Ex Parte Eberharter et al

Patent Trial and Appeal Board

Aug 21, 2018

13475313 (P.T.A.B. Aug. 21, 2018)

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.
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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.
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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
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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,"
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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
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"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
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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.
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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
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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
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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
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