Ex Parte Davidson et al

Patent Trial and Appeal Board

Jul 9, 2013

11538612 (P.T.A.B. Jul. 9, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROBERT R. DAVIDSON, JAMES L. UECKER,
TODD E. HOLVERSON, DAVID G. ALMY,
and CURT J. BECK
____________________

Appeal 2011-004532
Application 11/538,612
Technology Center 3700
____________________

Before: CHARLES N. GREENHUT, PATRICK R. SCANLON, and
NEIL A. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-004532
Application 11/538,612
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
23-24, 26-28, 31-32, and 34-35. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
THE INVENTION
The claims are directed to a method and apparatus for welding with
CV control. Claim 23, reproduced below, is illustrative of the claimed
subject matter:
23. A welding power supply, comprising:
a CV power source, having a cyclical CV output with a
voltage; and
means for controlling the CV power source, including
means for dividing each cycle into at least two segments, means
for sampling an output parameter a plurality of times within at
least a one of the segments, and means for controlling the CV
output within the at least one segment in response to the
sampling performed within the at least one segment, wherein
the means for sampling includes means for sampling the
parameter a plurality of times within at least a second of the
segments, and the means for controlling the CV output includes
means for controlling the CV output within the at least a second
segment in response to the sampling performed within the at
least a second segment.

REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Richardson US 4,595,820 Jun. 17, 1986

Appeal 2011-004532
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REJECTION
The Examiner rejected claims 23-24, 26-28, 31-32, and 34-35 under
35 U.S.C. § 102(b) as being anticipated by Richardson. Ans. 4.

OPINION
Claims 23-24, 26-28, 31-32, and 34-35 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Richardson. Claims 23, 34, and 35 are
independent.1

Claims 23-24, 26-28, and 31-32

The Examiner states regarding claim 23, inter alia, that Richardson
teaches:
The power supply control arrangements shown in figures 26-29
and discussed at columns 78 through 80 disclose a method and
apparatus for providing welding power including providing a
cyclical CV output as shown in figure 26 which is divided into
a peak segment and a base segment, sampling the base segment
a plurality of times, and controlling the base segment power
supply output on the basis of this sampling. The output is
controlled based on the sampling of either segment. The output
voltage is monitored and sampled and uses an algorithm to

1 This is a continuation of, and Appellants claim the benefit of the filing date
of, U.S. Patent Application No. 11/006,280, filed on December 7, 2004,
which is a continuation of, and claims the benefit of the filing date of, U.S.
Patent Application No. 10/268,514, filed on October 9, 2002, entitled
Method and Apparatus For Welding With CV Control, which issued on June
21, 2005 as U.S. Patent No. 6,909,067. The Examiner withdrew an earlier
obviousness-type double patenting rejection in view of the Terminal
Disclaimer filed on April 22, 2008, disclaiming the terminal portion of any
patent granted on this application which would extend beyond the expiration
date of U.S. Patent 6,909,067. Official Action dated May 12, 2009.
Appeal 2011-004532
Application 11/538,612
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determine the average curve which changes to voltage to
maintain the mass of the weld pool at a constant. . . .
Since the sampling is done not continuous the response of the
controller will not be from the beginning to the end of the
segment. The claim fails to specify when the segment starts or
ends, this is taken to mean the cycle is the entire process.
Ans. 4-5 (emphasis supplied).
The Examiner then inserts annotated Figures 27 and 26 from
Richardson, which are not reproduced here. Regarding Figure 26, the
Examiner says: “Fig 26 shows first and second segments being sampled, the
output is controlled based on the sampling of either segment. See Column
79, Lines 20-40.” Ans. 5.
In the separate section of the Answer entitled “Response to
Argument,” after stating “[i]n response to appellant's argument on pages
13-16 referencing claim 23,” the Examiner repeats the identical above-
underlined statement made earlier in the Answer (with the same ambiguity
“sampling is done not continuous”) and then repeats identical language and
annotated figures. Ans. 8-9. The Answer at page 8 adds:
In response to appellant's argument, on page 15 that the
[reference fails]to show certain features of applicant's
invention, it is noted that the features upon which applicant
relies (i.e., Peak 1, Background 1, Peak 2, Background 2, Peak
3 and Background 3 being segments) are not recited in the
rejected claim(s). Although the claims are interpreted in light of
the specification, limitations from the specification are not read
into the claims. See In re Van Geuns, 988 F.2d 1181, 26
USPQ2d 1057 (Fed. Cir. 1993).
We have difficulty discerning the Examiner’s position and annotated
Figures, repeated again in the Response to Argument, but to the extent
understood from the underlined language above, we understand that the
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Examiner is apparently construing the claim language “to mean the cycle is
the entire process.” Ans. 5. As Appellants note
Rather, the prior art shows sampling within a single
segment, and controlling the next pulse (i.e., not within that
segment) based on that sampling, or sampling over several
cycles and controlling the next pulse based on the several-cycle
average. Col, 79, lines 35-36 describes sampling within one
segment and controlling the next pulse based on that sampling.
App. Br. 13.
Appellants’ Appeal Brief sets out the three features of their invention
required in claim 23 not found in Richardson: “Claim 23 requires 1) means
for controlling the first segment in response to sampling performed within
that first segment; 2) means for sampling within a second segment; and 3)
means for controlling the second segment in response to the sampling
performed within that second segment.” App. Br. 13. The Examiner has not
directed the Response to Argument to these points, and particularly to the
second and third:
Second, claim 23 also includes means for sampling
within the second segment ("means for sampling the parameter
a plurality of times within at least a second of the segments").
This is not shown in the prior art. The only segments of the
waveform of Figures 26-28 of USP 4595820 are the pulse
(peak) and low pulse (background). No sampling is done within
the pulse (peak) segment. Indeed, USP 4595820 specifically
teaches to begin sampling after the pulse, not during the pulse.
"The gradual decay in the arc voltage is caused by the damping,
primarily by gravity, of the cyclic oscillations induced in the
weld pool by the current pulse, and the cyclic changes in the arc
voltage are caused by the cyclic changes in arc length as the
oscillating weld pool rises and falls relative to the tip of the
welding electrode. The fast part of the cyclic decay in arc
voltage is used as a sampling time, in which arc voltage is
determined by the instant apparatus." The decay occurs after
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the pulse, thus sampling occurs only after the pulse. (Col. 78,
lines 33-37, Figure 26 and 27). Accordingly, USP 4595820
cannot anticipate claims 23 (and claims 24, 26-28 and 31-32)
because USP 4595820 does not include any "means for
sampling the parameter a plurality of times within at least a
second of the segments." Thus, claims 23-24, 26-28 and 31-32
should be allowed.
Third, claim 23 further requires means for controlling the
second segment in response to the sampling in the second
segment ("means for controlling the CV output within the at
least a second segment in response to the sampling performed
within the at least a second segment"). USP 4595820 teaches to
control the pulse based on sampling in the prior low pulse
segment.

App. Br. 14-15.
Appellants thus identified three missing features in Richardson, yet in
the Response to Argument section of the Answer, the Examiner has not
advised where the elements are found in the single reference cited for
anticipation under § 102. It appears that the Examiner is interpreting the
claim language as stated “to mean the cycle is the entire process” in order to
apply Richardson, which as Appellants note “shows sampling within a single
segment, and controlling the next pulse (i.e., not within that segment)
based on that sampling, or sampling over several cycles and controlling the
next pulse based on the several-cycle average. App. Br. 13.
We agree with Appellants that Richardson “teaches to sample in one
segment, and then control in the next segment (i.e., the pulse),” or “to
sample over several cycles.” App. Br. 13-14. The claim includes at least
two separate segments and specifies a second of the segments and “the
means for controlling the CV output includes means for controlling the CV
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output within the at least a second segment in response to the sampling
performed within the at least a second segment.”
We find no reasonable basis for the Examiner’s above-underlined
statement that "[t]he claim fails to specify when the segment starts or ends,
so that the Examiner can take this “to mean the cycle is the entire process.”
Ans. 5. It appears that the Examiner has interpreted a “cycle” as including
both portions of the wave depicted in Figure 26 of Richardson, labeled First
and Second Segment. See Ans. 6. This interpretation is not consistent with
the ordinary meaning of the term as it pertains to waves: “the duration of one
cycle being equal to the period of the motion,” see, e.g., cycle in Chambers
21st Century Dictionary, retrieved from
http://www.credoreference.com/entry/chambdict/cycle , nor is it consistent with Appellants’ usage in the Specification,
which describes the shortcomings of the prior art by stating “the average is
taken over at least one cycle, the output (and arc length) is not changed until
at least the following pulse cycle.” Spec. 2-3.
Secondly, we find no reasonable basis for the Examiner’s further
above-underlined statement that “the features upon which applicant relies
(i.e., Peak 1, Background 1, Peak 2, Background 2, Peak 3 and Background
3 being segments) are not recited in the rejected claim(s).” Ans. 9. This
was, as Appellants’ Brief noted, merely a portion of a chart which
Appellants provided in their Brief saying the “chart below illustrates the
timing and control of the invention.” App. Br. 15. The claim, particularly
discussing the “second segment” and its controlling the CV output within
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that second segment, does reference features not shown within Richardson.
App. Br. 13.2
Accordingly as Richardson does not disclose each and every element
of the claimed invention, we will not sustain the Examiner's rejection of
independent claims 23, or the dependent claims 24, 26-28, and 31-32, as
anticipated by Richardson.

Claims 34 and 35
Claims 34 and 35 were also rejected under 35 U.S.C. § 102(b) as
being anticipated by Richardson. The Examiner asserts that:
[T]he control module 704 is connected to inputs 705 in Fig 22.
Regulator 702, a controller is also connected to the feedback
circuit . . . . The signal is indicative of power and resistance
since these are easily calculated base [sic, based] on the know
[sic, known] resistance of R52 or R5 and the current and/or
voltage of the circuit. The claims to [sic, do not] specify
precisely where the feedback is connected (i.e. directly
connected, connected in series). The circuit in Figure 22 shows
a controller connected to a feedback circuit which meets the
scope of the claim given its broadest reasonable interpretation.
Ans. 10-11.
Appellants argue that:
Claim 34 includes a feedback module having an output
parameter feedback signal that is indicative of an output power.
This is not shown in the art of record. The Examiner points to
the feedback loop of op amp 746 (Figure 22). While this op
amp has a number of inputs none are feedback of power.

2 We need not discuss Appellants’ argument the Richardson actually
“teaches away from the present invention” (App. Br. 14), except to note that
teaching away is irrelevant to anticipation. See e.g., Seachange Int’l, Inc. v.
C-COR, Inc., 413 F.3d 1361, 1380 (Fed. Cir. 2005).
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Terminals TS1-6 and TS1-10 are spare input terminals provided
to allow testing (Col. 72, lines 40-42). Terminal 701A and
701B carry command signals - not feedback signals. Terminals
705A and 705B together provide a signal indicative of current
(Col. 70, lines 42-44). Thus, USP 4595820 [Richardson] does
not control using feedback indicative of output power, and
claim 34 should be allowed.
App. Br. 16.
The Examiner responded that:
Fig 22 shows a feedback loop at the output of amp 746 of the
power supply wherein the feedback signal would be indicative
of an output power. The control module 704 is connected to
inputs 705 in Fig 22. Regulator 702, a controller is also
connected to the feedback circuit. The signal is indicative of
power and resistance since these are easily calculated base [sic,
based] on the know [sic, known] resistance of R52 or R5 and
the current and/or voltage of the circuit. The claims to [sic]
specify precisely where the feedback is connected (i.e. directly
connected, connected in series). The circuit in Figure 22 shows
a controller connected to a feedback circuit which meets the
scope of the claim given its broadest reasonable interpretation.
Ans. 7-8.
The cited portion of Richardson, illustrated by Figure 22, teaches how
to obtain feedback indicative of current across the shunt 706. Richardson,
col. 67, ll. 19-22. At a particular voltage, current is directly proportional to
power (P = IV), and therefore would seem to be “indicative” of power.
Similarly, current is inversely proportional to resistance (R=V/I).
Appellants recognize the feedback loop is indicative of current (see, e.g.,
App. Br. 16), but do not explain why the feedback would not be indicative of
power or resistance.
Accordingly we affirm the rejection of claims 34 and 35 as being
anticipated by Richardson.
Appeal 2011-004532
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DECISION
For the above reasons, the Examiner’s rejection of claims 23-24, 26-
28, and 31-32 under 35 U.S.C. § 102(b) as being anticipated by Richardson
is reversed, and the Examiner’s rejection of claims 34 and 35 under 35
U.S.C. § 102(b) as being anticipated by Richardson 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).

AFFIRMED-IN-PART

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