Ex Parte Santacatterina et alDownload PDFPatent Trial and Appeal BoardFeb 9, 201612821644 (P.T.A.B. Feb. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/821,644 06/23/2010 173 7590 02/11/2016 WHIRLPOOL CORPORATION - MD 3601 2000 NORTH M63 BENTON HARBOR, MI 49022 FIRST NAMED INVENTOR Gianpiero Santacatterina 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. PAT-IT20020057-US-CNT 4329 EXAMINER NORTON, JENNIFER L ART UNIT PAPER NUMBER 2126 NOTIFICATION DATE DELIVERY MODE 02/11/2016 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): whirlpool_patents_co@whirlpool.com mike_lafrenz@whirlpool.com deborah_tomaszewski@whirlpool.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte GIANPIERO SANTACATTERINA, MATTEO SANTINATO, ETTORE ARIONE, and ROCCO PETRIGLIANO Appeal2014-000311 Application 12/821,644 Technology Center 2100 Before CAROLYN D. THOMAS, DANIEL J. GALLIGAN, and SHARON PENICK, Administrative Patent Judges. GALLIGAN, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. § 134(a) of the Examiner's rejection of claims 2-5, 7-10, and 12-14. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1, 6, and 11 have been canceled. We AFFIRM.2 1 The Appeal Brief identifies Whirlpool Corp. as the real party in interest. App. Br. 2. This appeal relates to Appeal No. 2014-000508 (Application Serial No. 12/973,287). 2 Our Decision refers to Appellants' Appeal Brief filed May 2, 2013 ("App. Br."); Appellants' Reply Brief filed September 25, 2013 ("Reply Br."); Examiner's Answer mailed July 25, 2013 ("Ans."); Non-Final Office Action Appeal2014-000311 Application 12/821,644 Exemplary Claim on Appeal Claims 12-14 are independent claims. Claim 12 is reproduced below: 12. A process for managing power demand of simultaneously operating household appliances which each implement at least one working cycle having multiple phases, the process compnsmg: forecasting for each of the appliances a future energy consumption profile corresponding to its currently executing working cycle; summing the future energy consumption profiles corresponding to the working cycle for each of the appliances; determining if the sum indicates one or more peaks in power demand; providing at least one alternative setting to the multiple phases of the currently executing working cycle to provide a new energy consumption profile to one or more of the appliances to level a total power consumed by the appliances in the future; and continuing the operation of the one or more appliances to complete the working cycle with the at least one alternative setting such that the one or more appliances remain in operation and the total power consumption is leveled. mailed May 21, 2012 ("Non-Final Act."); and original Specification filed June 23, 2010 ("Spec."). 2 Appeal2014-000311 Application 12/821,644 Culp Shavit et al. Donnelly et al. Ru go Dn-fn1~nMFlnP 1\..VjVI Vfit, .. ,.,c,,LJ us 4,612,619 Sept. 16, 1986 us 5,543,667 Aug. 6, 1996 US 7,010,363 B2 Mar. 7, 2006 EP 0 620 631 Al Oct. 19, 1994 Examiner's Rejections (1) Claims 2-5, 12, and 14 stand provisionally rejected for obviousness-type double patenting over claims 2-5, 12, and 14 of U.S. Patent Application No. 12/973,287, which is the subject of Appeal No. 2014-000508. Non-Final Act. 5-8. (2) Claims 12-14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Shavit and Rugo. Non-Final Act. 8-15. (3) Claims 2, 4, 5, 7, 9, and 10 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Shavit, Rugo, and Donnelly. Non-Final Act. 15----20. (4) Claims 3 and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Shavit, Rugo, Donnelly, and Culp. Non-Final Act. 20----24. ANALYSIS We have considered Appellants' arguments (App. Br. 7-28; Reply Br. 1-5), but we are not persuaded of Examiner error. We concur with the Examiner's conclusion that the claims are unpatentable as obvious. We highlight the following for emphasis. 3 Appeal2014-000311 Application 12/821,644 Obviousness= Ty'Pe Double Patenting _,_Rejection As stated in the Appeal Brief, "Appellants are not challenging the [double patenting] rejection." App. Br. 28. As such, we summarily sustain this rejection. Rejection of Independent Claims 12-14 under 35 U.S.C. § 103(a) Appellants make several arguments contending error in the Examiner's rejection of independent claims 12-14 under 35 U.S.C. § 103(a). See App. Br. 11-21. First, Appellants contend the Examiner has not set forth a prima facie case because "no rational basis exists for making the combination" (App. Br. 11-13) of Shavit and Rugo and because "the rejection improperly relies on impermissible hindsight" (App. Br. 13). The Examiner's rejection relies on Shavit for teaching many of the limitations of the independent claims. See Non-Final Act. 9-14. Shavit is directed to managing power consumption by controlling device power "loads." Shavit, col. 1, 11. 8-15, col. 3, 11. 8-22. An example of such a device is a variable speed fan. Shavit, col. 11, 11. 49-54. Although we find that one of ordinary skill in the art would associate Shavit's variable speed fan with an appliance, the rejection acknowledges that "household appliances" are "[ n Jot explicitly taught" in Shavit, so the Examiner relies on Rugo for explicitly teaching "household appliances" having a working cycle with multiple phases. Non-Final Act. 10 (citing Rugo, col. 1, 11. 1-5, col. 3, 11. 6-23, col. 4, 11. 5-11, 44--54). The Examiner concludes that it would have been obvious at the time of Appellants' invention 4 Appeal2014-000311 Application 12/821,644 to modify the teaching of Shavit to include the addition of the limitations of household appliances; and a working cycle having multiple phases of a household appliance for limiting the total power absorbed by the appliances, while minimizing the waiting periods of appliances having lower priority to be activated in a priority sequence. Non-Final Act. 10 (citing Rugo, col. 2, 11. 9-12). We are not persuaded the Examiner erred in combining the teachings of Shavit and Rugo. The Examiner's stated rationale for combining the teachings of the references comes from Rugo, which is directed to "provid[ ing] a management system for domestic electric loads which can limit the total power absorbed by the appliances, while minimizing the waiting periods of the appliances having lower priority." Rugo, col. 2, 11. 9- 12 (cited at Non-Final Act. 10). As Appellants acknowledge, "Rugo '631 is similar to Shavit '667 in that Rugo '631 relates to priority-based adding/shedding of loads, albeit in the context of household appliances." App. Br. 17. Therefore, the Examiner's proposed combination relies on applying known techniques (power management techniques) to power- consuming devices ("loads" in Shavit and "appliances" in Rugo ). The Supreme Court has stated that, "if a technique has been used to improve one device, and a person of ordinary skill in the art 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). Appellants have not presented persuasive evidence that combining the teachings of the references would be beyond the skill of a person of ordinary skill in the art 5 Appeal2014-000311 Application 12/821,644 ii~ppellants next contend the Examiner has not set forth a prima facie case because "the differences between the prior art and the claims at issue ha[ve] not been properly ascertained." App. Br. 13. Appellants argue: In rejecting claim 12, the Examiner ignores elements of the claim and rewrites each claim limitation using generic terminology to force the limitations to fit the disclosure of Shavit '667 and then attempts to revert back to Appellants' actual claim by simply substituting terminology found in Rugo '637 which corresponds to Appellants' terminology back into the Examiner's rewritten claim. App. Br. 14. Appellants then reproduce quotes from the Examiner's rejection and highlight where the Examiner has allegedly misquoted the language of independent claims 12-14. See App. Br. 14--16. We are not persuaded the Examiner erred in laying out the rejection in this manner. Contrary to Appellants' contention, the rejection does not "rewrite" claim limitations by mapping what Shavit teaches with respect to "devices," rather than "appliances," as recited in claim 12. See App. Br. 14. Rather, the rejection is presented in this manner because the Examiner acknowledges that "household appliances" are "[ n Jot explicitly taught" in Shavit. Non-Final Act. 10. Appellants also contend the combination of Shavit and Rugo does not teach or suggest the limitations of claims 12-14. See App. Br. 16-21. Appellants' arguments are directed to the limitations of claim 12 reciting "forecasting for each of the appliances a future energy consumption profile corresponding to its currently executing working cycle," "providing at least one alternative setting to the multiple phases of the currently executing working cycle," and "continuing the operation of the one or more appliances to complete the working cycle with the at least one alternative setting." See 6 Appeal2014-000311 Application 12/821,644 1A .. pp. Br. 21. Based on their arguments regarding the individual disclosures of Shavit and Rugo, Appellants argue "the combination of Shavit '667 and Rugo '631 would result in nothing more than the priority-based adding/shedding method of Shavit '667 used with a household appliance, such as is disclosed by Rugo '631." App. Br. 18. We disagree with Appellants' characterizations of the teachings of Shavit and Rugo, and, as a result, we disagree with Appellants' argument regarding the combination. First, Appellants argue "Shavit '667 is admittedly silent regarding household appliances each having a working cycle having multiple phases, and thus inherently cannot disclose forecasting for each of the appliances a future energy consumption profile corresponding to its currently executing working cycle." App. Br. 17. However, the Examiner relies on Shavit for teaching energy consumption forecasting for a device in combination with Rugo's teachings regarding power consumption of an "appliance." Non- Final Act. 9-10 (citing Shavit col. 11, 11. 5-9; Rugo col. 1, 11. 1-5, col. 4, 11. 44--54). Therefore, Appellants' argument is not persuasive because it does not address the Examiner's findings based on the combined teachings of the references. "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citation omitted). Further, Appellants acknowledge "Shavit '667 discloses adding/shedding a load or partially adding/shedding a load, such as by changing the operating point of a device to increase or decrease the output of the device (e.g. reducing the fan speed of a variable speed fan or decreasing 7 Appeal2014-000311 Application 12/821,644 a temperature set point)." 1A .. pp. Br. 17 (citing Shavit, col. 11, 11. 39-54). However, according to Appellants, if "the operation of a fan is considered a working cycle, it would be a cycle with a single phase - ON - and a single parameter -speed. Changing the speed would be tantamount to stopping, i.e. shedding, the first working cycle and starting a new working cycle." App. Br. 21. We are not persuaded because Appellants have not directed us to a definition of "working cycle" to support their argument that each different speed of a variable speed fan is a different working cycle. Rather, we agree with the Examiner's finding that changing the operating point of the device teaches "providing at least one alternative setting." See Non-Final Act. 9. With respect to Rugo, Appellants acknowledge "Rugo '631 discloses household appliances having working cycles with multiple phases," but they argue "Rugo '631 discloses shedding loads by temporarily stopping operation of an appliance and has no disclosure relevant to providing at least one alternative setting to the multiple phases of the currently executing working cycle to provide a new energy consumption profile." App. Br. 20. Therefore, according to Appellants, "[t]he shedding disclosed by Rugo '631 results in the working cycle being stopped." App. Br. 18. We are not persuaded. Although Rugo teaches that appliances can be stopped to conserve power, Rugo also teaches that power can be shared among devices when one device switches to a "working phase involving lower power consumption," such as when "only a part of the heating elements of the oven are to be energized." Rugo, col. 6, 11. 4---6. In this example, Rugo teaches that "[t]he central unit 5 in this case enables concurrent operation of the two appliances until the said maximum power 8 Appeal2014-000311 Application 12/821,644 value is possibly exceeded." Rugo, col. 6, 11. 10-13. \Ve note that Rugo's teaching of operating an oven with fewer than all heating elements is similar to an exemplary implementation in Appellants' Specification that Appellants highlight in their brief. See App. Br. 19 (citing Spec. i-f 31, Fig. 8). Therefore, we disagree with Appellants' contention that Rugo "has no disclosure relevant to providing at least one alternative setting to the multiple phases of the currently executing working cycle to provide a new energy consumption profile." App. Br. 20. Based on the teachings of the references, we are not persuaded by Appellants' argument that, "no matter how Shavit '677 and Rugo '631 are combined, the combination would still result in stopping/shedding a household appliance as disclosed by Rugo '631 as this is the only disclosure of how to manage household appliances having working cycles with multiple working phases." App. Br. 21. Shavit explicitly teaches that a benefit of its disclosure is that it is not necessary to completely stop or shed a load to maintain a power level: "With the inclusion of multispeed fans and other analog loads to building automation systems, it is no longer necessary to shed entire loads to maintain power consumption below the second predetermined level." Shavit, col. 2, 1. 65 - col. 3, 1. 1. Rugo teaches switching to a "working phase involving lower power consumption," such as when "only a part of the heating elements of the oven are to be energized." Rugo, col. 6, 11. 4---6. In light of these teachings, we agree with the Examiner's finding that changing the operating point of a device, such as a multispeed fan in Shavit, teaches "providing at least one alternative setting," which in combination with Rugo' s teaching of a working cycle with multiple phases, teaches or suggests "providing at least one alternative setting to the 9 Appeal2014-000311 Application 12/821,644 multiple phases of the currently executing \'l/orking cycle," as recited in claim 12. See Non-Final Act. 9-10. We are not persuaded the Examiner erred in rejecting claims 12-14 over the combination of Shavit and Rugo, and therefore we sustain the rejection of these claims under 35 U.S.C. § 103(a). Rejection of Claims 2, 4, 5, 7, 9, and 10 under 35 U.S.C. § 103(a) Claim 2 depends from claim 12 and recites that "the appliances are controlled through ON-OFF switching of components in the appliances and wherein the appliances are synchronized for organizing the ON-OFF switching of the components in the appliances in order to limit peaks of power demand in the future." Claim 7 depends from claim 13 and recites similar subject matter. Appellants argue that the "claimed synchronizing and the priority- based adding/shedding process of Shavit '667 are not the same." App. Br. 23. However, Appellants do not provide a definition of "synchronizing" in support of their argument. Appellants' Specification states: Fig. 6 shows schematically an exemplary embodiment of the present invention where the controls 14a-d of an appliance 13 are connected to the system 1 the different controls 14a-d for the different actuators 15a-d are "synchronized" by a control circuit 16 that organizes the ON-OFF switching of the single actuator in order to limit the current peak level absorption from the mains. Spec. i-f 28. Appellants' Specification appears to use the term "synchronize" broadly to describe organizing power consumption among multiple devices. Appellants have not presented sufficient evidence or argument to persuade us of error in the Examiner's finding that Shavit's disclosure of prioritizing 10 Appeal2014-000311 Application 12/821,644 loads teaches or suggests synchronizing, as that term is used in the claims and broadly described in Appellants' Specification. See Non-Final Act. 15 (citing Shavit, col. 4, 11. 1-12). Appellants also argue "Shavit '667 has no disclosure relevant to synchronizing the ON-OFF switching of components in the appliances to limit peaks of power demand in the future." App. Br. 23. This argument is not persuasive because the rejection relies on Donnelly for teaching control of components in combination with the teachings of Shavit and Rugo. Non- Final Act. 15-16 (citing Donnelly, col. 1, 11. 15-17, col. 7, 11. 6-49). Because we are not persuaded of Examiner error, we sustain the rejection of claims 2 and 7, as well as the rejection of claims 4, 5, 9, and 10, for which Appellants provide no additional persuasive arguments for patentability. See App. Br. 24--25. Rejection of Claims 3 and 8 under 35 U.S.C. § 103(a) Claim 3 recites: The process according to claim 2, wherein each ON-OFF switching is based on a duty cycle and wherein a synchronizer puts in a sequence all the different duty cycles starting with the duty cycle having a load with the highest power level, then organizes them inside a selected period of control, each duty cycle being placed in a precise position inside the period of control avoiding unnecessary simultaneous activation of loads in the future. Claim 8 depends from claim 7 and recites similar subject matter. Appellants contend the combination of Shavit, Rugo, Donnelly, and Culp does not teach or suggest the limitations of claims 3 and 8. App. Br. 25-27. In particular, Appellants argue: 11 Appeal2014-000311 Application 12/821,644 Culp '619 fails to disclose a synchronizer that puts in a sequence all the different duty cycles then organizes them inside a selected period of control. Culp '619 simply discloses a duty cycle routine that can be used with a load shedding energy management system that sequentially turns loads ON and OFF in which the duty cycle OFF times are spread uniformly throughout the time interval so that there is a uniform gap between adjacent OFF times. App. Br. 27. Appellants' arguments do not rebut persuasively the Examiner's findings with respect to Culp. See Non-Final Act. 21-22. For example, as found by the Examiner, Culp teaches organizing duty cycles "inside a selected period of control" by disclosing "[a] system for leveling energy consumption of loads being controlled by a duty cycle routine, the loads having on times and off times within a predetermined period of time established by the duty cycle routine." Culp, Abstract (cited at Non-Final Act. 21). Because we are not persuaded of error, we sustain the rejection of claims 3 and 8. DECISION We affirm the Examiner's decision to reject claims 2-5, 7-10, and 12-14. 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 Klh 12 Copy with citationCopy as parenthetical citation