Ex Parte Kelly

Patent Trial and Appeal Board

Oct 17, 2013

11565408 (P.T.A.B. Oct. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ANDREW WAYNE KELLY
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Appeal 2011-007906
Application 11/565,408
Technology Center 3600
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Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 12-28 and 32-37.1 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The rejected claims are directed to excavation machines, in which the
position of the scraping blade or bucket is controlled with respect to the
location on the surface of the earth and with respect to the desired finished
grade of the earth (Spec., para. [0001]). Claims 12 and 25, reproduced
below and representative of the other claims on appeal, are the only
independent claims.
12. An excavation machine including:
an excavation implement;
at least one ground engaging traction device;
an engine capable of providing an engine
output and having an optimum efficiency range;
a transmission configured to provide a
torque force to the ground engaging traction device
by transferring the engine output to the ground
engaging traction device; and
a controller configured to determine whether
the engine is operating within the optimum
efficiency range and to automatically control the
position of the excavation implement, the engine

1 Our decision will refer to Appellant’s Specification (“Spec.,” filed
November 30, 2006), Appeal Brief (“App. Br.,” filed August 20, 2010), and
Reply Brief (“Reply Br.,” filed January 12, 2011), as well as the Examiner’s
Answer (“Ans.,” mailed November 12, 2010).

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output, and the amount of the torque provided by
the transmission to the at least one ground
engaging traction device based on the
determination of whether the engine is operating
within the optimum efficiency range.

25. An excavation machine including:
an excavation implement;
at least one ground engaging traction device;
a global positioning receiver for determining
the location of the excavation machine; and
a controller configured to compare actual
changes in position of the excavation machine
based on data from the global positioning receiver
and expected changes in position based on
movement of the at least one ground engaging
device and automatically adjust the position of the
excavation implement in response to the
comparison performed by the controller, the
controller including a finished earth contour depth,
the controller lowering the excavation implement
by a programmed increment when both the actual
change in position equals the expected change in
position and the excavation implement is located
above the finished earth contour depth.
THE REJECTIONS
The Examiner rejects the claims as follows:
Claims 12-19 and 33-35 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gengler (US 6,317,676 B1, iss. Nov. 13, 2001) in view of
Dietz (US 6,234,254 B1, iss. May 22, 2001);
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claims 20-24 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Gengler in view of Dietz, and further in view of Carlson (US 6,655,465
B2, iss. Dec. 2, 2003); and
claims 25-28, 32, 36, and 37 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gengler in view of Carlson.

ANALYSIS
The Examiner rejects independent claim 12 based on the combination
of Gengler and Dietz. Claim 12 requires
a controller configured to determine whether
the engine is operating within the optimum
efficiency range and to automatically control the
position of the excavation implement, the engine
output, and the amount of the torque provided by
the transmission to the at least one ground
engaging traction device based on the
determination of whether the engine is operating
within the optimum efficiency range.
For the following reasons, we agree with Appellant that the combination of
Gengler and Dietz does not teach or suggest a controller capable of
determining whether an engine is operating within an optimum efficiency
range and then automatically controlling based on such a determination, as
specifically required by claim 12.
In the Examiner’s Answer, the rejection of claim 12 states that
Gengler teaches “a controller (10) configured to automatically control the
position of the excavation implement; and wherein the controller controls
based upon at least one performance parameter such as the position of the
implement (column 6, lines 63+)” (Ans. 3-4, italics added). The Examiner
concedes that
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Gengler . . . lacks . . . a controller configured to
determine whether the engine is operating within
the optimum efficiency range and to automatically
control the engine output, and the amount of the
torque provided by the transmission to the at least
one ground engaging traction device based on the
determination of whether the engine is operating
within the optimum efficiency range.
(Ans. 3-4.) Thus, because the Examiner characterizes Gengler as controlling
based on implement position and not engine operation, the Examiner relies
on Dietz to remedy the deficiency of Gengler. Specifically, the Examiner
states with respect to Dietz,
Dietz . . . teaches an engine (204) capable of
providing an engine output and having an optimum
efficiency range; a transmission (222) configured
to provide a torque force to the ground engaging
traction device by transferring the engine output to
the ground engaging traction device; [and] a
controller (232) configured to determine whether
the engine is operating within the optimum
efficiency range and to automatically control the
engine output, and the amount of the torque
provided by the transmission to the at least one
ground engaging traction device based on the
determination of whether the engine is operating
within the optimum efficiency range; and wherein
the controller controls based upon at least one
performance parameter such as the torque
transferred by the transmission (abstract; column
2, lines 6-9; column 3, lines 40+; column 5, lines
10-18).
(Ans. 4, italics added.) Nevertheless, although the Examiner relies on Dietz
to teach controlling based on engine operation, none of the cited portions of
Dietz, in fact, discloses control based on engine operation. Instead, these
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portions of Dietz at most also discuss control based on implement position
(App. Br. 8, 10-11, Reply Br. 3-4). For example, the Abstract of Dietz states
in relevant part “[a] controller modifies the desired engine speed in response
to the angular position of the work implement” (italics added). Column 2 of
Dietz, in relevant part, only broadly states “[t]he present invention is
directed toward controlling the drive line torque of an earth working
machine, such as a wheel loader, to increase the productivity of the
machine's work cycle” (col. 2, ll. 6-9), without stating on what signal control
is based. Column 3 of Dietz states in relevant part “[t]he electronic
controller receives one or more of the above described signals and produces
an engine speed control signal to control the speed of the engine” (col 3, ll.
40-42, italics added). However, Dietz states that the “above described
signals” are “position signals produced by position sensors 246 that measure
the position of the work implement 100” (col. 3, ll. 13-15), and “pressure
signals produced by pressure sensors 244 that measure the force exerted on
the work implement 100” (col. 3, ll. 29-31). Column 5 of Dietz, in relevant
part, broadly states “[a]dvantageously, the present invention modifies the
desired engine speed to reduce rimpull in response to certain portions of the
digging cycle” (col. 5, ll. 10-12, italics added), again without specifically
stating on what signal control is based.
In KSR Int’l Co. v. Teleflex Inc., the Supreme Court stated that
“rejections on obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.” 550
U.S. 398, 418 (2007). In this case, the Examiner does not establish that
either Gengler or Dietz bases any control on engine operation. For these
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reasons, we find that the Examiner’s Answer lacks the required articulated
reason with rational underpinnings to establish that the combination of
Gengler and Dietz teaches or suggests a controller configured to determine
whether the engine is operating within the optimum efficiency range and to
automatically control based on such a determination, as required by claim
12. Therefore, we do not sustain the rejection of independent claim 12.
Claims 13-19 and 33-35 depend from independent claim 12. Thus,
we do not sustain the rejection of these dependent claims based on Gengler
and Dietz.
Claims 20-24 also depend from independent claim 12. Thus, we do
not sustain the rejection of these dependent claims based on Gengler, Dietz,
and Carlson.
With respect to independent claim 25, the Examiner rejects the claim
based on the combination of Gengler and Carlson. Claim 25 requires
a controller configured to compare actual
changes in position of the excavation machine
based on data from the global positioning receiver
and expected changes in position based on
movement of the at least one ground engaging
device and automatically adjust the position of the
excavation implement in response to the
comparison performed by the controller, the
controller including a finished earth contour depth,
the controller lowering the excavation implement
by a programmed increment when both the actual
change in position equals the expected change in
position and the excavation implement is located
above the finished earth contour depth.
For the following reasons, we agree with Appellant that the combination of
Gengler and Carlson does not teach or suggest a controller capable of
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comparing actual changes in position of the excavation machine based on
data from a global positioning receiver and expected changes in position
based on movement of a ground engaging device, and then automatically
controlling based on such a comparison, as specifically required by claim 25.
In the Examiner’s Answer, the rejection of claim 25 states
Gengler . . . shows . . . a controller (10)
configured to compare actual changes in position
of the excavation machine based on data from the
global positioning receiver (112) and expected
changes in position based on movement of the at
least one ground engaging device (114; column 1,
lines 65+) and automatically adjust the position of
the excavation implement in response to the
comparison performed by the controller and in
response to slippage of the ground engaging
traction device (column 6, lines 63+.)
(Ans. 6.) However, as Appellant point out, Gengler teaches adjusting the
position of the blade 120 based on whether the work machine 100 is slipping
more or less than desired (App. Br. 7, 15), without references to the position
of the work machine 100. The portions of Gengler identified in the
Examiner’s Answer do not teach using a GPS to determine anything other
than a speed of the work machine 100, and do not teach anything about:
determining an actual position of the work machine 100 based on the GPS;
determining an expected position of the work machine 100 based on the
movement of the blade 120; or basing control of the work machine 100 on a
comparison of these positions. Further, the Examiner does not rely on
Carlson to teach these limitations, instead relying on Carlson to teach a
finished earth contour depth (Ans. 6-7).
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In this case, the Examiner does not establish that either Gengler or
Carlson bases any control on a position of an excavating machine. For these
reasons, we find that the Examiner’s Answer lacks the required articulated
reason with rational underpinnings to establish that the combination of
Gengler and Carlson teaches or suggests a controller configured to compare
actual and expected positions of an excavating machine, and then to control
the machine based on such a comparison, as required by claim 25.
Therefore, we do not sustain the rejection of independent claim 25.
Claims 26-28, 32, 36, and 37 depend from independent claim 25.
Thus, we do not sustain the rejection of these dependent claims based on
Gengler and Carlson.
DECISION
The Examiner’s rejection of claims 12-28 and 32-37 is REVERSED.
REVERSED

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