Ex Parte Ott

Patent Trial and Appeal Board

Feb 1, 2013

11276288 (P.T.A.B. Feb. 1, 2013)

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.
11/276,288 02/22/2006 Brian L. Ott 15415.70 (ITWO:0317) 2909
52145 7590 02/01/2013
FLETCHER YODER (ILLINOIS TOOL WORKS INC.)
P.O. BOX 692289
HOUSTON, TX 77269-2289
EXAMINER
MAYE, AYUB A
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
02/01/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRIAN L. OTT
____________

Appeal 2010-010801
Application 11/276,288
Technology Center 3700
____________

Before PHILLIP J. KAUFFMAN, LYNNE H. BROWNE and REMY J.
VANOPHEM, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL
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Application 11/276,288

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STATEMENT OF THE CASE
Brian L. Ott (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision finally provisionally rejecting claim 1 on the ground of
non-statutory obviousness-type double patenting as being unpatentable over
claim 1 of copending Application No. 11/609,871, claims 1-3, 5-17, 19 and
21 under 35 U.S.C. § 102(b) as being anticipated by Nitta (JP 2003191075
A, pub. Jul. 8, 2003)1 and rejecting claims 4, 18, 20 and 22-25 under 35
U.S.C. § 103(a) as being unpatentable over Nitta. We have jurisdiction
under 35 U.S.C. § 6(b).
We Reverse.

THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A welding-type system comprising:
a power source designed to deliver power
for a welding-type process;
a remote device operably connected to
receive power from the power source across a weld
cable; and
a communications link configured to carry
control commands at least between the remote
device and the power source, and established
between the power source and the remote device
across the weld cable, wherein the control
commands are encoded using narrow-band binary
phase shift key modulation.

1 The Examiner rejects claims 22-25 under 35 U.S.C. § 102(b); however,
these claims depend from claim 18 which is rejected under 35 U.S.C. §
103(a). Accordingly, we will address claims 22-25 with claim 18 from
which they depend.
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OPINION
Double Patenting
The Examiner provisionally rejects claim 1 on the ground of non-
statutory obviousness-type double patenting as being unpatentable over
claim 1 of copending Application No. 11/609,871. Ans. 3.
Claim 1 of copending Application No. 11/609,871 was amended on
July 2, 2010, after the Examiner’s rejection that is the subject of this appeal
(see Office Action dated April 6, 2009, at 2-3)2. For that reason, we decline
to reach this rejection. See Ex parte Moncla, 95 USPQ2d 1884, 1885 (BPAI
2010) (Precedential) (Panels have the flexibility to not reach provisional
obviousness-type double-patenting rejections.).

Anticipation
Claims 1-3 and 5-11:
Independent claim 1 calls for a communications link configured to
carry control commands encoded using narrow-band phase shift key
modulation at least between the remote device and the power source.
The Examiner finds that Nitta discloses a communications link as
claimed (citing to the Abstract and Figures 1, 2 and 6); however, the finding
simply echoes the claim language and does not identify the elements of Nitta
that correspond to the communications link, the remote device, or the power
source. Ans. 4-5. Further, the Examiner finds that Nitta’s control
commands are encoded using narrow-band phase shift key modulation
(citing again to the Abstract and Figures 1, 2 and 6), and does not address

2 Additionally, the Examiner’s Answer was prior to the amendment of the
co-pending claims. See Ans. dated March 1, 2010, at 2-4.
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Application 11/276,288

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that claim 1 calls for the commands to be so encoded and carried at least
between the remote device and the power source. Id.
Appellant argues, and we agree, that Nitta’s Abstract and Figures 1, 2
and 6 do not support the Examiner’s findings. App. Br. 6-7. Appellant goes
on to contend that Nitta’s communication link utilizes a spread spectrum
technique, and not narrow-band phase shift key modulation as claimed.
App. Br. 8 (citing Nitta, para. [0056].
In Response to Argument, the Examiner finds only that “Nitta does
teach of encoding transmitting commanding signals from central operational
processing circuit as narrow band phase shift key modulation circuit as Nitta
discloses in paragraph 29 and 30 of machine translation.” Ans. 9-10. The
Examiner does not address Appellant’s contention that Nitta’s
communication link utilizes a spread spectrum technique.
The portion of the reference cited by the Examiner discloses that
Nitta’s signal modulation circuit MO outputs a modulated wave signal Mo
utilizing phase key shifting that is provided to the modulation circuit SI,
which performs a spectral diffusion with a spread code to output broadband
signal Si. Nitta, paras. [0029]-[0030], fig. 6.
Given this, the Examiner has not established by a preponderance of
the evidence that Nitta discloses a communications link as called for in
claim 1.
For this reason, we do not sustain the Examiner’s rejection of claim 1
and claims 2, 3 and 5-11 which depend from claim 1.
Claims 12-17:
The Examiner finds that Nitta teaches a communications network
including:
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a sensor that detects when the trigger is shifted to a
weld start position and upon said detection causes
the communications network to transmit a power
delivery signal to the power source that when
received by the power source causes the power
source to shift from the stand-by state to the power
deliver state such that power for the welding
process is delivered from the power source to the
wire feeder.
Ans. 6-7 (citing Nitta Abstr. and Figs. 1, 2 and 6).
Appellant argues that Nitta’s English-language abstract fails to
disclose “shifting a power source from a "stand-by state to the power deliver
state" based on detection of a trigger,” “does not mention a welding torch or
a trigger, and Figs. 1 and 2 of Nitta are unclear as to the disclosure of such
elements.” App. Br. 10-11.
The Examiner responds to this argument by citing page 10 of Nitta as
providing further support that Nitta meets this claim limitation. Ans. 11.
The Examiner specifically identifies Nitta’s power source PS as being
“capable of providing power to welding system and also operates to switch
or shift from stand-by mood [mode] during welding waiting period to
delivery state to supply power during welding period.” Ans. 10-11.
Appellant further argues that even though
the power supply of Nitta is referred to as a
“welding waiting output-control power supply
PS.” . . . . “the mere description of the power
supply of Nitta as a “welding waiting” power
supply cannot disclose the recited shifting “from
the stand-by state to the power deliver state such
that power for the welding process is delivered
from the power source to the wire feeder” of claim
12.
Reply Br. 7 (citing Nitta, paras. [0026], [0031], [0033], [0043], and [0054]).
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Appellant’s argument is convincing. While Nitta’s Abstract does
describe an output control power supply PS having a standby welding
period, in Nitta, power to the wire feeder is delivered from a control power
supply SP. Thus, Nitta’s Abstract cannot fairly be read to teach delivery of
a power source that “causes the power source to shift from the stand-by state
to the power deliver state such that power for the welding process is
delivered from the power source to the wire feeder” as required by claim 12.
Similarly, on page 103, Nitta teaches a separate power source SP for delivery
of power to the wire feeder.
For these reasons, we do not sustain the Examiner’s rejection of claim
12 and claims 13-17 which depend therefrom.
Claims 19 and 21:
The Examiner finds that Nitta teaches a “first control message
transmitted at a first frequency” and a “second control message transmitted .
. . at a second frequency different than the first frequency.” Ans. 7-8 (citing
Nitta, Abstr. and Figs. 1, 2 and 6).
Appellant argues Nitta’s “English-language abstract does not describe
or even mention the transmission of messages at any frequency, and
certainly not the ‘first frequency’ and ‘second frequency’ recited in claim
19. App. Br. 13; Reply Br. 8. Appellant further argues “Figs. 1, 2 and 6 of
Nitta are circuit schematics that do not provide any indication of the

3 The pages of the machine translation of Nitta are not numbered. The
Examiner has not explained what page is considered to be page 10. For
purposes of this appeal we assume that the Examiner numbered the pages in
the order in which they appear in the machine translation such that page 10
is the page that begins “[i]n consumable electrode type arc welding
equipment . . . . ”
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frequencies of transmitted messages between components of the system
illustrated therein.” Id.
The Examiner responds to this argument by citing paragraphs [0039]-
[0050] of Nitta as providing further support that Nitta meets this claim
limitation. Ans. 11.
Appellant argues in response to the Examiner’s additional citation
“[f]or example, nothing in these paragraphs [0039]-[0050] discusses or even
mentions a ‘first frequency’ or a ‘second frequency.’” Reply Br. 8.
Appellant’s arguments are convincing. The Examiner has not
identified nor do we discern what teachings the Examiner is relying on to
meet the limitations set forth in claim 19. Nitta’s Abstract does not discuss
frequencies and, while the signals depicted in Nitta’s Figures 1, 2 and 6
necessarily are transmitted at a frequency, there is no indication in these
figures that the communications link is configured to transmit any of these
signals at first and second frequencies as required by claim 19. While
paragraphs [0039]-[0050] describe various functions of the communications
link, the Examiner has not explained nor do we discern how the
communications link is “configured to transmit a given command signal
across the weld cable at a first frequency and if the given command signal is
not adequately received then transmit the given command signal across the
weld cable at a second frequency different from the first frequency” as
required by claim 19. In fact, these paragraphs do not mention frequencies
at all.
For these reasons, we do not sustain the Examiner’s rejection of claim
19 and claims 20 and 21 which depend therefrom.

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Obviousness
Claim 4:
The Examiner’s obviousness rejection of claim 4 contains the same
factual deficiencies, discussed supra, as the rejection of claim 1 from which
claim 4 depends and likewise is not sustained.
Claims 18 and 22-25:
The Examiner’s obviousness rejection of claim 18 contains the same
factual deficiencies, discussed supra, as the rejection of claim 12 from which
it depends and likewise is not sustained. The Examiner’s obviousness
rejections of claims 22-25 similarly contain the same factual deficiencies as
the rejection of claims 12 and 18 from which they depend and likewise are
not sustained.
Claim 20:
The Examiner’s obviousness rejection of claim 20 contains the same
factual deficiencies, discussed supra, as the rejection of claim 19 from which
it depends and likewise is not sustained.

DECISION
We reverse the Examiner’s rejection of claims 1-3, 5-17, 19 and 21
under 35 U.S.C. § 102(b).
We reverse the Examiner’s rejection of claims 4, 18, 20 and 22-25
under 35 U.S.C. § 103(a).

REVERSED

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