Ex Parte Finkemeyer

Patent Trial and Appeal Board

Mar 31, 2017

13426854 (P.T.A.B. Mar. 31, 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.
13/426,854 03/22/2012 Bernd Finkemeyer FUBO-16 1778
26875 7590 04/04/2017
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
OH, HARRY Y
ART UNIT PAPER NUMBER
3664
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
usptodock@whe-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERND FINKEMEYER
Appeal 2015-003228
Application 13/426,854
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Bemd Finkemeyer (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 11—16
and 18—22 as unpatentable over Nihei (US 2006/0276934 Al; pub. Dec. 7,
2006) and Eliuk (US 2010/0241270 Al; pub. Sept. 23, 2010), and (2) claim
17 as unpatentable over Nihei, Eliuk, and Maschke (US 2010/0063514 Al;
pub. Mar. 11, 2010). Claims 1—10 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and designate the affirmance as NEW GROUNDS OF
REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal 2015-003228
Application 13/426,854
CLAIMED SUBJECT MATTER
The claimed subject matter relates to “a method for operating a
robot.” Spec. p. I.1 Claims 11 and 22 are independent. Claim 11 is
illustrative of the claimed subject matter and recites:
11. A method for operating a robot, which has a robot arm
having a plurality of links following one after the other, an
attaching device for attaching an end effector and drives for
moving the links, and a control device connected to the drives,
having the following procedural steps:
by means of a computer program running on the control
device, initiation of a command on the basis of which the robot
arm, controlled by the control device, begins to carry out an
application step,
detection of an abort condition of the command from a
plurality of abort conditions,
aborting of the execution of the application step on the
basis of the detected abort condition,
in response to the detection of the abort condition,
conveying to the computer program information about the abort
condition on the basis of which the execution of the application
step was aborted, and
determining with the computer program an additional
command to be initiated on the basis of the information about the
abort condition.
1 Appellant’s Specification does not provide line or paragraph numbering;
accordingly, reference will only be made to the page number.
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Application 13/426,854
ANALYSIS
Obviousness over Nihei and Eliuk
Claims 11—16 and 18—22
Appellant argues independent claims 11 and 22 as a group and does
not offer separate arguments in favor of dependent claims 12—16 and 18—21.
Appeal Br. 14. We select claim 11 as the representative claim, and claims
12—16 and 18—22 stand or fall with claim 11. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Nihei teaches a method for operating a robot
including a majority of the limitations of claim 11 (Final Act. 2—3) except
that Nihei “fails to explicitly teach detection of an abort condition of the
command from a plurality of abort conditions and determining with the
computer program an additional command to be initiated on the basis of the
information about the abort condition.” Id. at 4. For these teachings, the
Examiner relies on Eliuk. In particular, the Examiner finds that (1) Eliuk
teaches that a number of possible errors are detected based on the type of
error identified in steps 3110-3136; (2) Eliuk teaches “The log of errors is
used, for example, to detect a broken part in the APAS [automated pharmacy
admixture system], to schedule maintenance, and/or to determine calibration
changes”; and (3) “In step 3110 [of Eliuk], errors are identified that are
corrected by repeating a failed command. The APAS detects a plurality of
errors that can include, but is not limited to, the errors identified by the
operations 3100.” Id. (citing Eliuk 1216, Fig. 31).
As for “errors” being considered “abort conditions,” the Examiner
states that “Eliuk is used to teach a plurality of abort conditions and that this
combination [of Nihei with Eliuk] is reasonable because they are analogous
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Application 13/426,854
art.” Ans. 8. The Examiner concludes that it would have been obvious to
modify Nihei with the plurality of abort conditions as taught by Eliuk “so
that the robot can be operated to respond accordingly to different abort
conditions to best mitigate the situation, whether it's an emergency or a
minor issue, with the proper action that fits specifically for the given abort
condition.” See Ans. 8—9; see also Final Act. 4.
Appellant contends that Nihei “fails to teach conveying to a computer
program information about the abort condition on the basis of which the
execution of an application step was aborted,” as set forth in claim 11.
Appeal Br. 7.
In response, the Examiner states that “it is at least obvious that a
computer program is notified since the step of comparing an external model
with an internal model can be identified following an abort condition (i.e.
emergency stop)” (Ans. 3) and further “it is at least well known to one of
ordinary skill in the art that conveying information about an abort condition
to a computer program can be advantageous so that the system can take an
appropriate response to an abort condition. ...” Id.
Nihei discloses that “[detecting the abnormality of the manufacturing
system by comparing the external model with the internal model is also
effective in safely restarting the task of the robot when the manufacturing
system stops in an emergency due to a machine trouble or the like.” Nihei |
127; see also Final Act. 3. As such, paragraph 127 of Nihei confirms that
the external model is compared with the internal model in the event of an
emergency stop (abort condition), (i.e., that information concerning the abort
condition is conveyed to the computer program). Accordingly, Appellant
has not apprised us of error in the Examiner’s finding that Nihei teaches
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conveying to a computer program information about the abort condition on
the basis of which the execution of an application step was aborted, (i.e.,
information associated with an emergency stop).
Appellant contends that: “[t]he tasks performed by the [Nihei] robot
are executed sequentially according to a pre-programmed operation script
having a series of pre-determined steps referred to as ‘work units’ that are
arranged in a pre-determined order.” Appeal Br. 8 (citing Nihei Tflf 48, 54,
55). Appellant further asserts that a robot controller 10 determines whether
each work unit has been completed normally or abnormally. Id. at 8—9
(citing Nihei 107, 108, 119-122). According to Appellant:
Upon detecting any abnormality associated with a particular
work unit, the controller 10 either stops the robot or directs it to
perform a pre-determined “exception operation” according to the
operation script. (Nihei at 0121.) Nihei ’934 explains that an
exception operation associated with a work unit is one of the pre­
determined steps that are already programmed into the operation
script and that will be performed automatically as an immediate
next step upon detection of any abnormality associated with that
work unit. (See Nihei ’934 at 0124—0125.)
Id. at 9, see also id. at 10, 12; Reply Br. 4—5.
In response to Appellant’s contention, the Examiner states:
[Although the steps of the robot in Nihei ’934 are “pre­
determined”, according to broadest reasonable interpretation,
this can teach the step of “determining” with a computer program
that the Appellant claims. Although the possible steps of the
robot in Nihei ’934 are set in advance, the order in which they
are performed is not since an abort condition causes the robot to
perform an exception option that is sequentially not the next step.
Thus, the Examiner contends that the robot system of Nihei ’934
can teach a “determining” step, contrary to the Appellant’s
arguments.
Ans. 5.
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Application 13/426,854
Claims are given their broadest reasonable interpretation consistent
with the specification. In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). The Specification summarizes Appellant’s method,
including determining an additional command, as follows:
[According to the invention, the execution of an application step
that was initiated by the command of the control device is
aborted if at least one of the abort conditions is present. With the
detection of the abort condition in question, the information
about the abort condition due to which the execution of the
application step was aborted is likewise transferred or conveyed
to the user program. Thus after abortion the control device, or
the computer or user program running on it, does not need to
ascertain the cause of the abort, which makes it possible for the
control device to immediately generate an additional command
for actuating the robot arm, assigned to the detected abort
condition, on the basis of the information about the detected
abort condition.
Spec. 2—3.
Although the steps of the Nihei operation script, including the
exception operation, are pre-determined, we consider the act of performing
the exception operation out of sequence as amounting to determining by the
computer program an additional command to be initiated on the basis of the
information about the abnormality or abort condition. See Nihei ]Hf 124,
125. That is, when an abnormality is detected, the normal sequence of steps
is temporarily aborted and the exception operation is performed as an
additional command determined by the computer program. See id.
Accordingly, Appellant has not apprised us of error in the Examiner’s
finding that, under a broadest reasonable interpretation, the exception
operation is an additional command determined by the computer program to
be initiated on the basis of the information about the abnormality or abort
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Application 13/426,854
condition.
Appellant contends that the Nihei method does not involve detecting
an abort condition from a plurality of abort conditions and therefore there is
no logical reason to convey information about a particular one of a plurality
of abort conditions. Appeal Br. 7; see also id. at 10, 11—12; Reply Br. 2-4.
Appellant’s contention is not persuasive because nonobviousness
cannot be established by attacking the applied references individually when
the rejection is predicated upon a combination of prior art disclosures. See
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As noted above,
the Examiner relies on Eliuk and not Nihei for teaching a plurality of errors
or “abort conditions” in a robot control system. Final Act. 4; Ans. 6.
Additionally, the Examiner concludes:
It is at least obvious to one of ordinary skill in the art to teach a
plurality of abort conditions into Nihei ’934 via the teachings of
Eliuk ’720 [sic] so that the robot can be operated to respond
accordingly to different abort conditions to best mitigate the
situation, whether it’s an emergency or a minor issue, with the
proper action that fits specifically for the given abort condition.
Ans. at 8—9.
Paragraphs 216—229 and Figure 31 of Eliuk provide not only a
plurality of detectable errors or “abort conditions” (see steps 3112—3136)
but also that information about those errors is logged (see step 3106),
whereby errors that are identified are conveyed to the computer program
and are corrected by repeating a failed command (see step 3110). See Final
Act. 4. Appellant does not apprise us of Examiner error in either the
Examiner’s findings regarding the teachings of Eliuk or in the Examiner’s
rationale for combining Eliuk with Nihei (i.e., so that the robot can be
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Application 13/426,854
operated to respond accordingly to different abort conditions to best
mitigate the situation, whether it’s an emergency or a minor issue, with the
proper action that fits specifically for the given abort condition). See Ans.
8—9; see also Final Act. 4. Moreover, Appellant does not provide
persuasive evidence or argument apprising us of how modifying Nihei with
the plurality of abort condition as taught by Eliuk would interfere with
Nihei’s completion of a work unit.
Appellant acknowledges that the Eliuk system detects errors
associated with various stations and logs those errors (Appeal. Br. 10-11,
citing Eliuk || 216—229). However, Appellant asserts that “Eliuk ’270 fails
to cure the admitted deficiencies of Nihei ’934 with respect to ‘determining
with the computer program an additional command to be initiated on the
basis of the information about the abort condition.’” Id. at 13. As discussed
above, however, Nihei teaches via the exception operation the concept of
determining with the computer program an additional command to be
initiated on the basis of the information about the abort condition.
The Examiner further relies on paragraph 216 of Eliuk for the concept
of correcting errors by repeating a failed command. Final Act. 4. However,
according to Appellant, “the repeated ‘failed command’ cannot reasonably
be interpreted as an ‘additional command to be initiated,’ as recited in claim
11, because the repeated command is simply the same one that was
previously attempted” (Appeal Br. 13).
In response to Appellant’s contention, the Examiner states “that a
repeated failed command can be understood to teach an ‘additional
command’ according to [the] broadest reasonable interpretation.” Ans. 12.
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Application 13/426,854
The Examiner further states: “Accepted definitions of ‘additional’ are
‘added, extra or supplementary’; this does not preclude a repeated command
from being considered an additional command since a repeated additional
command is still an extra/supplementary command that is done in addition to
the initial command” especially “[sjince [Appellant] has not provided any
unexpected definition for ‘additional’ in the specification.” Id.
Given that Appellant has not provided a definition for nor disavowed
any particular meaning of an “additional command” in the Specification, we
are not apprised of error in the Examiner’s conclusion that a repeated failed
command as taught by Eliuk may be considered an additional command as
recited in claim 11.
Appellant contends that Eliuk discloses at paragraph 230 “that
‘[fjailed, contaminated, corrupt, or otherwise unsalvageable items are output
as rejects,’ and that the APAS may ‘re-queue one or more drug orders that
may be affected by the errors.’ However, such actions are not initiated ‘on
the basis of the information about the abort condition.’” Appeal Br. 13—14;
see also Reply Br. 6.
As discussed above, Nihei teaches via the exception operation the
concept of determining with the computer program an additional command
to be initiated on the basis of the information about the abort condition.
Thus, regardless of what Eliuk may disclose regarding various types of
detectable errors, discharging unsalvageable items as rejects, or re-queueing
one or more drug orders that may be affected by the errors, Nihei teaches
taking an action in the form of an additional command on the basis of the
information about the abort condition.
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Based on the foregoing reasons, we sustain the Examiner’s rejection
of claim 11 over the combined teachings of Nihei and Eliuk. We also
sustain the Examiner’s rejection of dependent claims 12—16 and 18—21, and
independent claim 22, which fall with claim 11. However, we denominate
the affirmance of the rejection of these claims as a NEW GROUND OF
REJECTION pursuant to 37 C.F.R. § 41.50(b), because our analysis relies
upon facts and reasoning that the Examiner did not use.
Obviousness over Nihei, Eliuk, and Maschke
Claim 17
Appellant contends that Maschke fails to cure the alleged deficiencies
of Nihei and Eliuk in rendering obvious claim 11. Appeal Br. 15.
According to Appellant, Maschke “at least fails to teach or suggest
determining with the computer program an additional command to be
initiated on the basis of the information about the abort condition,’ as set
forth in claim 11.” Id.
For reasons set forth above, the combination of Nihei and Eliuk
discloses the steps of “determining with the computer program an additional
command to be initiated on the basis of the information about the abort
condition.”
Accordingly, we sustain the Examiner’s rejection of claim 17 over the
combined teachings of Nihei, Eliuk, and Maschke. We denominate the
affirmance of the rejection of claim 17 as a NEW GROUND OF
REJECTION.
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Application 13/426,854
DECISION
We AFFIRM the decision of the Examiner to reject claims 11—22.
Because the fact finding and reasoning relied on by the Board to
sustain the rejections differs somewhat from the facts and reasoning relied
on by the Examiner, we designate our affirmance of the rejections of these
claims as NEW GROUNDS OF REJECTION so as to provide Appellant
with a full and fair opportunity to respond to the thrust of the rejections.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “new ground[s] of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to the
examiner. The new ground of rejection is binding upon the
examiner unless an amendment or new Evidence not previously
of Record is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the
decision. Should the examiner reject the claims, appellant may
again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request
for rehearing must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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; 37 C.F.R, $ 41.50(b)
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