Ex Parte Batra et al

Patent Trial and Appeal BoardNov 26, 2012

11423414 (P.T.A.B. Nov. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ___________ Ex parte NARESH BATRA and HEENA NANDU ___________ Appeal 2011-007883 Application 11/423,414 Technology Center 2800 __________ Before MARC S. HOFF, CARLA M. KRIVAK, and ELENI MANTIS MERCADER, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-007883 Application 11/423,414 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 14-26, 41, and 44. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION Appellants’ claimed invention is directed to a method, system, and computer program product for calibrating an RFID interrogator (Abstract). A signal is sent from an interrogator 104 to a calibration device 100 (see Fig. 1). A backscatter signal is received from the calibration device 100, which is analyzed and the interrogator 104 can selectively respond to tags returning a signal having at least a required strength of operation (Spec. 13:7-16). Claims 14, 41, and 44, reproduced below, are exemplary of the subject matter on appeal. 14. A method for calibrating an RFID interrogator, comprising: sending a signal from an interrogator to a calibration device; receiving a backscatter signal from the calibration device; analyzing the backscatter from the calibration device; and setting the interrogator to selectively respond to tags returning a backscatter signal strength selected based on the analysis. 41. A Radio Frequency Identification (RFID) system, comprising: an interrogator sending an outgoing signal; and a calibration device backscattering the interrogator signal; wherein the backscatter from the calibration device is analyzed, Appeal 2011-007883 Application 11/423,414 3 wherein the interrogator is set to selectively respond to one or more RFID tags returning a backscatter signal having at least a desired strength based on the analysis of the backscatter signal. 44. A computer program product comprising a computer useable medium including a computer readable program, wherein the computer readable program when executed on a computing device causes the computing device to: send a signal from an interrogator to a calibration device; receive a backscatter signal from the calibration device; analyze the backscatter from the calibration device; and set the interrogator to selectively respond to tags returning a backscatter signal strength selected based on the analysis. REFERENCES and REJECTIONS The Examiner rejected claims 14, 15, 20, 24, 25, 41, and 44 under 35 U.S.C. § 102(b) as being anticipated by McLean (U.S. Patent No. 6,486,769 B1; Nov. 26, 2002). The Examiner rejected claims 16-19, 21-23, and 26 under 35 U.S.C. § 103(a) as being unpatentable over McLean. ISSUE The issue is whether the Examiner erred in finding that McLean teaches the limitation of “analyzing the backscatter from the calibration device; and setting the interrogator to selectively respond to tags returning a backscatter signal strength selected based on the analysis” as recited in claim14. Appeal 2011-007883 Application 11/423,414 4 PRINCIPLE OF LAW Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). ANALYSIS Claims 14, 15, 20, 24, 25, 41, and 44 Appellants argue that McLean does not teach the claimed limitation of “analyzing the backscatter from the calibration device; and setting the interrogator to selectively respond to tags returning a backscattering signal strength selected based on the analysis” (see App. Br. 10). Appellants explain that according to their invention, the interrogator will respond depending whether the tag’s signal strength is higher or lower than the backscatter signal from the calibration device (App. Br. 10). Thus, the interrogator will selectively respond to some tags but not others (App. Br. 10). Appellants argue that by contrast, McLean’s device adjusts the interrogator strength level, which effectively causes some of the tags to become out-of-range, and thus unable to respond (App. Br. 10). We do not agree. The Examiner responds, and we agree, that McLean’s selectivity is provided by selectively setting the interrogator’s broadcast range so that the tags that could not be read before the setting can be read and vice versa (Ans. 7). The Examiner reasons that “selectively respond[ing] to tags returning a backscattering signal at a strength selected based on the analysis” is taught by McLean due to the setting of the interrogator’s range to read/respond, or not read/respond, to tags (Ans. 7). Appeal 2011-007883 Application 11/423,414 5 We find no error in the Examiner’s interpretation. McLean teaches the signal strength of the base station 120 can be increased until a response is received from checktag A 160 (col. 4, ll. 29-35). If a response is received from checktag B, the strength at the base station 120 can be decreased to remove checktag B (col. 4, ll. 35-48). Therefore, McLean analyzes the backscatter signal received by the calibration device from checktag A and checktag B and selectively adjusts the RF signal 130 to selectively receive a backscatter signal from application tags 150 within read zone 180 and exclude others from no read zone 190 (see Fig. 1; col. 4, ll. 41-48; Ans. 7). Furthermore, we do not agree with Appellants’ contention that McLean teaches adjusting the signal strength of the interrogator to respond to all tags returning a backscatter signal, regardless of strength, which is not the same as selectively responding to “tags returning a backscatter signal at a selected strength” (App. Br. 11). First, a “selected strength” is not recited in the claims. See Van Geuns, 988 F.2d at 1184. Second, the selection of all tags in a given radius of the base station with a returned backscatter signal strength as taught by McLean, as explained above, would read on “setting the interrogator to selectively respond to tags” as recited in the claims. Finally, as per Appellants’ admission, Appellants’ own invention could select all or select none of the tags (App. Br. 10:24-25). Accordingly, we affirm the Examiner’s rejection of independent claim 14, and for the same reasons the rejection of claims 15, 20, 24, 25, 41, and 44.1 1 Regarding claim 44, the claim recites a computer program product with a “computer usable medium.” Should there be further prosecution, the Examiner should consider whether the computer readable medium when Appeal 2011-007883 Application 11/423,414 6 Claims 16-19, 21-23, and 26 Appellants advance the same arguments as stated supra for claims 16- 19, 21-23, and 26 (see App. Br. 20-21). We do not agree with Appellants for the same reasons as we addressed above. We also do not agree with Appellants’ arguments that McLean does not constitute analogous art because it is outside of Appellants’ field of endeavor. Both McLean’s and Appellants’ inventions are directed to RFID tag detection. We further note that Appellants’ arguments regarding the obviousness of claim 14 (App. Br. 21-22) is not persuasive because the rejection is based on anticipation, not obviousness. Accordingly, we affirm the Examiner’s rejection of claims 16-19, 21- 23, and 26. Election/Restriction Requirement Arguments We note that Appellants’ argue, throughout the Appeal Brief, the propriety of the election/restriction requirement. This, however, is a petitionable matter and not an appealable matter. See MPEP § 1002.02(c). Accordingly, we will not review this issue. read in light of the Specification includes transitory signals such as a wireless link (see Spec. 7:2-8), which is non-statutory. See MPEP § 2106. According to USPTO guidelines, such claims must be amended to recite solely statutory subject matter. See David J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 OFF. GAZ. PAT. OFFICE 212 (Feb. 23, 2010); see also U.S. Patent & Trademark Office, Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. §101, at 2 (Aug. 2009), available at http://www.uspto.gov/patents/ law/comments/2009-08-25_interim_101_instructions.pdf. Appeal 2011-007883 Application 11/423,414 7 CONCLUSION The Examiner did not err in finding that McLean teaches the limitation of “analyzing the backscatter from the calibration device; and setting the interrogator to selectively respond to tags returning a backscatter signal strength selected based on the analysis” as recited in claim14. DECISION The Examiner’s decision rejecting claims 14-26, 41, and 44 is affirmed. AFFIRMED babc