Ex Parte Meza et alDownload PDFPatent Trial and Appeal BoardMay 31, 201812755766 (P.T.A.B. May. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/755,766 04/07/2010 Humberto Valenzuela Meza 4955 7590 06/04/2018 WARE, FRESSOLA, MAGUIRE & BARBER LLP BRADFORD GREEN, BUILDING 5 755 MAIN STREET MONROE, CT 06468 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. 911-017.017-2/MRLE0902US 9271 EXAMINER HORTON, ANDREW ALAN ART UNIT PAPER NUMBER 3723 NOTIFICATION DATE DELIVERY MODE 06/04/2018 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): mail@warefressola.com uspatents@warefressola.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HUMBER TO VALENZUELA MEZA, JEFFREY BRIAN SCHOPPERLE, and JESUS ESTRADA Appeal2017-007870 Application 12/755,766 Technology Center 3700 Before STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Humberto Valenzuela Meza et al. ("Appellants") appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 14 and 16- 21.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Xylem IP Holdings Inc. is identified as the real party in interest. Appeal Br. 2. Appeal2017-007870 Application 12/755,766 CLAIMED SUBJECT MATTER Claim 14, reproduced below, is illustrative of the claimed subject matter: 14. A method for removing water from a pool cover or sump and avoiding ice formation in an impeller cavity of a pump, compnsmg: receiving in a signal processor of a controller in a pump arranged on a pool cover or in a sump first signaling from a temperature sensing device containing information about the ambient temperature in relation to the pump during a temperature sensing, and second signaling from a field effect level sensing device during a level sensing containing information about a high water level sensed in order to tum the pump on when the water is at a higher level, and also about a low water level sensed in order to tum the pump off when the water is at a lower level; and providing from the signal processor of the controller to a motor in the pump corresponding signaling containing information for initiating cycling of an impeller of the pump at low operating temperatures to avoid ice formation in an impeller cavity, but not for level sensing, for turning the pump on when the water is at the higher level to rotate the impeller for removing water from the pool cover or in the sump, and for turning the pump off when the water is at the lower level; the temperature sensing being independent of the level sensmg. REJECTIONS 1) Claims 14, 16, 18, 20, and 21 are rejected under 35 U.S.C. § I03(a) as unpatentable over Mayleben (US 2008/0229819 Al, published Sept. 25, 2008) and Leone (US 2005/0095150 Al, published May 5, 2005) 2) Claim 17 is rejected under 35 U.S.C. § I03(a) as unpatentable over Mayleben, Leone, and Krone (US 5,628,229, issued May 13, 1997). 2 Appeal2017-007870 Application 12/755,766 3) Claim 19 is rejected under 35 U.S.C. § I03(a) as unpatentable over Mayleben, Leone, and Martin (US 2006/0239777 Al, published Oct. 26, 2006). DISCUSSION Rejection 1 The Examiner finds that Mayleben discloses most of the limitations of independent claim 14 including a level sensor that turns a pump on and off and a temperature sensor which provides a sensing function independent of level sensing, but relies on Leone as teaching a temperature sensor to cycle an impeller of a pump at a low temperature of O °C to avoid ice formation in the impeller cavity. Final Act. 2, 5; Ans. 5. The Examiner determines that it would have been obvious to a person of ordinary skill in the art to modify the controller of Mayleben to "add additional controller functionality" by means of "the additional feature of a temperature sensor which cycles the impeller at a low operating temperature to avoid ice formation in the impeller cavity ... to protect against fluid in the pump freezing and damaging the pump." Final Act. 3. The Examiner concludes that the proposed modification would result in independent temperature sensing and level sensing because there would be two separate devices. Id. Dependent Operation Appellants argue that because Mayleben's pump "completely stops" when the device gets too hot, all functionality is stopped, including level sensing, and thus the level sensing in Mayleben is "dependent" on the temperature sensing. Appeal Br. 9. 2 Appellants assert that Leone does not 2 In this Decision we refer to the Supplemental Appeal Brief filed Nov. 23, 2015. 3 Appeal2017-007870 Application 12/755,766 remedy this deficiency in Mayleben because Leone only relates to cycling based on temperature, not level sensing. Appeal Br. 10-11. The Examiner responds that because the temperature sensor is an additional, optional feature, the fluid level sensor would function without the temperature sensor. Ans. 5. The Examiner states that "[t]he temperature sensor does not require the presence of the level sensor ... because said sensors are two separate independently functioning devices that perform separate and independent tasks." Id.; see also Final Act. 5. Appellants reply that Mayleben does not suggest that "microcontroller 58 can activate or tum 'on' the deactivated pump in order to implement the level sensor functionality," and rather, level sensing is "completely dependent on" temperature sensing because Mayleben's "fluid-level-based controller functionality cannot be implemented until the temperature-based controller functionality is further assessed." Reply Br. 6. According to Appellants, one of ordinary skill in the pump controller art, would understand that when Mayleben's pump is deactivated because it is too hot, "the controller 58 (Figure 4A) would not be programmed to active or tum 'on' the 'hot' deactivated pump, e.g., due to the danger of a potential fire involved or damage to the pump itself," and that the pump would need to cool down before activation, and thus "the temperature sensor causing the pump 12 to tum 'off' would yield the level sensor to be dependent on the temperature sensor." Reply Br. 6-7 (emphasis added). Appellants assert that Leone does not remedy this deficiency in Mayleben because Leone does not provide a teaching to the contrary. Reply Br. 10. Appellants' arguments are not persuasive because they do not address the Examiner's rejection or explain why the combined teachings of the 4 Appeal2017-007870 Application 12/755,766 references do not result in a level sensing that is independent of the temperature sensing, which the Examiner finds is taught by Mayleben. See Final Act. 5; see also Ans. 5. As the Examiner correctly notes, "[p]aragraph 70 of Mayleben discloses turning off the pump (12) when the device becomes too hot, but paragraph 70 does not disclose turning off the temperature sensor or the level sensor when the device becomes too hot." Ans. 4. Thus, Appellants' argument on dependent operation is not persuasive because it does not direct us to any disclosure in Mayleben that either the level sensing or temperature sensing is affected by pump (12) being turned off. The Examiner correctly notes that Mayleben's level sensor can be used with "additional and/or supplemental features and processes" (Mayleben ,r 70) and proposes to modify the controller of Mayleben to include "additional controller functionality (such as the controller functionality disclosed by Leone)" Ans. 6; Final Act. 3. Appellants do not adequately explain or provide technical evidence to explain why Mayleben's pump would not continue to operate as designed to remove water based on level sensing when modified to include an additional feature, i.e., the controller function of cycling the impeller at low temperatures, as taught by Leone. Nor do Appellants explain why the additional feature of cycling would not work in Mayleben as it works in Leone. There is no pump deactivation based on the disclosure of Leone, and, Mayleben's device would function so that the pump controller turns on the pump when the water level is at a higher level for removing water, or turns off the pump when the water level is at a lower level after removing the water, based on the level sensing functionality, and when the water is in between the higher 5 Appeal2017-007870 Application 12/755,766 and lower levels, the modified pump controller of Mayleben would initiate cycling of the impeller at low temperatures to avoid ice formation in the impeller cavity based upon the temperature sensing functionality that is independent of level sensing functionality. See Appeal Br. 7-8. Thus, although Mayleben contemplates an embodiment using a safety shut-off when the pump overheats based on Mayleben' s temperature sensor (see Mayleben ,r 70), Mayleben also contemplates embodiments that use additional features. It is the additional feature of using a temperature sensor for cycling at low temperatures, as taught by Leone, that the Examiner uses as the basis for the rejection, as discussed above. Appellants, thus, do not apprise us of Examiner error. Teaching Away Appellants argue that Mayleben "teaches away from integrating any temperature-based controller functionality together with its fluid-level-based controller functionality and making the two pump controller functionalities independent of one another." Appeal Br. 11. Appellants assert that Mayleben's "level sensing-based controller technique [is] dependent on its additional temperature-based controller functionality," because when Mayleben's "device gets too hot the microprocessor 58 (Figure 3) deactivates the pump 12 ... which completely stops all of Mayleben at al.' level sensing-based controller functionality," and thus, Mayleben "teaches away from integrating any such additional temperature-based controller functionality together with a fluid-level-based controller technique and making the two techniques independent of one another." Appeal Br. 12-13. In response, the Examiner notes that Mayleben explicitly discloses additional or supplemental features or processes and the modification is 6 Appeal2017-007870 Application 12/755,766 adding a temperature sensor other than the one disclosed by Mayleben as the supplemental feature. Ans. 6. According to the Examiner, Mayleben does not teach away from adding a temperature sensor because Mayleben does not criticize, discredit, or otherwise discourage a temperature sensor for low temperatures that is independent of a level sensing device. Ans. 6-7. In the Reply Brief, Appellants argue that Mayleben teaches away from making temperature-based controller functionality integral with and independent of fluid level-based controller functionality and making the two pump controller functionalities independent of one another because Mayleben does not suggest "activation of any such 'hot' deactivated pump, or that any such activation of any such 'hot' deactivated pump makes any sense in any particular application." Reply Br. 13. Appellants contend that Mayleben "does not disclose, teach or suggest anything about a 'cooling down' period," and that "one skilled in the art ... does not simply tum a 'hot' pump back 'on' that has recently been deactivated without understanding the ramifications and implications of doing the same." Reply Br. 14. Appellants' arguments are not persuasive for several reasons. First, Appellant does not direct us to any portion of Mayleben that criticizes, discredits, or otherwise discourages a temperature sensor that cycles the pump impeller to avoid ice formation and is independent of level sensing. See In re Fulton, 391 F. 3d 1195, 1201 (Fed. Cir. 2004). Second, Appellants do not explain adequately why the additional controller functionality of temperature sensing for cycling at low temperatures, as taught by Leone, would not operate independently of the level sensing device as the Examiner finds. That is, Appellants do not provide a technical explanation as to why 7 Appeal2017-007870 Application 12/755,766 cycling at low temperatures would depend on level sensing, because these functions are separate controller functions. Finally, Appellants do not point to any portion of Leone that relates to pump deactivation based on cold temperature sensing and thus, Appellants arguments regarding the "ramifications and implication" of activating a deactivated pump are not relevant to the Examiner's rejection, which as discussed above relies on Leone's controller functionality that cycles at low temperatures, not Mayleben's "hot" temperature sensor. For these reasons, we are not persuaded that Mayleben teaches away from the Examiner's proposed modification. We have considered all of Appellants' arguments, but do not find them persuasive of Examiner error. Accordingly, we sustain the Examiner's rejection of claim 14. Appellants do not separately argue claims 16, 18, and 20 and these claims fall with claim 14. See Appeal Br. 19. Appellants rely on the same arguments for independent claim 21, and for the same reasons, we sustain the rejection of claim 21. See id. Re} ections 2 and 3 Claims 17 and 19 depend from claim 14. Appellants do not separately argue claims 17 and 19. See Appeal Br. 19. For the same reasons discussed above, we sustain Rejections 2 and 3. DECISION The Examiner's rejection of claims 14 and 16-21 is affirmed. 8 Appeal2017-007870 Application 12/755,766 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 9 Copy with citationCopy as parenthetical citation