Ex Parte Anderson

Patent Trial and Appeal Board

Jun 28, 2016

12329930 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/329,930 12/08/2008
78833 7590 06/30/2016
DUKEW, YEE
YEE & ASSOCIATES P.C.
P.O. BOX 802333
DALLAS, TX 75380
FIRST NAMED INVENTOR
Noel Wayne Anderson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
18554-US 9839
EXAMINER
MANCHO, RONNIE M
ART UNIT PAPER NUMBER
3664
NOTIFICATION DATE DELIVERY MODE
06/30/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
ptonotifs@yeeiplaw.com
mgamez@yeeiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NOEL WAYNE ANDERSON
Appeal2014--001139
Application 12/329,930
Technology Center 3600
Before: ANNETTE R. REIMERS, BEYERL Y M. BUNTING, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014--001139
Application 12/329,930
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner's rejection of
claims 1--46 entered December 6, 2012 ("Non-Final Act."). We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART and enter NEW GROUNDS OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.50(b).
CLAIMED SUBJECT MATTER
The claims are directed to a garment for use near machines. Claims 1, 10,
26, 31, 35, and 41 are independent. Claim 1 is reproduced below:
1. An apparatus for providing an interface between a machine and
an operator of the machine, the apparatus comprising:
a garment capable of being worn by the operator;
at least one localization device, connected to the garment,
capable of being detected by the machine for determining a location of
the garment; and
a controller capable of sending a control signal from the garment
to the machine to control an operation of the machine.
Appeal Br. 42 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on appeal
1s:
Fernandez US 7 ,930,056 B2 Apr. 19, 2011
Dasilva US 2010/0289662 Al Nov. 18, 2010
Friedrich US 7,376,391 B2 May 20, 2008
Jordan US 2005/0111174 Al May 26, 2005
Kraimer US 2008/0129445 Al June 5, 2008
2
Appeal2014--001139
Application 12/329,930
REJECTIONS
The Examiner made the following rejections:
Claim 4 stands rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite.
Claims 1-3 and 6-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dasilva and Friedrich.
Claims 10-14, 26, 27, 29, 31, 34, 35, 39, and 41--46 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Dasilva.
Claims 15-25, 28, 32, 36, 37, 38, and 40 stand rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over Dasilva and F emandez.
Claims 30 and 33 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dasilva and Kraimer.
Claim 4 stands rejected under 35 U.S.C. §103(a) as being unpatentable over
Dasilva, Friedrich, and Jordan.
Claim 5 stands rejected under 35 U.S.C. §103(a) as being unpatentable over
Dasilva, Friedrich, and Fernandez.
OPINION
Claim 4 rejected under 35 U.S.C. § 112.
Claim 4 depends from claim 1 and adds the limitation "wherein the
controller is a touch sensitive area on the garment". Claim 4 is rejected under 35
U.S.C. § 112, second paragraph, as being inconsistent with the Specification and
therefore not particularly pointing out and distinctly claiming the subject matter
which the inventor regards as his invention. Non-Final Act. 3. The Examiner
notes that although a controller may be integrated with a touchscreen, controllers
3
Appeal2014--001139
Application 12/329,930
are not themselves touched, and so the Examiner finds the Specification does not
teach how a controller could be touched. Id.
We observe that the Specification describes a control system 212 that
"includes communications unit 214, controller 216, and interface 218." Spec.
20:7-8 (emphasis omitted). The "controller 216 may also be integrated with
touchscreen 226." Id. 20:31-32 (emphasis omitted). The Specification defines a
touch screen as "an area than can detect the presence and location of a touch within
the area." Id. 21:22-23. In addition the Specification states that "controller 216
may be manifested as touchscreen 226." Spec. 22:6-7 (emphasis omitted).
The Examiner finds the limitation that "the controller is a touch sensitive
area on the garment" is indefinite because touching the controller is not disclosed
in the Specification. Non-Final Act. 3. Appellant contends that because this
limitation was part of the original application, the Specification clearly teaches and
discloses that the controller is a touch sensitive area on the garment. Appeal Br. 6;
Reply Br. 2. In the Answer, the Examiner points out that the issue is whether the
claims distinctly claim the invention, not whether Appellant was in possession of
the invention when the application was filed. Ans. 3. Appellant has not directly
addressed the issue raised by the Examiner, and accordingly, Appellant has not
shown the Examiner's finding to be error. We affirm the rejection of claim 4.
Claims 1-9 rejected under§ 103(a).
Claim 1.
Claim 1 stands rejected over Dasilva as modified by Friedrich. 1 While
Appellant makes several arguments for reversing the rejection of claim 1, we
1 Appellant attacks all the rejections that are based on Dasilva because an
introductory paragraph for each such rejection referred to Dasilva Figures 18 and
4
Appeal2014--001139
Application 12/329,930
consider only the last because it is dispositive. Appellant asserts that the rejection
of claim 1 relies on "impermissible double counting" by finding the same structure
to be both "at least one localization device capable of being detected ... "and a
"controller capable of sending .... " Appeal Br. 11. We note that the Examiner
does not rely on Friedrich as teaching either the localization device or the
controller. Non-Final Act. 4--5. Therefore, we examine what parts of Dasilva the
Examiner found to correspond to the "localization device" and to the "controller"
as recited in claim 1.
Localization device.
The Examiner identifies the "at least one localization device" recited in
claim 1 as being disclosed in Dasilva by the components identified by reference
numerals 10, lOa, 52, 52a, 86, and 88. Non-Final Act. 4, Ans. 7. Dasilva states
that the RFID tag 10 contains a transponder lOa. Dasilva i-f 79. "RFID tag" and
"transponder" are not defined in Appellant's Specification, and the following are
useful, conventional definitions that reflect how these terms would be understood
by those of ordinary skill in the art:
A Radio Frequency Identification Tag (RFID tag) is an electronic tag
that exchanges data with a RFID reader through radio waves. Most
RFID tags are made up of at least two main parts. The first is an an [sic]
antenna, which receives radio frequency (RF) waves. The second is an
integrated circuit (IC), which is used for processing and storing data, as
well as modulating and demodulating the radio waves received/sent by
the antenna.
https://www.techopedia.com/definition/24273/radio-frequency-identification-tag-
rfid-tag (last viewed 6/22/2016).
19 and related text. Appeal Br. 10. The Examiner has withdrawn all reliance on
the challenged Figures and the related disclosure in paragraphs 112-113 of
Dasilva. Ans. 5.
5
Appeal2014--001139
Application 12/329,930
Transponder: a device that receives a radio signal and sends out a signal
in response and that is used especially to show the location of
something (such as an airplane).
http://www.merriam-webster.com/ dictionary /transponder (last viewed 6/22/2016).
The remaining components that were identified by the Examiner as "localization
devices," namely, 52, 52a, 86, and 88, are antennae. Dasilva i-fi-1 92, 94. The
ordinarily skilled artisan would understand, in light of the above definition, that an
antenna is an essential part of the RFID tag to which it is connected, but by itself
cannot be considered a "localization device" because an antenna alone is not
capable of being detected by an RFID tag reader. Antennae, such as those of
Dasilva, require circuitry to process an incoming signal and to generate an
outgoing signal before the machine can determine the location of the garment. See
definition, above. Thus, in the string of items the Examiner lists as "localization
devices," only the RFID tag 10 and its incorporated transponder lOa would be
understood by the ordinarily skilled artisan to correspond to the claimed
"localization device."
Controller.
The Examiner identifies the limitation in claim 1 of "a controller capable of
sending a control signal to the machine" as being disclosed by Dasilva' s RFID tag
10 in Figure 4. Non-Final Act. 4, Ans. 7. The Appellant's Specification does not
use or define the term "control signal". Our review of the Specification discloses
some similar usages. See, e.g., Appellant's Spec. 21:6-7 ("Button 222 may be any
type of button used to transmit a signal or command to vehicle 202."), 34: 11-13
("Machine controller 500 transmits signals to steering, braking, and propulsion
systems to control the movement of a vehicle.") Based on our review of the
Specification and the common meaning of the words, one of ordinary skill in the
6
Appeal2014--001139
Application 12/329,930
art would understand a "control signal" to be any signal that is sent from the
garment necessarily causing a response by the machine in its movement or
operation.
Desilva's RFID tag 10 may broadcast to the machine a signal containing a
unique code identifying the garment to which the tag is attached, information from
which the distance between the worker and the machine may be calculated, and the
worker's location as derived from a GPS system. Dasilva i-fi-127, 85. That
information must be processed before any control signal is generated, and the
processing occurs at the machine. If, after processing, it is determined that the
worker is in a forbidden zone, a microprocessor which is mounted on the machine
can actuate a controller to shut off the machine or disable the machine's movement
or some part of its movement. Dasilva i1 84.
The Examiner also identifies transceiver 106 as corresponding to the
limitation in claim 1 of a "controller capable of sending a control signal to the
machine." Non-Final Act. 4, Ans. 7. The transceiver 106, like the RFID tag 10,
sends location information that is subsequently processed on the machine and may
result in a change in machine operation. i-fi-f l 01, 104--106. In doing so, it is doing
precisely the same things that the localization devices do.
To summarize, the Examiner relies on Dasilva's RFID tag 10 (and its
incorporated transponder lOa) as both a "localization device" and as a "controller".
In addition, the Examiner relies on Dasilva's transponder 106 as a "controller"
performing the same functions as RFID tag 10. Therefore, we agree with
Appellant that the Non-Final Rejection relies on the same components performing
the same tasks to meet two different limitations of claim 1, and this constitutes
impermissible double counting. See Becton Dickinson and Co. v. Tyco Healthcare
Group, 616 F.3d 1249, 1254 (Fed. Cir. 2010) ("[w]here a claim lists elements
7
Appeal2014--001139
Application 12/329,930
separately, the clear implication of the claim language is that those elements are
distinct components of the patented invention."), quoting Gaus v. Conair Corp.,
363 F.3d 1284, 1288 (Fed. Cir. 2004). The Examiner's reliance on Friedrich's
teaching of how to construct an RFID tag does not cure this defect. Accordingly,
we do not sustain the rejection of claim 1.
Claims 2-9.
Claims 2-9 depend directly or indirectly from claim 1. We do not sustain
the rejection of these claims for the same reasons as stated in connection with
claim 1.
Claims 10--14 rejected under 35 U.S. C. § 102(e).
Claim 10.
Independent claim 10 is directed to a garment having:
a material of a color that is distinguishable, by a computer, from
a work environment; and
at least one radio frequency identification tag.
Appeal Br. 43--44 (Claims Appendix).
Claim 10 was rejected under 35 U.S.C. § 102(e) in view of Dasilva. Non-
Final Act. 6-7. Dasilva is concerned with distinguishing workers in a work
environment; the Background section of his application begins, "Workplace safety
is of great importance." Dasilva if 2. The Examiner finds Dasilva discloses a
garment. Non-Final Act. 7, citing Abstract, Figures 2-7, 18, 19, iii! 14--16, 19, 27,
29, 32, 33, and 38--40. The garment may be a vest that is equipped with reflective
material. Id. citing Dasilva iii! 25, 84, and 93. The vest includes "shoulder straps
58 having strips of a reflective material 56 so as to provide a visual indicator of the
presence of the wearer to the operator of the piece of equipment." Dasilva if 93;
see also Non-Final Act. 7. The garment may be provided with at least one radio
8
Appeal2014--001139
Application 12/329,930
frequency identification tag. Dasilva if 106, Figs. 1 and 9; see also Non-Final Act.
7.
Appellant argues that Dasilva teaches a vest which is distinguishable by an
operator, not a computer, but he does not explain the error in the Examiner's
reasoning. Appeal Br. 17. Namely, the Examiner's conclusion that safety vests
with "visual indicator[s]" come in various colors and that colors in the visible
range are distinguishable by a computer from a work environment. Non-Final Act.
7, Ans. 9. Appellant argues that Dasilva does not teach color recognition by a
computer in a work environment. Reply 5. The claimed subject matter recited in
claim 10 only requires that the color be able to be distinguished from a work
environment by a computer, and the Examiner finds that any visible color is so
distinguishable.
According to Appellant, the Examiner has not met the strict requirements to
show an inherent property or characteristic of a prior art reference by providing a
basis in fact for why the asserted property necessarily flows from the prior art.
Reply 6. Because strips of a reflective material that provide a visual indicator were
explicitly described by Dasilva, the rules regarding inherency have no application.
Appellant argues that even if a computer can distinguish colors, it may not
be able to do so in a work environment. Reply 6. This argument is directed to a
statement of intended use, and there is no structural feature called for by this claim
language. "An intended use or purpose usually will not limit the scope of the
claim because such statements usually do no more than define a context within
which the invention operates. " Boehringer Ingelheim Vetmedica, Inc. v. Schering-
Plough Corp. 320 F.3d 1339, 1345 (Fed. Cir. 2003). We conclude, first, that, this
argument has been waived because it is not in response to any argument made in
the Answer. 37 CPR§ 41.41 (b)(2). Second, even if we were to consider this
9
Appeal2014--001139
Application 12/329,930
argument, Appellant has not apprised us of error in the Examiner's finding that the
vest of DaSilva is capable of being distinguished by a computer in a work
environment. Specifically, if a vest stands out visually in a work environment to a
human, it is distinguishable by a computer. See Ans. 9 ("It is noted that the claim
is NOT positively reciting that the color is distinguished, but only that the color is
distinguishable. In this case the prior art reflective vest is distinguishable by a
computer because it is a reflective vest that has a visual indicator"). Because
Appellant has not demonstrated error in the Examiner's conclusions, we affirm the
rejection of claim 10.
Claims 11, 12 and 14.
Appellant does not specifically address claims 11, 12, and 14, which depend
directly or indirectly from claim 10, other than in the heading to his claim 10
arguments. We take claims 11, 12, and 14 to stand or fall with claim 10, and
summarily affirm their rejection. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
Claim 13.
Claim 13 also depends from claim 10, adding an RFID tag as a separate
localization device on each of a front, back, left and right sides of a garment which
are "used for determining the orientation of the operator." The Examiner finds that
antennae on all sides were taught by Dasilva and that these constitute RFID tags.
Non-Final Act. 7. As discussed in connection with claim 1, an antenna is only a
part, albeit an essential part, of an RFID tag. In Dasilva, a single RFID tag 10 may
have plural antennae 52a as shown in Figures 5 and 6, but these are provided to
"ensure[] that at least one portion of the safety vest which includes part of the
antenna is oriented towards a proximate antenna 22 mounted on the vehicle so as
to ensure accurate sensing of the RFID tag 10." Dasilva i-f 92. With only a single
10
Appeal2014--001139
Application 12/329,930
tag 10, the machine can determine the distance to a single point, but it cannot tell
how the worker is oriented.
In addition, the RFID tag in Dasilva (even if equipped with GPS and plural
antennae) is not described as capable of determining anything more than the
location and speed of a worker, not the worker's orientation. Dasilva ,-r 85. Thus,
Dasilva does not teach determining a worker's orientation.
Because we find that Dasilva does not disclose multiple RFID tags to
determine a worker's orientation, we do not sustain the rejection of claim 13.
Claims 15-25 rejected under 35 U.S.C. §103(a).
Claim 15.
Claim 15 depends from claim 14, and together they add to independent
claim 10, a "wireless communication means for transmitting information between
the garment and the nearby vehicle" (claim 14) and that the wireless
communication means includes "a plurality of different types of communication
channels; and an integrated microphone and an integrated speaker." (Claim 15)
Appeal Br. 44--45 (Claims Appendix). Claim 15 is rejected over Dasilva and
Fernandez. The Examiner finds Dasilva (Abstract, Fig. 2-7, 18, 19, i-fi-114, 16, 19,
27, 29, 39, 32, 33, 38, and 40) discloses a garment wherein the wireless
communication means further comprises a plurality of different types of
communication channels (different or multiple antennae implies different channels,
i-fi-186, 88, 94, 101, 108, 112, and 113). Non-Final Act. 13. Fernandez is relied on
for its teaching of an integrated microphone and speaker. Id. (citing Fernandez
4:53; 5:55---60). The Examiner finds it obvious to combine the teachings of
Dasilva and Fernandez in order to provide a garment that offers a plethora of
parameters, including measuring physiological parameters of the user of the
11
Appeal2014--001139
Application 12/329,930
garment, audio, and visual inputs. Non-Final Act. 12-13. An integrated
microphone and speaker are shown by Fernandez. Fernandez 5:55---60; 3:11-13.
The Examiner asserts that different antennae are "different types of communication
channels." Non-Final Act. 13. Appellant argues that Dasilva shows plural
channels, but not plural types of communication channels. Appeal Br. 27. The
Answer (Ans. 14) does not address the "types of communication channels"
argument, and the Reply (Reply 11) asserts that Dasilva shows plural antennae, but
they are all the same "type" of communication channel.
Appellant's briefing does not provide any suggested construction for the
claim limitation, "types of communication channels," and his argument amounts
merely to denying that the Examiner's rejection is well-founded. Appellant must
do more than merely deny that the references relied on teach what the Examiner
asserts. Ex parte Belinne, No. 2009-004693, 2009 WL 2477843 (BPAI Aug. 10,
2009) (Informative) (citing 37 C.F.R. § 41.37 (c)(l)(vii)). Because Appellant has
not explained why the Examiner's finding was wrong, he has not persuaded us that
the Examiner's finding is not supported by substantial evidence, and we affirm the
rejection of claim 15.
Claim 16.
Claim 16 depends from claim 15, adding a touch sensitive area for remote
control of the vehicle which uses wireless communications to transmit commands.
Appeal Br. 45 (Claims Appendix). The Examiner's rejection relies on Fernandez
for a touch sensitive Graphical User Interface (GUI). Non-Final Act. 13.
Appellant argues that the claimed combination is not obvious because Dasilva
merely sends back the signal it receives and Fernandez does not teach remote
control of a nearby vehicle. Appeal Br. 29. The Examiner repeats his finding in
the Answer that Fernandez teaches a touch sensitive area (i.e., GUI) for remote
12
Appeal2014--001139
Application 12/329,930
control of nearby electronic devices. Ans. 14. The Examiner concludes that
following the teachings of Fernandez would enable Dasilva to control objects or
machines remotely using a touch pad, and therefore that it would have been
obvious "to modify Dasilva and Friedrich as taught by Fernandez for the purpose
of using a garment that offers a plethora of parameters including measuring
physiological parameters of the user of a garment, audio and visual inputs" using a
touch pad. Id. 14--15.
We note that Fernandez does teach remote control of devices. Fernandez
2: 65-3: 1. Further the RFID chip in Dasilva does more than reflect the incoming
signal; it adds identification information and may add GPS-derived information.
Accordingly, we do not find the Appellant's argument persuasive. We agree with
and, for the reasons provided by the Examiner, adopt the Examiner's conclusion
that it would have been obvious to modify Dasilva and Friedrich in light of
Fernandez, and therefore we affirm the rejection of claim 16. See Non-Final Act
13, Ans. 14--15.
In his Reply, Appellant asserts for the first time that there is a synergistic
interplay between a wireless communication means and a touch sensitive area
since the touch sensitive area uses wireless communication to transmit commands.
Reply Br. 11. This argument is not considered because it was not necessitated by a
new point in the Answer and thus, should have been made in the opening Brief.
See Optivus Technology, Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989
(Fed. Cir. 2006) (argument raised for the first time in the reply brief that could
have been raised in the opening brief is waived); 37 CPR§ 41.41(b)(2) (2015).
Claim 17.
Claim 17 depends from claim 16, adding that the touch sensitive area
includes an emergency stop control area. Appeal Br. 45 (Claims Appendix). The
13
Appeal2014--001139
Application 12/329,930
Examiner relies on a combination of Dasilva and Fernandez. Non-Final Act. 14.
Dasilva is cited for teaching all the limitations of claim 17 except how stopping the
vehicle is accomplished. Id. Fernandez is cited for teaching a touchpad with icons
for remotely controlling objects. Id. citing Fernandez 5: 18-33 and 6:54-61.
Appellant argues that in Fernandez the garment itself does not include a touch
sensitive remote-control area while the language at issue is "a garment
comprising." Appeal Br. 30.
We agree with the Examiner that it would have been obvious to modify
Dasilva in light of Fernandez and that doing so would have met all the claim
limitations of claim 17, including that the garment have a touch sensitive area to
carry out emergency stopping. Dasilva discloses that emergency stopping may be
initiated after receipt of a transmission from an RFID chip that is part of the
garment itself and whose signal is used to determine distance from the machine
and which then may trigger altered operation of the machine. Dasilva i-f 84.
Fernandez discloses a touch screen for remote control of machinery. Fernandez
2:65-3: 1. The Examiner reasonably explains that it would have been obvious to
integrate the touch screen of Fernandez into the garment of Dasilva for the purpose
of remotely controlling a vehicle by using touch screen technology. Ans. 15.
Appellant's arguments to the contrary do not persuade us the Examiner erred.
We note, in addition, that Fernandez discloses "ornaments" 101 that enable
garment 100 to function as an interface to control remotely various electronic
devices. Fernandez 2:65---68. Part of garment 100 is networking interface 105.
The networking interface 105 communicates either by radio wave or wired
interconnection with a network. Id. 4:10-12. The networking interface 105 may
be a touch pad. Id. 4:26-29. While the Examiner did not cite to these parts of
14
Appeal2014--001139
Application 12/329,930
Fernandez, they further support the conclusion that it would have been obvious to
make a touch sensitive area to control a machine remotely.
Claim 18.
Claim 18 depends from claim 16 and adds additional control functions,
namely, steering, propulsion, and braking, to the touch pad. Appeal Br. 45 (Claims
Appendix). The Examiner admits that the cited art does not specifically disclose
remotely controlling the propulsion, steering and braking of a nearby vehicle, but
he contends "stopping a vehicle by such parameters is well known by one of
ordinary skill in the art." Non-Final Act. 14, Ans. 15.
Appellant argues that there would be no motivation to modify Dasilva, given
its strong inclination to automatically stop machine operation, rather than leaving
machine operation to an operator. Appeal Br. 31. Appellant also argues that the
Dasilva vehicle is driven by an operator manually, and therefore there would be no
reason to have a remote-control driving facility. Id.
Although we agree with the Examiner that it is well known to control the
steering, propulsion, and braking of remote controlled vehicles, we are persuaded
by the Appellant's argument that Dasilva only teaches vehicles which require on-
board operators. None of the references relied on by the Examiner to reject claim
18 teach or suggest anything more than stopping the vehicle either automatically
(Dasilva i-f 17) or by notifying the machine operator. Dasilva i-fi-184, 85. There is
no suggestion in the portions of the references relied on for remotely navigating the
vehicle, as contrasted with slowing the vehicle (or a part of it) or bringing it to a
stop in order to avoid a collision with a worker. Accordingly, we do not sustain
the rejection of claim 18.
15
Appeal2014--001139
Application 12/329,930
Claim 19.
Claim 19 depends from claim 10 and adds a display showing operating
information of the nearby vehicle. Appeal Br. 45 (Claims Appendix). The
rejection is nonspecific about what teachings from which reference are being
combined. See Non-Final Action 15. Nonetheless, the Examiner finds that "[t]he
combination of both references discloses controlling the vehicle using a display. It
is also well known in the art to show operating information of the nearby vehicle
that is remotely controlled on a display." Non-Final Act. 15, Ans. 16. Appellant
asserts that the claim means that the display is part of the garment itself and replies
that "none of the cited references teach/suggest the garment having a display."
Appeal Br. 32. Fernandez, column 2, lines 43-55, describes a garment 100 that
comprises an input/output pattern display 103. Because Fernandez shows a display
that is included as part of a garment, Appellant's challenge to the Examiner's
findings is not supported by the evidence, and the rejection of claim 19 is
sustained.
Claim 20.
Claim 20 depends from claim 10 and adds a battery and a means for
recharging the battery. Appeal Br. 45--46 (Claims Appendix). The Examiner finds
all the limitations of claims 10 and 20 in Dasilva (citing certain paragraphs) and
Fernandez and the other art provided with the rejection generally. See Non-Final
Act. 15. The Examiner states that it would have been obvious to provide a battery
and means for recharging it. See id. Among the cited patents, Fernandez
specifically discloses that the power source 104 may generate or provide access to
electrical power for the garment 100. Fernandez 3:59---63. Fernandez also
specifically mentions "transforming surrounding light into electrical power."
Fernandez 4: 1-2. While not cited specifically by the Examiner, Dasilva
16
Appeal2014--001139
Application 12/329,930
recommends the use of rechargeable batteries with solar panels to recharge them as
part of his garment. Dasilva i-f 105. Appellant denies that the prior art teaches a
garment that comprises a battery. Appeal Br. 32. Further, Appellant argues that
there is no suggestion to combine the teachings of the prior art other than
hindsight. Id. 33. In view of the noted teachings of Dasilva and Fernandez, we are
not persuaded by Appellant's arguments and agree with the Examiner's finding
that it would have been obvious at the time of the invention to provide the vest of
Dasilva with a rechargeable battery and means to recharge it. Accordingly, we
affirm the rejection of claim 20.
Claim 21.
This claim depends from claim 10 and adds that the garment includes "a bar
code readable by a barcode scanner." Appeal Br. 46 (Claims Appendix). Claim 21
is rejected over Dasilva and Fernandez. The Examiner finds "Dasilva sec. 0004
discloses that such barcode scanners are well known." Non-Final Act. 15.
Appellant argues that the fact that the scanners may be well known does not make
it obvious to add a bar code to a garment. Appeal Br. 33-34. Appellant's
argument does not persuade us of error in the Examiner's implicit finding that
because bar code scanners are well known, the use of bar codes themselves is also
well known. Accordingly, we affirm the rejection of claim 21.
Claims 22-25.
Claims 22-25 depend directly or indirectly from claim 10, adding various
types of sensors both for detecting the condition of the person wearing the garment
and also for sensing environmental conditions. Appeal Br. 46 (Claims Appendix).
Appellant argues claims 22-25 as a group. Appeal Br. 34. We select claim 22 as
representative, and claims 23-25 stand or fall with claim 22. 37 CPR§ 41.37
(c)(l)(iv) (2015). Claim 22 is rejected based on Dasilva and Fernandez. Non-
17
Appeal2014--001139
Application 12/329,930
Final Act. 16, Ans. 17. The Examiner asserts that everything in claim 10 was
disclosed by Dasilva except for sensors for detecting physical conditions. Non-
Final Act. 16. The Examiner further finds that Fernandez discloses sensors for
detecting at least one physical condition of an operator, citing Fernandez 2:31---67
and 3: 19-31. Id. There Fernandez discloses a garment with various medical
sensors as well as external environmental sensors including sensors detecting
pollution-rate and water condition or quality. The Examiner finds it would have
been obvious to modify Dasilva as taught by Fernandez for the purpose of
measuring physiological parameters of the user of a garment. Id. Appellants argue
that Fernandez does not teach different types of sensors. Appeal Br. 34.
Fernandez teaches different types of sensors as part of a garment including, inter
alia, thermometers, accelerometers (Fernandez 2 :49, 51) and medical or
physiological biochemical sensors. Id. 3 :23. These would be understood by one of
ordinary skill in the art to be different types of sensors. Accordingly, we have not
been apprised of error, and we affirm the rejection of claims 22-25.
Claims 26, 27, and 29 rejected under 35 U.S.C. § 102(e) and
Claims 28 and 30 rejected under 35 U.S.C. § 103(a).
Claim 26.
Independent claim 26 recites:
A method, implemented by a machine, for interacting with a
nearby operator, the method comprising:
detecting at least two attributes of a garment worn by the operator
using a plurality of different types of sensors; and
receiving a control operation for the machine from the garment.
Appeal Br. 46-47 (Claims Appendix).
18
Appeal2014--001139
Application 12/329,930
Claim 26 is rejected as anticipated by Dasilva. Non-Final Act. 8. The
Examiner relies on DaSilva i-f 85, 88, 94, 101, 108, 112 and 1132 as teaching
receiving a control operation for the machine from the garment. We are persuaded
by Appellants (Appeal Br. 18) that Dasilva does not teach the "receiving a control
operation for the machine from the garment" claim limitation.
The claim term "control operation" is not used, much less defined, in the
Specification. Based on our review of the Specification of similar terms and usage
of the phrase "control operation" in claim 26 (vide supra, p. 6, re "control signal"),
we give the term the same meaning as "control signal" used in claim 1. As we
noted in connection with claim 1, above, RFID tag 10 and transceiver 106 in
Dasilva send location information to a controller. That information includes at
least data from which the distance from the machine may be calculated and may
also include GPS derived information about location. Dasilva i-f 85. The
information transmitted is then processed, and it may or may not result in a change
in machine operation. See, e.g., Dasilva i-f 88. Dasilva describes a processor as
issuing the control signals, not the RFID tag. Id. Similarly in paragraph 108,
Dasilva states that "the closing speeds of the equipment 100 to the worker 104 may
in tum directly affect the different actions that the equipment may be instructed or
permitted to perform by the processor 128." Dasilva i-f 108. Clearly, in Dasilva the
processor, and not the RFID tag or transceiver, is issuing the control operations.
Accordingly, we find that the Examiner's rejection is not supported by a
preponderance of the evidence, and we do not sustain the rejection of claim 26.
Claims 27-30 depend directly or indirectly from claim 26, and we do not
sustain the rejection of those claims for the same reasons explained in connection
with claim 26.
2 The Examiner has withdrawn reliance on i-fi-1108, 112, 113. Ans. 9.
19
Appeal2014--001139
Application 12/329,930
Claims 31 and 34 rejected under 35 U.S.C. § 102(e) and
Claims 32 and 33 rejected under 35 U.S.C. § 103(a).
Claim 31.
Claim 31 is an independent claim directed to "controlling a machine" by
"emitting a radio frequency from a garment worn by the operator and transmitting
operating commands to a machine controller ... from the garment." Appeal Br.
48 (Claims Appendix). The Examiner rejects this claim as anticipated by Dasilva.
The Examiner relies on Dasilva i-f 85, 88, 94, 101, 108, 112 and 1133 as teaching
the step of receiving a control operation for the machine from the garment. Non-
Final Act. 9. Appellant argues that this claim requires both a radio frequency and
operating commands to come from the garment and that these two commands are
different from each other. Appeal Br. 19-20.
"Operating commands" is not given any special definition in the
Specification, and we give it the same meaning as we gave "control signal" in
claim 1. As we do in connection with claims 1 and 26, we find that the RFID tags
in Dasilva do not transmit "operating commands." Instead, the RFID tags in
Dasilva transmit distance and location information, which then may be processed.
Because we find that Dasilva does not disclose transmitting "operating commands"
from the garment, we do not sustain the rejection of claim 31.
Claims 32-34 each depend from claim 31. We do not sustain the rejection
of these claims for the same reason we do not sustain the rejection of claim 31.
3 The Examiner has withdrawn reliance on i-fi-1112, 113. Ans. 10.
20
Appeal2014--001139
Application 12/329,930
Claims 35 and 39 rejected under 35 U.S. C. § 102(e) and
Claims 36-38 and 40 rejected under 35 U.S.C. § 103(a).
Claim 35.
Independent Claim 35 recites:
A method for monitoring the safety of an operator near an autonomous
vehicle, the
method comprising:
detecting a garment worn by the operator;
receiving information from a plurality of different types of sensors
located on the garment; and
monitoring a location of the operator using the information.
Appeal Br. 48--49 (Claims Appendix).
This claim is rejected as anticipated by Dasilva. We focus on the
Examiner's finding that Dasilva, i-fi-185, 88, 94, 101, 108, 112, and 113 (Non-Final
Act. 10, Ans. 11 ), discloses receiving information from a plurality of different
types of sensors located on the garment. In particular, the Examiner finds that
Dasilva's GPS sensor senses multiple variables, including speed, and that the
plurality of antennae mounted at various locations are also used as sensors. Ans.
11. Appellant counters that Dasilva does not teach different kinds of sensors, and
that the RFID tag is a single type of sensor.
As we noted in connection with claim 1, the antennae are essential parts of
an RFID chip, but they are not themselves sensors. Accordingly, we do not sustain
the rejection of claim 35.
Claims 36-40 depend directly or indirectly on claim 35. We do not sustain
the rejection of these claims for the same reasons we do not sustain the rejection of
claim 3 5, and do so without comment on the arguments the Appellant made in
connection with these claims.
21
Appeal2014--001139
Application 12/329,930
Claims 41-46 rejected under 35 U.S.C § 102(e).
Claims 41-46.
Independent claim 41 recites:
41. A method for monitoring for a number of operators of an
autonomous vehicle, the method comprising:
identifying a location of a first operator wearing a first garment
having a number of localization devices capable of being detected by
the autonomous vehicle and having a first controller;
identifying a location of a second operator wearing a second
garment having the number of localization devices capable of being
detected by the autonomous vehicle and having a second controller;
and
performing operations based on the location of the first operator
and the second operator and a control signal generated by the first
controller.
Appeal Br. 50 (Claims Appendix). The term "control signal" is not given any
particular definition in the Specification. As with claim 1, we take a "control
signal" to be any signal that is sent from the garment necessarily causing a
response by the machine in its movement or operation. Appellant contends that
Dasilva does not contemplate using two location signals and a control signal from
one of the controllers. Appeal Br. 23. The Examiner responds that the vehicle
detects two garments and that the operations of the vehicle are controlled based on
the location of the workers and the control signals detected. Ans. 12.
As we noted in connection with claims 1 and 26, the location signals
transmitted by the RFID tags and transceivers of Dasilva are not control signals
because those signals might or might not cause a change in the operation or
movement of the machine. Thus, Appellant argues persuasively that the
Examiner's conclusion that Dasilva teaches performing operations based on the
location of the first operator and the second operator and a control signal generated
22
Appeal2014--001139
Application 12/329,930
by the first controller is not supported by a preponderance of the evidence.
Accordingly, we do not sustain the rejection of claim 41.
Claims 42--46 depend directly or indirectly from claim 41. We do not
sustain the rejection of these claims for the same reasons we do not sustain the
rejection of claim 41. Moreover, we make no comment about the arguments
Appellant made in connection with claims 42--46.
New Grounds of Rejection.
Claim 1.
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim 1
under 35 U.S.C. § 103(a) as unpatentable over Dasilva and Fernandez. We agree
with and adopt as our own the Examiner's findings that Dasilva discloses an
apparatus for providing an interface between a machine and an operator of the
machine, the apparatus comprising: a garment capable of being worn by the
operator; and at least one localization device, connected to the garment, capable of
being detected by the machine for determining a location of the garment. Non-
Final Act. 4. Dasilva does not disclose a controller capable of sending a control
signal from the garment to the machine to control an operation of the machine.
Fernandez discloses a garment that comprises "one or more active or
passive, smart or intelligent ... controller, thermostat, thermometer, sensor,
transponder, ... RFID tag, ... such as ornament ... 101, user identifier and/or
sensor 102, input/output pattern display 103, power source 104 and networking or
communication interface 105." Fernandez 2:43-55. In addition, Fernandez
discloses that the ornament 101 comprises "one or more ... functional electronic
device ... , including ... global positioning or navigational location system,
antennae, or wireless transceiver .... Fernandez 2:56-60. Ornaments 101 may
23
Appeal2014--001139
Application 12/329,930
enable the garment to function as an interface to control remotely or program
various electronic devices such as light switches or television sets. Fernandez
2: 65-3: 1. The ornament 101 may enable multi-party voice or video
communication. Fernandez 3: 12-13. Sensor 102 of Fernandez comprises one or
more identifier or sensor devices integrated with the garment 100. The sensor 102
may include a motion sensor, a microphone, and sensors for various biological or
environmental conditions. Fernandez 3: 19-31.
It would have been obvious to one of ordinary skill in the art to modify
Dasilva, in light of the teachings of Fernandez, by adding a controller capable of
sending a control signal from the garment to the machine, to control an operation
of the machine. Fernandez specifically discloses a remote-control for a device,
such as a television set or electric light switch. Fernandez 2:65-31. One of
ordinary skill in the art would understand that such a remote-control would be
capable of sending a control signal to control an operation of the machine. Such a
combination would enhance the performance of the garment and control of the
machine of Dasilva and would be recognized by one of ordinary skill in the art to
produce readily expected results.
Claim 26.
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim 26
under 35 U.S.C. § 103(a) as unpatentable over Dasilva and Fernandez. We agree
with and adopt as our own the Examiner's finding that Dasilva discloses a method,
implemented by a machine, for interacting with the nearby operator, the method
comprising detecting at least two attributes (RFID, GPS) of a garment worn by the
operator using a plurality of different types of sensors. Non-Final Act. 8.
Fernandez discloses a garment which includes a controller for another device or
machine. Fernandez 2: 65-3: 1 ("Ornaments 101 may enable the garment to
24
Appeal2014--001139
Application 12/329,930
function as an interface to control remotely or program only various electronic
device [sic], e.g. jacket interfacing with light switches or television remote
control.") Such a remote-controlled device would receive a control operation for
the device or machine from the garment. The combination of Dasilva and
Fernandez would have been obvious to one having ordinary skill in the art because
of the enhanced control over the machine it would produce. We note that Kramer,
which is in the same field of endeavor, discloses a remote controlled forklift in
which the operator can stop start and steer a forklift traveling behind him.
Kraimer, Abstract, i-fi-152-54. Kraimer demonstrates that the advantages of remote
control of machinery were well known to those skilled in the art at the time the
invention claimed was made. Id.
Claim 31.
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim 31
under 35 U.S.C. § 103(a) as unpatentable over Dasilva and Fernandez. We agree
with and adopt as our own the Examiner's finding that Dasilva discloses a method
for remotely controlling a machine comprising emitting a radio frequency from a
garment worn by an operator. Non-Final Act. 9. Appellant does not contest this
finding of the Examiner. Appeal Br. 19-20. Fernandez teaches transmitting
remote control signals from a garment to a controlled device. Fernandez 2:65-3:1.
One of ordinary skill in the art would understand that a remote-controller would
necessarily transmit operating commands to the controlled device. Therefore, it
would have been obvious to one of ordinary skill in the art at the time of the
claimed invention to add hardware to the garment of Dasilva as taught by
Fernandez for sending operating commands to a machine controller in order to
achieve enhanced control of the machine.
25
Appeal2014--001139
Application 12/329,930
Claim 35.
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim 35
under 35 U.S.C. § 103(a) as unpatentable over Dasilva and Fernandez. We agree
with and adopt as our own the Examiner's findings that Dasilva discloses a method
for monitoring the safety of an operator near an autonomous vehicle, the method
comprising detecting a garment worn by the operator, and monitoring a location of
the operator using the information. Non-Final Act. 10. Appellant does not contest
these findings of the Examiner. Appeal Br. 21. Fernandez teaches a garment with
a plurality of different kinds of sensors for monitoring the condition of the person
wearing the garment. Fernandez suggests that the sensors used in his garment can
include GPS sensors as well as motion sensors, sound sensors (microphones), and
sensors for heart rate, blood pressure, temperature, respiration rate or other
physiologic information. See Fernandez 3:19-31; 52-58. It would have been
obvious to one of ordinary skill in the art at the time the invention was made to add
the sensors taught by Fernandez to the garment taught by Dasilva and that such a
combination would meet all the limitations of claim 35 and in so doing provide a
garment with enhanced capabilities to monitor worker safety.
Claim 41.
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claim 41
under 35 U.S.C. § 103(a) as unpatentable over Dasilva and Fernandez. We agree
with and adopt as our own the Examiner's findings that Dasilva discloses a method
for monitoring a number of operators of a vehicle (Dasilva i-f 108), the method
comprising: identifying a location of the first operator wearing a first garment
having a number of localization devices, i.e. RFID and GPS (Dasilva i-f 85) capable
of being detected by the autonomous vehicle and having a first controller. As
discussed above, Fernandez discloses a controller integrated into a garment for
26
Appeal2014--001139
Application 12/329,930
remotely controlling a machine or device. Fernandez 2:65-3: 1. It would have
been obvious to provide the garment of Dasilva with a controller, as taught by
Fernandez, and to supply such garments to first and second workers as suggested
by Dasilva. Such a garment would have improved worker safety and operability of
the remote machinery, as would be routinely expected.
We are instructed that "[mere] reliance by the Board on the same type of
rejection or the same prior art references relied upon by the [E]xaminer, alone, is
insufficient to avoid a new ground of rejection where it propounds new facts and
rationales to advance a rejection - none of which were previously raised by the
[E]xaminer." In re Stepan Co., 660 F.3d 1341, 1345 (Fed. Cir. 2011) (citations
omitted). Accordingly, we enter a new ground of rejection under 35 U.S.C. § 103
with respect to claims 1, 26, 31, 3 5, and 41 in order to afford Appellant a fair
opportunity to respond. No inference should be drawn from the failure to make a
new ground of rejection for the other claims.4 As the Board's function is primarily
one of review, we leave to the Examiner to determine the patentability of the
dependent claims in view of the new grounds of rejection and the prior art.
DECISION
We AFFIRM the decision of the Examiner to reject claim 4 under 35 U.S.C.
§ 112, second paragraph, as being indefinite.
We REVERSE the decision of the Examiner to reject claims 1-3 and 6-9
under 35 U.S.C. § 103(a) as being unpatentable over Dasilva and Friedrich.
4 See 37 CPR§ 41.50(b). See also Manual of Patent Examining Procedure
(MPEP), 19 ed., rev. Nov. 2015, § 1213.02 ("Since the exercise of authority under
37 CPR§ 41.50(b) is discretionary, no inference should be drawn from a failure to
exercise that discretion").
27
Appeal2014--001139
Application 12/329,930
We AFFIRM the decision of the Examiner to reject claims 10-12 and 14
under 35 U.S.C. § 102(e) as being anticipated by Dasilva.
We REVERSE the decision of the Examiner to reject claims 13, 26, 27, 29,
31, 34, 35, 39, and41--46 under 35 U.S.C. § 102(e) as being anticipated by
Dasilva.
We AFFIRM the decision of the Examiner to reject claims 15-17 and 19-25
under 35 U.S.C. § 103 (a) as being unpatentable over Dasilva and Fernandez.
We REVERSE the decision of the Examiner to reject claims 18, 28, 32, 36,
37, 38, and 40 under 35 U.S.C. § 103 (a) as being unpatentable over Dasilva and
Fernandez.
We REVERSE the decision of the Examiner to reject claims 30 and 33
under 35 U.S.C. § 103(a) as being unpatentable over Dasilva and Kraimer.
We REVERSE the decision of the Examiner to reject claim 4 under 35
U.S.C. § 103 (a) as being unpatentable over Dasilva, Friedrich, and Jordan.
We REVERSE the decision of the Examiner to reject claim 5 under 35
U.S.C. § 103 (a) as being unpatentable over Dasilva, Friedrich, and Fernandez.
We enter new grounds of rejection, pursuant to 37 C.F.R. § 41.50(b), of
claims 1, 26, 31, 35, and 41under35 U.S.C. § 103(a) as set forth supra.5
Regarding the affirmed rejection(s), 37 CPR§ 41.52(a)(l) provides
"Appellant may file a single request for rehearing within two months from the date
of the original decision of the Board."
In addition to affirming the Examiner's rejection(s) of one or more claims,
this decision contains a NEW GROUND OF REJECTION pursuant to 37 C.F.R. §
41.50(b), which provides that "new ground[s] of rejection pursuant to this
paragraph shall not be considered final for judicial review."
5 See note 4 supra.
28
Appeal2014--001139
Application 12/329,930
37 C.F.R. § 41.50(b) provides "[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review." 37 C.F.R. § 41.50(b)
also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF
THE DECISION, must exercise one of the following two options with respect to
the new grounds of rejection to avoid termination of the appeal as to the rejected
claims:
( 1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the Examiner,
in which event the proceeding will be remanded to the Examiner ....
(2) Request rehearing. Request that the proceeding be reheard
under§ 41.52 by the Board upon the same record ....
Should Appellant elect to prosecute further before the Examiner pursuant to
37 C.F.R. § 41.50(b)(l), in order to preserve the right to seek review under 35
U.S.C. § 141 or 145 with respect to the affirmed rejections, the effective date of the
affirmance is deferred until conclusion of the prosecution before the Examiner
unless, as a mere incident to the limited prosecution, the affirmed rejections are
overcome.
If Appellant elects prosecution before the Examiner and this does not result
in allowance of the application, abandonment or a second appeal, this case should
be returned to the Patent Trial and Appeal Board for final action on the affirmed
rejections, including any timely request for rehearing thereof.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)
29