Jaroslaw Kussyk et al.Download PDFPatent Trials and Appeals BoardJul 2, 20212020001082 (P.T.A.B. Jul. 2, 2021) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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. 14/111,220 10/11/2013 Jaroslaw Kussyk 2011P04868 2337 27350 7590 07/02/2021 LERNER GREENBERG STEMER LLP Box SA P.O. BOX 2480 HOLLYWOOD, FL 33022-2480 EXAMINER PATEL, JIGNESHKUMAR C ART UNIT PAPER NUMBER 2116 NOTIFICATION DATE DELIVERY MODE 07/02/2021 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): docket@patentusa.com office@patentusa.com vrahimis@patentusa.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAROSLAW KUSSYK and JOHANN LICHTNEKERT Appeal 2020-001082 Application 14/111,220 Technology Center 2100 Before ELENI MANTIS MERCADER, JAMES R. HUGHES, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision rejecting claims 13–26, which are all claims pending in the application. Appellant has canceled claims 1–12. See Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Siemens Aktiengesellschaft. Appeal Br. 1. Appeal 2020-001082 Application 14/111,220 2 STATEMENT OF THE CASE2 The claims are directed to a power distribution system and method for operation thereof. See Spec. (Title). In particular, Appellant’s disclosed embodiments and claimed invention “relate[] to a method for controlling the power generation of at least one power output device that is connected to the power distribution system.” Spec. 1:3–5. Exemplary Claims Claims 13 and 25, reproduced below, are representative of the subject matter on Appeal (emphases added to contested prior-art limitations): 13. A method for controlling power generation by a plurality of power output devices in a power distribution network, which comprises the steps of: assigning to each of the power output devices a control device; connecting each of the control devices to a central device via communication links selected from the group consisting of a unidirectional communication link and a bidirectional communication link, the central device monitoring and controlling the power distribution network; performing regular or irregular checks as to whether the communication links are interrupted; performing regular or irregular checks as to whether a transmission quality of the communication links is below a prescribed minimum quality value; 2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed Aug. 19, 2019); Reply Brief (“Reply Br.,” filed Nov. 22, 2019); Examiner’s Answer (“Ans.,” mailed Sept. 27, 2019); Final Office Action (“Final Act.,” mailed Mar. 5, 2019); and the original Specification (“Spec.,” filed Oct. 11, 2013) (claiming benefit under 35 U.S.C. § 371 to PCT/EP2011/056019, filed Apr. 15, 2011). Appeal 2020-001082 Application 14/111,220 3 measuring at least one of currents or voltages in the power distribution network by measurement devices and forwarding measurement values to the central device for evaluation, the measurement devices being disposed separate from the power output devices; reducing or stopping a supply of power of a power output device into the power distribution network via an assigned control device, if a respective communication link of the assigned control device to the central device is interrupted or the transmission quality of the respective communication link is below the prescribed minimum quality value; and controlling the control devices and thus indirectly the supply of the power of the power output device by means of control signals by the central device, provided the respective communication link exists or the transmission quality of the respective communication link reaches or exceeds the prescribed minimum quality value. 25. The configuration according to claim 19, further comprising conductor cables interconnecting at least one of said plurality of power output devices, said plurality of control devices, said central device or said central device to each other, said conductor cables functioning as said communication links and transmit signals using a power line communications protocol. Appeal 2020-001082 Application 14/111,220 4 REFERENCES The prior art relied upon by the Examiner as evidence is: Name Reference Date Kanoi US 5,760,492 June 2, 1998 Henneberry US 2007/0055889 A1 Mar. 8, 2007 Hart US 2007/0066241 A1 Mar. 22, 2007 Abbot US 2009/0256686 A1 Oct. 15, 2009 Hadar US 2010/0139734 A1 June 10, 2010 Schmiegel EP 2293409 A2 Mar. 9, 2011 REJECTIONS Rejection Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis R1 13–15, 18–20, 23 103(a) Hadar, Kanoi, Hart R2 16, 17, 21, 22 103(a) Hadar, Kanoi, Hart, Schmiegel R3 24 103(a) Hadar, Kanoi, Hart, Schmiegel, Henneberry R4 25, 26 103(a) Hadar, Kanoi, Hart, Abbot CLAIM GROUPING Based on Appellant’s arguments (Appeal Br. 6–17) and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness Rejection R1 of claims 13–15, 18–20, 23 on the basis of representative claim 13; and we decide the appeal of obviousness Rejection R4 of claims 25 and 26 on the basis of representative claim 25. Appeal 2020-001082 Application 14/111,220 5 Remaining claims 16, 17, 21, and 22 in Rejections R2 and R3, not argued separately, stand or fall with the respective independent claim from which they depend.3 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellant. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant’s arguments with respect to claims 13–26 and, unless otherwise noted, we incorporate by reference herein 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 and rebuttals set forth in the Examiner’s Answer in response to Appellant’s arguments. We highlight and address specific findings and arguments regarding claims 13 and 25 for emphases as follows. 3 “Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv). In addition, when Appellant does not separately argue the patentability of dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). Appeal 2020-001082 Application 14/111,220 6 1. § 103(a) Rejection R1 of Claims 13–15, 18–20, 23 Issue 1 Appellant argues (Appeal Br. 7–15; Reply Br. 1–6) the Examiner’s rejection of claim 13 under 35 U.S.C. § 103(a) as being obvious over the combination of Hadar, Kanoi, and Hart is in error. These contentions present us with the following issues: Did the Examiner err in finding the cited prior art combination teaches or suggests “[a] method for controlling power generation by a plurality of power output devices in a power distribution network” that includes, inter alia, the step of “reducing or stopping a supply of power of a power output device into the power distribution network . . . if a respective communication link of the assigned control device to the central device is interrupted or the transmission quality of the respective communication link is below the prescribed minimum quality value,” as recited in claim 13, because the Hart reference is allegedly not properly combinable with Hadar and Kanoi? Principles of Law “[O]ne cannot show non-obviousness by attacking references individually where . . . the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 426 (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 . . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” Id. at 425. Appeal 2020-001082 Application 14/111,220 7 The test for obviousness is what the combined teachings of the prior art would have suggested to the hypothetical person of ordinary skill in the art. Id. In KSR, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, 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. . . . [A] court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Id. at 417. Further, the relevant inquiry is whether the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR, 550 U.S. at 418). As discussed below, Appellant’s argument focuses on whether the prior art references are analogous. A rejection under 35 U.S.C. § 103 cannot be based on non-analogous art. Innovention Toys, LLC, v. MGA Entertainment, Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011); In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004); In re Clay, 966 F.2d 656, 658 (Fed. Appeal 2020-001082 Application 14/111,220 8 Cir. 1992). Art is analogous when it is (1) from the same field of endeavor as the claimed invention; or (2) reasonably pertinent to the particular problem faced by the inventor, if the art is not from the same field of endeavor. Bigio, 381 F.3d at 1325–26. “The Supreme Court’s decision in KSR . . . directs us to construe the scope of analogous art broadly.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010). “The field of endeavor of a patent is not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.” Unwired Planet, LLC v. Google Inc., 841 F.3d 995, 1001 (Fed. Cir. 2016). Moreover, during prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using “the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Analysis Appellant argues, “someone of average skill in the art would not combine Hart with Hadar — since the application disclosed by Hart is from a completely different field of technology and purpose.” Appeal Br. 11. Appellant specifically points out that “Hart relates to wireless signal Appeal 2020-001082 Application 14/111,220 9 transmission in a multi-hop wireless communication system . . . and seeks to improve the throughput of data in the multi-hop communication system.” Id. To rebut this argument, the Examiner finds Hart discloses, It is envisaged that embodiments of the present invention may be used, prior to deployment of a multi-hop system, to optimise the system and/or to substantially balance a measure of the quality of a communication signal received at the, or each intermediate apparatus and a measure of the quality of a communication signal received at the destination apparatus. Hart, ¶ 18. Claim 13 recites, inter alia, “performing regular or irregular checks as to whether a transmission quality of the communication links is below a prescribed minimum quality value.” Claim 13. The Examiner correctly notes “the PLC or power line communication system is not claimed in claim 13 or 19.” Ans. 11. That is, the Examiner finds, and we agree, wired communication, particularly a wired PLC communication link, is not recited in claim 13. Moreover, the Specification discloses the “communication signals of the communication links can be transmitted by means of a PLC [(i.e., Power Line Communication)] method via the distribution system [] or via a separate communication network.” Spec. 8:10 (emphasis added). Under the broadest reasonable interpretation standard,4 we interpret this to mean that communication network could be of any type known to a person with skill in the art. 4 See Morris, 127 F.3d 1048 at 1054. Appeal 2020-001082 Application 14/111,220 10 With respect to prong (1) of the Bigio test cited above, we find the field of endeavor of the claim and the Hart reference generally to be directed to communication links. We are not persuaded, therefore, by Appellant’s argument that Hart is completely disconnected from Appellant’s field of endeavor. Based upon the findings above, on this record, we are not persuaded of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitation of claim 13, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of independent claim 13, and grouped claims 14, 15, 18–20, and 23 which fall therewith. See Claim Grouping, supra. 2. § 103(a) Rejection R4 of Claims 25, 26 Issue 2 Appellant argues (Appeal Br. 15–16; Reply Br. 6–7) the Examiner’s rejection of claim 25 under 35 U.S.C. § 103(a) as being obvious over the combination of Hadar, Kanoi, Hart, and Abbot is in error. These contentions present us with the following issue: Did the Examiner err in combining Hart with Hadar, Kanoi, and Abbot in the manner suggested to render claim 25 unpatentable under § 103(a)? Analysis Appellant argues: Abbot does teach a power line communications protocol (PLC) and we agree that PLC are generally known. Appeal 2020-001082 Application 14/111,220 11 However, this just reinforces applicants previous arguments as a PLC communication system operates by adding a modulated carrier signal to the power distribution cables (e.g.[,] wires) — and is therefore not a wireless communication system as taught in Hart. More specifically, a wireless transmission where atmospheric interference is critical verses that of interference in a power cable transmitting high voltage electricity are significantly different matters to be addressed and therefore Hart is irrelevant to (e.g.[,] cannot be combined with) Harder. Appeal Br. 16. The Examiner reiterates and further supports the rejection of claim 25 in the Answer: The combination of Hadar, Kanai, and Hart discloses the main concept of claim 13, where [the] teaching of Hart [is used] for the quality level check of the transmitted signal is combined to Hadar’s, and [Kanoi’s] combined teaching of the claimed plurality of power generation devices, associate control device and their communication with the central device as mentioned above to maintain the balance in the communication link. As per the interpretation provided above the transmitted signal and its interruption is broadly interpreted as any type of signal and associate interruption. Now as [for] the claim 25, and 26 demand for specific power line communication, [the] teaching of Abbot is combined to support that the communication is specifically a power line communication to provide communication functionality to the power network management. Hence the combination of Hadar, [Kanoi], Hart and Abbot clearly mentioned the claimed limitation of independent claims and associate dependent claims 25–26. Ans. 14. We agree with the Examiner because Appellant is arguing the references separately. We are not persuaded of Examiner error because Appellant’s contention does not persuade us of error on the part of the Examiner because the Appellant is responding to the rejection by attacking Appeal 2020-001082 Application 14/111,220 12 the references separately, even though the rejection is based on the combined teachings of the references. Non-obviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitation of claim 25, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of dependent claim 25, and grouped claim 26 which falls therewith. See Claim Grouping, supra. 3. Rejections R2, R3 of Claims 16, 17, 21, 22 In view of the lack of any substantive or separate arguments directed to obviousness Rejections R2 and R3 of claims 16, 17, 21, 22 under § 103(a) (see Appeal Br. 17), we sustain the Examiner’s rejection of these claims. Arguments not made are waived.5 REPLY BRIEF To the extent Appellant may advance new arguments in the Reply Brief (Reply Br. 1–7) not in response to a shift in the Examiner’s position in the Answer, arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner’s 5 Appellant states, “Claims 14–18 and 20–24 stand or fall with their respective independent claim.” Appeal Br. 17. Appeal 2020-001082 Application 14/111,220 13 Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellant has not shown. CONCLUSIONS We AFFIRM the Examiner’s rejections. More specifically, Appellant has not persuasively argued that the Examiner erred with respect to obviousness Rejections R1 through R4 of claims 13–26 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 13–15, 18– 20, 23 103(a) Hadar, Kanoi, Hart 13–15, 18– 20, 23 16, 17, 21, 22 103(a) Hadar, Kanoi, Hart, Schmiegel 16, 17, 21, 22 24 103(a) Hadar, Kanoi, Hart, Schmiegel, Henneberry 24 25, 26 103(a) Hadar, Kanoi, Hart, Abbot 25, 26 Overall Outcome 13–26 FINALITY AND RESPONSE 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)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation