Ex Parte Hansen

Patent Trial and Appeal Board

Mar 26, 2014

12107999 (P.T.A.B. Mar. 26, 2014)

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
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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.

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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
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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).
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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
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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.

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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