643
THE INVENTION
Appellants’ invention relates to a controller for a swimming pool
pump motor. Spec, 3,4. Claim 1, reproduced below with the key terms in
controversy italicized, is illustrative of the subject matter on appeal.
1. A pumping apparatus for a jetted-fluid system
comprising a vessel for holding a liquid, a drain, and a
return, the pumping apparatus being connectable to a
power source and comprising:
a pump including an inlet connectable to the drain,
and an outlet connectable to the return, the pump
adapted to receive the liquid from the drain and jet the
liquid through the return;
a motor coupled to the pump to operate the pump;
a sensor connectable to the power source and
configured to generate at least one signal having a
relation to a parameter of the motor;
a switch coupled to the motor and configured to
control the operation of the motor and the pump; and
a microcontroller coupled to the sensor and the
switch, the microcontroller configured to generate a
mathematical derivative value based on the at least one
signal, and to control the operation of the motor and the
pump based on the mathematical derivative value,
wherein the microcontroller is configured to control
the switch to shut down the motor and the pump when
the microcontroller determines that the mathematical
derivative value is indicative of a reduction in the flow
of the liquid through the pump and when the
microcontroller determines that the reduction in the
flow of the liquid through the pump is indicative of a
suction entrapment event.
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Appeal 2015-003973
Application 12/853,643
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Noth US 4,998,097 Mar. 5, 1991
Matsumoto US 5,977,732 Nov. 2, 1999
McDonough US 6,390,781 B1 May 21, 2002
Schuchmann US 2004/0090197 A1 May 13, 2004
Shimizu US 6,906,482 B2 June 14, 2005
Hirai US 2006/0220604 A1 Oct. 5, 2006
The following rejections are before us for review:
1. Claims 1—5 and 8—22 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over McDonough, Schuchmann, and Hirai, as evidenced
by Shimizu.
2. Claims 6 and 23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over McDonough, Schuchmann, and Hirai, as evidenced by
Shimizu, and Matsumoto.
3. Claims 7 and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over McDonough, Schuchmann, and Hirai, as evidenced by
Shimizu, and Noth.
4. Claims 1—24 are rejected under 35 U.S.C. § 101 as being directed
to non-statutory subject matter, because the claims do not amount to
significantly more than an abstract idea.1
1 The Examiner entered the Section 101 rejection as a New Ground of
Rejection, for the first time, in the Answer. Ans. 11—15; see 37 C.F.R.
§ 41.39(a)(2)(2016). In response to the New Ground of Rejection,
Appellants elected to maintain the appeal by filing a reply brief. Reply
Br. 2-9; see 37 C.F.R. § 41.39(b)(2).
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Appeal 2015-003973
Application 12/853,643
OPINION
Unpatentability of Claims 1—5 and 8—22
Claim 1
The Examiner finds that McDonough discloses the invention
substantially as claimed except for a sensor to sense a motor parameter and a
controller that controls the motor based on the mathematical derivative of
the motor parameter. Final Action 2-4. The Examiner relies on
Schuchmann as disclosing a sensor that senses a motor parameter. Id. at 3.
The Examiner relies on Hirai as disclosing a microcontroller that controls a
motor based on a mathematical derivative value. Id. at 4. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time the invention was made to modify McDonough with
Schuchmann and Hirai. Id. at 4—5. According to the Examiner, a person of
ordinary skill in the art would have done this to detect torsional and
mechanical disturbances, to sense that an obstruction exists, and stop the
motor to allow for release of the object causing the obstruction. Id.
Appellants traverse the rejection by noting deficiencies in
McDonough and Schuchmann that have previously been conceded by the
Examiner. Appeal Br. 12. Appellants then argue that Hirai fails to cure
these deficiencies. Id. Specifically, Appellants argue that Hirai is directed
to a situation where the rotational speed of the motor is decelerated by
pinching. Id.
However, the reduction in the speed, or deceleration, of the
motor when an object is pinched in a window is not the same,
or even similar to, generating a mathematical derivative value
of an input parameter of a motor and shutting down a motor and
pump when the mathematical derivative value is indicative of a
reduction in the flow of a liquid through the pump and a suction
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Appeal 2015-003973
Application 12/853,643
entrapment event. In fact, the detection described by Hirai is
especially unsuitable for such a control technique.
Id. at 13 (emphasis omitted).
In response, the Examiner states that McDonough teaches a pumping
apparatus for a swimming pool that has a controller that shuts down the
pump motor if it determines that something is obstructing the pump inlet.
Ans. 16. The Examiner points out that McDonough has a switch that
controls the motor and a microcontroller that is coupled to a sensor and the
switch. Id.
The microcontroller controls the pump motor by causing the
switch to shut down the pump motor when it determines that a
signal indicates a reduction in water flow through the pump
because that indicates that something is obstructing the pump
inlet.
Id. The Examiner states that Schuchmann teaches a system with a sensor
connected to a power source for the pump motor that senses a change in a
parameter of the motor and produces a signal relating to the parameter. Id.
With respect to Hirai, the Examiner states:
Hirai teaches a system comprising a microcontroller which
generates a mathematical derivative value based on at least one
signal, and controls a motor based on the mathematical
derivative value. The microcontroller controls the motor by
causing a switch to shut down the motor when it determines
that the mathematical derivative value indicates an obstruction.
Id. at 17.
More particularly, in response to Appellants’ argument that Hirai is
unsuitable for reacting to a suction entrapment event, the Examiner states
that McDonough already teaches monitoring a parameter to determine
reduction in flow. Id. Consequently, according to the Examiner, Hirai is
only used for its teaching that a motor parameter rate of change is used. Id.
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Application 12/853,643
at 17—18. The Examiner explains that whether Hirai’s derivative value
indicates an increasing or a decreasing rate of change is not significant as
Appellants do not claim whether the rate increases or decreases. Id. In any
event, the Examiner takes the position that a person of ordinary skill in the
art would have been able to apply Hirai’s controller to properly monitor the
rate of change of a motor parameter in McDonough. Id.
In reply, Appellants accuse the Examiner of “cherry picking” key
words from the references for the purpose of piecing together an
obviousness rejection. Reply Br. 9. Appellants argue that the Examiner’s
modification “removes” McDonough’s suction entrapment mechanism and
then concludes that such removal destroys McDonough’s ability to detect a
suction entrapment event. Id. at 10.
If a reference is modified to remove the only component from a
device that performs a specific action, the modified device is no
longer operable to perform that action. If the device is then
relied upon to perform that action, the component that was
removed must be replaced with something that is also operable
to perform that action. If the something that replaces the
removed component is not operable to perform the action, the
modified device is necessarily not operable to perform that
action.
Id. Appellants accuse the Examiner of ignoring “basic logic” and engaging
in hindsight. Id.
McDonough is directed to a safety circuit that detects entrapment in a
swimming pool or spa system.
The invention provides a safety system including a pressure or
vacuum sensor and an associated safety circuit, which can be
connected with a spa control circuit in a tub, spa, or similar
system, which uses a pump to circulate water. Spas, hot tubs,
pools and similar systems are generally referred to herein as
spas. The spa control circuit implements the normal functions
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Application 12/853,643
required of a [modem] digital spa or pool control including
pump control, water flow detection and heat control. The safety
system rapidly detects conditions that are indicative of
entrapment brought about by a person being trapped or partially
trapped against the suction of the pump. When the safety
system detects entrapment, a signal is sent to the spa control
circuit and the pump is immediately shut off.
McDonough, col. 2,11. 52—65. It accomplishes this by sensing and
monitoring fluid pressure. McDonough employs microcontroller logic
circuitry to accomplish this result.
The microcontroller 82 provides a control signal to the spa
control circuit 26 through a transistor (Ql) 110. . . . The
microcontroller 82 applies a logic high signal when no
entrapment problem is detected. When an entrapment problem
is detected, a logic low signal is sent, the transistor 110 no
longer allows current to flow to the spa control circuit 26 and
the spa control circuit 26 shuts off the pump 20.
Id. col. 5,11. 13—25. McDonough’s system is based on signals obtained from
pressure sensors that monitor the flow of fluid in the spa.
When the pump 20 is turned on and begins pushing the water
through the spa system, water pressure is increased on the outlet
side of 42 of the pump 20 while the pressure level on the inlet
side 44 of the pump 20 decreases, represented by block 158.
A predetermined time after the pump is turned on, such as 2
seconds, the microcontroller 82 acquires the pressure level at that
time from the pressure sensor 70, via the differential amplifier
96. The microcontroller 82 stores that initial or first pressure
level, for example, in the microcontroller's random access
memory (RAM), for use as a baseline for future reference as is
represented by block 160.
After the baseline pressure level has been acquired, the
microprocessor 82 periodically reads the current pressure level
via the pressure sensor 70, for example, two to 500 times per
second. The current pressure level is compared to the baseline
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Application 12/853,643
pressure level previously stored as represented by block 162. ...
The microcontroller determines whether there has been a
decrease in the pressure level below the baseline as represented
by block 164. A decrease of or in excess of a predetermined
amount, such as a 20% decrease below the stored baseline, can
be used as an indication that an entrapment has occurred.
Id. col. 6,11. 11—47.
The issue that is presented to us is whether a person of ordinary skill
in the art would have found it obvious to modify McDonough’s suction
entrapment detection and motor shut-down system, which is based on
sensing and monitoring fluid pressure, with a system that is based on sensing
and monitoring a parameter of the pool motor. We resolve this issue in
favor of the Examiner’s position. In analyzing the situation presented here,
we ask whether the alleged improvement is more than the predictable use of
prior art elements according to their established functions and conclude that
it is not. See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). It is
well settled that when a patent “simply arranges old elements with each
performing the same function it had been known to perform” and yields no
more than one would expect from such an arrangement, the combination is
obvious. KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007), quoting
Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976). Similarly, “when a
patent claims a structure already known in the prior art that is altered by the
mere substitution of one element for another known in the field, the
combination must do more than yield a predictable result.” KSR, 550 U.S. at
416; United States v. Adams, 383 U.S. 39, 50—51 (1966).
As correctly found by the Examiner, McDonough teaches that it was
already known in the art relating to the control of electric motors to monitor
a condition (fluid pressure) and apply control logic to a detected change in
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Application 12/853,643
condition to shut down the motor. Similarly, Schuchmann and Hirai teach
that it was already known in the same art to sense a motor parameter and
apply control logic to a detected rate of change of a motor parameter. The
Examiner’s proposed combination merely substitutes one known sensing
system, a fluid pressure based system, for another known sensing system, a
motor parameter based system. Such merely entails substituting one known
element for another in the field to yield a predictable result. The same can
be said of monitoring a derivative, or rate of change, value rather than a
change in a static condition value.
We have considered Appellants’ other arguments, including that Hirai
is non-analogous art because it is not reasonably pertinent to the problem
solved by Appellants’ invention (Appeal Br. 15—18),2 and find them to be
without merit. We sustain the rejection of claim 1.
Claim 15
Claim 15 is an independent claim. Claims App. Appellants argue
claim 15 under a separate sub-heading. Appeal Br. 19—20. However, we are
unable to discern any meaningful distinction between the arguments
advanced against the rejection of claim 1 and the arguments summarized on
the sub-heading for claim 15.
Consequently, Appellants’ arguments under the sub-heading for
claim 15 do not apprise of error, and we sustain the rejection of claim 15 for
essentially the same reasons expressed above with respect to claim 1.
2 Hirai entails a control system for motors and, thus, is from the same field
of endeavor as Appellants’ invention and/or is reasonably pertinent to the
problem to be solved. See In re Bigio, 381 F.3d 1320, 1325-26 (Fed. Cir.
2004); In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992).
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Appeal 2015-003973
Application 12/853,643
Claims 2—5, 8—14, and 16—22
Claims 2—5 and 8 depend, directly or indirectly, from claim 1. Claims
App. Claim 9 is an independent claim, and claims 10-14 depend, directly or
indirectly, therefrom. Id. Claims 16—18 depend from claim 15. Id.
Claim 19 is an independent claim, and claims 20—22 depend therefrom. Id.
Appellants do not argue for the separate patentability of these claims apart
from arguments presented with respect to claims 1 and 15, which we have
previously considered. For the same reasons expressed above with respect
to claims 1 and 15, we sustain the Examiner’s rejection of claims 2—5, 8—14,
and 16-22. See 37 C.F.R. § 41.37(c)(l)(iv).
Unpatentability of Claims 6, 7, 23, and 24
Appellants do not argue for the separate patentability of claims 6, 7,
23, and 24 apart from arguments presented with respect to claims 1 and 15,
which we have previously considered. For the same reasons expressed
above with respect to claims 1 and 15, we sustain the Examiner’s rejection
of claims 6, 7, 23, and 24.
Non-Statutory Subject Matter, 35 U.S.C. § 101
In view of our decision to affirm the Examiner’s prior art rejections of
all pending claims, we do not reach the Examiner’s Section 101, non-
statutory subject matter, grounds of rejection. See 37 C.F.R. § 41.50(a)(1)
(The affirmance of the rejection of a claim on any of the grounds specified
constitutes a general affirmance of the decision of the Examiner on that
claim, except as to any ground specifically reversed).
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Application 12/853,643
DECISION
The decision of the Examiner to reject claims 1—24 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)(l)(iv).
AFFIRMED
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