Ex Parte Divittorio

Board of Patent Appeals and Interferences

Apr 30, 2009

09449912 (B.P.A.I. Apr. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte NICK P. DIVITTORIO
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Appeal 2009-1000
Application 09/449,912
Technology Center 2100
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Decided1: April 30, 2009
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Before LEE E. BARRETT, LANCE LEONARD BARRY, and
STEPHEN C. SIU, Administrative Patent Judges.

SIU, Administrative Patent Judge.

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date.
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Application 09/449,912

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STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-26. We have jurisdiction under 35 U.S.C.
§ 6(b). An oral hearing was held on April 23, 2009. We affirm-in-part.

The Invention
The disclosed invention relates generally to control programs in
industrial processes (Spec. 1). Specifically, a control processor includes an
embedded control task that executes to carry out computations including
setpoint values that are distributed to relevant control blocks (Spec. 3-4).
Independent claim 1 is illustrative:
1. A control processor for executing a set of control tasks
defining dynamic model-based interactive control of an industrial
process, the control processor comprising:

an embedded control task comprising a multivariable linear
program including a set of output values corresponding to process
setpoints; and

a set of control blocks including regulatory control blocks
having output values that are transmitted by the control processor to
field devices coupled to the industrial process, wherein the embedded
control task executes at a lower execution priority than an execution
priority of the set of control blocks.
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The References
The Examiner relies upon the following references as evidence in
support of the rejections:
Messih US 5,526,794 Jun. 18, 1996
Sinibaldi US 6,549,945 B1 Apr. 15, 2003
(filed Mar. 11, 1999)

The Rejections
1. The Examiner rejects claims 1-7, 13-19, 25, and 26 under 35 U.S.C.
§ 103(a) as being unpatentable over Admitted Prior Art (“AAPA”)
and Sinibaldi.
2. The Examiner rejects claims 8-12 and 20-24 under 35 U.S.C. § 103(a)
as being unpatentable over AAPA, Sinibaldi, and Messih.

ISSUE #1
Appellant asserts that the cited references fail to teach or suggest
“incorporating the embedded control task comprising a multivariable linear
program into a control processor, and executing the embedded control task
at a lower priority than the set of control blocks” (App. Br. 6).
The Examiner finds that Sinibaldi discloses a matrix and that “[t]his
matrix is a multi-variable table which lists the tasks that are used during
execution” (Ans. 8).
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Did Appellant demonstrate that the Examiner erred in finding that the
Matrix disclosed by Sinibaldi is equivalent or suggestive of a multivariable
linear program as recited in claim 1?

FINDINGS OF FACT
The following Findings of Facts (FF) are shown by a preponderance
of the evidence.
1. Sinibaldi discloses a digital signal processor (DSP) based
communications adapter card (col. 2, ll. 26-27).
2. Sinibaldi discloses “[a]n example of a metric used for processing
load is MIPs which represents the number of millions of instructions
per second that are required by a processing operation” (col. 17, ll.
41-43).
3. Sinibaldi discloses that the DSP contains “a Matrix . . . that contains
the list of functions or tasks and associated MIP requirements” (col.
18, ll. 25-27).
4. Appellant acknowledges that “[e]xecuting various program tasks at
different priority levels was indeed well known at the time of the
invention” (App. Br. 7).

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PRINCIPLES OF LAW
Obviousness
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, and
(3) the level of skill in the art. Graham v. John Deere Co., 383 U.S. 1, 17-
18 (1966).

ANALYSIS (ISSUE #1)
As set forth above, Sinibaldi discloses a table of MIP values
corresponding to individual tasks performed by a digital signal processor
(FF 1-3). Appellant asserts that “[t]he ‘matrix’ [of Sinibaldi] described at
column 18, lines 25-38 is a table that merely lists a set of tasks performed by
a digital signal processor (DSP) and the associated computing (MIP)
requirements for each task” (Reply Br. 5) and does not constitute a
“multivariable linear program” as claimed. We agree. Under a broad but
reasonable interpretation that is consistent with the Specification, we
construe the term “multivariable linear program” as including a computer
program that includes executable code that, when executed, performs a
function.
As described above, the Examiner relies on the “matrix” of Sinibaldi
as the claimed “multivariable linear program.” However, the Examiner has
not demonstrated that the “matrix,” which constitutes a look-up table of MIP
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values, is executable or contains code that performs a function when
executed. Likewise, we do not find, and the Examiner does not assert, that
Messih discloses or suggests an embedded control task comprising a
multivariable linear program. Therefore, we cannot agree with the
Examiner, based on the record before us, that Sinibaldi (and/or Messih)
discloses or suggests an embedded multivariable linear program, as recited
in claim 1.
Independent claims 13 and 25 and dependent claims 2-12 and 14-24
each recite equivalent limitations to those discussed above regarding
independent claim 1. However, independent claim 26, which Appellant
groups with claim 1, does not recite the disputed limitation (i.e., an
embedded multivariable linear program as recited in claim 1). Accordingly,
we conclude that Appellant has met the burden of showing that the
Examiner erred in rejecting claims 1-25 but has not met the burden of
showing that the Examiner erred in rejecting claim 26 with respect to issue
#1.

ISSUE #2
Appellant asserts that while “[e]xecuting various program tasks at
different priority levels was indeed well known at the time of the invention”
(App. Br. 7), the cited references fail to “provide a reason for one skilled in
the art . . . to incorporate the embedded multivariable linear program that
calculates set point values for the control processor into the process
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controller and execute the multivariable application program at a lower
assigned priority than a set of control blocks” (id.).
Did Appellant demonstrate that the Examiner erred in finding that the
cited references fail to teach or suggest a first sequence of instructions
executed at a first priority and a second sequence of instructions executed at
a second level of priority exceeding that of the first as recited in claim 26?

ANALYSIS (ISSUE #2)
It is undisputed that “[e]xecuting various program tasks at different
priority levels was indeed well known at the time of the invention” (FF 4).
Given that executing different program tasks at different priority levels was
well known in the art, we agree that executing a first sequence of
instructions at a first priority and a second sequence of instructions at a
second (and higher) priority would have been “well known” since such a
procedure describes precisely what Appellant states was “well known” in the
art.
Appellant asserts that the cited references fail to teach or suggest
incorporating “the embedded multivariable linear program . . . into the
process controller” and executing “the multivariable application program at
a lower assigned priority than a set of control blocks” (App. Br. 7).
However, as set forth above, claim 26 fails to recite such requirements such
as an “embedded multivariable application program” or “set of control
blocks”.
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For at least the aforementioned reasons, we conclude that Appellant
has not sustained the requisite burden on appeal in providing arguments or
evidence persuasive of error in the Examiner’s rejection of claim 26 with
respect to issue #2.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has demonstrated that the Examiner erred in finding that the
Matrix disclosed by Sinibaldi is equivalent or suggestive of a multivariable
linear program as recited in claim 1. However, Appellant has not
demonstrated that the Examiner erred in finding that the cited references fail
to teach or suggest a first sequence of instructions executed at a first priority
and a second sequence of instructions executed at a second level of priority
exceeding that of the first as recited in claim 26.

DECISION
We affirm the Examiner’s decision rejecting claim 26 under
35 U.S.C. § 103 but reverse the Examiner’s decision rejecting claims 1-25
under 35 U.S.C. § 103.

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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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