Ex Parte Kolbet et al

Patent Trial and Appeal Board

Feb 10, 2016

12241774 (P.T.A.B. Feb. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/241,774
89955 7590
HONEYWELL/IPL
Patent Services
115 Tabor Road
P.O.Box 377
FILING DATE
09/30/2008
02/12/2016
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
David Kolbet
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.
H0020079 (002.1282) 7655
EXAMINER
JAYNE, DARNELL M
ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
02/12/2016 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):
patentservices-us@honeywell.com
DL-ACS-SM-IP@Honeywell.com
docketing@ifllaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID KOLBET,
QINGQIU GINGER SHAO,
RANDY MAGNUSON,
BRADLEY JOHN BARTON,
and AKHILESH MAEW AL
Appeal2013-005042
Application 12/241, 77 4
Technology Center 3600
Before JENNIFER D. BAHR, JAMES P. CALVE, and
MICHAEL L. WOODS, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-20. Appeal Br. 4. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and enter a NEW GROUND OF REJECTION of
claims 1-20 pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal2013-005042
Application 12/241, 77 4
CLAIMED SUBJECT MATTER
Claims 1, 8, and 15 are independent. Claim 1 is reproduced below.
1. A method for diagnostic reasoning of faults appearing in
a vehicle health monitoring system (VHM), comprising:
alternatively identifying one of a plurality of signals or
isolating a failure mode based on an input received from the
health monitoring system;
when the one of the plurality of signals is identified,
querying by a reasoner whether the signal indicts the failure
mode, wherein when the signal indicts the failure mode:
setting an intermittent watch flag for the failure
mode,
upon setting the intermittent watch flag,
incrementing a count representing a number of occurrences of
the signal as an intermittent fault,
determining whether the count exceeds a
predetermined threshold based at least in part on the
intermittent watch flag being set,
when the count exceeds the predetermined threshold,
determining the intermittent fault to be a
permanent fault, and
clearing the intermittent watch flag; and
when the signal does not indict a failure mode:
querying for one or more failure modes associated
with the signal, and
determining if any of the one or more failure
modes is indicted by any of the plurality of signals.
REJECTIONS 1
Claims 1---6, 8-13, and 15-20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Eickhoff (US 200710162782 Al; pub. July 12, 2007).
1 In an Advisory Action, mailed July 2, 2012, the Examiner indicated that
Appellants' Amendment After Final, filed July 2, 2012, overcame the final
rejection of claims 5, 12, and 19 under 35 U.S.C. § 112, second paragraph.
2
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Application 12/241, 77 4
Claims 7 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Eickhoff, Hinkley ("Interference About the Change-Point from
Cumulative Sum Tests," 1971), and Appellants' Admitted Prior Art.
ANALYSIS
Claims 1-6, 8-13, and 15-20 as unpatentable over Eickhoff
Appellants argue claims 1---6, 8-13, and 15-20 as a group. Appeal Br.
9-15. We select claim 1 as representative. 37 C.F.R. § 41.37(c)(iv). Claims
2---6, 8-13, and 15-20 stand or fall with claim 1.
The Examiner found that Eickhoff teaches an error processing method
of claim 1 that identifies a signal from a health monitoring system (Figure 1)
by receiving signals from plural sensors (Eickhoff i-f 23) and queries whether
one of the signals "indicts" a failure mode (id. i1i122, 24).2 Final Act. 3--4;
Ans. 5. The Examiner found that Eickhoff teaches that when a signal indicts
a failure mode, a diagnostic reasoner (microcontroller 7) sets an intermittent
watch flag for the failure mode; increments a count for the number of
occurrences of the signal as an intermittent fault, and determines if the count
exceeds a predetermined threshold based in part on the watch flag set. Final
Act. 4 (citing Eickhoff i1i122, 24, 25, 29); Ans. 5 (citing Id. i1i123-25, 29).
The Examiner found that Eickhoff does not query for failure modes
associated with the signal when the signal does not indict a failure mode, but
determined it would have been obvious to monitor continuously for faults to
maximize reliability. Final Act. 4 (citing Eickhoff i-f 3). The Examiner also
found that the continuous querying of signals for diagnostic purposes is
2 We interpret "indicts" to mean "represents." Spec. i143 ("If the received
signal is no longer indicting (no longer representative of a faulty condition) .
. . ").
3
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Application 12/241, 77 4
generally known and it would have been obvious to query for failure modes
when signals do not indict a failure mode where Eickhoff expresses a need
for extreme reliability and fault-free operation. Ans. 5.
Appellants argue that the Examiner has treated an "error" in Eickhoff
as a claimed failure mode and therefore cannot also treat it as a claimed fault
and to do so conflates the terms and renders one or the other superfluous.
Appeal Br. 10; Reply Br. 3--4. Appellants argue that Eickhoff's disclosure
of a permanent error and counting errors over time has nothing to do with a
failure mode. Appeal Br. 11; Reply Br. 4.
Appellants' arguments are not persuasive. We do not consider the
Examiner to have conflated the limitations fault and failure mode or to have
relied on the same disclosure for these features. The Examiner found that
Eickhoff discloses a vehicle health monitoring system with reasoner module
(microcontroller 7) that determines whether signals received from sensors
indict an error, which the Examiner equates to the claimed failure mode.
Final Act. 3--4; Ans. 5. Eickhoff discloses that such an error could indicate
problems with a vehicle anti brake-lock system (ABS). Eickhoff i-f 26.
The Examiner also found that when the signal indicts such an error
(i.e., a failure mode), Eickhoff discloses setting an intermittent watch flag
(error counter 18) for that failure mode that was indicted and incrementing a
count representing a number of occurrences of the signal as an intermittent
fault. Final Act. 4 (citing Eickhoffi-f 24). The Examiner found that Eickhoff
determines when the count exceeds a predetermined threshold, and when
that occurs, the system determines the intermittent fault is a permanent fault.
Id. (citing Eickhoffi-fi-125, 29). The Examiner's findings are supported by a
preponderance of evidence.
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Appeal2013-005042
Application 12/241, 77 4
In claim 1, when a signal indicts (i.e., indicates) a "failure mode" an
intermittent watch flag is set for that failure mode and a count is incremented
to indicate the number of occurrences of the signal as an "intermittent fault."
When that count exceeds a predetermined threshold, the "intermittent fault"
is determined to be a "permanent fault." Therefore, an "intermittent fault" is
set for a signal that indicts/indicates a failure mode. A watch flag is set for
that failure mode and incremented on each occurrence of the failure mode
signal. A "permanent fault" is an "intermittent fault" occurring more than a
predetermined number of counts or times. Eickhoff discloses these features
as the Examiner found. Sensors S 1, S2 transmit signals to microcontroller 7
(the reasoner) in control unit 6. Eickhoff i-f 23, Fig. 1. If microcontroller 7
detects a "permanent error" in the signals (i.e., determines that one or more
of the signals represents the claimed "failure mode"), the error is written into
error memory 12. Id. i-f 24. Each time the "permanent error" signal recurs,
error counter 18 is incremented. Thus, Eickhoff' s permanent error is treated
as the claimed intermittent fault. Id. When the count of error counter 18 has
reached a predetermined value for that particular error (failure mode), the
error is treated as a permanent fault, as claimed, and a "Poor maintenance"
special program takes over in microcontroller 7 and disables starting of the
function that is being checked. Id. i-fi-125-26.
Appellants argue for the first time in their Reply that the Examiner
based his obviousness determination on common knowledge that it is well
known to "query signals continuously for diagnostic purposes" without any
documentary evidence. Reply Br. 5-6. Appellants argue the assertion is
untimely and not capable of instant and unquestionable verification. Id. at 6.
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Application 12/241, 77 4
Appellants' arguments are not persuasive. In the Final Action that
Appellants appealed, the Examiner found that Eickhoff discloses that vehicle
electronic control units must function very reliably and must be continuously
monitored for fault-free operation. Final Act. 4 (citing Eickhoffi-f 3). This
finding is supported by a preponderance of evidence and provides a rational
underpinning to support the Examiner's determination of obviousness, i.e.,
that it would have been obvious to query for failure modes when a signal
does not indict a failure mode, as claimed, because Eickhoff teaches that
control units must be monitored continuously for fault-free operation. See
Eickhoff i1 9. Appellants did not traverse this finding or the determination of
obviousness based thereon in their Appeal Brief. Instead, Appellants chose
to challenge the Examiner's findings regarding Eickhoff s disclosure of the
claimed failure mode and faults. Appeal Br. 9-15.
The Examiner's statement "[i]t is generally known to query signals
continuously for diagnostic purposes" (Ans. 5) appears to reference the Final
Action and citation to paragraph 3 of Eickhoff for this proposition. Cf,
Final Act. 4 with Ans. 5. 3 Even so, the Examiner's citation to paragraph 3 of
Eickhoff in the Final Action supports the Examiner's finding that continuous
monitoring is done, and Appellants have not persuaded us of error in that
finding, or the Examiner's determination of obviousness based thereon. 4
3 The Answer states that every ground of rejection in the Office action dated
May 10, 2012 from which appeal is taken is maintained. Ans. 3.
4 Eickhoff discloses sensors S 1-S4 sending signals to microcontroller 7 (and
its analog-to-digital converter 8, and error counter 18 is reset after a period
of time without any errors being detected. Eickhoff i1 29. This teaching also
suggests continuous monitoring.
6
Appeal2013-005042
Application 12/241, 77 4
Appellants' further argument that Eickhoff does not describe certain
limitations (see Reply Br. 4) is not persuasive of error in the Examiner's
findings that Eickhoff does disclose these features. Appellants merely cite
each limitation without explaining why the Examiner's findings are in error.
See 3 7 C.F .R. § 41.3 7 ( c )(iv) (arguments in appeal brief must explain why
the examiner erred).
We sustain the rejection of claims 1---6, 8-13, and 15-20.
Claims 7 and 14 as unpatentable over Eickhoff, Hinkley, and AAP A
Appellants argue the patentability of claims 7 and 14 based on their
dependency from claims 1 and 8, respectively. Appeal Br. 15. As such, we
sustain the rejection of claims 7 and 14.
NEW GROUND OF REJECTION
"The specification must conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the applicant
.. r,.. , • , • -,-, ,..... ,_ T T r'1 I'\ l\ -1 -1 l""llo ..,- l""llo " regaras as LtneJ mvenuon.- j) u.~.L. s 11.L, 11 LJ
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claims
1-20 under 35 U.S.C. § 112, second paragraph, for indefiniteness, because
they do not particularly point out and distinctly claim the subject matter that
Appellants regard as the invention. Each of independent claims 1, 8, and 15
recites a limitation "alternatively identifying one of a plurality of signals or
isolating a failure mode based on an input received from the health
5 Paragraph 2 of 35 U.S.C. § 112 was replaced with newly designated
§ 112(b) when§ 4(c) of the America Invents Act ("AIA"), Pub.L. No. 112-
29, took effect on September 16, 2012. Because the present application was
filed before that date on September 30, 2008, we will refer to the pre-AIA
version of§ 112.
7
Appeal2013-005042
Application 12/241, 77 4
monitoring system;" and "when one of the plurality of signals is identified,
querying by a reasoner whether the signal indicts the failure mode, wherein
the signal indicts the failure mode. "6
Thus, each of claims 1, 8, and 15 recites "alternatively" ( 1) identifying
one of a plurality of signals or (2) isolating a failure mode based on an input.
However, the next limitation recites that when one of the plurality of signals
is identified (i.e., alternative (1)) then a reasoner queries (generates a query
in claim 15) whether the signal indicts the failure mode (i.e., alternative (2)).
Claims 1, 8, and 15 are indefinite because they can be interpreted in at
least two contrary ways. They first recite two steps, functions, or executable
portions that occur in the alternative as (1) identifying one of a plurality of
signals or (2) isolating a failure mode. However, the very next limitation in
each claim recites that these alternative features occur sequentially upon the
occurrence of the first alternative of identifying one of a plurality of signals.
Thus, when one of the plurality of signals is identified, a reasoner queries
"whether the signal indicts the failure mode" (claims 1, 8) or "when one of
the plurality of signals indicts a failure mode" (claim 15). This meaning
contradicts the plain meaning of the alternative limitation that treats signal
identification and failure mode isolation as steps or functions that occur in
the alternative, i.e., one or the other, rather than sequentially or together. A
6 Claim 8 recites "alternatively identify one of a signal or isolate a failure
mode based on an input received from the health monitoring system," and
"when a signal is identified, determine whether the signal indicts the failure
mode, .... " Claim 15 recites a computer program product with "a first
executable portion configured to alternatively identify one of a plurality of
signals or isolate a failure mode based on an input;" and "a second
executable portion configured to generate a query when one of the plurality
of signals indicts a failure mode, .... "
8
Appeal2013-005042
Application 12/241, 77 4
further meaning could be that isolating a failure mode is contingent upon the
identification of a plurality of signals such that a failure mode is isolated
only when one of a plurality of signals is identified, again a potential conflict
with the preceding alternative limitation that treats identifying a signal and
isolating a failure mode as steps, functions, or executable portions that can
occur only in the alternative, rather than together or sequentially as a result
the other step/function/portion occurring first.
Recourse to the Specification does not provide reasonable clarity to
this indefiniteness. To the contrary, the Specification discloses a method 70
in Figure 6 in which intermittent fault processing begins at step 72 "with the
identification, based on an input, of alternatively a signal or a fault state
(step 74)." Spec. i-f 42. Thus, this disclosure supports the plain meaning of
the first limitation that signal identification or isolating a failure mode are
alternative limitations. However, paragraph 42 of the Specification then
discloses that if a signal is identified, it is assumed to be an un-isolated
system fault and is acted upon by a Failure Mode Reasoning Algorithm that
detects and isolates non-intermittent faults to determine if the signal indicts
a failure mode. Id. Thus, the Specification discloses that identification of a
signal (the first alternative limitation) results in isolation of a failure mode
(the second alternative limitation). See id. The alternative limitations occur
together and sequentially, rather than alternatively.
The Specification also discloses that "[i]fthefailure mode is isolated
(again, step 74) or a dominant failure mode is found (again, step 112), the
fault information is sent to the responder (step 102) and steps 104--110
repeat as previously described." Spec. i-f 46 (emphasis added). It is not clear
from this disclosure whether the failure mode was isolated by processing the
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Application 12/241, 77 4
identified signals in the first alternative (Spec. if 42) or by some other means.
This disclosure could be understood to mean that failure mode isolation does
occur alternatively to signal identification. There is no indication the claims
recite one particular embodiment or an aspect of a particular embodiment to
the exclusion of the rest of the disclosed invention and process or system.
DECISION
We AFFIRM rejections of claims 1-20.
As provided supra, we enter a NEW GROUND OF REJECTION:
Claims 1-20 are rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite.
Regarding the affirmed rejections, 37 C.F.R. § 41.52(a)(l) provides
"Appellants may file a single request for rehearing within two months from
the date of the original decision of the Board."
In addition to affirming the Examiner's rejections of one or more
claims; this decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review."
37 C.F.R. § 41.50(b) also provide that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the Examiner, in which event the proceeding
will be remanded to the Examiner ....
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Application 12/241, 77 4
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same record ....
Should Appellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(l), in order to preserve the right to seek
review under 35 U.S.C. §§ 141or145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless the affirmed rejection is overcome.
If Appellants elect prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
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; 37 C.F.R. § 41.50(b)
11