Ex Parte Eberharter et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813475313 (P.T.A.B. Aug. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/475,313 05/18/2012 28249 7590 08/21/2018 DILWORTH & BARRESE, LLP Dilworth & Barrese, LLP 1000 WOODBURY ROAD SUITE405 WOODBURY, NY 11797 FIRST NAMED INVENTOR Johannes Karl Eberharter 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. 298-593 9467 EXAMINER SMITH, ISAAC G ART UNIT PAPER NUMBER 3662 MAIL DATE DELIVERY MODE 08/21/2018 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHANNES KARL EBERHARTER, KLAUS SCHNEIDER, EUGEN SCHOBESBERGER, and HELMUT FISCHER Appeal2017-005338 Application 13/475,313 Technology Center 3600 Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Johannes Karl Eberharter et al. ("Appellants") 1 appeal under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-11 and 22-29. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify the Real Party in Interest as Liebherr-Werk Nenzing GmbH. Appeal Br. 4. Appeal2017-005338 Application 13/475,313 BACKGROUND Independent claims 1 and 29 are pending. Independent claim 1, reproduced below, represents the claimed invention, with certain limitations italicized. 1. A crane control for a crane arranged on a ship having a load moment limitation system which determines a maximum permitted payload, wherein the load moment limitation system is in communication with a measuring unit for measuring movement of the ship, wherein the measuring unit creates data based on the measuring of movement of the ship; and the maximum permitted payload is read out of a table with reference to a speed value and/or an acceleration value determined on the basis of the created data of the measuring unit, wherein the determination of the maximum permitted payload takes place based on the data of a respectively preceding defined time period, the defined time period represents a specific time window. REJECTION I. Claims 1-6, 9-11, 22, 23, 26, and 29 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Schneider (US 2010/0230370 Al, pub. Sept. 16, 2010) and Kovalchuk (SU 793920 Al, pub. Jan. 7, 1981). Final Act. 4. II. Claim 7 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Schneider, Kovalchuk, and Bromell (US 4,179,233, iss. Dec. 18, 1979). Final Act. 19. III. Claims 8 and 24 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Schneider, Kovalchuk, and Kimura (JP 08-268685A, pub. Oct. 15, 1996). Final Act. 21. 2 Appeal2017-005338 Application 13/475,313 IV. Claim 25 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Schneider, Kovalchuk, Kimura, and Katein (EP0849213 Al, pub. June 24, 1998). Final Act. 23. V. Claim 27 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Schneider, Kovalchuk, and Almeda (US 2009/0232625 Al, Sept. 17, 2009). Final Act. 24. VI. Claim 28 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Schneider, Kovalchuk, Almeda, and Bromell. Final Act. 26. VII. Claims 1, 9-11, 26, and 29 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Kovalchuk and Fossen (US 2006/0058929 Al, pub. Mar. 16, 2006). Final Act. 27. VIII. Claims 2---6, 22, and 23 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Kovalchuk, Fossen, and Schneider. Final Act. 35. IX. Claims 7 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Kovalchuk, Fossen, and Bromell. Final Act. 40. X. Claims 8, 24, and 25 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Kovalchuk, Fossen, and Kimura. Final Act. 42. XI. Claim 27 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Kovalchuk, Fossen, Schneider, and Almeda. Final Act. 44. XII. Claim 28 stands rejected under 35 U.S.C. § I03(a) as unpatentable over Kovalchuk, Fossen, Schneider, Almeda, and Bromell. Final Act. 45. 3 Appeal2017-005338 Application 13/475,313 ANALYSIS Rejections I-VI: Obviousness over Schneider, Kovalchuk, et al. Regarding claim 1, the Examiner finds that Schneider discloses, inter alia, a crane control having a load moment limitation system that determines a maximum permitted payload, the load moment limitation system communicating with a unit for measuring ship movement and creating data therefor. Final Act. 4 (citing Schneider ,r,r 7, 53). The Examiner also finds that Schneider discloses controlling a load moment using "data of a respectively preceding defined time period." Id. at 5 (emphasis omitted). The Examiner finds that Schneider does not explicitly disclose "determination of the maximum permitted payload tak[ing] place based on the data of a respectively preceding defined time period, the defined time period represent[ing] a specific time window." Id. at 5 (emphasis omitted). The Examiner finds, however, that Schneider discloses "using a measuring device to measure heave mo[ ve ]ment of a ship over a preceding period in time, such as over the preceding five minutes, ... to determine a mode of the heave movement and to create a model to compensate for the heave movement." Id. ( citing Schneider ,r,r 11-12 ("[T]he prevailing modes of the heave movement are determined from the data of the measuring device .... The modes are determined by means of a long-term observation of the heave movement, wherein the analysis can extend to a period of the preceding heave movement of several minutes, e.g. to the preceding five minutes.")). According to the Examiner, Schneider's data, gathered over a preceding time period, "is equivalent to the claimed 'data of a respectively preceding defined time period, the defined time period represents a specific time 4 Appeal2017-005338 Application 13/475,313 window', where as seen above, the 'time window' may be a period of a preceding 5 minutes." Id. at 6 ( emphasis omitted). The Examiner then finds that Kovalchuk discloses "a crane hoisting capacity limiter for a floating crane system, comprising an accelerometer which measures a movement of a crane, and when a movement of the crane occurs due to turbulent waters, the limiter will limit the hoisting capacity of the crane," which limits its maximum load. Id. ( emphasis omitted) ( citing Kovalchuk 2: 1-11, 4 ). We note that Schneider also contemplates that its system, in addition to predicting movement of the load suspension point, "ensure[s] that there are no overloads of the rope or the crane during the hoisting operation." Schneider ,r 9. The Examiner concludes that it would have been obvious to modify Schneider with Kovalchuk's system that "gathers data of a ship movement over a preceding time period, to use any acceleration values which represent movement of a crane ... caused by a sea state to determine a maximum capacity or permitted payload of a crane," to maintain the crane load within "safe limits." Final Act. 6-7 (citing Kovalchuk 4:11-12). Appellants argue claims 1-11 and 22-29 as a group. Appeal Br. 9, 18. We select claim 1 as representative. Claims 2-11 and 22-29 stand or fall with claim 1. Appellants argue that the Examiner erred in finding that Schneider discloses determining a maximum permitted payload taking place based on data from a preceding time period representing a specific time window. Appeal Br. 9. According to Appellants, Schneider's long-term observation of the heave movement, which can extend to "a period of the preceding heave movement of several minutes, e.g. to the preceding five minutes," 5 Appeal2017-005338 Application 13/475,313 must be read in light of Schneider's entire paragraph to mean that, for Schneider's device to operate, the device will go back as far as several minutes to track the most current heave movement. Id. at 9--10. This measuring back far enough to obtain data of a previous heave movement, Appellants argue, is not a "'defined [time period]' or a 'specific time window"' as recited in claim 1. Id. at 10. The Examiner responds that a "defined time period" of a "specific time window" is merely a time period from which data is obtained to determine the maximum permitted payload. Ans. 2. In response to Appellants' contention that Schneider's preceding 5 minutes is not a defined time period or specific time window, the Examiner finds that "for a device which is programmed to obtain data from a certain period of time, such as the preceding five minutes measured by the measuring device of Schneider, . . . the period of five minutes is 'defined' or 'specific,"' in a sense that the time period is not "a random time period." Id. at 3--4. The Examiner further responds that "there appears to be no disclosure for exactly how a 'defined time period' is defined in terms of programming. Specifically, a 'defined time period' implies that [ start and end times] for the time period exist[]," and Appellants' Specification "does not appear to recite exactly what steps take place to determine and program [ start and end time] of such a time period." Ans. 10-11. Appellants reply that their Specification describes the claimed "'defined time period' and 'specific time window' concept." Reply Br. 5 ( citing Spec. 2, 6, 10). We discern no error in the Examiner's findings. Appellants' Specification provides no explicit definition for the terms "defined" or 6 Appeal2017-005338 Application 13/475,313 "specific" that limit these two terms to exclude a previous time period that simply reaches far enough back to measure a previous heave movement. Lacking such a definition, we decline to interpret the terms "defined" and "specific" narrowly enough to exclude Schneider's measurement of a previous heave movement, even if the time duration of such a measurement is not known or limited in advance by Schneider's system. Appellants argue that Schneider's failure to disclose a "defined time period" or "specific time window" is evident from the fact that Schneider is concerned with a different measurement; namely, "Schneider is measuring heave movements of a ship," while Appellants are measuring "the speed and/or acceleration of, for example, the boom tip." Appeal Br. 10 (emphasis omitted). Due to these different measurement goals, Appellants argue, "Schneider needs to measure the heave movement irrespective of time, whereas the present application uses time as a way to control an accurate account of the data." Id. at 11 (emphasis omitted). The Examiner responds that the claims recite that "the measuring unit creates data based on the measuring of movement of the ship," and Appellants' Specification discloses measuring movement of the ship via a measurement unit "at the ship," such that Appellants' arguments regarding different measurement goals is not persuasive. Ans. 4 ( emphasis omitted) ( citing Spec. 9--10). The Examiner further notes that Schneider measures acceleration via "an inertial platform (IMU- Initial Measurement Unit)" that "contains three acceleration sensors for measuring the linear ship movements." Id. (emphasis omitted) (citing Schneider ,r 53). Appellants' argument informs us of no error in the Examiner's findings. We discern no difference with measuring a ship's heave 7 Appeal2017-005338 Application 13/475,313 movement (as in Schneider) and measuring "movement of the ship" as claimed. Indeed, Appellants' disclosure contemplates that the measured ship movement will be caused by "wave movement." Spec. 1, 4, 9 ("the wave movement generates a movement of the ship"). Further, the claims do not recite the measurement goals, so differing measuring goals would not be persuasive of error. Appellants then argue that "Schneider measures a heave movement when the heave movement occurs, which is not continuous like speed or acceleration of a ship," and that Schneider acknowledges that a time of the heave movement varies, such that it makes no sense for Schneider to be measuring data with respect to heave movements over a specific time window, ... because the data will simply be skewed. Put simply, Schneider needs to measure the heave movement irrespective of time, whereas the present application uses time as a way to control an accurate account of the data. Appeal Br. 11 ( emphasis omitted); Reply Br. 3--4. Based on our above determination that the terms "defined" or "specific" do not exclude a previous time period that simply reaches far enough back to measure a previous heave movement, this argument does not persuade us of Examiner error. Again, based on our determination that the terms "defined" and "specific" do not exclude a previous time period that simply reaches far enough back to measure a previous heave movement, this argument regarding Schneider's adaptability does not persuade us of Examiner error. For the reasons set forth above, we sustain the rejection of claim 1. Claims 2-11 and 22-29 fall with claim 1. 8 Appeal2017-005338 Application 13/475,313 Rejections VII-XII: Obviousness over Kovalchuk, Fossen, et al. The Examiner finds that Kovalchuk discloses the limitations of claim 1, except for determination of the maximum permitted payload taking place based on data of a respective preceding defined time period representing a specific time window. Final Act. 28-29. The Examiner finds, however, that Fossen discloses a similar control system that measures motion of a marine vessel over a specific time interval. Id. at 29-30 (citing Fossen ,r 134). The Examiner concludes that it would have been obvious to modify Kovalchuk with Fossen "and for a crane on board a ship, to gather ship movement or heave data over a 'defined time period[,'] ... to 'compensate for the motion of the vessel, in particular heave."' Id. at 30 ( emphasis omitted) ( citing Fossen ,r 19). Appellants argue claims 1-11 and 22-29 as a group. Appeal Br. 9, 18. We select claim 1 as representative. Claims 2-11 and 22-29 stand or fall with claim 1. Fossen Appellants argue that there is nothing in Fossen indicating that the time interval from uo to UN is a preceding specific time interval, and that nothing in Fossen indicates that its system is programmed with a specific time window. Appeal Br. 13. Appellants contend that Fossen's u0 indicates an initial time instant, and UN indicates "any random number" pertaining to "a future time" rather than a preceding time. Id. at 13-14 ("If the uNtime is described as being reached, then this means reaching UN is occurring in the future and waiting to happen .... " (emphasis omitted)). To support the contention that Fossen's UN pertains to a future time, Appellants proffer 9 Appeal2017-005338 Application 13/475,313 illustrations allegedly showing how Fossen's technology operates versus Appellants' technology. Id. at 14--15. The Examiner disagrees, responding that Appellants do not disclose "how to define and then program the 'start' and 'end' times of [their claimed] 'time window' or 'time period,"' such that identification of a preceding defined time period or specific time window is taught by Fossen, whose time interval of u0 to UN is identified after it occurs, thus "becom[ing] a 'preceding' time interval." Ans. 13. We agree with the Examiner. Although Fossen's end time UN occurs after its start time u0, and may be unknown at start time u0, end time UN is not truly a future time, because it becomes part of a preceding time interval after it is measured as the end point of the time interval. Measuring something that has not occurred appears an impossibility, and Fossen additionally does not refer to end time UN as a predicted measurement. As set forth above, we are not persuaded that the end time of data measurement must be known in advance for the measured data to be of a "defined time period" or a "specific time interval." Kovalchuk Appellants argue that Kovalchuk does not disclose the claimed "defined time period represent[ing] a specific time window," again arguing that "[ s ]imply measuring data at some random and arbitrary points in time, without programmatically selecting a preceding 'defined' time period to measure data, is different than the present technology." Appeal Br. 16. The Examiner responds that "Kovalchuk does not measure data over a 'random' or 'arbitrary' point in time, as Kovalchuk measures over a period 10 Appeal2017-005338 Application 13/475,313 of time when an acceleration caused by a rocking crane movement exceeds a threshold." Ans. 15. Because we determine that the terms "defined" or "specific" do not exclude a previous time period that simply reaches far enough back to measure a previous heave movement, and need not be known before measurement begins, this argument regarding Kovalchuk' s time period being "random" or "arbitrary" does not persuade us of Examiner error. For the reasons set forth above, we sustain the rejection of claim 1. Claims 2-11 and 22-29 fall with claim 1. DECISION We AFFIRM the pending rejections. 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 11 Copy with citationCopy as parenthetical citation