Ex Parte HahnDownload PDFPatent Trial and Appeal BoardMay 20, 201613004911 (P.T.A.B. May. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/004,911 01112/2011 26096 7590 05/24/2016 CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 FIRST NAMED INVENTOR Gregory W. Hahn 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. 60298-639US1; ST 357 1475 EXAMINER PLAKKOOTTAM, DOMINICK L ART UNIT PAPER NUMBER 3746 NOTIFICATION DATE DELIVERY MODE 05/24/2016 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): ptodocket@cgolaw.com cgolaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY W. HAHN Appeal2014-003331 1 Application 13/004,911 2 Technology Center 3700 Before HUBERT C. LORIN, BRUCE T. WIEDER, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's decision finally rejecting claims 1 and 6. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Throughout this opinion, we refer to the Appeal Brief ("Appeal Br.," filed Aug. 5, 2013), the Reply Brief ("Reply Br.," filed Jan. 7, 2014), the Examiner's Answer ("Ans.," mailed Nov. 7, 2013), the Final Office Action ("Final Act.," mailed Mar. 19, 2013), and the Specification ("Spec.," filed Jan. 12, 2011). 2 According to the Appellant, the real party in interest is Danfoss Scroll Technologies LLC. Appeal Br. 1. Appeal2014-003331 Application 13/004,911 STATEMENT OF THE CASE The Appellant's invention is directed to "the use of motor current in a compressor to estimate a discharge pressure." Spec. ,-r 1. Claim 1 is the only independent claim on appeal, is exemplary of the subject matter on appeal, and is reproduced below: 1. A compressor comprising: a controller provided with current information for a current passing into a motor associated with said compressor, said compressor including a compressor pump unit driven by said motor, and a discharge line; said controller being programmed to utilize said current information to predict a discharge pressure at the discharge of the compressor; and said controller also taking in information from a location remote from said compressor and utilizing said information to calculate an alternative discharge pressure estimate, and said alternative discharge pressure estimate being compared to said discharge pressure estimate based upon current, and an indication of a potential problem being made should said two pressures differ by more than a predetermined amount. Appeal Br. 5, Claims App. REJECTIONS3 Claims 1 and 6 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. Ans. 2. 3 The Examiner indicates the rejections are new grounds, but based on the rejection of canceled claim 4, the limitations of which have been incorporated into independent claim 1. Ans. 2. The Appellant has chosen to maintain the appeal and has addressed the new grounds. See Reply Br. 2; Appeal Br. 3; see also 37 C.F.R. § 41.39(b). 2 Appeal2014-003331 Application 13/004,911 Claims 1and6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Saito (US 2009/0041598 Al, pub. Feb. 12, 2009), Shibamoto (US 6,607,367 Bl, iss. Aug. 19, 2003), and Bloms (US 2005/0051119 Al, pub. Mar. 10, 2005). Ans. 3. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence. 4 ANALYSIS 35 u.s.c. § 112 The Examiner finds claim 1, and claim 6 based on its dependence from claim 1, indefinite and failing to comply with the requirement of 35 U.S.C. § 112, second paragraph, of particularly pointing out and distinctly claiming the subject matter, because it is "unclear what specific information is used to calculate [the] alternative discharge pressure. Claim l makes no reference to the exact information used to ascertain the alternative pressure estimate." Ans. 2. Particularly, the Examiner finds that "it is unclear whether the Appellant wishes to claim both direct and non-direct methods of calculating an alternative discharge pressure [and] without a disclosure of what specific information is used to calculate the discharge pressure, this limitation is unclear and not merely broad." Id. at 7. 4 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). 3 Appeal2014-003331 Application 13/004,911 The Appellant contends the rejection is in error because "[t]he claim is merely broad and not indefinite even if it is 'unclear where exactly this information is gathered from.'" Appeal Br. 2. The Appellant argues that one of ordinary skill in the art, based on the Specification, "would know one set of specific steps" and "would recognize that there are potentially other methods ... which could provide the information." Id. The Specification provides that "the controller is also estimating a discharge pressure PDT, or one based upon the temperature information from the condenser temperature sensor 26. These can be compared." Spec. ,-r 18. We agree with the Appellant that the claim is broad (see Appeal Br. 2), but "[b]readth is not indefiniteness." See In re Gardner, 427 F.2d 786, 788 (1970). One of ordinary skill in the art would be able to ascertain the subject matter which the Appellant regards as the invention. Therefore, we do not sustain the rejection of claims 1 and 6 under 3 5 U.S.C. § 112, second paragraph. 35 u.s.c. § 103 The Appellant argues claims 1 and 6 as a group. See Appeal Br. 2. We select independent claim 1 as representative, and dependent claim 6 stands or falls with claim 1. See 37 C.F.R. § 41.37 (c)(l)(iv) (2014). We have reviewed the Appellant's contention that the Examiner has erred in the rejection of claim 1, as well as the arguments presented in the Appeal and Reply Briefs. See Appeal Br. 2-3, Reply Br. 2. We do not agree with the contention and find the arguments unpersuasive. For example, the Appellant's argument that Saito's "utilizing motor torque in combination with a compressor suction pressure" does not disclose 4 Appeal2014-003331 Application 13/004,911 "utilizing the current sent to a motor to predict a pressure, with the pressure then being utilized by a controller to control a refrigerant system" (Appeal Br. 2-3), is unpersuasive at least because it is not commensurate with the scope of the claim. Claim 1 does not recite the controller utilizing the pressure "to control a refrigeration system." Rather, claim 1 recites the controller taking in information, utilizing the information to calculate an alternative discharge pressure, comparing the alternative discharge pressure to the discharge pressure estimate based on the current, and making an indication of a potential problem. Claims App. The Appellant's argument is also unpersuasive because it is an argument against the reference Saito individually when the Examiner relies on the combination of Saito, Shibamoto, and Bloms to disclose claim 1. The test for obviousness is not what any one reference would have suggested, but rather what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 426 (CCPA 1981). "[O]ne cannot show non-obviousness by attacking references individually were, as here, the rejections are based on combinations of the references." Id. Regardless, the Appellant does not provide sufficient evidence or technical reasoning to rebut the Examiner's finding that Saito discloses a controller being provided with current information and being programmed to utilize the current information to predict a discharge pressure. See Ans. 3--4. The Appellant summarily concludes that Saito does not utilize the current sent to the motor to predict a pressure (Appeal Br. 2), but has not identified error in the Examiner's findings that Saito discloses a compressor comprising a controller provided with phase current information and being programmed to utilize the current information to predict a compressor 5 Appeal2014-003331 Application 13/004,911 discharge pressure based on motor torque and estimated suction pressure. See Ans. 3--4 (citing Saito i-f 9). The Appellant's argument that Bl oms' s comparison of "an actual sensed pressure to a predicted pressure" is not the same as "two distinct predicted discharge pressures are compared" as required by claim 1 (Appeal Br. 3) is not persuasive at least because it is not commensurate with the scope of the claim. Claim 1 does not require that "one [] develop two non- sensed ways of identifying a pressure that could then be compared" (See Reply Br. 2), i.e., claim 1 does not recite that the predicted and calculated discharge pressures must be "non-sensed." The Appellant's argument that Bloms teaches a check in a sensed pressure and does not teach comparing two signals to identify a failure in one of the signals (Reply Br. 2) is not persuasive. Bloms discloses at paragraph 64: controller 100 may monitor the pressure within cylinder 22 as a function of the crankshaft 27 angle and/or piston 24 position[,] may also determine an estimated cylinder pressure as a fi.1nction of piston position for the current engine operating conditions, [and] may compare the monitored cylinder pressure to the predicted cylinder pressure at different piston positions. A significant difference between the predicted cylinder pressure and the monitored cylinder pressure many indicate that valve actuator 70 is not functioning properly. Thus, the Examiner's finding that Bl oms discloses "a controller that is capable of comparing two different pressures to determine if there is a problem in the system if the difference between the two pressures exceeds a significant predetermined value" (Ans. 5) is reasonable and adequately supported. 6 Appeal2014-003331 Application 13/004,911 We further find unpersuasive the Appellant's arguments that Saito, Shibamoto, and Bloms cannot be properly combined because there are no clear reasons to do so. See Appeal Br. 3; see also Reply Br. 2. The Examiner finds Saito discloses a compressor comprising a controller provided with current information and being programmed to utilize the current information or predict a discharge pressure. See Ans. 3--4. The Examiner further finds Saito does not disclose the controller taking in information from a remote location to predict an alternate discharge pressure (see id. at 4), and relies on Shibamoto for disclosing a controller utilizing data from sensors remotely located from the compressor to predict or calculate a discharge pressure. Id. The Examiner reasons it would be obvious to modify Saito' s controller to use data from remote sensors to predict an alternate discharge pressure "in order to provide a failsafe backup mechanism to detect discharge pressures in the event that Saito' s method of predicting discharge pressures fails." Id. The Examiner also finds Saito does not disclose comparing the two discharge pressure estimates to determine if there is a potential problem (id. at 4--5), and, as discussed above, relies on Bloms for disclosing this feature. See id. at 5. The Examiner reasons it would be obvious to improve Saito' s controller "by adding pressure comparison logic, similar to the logic taught by Bloms, in order to compare the predicted discharge pressures (as predicted by Saito' s method and Shibamoto' s method) to determine if there is an impending problem in the compressor or refrigerant circuit." Ans. 5 (citing Bl oms ii 64). Thus, the Examiner has established a prima facie case of obviousness as the Examiner has provided articulated reasoning with rational 7 Appeal2014-003331 Application 13/004,911 underpinning to support a legal conclusion of obviousness. See KSR Int' I Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The Appellant does not provide adequate evidence or technical reasoning why the Examiner's stated reasons for combining are in error. The Appellant argues that "there is absolutely no reason to modify Saito with Shibamoto[], and further Bloms" because, as Saito calculates a discharge pressure, "[ t ]here would be no reason to come up with an alternative way to predict a pressure, and thus Shibamoto []would provide no function or benefit into Saito." Appeal Br. 3. The Appellant further argues that the Examiner's reliance on Bloms for comparing two discharge pressures "shows the failure of the Shibamoto [] modification" because it is not clear the benefit Shibamoto would add into Saito "if it requires an additional check." Id. However, as noted above, the Examiner finds that the benefit to combining Shibamoto' s alternate way to predict pressure would be to "provide a failsafe backup" of detecting discharge pressures (Ans. 4), and the benefit of Bloms's comparison of two pressure would be to "determine if there is an impending problem in the compressor" (id. at 5). The Appellant's arguments do not persuasively rebut or find error in the Examiner's reasons for combining. Thus, we sustain the Examiner's rejection of independent claim 1, and also dependent claim 6, under 35 U.S.C. § 103(a). DECISION The Examiner's rejection of claims 1 and 6 under 35 U.S.C. § 112, second paragraph, is REVERSED 8 Appeal2014-003331 Application 13/004,911 The Examiner's rejection of claims 1 and 6 under 35 U.S.C. § 103(a) is AFFIRMED. 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 9 Copy with citationCopy as parenthetical citation