Ex Parte HansenDownload PDFPatent Trial and Appeal BoardMar 26, 201412107999 (P.T.A.B. Mar. 26, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PETER A. HANSEN ____________ Appeal 2011-013597 Application 12/107,999 Technology Center 2100 ____________ Before JOSEPH F. RUGGIERO, JOHNNY A. KUMAR, and CATHERINE SHIANG, Administrative Patent Judges. RUGGIERO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection of all of the pending claims 1-23. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Rather than reiterate the arguments of Appellant and the Examiner, we refer to the Appeal Brief (filed May 6, 2011), the Answer (mailed July 8, 2011), and the Reply Brief (filed Aug. 31, 2011) for the respective details. We have considered in this decision only those arguments Appellant actually Appeal 2011-013597 Application 12/107,999 2 raised in the Briefs. Any other arguments that Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). Appellant’s Invention Appellant’s invention relates to the adjustment of the output of a cooling device, and an operation of at least one of a plurality of electronic devices in an electronic device enclosure in response to a thermal event or power event. The adjustment is performed according to a policy that considers the power consumption of the cooling device and the electronic devices. See generally Abstract. Claim 1 is illustrative of the invention and reads as follows: 1. A method for use in an electronic device enclosure, comprising: monitoring for an event in the electronic device enclosure that includes a plurality of electronic devices, wherein the event includes one of a thermal event and a power event; and in response to the event, adjust an output of a cooling device in the electronic device enclosure, and adjust an operation of at least one of the electronic devices, wherein adjusting the output of the cooling device and operation of the at least one of the electronic devices is according to a policy that considers power consumption of the cooling device and the electronic devices and that specifies that a total power consumption is not to exceed a target level, and wherein the total power consumption includes a power consumption of the cooling device and a power consumption of the electronic devices. Appeal 2011-013597 Application 12/107,999 3 The Examiner’s Rejections The Examiner’s Answer cites the following prior art references: Garnett US 2004/0158771 A1 Aug. 12, 2004 Irving US 6,871,300 B1 Mar. 22, 2005 McGrane US 2008/0178029 A1 July 24, 2008 Kumar US 7,418,608 B2 Aug. 26, 2008 (filed June 17, 2004) Culbert US 7,451,332 B2 Nov. 11, 2008 (filed Aug. 12, 2004) Claims 1-4, 7, 8, 10-19, and 21-23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Irving in view of Culbert and McGrane. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Irving in view of Culbert, McGrane, and Garnett. Claims 9 and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Irving in view of Culbert, McGrane, and Kumar. ANALYSIS Claims 1-4, 7, 12-19, and 20-23 Appellant contends, with respect to the obviousness rejection of independent claims 1, 16, and 18, that McGrane does not overcome what the Examiner (Ans. 6-7) has identified as the deficiency in the Irving/Culbert combination. This deficiency involves the failure to teach or suggest a power consumption policy that specifies that total power consumption is not to exceed a target level. In particular, Appellant contends that McGrane has no teaching or suggestion that the total power consumption includes power consumption of the cooling device and the power consumption of the electronic devices, a feature present in each of the appealed independent claims. According to Appellant, the devices in McGrane for which power Appeal 2011-013597 Application 12/107,999 4 consumption is considered are actual operational devices such as servers and network devices and are distinguished from other components of McGrane such as the cooling fan. App. Br. 8; Reply Br. 3-4 (citing McGrane, ¶¶ [0021]-[0023] and [0028]). We find Appellant’s arguments unpersuasive of error in the Examiner’s stated position (Ans. 7). As explained by the Examiner, McGrane’s computer 110 includes a baseboard management controller (BMC) 198 that monitors the power level of the entire computer including cooling fans, the speed of which are monitored by the BMC. We agree with the Examiner that an ordinarily skilled artisan would have recognized and appreciated that the cooling fans would draw power from the computer and would necessarily be part of the power consumption consideration of the entire computer. Ans. 17. Appellant’s arguments emphasize that McGrane’s discussion of power consumption of “devices” does not specifically mention power consumption of the cooling fan. App. Br. 8-9; Reply Br. 4. Appellant’s arguments, however, do not demonstrate how the Examiner erred in determining that the inferences drawn from the disclosure of McGrane would suggest to the ordinarily skilled artisan that cooling fan power consumption would be considered in the total power consumption of the computer device. The Supreme Court has held that in analyzing an obviousness rationale, a court need not find specific teachings, but rather may consider “the background knowledge possessed by a person having ordinary skill in the art” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Appeal 2011-013597 Application 12/107,999 5 In view of the above discussion, we sustain the Examiner’s obviousness rejection of independent claims 1, 16, and 18, as well as the rejection of dependent claims 2-4, 7, 12-15, 17, and 19-23 not separately argued by Appellant. Dependent claims 5 and 6 We also sustain the Examiner’s obviousness rejection of dependent claims 5 and 6. We find Appellant’s conclusory arguments (App. Br. 14) unpersuasive of error in the Examiner’s finding that Garnett teaches or suggests the claimed feature of determining maximum power system output which is the target level of the power subsystem. Ans. 13 (citing Garnett, ¶¶ [0172], [0249]-[0251], [0254], [0255], and [0261]). Dependent claims 8-11 The Examiner’s obviousness rejection of dependent claims 8 and 11, as well as the rejection of dependent claims 9 and 10 not separately argued by Appellant, is also sustained. Appellant contends, with respect to dependent claim 8, that the Examiner erred in determining that the “thresholds” mentioned by Culbert correspond to the claimed adjustment of a “cap setting” of an electronic device. According to Appellant, the “thresholds” discussed by Culbert refer to the control of the behavior of a sensor, not the adjustment of the operation of an electronic device. App. Br. 11; Reply Br. 5. We do not agree with Appellant. As explained by the Examiner, the environmental sensors 211-219 of Culbert are instrumented within the housing of the data processing system, and the thresholds of the sensors are Appeal 2011-013597 Application 12/107,999 6 adjusted to control the responsiveness of the data processing system, i.e., the electronic device. Ans. 21-22 (citing Culbert, col. 9, ll. 18-23, col. 21, ll. 14- 23, and col. 22, ll. 1-15). With respect to dependent claim 11, Appellant has challenged the Examiner’s taking of Official Notice to address the cap settings request feature of the rejected claim. As pointed out by the Examiner (Ans. 22-23), however, Appellant’s challenge was not made in response to the non-final rejection and appears for the first time in the Appeal Brief. Accordingly, the challenge to the Examiner’s taking of Official Notice has not been seasonably made during examination. See In re Chevenard, 139 F.2d 711 (CCPA 1943). Lastly, even assuming, arguendo, that Appellant’s challenge was timely filed, we agree with the Examiner that Culbert teaches or suggests the claimed feature. Ans. 23. We find, at the very least, that the operation of Culbert’s platform manager 1321 that monitors the operation of the environmental sensors, i.e., gathers threshold information, can broadly, but reasonably, be considered to satisfy the cap settings request feature of claim 11. Appeal 2011-013597 Application 12/107,999 7 CONCLUSION OF LAW Based on the analysis above, we conclude that the Examiner did not err in rejecting claims 1-23 for obviousness under 35 U.S.C. § 103(a).1 DECISION We affirm the Examiner’s decision rejecting claims 1-23 under 35 U.S.C. § 103(a). 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 msc 1 We note that independent claim 18 recites “[a]n article comprising at least one computer readable storage medium containing instructions . . . .” However, Appellant’s Specification does not define computer readable storage medium to exclude transitory media. Consequently, the claimed storage medium encompasses transitory media, which is not patent eligible. See Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential). In the event of further prosecution, the Examiner should consider rejecting claims 18-20 and 23 under 35 U.S.C. § 101 as being directed to non- statutory subject matter Copy with citationCopy as parenthetical citation