Ex Parte Songkakul

Patent Trial and Appeal Board

Sep 6, 2016

13236258 (P.T.A.B. Sep. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/236,258 09/19/2011
28524 7590 09/08/2016
SIEMENS CORPORATION
INTELLECTUAL PROPERTY DEPARTMENT
3501 Quadrangle Blvd Ste 230
Orlando, FL 32817
FIRST NAMED INVENTOR
Pornsak Songkakul
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.
2011Pl2835US 4248
EXAMINER
EVERETT, CHRISTOPHER E
ART UNIT PAPER NUMBER
2121
NOTIFICATION DATE DELIVERY MODE
09/08/2016 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):
ipdadmin.us@siemens.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PORNS AK SONGKAKUL 1
Appeal 2015-006131
Application 13/236,258
Technology Center 2100
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
FISHMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-21. 2 We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b ).
We affirm.
1 Appellant identifies Siemens Industry, Inc. as the real party in interest.
App. Br. 3.
2 In this Decision, we refer to Appellant's Appeal Brief ("App. Br.," filed
January 13, 2015); Appellant's Reply Brief ("Reply Br.," filed June 2,
2015); the Final Office Action ("Final Act.," mailed August 13, 2014); the
Examiner's Answer ("Ans.," mailed on April 2, 2015); and the original
Specification ("Spec.," filed September 19, 2011).
Appeal 2015-006131
Application 13/236,258
THE INVENTION
Appellant's invention is directed to "the control of environmental
conditions within a building." Spec. i-f 1.
Independent claim 1, reproduced below, is representative:
1. An arrangement configured to control an environmental
parameter in a building space, the arrangement comprising:
a building automation system including a plurality of field
devices configured to control the environmental parameter within the
building space; and
a motion detector configured to determine a number of humans
within the building space and a measure of movement for each of the
number of humans;
wherein the building automation system is configured to control
the field devices based at least in part on the determined number of
humans and the measure of movement for each of the number of
humans.
THE REJECTIONS
Claims 1-11, 13-18, 20, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Brackney (US 2011/0115910 Al;
May 19, 2011 (filed Nov. 16, 2010)) and McEwan (US 2011/0066302 Al;
Mar. 17, 2011 (filed Sept. 16, 2009)). Final Act. 2-14.
Claims 12 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brackney, McEwan, and Clemente
(US 2008/0244104 Al; Oct. 2, 2008). Final Act. 7, 8, 11, and 12.
ANALYSIS
Only those arguments actually made by Appellant have been
considered in this Decision. Arguments that Appellant did not make in the
2
Appeal 2015-006131
Application 13/236,258
Briefa have not been considered and are waived. See 37 C.F.R.
§ 41.37(c)(l)(iv).
We are not persuaded by Appellant's contentions of Examiner error
(App. Br. 7-13; Reply Br. 4--7). We adopt as our own the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 2-14) and as set forth by the Examiner in the Answer
(Ans. 2-3). However, we highlight and address specific arguments and
findings for emphasis as follows.
Claims 1-11, 13-18, 20, and 21
Appellant contends the Examiner erred in finding McEwan teaches or
suggests "a motion detector configured to determine a number of humans
within the building space and a measure of movement for each of the
number of humans," as recited in claim 1 (hereinafter the "disputed
limitation"). App. Br. 10-11; Reply Br. 4--6. In particular, Appellant asserts
McEwan distinguishes the use of radio frequency identification (RFID) tags
and receivers from the use of sensors 130A. App. Br. 10-11
(citing McEwan i-f 22). With respect to McEwan's description ofRFID,
Appellant argues the term "each occupant" from McEwan describes
attaching an RFID tag to each occupant, but the term is "not used in a
manner to distinguish each occupant from a plurality of occupants."
Id. (emphasis omitted); see also Reply Br. 5---6. With respect to McEwan's
description of sensors 130A, Appellant argues McEwan's sensors 130A do
not possess "the capabilities to distinguish between both the number of
occupants in a room and each occupant in the same room." App. Br. at 10.
3
Appeal 2015-006131
Application 13/236,258
Appellant's contentions are unpersuasive of Examiner error. As an
initial matter, the Examiner notes, as do we, "the arrangement" of claim 1
does not require the involvement of more than one human. Ans. 2. Contrary
to Appellant's argument, claim 1 recites a "number of humans" which
includes one human. We further note claim 21, directed to "wherein the
number of humans comprise a plurality of humans," supports our
interpretation of a "number of humans" as recited in claim 1 as
encompassing one human. Accordingly, Appellant's argument is not
commensurate with the scope of claim 1 and thus, does not demonstrate
error in the Examiner's rejection. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (limitations not appearing in the claims cannot be relied upon
for patentability).
Further, we agree with the Examiner's findings that McEwan's
sensors, as described in paragraph 22, teach or suggest the disputed
limitation. Ans. 2-3 (citing McEwan i-f 22); see also Final Act. 3. In
particular, the Examiner finds the sensors from paragraph 22 of McEwan
detect the physical presence of a human. Ans. 3. The Examiner further
finds "[ t Jags attached to the humans, determine using the subject sensors the
position and movement of each human[] or occupant." Id. Paragraph 22 of
McEwan recites, in part, "subject sensors 130A may include any
combination of motion sensors, heat sensors, tactile sensors, pressure
sensors, cameras, and any other device that may detect that the occupant 50
has entered or is positioned in the section 104." Detecting that an occupant
has entered or exited a section as disclosed in McEwan teaches or suggests a
measure of movement of the occupants as claimed. Therefore, we find
McEwan's disclosure of subject sensors (130A) detecting whether an
4
Appeal 2015-006131
Application 13/236,258
occupant (50) has entered section (104) teaches or suggests a subject sensor
(130A) (the claimed "motion sensor") configured to determine an occupant
(50) (the claimed "number of humans") within section (104) (the claimed
"building space") and a measure of movement for the occupant (50) (the
claimed "each of the number of humans"). Accordingly, McEwan teaches
or suggests the disputed limitation.
Appellant further contends the Examiner erred in finding McEwan
teaches or suggests "controlling an environment in the room occupied by
occupant, or controlling devices based on both the number of humans and
the measure of movement for each of the number of humans." App. Br. 11
(emphases omitted); see also Reply Br. 6-7. In particular, Appellant argues
"[because] McEwan fails to disclose that its sensor 130A or RFID receiver
can distinguish between each occupant from a plurality of occupants; there
can be no disclosure for configuring a detector/sensor to differentiate the
movements of each human out of a plurality of humans." App. Br. 11
(emphasis omitted).
We are not persuaded of Examiner error. As discussed supra,
Appellant's argument is not commensurate with the scope of claim 1 in that
claim 1 does not require differentiating movements of each human. Instead,
claim 1 merely requires a measure of movement, which is taught or
suggested by Mc Ewan's sensing occupants entering or exiting an area.
Appellant further argues "it appears that the Examiner is using
impermissible hindsight to reconstruct Applicant's claimed subject matter"
(Id.; see also Reply Br. 6) because the "Examiner['s] interpretation of
McEwan's sensor 130A is misplaced, and includes functionality not
5
Appeal 2015-006131
Application 13/236,258
disclosed in McEwan, but only found in Applicant's [S]pecification"
(App. Br. 12 (emphasis omitted)).
We are not persuaded by Appellant's arguments regarding hindsight.
Appellant does not provide persuasive arguments or evidence showing the
Examiner improperly relied on Appellant's Specification in the context of
making the rejection under 35 U.S.C. § 103(a). Instead, the Examiner has
broadly but reasonably construed terms in claim 1 and finds those features,
as so construed, in the teachings of McEwan (in the proposed combination).
Further, we find the Examiner has set forth an articulated reasoning with
some rational underpinning to combine the references, i.e., "to optimize the
energy usage by using subject sensors to detect the presence of occupants
and coupled to the controller is used to operate controllable devices to
conserve energy." Final Act. 3; see also KSR Int 'l Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007) (citing In re Kahn, 441F.3d977, 978 (Fed. Cir.
2006)).
In view of the above discussion, we are not persuaded the Examiner
erred by finding the combination of Brackney and McEwan teaches or
suggests the limitations of claim 1. Appellant presents similar arguments
regarding independent claims 14 and 20 (App. Br. 7-12) and, for the same
reasons as claim 1, we are not persuaded of Examiner error. Thus, we
sustain the rejection of independent claim 1 and, for the same reasons, we
sustain the rejection of independent claims 14 and 20 together with the
rejection of dependent claims 2-11, 13, 15-18, and 21, not separately argued
with particularity. App. Br. 12.
6
Appeal 2015-006131
Application 13/236,258
Claims 12 and 19
Appellant does not separately argue with particularity the rejection of
claim 12 (dependent from claim 11) or the rejection of claim 19 (dependent
from claim 18) and, thus, we sustain the rejection of claim 12. App. Br. 12-
13.
DECISION
We affirm the Examiner's decision to reject claims 1-21.
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.
§ 41.50(f).
AFFIRMED
7