Ex Parte Pedraza et al

Patent Trial and Appeal Board

Feb 19, 2014

12140165 (P.T.A.B. Feb. 19, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/140,165 06/16/2008 Mark A. Pedraza RM2-100C2 2977
35083 7590 02/20/2014
CHARLES D. GAVRILOVICH, JR.,
GAVRILOVICH, DODD & LINDSEY, LLP
985 PASEO LA CRESTA, SUITE B
CHULA VISTA, CA 91910-6729
EXAMINER
LEE, BENJAMIN C
ART UNIT PAPER NUMBER
2684
MAIL DATE DELIVERY MODE
02/20/2014 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 MARK A. PEDRAZA, RICHARD G. LUBESKI,
and MARK A. O’CONNELL
____________

Appeal 2011-013095
Application 12/140,165
Technology Center 2600
____________

Before JOSEPH F. RUGGIERO, ELENI MANTIS MERCADER,
and BRUCE R. WINSOR, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-28, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 The real party in interest identified by Appellants is RM2, Inc. App. Br. 3.
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STATEMENT OF THE CASE
Appellants’ disclosure “relates in general to drying procedures and
more specifically to . . . monitoring a drying procedure of a building
structure.” Spec. ¶ 0002. Claim 1, which is illustrative, reads as follows:
1. A method for managing a drying procedure performed at
a structure, the method comprising:
receiving, through a communication network, drying
procedure data obtained at a structure undergoing a drying
procedure to remove moisture from at least a portion of a
building material forming at least a portion of the structure; and
transmitting control instructions through the
communication network to equipment at the structure.
Claims 1-3 and 5-28 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Reuter (US 6,161,763; issued Dec. 19, 2000) and Hsiung
(US 7,031,778 B1; issued Apr. 18, 2006) or Gookins (US 6,530,160 B1;
issued Mar. 11, 2003). Ans. 4-10.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Reuter, Hsiung or Gookins, and Fuller (US 6,978,631 B2; issued Dec. 27,
2005). Ans. 10.
Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Reuter, Hsiung or Gookins, and Ehlers (US 2004/0133314 A1; published
July 8, 2004). Ans. 11.
Claims 1-28 stand rejected on the ground of nonstatutory
obviousness-type double patenting over claims 1-10, 25, 26, 48, 49, and 58
of Pedraza (US Patent No. US 7,173,538 B2; issued Feb. 6, 2007) (“Pat.
’538”) and Hsiung or Gookins. Ans. 12-13.
Rather than repeat the arguments here, we refer to the Briefs (“App.
Br.” filed Feb. 7, 2011; “Reply Br.” filed June 14, 2011) and the Answer
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(“Ans.” mailed July 21, 2011)2 for the respective positions of Appellants and
the Examiner. Only those arguments actually made by Appellants have been
considered in this decision. Arguments that Appellants did not make in the
Briefs have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(vii) (2011).

ISSUES
The issues presented by Appellants’ contentions are as follows:
Did the Examiner err in concluding claims 1, 11, 21, and 22 are
obvious over the combination of Reuter and Hsiung or Gookins?
Did the Examiner err in rejecting claims 1-28 for nonstatutory
obviousness-type double patenting over claims 1-10, 25, 26, 48, 49, and 58
of Pat. ’538 combined with Hsiung or Gookins?

ANALYSIS
We have considered Appellants’ contentions and arguments (App. Br.
10-25; Reply Br. 2-18) in light of the Examiner’s findings (Ans. 4-13) and
explanations in response to Appellants’ arguments (Ans. 13-23). We agree
with the Examiner’s findings and explanations (Ans. 4-23) and adopt them
as our own. The following findings, conclusions, and explanations are
provided for emphasis.

2 The Answer mailed April 15, 2011 has not been considered, as it is deemed
to have been superseded by the Answer mailed July 21, 2011.
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REJECTIONS UNDER 35 U.S.C. § 103(A)
Claim 1
Analogous Art
Appellants contend that neither Hsiung nor Gookins is analogous art
with respect to Appellants’ invention. App. Br. 16-19, Reply Br. 9-12. We
disagree. As posited by Appellants (App. Br. 16-17), in an obviousness
analysis,
[t]wo separate tests define the scope of analogous prior art: (1)
whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
inventor is involved.
In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (quoting In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004) (emphases added). Determining whether
art is in the same field of endeavor as Appellants’ claimed invention
“requires the PTO to determine the appropriate field of endeavor by
reference to explanations of the invention’s subject matter in the patent
application, including the embodiments, function, and structure of the
claimed invention.” Bigio, 381 F.3d at 1325. Turning to the second test for
analogous art, “[a] reference is reasonably pertinent if, even though it may
be in a different field from that of the inventor’s endeavor, it is one which,
because of the matter with which it deals, logically would have commended
itself to an inventor’s attention in considering his problem.” Klein, 647 F.3d
at 1348 (quoting In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992)).
Appellants contend the appropriate “field of endeavor is apparatuses,
systems and methods for monitoring a drying procedure of a building
structure” (App. Br. 17), and that the problem with which Appellants are
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involved is “avoid[ing] the inefficiencies of requiring a technician to visit
the building structure undergoing a drying procedure” (App. Br. 18).
Appellants assert Hsiung is not reasonably pertinent to Appellants’ problem
because “Hsiung makes no mention of technicians visiting a building
structure undergoing a drying procedure.” Id. (emphasis added).
Appellants similarly assert Gookins is not reasonably pertinent to
Appellants’ problem because “Gookins makes no mention of technicians
visiting a building structure undergoing a drying procedure.” Id. (emphasis
added).
Appellants’ arguments are unpersuasive because Appellants conflate
the two separate tests for analogous art. Appellants argue, in substance, that
Hsiung and Gookins are not reasonably pertinent to Appellants’ problem
because Hsiung and Gookins are not in Appellants’ field of endeavor.
However, when faced with the problem of “avoid[ing] the inefficiencies of
requiring a technician to visit the building structure undergoing a drying
procedure” (App. Br. 18), one of ordinary skill in the art would logically
look to how the inefficiencies of requiring a technician to visit has been
avoided for other processes.
Hsiung teaches:
Statistical methods, expert systems, and algorithms utilized to
monitor and control the process need not be present at the plant
site, but rather can receive information from the plant over the
web. This allows the user to monitor and control process
parameters from essentially any physical location, particularly
given the emergence of wireless communications.
Hsiung, col. 7, ll. 36-42. We find a reference that teaches a technique to
“allow[] the user to monitor . . . process parameters from essentially any
physical location” (id., ll. 39-40) would logically commend itself to a skilled
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person faced with the need to “avoid the inefficiencies of requiring a
technician to visit the building structure undergoing a drying procedure”
(App. Br. 18). Similarly, Gookins teaches that “the supervision of the
SBC/controller no longer requires repeated trips to the bin.” Gookins, col.
15, ll. 18-19. Again, we find that such a teaching would logically commend
itself to a skilled person faced with the need to “avoid the inefficiencies of
requiring a technician to visit the building structure undergoing a drying
procedure” (App. Br. 18).
We find that Hsiung and Gookins are analogous art with regard to
Appellants’ invention because they are reasonably pertinent to the problem
faced by the Appellants. We note that although we do not necessarily agree
that Hsiung and Gookins are not in Appellants’ field of endeavor, we need
not reach that question.
Limitations
Appellants contend as follows:
Gookins discusses connecting sensors for monitoring in-bin
grain drying to the Internet. Gookins does not teach or suggest
receiving any data related to a drying procedure of a building
structure. Hsiung teaches processing data and transmission
through a network but does not teach to receive any data related
to a drying procedure of a building structure. Accordingly, none
of the references teaches or suggests “receiving, through a
communication network, drying procedure data obtained at a
structure undergoing a drying procedure to remove moisture
from at least a portion of a building material forming at least a
portion of the structure”.
App. Br. 11-12; see also Reply Br. 5-7.
Appellants’ contention is unpersuasive because the Examiner relies on
Reuter, not Gookins or Hsiung, to teach “receiving . . . drying procedure
data obtained at a structure undergoing a drying procedure to remove
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moisture from at least a portion of a building material forming at least a
portion of the structure,” as recited in claim 1. Ans. 5. The Examiner relies
on Gookins or Hsiung to teach that process monitoring and control data may
be sent over a communication network. Id. “[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.” In re Keller, 642 F.2d
413, 426 (CCPA 1981).
Appellants further contend as follows:
[S]imply applying techniques for drying grain using the Internet
or techniques for managing a web-based architecture to the self
contained system of Reuter does not result in “receiving,
through a communication network, drying procedure data
obtained at a structure undergoing a drying procedure to
remove moisture from at least a portion of a building material
forming at least a portion of the structure.” The Examiner has
not provided any reasoning on how the controller and/or
sensors in Reuter are modified so that drying procedure data or
information is transmitted through a communication network.
App. Br. 12.
Appellants’ further contention is similarly unpersuasive.
To justify combining reference teachings in support of a
rejection it is not necessary that a device shown in one
reference can be physically inserted into the device shown in
the other. The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
Keller, 642 F.2d at 425 (citations omitted). The Examiner is not required to
show how the teachings of Hsiung or Gookins can be physically inserted
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into the device taught by Reuter. Rather, the Examiner appropriately finds
(Ans. 5), and we agree that the teachings of Reuter combined with those of
either Hsiung or Gookins would have taught or suggested all the limitations
recited in claim 1.
Principle of Operation
Appellants contend
that the principle of operation of Reuter is a self-contained,
autonomously-controlled, real-time system that does not, in
operation, require any outside instruction or input to function
properly. To the contrary, the cited portions of Hsiung (col. 7,
lines 50-55) describe a web-based architecture by which a user
can monitor and control a system from an off-site location. . . .
[T]he Examiner’s proposed modification of the autonomous,
real-time system of Reuter by utilizing the web-based
architecture of Hsiung to allow a user to monitor and control
the system of Reuter would improperly change the principle of
operation of Reuter.
Reply Br. 3; see also App. Br. 13-15.
We disagree with Appellants’ contentions. Reuter does not teach or
suggest a “self-contained” system. Reuter’s system comprises a
programmed controller (Reuter, Fig. 2) and various sensors, fans and
dampers (id.), at least some of which one of ordinary skill in the art would
have understood to be separate from the programmed controller. See, e.g.,
Reuter, col. 5. ll. 18-43. Reuter does not teach or suggest a system that is
controlled without user monitoring or control. For instance, Reuter teaches a
control panel (Reuter, Fig. 1) that allows a user to monitor various status
lights and to adjust a low temperature cutoff control.
Reuter teaches that its principle of operation is
controlling the introduction of drier air into a target site of a
water-damaged building, comprising:
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(a) determining the absolute humidity of indoor air at
or near the target site and the absolute humidity of
air outside of the building;
(b) determining the temperature of the air at the target
site; and
(c) controlling the source of air to be blown in the
target site such that the driest air source is used.
Preferably, the controlling step is done with a
programmed controller element described herein.
Reuter col. 2, ll. 13-24 (emphasis added). Appellants fail to persuasively
explain how utilizing the communication network as taught by Hsiung or
Gookins, to receive data and transmit control instructions would change
Reuter’s principle of operation.
Rationale to Combine
The Examiner concludes that one of ordinary skill in the art would
have combined Reuter with the communications network of Hsiung or
Gookins in order to minimize operator trips to the drying operation site. See
Ans. 5, 17 (citing Gookins, col. 15, ll. 10-26; Hsiung, col. 7, ll. 32-42).
Appellants contend that the Examiner has articulated an improper rationale
for combining Hsiung or Gookins with Reuter, because “the self-contained
system of Reuter autonomously monitors the drying process and makes
control decisions based on on-site measurements, without any user
intervention or monitoring.” App. Br. 15; see also Reply Br. 8. Because, as
discussed above, we find that Reuter does not teach a system that operates
“without any user intervention of monitoring,” we find Appellants’
argument unpersuasive.
Furthermore, the Supreme Court explained that “if a technique has
been used to improve one device, and a person of ordinary skill in the art
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would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). We
conclude that a person of ordinary skill in the art would have recognized that
Hsiung’s or Gookins’s use of a communication network would improve
Reuter’s building drying system (Reuter, Title) in the same way that it
improves Gookins’s grain drying system (Gookins, Title) and Hsiung’s real
time process monitoring and control (Hsuing, col. 7, ll. 54-55).
Impermissible Hindsight
Appellants contend “the Examiner has combined the references by
observing that Reuter does not teach or suggest communication through a
network and that Gookins and Hsiung include discussions of remote
monitoring of systems unrelated to building structure drying procedures.”
App. Br. 15; see also Reply Br. 8-9. Appellants continue, “[t]here is no
evidence in the record other than Appellants’ specification that supports any
reasoning behind combining the references.” App. Br. 16.
We are not persuaded by Appellants’ contentions. As discussed
above, the Examiner based the rationale to combine Reuter with Hsiung or
Gookins on evidence drawn from the text of Hsiung and Gookins. See Ans.
5, 17 (citing Gookins, col. 15, ll. 10-26; Hsiung, col. 7, ll. 32-42). The
Examiner further explains that Gookins teaches a method of managing a
drying process for materials in general (Ans. 16 (citing Gookins, col. 1, ll.
53-54)) while Hsiung teaches that its techniques may be applied to a wide
variety of processes (id.(citing Hsiung, cols. 1-2; see, e.g., col. 2, ll. 7-18)).
We find there is substantial evidence in the record, drawn from the
cited references and not from Appellants’ Specification, to support the
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Examiner’s conclusion of obviousness. See In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971 ).
Conclusion
Appellants have failed to persuade us of error in the rejection of claim
1. Therefore, we sustain the rejection of claim 1 as obvious over Reuter and
Hsiung or Gookins.
Claims 11, 21, and 22
Appellants present substantially the same arguments for claims 11, 21,
and 22 (App. Br. 19-22) as for claim 1. We find these arguments
unpersuasive for substantially the same reasons as discussed above.
Therefore, we sustain the rejection of claims 11, 21, and 22 as obvious over
Reuter and Hsiung or Gookins.
Dependent Claims
Appellants do not separately argue dependent claims 2-10, 12-20, and
23-28 with particularity. See App. Br. 23. Accordingly, for the reasons
discussed above, we sustain the rejection of (1) claims 2, 3, 5-10, 12-20, and
23-28 as obvious over Reuter and Hsiung or Gookins; (2) claim 4 as obvious
over Reuter, Hsiung or Gookins, and Fuller; and (3) claim 5 as obvious over
Reuter, Hsiung or Gookins, and Ehlers.
OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION
Appellants’ arguments regarding the rejection of claims 1-28 for
nonstatutory obviousness-type double patenting over claims 1-10, 25, 26, 48,
49, and 58 of Pat. ’538 and Hsiung or Gookins substantially parallel those
made for the patentability of claim 1 over the combination of Reuter and
Hsiung or Gookins. See App. Br. 23-25. We find these arguments
unpersuasive for substantially the same reasons as discussed above.
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Accordingly, we sustain the nonstatutory obviousness-type double patenting
rejection of claims 1-28 over claims 1-10, 25, 26, 48, 49, and 58 of Pat.
’538 and Hsiung or Gookins.

DECISION
The decision of the Examiner to reject claims 1-28 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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