Ex Parte Bryan et al

Patent Trial and Appeal Board

Sep 9, 2016

11761665 (P.T.A.B. Sep. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111761,665 06/12/2007
28395 7590 09/13/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Paul Stephen Bryan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
81157137 1397
EXAMINER
GONZALEZ, PAOLO
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
09/13/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL STEPHEN BRYAN, MATTHEW D. SMITH,
WILLIAM DAVID TREHARNE, and
SUSAN REBECCA CIKANEK
Appeal2014-007229
Application 11/761,665
Technology Center 3700
Before: LYNNE H. BROWNE, BEYERL Y M. BUNTING, and
BRENT M. DOUGAL, Administrative Patent Judges.
Opinion for the Board by DOUGAL, Administrative Patent Judge.
Opinion dissenting by BUNTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Final rejection of
claims 2, 5-8, 21-24, and 31-36. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm-in-part.
Appeal2014-007229
Application 11/761,665
CLAIMED SUBJECT MATTER
The claims are directed to a system for controlling a compressor.
Claim 21, reproduced below, is illustrative of the claimed subject matter:
21. A control system for a vehicle compressor that is operable
with a vehicle climate system comprising:
a first control portion being configured to assess an actual
temperature of a vehicle evaporator and a target temperature of
the vehicle evaporator for generating a first compressor speed
command signal in response to assessing the actual temperature
and the target temperature;
a second control portion including a pressure calibration
value and being configured to receive a pressure reading of the
climate system, to compare the pressure reading to the pressure
calibration value, to generate a second compressor speed
command signal if the pressure reading is greater than the
pressure calibration value; and
a controller device including data corresponding to at least
one compressor speed; the controller being configured to receive
the first compressor speed command signal and the second
compressor speed command signal and to transmit a control
signal to the vehicle compressor for causing the vehicle
compressor to operate at a commanded compressor speed based
on the first compressor speed command signal, the second
compressor speed command signal, and the data.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Doyama
Ebisu
Kurahashi
us 5,222,371
us 5,247,806
us 5,669,226
2
June 29, 1993
Sept. 28, 1993
Sept. 23, 1997
Appeal2014-007229
Application 11/761,665
REJECTIONS
Claims 24, 34, and 36 are rejected under 35 U.S.C. § 112 second
paragraph as being indefinite.
Claims 2, 5-8, 21-24, and 31-36 are rejected under 35 U.S.C. §103(a)
as being unpatentable over Ebisu and Kurahashi.
Claims 6 and 8 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Ebisu, Kurahashi, and Doyama.
OPINION
Preliminary Matters
Claims 31, 35, and 36 are objected to because of various informalities.
We do not address the merits of the objection because the Examiner's
objection is a petitionable matter-not an appealable matter. 37 C.F.R.
§§ 1.113(a), 1.181; see also MPEP § 2163.06(II) and MPEP § 706.01
("[T]he Board will not hear or decide issues pertaining to objections and
formal matters which are not properly before the Board.").
35 U.S.C. §112 Second Paragraph
The Examiner found that the phrase "at least" renders claims 24, 34,
and 36 indefinite. This is "because it is unclear whether the limitations
following the phrase are part of the claimed invention." Final Act. 3. The
Examiner further explains that "at least" could mean "one of' or "all of." Id.
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Application 11/761,665
Appellants counter that "at least" "requires that each of an ambient
temperature, humidity, and interior temperature must be present." Appeal
Br. 5.
It appears that the Examiner has interpreted the claim language "at
least" as if the claim set forth a Markush Group. Final Act. 9. This is not
Appellants intent. The plain language of these claims does not recite a
group, but rather recites a minimum of three required elements (i.e. ambient
temperature, humidity, and interior temperature). In the context of these
claims, Appellants argue sufficiently that the terminology "at least" merely
signals that other considerations, such as sun load, are not precluded by
these claims. Reply Br. 2. Thus, claims 24, 34, and 36 are not indefinite.
Accordingly, we do not sustain the 35 U.S.C. § 112, second paragraph
rejection.
35 U.S.C. §103(a)-Claim 21
Independent claim 21 includes, among other features, "a first control
portion being configured to assess an actual temperature of a vehicle
evaporator." The Examiner states that the room temperature detector 1 Oi of
Ebisu shows the above limitation because the "temperature detector 1 Oi is
located [in Figure 1] right after the evaporator (8i), thus, it is understood
that the temperature detector (1 Oi) is detecting the actual temperature of an
evaporator." Final Act. 4.
The Examiner further explains:
this temperature sensor is monitoring the temperature of the air
exiting the evaporator, and hence, the actual temperature of the
evaporator. It is noted that the room will be cold (sic) to the air
temperature exiting the evaporator; thus, this temperature sensor
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Application 11/761,665
is detecting the temperature of the room and at the same time
detecting the temperature of the evaporator since the room is
going to be cool[ ed] to the same temperature [as the] air that exits
the evaporator.
Id. at 16.
In addition, the Examiner asserts that Kurahashi also teaches
obtaining the actual temperature of the evaporator. Final Act. 6, 17. How
the Examiner is interpreting Kurahashi is not fully explained, but it is
believed to be the same as Ebisu as Kurahashi shows a temperature sensor
129 downstream of, and right after, the evaporator 110. Kurahashi Fig. 3.
Appellants argue that neither Ebisu nor Kurahashi disclose measuring
the actual temperature of the evaporator because ( 1) "Ebisu is silent
regarding the position of the temperature sensor 1 Oi in relation to the
evaporator 8i" and (2) "Ebisu expressly notes that the temperature detector
1 Oi detects the temperature of a room" and "not an actual temperature of an
evaporator." Appeal Br. 7 (citing Ebisu col. 4, 11. 30-35). Appellants
similarly argue that "Kurahashi teaches determining an actual temperature of
air as located downstream (or away) from the evaporator 110. One skilled
in the art would recognize that a temperature reading as recorded
downstream of an evaporator is not the same as an actual temperature of an
evaporator." Id. at 8; see Kurahashi col. 10: 12-14 ("The temperature sensor
129 detects the temperature of air at a place downstream of the heat
exchanger 110 and upstream of the mix damper 112.").
Appellants further argue that the specification "discloses the presence
of an evaporator temperature sensor 24 positioned within the evaporator 22
for providing the actual evaporator temperature." Appeal Br. 8-9 (citing
Specification p. 4, 11. 1-3 and Fig. 1 ). Appellants argue that this example in
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Application 11/761,665
the Speciation shows physical contact between the sensor and the evaporator
and that this is "more than simply being positioned 'right after the
evaporator.'" Reply Br. 4.
But, claim 21 does not require that the system measure the actual
temperature of the vehicle evaporator. Rather, it requires the first control
portion to be configured to "assess" this temperature. Though the term
"assess" is used throughout Appellants' Specification, it is not defined. "[I]n
determining the ordinary and customary meaning of the claim term as
viewed by a person of ordinary skill in the art, it is appropriate to consult a
general dictionary definition of the word for guidance." Comaper Corp. v.
Antee, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips c. AWH
Corp., 415 F.3d 1303, 1322-23 (Fed. Cir. 2005) (en bane)). An ordinary
and customary meaning of the claim term "access" is "[ e ]valuate or estimate
the nature, ability, or quality of." Oxforddictionaries.com,
http://www. oxforddictionaries. com/us/ definition/ american_english/ assess
(accessed Aug. 31, 2016). The temperature sensors of both Ebisu and
Kurahashi could be used to evaluate, estimate, i.e. assess, the actual
temperature of the evaporator. Thus, Appellants' arguments do not
persuasively apprise us of error in the Examiner's rejection of claim 21.
For these reasons we sustain the 35 U.S.C. § 103(a) rejection of claim
21.
35 U.S.C. §103(a)-Claims 2, 5--8, 22 and 23
Claims 2, 5-8, 22, and 23 depend from claim 21 and are not
separately argued. Therefore, we sustain the 35 U.S.C. §103(a) rejection of
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Application 11/761,665
claims 2, 5-8, 22, and 23, as they fall with claim 21 from which they
depend. See 37 C.F.R. § 41.37(c)(iv).
35 U.S.C. §103(a)- Claims 31and35
Independent claims 31 and 35 both include "a compressor control unit
configured to: ... monitor an actual temperature [of] a vehicle evaporator."
The Examiner and Appellants make similar arguments concerning these
claims and Ebisu and Kurahashi as described above with respect to claim 21.
See Final Act. 9-14, 16; Appeal Br. 9.
Rather than "assess[ing]" the actual temperature of the vehicle
evaporator, claims 31 and 35 require "monitor[ing]" the actual temperature
of the vehicle evaporator. The term "monitor" is used throughout
Appellants' Specification, but is not defined. An ordinary and customary
meaning of the claim term "monitor" is "[ o ]bserve and check the progress or
quality of (something) over a period of time; keep under systematic review."
Oxforddictionaries. com,
http://www.oxforddictionaries.com/us/definition/american_english/monitor
(accessed Aug. 31, 2016). Thus, the term "monitor" is not as broad as
"assess."
This then brings us to the term "actual." The term "actual" is used
throughout Appellants' Specification, such as in the phrases "actual
evaporator temperature" and "actual temperature of a vehicle evaporator,"
but it is not defined. An ordinary and customary meaning of the claim term
"actual" is "[ e ]xisting in fact; typically as contrasted with what was
intended, expected, or believed." Oxforddictionaries.com,
http://www.oxforddictionaries.com/us/ definition/ american_english/ actual
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Application 11/761,665
(accessed Aug. 31, 2016). Therefore we construe "actual temperature of a
vehicle evaporator" to require more than a temperature of air leaving the
evaporator. The temperature should be obtained though some direct means,
such as physical contact. But at the same time, the claims are not limited to
physical contact to monitor the evaporator temperature existing in fact.
Nothing in Ebisu or Kurahashi shows that the respective room
temperature detector lOi or temperature sensor 129 monitors "the actual
temperature of the evaporator" as asserted by the Examiner. See Final Act.
16 and Answer 3--4. Rather, as discussed supra, temperature detector 1 Oi
and temperature sensor 129 detect the temperature of the air after having left
the evaporator. Thus, the Examiner's finding is in error.
For these reasons we do not sustain the 35 U.S.C. § 103(a) rejections
of claims 31 and 3 5.
35 U.S.C. §103(a)-Claims 32 and 33
Claims 32 and 33 depend from claim 31. Therefore, we likewise do
not sustain the 35 U.S.C. § 103(a) rejection of claims 32 and 33.
35 U.S.C. §103(a)- Claims 24, 34 and 36
The rejection of claims 24, 34, and 36 is based on the Examiner's
position that they "only require[] that the apparent temperature [] include at
least one of an ambient temperature, humidity, and interior temperature of a
vehicle." Answer 5.
As discussed above, "at least" requires that the apparent temperature
include each of: ambient temperature, humidity, and interior temperature.
The Examiner states that "Ebisu discloses wherein the apparent temperature
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Application 11/761,665
(i.e., outside temperature) includes an ambient temperature," but does not
address humidity or interior temperature. Answer 5; see also Final Act. 9,
11, and 14. As the rejection does not address all of the limitations, we do
not sustain the 35 U.S.C. § 103(a) rejection of claims 24, 34, and 36.
DECISION
The Examiner's rejections of claims 2, 5-8, and 21-23 are affirmed.
The Examiner's rejections of claims 24 and 31-36 are reversed.
AFFIRMED-IN-PART
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Application 11/761,665
BUNTING, Administrative Patent Judge, dissenting.
I must respectfully dissent with my colleagues as to the
persuasiveness of Appellants' arguments directed to claims 31-35 regarding
the Examiner's proposed modification of the control system of Ebisu using
the air conditioning system of Kurahashi. Final Act. 6. Appellants assert
that independent claim 31 "includes limitations that are similar to those
included in claim 21 ", and that "claim 31 is patentable over the proposed
combination of Ebisu and Kurahashi for the reasons as set forth above in
connection to claim 21." Appeal Br. 9. Appellants pro ff er a similar
argument with respect to independent claim 35. Id. Specifically, that the
temperature detected by room temperature detector 1 Oi of Ebisu is not "an
actual temperature of an evaporator." Id. at 7.
In my view, Appellants' argument is not persuasive because it is not
commensurate with the scope of claims 31 and 35, which do not specify
where the temperature of the evaporator is measured. That is, whether the
actual temperature is the temperature of the air exiting the evaporator, the
temperature of the flow of air around the evaporator coils, or the temperature
within the coils. Indeed, claims 31 and 35 only require that the compressor
control unit be "configured to ... monitor an actual temperature a vehicle
evaporator." Claims Appendix 2-3. Further, the use of the functional claim
language "configured to" infers that the compressor unit be capable of
monitoring the actual temperature of the vehicle evaporator.
The Examiner provides a sufficient evidence or scientific reasoning to
establish that the control system of Ebisu would be capable of performing
the claimed function. Final Act. 9-14; Ans. 3-5. Namely, that temperature
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Application 11/761,665
sensor 1 Oi positioned in front of evaporator 8i inside each interior unit "is
monitoring the temperature of the air exiting the evaporator (8i), and hence,
the actual temperature of the evaporator (8i)." Id. at 3. That Ebisu uses the
term "room temperature" does not undermine the Examiner's showing
because Figure 1 clearly shows temperature sensor 1 Oi and evaporator 8i
contained within interior unit IUi. 1 Ebisu, Figure 1.
For this reason, I do not agree that Appellant has provided sufficient
evidence or arguments to establish this finding is in error. See, e.g., In re
Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997) (claims directed to an
apparatus must be distinguished from the prior art in terms of structure
rather than function); see also In re Swinehart, 439 F.2d 210, 213 (CCPA
1971) ("[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of the prior art, it
possesses the authority to require the applicant to prove that the subject
matter shown to be in the prior art does not possess the characteristic relied
on.").
I would therefore affirm the Examiner's rejections of claims 31 and
35, and dependent claims 32-34.
1 See In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (In a patentability
analysis, "the reference need not satisfy an ipsissimis verbis test").
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