Ex Parte 7595764 et al

Patent Trial and Appeal Board

Nov 27, 2012

95000559 (P.T.A.B. Nov. 27, 2012)

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.
95/000,559 08/24/2010 7595764 5003.19REX01 4503
87197 7590 11/27/2012
Skaar Ulbrich Macari, P.A.
601 Carlson Parkway
Suite 1050
Minneapolis, MN 55305
EXAMINER
MENEFEE, JAMES A
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/27/2012 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 APPEALS
BOARD
____________

ELECTRONIC CONTROLLED SYSTEMS d/b/a KING CONTROLS
Patent Owner, Appellant

v.

WINEGARD CO.
Requester, Respondent
____________

Appeal 2012-008614
Inter Partes Reexamination Control No. 95/000,559
United States Patent 7,595,764 B2
Technology Center 3900
____________

Before KARL D. EASTHOM, MICHAEL W. KIM, and THOMAS L.
GIANNETTI, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL
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Patent 7,595,764 B2

2

This proceeding arose out of a request by Requester, Respondent
Winegard, for an inter partes reexamination of U.S. patent 7,595,764 B2,
Enclosed Mobile/Transportable Motorized Antenna System (Sept. 29, 2009).
Appellant, Patent Owner King Controls, appeals from the Examiner’s
decision in the Right of Appeal Notice (RAN) rejecting claims 1-3, 5, 6, 8,
and 9. The Examiner’s Answer relies on the RAN, incorporating it by
reference.
We have jurisdiction under 35 U.S.C. §§ 134(b) and 315.
We AFFIRM.

STATEMENT OF THE CASE
The briefs refer to a District Court jury trial (S.D. Iowa) and to a
related inter partes reexamination (95/000,560) and appeal to the Board
(PTAB 2012-009011), involving US 7,595,763. The jury found claim 9 of
the ‘763 patent and claims 19-21 and 23-25 of the ‘764 patent invalid as
obvious. (See Resp. Br. 2.) An oral hearing of the two appeals before the
Board transpired on September 15, 2012. The two appeal decisions have
common issues and each incorporates and adopts by reference the other.
Appellant appeals the Examiner’s rejections of claims 1-3, 5 and 8 as
obvious based on King
1
and TCS;
2
claim 6 as obvious based on King, TCS,
and TracVision; and claim 9 based on King, TCS, and SkyTerra.
3

1
U.S. 6,710,749 (March 23, 2004).
2
Model 600 Transportable Antenna System, TCS Telemetry &
Communications Systems, Inc. (April, 2001) (product brochure).
3
SkyTerra MSAT
GT
Mobile Satellite Radio User Guide, MCN: 3004073-001
rev. B (2005). Attached to the reference is a related document titled Mobile
Satellite Ventures MSAT
GT
Mobile Satellite Radio Installation Guide.
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Appellant also appeals the Examiner’s rejection of the claims as
obvious based on the combination of TracStar
4
and one or more other
references. (See App. Br. 2.) The record shows that the TracStar based
rejections are largely cumulative to the King based rejections listed supra.
As such, we decline to reach the TracStar based rejections. Cf. In re Gleave,
560 F.3d 1331, 1338 (Fed. Cir. 2009) (not reaching obviousness after
finding anticipation).
The appealed claims follow:
1. A satellite antenna system, comprising:
a generally rigid enclosure comprised of an electromagnetic wave permeable
material defining a volume configured to enable both manual transportability
of the satellite antenna system and automated operation of the satellite
antenna system without a substantial change in the volume of the enclosure
or manual repositioning of the satellite antenna system, the enclosure having
disposed within the volume of the enclosure:

a satellite dish,

a feedhorn configured to collect incoming signals concentrated by the
satellite dish,

a low noise block converter configured to receive incoming signals
from the feedhorn, amplify and convert the incoming signals to received
signals, and transmit the received signals to at least one receiver;

a motorized elevation drive system configured to selectively adjust an
elevation of the satellite dish,

a motorized azimuth drive system configured to selectively rotate the
satellite dish, and

4
TracStar Systems SV360 Installation & Operations Manual (2005).
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a control system connected to the elevation drive system and the
azimuth drive system to control automated operation of the satellite antenna
system.
2. The satellite antenna system of claim 1, further comprising a handle
connected to an outer surface of the enclosure.
3. The satellite antenna system of claim 2, wherein the enclosure includes a
generally planar base defining a bottom of the enclosure when the satellite
antenna system is positioned in a first orientation for automated operation
and wherein the handle is positioned such that the base is oriented at an
angle to ground when the satellite antenna system is positioned in a second
position for manually transportability by the handle, the satellite antenna
system being configured to provide a center of mass of the system that is the
same in the first orientation and the second orientation.
5. The satellite antenna system of claim 1, wherein the control system
operates to automatically position the satellite dish to acquire a satellite
signal upon powering on the satellite antenna system.
6. The satellite antenna system of claim 1, further comprising a remote
control in communication with the control system.
8. The satellite antenna system of claim 2, wherein the handle is configured
to allow manual carrying of the satellite antenna system with one hand.
9. The satellite antenna system of claim 8, wherein the satellite antenna
system weighs less than 20 pounds.
ANALYSIS
The ‘764 patent describes and claims a portable satellite antenna
system which can be carried by hand and which automatically searches for a
satellite during operation. (See ‘764 patent, Abstract, Fig. 1.) Various
embodiments can acquire Ku-band signals, and “[i]n other embodiments . . .
various other satellite signals, such as, for example, Ka-based signals.” (Id.
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at col. 7, l. 50, ll. 59-61.) The Figure 1 embodiment includes a handle for
carrying the antenna system.
Claims 1, 2, 8, and 9
The appeal involves the similar issues of whether it would have been
obvious to modify the King satellite antenna system to render it manually
transportable as claim 1 requires, has a handle as claim 2 further requires,
can be carried with one hand as claim 8 further requires, and weighs less
than 20 pounds as claim 9 further requires. The Examiner’s findings and
Respondent’s contentions support the conclusion of obviousness.
King does not disclose the weight of antenna satellite system 42 or
whether it is manually transportable. However, it is depicted on the roof of
vehicle 20 in Figure 1 and King’s vehicles include “a van, recreational
vehicle, motor home, travel trailer, pick-up camper, tent trailer, house boat,
motor boat, sail boat, truck or ship that moves from place to place having a
satellite TV system.” (King, col. 3, ll. 27-30.)
The TCS two-age product brochure discloses a 29 pound antenna
system with a handle for portability. (See TCS 1-2.) Appellant argues that
the TCS brochure is not a prior art printed publication. (App. Br. 5.) The
Examiner and Requestor persuasively show otherwise.
5

5
Appellant disputes Respondent’s “Wayback Machine” evidence as
supporting the prior art publication of the TCS brochure. (See App. Br. 6-9.)
That evidence is not required to support the finding that TCS is a prior art
publication, but it at least corroborates the existence of TCS on the internet
and otherwise prior to the invention. (See, e.g., RAN 2-3 (listing dates in a
table and relying inter alia on findings in the Action Closing Prosecution
“ACP,” Burke Decl., and Mateescu Decl.).)
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The TCS product brochure shows a publication date of April 2001 and
a copyright date of 2001. (TCS 2.) Respondent relies on Mateescu’s
declaration and deposition to corroborate the publication and dissemination
of the TCS brochure. (Resp. Br. 4-5.) Mateescu testifies that the
TCS brochure was publically available on-line and at an ITC trade-show in
2001 and that the copyright date is correct. (Mateescu Decl. ¶¶ 3-4.) Such
evidence is at least sufficient to shift the burden to Appellant to show
otherwise. In addition, Mr. Mateescu’s deposition reveals that he helped
author the brochure (Mateescu Dep. 7:14-16); that the brochure was on
display at the ITC trade show to market the antenna product described in the
brochure in 2001 (id. at 6:15-8:15; 13:9-14); and that the brochure was
available on the internet in 2001 (id. at 10:6-12). The deposition testimony,
under patent owner’s cross-examination (see, e.g., id. at 21-24), bolsters the
finding of public availability. Another document, an attached web page,
describes the ITC trade show, corroborating Mateescu’s testimony. (See id.
at 11:16-12:2 (referring to page 3 of Exhibit 1 attached to the deposition);
Mateescu Decl. ¶ 4.)
Appellant parses Mateescu’s declaration and deposition testimony
including portions under cross-examination, but the arguments fail to show
that TCS was not publically disseminated prior to the invention. (See App.
Br. 5-6.) For example, Appellant maintains that Mateescu “was just
guessing regarding dissemination at the [alleged] ITC show” and “never
identified a single recipient of a brochure.” (App. Br. 6.) The argument
lacks merit because an actual recipient is not required to show availability.
The TCS brochure reasonably appears to have been “‘disseminated or
otherwise made available to the extent that persons interested and ordinarily
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skilled in the subject matter or art, exercising reasonable diligence, can
locate [them] and recognize and comprehend therefrom . . . . the [contents
thereof].’” See In re Wyer, 655 F.2d 221, 222, 227 (C.C.P.A. 1981). In
addition, since the TCS brochures describe antenna products that were on
sale according to Mateescu, the products would have served as guides
pointing interested customers to the brochures. See, e.g., Wyer, 665 F.2d at
227 (discussing public accessibility via a card catalog or indexing system).
Appellant also argues that Mateescu did not know if the ITC show
was open to the public. (App. Br. 6.) That argument is not supported.
Mateescu states that there may have been a charge of $100.00 for non-
government citizens but it was “[n]ot for free.” (See Mateescu Dep. 29:5-
19.) Appellant does not explain why a nominal fee for some customers
renders the show closed to the public in a manner rendering the brochures
there inaccessible. Appellant argues that Mateescu was not sure about
which TCS brochure version was available. (App. Br. 6 (citing Mateescu
Dep. 23:19-24:4).) Again, the argument lacks support: Appellant’s
deposition citation refers to testimony about whether or not Mateescu’s
company kept the TCS brochures and not about which particular brochure
was available. Moreover, Mateescu’s Declaration (at ¶¶ 3-4) and Deposition
(e.g., at 6-7) both specifically refer to the 2001 version at issue here. Based
on the evidence of record, the TCS product brochure more than likely was
disseminated prior to the invention and constitutes a prior art printed
publication.
The TCS product brochure shows a similar antenna system to that
disclosed here. (Compare ‘764 patent at Figure 11 with figures at TCS 1.)
As noted, the TCS system weighs 29 pounds and has two handles. (See TCS
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1-2.) Mateescu, a TCS founder involved with the TCS antenna system as a
“chief engineer and vice president” (Mateescu Dep. 6:6-9), verifies that the
TCS brochure depicts “U-shaped brackets” – “handles [which]
accommodate manual transportability of the unit” (Mateescu Decl. ¶ 5).
Appellant asserts a lack of motivation to combine TCS and King
because King’s system is affixed to a vehicle. (App. Br. 9-10.) Appellant
also asserts that TCS and King represent “two very different and non-
analogous systems” because one is a “military telemetry antenna” and
another is a “satellite TV antenna.” (App. Br. 10 (citing Baylin Decl. at
¶ 14).) Appellant also asserts that TCS is not manually transportable and
lacks “motorized elevation and azimuth drive systems” and teaches away
from a portable system. (See id.)
Appellant’s arguments are not persuasive. Baylin’s declaration fails
to note that TCS and the ‘764 patent both use the same Ku-band frequency
range so that Baylin’s assertion that the technologies are significantly
different lacks a factual foundation. (See Baylin Decl. ¶ 14; TCS 2;
‘764 patent, col. 7, l. 50.) As the Examiner reasons, the TCS system is
“‘transportable’” and “‘quickly deployable’.” (RAN 15-16 (quoting TCS at
1).) As noted above, Mateescu corroborates TCS system portability and
handles thereon. (Accord Resp. Br. 6.) The TCS antenna control unit is
embedded in the base of the system and it tracks satellites and necessarily
does have motorized drive and azimuth systems. “[A]ll that is needed for
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setup is to plug it in.” (TCS 1.) TCS also can be installed on non-level
surfaces thereby lending further motivation. (TCS 1.)
6

The ‘764 patent broadly discloses its scope as including “an enclosed
satellite antenna system.” (Abstract.) As indicated (supra note 6), Figure 11
of the ‘764 patent looks remarkably similar to the figures in the TCS
brochure and indicates similar components. The systems involve enclosed
satellite antenna systems, include overlapping frequency ranges, and deal
with a problem of rendering such systems transportable and easily or
automatically deployable. King similarly discloses an enclosed automatic
satellite antenna system in overlapping frequency ranges. Contrary to
Appellant’s implied argument, King’s system is not affixed permanently to a
vehicle, but it can be affixed to a wide variety of vehicles and implicitly can
be transferred from one vehicle to another. Therefore, King suggests,
instead of precludes, manual portability, in order to ease installation,
removal, and transfer.
As such, skilled artisans would or should have been aware of King
and TCS as analogous art when attempting to solve any problem facing the

6
Appellant also alleges that “the [TCS disclosed] 29 pound weight may not
include the weight of the dome or a low noise block converter because none
is shown on the device in the photo on the first page of the [TCS] brochure.”
(App. Br. 19, n. 4 (emphasis added).) To the contrary, TCS depicts a cover
in the bottom-most TCS figure. Also, the description and depiction of the
TCS system as a fully operational dish antenna tracking system indicates
that it has the disputed LNB. (See TCS 1.) An LNB appears to be a
common, if not, essential element for antenna systems (see companion
PTAB 2012-009011 (discussing Anderson reference and declaration).)
Appellant fails to cite a reasonable weight for these allegedly missing
elements, and King discloses that dome covers are light-weight (col. 2, l. 10-
11.)
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inventors of the ‘764 patent. “It is but an evenhanded application to require
that those persons granted the benefit of a patent monopoly be charged with
an awareness” of that technology. Dann v. Johnston 425 U.S. 219, 229
(1976) (finding computer banking and corporate business data processing
systems analogous art and quoting Graham v. John Deere Co. 383 U.S. 1,
19 (1966)) (emphasis added); Wyers V. Master Lock Co., 616 F.3d 1231,
1238 (Fed. Cir. 2010) (stating that KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 419-420 (2007) “directs us to construe the scope of analogous art
broadly” and noting that the patent at issue “defines its scope broadly.”).
The ‘764 patent also rebuts Appellant’s argument that prior art
portable systems were unknown and not enabled. (See App. Br. 18-19.) The
‘746 patent admits that some prior art satellite antenna systems had “handles
to allow the systems to be carried to new locations.” (Col. 1, ll. 50-52.) The
‘764 patent states that such systems “typically fold into a suitcase-like
configuration for transportation.” (Id. at ll. 53-54.) (The claims apparently
preclude the prior art suitcase-like configuration by requiring the enclosure
volume not to change substantially between the carrying and operation
conditions.) The ‘764 patent also describes other known antenna systems
that were mounted on a vehicle as being difficult to install and as having a
geometry which “makes them difficult and awkward to transport from place
to place.” (See col. 1, ll. 49-50.)
“[A]n implicit motivation to combine exists … when the
‘improvement’ is technology-independent and the combination of references
results in a product or process that is more desirable, for example because it
is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more
efficient.” Dystar Textilfarben GmBH & Co. Dutschland KG v. C.H.
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Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (emphasis added). Given
that 1) King’s antenna systems are mountable on a wide variety of vehicles;
2) the known use of prior art handles to carry antenna systems; 3) the
known difficulty of carrying bulky antenna systems; 4) the implicit and
universal motivation under Dystar to create lighter and smaller products; and
5) the TCS 29 pound portable antenna system with handles, it would have
been obvious to place a handle on the King antenna system and to make it
weigh less than 20 pounds so that it easily could be transported and mounted
on a wide variety of vehicles and carried with one hand.
Appellant similarly alleges that the combination of King, TCS, and
SkyTerra is not enabled to satisfy the 20 pound weight limitation recited in
claim 9. (See App. Br. 18-19.) Appellant also alleges that SkyTerra is not
prior art and disputes its teachings.
7
(App. Br. 15.) Given the record
evidence discussed supra and further below, SkyTerra is not required to
satisfy the claims and is not considered further here.
Appellant does not inform the Board of the known weight of prior art
antenna systems at the time of the invention or what undue skill would have
been required to create a lighter-weight King antenna system. In other
words, Appellant also has not addressed the Wands factors to show a lack of
enablement as to a twenty pound antenna system.
8

7
SkyTerra discloses a 10 pound antenna system, but Appellant maintains
that it does not disclose a dish antenna system with other claimed elements.
(See App. Br. 19, n.5.)
8
See In re Wands, 858 F.2d 731 (Fed. Cir. 1988)), cited in
Elan Pharm., Inc. v. Mayo Found. for Med. Educ. & Research, 346 F.3d
1051, 1054-55 (Fed. Cir. 2003)(stating that factual premises required to
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The record suggests a reasonable likelihood of success in making
King’s system portable and less than twenty pounds. “Obviousness does not
require absolute predictability of success . . . all that is required is a
reasonable expectation of success.” In re Kubin, 561 F.3d 1351, 1360 (Fed.
Cir. 2009) (citing In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988).)
Further, since claim 9 recites that the antenna system weighs less than
twenty pounds, the claim covers systems ranging down to less than one
pound. Appellant does not point the Board to evidence about how to make a
ten pound antenna, a five pound antenna, or a one pound antenna. So,
assuming for the sake of argument that Appellant has shown enablement for
a ten pound antenna,
9
Appellant’s position, in light of the broadly claimed
range and limited disclosure of how to make a 10 pound antenna, reduces to
the assertion that skilled artisans would have known, without much guidance
from the ‘764 patent, how to scale a 10 or 20 pound antenna system down by
a factor of at least five or ten to make a one pound antenna system.
Therefore, the record suggests that skilled artisans could have rendered the
modified King/TCS system portable at a weight of less than twenty pounds.
Cf. Paulsen, 30 F.3d at 1481 n.9 (“We also note that under the enablement
standard that AST would have us apply to Yokoyama, the ‘456 patent itself
would be non-enabling.”)

demonstrate non-enablement of an anticipating reference must include a
showing of undue experimentation.)
9
Inventor Lael King testifies to an actual reduction to practice of
10.5 pounds prior to September 23, 2006 and notes that the VuQube
operating manual (which forms part of the underlying provisional
application for the ‘574 patent as an appendage) shows the same weight.
(See King Decl. ¶ 15.)
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Notwithstanding Appellant’s remaining arguments including the
proffered expert opinion and secondary evidence discussed below, rendering
King’s antenna system portable as claim 1 requires, reducing the weight to
under 20 pounds as claim 9 requires, and employing a handle for carrying as
claims 2 and 8 require, would have been obvious for the purpose of creating
a portable system readily mountable to a variety of vehicles as King suggest,
according to the universal motivation articulated by Dystar, and according to
the added portability teachings of TCS.
Claims 3, 5, and 6
Appellant argues error in the King/TCS rejection of claim 3 as
follows: “[T]he further limitations of the handle being positioned such that
the orientation of the base during the alleged manual transport is different
than the orientation of the base during automated operation is not disclosed
in the references.” (App. Br. 11.) Appellant faults the Examiner for
characterizing that argument as another challenge to manual transportability.
(See App.Br. 11.) Appellant’s argument is a challenge to the relative
orientation during portability which the Examiner addresses. A simple
visual comparison of Figure 1 of the ‘764 patent and the bottom-most TCS
figure (at 1) shows a handle similarly positioned on the side of each
enclosure. Carrying each system causes a similar tilt relative to orientation
during operation, thereby satisfying claim 3. (Accord Resp. Br. 6-7
(responding to Appellant’s arguments by referring to the Corrected Inter
Partes Request (Aug. 24, 2010) at 46-47, 50-51).) As such, Appellant has
not shown error in the rejection of claim 3.
Appellant’s arguments also fail to show error in the rejection of
claim 5. Respondent’s contentions and the Examiner’s findings are more
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persuasive and are adopted. (See Resp. Br. 7; RAN 2, 17 (relying on Third
Party Comments (filed May 27, 2011) at 15-16).) Claim 5 recites “wherein
the control system operates to automatically position the satellite dish to
acquire a satellite signal upon powering on the satellite antenna system.”
Appellant essentially asserts that claims 1 and 5 require the entirety of
the recited automatic control to be inside the antenna enclosure and that
King’s controller 89 is outside the enclosure. (See App. Br. 12; King, Figs.
3, 5.) But claim 5 at least allows for external control to power the device
“on” and does not preclude other remote control as discussed further below.
King discloses an external remote controller 89 (connected to control
module 77 inside the enclosure) and states that a “satellite search is initiated
by processing and holding switch 95 [in controller 89] in the power ON
position for 2 seconds.” (King , col. 7, ll. 45-46.)
King also discloses that the internal control module 77 interacts with
an external receiver 97 “to determine if the satellite that has been located
matches the user’s receiver.” (See King, col. 6, ll. 42-54; Fig. 5.) As stated
supra, claim 5 does not preclude such further automatic control in a remote
receiver or otherwise. For example, the ‘764 patent discloses an external
receiver communicating with the satellite antenna system, refers to
“[w]ireless communication of dish positioning and signal transmission . .
.for easy installation,” and incorporates by reference the King patent (i.e.,
“6,710,749”) to support automated satellite tracking and positioning. (See
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‘764 patent, col. 7, ll. 33-65.)
10
Also, claim 6 specifically requires “a remote
control in communication with the control system.”
Appellant attempts to create a distinction about a user in King
“pressing of the ON button to turn the device ‘on’ and pressing and holding
the ON/SEARCH button to initiate the automatic search.” (See App.
Br. 12.) This argument shows no claim 5 distinction. A search cannot be
performed without the power being “on” in King or in the claim. Also,
Appellant agrees that “King explains that the user initiates a satellite search
by pressing and holding the controller switch 89 in the ON position for 2
seconds.” (App. Br. 12.) Claim 5 does not preclude a user from powering
the device “on.”
Appellant does not present separate arguments for claim 6. Based on
the foregoing discussion and the discussion below with respect to secondary
considerations, Appellant’s arguments fail to show error in the Examiner’s
rejection of claims 1-3, 5, 6, 8, and 9.
Secondary Considerations
Appellant argues that secondary considerations show unobviousness.
(See App. Br. 12-15.) The Examiner (RAN 19-27) and Respondent
(Comments 16-17; Resp. Br. 7-8) persuasively address Appellant’s
arguments and evidence and show that they do not establish unobviousness.
Appellant’s central arguments are highlighted below.
For example, Appellant alleges commercial success by way of
customer feedback, but Appellant’s Brief does not direct specific attention to

10
Respondent similarly points out that the ‘764 patent “shows that the
feature of claim 5 is disclosed as being taught by several references,
including King ‘749.” (See Resp. Br. 7.)
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persuasive objective evidence of success. Appellant cites to two Bartyzal
declarations, but Bartyzal compares gross unit sales of the “VuQube”
product which allegedly falls in the scope of claim 1 and another product,
the King-Dome 9630 series. (See App. Br. 13 (citing Bartyzal Decl. ¶¶ 5-
9).)
11
Comparing first-year product sales between different products in
different markets during different years as Bartyzal does fails to establish
commercial success. Also, the gross unit sales for a single year fail to show
subsequent sales and commercial success.
Bartyzal says that the King-Dome product was designed for RV
(recreational vehicles) whereas the disclosed VuQube product was not
limited to RVs and could be used where RVs would not have access - such
as remote camping sites and tailgating sites. (See Bartyzal Decl. at ¶¶ 4-5.)
While Bartyzal indicates that he expected VuQube to mainly compete with
manual dishes having a tripod which would not require RV mounting, he
does not proffer comparable sales of the two. (See Bartyzal Dec. at ¶ 5.)
The number of new RVs sold presumably would have factored into sales of
the King-Dome RV mounted antenna systems; therefore, nakedly comparing
gross unit sales of King-Dome antennas to the disclosed VuQube antennas
fails to indicate relevant success of the VuQube antennas (in the first year or
otherwise).
Other evidence indicates that the VuQube product was “re-branded”
as the “Tailgater” product. (See Second Bartyzal Dec. ¶ 10 and its attached
Exs. 8 & 9.) Exhibit 9 of the Bartyzal Declaration, a “denverpost.com”
blog/link by Andy Vuong, refers to a 10 pound weight and to an antenna

11
Reference here and hereinafter is to the first Bartyzal declaration.
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dish in a “cooler” or a “cooler-type case.” The attached link page depicts the
cooler-like shape of the rebranded product (previously called VuCube). The
link/blog also refers to an offer of three free months of “Blockbuster” access
with a purchase of the Tailgater product. Appellant does not explain why a
company would rebrand a so-called successful product or offer free
“Blockbuster” service with purchase thereof. Also, the evidence suggests at
least some reliance on the “cooler” shape which is not claimed, and the
10 pound weight which is also not claimed (though arguably has some nexus
to claim 9 which recites a claim range). Therefore, despite Appellant’s
arguments to the contrary (see App. Br. 13-14), Appellant does not show a
nexus to the claims.
As indicated, one disclosed (i.e., VuQube) product is shaped much
differently than the alleged copied product. (See ‘573 patent Fig. 3 and
Bartyzal Decl. Ex. 1 (describing and depicting the Winegard product
which allegedly copies the disclosed and marketed VuQube product)).
The VuQube is relatively cubic-shaped like some coolers as indicated supra,
whereas the Winegard product is semi-hemispherical. If anything, setting
aside any weight differences, the Winegard product visually looks like the
TCS product. As the Examiner finds, Appellant has not set forth persuasive
evidence of copying - even if such copying could establish unobviousness.
(See RAN 22-24.)
While Appellant claims a long-felt but unsolved need and praise by
others, the evidence does not support it and is not persuasive to show
unobviousness. (See App. Br. 14.) Appellant largely relies on a letter by
Mr. Rosner. (See King Decl. ¶ 5 and its attached Ex. 1.) Assuming
arguendo that such a letter is trustworthy or probative (see RAN 26
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Reexamination Control No. 95/000,559
Patent 7,595,764

18
(expressing concern over the lack of a sworn declaration by Rosner)),
Mr. Rosner states he had been looking for ten years for a solution to the
problem of viewing television via satellite antennas and had previously
relied upon a manual tripod system that was time consuming and frustrating.
He also states in his letter that rooftop antennas were too big and too heavy
to carry.
Apparently, Mr. Rosner was either unaware of the TCS system or was
unable to carry a 29 pound antenna system which has handles. (Accord
RAN 26 (expressing similar concerns about Mr. Rosner’s failure to consider
the TCS system).) The TCS system would have solved any problem
Mr. Rosner identified in his letter. Mr. Rosner appears to have been a
satisfied VuQube customer, but his letter and other proffered evidence and
arguments do not establish a previously unsolved and long-felt need or show
sufficient praise to overcome the Examiner’s showing of obviousness.
Mr. Rosner, a writer/producer according to his letter, also does not show that
skilled antenna engineers were working unsuccessfully to develop a lighter
system. The record evidence fails to outweigh the obviousness of simply
rendering known automatic antenna systems lighter and portable.
Based on the foregoing discussion, Appellant has failed to show error
in the obviousness rejection of claims 1- 3, 5, 6, 8, and 9 based on King and
TCS. See KSR, 550 U.S. 398, 416 (2007) (“The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.”).
DECISION
The Examiner’s decision to reject claims 1-3, 5, 6, 8, and 9 is
affirmed.
Appeal 2012-008614
Reexamination Control No. 95/000,559
Patent 7,595,764

19
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See also 37 C.F.R. § 41.79.

AFFIRMED

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