Ex Parte Fu

Board of Patent Appeals and Interferences

Nov 9, 2011

11342086 (B.P.A.I. Nov. 9, 2011)

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.
11/342,086 01/27/2006 Chunsheng Fu 10291 1825
27752 7590 11/10/2011
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
GAMI, TEJAL
ART UNIT PAPER NUMBER
2122
MAIL DATE DELIVERY MODE
11/10/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHUNSHENG FU
____________________

Appeal 2009-008734
Application 11/342,0861
Technology Center 2100
____________________

Before LANCE LEONARD BARRY, JAY P. LUCAS, and JOHN A.
JEFFERY, Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals from a final rejection of claims 1 to 20 under
authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and
Interferences (“BPAI” or “the Board”) has jurisdiction under
35 U.S.C. § 6(b).

1 Application filed January 27, 2006. The real party in interest is the Proctor
& Gamble Co. of Cincinnati, Ohio.
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We affirm the rejections.

Appellant’s invention relates to a method of controlling batch
processes in accordance with a certain formula. In the words of Appellant:
The use of process controllers is also well
known. The steps set forth in the sequence
function chart may be programmed into the
memory of a process controller used to control
and/or monitor a particular batch process. The
steps may then be executed to carry out the steps
of a particular batch recipe. Altering the steps of
such a programmed recipe requires altering the
coded programming of the process controller, or of
a recipe server that has been adapted to serve
programmed recipes to the process controller.
. . . .
A method controls a process. The method
includes the step of providing a first controller.
The first controller’s configuration enables it to
receive inputs and to control outputs based upon a
predetermined relationship between those inputs
and outputs. The method also includes defining
the process as a recipe which in tum comprises a
collection of tasks. At least one task of the recipe
is defined in terms of subtasks which are defined
in terms of conditions. The following formulae
express the relationship between the at least one
task, its subtasks and the conditions of the
subtasks:

Task(i) represents the ith task of the recipe, G(i,j)
represents the jth subtask of Task(i), C(i,j,k)
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represents the kth condition of the G(i,j) subtask,
“ ” represents an “AND” relationship and “ ”
represents an “OR” relationship. The method
associates at least one condition C(i,j,k) with a real
or virtual input of the controller. The method
alters the value of at least one real or virtual output
when all of the conditions C(i,j,k) of at least one
subtask G(i,j) of the at least one task Task(i) are
satisfied.
(Spec. 1, ll. 13-18; Spec. 1, l. 28 – Spec. 2, l. 14).
The following illustrates the claims on appeal:
Claim 1:
1. A method of controlling a batch process, said
method comprising steps of:

a) providing a first controller adapted to receive
inputs and to control outputs based upon a
predetermined relationship between inputs and
outputs,

b) defining the batch process as a batch recipe
comprising a collection of tasks,

c) defining at least one task in terms of subtasks,
and subtasks in terms of conditions according to
the formulae:

wherein, “ ” represents an “AND” relationship
and “ ” represents an “OR” relationship,

d) associating at least one condition with an input
of the controller,

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e) altering a value of at least one output associated
with the at least one task when all of the C(i,j,k)
conditions of at least one G(i,j) subtask are
satisfied.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brandl Us 6,834,370 B1 Dec. 21, 2004

Wikipedia, “S88,” http://en.wikipedia.org/wikilS88 (2007).

Parshall and Lamb, Applying S88: Batch Control from a User’s
Perspective 11, 54, 108, 121, 138 (The Instrumentation, Systems, and
Automation Society 2000).

REJECTION
The Examiner rejects the claims as follows:

Claims 1 to 20 stand rejected under 35 U.S.C. § 102(b) for being
anticipated by Brandl.

We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUE
The issue is whether Appellant has shown that the Examiner erred in
rejecting the claims under 35 U.S.C. § 102(b). The issue specifically turns
on whether Brandl teaches the definition of the subtasks in terms of the
conditions in accordance with the formula in the claims.
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FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Appellant has invented a method of controlling a process
in accordance with the following formula:

Task(i) represents the ith task of the recipe, G(i,j)
represents the jth subtask of Task(i), C(i,j,k)
represents the kth condition of the G(i,j) subtask,
“ ” represents an “AND” relationship and “ ”
represents an “OR” relationship. The method
associates at least one condition C(i,j,k) with a real
or virtual input of the controller. The method
alters the value of at least one real or virtual output
when all of the conditions C(i,j,k) of at least one
subtask G(i,j) of the at least one task Task(i) are
satisfied.
(Spec. 2, ll. 4-14).

2. The process is presented in the form of a control recipe, comprised of
tasks, each of which may be comprised of subtasks. A subtask is
performed when a plurality of conditions are satisfied. (Spec 2, l. 15).
3. Batch processes of the type claimed are used to control “mixing,
brewing, baking and other cooking processes. Exemplary continuous
processes to which the method has applicability include steel making,
glass making, paper and other web material manufacturing.” (Spec. 2,
ll. 29-32).
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4. The Brandl reference creates, from a general manufacturing
processing recipe, site recipes customized for the equipment and
conditions specific to a site in accordance with an industry standard,
ISA S88.01. (Col. 2, ll. 50-68). The recipes are divided into
subcomponents, performed in accordance with the conditions of the
site. (Col. 23, l. 48 to Col. 24, l. 58; Fig. 9).

PRINCIPLES OF LAW

Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a
rejection [under § 103] by showing insufficient evidence of prima facie
obviousness or by rebutting the prima facie case with evidence of secondary
indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)).

In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citation omitted).
Anticipation of a patent claim requires a finding
that the claim at issue ‘reads on’ a prior art
reference. In other words, if granting patent
protection on the disputed claim would allow the
patentee to exclude the public from practicing the
prior art, then that claim is anticipated, regardless
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of whether it also covers subject matter not in the
prior art.

Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed. Cir. 1999)
(internal citations omitted).
ANALYSIS

Arguments with respect to the rejection
of claims 1 to 20
under 35 U.S.C. § 102(b)

The Examiner has rejected the noted claims for being anticipated by
Brandl. Appellant disagrees, arguing that the cited reference fails to teach or
suggest defining the at least one task in terms of subtask and conditions in
accordance with the formula recited above in FF#1. (App. Br. 3, middle).
More particularly, the Appellant asserts that Brandl does not provide a
definition of conditions in which a subtask G(i,j) alters values of an output
when all of the conditions C(i, j, k) of that subtask are satisfied. (App. Br.
4, middle).
The Examiner considers the Brandl reference with respect to the
process disclosed in Figure 54 and Figure 9, interpreting the flow charts in
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accordance with the ISA S88 terminology employed by Brandl. For
example, Figure 9 is reproduced below:

Brandl’s Figure 9 illustrates a block diagram of an embodiment of the
invention in Brandl.

The Examiner explains that in accordance with the ISA standard:
The ISA S88 standard is a graphical approach to
programming/controlling a batch process. Even
though appellant’s do not [c]laim a graphical
approach, appellant’s specification Page 1, Lines
11-12 discloses appellant’s controlling a batch
process with steps set forth in a sequence function
chart. The “steps” are blocks of code/programs
that are put together graphically, and are called
“phases” in the standard ISA S88 terminology.
These steps/phases are shown for example in Prior
Art Figure 9 where AGITATE is the step/phase
label of a section of code, and HEAT is the
step/phase label for another section of code; and
where each section of code performs process
control such as agitating or heating. Figure 9 is an
example of sections of code that are combined
graphically using the S88 standard. The Standard
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teaches that steps/phases between double lines ===
are ANDed together, and steps/phases between a
single line ---- are ORed together (see also
Supporting Document: Applying S88 for this
Standard using ANDs and ORs graphically on
pages 11,54, 108, 121, and 138).
(Ans. 11, bottom).

Considering then this standard terminology, we read the claimed
“tasks” on Brandl as the Master Recipe depicted in the chart above, and
described in column 23, line 47. The subtasks are read on the recipe
segments or subcomponents, such as agitate and heat, that comprise the
claimed “tasks”. (Id. at l. 56). The conditions that must all be satisfied are
indicate on the notational S.88 chart: see the conditions “pH > 3.0” and “pH
<= 3.0” marked on the chart above.
We thus find that the Brandl process is expressed in terms that satisfy
the equation claimed by the Appellant to express the task/subtask/condition
relationships.
Appellant then objects, stating “[t]he master recipes created, and the
starting general recipe, are not expressed in the form of the claimed
limitation.” (App. Br. 5, top). That is, the reference does not teach relating
conditions defined in mathematical terms. (Id.).
The exact terminology used in the claim is not a necessary element of
anticipation under 35 U.S.C. § 102. (“A reference does not fail as an
anticipation merely because it does not contain a description of the subject
matter of the appealed claim in ipsissimis verbis.” Of course, anticipation
"is not an 'ipsissimis verbis' test." In re Bond, 910 F.2d 831, 832-33, 15
USPQ2d 1566, 1567 (Fed. Cir. 1990) (citing Akzo N.V. v. United States Int'l
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Application 11/342,086

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Trade Comm'n, 808 F.2d 1471, 1479 & n.11, 1 USPQ2d 1241, 1245 & n.11
(Fed. Cir. 1986)). "An anticipatory reference . . . need not duplicate word
for word what is in the claims." Standard Havens Prods. v. Gencor Indus.,
953 F.2d 1360, 1369 (Fed. Cir. 1991). In the instant case, we find that the
relationships defined in the claimed equation are expressed in the S88
standard notation and terminology of the Brandl reference.
Appellant further argues that, with respect to claim step d), the “cited
portion does not disclose relating conditions, specified as a portion of a
defined mathematical union of conditions, to an input of a process
controller.” (App. Br. 5, top). We find the claim only requires a single such
condition be associated with an input. Brandl presents numerous examples
of processes in which conditions, such as valve closures, are associated with
inputs to a controller. (E.g., Col. 4, ll. 35 to 45; col. 20, ll. 3 to 24).
Finally, with respect to claim step e), Appellant contends that the
reference does not teach all of the conditions being satisfied for a sub step
(called a subcomponent in Brandl). (App. Br. 5, middle). In Figure 19,
cited by the Examiner, we find providing the inputs (information, weighting
factors, etc.) to the conversion steps to be conditions to be satisfied. They all
must be satisfied in the process chart before a subcomponent is executed.
Thus we do not find error in the Examiner’s rejection on this point.
Other arguments expressed by the Appellant are sufficiently answered
by the Examiner, whose position on Brandl and the S88 standard disclosed
in Brandl we endorse and adopt.
CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has not shown that the Examiner erred in rejecting claims 1 to 20.
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DECISION
We affirm the Examiner’s rejection of claims 1 to 20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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