Ex Parte Mcqueen et al

Patent Trial and Appeal Board

Nov 30, 2017

13600567 (P.T.A.B. Nov. 30, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/600,567 08/31/2012 E. Keith Mcqueen 61222/849510 7122
23370 7590 12/04/2017
KILPATRICK TOWNSEND & STOCKTON LLP
Mailstop: IP Docketing - 22
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
EXAMINER
BUTT, WALLI Z
ART UNIT PAPER NUMBER
2412
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
ipefiling@kilpatricktownsend.com
KT S Docketing2 @ kilpatrick. foundationip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte E. KEITH MCQUEEN, DAVID NIBLER,
DINDO UY, and DAVID GOLDMAN
Appeal 2017-006307
Application 13/600,5671
Technology Center 2400
Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOVAN,
Administrative Patent Judges.
JURGOVAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1 and 7—11, which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.2
1 Appellants identify Zodiac Pool Systems, Inc. as the real party in interest.
(App. Br. 3.)
2 Our Decision refers to the Specification (“Spec.”) filed August 31, 2012,
the Final Office Action (“Final Act.”) mailed December 9, 2015, the Appeal
Brief (“App. Br.”) filed August 30, 2016, the Examiner’s Answer (“Ans.”)
mailed December 9, 2016, and the Reply Brief (“Reply Br.”) filed February
9, 2017.
Appeal 2017-006307
Application 13/600,567
CLAIMED INVENTION
The claims are directed to a method for controlling pool and spa
equipment by enabling Internet access to pool and spa controllers “without
any need for users to create firewall ports or utilize static internet protocol
addresses.” (Abstract.)
Independent claim 1 is reproduced below:
1. A method of controlling pool or spa equipment, comprising:
a. wirelessly transmitting, from a networking device,
signals mimicking a hot-spot access point for a Wi-Fi network;
b. receiving, at a receiving device, the signals
wirelessly transmitted by the networking device;
c. receiving user input at the receiving device causing
the receiving device to communicate wirelessly with the
networking device;
d. thereafter wirelessly transmitting, from the
networking device to the receiving device, a service set identifier
(SSID) of at least one Wi-Fi network with which the networking
device is capable of communicating wirelessly;
e. receiving user input at the receiving device causing
the networking device to communicate wirelessly with the at
least one Wi-Fi network; and
f. controlling pool or spa equipment via the
networking device.
(App. Br. 13.)
REJECTIONS & REFERENCES
(1) Claims 1 and 7—11 stand rejected under 35 U.S.C. § 103(a)
based on Keirstead et al. (US 2011/0195664 Al, published Aug. 11, 2011,
“Keirstead”) and Sperling et al. (US 2013/0182693 Al, published July 18,
2013, “Sperling”). (Final Act. 11-19.)
2
Appeal 2017-006307
Application 13/600,567
ANALYSIS
Appellants contend Keirstead and Sperling do not teach “wirelessly
transmitting, from a networking device, signals mimicking a hot-spot access
point for a Wi-Fi network,” as recited in claim 1 (step a). (App. Br. 8—9.)
Particularly, Appellants argue Keirstead’s Wi-Fi router (5c) does not
“transmit^ . . . signals mimicking a hot-spot access point,” and Sperling’s
“hot-spot device 101 is wholly distinct from and unrelated to any router.”
(App. Br. 8—9.) Appellants conclude, “adding device 101 of the Sperling
application to systems of the Keirstead application would not result in router
5c . . . transmitting signals mimicking a hot-spot access point as claimed.”
(App. Br. 9.)
We do not find Appellants’ arguments persuasive because Appellants
inappropriately address each of Keirstead and Sperling individually, where
the Examiner relies on the combination of Keirstead and Sperling. (Final
Act. 13—16; Ans. 3—7.) One cannot show nonobviousness by attacking
references individually where the rejections are based on combinations of
references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In particular, the Examiner
finds Keirstead controls pool or spa equipment by a wirelessly-connected
server (31) and a Wi-Fi router (5c) wirelessly transmitting signals to a
receiving device (wireless device 6, e.g., an iPhone). (Final Act. 13 (citing
Keirstead Tflf 30, 32, 47, Fig. 4B(ii)); Ans. 4, 6 (citing Keirstead Figs. 2A and
4A).) The Examiner further finds Sperling’s mobile broadband hotspot
(101, a computer or smartphone) connects to a terminal/receiving device by
wirelessly transmitting “signals mimicking a hot-spot access point for a Wi­
Fi network because the hotspot device provides internet connectivity to [the]
3
Appeal 2017-006307
Application 13/600,567
terminal device.” (Ans. 5 (citing Sperling H 11, 20, Fig. 1).) Thus, the
Examiner finds the combination of Keirstead and Sperling teaches
controlling pool or spa equipment over a wireless protocol using a
networking device, such as a computer or smartphone configured as a
hotspot. (Ans. 7.) Appellants’ arguments that each of Keirstead and
Sperling individually does not teach the limitations that the Examiner relied
upon the combination of Keirstead and Sperling to teach, do not persuade us
of error in the Examiner’s rejection.
Appellants also argue the Examiner erred because Keirstead’s router
(5c) transmits its own service set identifier (SSID) in contrast to Appellants’
claimed networking device, which transmits a SSID of a Wi-Fi network; that
is, “adding device 101 of the Sperling application to systems of the
Keirstead application would not result in router 5c transmitting an SSID of
some other Wi-Fi network.” (App. Br. 9.) We do not find Appellants’
argument persuasive because the Examiner relies upon the combination of
Keirstead and Sperling for teaching the disputed limitation in the claimed
step (d). Specifically, as discussed supra, the Examiner relies upon (1)
Sperling’s teaching of providing wireless connectivity via a hotspot using a
SSID of a Wi-Fi network with which the hotspot is capable of
communicating wirelessly, and (2) Keirstead for teaching wireless control of
pool or spa equipment. (Final Act. 15; Ans. 9.) Accordingly, Appellants’
argument that Keirstead does not teach the limitation that the Examiner
relies upon the combination of Sperling and Keirstead to teach, does not
persuade us of error in the Examiner’s rejection.
Appellants next argue neither Keirstead nor Sperling teaches or
suggests “receiving user input at the receiving device causing the
4
Appeal 2017-006307
Application 13/600,567
networking device to communicate wirelessly with the at least one Wi-Fi
network,” as recited in claim 1 ’s step (e). (App. Br. 10; Reply Br. 3—4.)
Appellants’ argument is not persuasive because Keirstead’s user input at the
receiving device (6) causes the networking device (Wi-Fi router 5c) to
communicate wirelessly with spa modules over Wi-Fi to ‘“increase spa
temperature’, or [set] ‘jet pump on.’” (Ans. 11 (citing Keirstead 130); see
also Final Act. 12—13 (citing Keirstead ^fl[ 46-47).) Sperling also teaches
user input at a receiving device (terminal 111, e.g., a smartphone) causes the
networking device (hotspot 101) to communicate wirelessly with the SSID—
identified Wi-Fi network when the hotspot is selected as the terminal’s
access point mode. (Ans. 11—12 (citing Sperling 128, Fig. 2a); Final Act.
15; see also Sperling || 29-30.)
Appellants further argue there is insufficient rationale to combine
Keirstead’s router-based networking for pool and spa equipment, with
Sperling’s networking methodology that is “beyond the pool and spa
industry.” (App. Br. 11.) Particularly, Appellants argue “[sjomeone skilled
in the art of controlling pools and spas would not look to the Sperling
application for ways to modify router 5c of the Keirstead application to
change its role in the process,” and would not “recognize that the hot-spot
disclosure of the Sperling patent is relevant to router 5c.” (App. Br. 12.)
We disagree.
The Examiner provides sufficient articulated reasoning with a rational
underpinning to support the legal conclusion of obviousness. (Final Act.
15-16; Ans. 1^K18.) See KSR Inti Co. v. Teleflex, Inc., 550 U.S. 398, 416-
18 (2007). Specifically, the Examiner finds the skilled artisan would have
found it obvious to use Sperling’s hotspot access point for a SSID-identified
5
Appeal 2017-006307
Application 13/600,567
Wi-Fi network, in Keirstead’s smartphone-controlled system for pools and
spas. (Ans. 14 (citing Keirstead Tflf 30, 47; Sperling Fig. 1).) The motivation
proffered by the Examiner for this combination is to provide Internet
connectivity between a remote smartphone and household devices via a
simplified hotspot configuration with fewer set-up steps, as taught by
Sperling, thereby easily accessing services and equipment through the
hotspot. (Ans. 15—17 (citing Sperling || 1, 3, 11, 23).) “[Wjhenthe
question is whether a patent claiming the combination of elements of prior
art is obvious,” the answer depends on “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417. We find using Sperling’s hotspot access
point in Keirstead’s remote control for pool and spa equipment to be a
combination of known elements according to a known method to yield a
predictable result. Appellants’ argument that “[t]he Examiner does not
explain why someone in Assignee’s field would discard the fully functional
wireless communication systems of the Keirstead application in favor of
those of the Sperling application” (see Reply Br. 5) does not properly
address, and does not show error in the Examiner’s proffered motivation.
Accordingly, we are not persuaded of Examiner error.
For these reasons, we sustain the Examiner’s rejection of independent
claim 1.
No separate arguments are presented for dependent claims 7—11.
(App. Br. 12.) Accordingly, for the reasons stated with respect to
independent claim 1, we sustain the rejection of these dependent claims. See
37 C.F.R. § 41.37(c)(l)(iv).
6
Appeal 2017-006307
Application 13/600,567
DECISION
We affirm the Examiner’s decision rejecting claims 1 and 7—11 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)(l)(iv).
AFFIRMED
7