Ex Parte Devan et al

Patent Trial and Appeal Board

Mar 15, 2017

12181083 (P.T.A.B. Mar. 15, 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.
12/181,083 07/28/2008 Stephen Marshall Devan 15720.0011US01 1270
23552 7590 03/17/2017
MERCHANT & GOULD P.C.
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
KRAMER, DEVON C
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
03/17/2017 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):
US PT023552@ merchantgould .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN MARSHALL DEVAN, PHILLIP W. GALLOWAY,
and KEVIN STUART WILLIAMS
Appeal 2014-006210
Application 12/181,08s1
Technology Center 3700
Before ANTON W. FETTING, MICHAEL C. ASTORINO, and
MATTHEW S. MEYERS, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1, 4—10, 12, and 14—25. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to the Appellants, “[t]he real party in interest is Eaton
Corporation.” Appeal Br. 3.
Appeal 2014-006210
Application 12/181,083
STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1, 12, 19, and 22 are the independent claims on appeal.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A fluid device system comprising:
a rotary fluid pump having a fluid inlet and a fluid outlet;
an electric motor having a shaft coupled to the fluid pump,
the electric motor being adapted for rotation in response to an
electrical signal;
a controller adapted to communicate the electrical signal
to the electric motor, the controller including a lookup table
having a plurality of performance data related to the fluid pump
and the electric motor, the lookup table including fluid
temperature variables accounting for changes in the relationship
between at least one of phase current and shaft speed, and phase
angle and torque, due to fluid pump performance losses in the
rotary fluid pump caused by leakage, wherein the plurality of
performance data from the lookup table is used by the controller
to set one or more of a voltage, a phase current, and a phase angle
communicated to the electric motor in order to achieve a
generally constant fluid horsepower output of the fluid pump.
Rejections
I. Claims 1, 4—7, 9, 10, and 19—25 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kidd (US 6,979,181 Bl, iss. Dec. 27, 2005)
and Stiles, Jr. et al. (US 2007/0154321 Al, pub. July 5, 2007) (“Stiles”).
II. Claims 8, 12, and 14—17 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Kidd, Stiles, and Kilayko et al. (US 6,264,432 Bl, iss.
July 24, 2001) (“Kilayko”).
III. Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kidd, Stiles, Kilayko, and Bailey et al. (US 2004/0124796 Al, pub.
July 1, 2004) (“Bailey”).
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Application 12/181,083
ANALYSIS
Independent claims 1 and 19, and dependent claims 4—7, 9, 10, 20, and 21
The Appellants argue claims 1, 4—7, 9, 10, 19, 20, and 21 as a group.
Appeal Br. 19—21. We select claim 1 as the representative claim from the
group. See 37 C.F.R. § 41.37(c)(l)(iv).
The Appellants argue that the combined teachings of Kidd and Stiles
fail to teach “a fluid device system having a lookup table including fluid
temperature variables accounting for changes in the relationship between at
least one of phase current and shaft speed, and phase angle and torque, due
to fluid pump performance losses in the rotary fluid pump caused by
leakage.” Appeal Br. 19. The Appellants’argument is not persuasive.
Claim 1 ’s recitation directed to “fluid temperature variables” — i.e.,
“the lookup table including fluid temperature variables accounting for
changes in the relationship between at least one of phase current and shaft
speed, and phase angle and torque, due to fluid pump performance losses in
the rotary fluid pump caused by leakage” — is essentially data that are not
required to be used by the controller. As such, the recitation of “fluid
temperature variables,” is directed to non-functional descriptive material,
i.e., does not offer a new and unobvious functional relationship between the
printed matter (i.e., data) and the substrate (i.e., the controller). King
Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed. Cir. 2010) (“[T]he
relevant question is whether ‘there exists any new and unobvious functional
relationship between the printed matter and the substrate.’”) (citations
omitted). See also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004). Cf. In
re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (noting that when
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Application 12/181,083
descriptive material is not functionally related to the substrate, the
descriptive material will not distinguish the invention from the prior art in
terms of patentability).
To agree with the Appellants’ construction — as implied by their
argument — that the claim recitation directed to “fluid temperature
variables” distinguishes from the combination of teachings of Kidd and
Stiles, as proffered by the Examiner, would mean that each potentially novel
use of data in a lookup table is sufficient to warrant a separate patent even if
the remainder of the invention is unchanged. This would result in the
Appellants’ “fluid temperature variables” distinguishing over the prior art, as
would any other unique data in a lookup table. To give effect to the
Appellants’ argument, we would need to ignore our reviewing court’s
concerns with repeated patenting. We decline to do so.
Additionally, the remainder of the Appellants’ assertions are not
persuasive. See Appeal Br. 19-21. For example, the Appellants assert that
“Stiles is primarily directed to a system which is configured for dry run
protection wherein the pump is simply shut down upon the detection of such
a condition” and does not discuss “losses that have a correlation to fluid
temperature that would bear on the output fluid horsepower of the pump.”
See id. at 20—21 (citing Stiles, 39-41, 48, 49, 60, Figs. 1—3b). This
assertion is not persuasive. First, claim 1 does not require losses to correlate
to fluid temperature that bear on the output fluid horsepower of the pump.
Second, as discussed above, the recitation of claim 1 concerning “fluid
temperature variables” is non-functional descriptive material. Third, the
Examiner only relies on Stiles’s teachings for that which Kidd fails to
disclose, i.e., “Kidd fails to disclose that the lookup table has fluid
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Application 12/181,083
temperature variables accounting for changes in the relationship between
phase current and shaft speed (or between phase angle and torque) due to
performance losses in the fluid pump caused by leakage.” Final Act. 3. In
other words, the Examiner relies on Kidd to teach everything but claim 1 ’s
recitation directed to “fluid temperature variables.” See id. at 2—5. And, the
Appellants do not argue persuasively that the Examiner’s findings based on
Kidd are not supported by a preponderance of the evidence.
Thus, we sustain the Examiner’s rejection of claims 1, 4—7, 9, 10, 19,
20, and 21 as unpatentable over Kidd and Stiles.
Independent claim 22 and dependent claims 22—25
In the Final Office Action the Examiner rejected claims 1 and 22—25
as a group. See Final Act. 2—5. However, independent claims 1 and 22 are
distinct from one another in that the controller recited in each claim uses
different data from the controller’s lookup table to control an electric motor
of the fluid device system. See Appeal Br., Claims App. Among other
things, claim 22 does not require a lookup table including fluid temperature
variables. Claim 22 does require a controller to use pump performance data
from a lookup table to modify a control signal to a motor, where the “pump
performance data account for changes in in [sic] the relationship between at
least one of phase current and shaft speed, and phase angle and torque due
to performance losses of the rotary fluid pump.” See Appeal Br., Claims
App. (emphasis added); see also Typhoon Touch Techs., Inc. v. Dell, Inc.,
659 F.3d 1376, 1380 (Fed. Cir. 2011) (discussing Microprocessor
Enhancement Corp. v. Texas Instruments, Inc., 520 F.3d 1367 (Fed. Cir.
2008)).
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The Examiner relies on Stiles to teach the aforementioned
requirement of claim 22. See Final Act. 2—5 (citing Stiles ]fl[ 28, 29, 35, 37,
38, 40, 41). Notably, the Examiner does not appear to find that Kidd teaches
the aforementioned limitation, but appears to find Stiles teaches the
aforementioned limitation. See Final Act. 3; see also id. at 2, 4—5. The
Examiner determines that “[i]t would have been obvious to one skilled in the
art... to have included a correction accounting for changes in the
relationship between phase current and shaft speed due to performance
losses in the fluid pump caused by leakage as taught by Stiles . . . .” Id. at
4—5. The Appellants argue that Stiles fails to teach the claimed relationship
between phase current and shaft speed due to performance losses of the
rotary fluid pump (i.e., the aforementioned limitation of claim 22). See
Appeal Br. 21—24; see also Reply Br. 2-4. Based on the Examiner’s
rejection and responses to the Appellants’ argument, we fail to ascertain how
the Examiner provided adequate findings — findings supported by a
preponderance of the evidence — concerning how Stiles teaches the
aforementioned limitation of claim 22, particularly with regard to pump
performance data accounting for changes in the relationship between at least
one of phase current and shaft speed.
Thus, we do not sustain the Examiner’s rejection of claims 22—25 as
unpatentable over Kidd and Stiles.
Independent claim 12 and dependent claims 8 and 14—17
The Appellants provide a separate heading for the rejection of claims
8, 12, and 14—17. Appeal Br. 24.
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Claim 8 depends from independent claim 1. Appeal Br., Claims App.
Claim 12 is independent and claims 14—17 depend either directly or
indirectly from claim 12. Id. Claim 12 is similar to claim 1 in that both
include a recitation directed to “fluid temperature variables,” which is
directed to non-functional descriptive material.
The Appellants rely on the arguments discussed above with regard to
the rejection of claim 1. Appeal Br. 24. Further, the Appellants argue that
the Examiner’s reliance on Kilayko does not cure the deficiency of the
Examiner’s rejection of claim 1. Id. For reasons discussed above, we
determine that the Appellants’ arguments are not persuasive.
Thus, we sustain the Examiner’s rejection of claims 8, 12, and 14—17
as unpatentable over Kidd, Stiles, and Kilayko.
Dependent claim 18
The Appellants provide a separate heading for the rejection of claim
18. Appeal Br. 25. Claim 18 depends from independent claim 12 and
recites “wherein the microprocessor is a field programmable gate array.”
Appeal Br., Claims App. To reject this limitation, the Examiner further
modifies Kidd’s disclosure with a teaching from Bailey. Final Act. 12—13.
The Appellants rely on the arguments discussed above with regard to the
rejection of claim 12 and also argue that Bailey’s teaching does not cure the
deficiency of the Examiner’s rejection of independent claim 12. See Appeal
Br. 25. For reasons discussed above, we determine that the Appellants’
arguments are not persuasive.
Thus, we sustain the Examiner’s rejection of claim 18 as unpatentable
over Kidd, Stiles, Kilayko, and Bailey.
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DECISION
We AFFIRM the Examiner’s decision rejecting claims 1, 4—10, 12,
and 14—21.
We REVERSE the Examiner’s decision rejecting claims 22—25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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