Ex Parte 7528782 et al

Patent Trials and Appeals Board

Aug 18, 2014

95000595 - (D) (P.T.A.B. Aug. 18, 2014)

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.
95/000,595 12/14/2010 7528782 0690.0005L 8977
27896 7590 08/19/2014
EDELL, SHAPIRO & FINNAN, LLC
9801 Washingtonian Blvd.
Suite 750
Gaithersburg, MD 20878
EXAMINER
MENEFEE, JAMES A
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
08/19/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

SAMSUNG ELECTRONICS CO., LTD.
Requester and Respondent

v.

FRACTUS, S.A.
Patent Owner and Appellant
____________________

Appeal 2014-002517
Reexamination Control 95/000,595
1

Reexamination Control 95/001,455
2

Patent No. US 7,528,782 B2
3

Technology Center 3900
____________________

Before JAMES T. MOORE, DENISE M. POTHIER, and
JEREMY J. CURCURI, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

1
Filed by Kyocera Communications, Inc., on November 17, 2010. A
corrected request filed on December 14, 2010. Hereinafter referred to as the
“’595 Req.” Kyocera is no longer a party to these proceedings. See Petition
to Terminate Inter Partes Reexamination filed January 11, 2012.
2
Filed by Samsung Electronics Co., Ltd. on September 30, 2010.
Hereinafter referred to as the “’455 Req.” The ’595 Request and the ’455
Request were merged May 24,2011
3
Issued May 5, 2009 to Carles Puente Baliarda et al. and assigned to
Fractus, S.A. (hereinafter the “’782 patent”). The ’782 patent issued from
Application 11/780,932, filed July 20, 2007.
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Patent No. 7,528,782 B2

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STATEMENT OF THE CASE
Patent Owner, Fractus, S.A., appeals under 35 U.S.C. §§ 134(b) and
315(a) (2002) from the rejection of claims 6-8, 12 and 16 as set forth in the
Right of Appeal Notice (“RAN”) mailed December 10, 2012. Patent Owner
filed an Appeal Brief March 25, 2013 (“Br.”). Requester Samsung
Electronics Co., Ltd. filed a Respondent Brief on April 25, 2013 (“Resp.
Br.”). The Examiner mailed an Examiner’s Answer on June 7, 2013
(“Ans.”), which incorporated the RAN by reference. The Patent Owner filed
a Rebuttal Brief on July 8, 2013(“Reb. Br.”). Oral argument was waived
November 22, 2013. We have jurisdiction under 35 U.S.C. §§ 134 and 315.
We affirm.
The ‘782 patent concerns antennae with enhanced multiband
performance. These antennae utilize a particular type of geometric design.
This patent has been the subject of prior litigation in the Eastern
District of Texas between the above parties. Fractus, S.A. v. Samsung
Electronics Co., Ltd. et al., No. 6:09-cv-00203 (E.D. Tex) and Fractus, S.A.
v. Samsung Electronics Co., Ltd. et al., No. 6:12-cv-00421 (E.D. Tex). In
the ’203 case, a final judgment of infringement and validity was entered
against Samsung on June 28, 2012. Br. 1. In the ’421 case, an ongoing
royalty to Fractus was granted. Id. An appeal of the ’421 case is pending at
the United States Court of Appeals for the Federal Circuit, with docket
number 2012-1633.
Claims 3, 4, 9, 10, 13, 14, 17, 19-21, and 29 are not part of this
reexamination proceeding. Claims 1, 2, 5, 11, 15, 18, and 22-28 were
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canceled and are not part of this appeal. Claims 6-8, 12, and 16 stand
rejected in the reexamination proceeding and are the subject of this appeal.
The claims at issue on appeal are reproduced below (claims 1 and 2
are included, even though canceled, as the claims at issue in this appeal
multiply depend from those claims)(emphasis added):
1. (Canceled) An apparatus including a wireless communications
device having an internal antenna system located within the wireless
communications device, wherein said internal antenna system includes a
passive antenna set comprising;
at least one antenna element, wherein said at least one antenna
element comprises a structure including at least two levels of detail, a first
level of detail for an overall structure defined by a plurality of generally
identifiable geometric elements and a second level of detail defined by a
subset of the plurality of geometric elements forming said overall structure;
wherein at least one of either a perimeter of contact or an area of
overlap between said geometric elements is only a fraction of a total
perimeter or a total area of the geometric elements, respectively, for a
majority of said geometric elements such that it is possible to generally
identify the majority of said plurality of geometric elements within said
structure;
a feeding point to said antenna element;
a ground plane;
wherein said feeding point and a point on the ground plane define an
input/output port for said passive antenna set and said passive antenna set
provides a similar impedance level and radiation pattern at two or more
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frequency bands such that the passive antenna set is capable of both
transmitting and receiving wireless signals on selected channels, the selected
channels selectable from a plurality of channels throughout an entire
frequency range within each of said two or more frequency bands.
2. (Canceled) An apparatus including a wireless communications
device having an internal antenna system located within the wireless
communications device, wherein said internal antenna system includes a
passive antenna set comprising;
at least one antenna element, wherein said at least one antenna
element comprises a structure including a generally identifiable non-convex
geometric element, wherein said nonconvex geometric element comprises a
plurality of convex geometric elements defining a first level of detail,
wherein said non-convex geometric element shapes the electric currents on
the at least one antenna element associated with a lowest frequency band,
while at least a subset of said plurality of convex geometric elements shapes
the electric currents on the at least one antenna element associated with at
least one of the higher frequency bands;
a feeding point to said antenna element;
a ground plane;
wherein said feeding point and a point on the ground plane define an
input/output port for said passive antenna set and said passive antenna set
provides a similar impedance level and radiation pattern at two or more
frequency bands such that the passive antenna set is capable of both
transmitting and receiving wireless signals on selected channels, the selected
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channels selectable from a plurality of channels throughout an entire
frequency range within said two or more frequency bands.
6. (Original) An apparatus, as set forth in claims 1, 2, or 3 further
including at least one dielectric spacer for separating the at least one antenna
element from the ground plane, wherein at least a portion of said dielectric
spacer overlaps a dielectric substrate layer placed over the ground plane.
7. (Original) An apparatus, as set forth in claims 1, 2, or 3 wherein the
internal antenna system provides at least three frequency bands having
similar impedance levels and radiation patterns and further wherein the
internal antenna system is capable of at least one of transmitting and
receiving wireless signals on selected channels, the selected channels
selectable from a plurality of channels throughout an entire frequency range
within each of said at least three frequency bands.
8. (Original) An apparatus, as set forth in claims 1, 2, or 3 wherein the
internal antenna system provides at least four frequency bands having
similar impedance levels and radiation patterns and further wherein the
internal antenna system is capable of at least one of transmitting and
receiving wireless signals on selected channels, the selected channels
selectable from a plurality of channels throughout an entire frequency range
within each of said at least four frequency bands.
12. (Original) An apparatus, as set forth in claims 1, 2, or 3 wherein
said internal antenna system is a monopole antenna.
16. (Original) An apparatus, as set forth in claims 1, 2, or 3 wherein
said apparatus provides at least one cellular service in a 1850-1990 MHz
frequency range.
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Patent No. 7,528,782 B2

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EVIDENCE OF RECORD
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Spall US 5,986,609 November 16, 1999
Ying III US 6,166,694 December 26, 2000
Johnson US 6,239,765 B1 May 29, 2001
Ying II US 6,343,208 B1 January 29, 2002
Ying I US 6,408,190 B1 June 18, 2002
Carles Puente Baliarda, Fractal Antennas (May, 1997) (published Ph.D
dissertation, Universitat Politecnica de Catalunya)(“Puente”) (English
translation)

Monica Navarro Rodero, Aplicacio De Diverses Modificacions Sobre
L’Antena Sieprinski, Antena Fractal Multibanda (October, 1997) (published
Ph.D. dissertation, Universitat Politecnica De Catalunya) (“Navarro”)
(English translation)

THE REJECTIONS
I. Claim 16 stands rejected under 35 U.S.C. § 102(e) as being
anticipated by Johnson.
II. Claims 6, 7 and 16 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Ying I with evidence of inherency provided by Ying III.
III. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable as obvious over Ying I, Ying III, and Spall.
IV. Claims 12 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable as obvious over Navarro.
V. Claims 7- 8 and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable as obvious over Puente.
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VI. Claims 6 and 16 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Ying II with evidence of inherency provided by Ying III.
ISSUES
The Patent Owner asserts that the appealed rejections in this
reexamination turn on two limitations of the '782 patent claims: the
requirement that the ”passive antenna set provides a similar impedance level
and radiation pattern at two or more frequency bands”; and the requirement
of “an internal antenna system located within the wireless communications
device.” Br. 4. These limitations are recited in each of independent claims 1
and 2, from which all of the pending claims depend. As stated above, claim
3 is not part of this reexamination.
I. The Rejection of Claim 16 under 35 U.S.C. § 102(e) as being
anticipated by Johnson

This rejection originated in the ’595 Request by Kyocera at pages 99-
116, and was adopted by the Examiner without change in the RAN at
page 7.
The Patent Owner’s first specific allegation of error is that the recited
“passive antenna set provides a similar impedance level and radiation pattern
at two or more frequency bands” is absent from the Examiner’s findings.
The Examiner adopted the Requester’s position and mapping for this
limitation, which is found in the original ‘595 Request at pages 106 and 107.
As this finding is central to this discussion, it is reproduced below:
According to Johnson, "[i]n a preferred embodiment, the
antenna assembly includes a matching network defined between
a shorted end of the printed conducting trace (shorted to the
second elongate conductor element (ground plane)) and a tap
point further along the trace which results in a 50 ohm
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impedance referenced to a nearby point on the elongate
conductor element." (Col. 2 lines 55-60) (emphasis added.)
Johnson further discloses, "[t]he region of the first conductor
trace 26 between ground connection 34 and the feedpoint 32
(the distance 'M') functionally operates a matching network to
effect an approximate 50 ohm feed[]point." (Col. 5, lines 1-5)
(emphasis added.)

Requester submits that one of ordinary skill in the art would
consider the impedance levels and radiation patterns, at the
multiple operating frequencies of Johnson's antenna discussed
above, to be "related in appearance or nature" given the breadth
this phrase.

Therefore, Johnson discloses "wherein said feeding point and a
point on the ground plane define an input/output port for said
passive antenna set and said passive antenna set provides a
similar impedance level and radiation pattern at two or more
frequency bands such that the passive antenna set is capable of
both transmitting and receiving wireless signals on selected
channels, the selected channels selectable from a plurality of
channels throughout an entire frequency range within each of
said two or more frequency bands," as recited in claim 1 of the
'782 patent.

Based on the foregoing discussion, it is submitted that Johnson
teaches each and every limitation of independent claim 1 of the'
782 patent, when given its broadest reasonable interpretation.

‘595 Req. at 106-107.

The Requester, and by adoption the Examiner, found that the broadest
reasonable interpretation of “similar impedance level and radiation pattern”
was “impedance levels and radiation patterns that are related in appearance
or nature.” ‘595 Req. at 105.
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The Patent Owner urges that Johnson does not disclose this limitation,
and as such, cannot anticipate claim 16. Br. 11.
According to the Patent Owner:
…Johnson provides no discussion of input impedance levels and radiation
patterns. Therefore, Johnson does not disclose "a similar impedance level
and radiation pattern at two or more frequency bands" as required by claims
1 and 2. Since Johnson provides no information or demonstration about
impedance levels and radiation patterns in two or more frequency bands,
there is simply no way of telling what sort of impedance level and radiation
pattern characteristics the antenna structures proposed by Johnson would
exhibit, and it would be pure speculation to suggest otherwise.App Br. 12.
The Patent Owner is half-right in its assertion. Johnson does discuss
matching impedance levels to 50 ohms at multiple antennas at different
frequencies as discussed above. The question is whether the evidence
supports the Examiner’s conclusion that the radiation patterns would be
related.
The Requester put forth evidence of its expert witness, Dr. Balanis
that:
A person of skill in the art reading Johnson would understand
that the radiation patterns would be similar at the “cellular”
band and the PCS band. Radiation patterns are generally
governed by the shapes of the antennas. As can be seen from
reference to FIG. 9 [of Johnson], for example, there is a basic
symmetry between the operating portions of the meandering
antenna. When the antenna shares a basic symmetry between its
radiating portions, the radiation patterns will be similar in
shape. Therefore, based on the figures and specification of
Johnson, a person of skill in the art would understand that
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Johnson discloses antenna designs that would possess similar
radiation patterns.

Resp. Br. at 6-7, citing the Declaration of Dr. Balanis, page 9, at paragraph
30.
Dr. Balanis received a BSEE degree from Virginia Tech, Blacksburg,
VA, in 1964, a MEE degree from the University of Virginia, Charlottesville,
VA, in 1966, and a Ph.D. degree in Electrical Engineering from Ohio State
University, Columbus, OH, in 1969. He worked as an electronics engineer
working with microwaves and antennas at NASA Langley Research Center
in Hampton, VA from 1964-1970 and at the Department of Electrical
Engineering in West Virginia University from 1970-1983. He has been with
the Department of Electrical Engineering at Arizona State University since
1983, and he is currently Regents' Professor. Balanis Declaration, page 1.
He has authored books on antennae. We observe that he is being
compensated for his testimony. Balanis Declaration, page 2.
We see no reason on this record to discredit his expert testimony on
the radiation patterns of Johnson.
Patent Owner does not directly address this testimony. Patent Owner
states:
Comments that “one of ordinary skill in the art would
understand that Johnson discloses similar radiation patterns”
presupposes, among other things, that if one were to build and
test Johnson’s proposed antenna design, it would exhibit similar
an impedance level and radiation pattern in multiple frequency
bands. However, this has not been established, and it certainly
cannot be assumed from the limited disclosure provided in
Johnson.
Br. 12.
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The evidence of record may have been more persuasive if an antenna
had been constructed and the radiation patterns measured. But as discussed
above, Dr. Balanis provided a legitimate technical reason, that there is a
basic symmetry between the radiating elements in Johnson, and their
patterns will be similar. This is a basis in fact, accompanied with technical
reasoning.
We have not been provided with any persuasive evidence to the
contrary. Accordingly, the weight of the evidence of record supports the
Examiner’s finding.
We therefore are unpersuaded of error in this regard.
II. The Rejection of Claims 6, 7 and 16 under 35 U.S.C. § 102(e) as
being anticipated by Ying I with evidence of inherency provided by Ying III.

The rejection as proposed and adopted is found in the ‘455 Request at
pages 66-87.
The Patent Owner makes a similar argument as with Johnson, that
Claims 6, 7 and 16 depend from claims 1 and 2, both of which require that
the “passive antenna set provides a similar impedance level and radiation
pattern at two or more frequency bands.” Br. 13.
Patent Owner urges that:
In particular, Ying I does not disclose or suggest similar
radiation patterns at two or more frequency bands. In fact, what
little information Ying I provides about antenna radiation, if
anything, suggests the possibility of very different radiation
patterns at different frequency bands. Figs. 6b and 6c of Ying I
are conceptual graphs showing waves being radiated in
different directions for the higher of two frequency bands
depending on the positioning of the higher-frequency antenna.
While these conceptual graphs are not radiation patterns and
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cannot establish similar radiation patterns at two frequency
bands (there is no radiation information provided about the
lower frequency band antenna at all), the only reasonable
inference that could be drawn from these figures is that the
radiation patterns at the higher and lower frequency bands
could be radically different.

Id.

Yang I Figures 6b and 6c are reproduced below.

Figures 6b and c are line
drawings of electromagnetic fields of antennae

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We are not persuaded by the argument of counsel that these
electromagnetic fields are not a form of radiation patterns. We are also not
pointed to persuasive evidence in the record by the Patent Owner that “the
only reasonable inference” is the one that the Patent Owner states, that the
radiation patterns “could be radically different.” App Br. 13.
Dr. Balanis testified to the description of Ying I at some length, from
paragraphs 16-27 found on pages 4-8 of his declaration. He discussed the
antennae structure, and why it would radiate at two bands (paragraphs 16,
17). He discussed the quarter-wavelength of the antennas, and its impact on
impedence and radiation (paragraphs 17-20). He also discussed the
geometry of the antennae, and its impact on radiation patterns and why they
would be similar (paragraph 21). The testimony appears well-reasoned,
credible, and based in fact.
The Patent Owner counters with an assertion that similar impedance
does not mean similar radiation patterns. Br. 14. In general, we agree with
that notion, but not under the facts here. Where the antennae have a similar
shape, are partial wavelength matched, and have the same impedance, that
line of argument reasoning does not carry the day against the testimony of
the Requester’s expert.
Accordingly, we are likewise unpersuaded of error in this regard.

III. The Rejection of Claim 8 under 35 U.S.C. § 103(a) as being
unpatentable as obvious over Ying I, Ying III, and Spall.

The Examiner adopted this rejection from the ‘455 Request, pages
87-89.
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The Patent Owner urges reversal because Claim 8 depends from
claims 1 and 2, both of which require that the “passive antenna set provides
a similar impedance level and radiation pattern at two or more frequency
bands.” Br. 15. The Patent Owner then relies upon its previous arguments
against Ying I and Ying III. As we have found those arguments lacking
merit, we again are not persuaded of error.
IV. The Rejection of Claims 12 and 16 under 35 U.S.C. § 103(a) as
being unpatentable over Navarro.

The Patent Owner urges that the Examiner has not shown that
Navarro teaches or suggests “an internal antenna system located within the
wireless communications device.” Br. 18.
Also according to the Patent Owner, the Examiner acknowledged that
Navarro does not disclose any antennas that are part of a wireless
communications device. Id. According to the Patent Owner, Navarro does
not disclose any antennas that could be used for as an internal antenna for a
wireless communication device, nor does she describe how her fractal
antennas could be modified for such use. Br. at 20.
The Patent owner further asserts that Navarro's antennas are designed
for systems without space constraints. The fundamental principles of
Navarro's fractal antennas, including their configuration and design (e.g., a
tall antenna perpendicular to a large ground plane), are simply unsuitable for
the size reduction required to miniaturize the antenna so that it fits within a
wireless communications device while retaining its full functionality,
including bandwidth, frequency ranges, signal strength, etc. As recognized
by Puente, it is not a trivial exercise to miniaturize an antenna:
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Wavelength imposes a rather tight constrain[ts] into the size of
the antenna. The antenna performance is usually very sensitive
to its geometrical form and size to wavelength ratio. This has
two important consequences. First of all, once the antenna has
been designed to operate at a particular wavelength, it will be
rarely useful at other frequencies. Since telecommunication
systems operate at separate frequency (wavelength) bands so
that they not interfere with, each other, one has to usually
account for an individual antenna for every single system.
Second of all, given a particular service band, the antenna
cannot be made arbitrarily small owing to the same
constrain[ts].

App Br. at 19, citing Puente, page 1 .
Although we agree that sizing an antenna can have significant effects,
the Requester correctly points out (Reb. Br. at 10) that the claims at issue are
not size limited. Although the claims do recite an “internal antenna” in a
wireless system, there is no recitation of a particular size for the wireless
system, e.g. a portable handheld unit of a recited size. Base stations and
mobile units are encompassed by the claims.
Moreover, although Puente states that size is an issue, Navarro itself
mentions that an object of the research is to reduce the size of the antennas.
Resp. Br. 11, citing Navarro, 90-91, and pointing out a base station example
of a wireless device at Navarro, page 193.
Finally, Dr. Balanis testifies that:
It would have been obvious to a person of ordinary skill in the
art to use an antenna with fractal geometry integrated into a
mobile communications system. The antennas that are disclosed
by Navarro are of the type and configuration that are commonly
used in mobile communications systems.

Balanis Declaration, page 10, paragraph 36.
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The Patent Owner points to no persuasive, contrary evidence.
The Patent Owner urges that there is no guidance in Navarro for the
artisan to modify Navarro’s fractal antennas. App Br. 21. According to the
Patent Owner, no reason is provided to modify Navarro. Id.
We fail to be persuaded by this argument, as Navarro itself teaches an
object of the study is to reduce antenna size. As such, we are unpersuaded of
error.
Accordingly, we affirm this rejection.
V. The Rejection of Claims 7, 8 and 12 under 35 U.S.C. § 103(a) as
being unpatentable as obvious over Puente

As with Navarro, the Patent Owner assert that the Examiner has failed
to show that Puente teaches or suggests an internal antenna system located
within the wireless communications device. Br. 23.
The Examiner found that:
Puente explicitly states that much of the point of this research is
to find multi band antennas of small size for use inside mobile
communications devices, thus it would have been obvious to
apply Puente's antennas that he is describing as the result of this
research, in such a system as claimed.

RAN 17.
According to the Patent Owner, this finding and conclusion is the
result of two errors. The first error is making an improper piecemeal
reconstruction of Puente by taking four sentences out of context; the second
error is conflating an antenna inside a system with an antenna inside a
device. Br. 24. According to the Patent Owner, the discussion of the
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reduction in size of the antennas in Navarro was in the context of reducing
urban blight with cell towers, or external vehicle antennae. Br. 25.
Although the Patent Owner is correct as regards cell towers, we
observe that Puente discusses PCS systems in the mobile communications
realm. Puente also notes that:
In the near future, some of these and many other services will
integrate into the Personal Communication Systems (PCS)
which will keep us connected to the world. The wavelength
constrain on the antenna performance is of an especial concern
in such cases. [3] There is a tough race among companies to
achieve small, low weight, low profile devices to be easily
incorporated into portable systems.

Br. at 25, citing Puente 1-2.

Additionally, Dr. Balanis has testified that a person of skill in the art
could size a smaller Sierpinski antenna to fit within a mobile telephone
based on the teachings of Puente. See Balanis Declaration, page 11,
paragraphs 38-40. The Patent Owner has not pointed to persuasive evidence
otherwise.
We find this evidence supports a conclusion that one of ordinary skill
in the art would have motivation to incorporate such antennas into portable
PCS systems. Moreover, the claims are not size limited.
Accordingly, we affirm this rejection as well.
VI. The Rejection of Claims 6 and 16 under 35 U.S.C. § 102(e) as
being anticipated by Ying II with evidence of inherency provided by Ying III

The Patent Owner asserts that Claims 6 and 16 depend from claims 1
and 2, both of which require that the “passive antenna set provides a similar
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impedance level and radiation pattern at two or more frequency bands.”
Br. 28.
The Examiner made the following findings:
…Ying-II discloses that the example antennas above have
similar impedance levels and radiation patterns at the two or
more frequency bands. For example, Figure 8 demonstrates this
multi band performance and substantially similar impedance
levels and radiation patterns. With respect to Figure 8, Ying-II
states the following:

In order to illustrate the effectiveness of the present
invention, FIG. 8 sets forth results of a simulation for the
exemplary dual band patch antenna illustrated in FIG.
4B. The two-part dual band patch antenna has a length
0.1 wavelength, a width of 0.12 wavelength and a height
of 0.02 wavelength. The parts of the patches are made
resonant at the GSM [Global Standard for Mobile] and
DCS [Digital Cellular System] frequency bands. The
bandwidth is 8.7% (i.e., about 80 MHz) at the GSM band
and 9.4% (i.e., about 170 MHz) at the DCS frequency
band for a VSWR [Voltage Standing Wave Ratio] less
than 2.5: 1. FIG. [8] illustrates the VSWR performance
of this design. As is evident from FIG. FIG.[8], this
antenna can meet the requirements of a GSM/DCS dual
band application.

Ying-II at col. 7, 11. 39-50. Thus, the passive antenna
sets illustrated in Examples A and B above provide a similar
impedance level and radiation pattern at two or more frequency
bands.

RAN 23.
According to the Patent Owner, Ying II does not disclose this
limitation, and therefore cannot anticipate, or render obvious, claims 6 and
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16. In particular, we are told that Ying II discloses no information about
radiation patterns at all. Moreover, it is urged that Figures 7 and 8 of Ying II
are graphs of VSWR, which relates to impedance, without anything about
radiation patterns at multiple frequency bands. Br. 28.
On the other hand, the Requester observes, Resp. Br. 18, that Dr.
Balanis has testified that, as regards Ying II:
the evidence of record is that one of ordinary skill in the art would be
able to determine this information from the disclosure in Ying II.
Specifically, as stated by Dr. Balanis:

Because the general geometry of FIG. 4 would remain the same
regardless of dimensions, a person of ordinary skill in the art
would expect the radiation patterns in the principal planes, and
other non-principal planes, to be similar for both center
frequencies because both elements are electrically nearly
quarter wavelength. The same would be true of the frequencies
in the band surrounding those center frequencies. Further, due
to the widely used nature of PIFA type antennas for cellular
telephony, the resulting radiation patterns created by the
antennas were well known in the art and a person of ordinary
skill in the art would expect, based on the disclosure of Ying II,
that the radiation patterns would be similar

Balanis Declaration, at 11, paragraph 43.
The Patent Owner disagrees, stating that the use of PIFA [Planar
Inverted F Antenna] type antennas today says nothing about what was
known at the time of the invention, and that it is not true that a person of
ordinary skill would expect the radiation patterns to be similar. Reb. Br. at
18. However, the Patent Owner provides no persuasive reasoning, or
evidentiary support to let us conclude that Dr. Balanis would be in error.
His testimony does appear to be phrased in the past tense, as well.
Appeal 2014-002517
Reexamination Control Nos. 95/000,595 and 95/001,455
Patent No. 7,528,782 B2

20
We therefore affirm this rejection as well.
CONCLUSIONS
We have carefully considered the evidence of record, and also the
arguments of the Patent Owner, Examiner, and Requester. However, we
remain unpersuaded of error on the part of the Examiner in rejecting the
claims.
ORDER
The rejection of claim 16 under 35 U.S.C. § 102(e) as being
anticipated by Johnson is affirmed.
The rejection of claims 6, 7 and 16 under 35 U.S.C. § 102(e) as being
anticipated by Ying I with evidence of inherency provided by Ying III is
affirmed.
The rejection of claim 8 under 35 U.S.C. § 103(a) as being
unpatentable as obvious over Ying I, Ying III, and Spall is affirmed.
The rejection of claims 12 and 16 under 35 U.S.C. § 103(a) as being
unpatentable as obvious over Navarro is affirmed.
The rejection of claims 7, 8 and 12 under 35 U.S.C. § 103(a) as being
unpatentable as obvious over Puente is affirmed.
The rejection of claims 6 and 16 under 35 U.S.C. § 102(e) as being
anticipated by Ying II with evidence of inherency provided by Ying III is
affirmed.

AFFIRMED

Appeal 2014-002517
Reexamination Control Nos. 95/000,595 and 95/001,455
Patent No. 7,528,782 B2

21

ack

Patent Owner:

Edell, Shapiro & Finnan, LLC
9801 Washingtonian Blvd.
Suite 750
Gaithersburg, MD 20878

Third Party Requester:

Novak Druce & Quigg, LLP
1000 Louisiana Street
Fifty-Third Floor
Houston, TX 77002

Morrison & Foerster LLP
12531 High Bluff Drive
Suite 100
San Diego, CA 92130