Ex Parte Ramsay

Patent Trial and Appeal Board

Feb 4, 2016

13251898 (P.T.A.B. Feb. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/251,898 10/03/2011 Lawson H. RAMSAY
23505 7590 02/08/2016
CONLEY ROSE, P.C.
Jonathan M. Harris
1001 Mckinney
Suite 1800
HOUSTON, TX 77002-6417
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.
1787-20812 2861
EXAMINER
DAVID, MATTHEW
ART UNIT PAPER NUMBER
2615
NOTIFICATION DATE DELIVERY MODE
02/08/2016 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):
pathou@conleyrose.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAWSON H. RAMSAY
Appeal2013-009223
Application 13/251,898
Technology Center 2600
Before CAROLYN D. THOMAS, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner
finally rejecting claims 1-3, 8-14, and 19, all the pending claims in the
present application. Claims 4--7 and 15-18 are canceled. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The present invention relates generally to a metering system
configured to couple to multiple specialty systems, such as a control system.
See Abstract.
Appeal2013-009223
Application 13/251,989
Claim 1 is illustrative:
1. A processing unit comprising:
a processor;
a memory coupled to the processor; and
a communication port coupled to the processor, the
communication port configured to couple to a backbone
communication network of a control system;
wherein the memory stores programs that, when executed
by the processor, cause the processor to selectively:
participate, over the communication port, as a processing
unit within a control system of a first manufacturer, the control
system implements a first proprietary communication protocol
between processing units; and
participate, over the communication port, as a processing
unit within a control system of a second manufacturer, different
than the first manufacturer, the control system of the second
manufacturer implements a second proprietary communication
protocol between processing units, and the second proprietary
communication protocol is different than the first proprietary
commumcat10n protocol.
Appellant appeals the following rejections:
RI. Claim 1-3, 8-10, and 12-14 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Burr (US 7,096,078 B2, Aug. 22, 2006)
and Danknick (US 5,613,096, Mar. 18, 1997);
R2. Claim 11 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Burr, Danknick, and Yoshida (US 4,078,427, Mar. 14,
1978); and
R3. Claim 19 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Burr, Danknick, and Siemens (SITRANS F US, System
info and selection guide, Ultrasonicflowmeters, pp 152-250 (2007)).
2
Appeal2013-009223
Application 13/251,989
ANALYSIS
Claims 1, 8-10, 12-14, and 19
Issue 1: Did the Examiner err in finding that the combined teachings
of Burr and Danknick teach or suggest a processing unit within a control
system and proprietary communication protocols, as set forth in claim 1?
Appellant contends "there is no indication [in Danknick] that the
printer network board 101 can act as a processing unit of a control system,
contain function blocks ... " (App. Br. 15). Appellant further contends that
"the printer network board 101 of Danknick does not appear to be able to
distinguish protocols at levels of the OSI model where control system
manufacturers implement their proprietary protocols" (id. at 16), and Burr is
"capable of implementing only one propriety communication protocol ...
[and] not capable of implementing different, multiple proprietary
communication protocols" (id.).
The Examiner finds that "one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references" (Ans. 3). The Examiner further finds that "the
limitations and exemplary embodiments of paragraph 28 are not read into
the claims [because] [ t ]he claims make no limitation with respect to the
'proprietary communication protocols' being the same at the physical and
data link layers, but different at higher levels of the OSI model" (Ans. 4).
We agree with the Examiner.
We refer to, rely on, and adopt the Examiner's findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.
3
Appeal2013-009223
Application 13/251,989
Although Appellant contends that Danknick' s network board 101
cannot act as a processing unit (see App. Br. 15), we highlight that the
Examiner relies upon Burr, not Danknick, for teaching a plurality of
processing units that manage a control system and for showing the presence
of function blocks (see Final Act. 2 and Ans. 3--4, citing Burr, col. 3, 11. 36-
42 and 59---63). Specifically, Burr teaches that "[e]ach of the controllers 12a,
14a, and 16a . .. may store and execute a controller application that
implements a control strategy using a number of different, independently
executed, control modules or blocks ... commonly referred to as function
blocks" (col. 3, 11. 32-38).
As for Appellant's contention that Burr is "capable of implementing
only one propriety communication protocol ... not capable of implementing
different, multiple proprietary communication protocols" (App. Br. 16), we
highlight that the Examiner relies upon Danknick for teaching using
different manufacturers and different communication protocols (see Final
Act. 3--4 and Ans. 5, citing Danknick, col. 1, 11. 20-37, col. 3, 1. 55- col. 4,
1. 2, and col. 13, 11. 54---67). Specifically, Danknick teaches a multi-protocol
system that "utilizes autoprotocol detection to determine frame types ... and
to correlate those frames types with a particular one of several different
protocols available" (col. 13, 11. 54---60) and Appellant concedes that Burr
discloses using a proprietary communication protocol (App. Br. 16, citing
Burr col. 3, 11. 37-38, 59-65). Thus, we agree with the Examiner that the
combined teachings of Burr and Danknick teach or suggest the argued
limitations (see Ans. 3).
Appellant's arguments do not take into account what the collective
teachings of the prior art would have suggested to one of ordinary skill in the
4
Appeal2013-009223
Application 13/251,989
art and are therefore ineffective to rebut the Examiner's prima facie case of
obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)("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.") (citations
omitted). This reasoning is applicable here because the Examiner relies
upon the combined teachings of Burr and Danknick to teach or suggest
processing units within control systems of first and second manufacturers
and first and second proprietary communication protocols.
Regarding independent claim 19, Appellant contends that "the term
'flow computer' is a term of art, and the computer systems 18 and 20 of
[Burr] are configuration and monitoring computers, not a 'flow computer"'
(App. Br. 17). Appellant further contends that "[t]here is simply no
indication in Danknick that the printer network board 101 could or should
have the capability to 'perform hydrocarbon metering based on the
communication with the one or more flow computer"' (id. at 18).
The Examiner finds, and we agree, that Appellant's Specification
provides an explicit definition of the term "flow computer" and Burr teaches
two flow computers consistent with this definition (see Ans. 5---6, citing
Spec. i-f 13). For example, Appellant's Specification states that "'[f]low
computer' shall mean a hardware device having a processor and executing
software where the flow computer communicates directly or indirectly with
flow measuring equipment" (Spec. i-f 13). Similarly, Burr teaches process
controllers communicatively coupled to field devices (e.g., flow rate
5
Appeal2013-009223
Application 13/251,989
sensors) (see col. 1, 11. 12-20) and "[i]n the example process plant 10 of
FIG. 1, ... a process controller 12a, 14a, 16a connected to one or more field
devices 22 and 23 ... are also coupled to one or more host or operator
workstations 18a and 20a" (col. 3, 11. 5-12). In other words, Burr's
workstations 18a and 20a are communicatively coupled to flow rate sensors.
Regarding Appellant's contention that "[t]here is simply no indication
in Danknick that the printer network board 101 could or should have the
capability to 'perform hydrocarbon metering based on the communication
with the one or more flow computer"' (App. Br. 18), we highlight that the
Examiner is relying on Burr, not Danknick, for teaching performing the
hydrocarbon metering based on the communication with the one or more
flow computers (see Ans. 7). Thus, Appellant's contention is nonresponsive
to the Examiner's specific findings.
In view of the above discussion, we are of the opinion that the
proposed combination of references set forth by the Examiner does support
the obviousness rejection. We, accordingly, sustain the rejection of
independent claims 1, 8, and 19, and the rejection of claims 9, 10, and 12-14
which are dependent thereon.
Claims 2 and 3
Issue 2: Did the Examiner err in finding that the combined teachings
of Burr and Danknick teach or suggest a processor conforming to
metrological audit requirements, as set forth in claim 2?
Appellant contends that "one of ordinary skill would not, on their
own, view just any processor to be a processor 'conforming to a process of
6
Appeal2013-009223
Application 13/251,989
metro logical audit requirements' as those terms are understood by one
having ordinary skill in the art" (App. Br. 23). Although Appellant contends
that in Figure 2 "metrological unit 246 performs a series of actions in
accordance with specific metrological audit requirements set forth by a
plurality of legal jurisdictions regarding the metering of hydrocarbons for
custody transfer" (id.), we find that Appellant's Specification fails to list
such series of actions and merely notes that "the metrological unit 246
performs supervisory control over the flow computers 234, 236 ... and also
conforms the hydrocarbon metering aspects of the overall system 200 to
metrological audit requirements" (i-f 36).
The Examiner further finds that "Danknick inherently teaches ... the
processor to conform to metrological audit requirement [s]ince any
processor can be said to conform to a system of measurement" (Final Act.
5). We disagree with the Examiner.
When relying upon a theory of inherency, the Examiner must provide
a basis in fact and/or technical reasoning to reasonably support the
Examiner's determination that the allegedly inherent characteristic
necessarily flows from the teachings of the applied prior art. Ex parte Levy,
17 USPQ2d 1461, 1463-64 (BP AI 1990). Here, we find that the Examiner
has not shown that any processor conforms to metrological audit
requirements. We are therefore constrained by the record before us to find
that the Examiner erred in rejecting dependent claim 2, as well as dependent
claim 3 for similar reasons.
7
Appeal2013-009223
Application 13/251,989
Claim j j
Issue 3: Did the Examiner err in finding that the combined teachings
of Burr and Danknick teach or suggest the processor communicating with
one or more ultrasonic flow meters, as set forth in claim 11?
Although Appellant contends that "Burr and Danknick still fail to
teach or suggest 'wherein when the processor communicates, the programs
further cause the processor to communicate with one or more ultrasonic flow
meters'" (App. Br. 23), we find that such a statement fails to provide any
meaningful analysis why the Examiner's proffered findings are in error.
Therefore, for the same reasons as noted supra regarding the "flow
computer," we sustain the Examiner's rejection of claim 11.
DECISION1
We affirm the Examiner's§ 103(a) rejections of claims 1, 8-14, and
19.
We reverse the Examiner's§ 103(a) rejection of claims 2 and 3.
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).
1 In the event of further prosecution, we leave it to the Examiner to consider
if the computer readable medium claim, claim 8, should also be rejected
under 35 U.S.C. § 101. Generally, the ordinary and customary meaning of
"computer readable medium" to a person of ordinary skill in the art is broad
enough to encompass both non-transitory and transitory media. Signals are
not patentable eligible subject matter under § 101. In re Nuijten, 500 F .3d
1346, 1357 (Fed. Cir. 2007). See also MPEP § 2106(!) (8th ed. Rev. 9 Aug.
2012) and Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013)
(precedential).
8
Appeal2013-009223
Application 13/251,989
kme
AFFIRMED-IN-PART
9