Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Status of Claims
This office action is in response to the amendment and remarks filed on 02/11/2026. In making the below rejections, the examiner has considered and addressed each of the applicants arguments. Claims 15-24 withdrawn, and Claims 1-14 are currently pending and being examined.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The objections from the previous office action are withdrawn.
The amendments to the claims should have been underlined and struck-thru, in the interest of compact prosecution examiner has examined the claims. In the future please follow USPTO SOP, thank you.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 11 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 11 recites the limitation "compressor operating signals" in lines 4 and 5. There is insufficient antecedent basis for this limitation in the claim. It is unclear if directed to the same compressor operating signals mentioned before or different. Examiner suggests reciting “the compressor operating signals”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Such claim limitation(s) is/are: “means for operating the vehicle air compressor” in claim 8. This element is interpreted under 35 U.S.C. 112(f) as a “air compressor controller” or “vehicle controller” [see claim 9, and equivalents thereof.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Dudar (USPAP 2019/0145362) in view of Rowe (USPN 8,849,604).
In reference to independent claim 1, Dudar discloses an apparatus for controlling a vehicle air compressor (155, fig 1, para 0006 discloses “The engine may be a boosted engine comprising a turbine driven intake air compressor and an electrically driven intake air compressor (herein also referred to as a battery operated electric booster) that is selectively operated for providing additional boost during increased torque demand.”), the apparatus comprising:
an input for receiving a signal (para 0016 discloses “One or more sensors may be coupled to an inlet of compressor 114. For example, a temperature sensor 55 may be coupled to the inlet for estimating a compressor inlet temperature, and a pressure sensor 56 may be coupled to the inlet for estimating a compressor inlet pressure. As another example, an ambient humidity sensor 57 may be coupled to the inlet for estimating a humidity of aircharge entering the intake manifold. Still other sensors may include, for example, air-fuel ratio sensors, etc. In other examples, one or more of the compressor inlet conditions (such as humidity, temperature, pressure, etc.) may be inferred based on engine operating conditions. In addition, when exhaust gas recirculation (EGR) is enabled, the sensors may estimate a temperature, pressure, humidity, and air-fuel ratio of the aircharge mixture including fresh air, recirculated compressed air, and exhaust residuals received at the compressor inlet.”) indicative of a compressor conditioning mode (output of the sensors indicate conditioning mode), from the vehicle air compressor (155), a data storage unit (database 13, portion of the controller cited in 12 below) arranged to, when a vehicle is in a driving state (para 0036 discloses “FIG. 2 shows an example method 200 that can be implemented to remove moisture accumulated in engine components during an engine non-combusting condition. Instructions for carrying out method 200 and the rest of the methods included herein may be executed by a controller based on instructions stored on a memory of the controller and in conjunction with signals received from sensors of the engine system, such as the sensors described above with reference to FIG. 1”), store signals from the input (done as part of the algorithm in fig 2 and 3 and disclosed in para 0036 above); and
a processing unit (portion of 12, fig 1) arranged to control the vehicle air compressor (155) to expel moisture from the vehicle systems based upon signals (done in 212 to 214 in fig 2) that have been stored over a period of time in the data storage unit (database 13, values that are used for comparison in 212, fig 2).
Dudar does not disclose wherein the vehicle air compressor is controlled to operate at at least one of normal operating speed, above normal operating speed and below normal operating speed in response to the signal indicative of the compressor
Rowe, a similar compressor system concerned with controlling moisture, teaches
the air compressor is controlled to operate at at least one of normal operating speed, above normal operating speed and below normal operating speed in response to the signal indicative of the compressor (col 1, lines 41-46 disclose “The method also includes the steps of comparing the required temperature to the sensed temperature of the compressor, adjusting a moisture register variable in response to the comparison, and varying the operation of the compressor when the required temperature is lower than the sensed compressor temperature to increase the compressor temperature.”
Rowe’s Claim 11 discloses “a variable speed prime mover operable between a low non-zero speed and a high speed to drive the air compressor”;
Rowe’s Claim 14 discloses “wherein the controller varies the operation of the air compression system when the required temperature is higher than the sensed compressor temperature to increase the compressor temperature” Rowe controls the speed of the compressor to control the amount of condensation in the compressor, speeding up the compressor to increase the temperature, decreasing the speed to decrease the temperature).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to supplement the method of Dudar with the method of Rowe for the same results of controlling an air compressor to expel moisture from the air compressor.
Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the method of Rowe in the device of Dudar to provide “a system and method for predicting the likelihood of moisture build-up within a compressor and controlling operation to reduce the likelihood of moisture build-up in the compressor” col 1, lines 9-12; Rowe. To be clear the modification is made by replacing the method of Fries with the method of Rowe.
In reference to independent claim 8, Dudar discloses an apparatus for controlling a vehicle air compressor (155, fig 1, para 0006 discloses “The engine may be a boosted engine comprising a turbine driven intake air compressor and an electrically driven intake air compressor (herein also referred to as a battery operated electric booster) that is selectively operated for providing additional boost during increased torque demand.”), the apparatus comprising:
means for operating the vehicle air compressor (155) when a vehicle is in driving mode (when the vehicle is in operation 202->206->210->212->214->216 operation of the electric booster compressor 155, fig 2); means for operating the vehicle air compressor when the vehicle is in conditioning mode (216, operation of the electric booster is the conditioning mode), wherein
(i) the driving mode includes when the vehicle is in the driving or drivable state (202->206->yes), and
(ii) the compressor (155) conditioning mode includes when the vehicle is in a state other than a driving or drivable state (202->No, or 206->No); and
Dudar does not disclose a compressor conditioning mode means for operating the vehicle air compressor at at least one of normal operating speed, above normal operating speed and below normal operating speed.
Rowe, a similar compressor system concerned with controlling moisture, teaches a compressor conditioning mode means for operating the vehicle air compressor at at least one of normal operating speed, above normal operating speed and below normal operating speed (col 1, lines 41-46 disclose “The method also includes the steps of comparing the required temperature to the sensed temperature of the compressor, adjusting a moisture register variable in response to the comparison, and varying the operation of the compressor when the required temperature is lower than the sensed compressor temperature to increase the compressor temperature.”
Rowe’s Claim 11 discloses “a variable speed prime mover operable between a low non-zero speed and a high speed to drive the air compressor”;
Rowe’s Claim 14 discloses “wherein the controller varies the operation of the air compression system when the required temperature is higher than the sensed compressor temperature to increase the compressor temperature” examiner takes the position that Rowe controls the speed of the compressor in part to control the amount of condensation in the compressor).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to supplement the method of Dudar with the method of Rowe for the same results of controlling an air compressor to expel moisture from the air compressor.
Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the method of Rowe in the device of Dudar to provide “a system and method for predicting the likelihood of moisture build-up within a compressor and controlling operation to reduce the likelihood of moisture build-up in the compressor” col 1, lines 9-12; Rowe. To be clear the modification is made by replacing the method of Fries with the method of Rowe.
In reference to independent claim 11, Dudar discloses an air compressor controller for a vehicle air charging system having an air compressor (155, fig 1, para 0006 discloses “The engine may be a boosted engine comprising a turbine driven intake air compressor and an electrically driven intake air compressor (herein also referred to as a battery operated electric booster) that is selectively operated for providing additional boost during increased torque demand.”), the air compressor controller (14) comprising:
an input port (connected to 16 and 18) for receiving compressor operating signals (signals from the sensors 16 and actuators 18); a data storage unit (13, portion of the controller cited in 12 below) for storing a compressor control algorithm (fig 2 & 3) and compressor operating signals accumulated and logged over at least one period of time (done as part of the algorithm in fig 2 and 3 and disclosed in para 0036 above); a processing unit (portion of 14) for applying the compressor control algorithm to the logged compressor operating signals over the at least one period of time (period of time can be interpreted to be one iteration thru the algorithms in fig 2 and 3), wherein the processing unit (portion of 14) provides a compressor conditioning mode activating signal (operating the electric booster), to operate the air compressor (155); and an output port (connected to 155b) for communicating the compressor (155) conditioning mode activating signal to activate the air compressor (controller 12 turns on the compressor 155 thru the port connected to the booster actuator 155b), thereby operating the air compressor (155) to expel moisture from the system based upon the logged compressor operating signals over the at least one period of time (abstract discloses “while the ambient humidity is higher than a threshold humidity, operating an intake electric booster to route pressurized air via each of the intake manifold and the exhaust manifold, thereby removing accumulated moisture from the engine components”).
Dudar does not disclose the air compressor is controlled to operate at at least one of normal operating speed, above normal operating speed and below normal operating speed in response to the signal indicative of the compressor
Rowe, a similar compressor system concerned with controlling moisture, teaches
a processing unit (portion of controller 8) for applying the compressor control algorithm (algorithm in fig 3) to the logged compressor operating signals (data received in 101, fig 3) over the at least one period of time (period of time is each iteration of the algorithm done in fig 3),
operating the air compressor (24) to expel moisture from the air compressor based upon the logged compressor operating signals over the at least one period of time (col 2, lines 29-32 discloses “operating the air compressor to expel moisture from the air compressor based upon the logged compressor operating signals over the at least one period of time”),
the air compressor is controlled to operate at at least one of normal operating speed, above normal operating speed and below normal operating speed in response to the signal indicative of the compressor (col 1, lines 41-46 disclose “The method also includes the steps of comparing the required temperature to the sensed temperature of the compressor, adjusting a moisture register variable in response to the comparison, and varying the operation of the compressor when the required temperature is lower than the sensed compressor temperature to increase the compressor temperature.”
Rowe’s Claim 11 discloses “a variable speed prime mover operable between a low non-zero speed and a high speed to drive the air compressor”;
Rowe’s Claim 14 discloses “wherein the controller varies the operation of the air compression system when the required temperature is higher than the sensed compressor temperature to increase the compressor temperature” Rowe controls the speed of the compressor to control the amount of condensation in the compressor, speeding up the compressor to increase the temperature, decreasing the speed to decrease the temperature).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to supplement the method of Dudar with the method of Rowe for the same results of controlling an air compressor to expel moisture from the air compressor.
Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the method of Rowe in the device of Dudar to provide “a system and method for predicting the likelihood of moisture build-up within a compressor and controlling operation to reduce the likelihood of moisture build-up in the compressor” col 1, lines 9-12; Rowe. To be clear the modification is made by replacing the method of Fries with the method of Rowe.
In reference to dependent claim 2, Dudar in view of Rowe discloses the apparatus according to claim 1, Rowe further discloses a system wherein the input includes a temperature sensor (32) that provides signals indicative of temperature cycle of operation of the vehicle (“vehicle” is in Dudar not in Rowe) air compressor (col 2, lines 51-53 discloses “the compressor temperature sensor 32 measures the temperature of compressed fluid, such as air, or oil, at the compressed fluid discharge”).
In reference to dependent claim 3, Dudar in view of Rowe discloses the apparatus according to claim 2, Rowe further discloses an apparatus wherein the temperature cycle of operation of the vehicle air compressor (24) is indicative of and correlates to temperature of compressor oil in the vehicle (“vehicle” is in Dudar not in Rowe) air compressor (col 2, lines 51-53 discloses “the compressor temperature sensor 32 measures the temperature of compressed fluid, such as air, or oil, at the compressed fluid discharge”).
In reference to dependent claim 4, Dudar in view of Rowe discloses the apparatus according to claim 1, Dudar further discloses an apparatus wherein the processing unit (14) is arranged to turn on the vehicle air compressor (155) to run the vehicle air compressor when the vehicle is in a non-driving state (para 0056 discloses “FIG. 3 shows an example method 300 for moving moisture accumulated in engine components of a stationary vehicle, prior to vehicle key-on during a higher than threshold ambient humidity condition. Method 300 may be a part of method 200 and may be carried out, for example, in step 210 of the method 200.”) so that water in compressor oil in the vehicle air compressor can be heated and vaporized to expel moisture from the vehicle air compressor (Rowe in claim 14 discloses “wherein the controller varies the operation of the air compression system when the required temperature is higher than the sensed compressor temperature to increase the compressor temperature” Rowe controls the speed of the compressor to control the amount of condensation in the compressor, speeding up the compressor to increase the temperature, decreasing the speed to decrease the temperature).
In reference to dependent claim 5, Dudar in view of Rowe discloses the apparatus according to claim 1, Dudar further discloses the apparatus wherein (i) the driving state of the vehicle includes when the vehicle is in motion or permitted to be in motion (fig 2, block 202-> Yes para 0037 discloses “At 202, the routine includes determining if the vehicle is in operation (being propelled)” so everything from 202 following the “Yes” choices indicates the vehicle moving, 206->210->212->214-> operation of the electric booster 155 to move compressed air thru the system and remove condensate), and (ii) a non-driving state of the vehicle includes when the vehicle is parked (para 0056 discloses “FIG. 3 shows an example method 300 for moving moisture accumulated in engine components of a stationary vehicle, prior to vehicle key-on during a higher than threshold ambient humidity condition. Method 300 may be a part of method 200 and may be carried out, for example, in step 210 of the method 200.”).
In reference to dependent claim 6, Dudar in view of Rowe discloses the apparatus according to claim 1, wherein the processing unit and the data storage unit (13) comprise an air charging system controller (portion of 12) and the air charging system controller is electrically connectable to a vehicle controller for communication with the vehicle controller (para 0019 discloses “More specifically, operational control of the electric booster 155 may be achieved based on command signals (e.g. duty cycle or pulse width signals) received from the vehicle controller (e.g. controller 12)”).
In reference to dependent claim 7, Dudar in view of Rowe discloses the apparatus according to claim 1, however
Dudar and Rowe are silent the vehicle air compressor is controlled to operate at at least one of 125% of normal operating speed, normal operating speed and 75% of normal operating speed.
Rowe discloses in claim 11 “a variable speed prime mover operable between a low non-zero speed and a high speed to drive the air compressor”;
Further, claim 14 discloses “wherein the controller varies the operation of the air compression system when the required temperature is higher than the sensed compressor temperature to increase the compressor temperature” Rowe controls the speed of the compressor to control the amount of condensation in the compressor, speeding up the compressor to increase the temperature, decreasing the speed to decrease the temperature.
It has been held that a particular parameter must be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. In re Antoine, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See MPEP 2144.05 II(B).
Furthermore, it has been held that “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP 2144.05II(A). Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the speed taught by Dudar in view of Rowe because the speed was recognized as a result-effective variable achieving a particular level of heat and it would have been a matter of routine experimentation to determine the optimum or workable ranges of speed to achieve a desired level of condensation.
In reference to dependent claim 9, Dudar in view of Rowe discloses the apparatus according to claim 8, Dudar further discloses the apparatus wherein each means is performed by at least one of an air compressor controller and a vehicle controller (para 0019 discloses “More specifically, operational control of the electric booster 155 may be achieved based on command signals (e.g. duty cycle or pulse width signals) received from the vehicle controller (e.g. controller 12)”).
In reference to dependent claim 10, Dudar in view of Rowe discloses the apparatus according to claim 8, Dudar further discloses the apparatus wherein (i) the driving mode includes a driving state in which the vehicle is in motion and a drivable state in which the vehicle is permitted to be in motion (fig 2, block 202-> Yes para 0037 discloses “At 202, the routine includes determining if the vehicle is in operation (being propelled)” so everything from 202 following the “Yes” choices indicates the vehicle moving, 206->210->212->214-> operation of the electric booster 155 to move compressed air thru the system and remove condensate), and (ii) the compressor conditioning mode includes a non-driving state in which the vehicle is parked (para 0056 discloses “FIG. 3 shows an example method 300 for moving moisture accumulated in engine components of a stationary vehicle, prior to vehicle key-on during a higher than threshold ambient humidity condition. Method 300 may be a part of method 200 and may be carried out, for example, in step 210 of the method 200.”).
In reference to dependent claim 12, Dudar in view of Rowe discloses the air compressor controller according to claim 11, Dudar further discloses the apparatus wherein the compressor conditioning mode activating signal is provided when a vehicle is parked (para 0056 discloses “FIG. 3 shows an example method 300 for moving moisture accumulated in engine components of a stationary vehicle, prior to vehicle key-on during a higher than threshold ambient humidity condition. Method 300 may be a part of method 200 and may be carried out, for example, in step 210 of the method 200.”) and permission is granted based upon an approval signal being received from a vehicle controller (permission is given when at 302 vehicle remote start is requested).
In reference to dependent claim 13, Dudar in view of Rowe discloses the air compressor controller according to claim 11, Dudar further discloses the apparatus wherein the compressor conditioning mode activating signal is provided when a vehicle is parked (para 0056 discloses “FIG. 3 shows an example method 300 for moving moisture accumulated in engine components of a stationary vehicle, prior to vehicle key-on during a higher than threshold ambient humidity condition. Method 300 may be a part of method 200 and may be carried out, for example, in step 210 of the method 200.”) and permission is granted based upon approved conditions associated with operation of the vehicle air charging system being received from components of the vehicle air charging system (adjusting the electric booster on both the history 312 and the conditions sensed in step 307).
In reference to dependent claim 14, Dudar in view of Rowe discloses the air compressor controller according to claim 11, however
Dudar and Rowe are silent the vehicle air compressor is controlled to operate at at least one of 125% of normal operating speed, normal operating speed and 75% of normal operating speed.
Rowe discloses in claim 11 “a variable speed prime mover operable between a low non-zero speed and a high speed to drive the air compressor”;
Further, claim 14 discloses “wherein the controller varies the operation of the air compression system when the required temperature is higher than the sensed compressor temperature to increase the compressor temperature” Rowe controls the speed of the compressor to control the amount of condensation in the compressor, speeding up the compressor to increase the temperature, decreasing the speed to decrease the temperature.
It has been held that a particular parameter must be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. In re Antoine, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). See MPEP 2144.05 II(B).
Furthermore, it has been held that “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP 2144.05II(A). Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the speed taught by Dudar in view of Rowe because the speed was recognized as a result-effective variable achieving a particular level of heat and it would have been a matter of routine experimentation to determine the optimum or workable ranges of speed to achieve a desired level of condensation.
Response to Arguments
In response to applicant’s argument that “Rowe, however, is non-analogous prior art to the present application. Rowe's endeavor is operational compressor performance” examiner respectfully disagrees. In response to applicant's argument that Rowe is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor' s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Rowe is clearly analogous art because it deals with compressors.
In response to applicant’s argument that “The Rowe citation cannot be used in combination with Dudar to form an obviousness rejection because Rowe itself undermines the obviousness rejection” examiner respectfully disagrees. Simply that there are differences between two references is insufficient to establish that such references “teach away” from any combination thereof. In re Beattie, 974 F. 2d 1309, 1312-13, 24 USPQ2d 1040, 1042 (Fed Cir. 1992). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
In response to applicant’s argument that “Rowe teaches "varying the operation" of a compressor not varying the speed of the compressor. While Rowe does reference the existence of a "variable speed prime mover," Rowe does not expressly teach variable speed (Col. 1, Row 52). Rowe only teaches variable operation (Col 1., Row 44). Combined with the later teaching on delayed operation (Col. 4, Rows 15-20), it be reasonably deduced that the "variable operation[s]" from Rowe are "on" and "off." Whereas stated in claim 1 of the presently claimed invention, the compressor is not turned off. The compressor is operating at "at least one of normal operating speed, above normal operating speed and below normal operating speed in response to the signal indicative of the compressor”, examiner respectfully disagrees.
Applicant is providing no evidence to the assertion that “Rowe only teaches variable operation (Col 1., Row 44). Combined with the later teaching on delayed operation (Col. 4, Rows 15-20), it be reasonably deduced that the "variable operation[s]" from Rowe are "on" and "off."” Therefore applicant’s statement is simply an opinion and is not persuasive.
Furthermore, applicant is reading limitations into the prior art while ignoring the arts clear ability to meet the functional limitations of the claims. Even though Rowe does not explicitly disclose varying the speed it could clearly do so since it repeatedly mentions variable speed and “varying the operation”. Since Rowe is capable of varying its speed it meets the claim language and renders it obvious. Furthermore, if “the "variable operation[s]" from Rowe are "on" and "off."”, why is a variable speed prime mover mentioned multiple times, if the variable speed is not used there is no reason to mention it multiple times. Applicant is misconstruing the nature of the Rowe.
Finally, In response to applicant's argument that Rowe does not disclose varying the speed, the test for obviousness is not 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 would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Rowe clearly discloses “varies the operation” in claim 14, this would suggest to one of ordinary skill in the art to vary the speed, and not just on and off as that type of operation is VERY hard on mechanical items in comparison to changing speed.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES W NICHOLS whose telephone number is (571)272-6492. The examiner can normally be reached Monday-Friday 8am-5pm EST.
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/C.W.N/Examiner, Art Unit 3783
/WESLEY G HARRIS/Examiner, Art Unit 3783
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