Ex Parte Deiretsbacher et alDownload PDFPatent Trial and Appeal BoardFeb 1, 201713700006 (P.T.A.B. Feb. 1, 2017) Copy Citation 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. 13/700,006 11/26/2012 Karl-Heinz Deiretsbacher 5029- 1047PUS-329511.000 2930 27799 7590 Cozen O'Connor 277 Park Avenue, 20th floor NEW YORK, NY 10172 EXAMINER AHMED, ATIQUE ART UNIT PAPER NUMBER 2479 NOTIFICATION DATE DELIVERY MODE 02/03/2017 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): patentsecretary @ cozen. com patentdocket@cozen.com patentsorter@cozen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KARL-HEINZ DEIRETSBACHER, STEFAN ELSTERER, CHRISTIAN HOCK, JORN PESCHKE, and FRANK VOLKMANN Appeal 2016-001441 Application 13/700,006 Technology Center 2400 Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and JON M. JURGOVAN, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 8—14, which are all the claims pending in this application.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants, the real party in interest is Siemens AG (App. Br. 2). 2 Claims 1—7 have been canceled. Appeal 2016-001441 Application 13/700,006 STATEMENT OF THE CASE Appellants’ invention relates to a method for interchanging data between two devices in a network (Spec. 1:10-13). Exemplary claim 8 under appeal reads as follows: 8. A method for interchanging data between two devices of an automation network, the method comprising: utilizing a communication protocol with an interface in accordance with an Object Linking and Embedding for Process Control United Architecture (OPC-UA) standard for interchanging the data; and interchanging the data between the two devices of the automation network via both interfaces in a prescribed period of time, the communication protocol including an interface in accordance with one of a Stream Reservation Protocol (SRP) standard and a Multiple Stream Registration Protocol (MSRP) standard in accordance with IEEE standard 802.1Qat. REFERENCES and REJECTIONS Claims 8, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Landgraf et al. (US 2009/0106345 Al; published Apr. 23, 2009) and Diab et al. (US 2010/0238836 Al; published Sept. 23, 2010) (See Ans. 4—6). Claims 9 and 10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Landgraf, Diab, Oren et al. (US 2008/0232243 Al; published Sept. 25, 2008), and Capone et al. (US 2010/0153560 Al; published June 17, 2010) (See Ans. 6—9). Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Landgraf, Diab, Oren, Capone, and Eamshaw et al. (US 2003/0012212 Al; published Jan. 16, 2003) (See Ans. 9-11). 2 Appeal 2016-001441 Application 13/700,006 ANALYSIS Independent Claims 8 and 13 First Issue — “Automation Network” Appellants contend the claimed “automation network” relates to automation networks provided in industrial facilities, such as manufacturing plants or factories, and Diab’s cellular network that provides multimedia content via a femtocell is not related to industrial facilities and, thus, does not teach ‘“interchanging data between two devices of an automation network’” (App. Br. 3—7; Reply Br. 4—6). Appellants’ contention regarding “industrial facilities” is not commensurate with the scope of the claims, which do not require “industrial facilities, [] manufacturing plants[,] or factories.” See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (stating that limitations not appearing in the claims cannot be relied upon for patentability). 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, 1184 (Fed. Cir. 1993). Further, Appellants’ contention that Diab’s cellular network does not teach an “automation network” is not persuasive of Examiner error, because Appellants are essentially attacking the Diab reference individually where the rejection is based on the combination of Landgraf and Diab. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[0]ne cannot show non obviousness by attacking references individually where ... the rejections are based on combinations of references.” (Citation omitted.)). The Examiner finds, and we agree, the combination of Landgraf and Diab teaches interchanging data between devices on an “automation network” (Ans. 4—6, 3 Appeal 2016-001441 Application 13/700,006 13—15 (citing Landgraf Tflf 50-51)) by integrating different communication protocols within the same network {id. (citing Diab H 21, 23, 60, and 83)). Second Issue — Combination of Landgraf and Diab Appellants contend one of ordinary skill in the art would have no reason to consider the teachings of Diab when seeking to modify the system of Landgraf, because Diab is not related to an automation network, and the objects and solutions described in Diab (i.e., cellular network communications) are completely different than the objects and solutions described in Landgraf (App. Br. 3—6). We are not persuaded of error in the Examiner’s rejection. We agree with the Examiner’s finding that Landgraf and Diab are from the same field of endeavor related to network communications, (Ans. 15—16), and, therefore, we agree the references are properly considered analogous art. See In re Clay, 966 F.2d 656, 658—59 (Fed. Cir. 1992). We further find the Examiner has provided “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness,” specifically that combining the communication protocols of Diab (i.e., IEEE 802.1Qat) with the OPC-UA automation network of Landgraf would provide Landgraf with the expanded capability of timely delivering data between non-cellular and cellular devices on the network (Ans. 4—6, 16 (citing Landgraf H 50-51 and Diab 123)). See KSR Int’lv. Teleflex, Inc., 550 U.S. 398, 417—18 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). In the Reply Brief, Appellants argue the combination of Diab’s cellular network with Landgraf s OPC-UA protocol is improper because it would change the principle of operation of Landgraf and render the system inoperable (Reply Br. 4—5). This argument is entitled to no consideration 4 Appeal 2016-001441 Application 13/700,006 because it was not presented for the first time in the opening brief, and Appellants have not shown good cause why it should be considered, as required by our procedural rule. See 37 C.F.R. § 41.41(b)(2) (2012); Optivus Technology, Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (argument raised for the first time in the reply brief that could have been raised in the opening brief is waived); accord Ex parte Borden, 93 USPQ2d 1473, 1473—74 (BPAI 2010) (informative opinion) (absent a showing of good cause, the Board is not required to address an argument newly presented in the reply brief that could have been presented in the principal brief on appeal). Therefore, we sustain the Examiner’s rejection of claims 8 and 13 under 35 U.S.C. § 103(a) as unpatentable over Landgraf and Diab. Remaining Claims No separate arguments are presented for the remaining dependent claims (see App. Br. 7), therefore we sustain their rejections for the reasons stated with respect to independent claims 8 and 13. DECISION We affirm the Examiner’s rejections of claims 8—14 under 35 U.S.C. § 103(a). 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 5 Copy with citationCopy as parenthetical citation