Ex Parte Giers

Board of Patent Appeals and Interferences

Apr 13, 2004

09403115 (B.P.A.I. Apr. 13, 2004)

The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte BERNHARD GIERS
____________
Appeal No. 2002-1187
Application No. 09/403,115
____________
ON BRIEF
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Before THOMAS, FLEMING, and DIXON, Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 10-25,
which are all of the claims pending in this application.
We REVERSE.
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BACKGROUND
Appellant's invention relates to a microprocessor system for safety-critical control
systems. An understanding of the invention can be derived from a reading of
exemplary claim 10, which is reproduced below.
10. Microprocessor system for safety-critical control operations,
comprising:
a plurality of central processing units which are connected, by way
of separate bus systems, to read-only memories and random-access
memories that also have memory locations for test data, wherein said
plurality of central processing units are further connected to input and
output units and to comparators which check the output data or output
signals of the central processing units for correlation, wherein the central
processing units execute the same program and communicate with each
other by way of the bus systems, and wherein the bus systems are
interconnected by bypasses which enable the central processing units to
jointly read and process the existing data, including the test data and
commands,
redundant periphery units into at least two complete control signal
circuits and are interconnected in such a manner that, upon failure of a
central processing unit or associated components, the faulty central unit
can be identified by a majority decision in an identification stage, and an
emergency operation function is maintained, wherein in the emergency
operation function, redundant data processing and comparison of the data
processing results for correlation is maintained and non-correlation or the
occurrence of differences between the data processing results or
intermediate results is signalled, and wherein a delivery of output signals
or control signals by the inclusion of or as a function of the faulty system
or the faulty central unit is prevented.
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The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Smith et al. (Smith ‘347) 4,967,347 Oct. 30, 1990
Mutone 5,086,499 Feb. 04, 1992
Giers (Giers ‘082) DE 43 41 082 Jun. 08, 1995
Giers (Giers ‘434) DE 195 29 434 Feb. 13, 1997
Smith, S.E., “Triple Redundant Fault Tolerance: A Hardware Implemented Approach,”
ISA Transactions, Vol. 30, Number 4, pages 87-95, 1991. (Smith article)
Claims 10-25 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Giers (‘434 or ‘082) in view of (Smith ‘347 or Mutone or Smith article).
Rather than reiterate the conflicting viewpoints advanced by the examiner and
appellant regarding the above-noted rejections, we make reference to the examiner's
answer (Paper No. 17, mailed Dec. 28, 2001) for the examiner's reasoning in support of
the rejections, and to appellant's brief (Paper No. 16, filed Nov. 5, 2001) for appellant's
arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by appellant and the examiner. As a consequence of
our review, we make the determinations which follow.
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35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that the reference teachings would appear to be
sufficient for one of ordinary skill in the relevant art having the references before him to
make the proposed combination or other modification. See In re Lintner, 458 F.2d
1013, 1016, 173 USPQ 560, 562 (CCPA 1972). Furthermore, the conclusion that the
claimed subject matter is prima facie obvious must be supported by evidence, as
shown by some objective teaching in the prior art or by knowledge generally available to
one of ordinary skill in the art that would have led that individual to combine the relevant
teachings of the references to arrive at the claimed invention. See In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Rejections based on § 103 must
rest on a factual basis with these facts being interpreted without hindsight
reconstruction of the invention from the prior art. The examiner may not, because of
doubt that the invention is patentable, resort to speculation, unfounded assumption or
hindsight reconstruction to supply deficiencies in the factual basis for the rejection. See
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177 (CCPA 1967), cert. denied,
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389 U.S. 1057 (1968). Our reviewing court has repeatedly cautioned against employing
hindsight by using the appellant's disclosure as a blueprint to reconstruct the claimed
invention from the isolated teachings of the prior art. See, e.g., Grain Processing
Corp. v. American Maize-Prods. Co., 840 F.2d 902, 907, 5 USPQ2d 1788, 1792 (Fed.
Cir. 1988).
When determining obviousness, "the [E]xaminer can satisfy the burden of
showing obviousness of the combination `only by showing some objective teaching in
the prior art or that knowledge generally available to one of ordinary skill in the art would
lead that individual to combine the relevant teachings of the references.’" In re Lee,
277 F.3d 1338, 1343, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002), citing In re Fritch,
972 F.2d 1260, 1265, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992). "Broad conclusory
statements regarding the teaching of multiple references, standing alone, are not
‘evidence.'” In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999). "Mere denials and conclusory statements, however, are not sufficient to
establish a genuine issue of material fact." Dembiczak, 175 F.3d at 999-1000,
50 USPQ2d at 1617, citing McElmurry v. Arkansas Power & Light Co., 995 F.2d
1576, 1578, 27 USPQ2d 1129, 1131 (Fed. Cir. 1993).
Further, as pointed out by our reviewing court, we must first determine the scope
of the claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d
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1362,1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998). Therefore, we look to the
language of independent claim 10 which recites “into at least two complete control
signal circuits and are interconnected in such a manner that, upon failure of a central
processing unit or associated components, the faulty central unit can be identified by a
majority decision in an identification stage, and an emergency operation function is
maintained . . . .” Appellant argues that the Giers references do not teach the use of an
identification stage for identifying the faulty central processing unit. (See brief at page
7.) Appellant argues that Giers does not require the identification stage because these
references teach only two microcomputers (whereas the present invention uses two
complete and one incomplete computer system). We agree with appellant that there is
no teaching or suggestion of the use of an identification stage as claimed in Giers ‘434
and Giers ‘082. Nor do we find a teaching or suggestion in Smith (Smith article or
Smith ‘347) of the use of an identification stage as claimed in independent claim 10.
We agree with appellant that the use of three complete computation devices in Smith
are more directed to the removal of the faulty device and not to the identification and
continued emergency operation of the remaining system. (See brief at page 7.)
Appellants argue that there is no motivation to modify the teachings of Giers to
add a third data processing system that cooperates with the second incomplete data
processing system and the first complete data processing system as in the present
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invention. (See brief at pages 7-8.) Appellant further argues that because the Giers
references disclose only two microcomputer and Smith disclosed three completely
redundant systems, it would not have been obvious to one of ordinary skill in the art at
the time of the invention to combine the teaching to achieve a hybrid system with two
complete systems and one incomplete system. We agree with appellant, and find no
convincing line of reasoning by the examiner as to why it would have been obvious to
one of ordinary skill in the art at the time of the invention to add an additional complete
system to the hybrid system of Giers. While the language of independent claim 10
does not explicitly require the two complete and one incomplete system, we find that
the recitation of plural bypasses and a majority decision would require that there be
more than two systems for the emergency operation function maintained having
redundant data processing and comparison and correlation as claimed. Appellant
argues that there is no motivation to combine the systems of Giers and Smith and
that the examiner’s combination is based upon impermissible hindsight. (See brief at
page 8.) We agree with appellant.
The examiner maintains that the above arguments are not supported by the
language of the claims. (See answer at page 8.) We disagree with the examiner as
discussed above.
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With respect to the combination of the Giers references with Mutone, appellant
relies on the arguments above. The examiner maintains that Mutone teaches a
redundant process with fault identification. (See answer at page 7-9.) While we agree
with the examiner that Mutone identifies faults and has continued operation while the
fault is corrected, Mutone does not teach or fairly suggest the emergency operation
function maintained having redundant data processing and comparison and correlation
as claimed. In the claimed invention, there is required continued redundant operation
which would not be possible with only two redundant processors of Mutone and one
being faulty. Therefore, this argument is not persuasive by the examiner. Similarly, we
find no persuasive showing by the examiner that it would have been obvious to one of
ordinary skill in the art at the time of the invention to combine the teachings of Giers
and Mutone. Therefore, we again find the use of impermissible hindsight in the
examiner’s rejection. Therefore, we will not sustain the rejection of independent claim
10 and its dependent claims 11-17.
We find similar limitations in independent claim 18 and a lack of a prima facie
case of obviousness by the examiner. Therefore, we will not sustain the rejection of
independent claim 18 and its dependent claims 19-25.
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CONCLUSION
To summarize, the decision of the examiner to reject claims 10-25 under
35 U.S.C. § 103 is reversed.
REVERSED
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOSEPH L. DIXON )
Administrative Patent Judge )
JLD/vsh
Appeal No. 2002-1187
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