Ex Parte Ladd

Patent Trial and Appeal Board

May 29, 2018

14093668 (P.T.A.B. May. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/093,668 12/02/2013 MarkJ. Ladd
87059 7590 05/31/2018
Cantor Colburn LLP - Carrier
20 Church Street, 22nd Floor
Hartford, CT 06103
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.
63644US02 (U300159US2) 7094
EXAMINER
CRENSHAW, HENRY T
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
05/31/2018 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK J. LADD 1
Appeal2017-008228
Application 14/093,668
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1---6, 9-13, and 16-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the Applicant, Carrier Corporation, which, according to the
Appeal Brief, is the real party in interest. Br. 1.
Appeal2017-008228
Application 14/093,668
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method comprising:
determining, by a controller comprising a processor, that a
coil associated with a heat pump is subjected to a defrost cycle;
determining, by the controller, that at least one of:
a conditioned space is occupied, and
a thermostat associated with the conditioned space
indicates that an energy saving mode is not in use; and
enabling, by the controller, an auxiliary heat source to
provide heat to the conditioned space based on the determination
that (i) the coil is subject to the defrost cycle and the
determination that (ii) at least one of the conditioned space is
occupied or the thermostat indicates that the energy saving mode
is not in use.
REJECTIONS
I. Claims 1, 2, 6, and 10 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Miller (US 2011/0046790 Al, pub. Feb.
24, 2011), Jenkins (US 2007/0114295 Al, pub. May 24, 2007),
and Appellant's Admitted Prior Art2 ("AAPA").
II. Claim 3 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Jenkins, AAPA, and Comerford
(US 2010/0204834 Al, pub. Aug. 12, 2010).
2 In the Non-Final Action dated July 30, 2015~ the Examiner identifies
paragraphs 2; 3, and 41 of the instant Specification as Appellant's Admitted
Prior Art. See Non-Final Act 8-20.
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III. Claim 4 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Jenkins, AAPA, and Roosli
(US 2010/0188218 Al, pub. July 29, 2010).
IV. Claim 5 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Jenkins, AAPA, and Bahel
(US 5,533,352, iss. July 9, 1996).
V. Claim 9 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Jenkins, AAPA, and Lynch
(US 4,942,613, iss. July 17, 1990).
VI. Claim 11 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller and AAP A.
VII. Claim 12 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, AAP A, and Jenkins.
VIII. Claim 13 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, AAP A, and Roosli.
IX. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, AAP A, and Lynch.
X. Claim 17 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Roosli and AAP A.
XI. Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Roosli, AAP A, and Jenkins.
XII. Claim 20 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Roosli, AAP A, Jenkins, and Pavlak
(US 2010/0107074 Al, pub. Apr. 29, 2010).
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DISCUSSION
Rejections I-V
In rejecting independent claim 1, the Examiner finds that Miller
discloses a heat pump controller determining that a conditioned space is
occupied, and a thermostat. See Final Act. 3 (citing Miller, Fig. 2, i-fi-1 4, 77).
The Examiner acknowledges that Miller does not disclose the controller
determining that the coil is subject to a defrost cycle, determining that the
thermostat is not in an energy savings mode, and enabling auxiliary heat
based on the determinations that the coil is in a defrost cycle and at least one
of the conditioned space being occupied and an energy saving mode being
not in use. See id. However, the Examiner finds that
Jenkins teaches that a thermostat (14) can be set to an energy savings
vacation mode (par. 3 6), and the [A ]AP A teaches that an auxiliary
heater is frequently used to provide heating when the heat pump goes
into defrost mode, but also notes that the use of such a heater is less
than desirable due to the increased operating cost.
Id. at 3--4. The Examiner determines that it would have been obvious
to modify Miller, in view of Jenkins and the [A ]AP A, in order to
save energy by using less energy when the occupants are on
vacation, and by using Miller's controller to coordinate the
defrost and auxiliary heater operation, so as to limit the cost of
using the auxiliary heater to situations where it is needed for
occupant comfort, such as when the space is occupied.
Id. at 4.
Appellant argues that the combination of Miller, Jenkins, and AAP A
does not render obvious the "enabling" step recited in claim 1. See Br. 5.
Appellant asserts that none of the cited references contains an explicit
teaching of enabling auxiliary heat based on occupancy or energy savings
mode. See id. at 5---6 (asserting that "Miller makes no mention of enabling
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Application 14/093,668
an auxiliary heat source during a defrost cycle based on whether at least one
of 'the conditioned space is occupied and the thermostat indicates that the
energy saving mode is not in use,"' as recited, that "[ t ]here is no discussion
in Jenkins of using the presence of energy savings mode to control [an]
auxiliary heat source during a defrost cycle," and that "there is no disclosure
[in AAP A] of enabling the auxiliary heat source based on factors such as
occupancy or energy savings mode"). According to Appellant,
[a ]lthough the references disclose various concepts of claim 1, there is
no predictable basis to combine Miller, Jenkins and [A ]AP A to arrive
at the claimed enabling of the auxiliary heat source based [on] "at
least one of the conditioned space is occupied and the thermostat
indicates that the energy saving mode is not in use."
Id. at 6.
Appellant's arguments do not identify error in the Examiner's
rejection because they attack the references individually, rather than as
combined by the Examiner. "Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references." In re Merck & Co., 800 F .2d
1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA
1981) ). As discussed above, the Examiner does not rely on any one of
Miller, Jenkins, or AAPA alone for explicitly teaching the step of enabling
auxiliary heat during a defrost cycle based on occupancy or the use of an
energy savings mode. Rather, as discussed above, the Examiner's rejection
is based on the combined teachings of the references. See Final Act. 3--4;
see also Ans. 3--4 (explaining that Miller is relied on for teaching "the
processor and coil, and also to teach the limitation of determining
occupancy," "Jenkins teaches that the system must be able to first ascertain
if the energy savings mode is, or is not, in effect, so that this information can
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be made available to the user," and "[A ]AP A teaches that prior art systems
use an auxiliary heat source in concert with a defrost cycle ... despite the
added costs, for the comfort of occupants in the affected area"). In this
regard, Appellant's argument does not specifically address or point out error
in the Examiner's findings with respect to Miller, Jenkins, and AAPA as
presented in the rejection.
Appellant's arguments also do not identify error in the Examiner's
reasoning articulated in support of the conclusion of obviousness. To the
extent that Appellant appears to insist on an explicit teaching, suggestion, or
motivation in the prior art to establish obviousness, such an argument has
been foreclosed by the Supreme Court. KSR Int 'l Co. v. Teleflex Inc., 550
U.S. 398, 415, 419 (2007) (stating that a rigid insistence on teaching,
suggestion, or motivation is incompatible with its precedent concerning
obviousness). The Court noted that an obviousness analysis "need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for [an examiner] can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ." Id. at 418.
Instead, the relevant inquiry is whether the Examiner has set forth "some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006), cited with approval in KSR, 550 U.S. at 418. Here, as discussed
above, the Examiner articulates adequate reasoning based on rational
underpinnings as to why the combined teachings of Miller, Jenkins, and
AAP A renders obvious the claimed subject matter. See Final Act. 4
(explaining that the proposed modification of Miller would "limit the cost of
using the auxiliary heater to situations where it is needed for occupant
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Application 14/093,668
comfort, such as when the space is occupied"). Appellant does not offer any
factual evidence or persuasive technical rationale to refute the Examiner's
articulated reasoning or explain why it is deficient.
For the above reasons, Appellant fails to apprise us of error in the
Examiner's conclusion that the subject matter of claim 1 would have been
obvious. Accordingly, we sustain the rejection of claim 1, and its dependent
claims 2, 6, and 10, for which Appellant relies on the same arguments
(see Br. 6), under 35 U.S.C. § 103(a) as unpatentable over Miller, Jenkins,
andAAPA.
In contesting the rejections of dependent claims 3-5 and 9, Appellant
relies on the arguments presented for patentability of independent claim 1.
See id. at 6-7. For the reasons discussed above, Appellant's arguments do
not apprise us of error in the rejection of claim 1, and likewise do not apprise
us of error with respect to the rejections of claims 3-5 and 9. Accordingly,
we sustain the rejections of claims 3-5 and 9 under 35 U.S.C. § 103(a).
Re} ections VI-IX
Independent claim 11 includes limitations similar to the limitations in
independent claim 1 discussed above. Compare id. at 12 (Claims
App.), 11-.1ith id. at 11. In contesting the rejection of claim 11, Appellant
essentially rehashes the arguments regarding Miller and AAP A set forth
with respect to claim 1. See id. at 7-8 (asserting that "Miller makes no
mention of enabling an auxiliary heat source during a defrost cycle based on
whether at least one of 'the conditioned space is occupied and the thermostat
indicates that the energy saving mode is not in use,"' as recited, that "there is
no disclosure [in AAP A] of enabling the auxiliary heat source based on
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factors such as occupancy or energy savings mode," and that "there is no
predictable basis to combine Miller and [A ]AP A to arrive at the claimed
enabling of the auxiliary heat source based [on] 'at least one of the
conditioned space is occupied and the thermostat indicates that the energy
saving mode is not in use"'). These arguments are unpersuasive with respect
to claim 11 for the same reasons discussed above with respect to claim 1.
Namely, Appellant's arguments attack Miller and AAPA individually, rather
than as combined by the Examiner in the rejection, and do not specifically
address the reasoning articulated by the Examiner in support of the
conclusion of obviousness. Accordingly, we sustain the rejection of
independent claim 11under35 U.S.C. § 103(a) as unpatentable over Miller
andAAPA.
In contesting the rejections of dependent claims 12, 13, and 16,
Appellant relies on the arguments presented for patentability of independent
claim 11. See id. at 8. For the reasons discussed above, Appellant's
arguments do not apprise us of error in the rejection of claim 11, and
likewise do not apprise us of error with respect to the rejections of claims 12,
13, and 16 under 35 U.S.C. § 103(a), which we sustain.
Rejections X-XII
In rejecting independent claim 17, the Examiner finds that Roosli
teaches a system having a motion sensor and a processor configured to
determine whether a conditioned space is occupied. See Final Act. 11-12
(citing Roosli i-fi-1 4, 5, 28). The Examiner acknowledges that Roosli does not
disclose that the processor is configured to determine whether a heat pump
coil is in a defrost cycle and enable an auxiliary heat source when the coil is
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in a defrost cycle and the conditioned space is occupied. See id. at 12.
However, the Examiner finds that "[A ]AP A teaches that an auxiliary heater
is frequently used to provide heating when the heat pump goes into defrost
mode, but also notes that the use of such a heater is less than desirable due to
the increased operating cost." Id. The Examiner determines that it would
have been obvious
Id.
to modify [Roosli], in view of the [A ]AP A, in order to save energy by
using less energy by using Roosl[i]'s controller to coordinate the
defrost and auxiliary heater operation, so as to limit the cost of using
the auxiliary heater to situations where it is needed for occupant
comfort, such as when the space is occupied.
Appellant argues that "Roosli makes no mention of enabling an
auxiliary heat source during a defrost cycle based on 'when the coil is
subject to the defrost cycle and when the conditioned space is occupied."'
Br. 9. Appellant also asserts that "there is no disclosure [in AAP A] of
enabling the auxiliary heat source based on occupancy." Id. According to
Appellant, "[ t ]here is no predictable basis to combine Roosli and [A ]AP A to
arrive at the claimed 'enable an auxiliary heat source that is located within
the conditioned space when the coil is subject to the defrost cycle and when
the conditioned space is occupied."' Id.
Appellant's arguments do not apprise us of error in the Examiner's
rejection because they attack the cited references individually, rather than
the combination of reference teachings presented in the rejection. Here, the
Examiner does not rely on Roosli or AAP A alone for explicitly disclosing
enabling auxiliary heat based on the heat pump coil being in a defrost cycle
and the conditioned space being occupied, but, rather, the Examiner
determines and explains why the combined teachings of Roosli and AAP A
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render obvious such a feature. See Final Act. 11-12; Ans. 5. To the extent
that Appellant appears to insist on an explicit teaching, suggestion, or
motivation in the prior art to establish obviousness, such an argument has
been foreclosed by the Supreme Court. See KSR, 550 U.S. at 415, 419. As
discussed above, the Examiner articulates adequate reasoning based on
rational underpinnings as to why it would have been obvious to combine the
teachings of Roosli and AAP A to arrive at the subject matter of claim 17.
See Final Act. 12 (explaining that the proposed modification of Miller would
save energy by "limit[ing] the cost of using the auxiliary heater to situations
where it is needed for occupant comfort, such as when the space is
occupied."); see also Ans. 5 (explaining that the proposed modification of
Roosli would "save money by using the auxiliary heater during the defrost
mode only when persons are occupying the relevant area"). In this regard,
Appellant's arguments do not specifically address the Examiner's reasoning
nor explain why the reasoning is deficient.
For the above reasons, Appellant fails to apprise us of error in the
Examiner's conclusion that the subject matter of claim 17 would have been
obvious. Accordingly, we sustain the rejection of claim 17 under 35 U.S.C.
§ 103(a) as unpatentable over Roosli and AAPA.
In contesting the rejections of dependent claims 18-20, Appellant
relies on the arguments presented for patentability of independent claim 1 7.
See Br. 8. For the reasons discussed above, Appellant's arguments do not
apprise us of error in the rejection of claim 17, and likewise do not apprise
us of error with respect to the rejections of claims 18-20. Accordingly, we
sustain the rejections of claims 18-20 under 35 U.S.C. § 103(a).
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DECISION
The Examiner's decision rejecting claims 1-6, 9-13, and 16-20 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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