Ex Parte Misra

Patent Trial and Appeal Board

Jun 8, 2017

13229224 (P.T.A.B. Jun. 8, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/229,224 09/09/2011 Sandeep MISRA 5029-849-309791 9153
27799 7590
Cozen O'Connor
277 Park Avenue, 20th floor
NEW YORK, NY 10172
06/12/2017 EXAMINER
KIM, EUNHEE
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
06/12/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANDEEP MISRA
Appeal 2016-004976
Application 13/229,224
Technology Center 2100
Before JOHN A. JEFFERY, JOHN P. PINKERTON, and
MELISSA A. HAAPALA, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—16. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellant’s invention involves computer-aided analysis of an
automation plant. After acquiring information pertaining to networked
devices and their interconnections, a network topology is generated and
respective devices are assigned to certain hierarchical levels. An automation
plant topology can also be displayed on a user interface. See generally
Abstract. Claim 1 is illustrative:
Appeal 2016-004976
Application 13/229,224
1. A method for computer-aided analysis of an automation
plant to which a plurality of networked devices are assigned,
comprising:
acquiring information pertaining to each of the plurality
of networked devices and generating a network topology
representing a networking of each of the plurality of networked
devices, the information including device types and
interconnections of the plurality of networked devices;
assigning a respective device of the plurality of
networked devices according to a device type of each of the
plurality of networked devices to a hierarchy level of a plurality
of hierarchy levels predefined for the automation plant, at least
one hierarchy level of the plurality of hierarchy levels
corresponding to levels from the automation plant and
comprising (A) one of (i) a field level, (ii) a control level and
(iii) a process control level, and (B) disposed above one of (i)
the field level and (ii) the control level, at least one of the
process control level and a management level; and
displaying a topology of the automation plant on a user
interface upon which a section is provided for each of the
plurality of hierarchy levels, devices of the plurality of
networked devices assigned to a respective hierarchy level
being disposed as elements in a section provided for a
respective hierarchy level and being interconnected based on
the networking of the plurality of networked devices according
to the generated network topology;
wherein at least one device of the plurality of networked
devices monitoring the automation plant disposed outside an
hierarchy level of the automation plant is assigned to at least
one of the process control level and management level.
2
Appeal 2016-004976
Application 13/229,224
THE REJECTIONS
The Examiner rejected claims 1 and 5—16 under 35 U.S.C. § 103(a) as
unpatentable over Braun (US 7,478,145 B2; Jan. 13, 2009) and Hada (US
7,185,072 B2; Feb. 27, 2007). Ans. 2-6.1
The Examiner rejected claims 2-42 under 35 U.S.C. § 103(a) as
unpatentable over Braun, Hada, and Dinges (US 7,668,910 B2; Feb. 23,
2010). Ans. 7-8.
THE OBVIOUSNESS REJECTION OVER BRAUN AND HADA
The Examiner finds that Braun discloses many recited elements of
independent claim 1, including at least one networked device of plural such
devices (“switches and datalinks”) monitoring an automation plant disposed
outside the plant’s hierarchy level and assigned to at least one of the process
control and management levels. Ans. 3—4, 8—11. According to the
Examiner, Braun’s switches and datalinks, shown as including elements 2
and 6 in the annotated version of Figure 1 on page 11 of the Answer, are not
a direct part of the automation plant and thus, they are also outside a
hierarchy level as claimed. Ans. 8—9. Although the Examiner
acknowledges that Braun’s hierarchy levels are not predefined, the Examiner
1 Throughout this opinion, we refer to (1) the Appeal Brief filed September
8, 2015 (“App. Br.”); (2) the Examiner’s Answer mailed February 4, 2016
(“Ans.”); and (3) the Reply Brief filed April 4, 2016 (“Reply Br.”).
2 Although the statement of this rejection includes claim 12, we presume this
is a typographical error because the body of the rejection does not contain an
analysis of claim 12. We treat any error associated with this inconsistency
as harmless.
3
Appeal 2016-004976
Application 13/229,224
cites Hada as teaching predefinition in concluding that the claim would have
been obvious. Ans. 4.
Appellant argues that Braun’s switches and datalinks do not monitor
the automation plant, but rather they are part of the network monitored by
the sole computer 1 in Figure 1. App. Br. 7—11; Reply Br. 2—8. According
to Appellant, Braun lacks a device that functions as a test station disposed
outside of a hierarchy level of the automation plant, such as the device (CD)
assigned to the process control level (V) in Appellant’s Figure 1. App. Br.
9—10; Reply Br. 4. As such, Appellant contends, Braun does not teach or
suggest at least one device of plural networked devices monitoring the
automation plant disposed outside a hierarchy level of the plant is assigned
to at least one of the process control and management levels as claimed.
App. Br. 7—11; Reply Br. 2—8.
ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Braun and Hada collectively would have taught or suggested at least one
of plural networked devices monitoring the automation plant disposed
outside a hierarchy level of the plant is assigned to at least one of the process
control and management levels (“the hierarchy level limitation”)?
ANALYSIS
We begin by noting that the Examiner’s reliance on the secondary
reference to Hada is undisputed, as is the cited references’ combinability.
Rather, as noted above, this dispute turns solely on the Examiner’s reliance
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Appeal 2016-004976
Application 13/229,224
on Braun for teaching the hierarchy level limitation. Therefore, we confine
our discussion to Braun.
A key aspect of claim l’s hierarchy level limitation is that at least one
networked device monitors the automation plant. Appellant’s Specification
does not define the term “monitoring,” but does note that monitoring can
involve gathering or collecting device information by using, for example, the
Simple Network Management Protocol (SNMP). See Spec. Tflf 6, 32.
Although this discussion informs our understanding of the recited
automation plant monitoring function, it is not limiting. Rather, we construe
the term “monitoring” consistent with the plain meaning of the term
“monitor” in the art, namely “[a] device or instrument which is utilized to
sample, measure, assess, regulate, observe, or control a process or system.
Also, to use such a device or instrument, for instance, to assess performance
or to make sure an observed value is within the desired interval.” Steven M.
Kaplan, Wiley Electrical & Electronics Engineering Dictionary 481
(2004).
Given this broad definition of “monitoring” and the exemplary
information-gathering monitoring functions noted in the Specification, we
see no error in the Examiner’s reliance on Braun’s switches 2 and data lines
6 in Braun’s Figure 1 for at least suggesting the networked devices in the
hierarchy level limitation, including the recited automation plant monitoring
function. Not only are Braun’s switches and data lines outside of the
hierarchical field and management levels identified by the Examiner in
Braun’s Figure 1 (Ans. 9, 11), the switches also monitor at least one aspect
of the automation plant, namely for incoming address-based data from nodes
7 and manager 9, as shown by the arrows 10a, 12, and 14 in Figure 2. See
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Appeal 2016-004976
Application 13/229,224
Braun, col. 5,11. 1—54. To the extent that Appellant contends that Braun’s
switches do not monitor the entire automation plant as is presumably the
case with Braun’s “Manager” computers (see App. Br. 8; Reply Br. 2—3),
such arguments are not commensurate with the scope of the claim which
does not preclude the switches monitoring at least part of the automation
plant, including monitoring transmissions from the plant’s nodes and
computers. That monitoring can involve gathering or collecting device
information by using SNMP as noted in the Specification’s paragraphs 6 and
32—the very protocol used by Braun in, for example, column 5, lines 35 to
45—only underscores the monitoring function of Braun’s switches.
Lastly, we see no error in the Examiner’s finding that at least one of
these devices, namely Braun’s switches 2, are disposed outside a hierarchy
level of the automation plant, namely the hierarchy represented by (1) the
field and management levels identified by the Examiner on the annotated
version of Braun’s Figure 1, and (2) the control level containing the nodes 3
as noted by Appellant. See Ans. 4, 11 (illustrating the management and field
levels); see also Reply Br. 6, 8 (noting that Braun’s nodes are within the
control level). On this record, we see no reason why Braun’s switches
cannot be part of a separate process control level disposed outside the above-
noted hierarchy as the Examiner suggests. See Ans. 10—11 (illustrating the
mapped switches and datalinks in Braun correspond to process control level
“V”).3 To the extent Appellant contends otherwise, Appellant provides no
persuasive evidence on this record to substantiate such a contention.
3 Appellant labels level “V” in Figure 1 of the present application as a
process control level. See Spec. 134; see also App. Br. 9; Reply Br. 4
(referring to “process control level (V)”).
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Application 13/229,224
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 5—16 not argued separately with particularity.4
THE OTHER OBVIOUSNESS REJECTION
We also sustain the Examiner’s obviousness rejection of claims 2-4.
Ans. 7—8. Appellant reiterates similar arguments made in connection with
claim 1, and alleges that Dinges fails to cure those purported deficiencies.
App. Br. 10; Reply Br. 8. We are not persuaded by these arguments for the
reasons previously discussed.
CONCLUSION
The Examiner did not err in rejecting claims 1—16 under § 103.
DECISION
We affirm the Examiner’s decision rejecting claims 1—16.
4 Notably, independent claim 15 recites an apparatus including, among other
things, a device monitoring the automation plant. Apparatus claims reciting
active method steps have been held indefinite under § 112, second
paragraph, for such claims raise the question of whether they are infringed
by devices that are merely capable of performing the recited function, or that
they must actually perform that function. See IPXL Holdings, L.L. C. v.
Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005); see also
Rembrandt Data Technologies, LPv. AOL, LLC, 641 F.3d 1331, 1339 (Fed.
Cir. 2011) (data transmitting device held indefinite for reciting transmitting
method step). Nevertheless, the Examiner did not reject claim 15 on this
basis, nor will we speculate in that regard here in the first instance on appeal.
Rather, we leave this question to the Examiner to consider after our decision.
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Application 13/229,224
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
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