Ex Parte Marcinkiewicz et al

Patent Trial and Appeal Board

Jun 29, 2016

12246893 (P.T.A.B. Jun. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/246,893 10/07/2008
27572 7590 07/01/2016
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
FIRST NAMED INVENTOR
Joseph G. Marcinkiewicz
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.
0315-000683 6967
EXAMINER
BOBISH, CHRISTOPHER S
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
07/01/2016 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):
troymailroom@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH G. MARCINKIEWICZ and JAMES SKINNER
Appeal2013-004345
Application 12/246,893 1
Technology Center 3700
Before HUBERT C. LORIN, MICHAEL C. ASTORINO, and
TARA L. HUTCHINGS, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-18. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
Claimed Subject Matter
Claims 1 and 11 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1 According to the Appellants, "[t]he real party in interest is Emerson
Climate Technologies, Inc." Appeal Br. 3.
Appeal2013-004345
Application 12/246,893
1. A method comprising:
measuring an operating parameter of a compressor motor
connected to a power factor correction device;
comparing the operating parameter of the compressor to a
predetermined compressor threshold; and
selectively bypassing the power factor correction device
based on the comparing.
Rejections
Claims 1--4, 11, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dube (US 5,603,222, iss. Feb. 18, 1997) and Bae
(US 2008/0089792 Al, pub. Apr. 17, 2008).
Claims 7-10 and 14--17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dube, Bae, and Baumann (US 4,280,910, iss. July 28,
1981 ).
Claims 5, 6, 12, and 13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dube, Bae, and Welchko (US 7,154,237 B2, iss. Dec. 26,
2006).
ANALYSIS
The Appellants argue that the combined teachings of Dube and Bae
do not result in "selectively bypassing the power factor correction device
based on comparing the measured operating parameter of the compressor to
a predetermined compressor threshold" as required by independent claim 1,
and as similarly required by independent claim 11. Reply Br. 4; see Appeal
Br. 13, 15-16. The Appellants support their argument by asserting that the
Examiner's modification of Dube's teachings with Bae's teachings would
result in Dube's compressor being "inoperable because the compressor 11
explicitly operates using three-phase power and would only receive single-
2
Appeal2013-004345
Application 12/246,893
phase power ifthe voltage capacitive network 60 was bypassed as alleged."
Appeal Br. 11 (citing Dube, Fig. 4). The Appellants' argument and assertion
are not persuasive.
Dube' s Figure 4 is reproduced below:
Figure 4 is described as "a simplified block diagram showing the voltage
regulator capacitor network connected to the power supply of the
compressor" (Dube, col. 3, 11. 1-3) and depicts three lines between voltage
regulating capacitive network 60 and compressor 11.
The Appellants appear to support their assertion solely by pointing to
Dube' s Figure 4 and alleging that the disclosure regarding the operation of
compressor 11 is explicit. See Appeal Br. 11. However, Dube' s
Specification does not explicitly disclose how compressor 11 operates. The
relevant portion of Dube's Specification states:
my invention also provides a voltage regulating capacitive
network 60 (well known in the art) which I connect to the supply
lines 61 of the compressor motor whereby to automatically adjust
the power factor thereof to provide the correct amperage
consumption taking into account induction losses in the motor of
the compressor.
Dube, col. 4, 11. 55---60. Dube's reference number 61 is described as "supply
lines," which does not identify the phase of power used by the compressor
11. Moreover, the Appellants do not provide a declaration or affidavit
explaining why the only understanding that one of ordinary skill in the art
would obtain from Dube's disclosure is that "voltage regulating capacitive
3
Appeal2013-004345
Application 12/246,893
network 60 receives single-phase AC power and outputs three-phase power
to the motor of the compressor 11 via the three supply lines 61" (Appeal
Br. 11).
Further, Dube discloses that the use of voltage regulating capacitive
network 60 is optional. See Dube, col. 4, 1. 63---col. 5, 1. 2. As such, if we
were to assume that option to use voltage regulating capacitive network 60
was not exercised and that a single-phase AC power is supplied to voltage
regulating capacitive network 60 (as the Appellants assume), then it appears
compressor 11 would be powered by a single-phase AC power, rather than a
three-phase power.
In light of the above, we are not persuaded by the Appellants'
assertion that "compressor 11 explicitly operates using three-phase power
and would only receive single-phase power if the voltage capacitive network
60 was bypassed as alleged" (Appeal Br. 11). Moreover, the Appellants'
contentions based on this assertion, i.e., that the Examiner's modification of
Dube "is illogical, would render Dube unsatisfactory for its intended
purpose, and would change the principle of operation of Dube" (id.), are
likewise unpersuasive. For purposes of this appeal only, even if we were to
assume that "compressor 11 ... operates using three-phase power and would
only receive single-phase power if the voltage capacitive network 60 was
bypassed as alleged" (Appeal Br. 11 ), we determine that the Appellants'
contentions are still unpersuasive.
We agree with the Examiner that "[i]t would not require more than
routine skill in the art for one of ordinary skill to apply a similar circuit to
that of Bae, within the capacitive network of Dube in order to selectively
allow for power correction while maintaining a desired phase." Ans. 9. We
4
Appeal2013-004345
Application 12/246,893
note that the Examiner's obviousness analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, and
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employee. See KSR Int 'l Co. v. Teleflex, Inc.,
550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)). We also note that the Examiner concludes that:
[i]t would have been obvious to one of ordinary skill in the
art of compressor control to bypass the PFC in the compressor
circuit of Dube, in a manner as taught by Bae, in order to increase
the efficiency of the circuit by reducing resistance losses caused
by the PFC during periods where constant power control is not
necessary.
Final Act. 3 (citing Bae, para. 59). And, we determine that the Examiner's
conclusion articulates reasoning with some rational underpinning. See In re
Kahn, 441 F.3d at 988 ("[R]ejections on obviousness grounds [require] some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.") (cited with approval in KSR, 550 U.S. at 418).
The Appellants also contend that "the relied upon portions of Bae are,
themselves, inoperable and cannot be relied upon." Appeal Br. 13. The
Appellants support this contention by pointing to Bae' s Figure 5 and
asserting that "it is unclear how the control unit Tr is bypassed" because in
Figure 5 "a current path between the upper-most end of the switch unit 100
and the bottom-most end of the motor (M) 60 is not present." Appeal
Br. 13-14. The Appellants' contention is not persuasive.
Figure 5 "is a block diagram showing the configuration of an
operation control device of a reciprocating compressor according to a second
embodiment of the present invention." Bae, para. 96. As such, one of
ordinary skill in the art would not understand Figure 5 to be a circuit
5
Appeal2013-004345
Application 12/246,893
diagram, which would illustrate a line representing a current path between
the upper-most end of the switch unit 100 and the bottom-most end of the
motor (M) 60. Moreover, as pointed out by the Examiner, "paragraph 55
[of] Bae states 'a control unit TR connected in series to the motor Mor the
reciprocating compressor and applying the AC power to the motor of the
reciprocating compressor according to a control signal.'" Ans. 10 (emphasis
added). Also, we agree with the Examiner that "in order for a control unit to
supply power to a motor, a connecting line must be present." Ans. 10.
Further, we note that Bae describes "a switch unit 100 selecting the front end
or rear end of the control unit Tr." Spec., para. 55.
The Appellants point out that Bae's Figure 6 lacks switch 100, but
switch 100 is disclosed as part of the block diagram of Figure 6 and the
descriptions of switch unit 100 of Figures 5 and 6 are the same. Appeal
Br. 14--15 (citing Bae, para. 63). The Appellants contend that the
inconsistency between Bae' s Figure 6 and its description "casts doubt as to
whether the switch unit 100 should even appear in FIG. 5." Appeal Br. 14--
15. The Appellants' contention is not persuasive. Although inconsistencies
exist between Bae' s Figure 6 and its description, the significance of those
inconsistencies are particular to Figure 6, and do not show error in the block
diagram of Bae's Figure 5 and its description.
Thus, the rejection of independent claim 1 and dependent claims 2--4
as unpatentable over Dube and Bae is sustained. Additionally, the
Appellants rely on the arguments against the rejection of claim 1 for the
rejection of independent claim 11 and dependent claim 18. See Appeal
Br. 15-16. For similar reasons as discussed above, the rejection of
6
Appeal2013-004345
Application 12/246,893
independent claim 11 and dependent claim 18 as unpatentable over Dube
and Bae is sustained.
Although the Appellants have separate headings for the rejection of
claims 7-10 and 14--17 (Appeal Br. 16-17), the Appellants do not advance
any persuasive arguments against this rejection. Here, the Appellants rely
on arguments against the rejection of independent claims 1 and 11 for the
rejection of claims 7-10 and 14--17 and add that "Baumann does not make
up for the deficiencies of Dube and Bae." Appeal Br. 16-17. Because the
rejection of claims 1 and 11 does not suffer from any alleged deficiencies,
we also sustain the rejection of claims 7-10 and 14--17.
Similarly, the Appellants have separate headings for the rejection of
claims 5, 6, 12, and 13 (Appeal Br. 16-17), the Appellants do not advance
any persuasive arguments against this rejection. Here, the Appellants rely
on arguments against the rejection of independent claims 1 and 11 for the
rejection of claims 5, 6, 12, and 13 and add that "Welchko does not make up
for the deficiencies of Dube and Bae." Appeal Br. 17-18. Because the
rejection of claims 1 and 11 does not suffer from any alleged deficiencies,
we also sustain the rejection of claims 5, 6, 12, and 13.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-18.
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
7