Ex Parte August et alDownload PDFPatent Trial and Appeal BoardJun 11, 201411633751 (P.T.A.B. Jun. 11, 2014) Copy Citation 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. 11/633,751 12/04/2006 Jason August VAI.P-076 2711 73549 7590 06/12/2014 Larson & Anderson, LLC re:VAI P.O. Box 4928 Dillon, CO 80435-4928 EXAMINER MEHRAVARI, PETER CYRUS ART UNIT PAPER NUMBER 2685 MAIL DATE DELIVERY MODE 06/12/2014 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 ____________________ Ex parte JASON AUGUST, JOHN K. STEVENS, CHRISTOPHER W. VERGE, PAUL WATERHOUSE, KENNETH TRUONG, and MICHAEL J. VANDERBERG ____________________ Appeal 2011-013507 Application 11/633,751 Technology Center 2600 ____________________ Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-013507 Application 11/633,751 2 I. STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. A. INVENTION Appellants’ invention is directed to a networked RF tag for operating at a low frequency that includes a display; a wireless communication part operable to receive data queries and transmit data wirelessly; an antenna operable at a low radio frequency not exceeding 1 megahertz; a transceiver; a data storage device; and an energy source (Abstract). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary: 1. An identification device for identifying an entity, said identification device comprising: A) a visual display portion operable to display identification data relating to the entity; and B) a full-duplex wireless communication part operable to receive data queries and transmit data wirelessly in response to the data queries, said wireless communication part comprising: 1) an antenna operable at a low radio frequency not exceeding 1 megahertz; 2) a transceiver operatively connected to said antenna, said transceiver being operable to simultaneously transmit and receive data at said low radio frequency; 3) a data storage device operable to store data comprising identification data for identifying the entity; 4) a data processor operable to process data received from said transceiver and said data storage device and to send data for causing said transceiver to Appeal 2011-013507 Application 11/633,751 3 emit an identification signal based upon said identification data stored in said data storage device; and 5) an energy source operable for activating said transceiver and said data processor. C. REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Gray US 4,782,341 Nov. 1, 1988 Reymond US 5,898,370 Apr. 27, 1999 Gersheneld US 5,914,701 Jun. 22, 1999 Brady US 6,320,509 B1 Nov. 20, 2001 Durst US 2002/0003493 A1 Jan. 10, 2002 De La Huerga US 2002/0084904 A1 Jul. 4, 2002 Tutt US 6,785,739 B1 Aug. 31, 2004 Copeland US 2004/0217866 A1 Nov. 4, 2004 Hum US 2005/0099309 A1 May 12, 2005 Foth US 7,023,338 B1 Apr. 4, 2006 Waterhouse US 7,049,963 B2 May 23, 2006 August US 7,489,244 B2 Feb. 10, 2009 Claims 1, 3, 5, 10, 11, 15, 16, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum. Claims 6 and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum and Gray. Claims 2 and 4 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum and Durst. Appeal 2011-013507 Application 11/633,751 4 Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum and Tutt. Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum and Reymond. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum and Brady. Claims 13 and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum, Brady, and Froth. Claim 19 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over De La Huerga in view of Hum, Brady, and Copeland. Claims 1, 11, and 12 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-5, 7, 11-14, 16, and 17 of U.S. Patent No. 7,049,963 and separately over claims 1-5, 7, 8, 11-14, 16, and 17 of U.S. Patent No. 7,489,244. II. ISSUE The dispositive issue before us is whether the Examiner erred in finding that the combination of De La Huerga and Hum teaches or would have suggested a wireless communication part comprising “an antenna operable at a low radio frequency not exceeding 1 megahertz” (claim 1, emphasis added). Appeal 2011-013507 Application 11/633,751 5 III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence: De La Huerga 1. De La Huerga discloses a Personal Area Network (PAN) that uses a local near-field electrostatic coupling for communication, where information is transferred by modulating an electrostatic coupling of current into the body having a sufficiently low carrier frequency (e.g. 300 kHz) to minimize the propagation of the communications signal energy beyond the body (¶ [0209]). 2. RF transponders may be included within the system (¶ [0211]). Gersheneld 3. Gersheneld discloses a transmitter having a signal generator and a pair of electrodes substituting the use of an antenna to efficiently transmit and receive radiated energy (Abstract; col. 2, ll. 49-54). Hum 4. Hum discloses a communication system having a coupling port 266a and coupling repeaters 260c, 262a, which permit semi-duplex or full duplex communications between a transponder and an interrogator (¶ [0052]). Reymond 5. Reymond discloses the memory in the radio tag is updated, so that the time of the last query may be stored in the memory (col. 5, ll. 24- 29). Appeal 2011-013507 Application 11/633,751 6 IV. ANALYSIS Claims 1, 3, 5, 10, 11, 15, 16, and 18 Appellants contend “De La Huerga fails to disclose or suggest an antenna operable at a low radio frequency not exceeding 1 megahertz” (App. Br. 6). Appellants assert “De La Huerga discusses Personal Area Networks (PANs), which is a type of communication that allows for local near-field electrostatic coupling” and “a brief review of [Gersheneld], which De La Huerga references to disclose PANs indicates that the disclosed PANs use electrodes instead of antennas” (App. Br. 7, emphasis added). Appellants argue that “[t]here is no motivation to combine Hum with De La Huerga” because “[t]he alleged motivation to combine[:] . . . ‘to achieve a higher throughput with limited bandwidth’” “is factually inaccurate” since “bandwidth is the limiting factor in determining throughput, regardless of whether communications are in a half-duplex mode or a full-duplex mode” (App. Br. 7). Appellants contend further “[i]f the teachings of De La Huerga were modified to use full-duplex communications, the infrared transponders of De La Huerga would be rendered inoperable because they would be blinded by their own transmitters” (App. Br. 8). However, the Examiner finds De La Huerga teaches a “form of electrostatic coupling or radio frequency (RF) coupling, whereby illustration of how to achieve such objective [of communications between devices transmitted at a low carrier frequency] is exemplified by the use of near-field electrostatic coupling” (Ans. 23). The Examiner notes De La Huerga’s disclosure to “localized communication is not limited to just the electrostatic communication embodiment, but instead as a[] universal system goal encompassing the all applicable embodiments, including the explicitly cited Appeal 2011-013507 Application 11/633,751 7 example of RF communication” (Ans. 25). The Examiner notes further that “since De La Huerga specifically teaches a problem generally known to be solved by the full duplex communication system taught by Hum,” “it would be obvious for one having ordinary skill in the art at the time of the invention to combine De La Huerga with Hum” (Ans. 26), and “there is clear knowledge that [full-duplex communication] the RF embodiment, also explicitly taught by De La Huerga, would be operable” (Ans. 27). We give the claim its broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). As an initial matter, we note that claim 1 merely recites an antenna “operable at” a low radio frequency not exceeding 1 megahertz (claim 1). We find such “operable at a low frequency” language merely represents a statement of intended use of the antenna comprised in the full-duplex wireless communication part at low frequency, which does not limit the claim. Particularly, an intended use will not limit the scope of the claim because it merely defines a context in which the invention operates. Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). In fact, claim 1 does not define “antenna.” Although the Specification is silent as to a definition for antenna; it does disclose that prior art embodiments of RFID tags and RF tags include antennas where the energy from the antenna of the reader generates an electro-magnetic field which includes a voltage in the coil of the tag, supplying energy to the tag and having a frequency range of 100KHz to 3GHz (Spec. ¶¶ [0005] and [0007]). We give “antenna” its broadest reasonable interpretation as any device that propagates and receives radio waves. Thus, we give “an antenna operable at Appeal 2011-013507 Application 11/633,751 8 a low radio frequency not exceeding 1 megahertz” its broadest reasonable interpretation as a device for sending and receiving radio waves capable of operating at a low radio frequency less than 1 megahertz. De La Huerga discloses a system having a Personal Area Network (PAN) that uses a local near-field electrostatic coupling for communication having a sufficiently low carrier frequency (e.g. 300 kHz) (FF 1). De La Huerga incorporates by reference the PAN of Gersheneld having a transmitter, which uses a pair of electrodes instead of an antenna (FF 3). The system further includes a RF transponder (FF 2). We agree with the Examiner’s finding De La Huerga’s “[RF] transponders . . . need to use antennas [in order] to work” (Ans. 4). That is, we find that De La Huerga’s system comprises a device for propagating and receiving radio waves capable of operating at a low radio frequency less than 1 megahertz (claim 1). Though Appellants also contend that “[i]f the teachings of De La Huerga were modified to use full-duplex communications, the infrared transponders of De La Huerga would be rendered inoperable because they would be blinded by their own transmitters” (App. Br. 8), we agree with the Examiner’s finding that “there is clear knowledge that [full-duplex communication] the RF embodiment, also explicitly taught by De La Huerga, would be operable” (Ans. 27, FF 4). As the Examiner finds: [t]he combination would have increased throughput with limited bandwidth as indicated in the rejection, by reducing the amount of time required for communication through simultaneous transmission and reception rather than having to take turns transmitting and then receiving, which in turn would have reduced communication collisions due to the shortened time required for the transmission/reception communications. Appeal 2011-013507 Application 11/633,751 9 (Ans. 26). Since Hum discloses full-duplex communication, we conclude that the combination of one known element (Hum’s full-duplex communication) with another (De La Huerga’s wireless communication system) would have yielded predictable results to one of ordinary skill in the art at the time of the invention. That is, we find that the full-duplex communication as taught by Hum in addition to De La Huerga’s communication system is no more than a simple arrangement of old elements, with each performing the same function it had been known to perform, yielding no more than one would expect from such an arrangement. See KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 417. The skilled artisan would “be able to fit the teachings of multiple patents together like pieces of a puzzle” since the skilled artisan is “a person of ordinary creativity, not an automaton.” Id. at 420-21. Appellants have presented no evidence that combining Hum’s teaching of full-duplex communication capability with the wireless communication system of De La Huerga was “uniquely challenging or difficult for one of ordinary skill in the art” or “represented an unobvious step over the prior art.” See Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (citing KSR, 550 U.S. at 418-19). We also agree with the Examiner’s explicit motivation that combining the references would be obvious since “to reduce/eliminate collisions” (Ans. 26). The Supreme Court has stated that “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR 550 U.S. at 416. Appeal 2011-013507 Application 11/633,751 10 Thus, we find no error in the Examiner’s finding that the combination of De La Huerga’s wireless communication system with the full-duplex communication capability, as disclosed in Hum, produces a full-duplex wireless communication part which would be obvious (Ans. 26; FF 1, 2, and 4). Accordingly, we find no error in the Examiner’s rejection of claim 1 under 35 U.S.C. § 103(a) over De La Huerga in view of Hum. Further, independent claims 16 and 18 having similar claim language and claims 3, 5, 10, 11, and 15 (depending from claim 1) which have not been argued separately, fall with claim 1. Claims 8 and 9 Appellants contend “Reymond does not disclose or suggest storing a temporal history of data queries (plural);” “[r]ather, Reymond merely discloses that the time of the LAST query may be stored in the tag (App. Br. 9). Appellants argue “[t]he Reymond reference also fails to cure the deficiencies of the references set forth above” (id.). However, the Examiner finds Reymond discloses “the time the last query is stored” (Ans. 17). Reymond discloses a memory that stores a query (FF 5). We agree with the Examiner’s finding “Reymond discloses wherein said data storage device is operable to store a temporal history of data queries that have been received by said identification device” (Ans. 17). That is, we find that Reymond’s step of storing a query at least suggests a “data storage device [which] is operable to store a temporal history of data queries that have been received by said identification device” (claim 8). Appeal 2011-013507 Application 11/633,751 11 Accordingly, we find no error in the Examiner’s rejection of claim 8 under 35 U.S.C. § 103(a) over De La Huerga in view of Hum and Reymond. Further, claim 9 (depending from claim 1) which have not been argued separately, fall with claim 8. Claims 2, 4, 6, 7, 12-14, 17, 19, and 20 Appellants argue that claims 2, 4, 6, 7, 12-14, 17, 19, and 20 are patentable over the cited prior art for the same reasons asserted with respect to claim 1 and the additional references (Gray, Tutt, Brady, Foth, and Copeland) do “not cure the deficiencies of the references set forth above” (App. Br. 8-10). As noted supra, however, we find that the combination of De La Huerga and Hum at least suggests all the features of claim 1. We therefore affirm the Examiner’s rejection of claims 6 and 20 under 35 U.S.C. § 103 over De La Huerga in view of Hum and Gray; of claims 2 and 4 under 35 U.S.C. § 103 over De La Huerga in view of Hum and Durst; of claims 7 and 17 under 35 U.S.C. § 103 over De La Huerga in view of Hum and Tutt; of claim 12 under 35 U.S.C. § 103 over De La Huerga in view of Hum and Brady; of claims 13 and 14 under 35 U.S.C. § 103 over De La Huerga in view of Hum, Brady, and Froth; and of claim 19 under 35 U.S.C. § 103 over De La Huerga in view of Hum, Brady, and Copeland. Nonstatutory Obviousness-Type Double Patenting Rejections As for the obviousness-type double patenting rejections, Appellants present no separate argument for the patentability of claims 1, 11, and 12. Accordingly, Appellants have shown no error with the Examiner’s rejection of claims 1, 11, and 12 over claims 1-5, 7, 11-14, 16, and 17 of U.S. Patent Appeal 2011-013507 Application 11/633,751 12 No. 7,049,963 and separately over claims 1-5, 7-8, 11-14, 16, and 17 of U.S. Patent No. 7,489,244. V. CONCLUSION AND DECISION The Examiner’s rejection of claims 1-20 under 35 U.S.C. § 103(a) and of claims 1, 11, and 12 on the ground of nonstatutory obviousness-type double patenting is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED ELD Copy with citationCopy as parenthetical citation