Ex Parte Solimano et al

Patent Trial and Appeal Board

Sep 23, 2016

12705168 (P.T.A.B. Sep. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121705, 168 02/12/2010
27350 7590 09/27/2016
LERNER GREENBERG STEMER LLP
Box SA
P.O. BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
Marco Solimano
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.
2008P07256 7804
EXAMINER
LOPEZ ALVAREZ, OLVIN
ART UNIT PAPER NUMBER
2121
NOTIFICATION DATE DELIVERY MODE
09/27/2016 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):
boxsa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARCO SOLIMANO and STEP ANO DIGHERO
Appeal2015-004395
Application 12/705, 168
Technology Center 2100
Before DEBRA K. STEPHENS, DAVID J. CUTITTA II, and
MICHAEL J. ENGLE, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 1-9 and 12. We have jurisdiction under 35 U.S.C. § 6(b). Claims 10
and 11 have been cancelled.
We AFFIRM.
Appeal2015-004395
Application 12/705, 168
STATEMENT OF THE INVENTION
According to Appellants, the claims are directed to a method for
evaluating key production indicators (KPI) in a manufacturing execution
system (MES) (Abstract). Claim 1, reproduced below, is representative of
the claimed subject matter:
1. A method for evaluating key production indicators (KPI)
in a manufacturing execution system (MES), which comprises
the steps of:
executing an object oriented tool for modeling a
production process in the manufacturing execution system, the
modeling including a definition of plant floor equipment
involved in the production process and corresponding MES
applications managing the plant floor equipment, the modeling
including a definition of a class defining the key production
indicators to be calculated in a plant performance analyzer tool
on the plant floor equipment, the class also defining how the
key production indicators are to be calculated, the object
oriented tool being a high level tool independent from the plant
floor equipment, wherein the key production indicators defined
by the modeling in the object oriented tool include a definition
of a calculus to be executed by the plant performance analyzer
tool;
executing the plant performance analyzer tool for
calculating the key production indicators on the plant floor
equipment based on the class defining the key production
indicators to be calculated in the plant performance analyzer
tool, wherein the class was defined by the object oriented tool,
and the plant performance analyzer tool is a low level tool
dependent on the plant floor equipment; and
reading the key production indicators calculated by the
plant performance analyzer tool in the object oriented tool in
real time.
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Application 12/705, 168
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Yigit et al.
Chu et al.
US 2006/0031840 Al
US 8,306,928 B2
Feb.9,2006
Nov. 6, 2012
Siemens, Configuration Instruction: Data Exchange Between SIMATIC
PCS 7 I BATCH and SIMATIC IT Production Modeler, Siemens (2007)
(hereinafter "Siemens")
Siemens, Configuration Instruction Quality Management, Siemens (2007)
(hereinafter "Siemens QM")
REJECTIONS
Claims 1-8 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Siemens, Yigit, and Chu (Final Act. 8-18).
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Siemens, Yigit, and Siemens QM (Final Act. 18-20).
Claim 1 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Siemens, Yigit, and Appellants' Admitted Prior Art (Final
Act. 20-26).
ISSUES
35 U.S.C. § 103(a): Claims 1-8and12
Appellants assert their invention as recited in claim 1, is not obvious
over Siemens, Yigit, and Chu (App. Br. 4--9). The issues presented by the
arguments are:
Issue 1: Has the Examiner erred in finding the combination of
Siemens, Yigit, and Chu teaches or suggests "reading the key production
indicators calculated by the plant performance analyzer tool in the object
oriented tool in real time," as recited in claim 1?
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Application 12/705, 168
Issue 2: Has the Examiner erred in finding the combination of
Siemens, Yigit, and Chu teaches or suggests "a plant performance analyzer
tool on the plant floor equipment," as recited in claim 1?
Issue 3: Has the Examiner erred by improperly combining the
teachings and suggestions of Siemens, Yigit, and Chu?
ANALYSIS
We disagree with Appellants' conclusions and adopt as our own:
( 1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken; and (2) the reasons set forth by the Examiner in
the Answer in response to the Appeal Brief. With respect to the claims
argued by Appellants, we highlight and address specific findings and
arguments for emphasis as follows.
Initially, Appellants argue "[t]he mere indication of a temperature on
page 74 of Siemens would not have suggested" the disputed "reading"
limitation as recited (App. Br. 4--5). Appellants additionally argue Yigit
does not teach KPis are calculated by a plant performance analyzer tool in
real time but rather Yigit teaches data obtained by sensors and bar code
readers are sent to the Application Integrator Platform (AIP) and the AIP
calculates exemplary KPis from that data (App. Br. 5).
We are not persuaded by Appellants' arguments. First, we note the
Examiner relies on Yigit as teaching real time data exchange (Final Act. 12;
Ans. 23). Secondly, we agree with the Examiner that Yigit teaches reading
data from one computer or module to another computer or module in real
time (Ans. 23-26 (citing Yigit i-fi-13, 34--35, 49, 50, 54, 55, Figs. 2---6)).
Appellants argue the Examiner has compared Yigit's AIP with the object
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Application 12/705, 168
oriented tool in Siemens and further contend Yigit teaches the AIP "can get
the data it needs" in real time, but does not teach the AIP calculates the KPI
(App. Br. 5-6). Thus, Appellants appear to be arguing Yigit's system as a
whole would not be incorporated into the systems of Siemens by an
ordinarily skilled artisan. However, the Examiner relies on Siemens as
teaching "reading the key production indicators calculated ... in the object
oriented tool" and relies on Yigit as teaching the reading may occur in real
time (Final Act. 12-13; Ans. 24--25). We are not persuaded by Appellants'
arguments.
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 \vould have suggested to those of ordinary skill
in the art.
In re Keller, 642 F .2d 413, 425 (CCP A 1981) (citations omitted). Here, we
determine combining the teachings of Siemens with the teachings of Yigit
to provide KPis in real time, would have suggested modifying the system of
Siemens to provide real time KPI data to an ordinarily skilled artisan.
Moreover, we agree with the Examiner that Appellants are arguing the
references individually while the Examiner is relying on the combination of
references to teach the disputed limitation (Ans. 28-29).
Appellants argue "the Examiner's position is too broad" as a device
that may read KPis in real time as taught by Yigit, would not suggest
reading KPis with the production modeler of Siemens, in real time (Reply
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Br. 2). However, Appellants have not persuaded us an ordinarily skilled
artisan would not have found it obvious to combine the teachings of Yigit
and Siemens. For example, Appellants have not presented any evidence or
argument that providing the KPis, as taught by Siemens, in real time was
"uniquely challenging or difficult for one of ordinary skill in the art" or
"represented an unobvious step over the prior art." Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int'!
Co. v. Teleflex Inc., 550 U.S. 398, 418-19 (2007)).
Next Appellants argue Chu's forecast device is not comparable to
Siemens' plant performance analyzer tool (App. Br. 7). The Examiner relies
on Chu to teach transmitting ''performance data from floor equipment to a
secondary computer, and having a performance analyzer located at the floor
equipment" (Ans. 30-31 ). We agree with the Examiner's findings (see Ans.
31; Chu 3:8-12, 2:55-58). Specifically, we are not persuaded by
Appellants' argument because we find Chu discloses "manufacturing
equipment" (Chu 2:55-58). Initially as a matter of claim construction, we
determine "plant floor equipment" is not defined explicitly in Appellants'
Specification and Appellants proffer no evidence or argument as to why
"manufacturing equipment" or other computerized equipment would not be
understood by an ordinarily skilled artisan to teach "plant floor equipment."
Accordingly, we determine Chu teaches "a plant performance analyzer tool
on the plant floor equipment," as recited in claim 1.
Appellants further contend Chu does not output KPis like Siemens'
plant performance analyzer tool and, therefore, an ordinarily skilled artisan
would not have been motivated to modify Siemens plant performance
analyzer tool based on Chu's teaching of forecast devices (App. Br. 7).
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According to Appellants, the Examiner's proffered motivation - to
distribute the load among several computers so that they have the same
amount of load to increase the performance of the server - only provides
motivation for implementing the plant performance analyzer on a separate
computer device and not on the plant floor equipment (Reply Br. 3).
We do not find Appellants' arguments persuasive. We are
unconvinced an ordinarily skilled artisan would not have found it obvious to
implement the combination of Siemens' and Yigit's teachings on separate
manufacturing devices (plant floor equipment).
Appellants further argue if an ordinarily skilled artisan were to
combine the teachings of Siemens and Yigit, the result would not have
provided a load to a higher level tool and the load would already have been
distributed as Yigit teaches the workload already being distributed;
therefore, an ordinarily skilled artisan would not have been motivated to
combine Chu's teaching with those of Siemens and Yigit (Reply Br. 3--4).
We are not persuaded by Appellants' arguments. Again, Appellants
are arguing the teachings of Yigit be wholly inserted into Siemens whereas
the Examiner relies on Yigit for teaching real time data exchange and Chu
for teaching installing the plant performance analyzer on plant floor
equipment (Final Act. 12-13). Thus, Appellants' arguments are not directed
to the Examiner's findings and reasoning.
The Examiner has articulated reasoning with a rational underpinning
as to why an ordinarily skilled artisan would have been motivated to
combine the teachings and suggestions of Siemens, Yigit, and Chu (Ans.
30-34; Final Act. 12-13). Appellants have not proffered sufficient evidence
or argument to persuade us of error in the Examiner's findings.
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Accordingly, we are not persuaded the Examiner erred in finding the
combination of Siemens, Yigit, and Chu teaches or suggests the limitations
as recited in independent claim 1. Dependent claims 2-8 and 12 are not
separately argued and thus, these claims fall with independent claim 1.
Therefore, we sustain the rejection of claims 1-8 and 12 under
35 U.S.C. § 103(a) for obviousness over Siemens, Yigit, and Chu.
35 U.S.C. § 103(a): Claim 9
Appellants assert their invention as recited in claim 9 is not obvious
over Siemens, Yigit, Chu, and Siemens QM for the reasons set forth above
with respect to claim 1 (App. Br. 10). However, we find no deficiencies
with the Examiner's proffered combination of Siemens, Yigit, and Chu for
the same reasons discussed above regarding representative claim 1.
Therefore, we sustain the rejection of claim 9 under
35 U.S.C. § 103(a) for obviousness over Siemens, Yigit, Chu, and Siemens
QM.
35 U.S.C. § 103(a): Claim 1
In the Appeal Brief, Appellants do not address the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) for obviousness over Siemens,
Yigit, and AAP A. See Ans. 35. In the Reply Brief, Appellants, for the first
time, present arguments that the Examiner erred in rejecting claim 1.
Appellants have not explained why, nor is it apparent that these arguments
were necessitated by a new point in the Answer or any other circumstance
constituting "good cause" for its belated presentation. See 37 C.F.R.
§ 41.41 (b )(2) (2016). Therefore, these arguments are not considered.
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Accordingly, we sustain the rejection of claim 1under35 U.S.C. § 103(a)
for obviousness over Siemens, Yigit, and AAP A.
DECISION
The Examiner's rejection of claims 1-8 and 12 under 35 U.S.C.
§ 103(a) as being unpatentable over Siemens, Yigit, and Chu is affirmed.
The Examiner's rejection of claim 9 under 35 U.S.C. § 103(a) as
being unpatentable over Siemens, Yigit, Chu, and Siemens QM is affirmed.
The Examiner's rejection of claim 1 under 35 U.S.C. § 103(a) as
being unpatentable over Siemens, Yigit, and AAP A 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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