Jaroslaw Kussyk et al.

Patent Trials and Appeals Board

Jul 2, 2021

2020001082 (P.T.A.B. Jul. 2, 2021)

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.
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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).
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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.
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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.
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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).
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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.
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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.
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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
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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.
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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.
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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
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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.
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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