Ex Parte Burr

Patent Trial and Appeal BoardMar 14, 2018

14567034 (P.T.A.B. Mar. 14, 2018)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEREMY BURR ____________ Appeal 2017-007995 Application 14/567,034 Technology Center 2600 ____________ Before MAHSHID D. SAADAT, LARRY J. HUME and CATHERINE SHIANG, Administrative Patent Judges. SHIANG, Administrative Patent Judge. DECISION ON APPEAL Appellant appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–24, which are all the claims pending and rejected in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Appeal 2017-007995 Application 14/567,034 2 STATEMENT OF THE CASE Introduction According to the Specification, the present invention relates to inter- platform communications. See generally Spec. 1. Claim 1 is exemplary: 1. A data generation platform comprising: a data interface; a power port; a low pass filter coupled to the power port; a direct current (DC) power line coupled to the low pass filter; a connector coupled to the DC power line; a high pass filter coupled to the DC power line; and an embedded controller coupled between the data interface and the high pass filter, the embedded controller including: a converter to receive data from the data interface and convert the data into an analog signal, and a modulator to modulate the analog signal onto the DC power line via the high pass filter. References and Rejections Binder US 2013/0201316 A1 Aug. 08, 2013 Abraham US 2008/0247447 A1 Oct. 9, 2008 Hazani US 2008/0280569 A1 Nov. 13, 2008 Lai US 2013/0043985 Al Feb. 21, 2013 Claims 1–5, 7–11, 13–17, and 19–23 stand rejected under 35 U.S.C. § 103 as being unpatentable over Binder, Abraham, and Hazani. Appeal 2017-007995 Application 14/567,034 3 Claims 6, 12, 18, and 24 stand rejected under 35 U.S.C. § 103 as being unpatentable over Binder, Abraham, Hazani, and Lai. ANALYSIS Claims 1–6 and 13–24 We disagree with Appellant’s arguments, and agree with and adopt the Examiner’s findings and conclusions in (i) the action from which this appeal is taken and (ii) the Answer to the extent they are consistent with our analysis below.1 On this record, the Examiner did not err in rejecting claim 1. I Appellant contends Binder does not teach “an embedded controller coupled between the data interface and the high pass filter,” as recited in claim 1. See App. Br. 10–12. In particular, Appellant asserts in Binder, the embedded controller is not connected between the data interface 763 and high pass filter 92. See App. Br. 11. Appellant has not persuaded us of error. Because the Examiner relies on the combination of Binder and Hazani to teach the disputed claim limitation, Appellant cannot establish nonobviousness by attacking Binder individually. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellant’s argument is unpersuasive because it is not directed to the Examiner’s specific findings: the Examiner cites Hazani—not Binder—for 1 To the extent Appellant advances new arguments in the Reply Brief without showing good cause, Appellants have waived such arguments. See 37 C.F.R. § 41.41(b)(2). Appeal 2017-007995 Application 14/567,034 4 teaching “an embedded controller coupled between the data interface and the high pass filter” (emphasis added). See Final Act. 5. In the Reply Brief and for the first time, Appellant belatedly argues the cited Hazani portions do not teach the disputed limitation. See Reply Br. 6–7. Appellant has waived the argument because it is untimely, and Appellant has not demonstrated any “good cause” for the belated presentation. See 37 C.F.R. § 41.41(b)(2). II Appellant contends Binder does not teach “a modulator to modulate the analog signal onto the DC power line via the high pass filter,” as recited in claim 1. See App. Br. 12. In particular, Appellant asserts Binder does not teach “the modem 72 modulates an analog signal generated by the D/A converter 62a onto a DC power line via a high pass filter.” App. Br. 12 (original emphasis omitted). Appellant has not persuaded us of error. Because the Examiner relies on the combination of Binder and Abraham to teach the disputed claim limitation, Appellant cannot establish nonobviousness by attacking Binder individually. See Merck, 800 F.2d at 1097. Appellant’s argument is unpersuasive because it does not address the Examiner’s specific findings: the Examiner cites Abraham for teaching “a modulator to modulate the analog signal onto the DC power line via the high pass filter” (Final Act. 4). Appellant does not assert—let alone show—the Examiner’s findings based on Abraham is incorrect.2 2 The Examiner finds Binder cumulatively teaches “a modulator to modulate an analog signal [that is not converted from a D/A converter] onto the DC Appeal 2017-007995 Application 14/567,034 5 In the Reply Brief and for the first time, Appellant argues Binder’s modem (cited by the Examiner to teach the claimed modulator) transmits and receives digital—not analog—data. See Reply Br. 8–9. Appellant has waived the argument because it is untimely, and Appellant has not demonstrated any “good cause” for the belated presentation. See 37 C.F.R. § 41.41(b)(2). Further, the belated argument is unpersuasive: as discussed above, Appellant has not shown error in the Examiner’s alternative findings based on Abraham. Because Appellant has not persuaded us the Examiner erred, we sustain the Examiner’s rejection of independent claim 1. Regarding independent claims 13 and 19, Appellant relies on the arguments discussed above with respect to claim 1. See App. Br. 10, 12, 16. However, Appellant has not shown those claims recite the disputed limitations of claim 1. In any event, as discussed above, Appellant’s arguments regarding claim 1 are unpersuasive. Therefore, we sustain the Examiner’s rejection of independent claims 13 and 19. We also sustain the Examiner’s rejection of corresponding dependent claims 2–6, 14–18, and 20–24, as Appellant does not advance separate substantive arguments about those claims. Claims 7–123 power line via the high pass filter.” See Final Act. 4. However, that cumulative finding is unnecessary: as discussed above, Appellant has not shown error in the Examiner’s alternative findings based on Abraham. 3 Appellant raises additional arguments with respect to this group of claims. Because the identified issue is dispositive of the appeal with respect to this group of claims, we do not reach the additional arguments. Appeal 2017-007995 Application 14/567,034 6 We have reviewed the Examiner’s rejection in light of Appellant’s contentions and the evidence of record. We concur with Appellant’s contention that the Examiner erred in finding the cited portions of Binder teach “a converter to receive a modulated analog signal from the DC power line via the high pass filter and the bandpass filter,” as recited in independent claim 7 (emphasis added). See App. Br. 16; Reply Br. 10–11. The Examiner cites Binder’s Figure 7 for teaching the above limitation, but does not specifically map the italicized limitation in the findings associated with the above limitation. See Final Act. 6. We have reviewed Binder’s Figure 7, and that figure does not show any bandpass filter. See Binder, Fig. 7. Therefore, we agree with Appellant that the Examiner has not shown the cited portions of Binder teach “a converter to receive a modulated analog signal from the DC power line via the high pass filter and the bandpass filter,” as required by independent claim 7 (emphasis added). See App. Br. 16. The Examiner does not respond to Appellant’s argument. Because the Examiner fails to provide sufficient evidence or explanation to support the rejection, we are constrained by the record to reverse the Examiner’s rejection of claim 7. We also reverse the Examiner’s rejection of corresponding dependent claims 8–12. Although the Examiner cites an additional reference for rejecting dependent claim 12, the Examiner has not shown the additional reference overcomes the deficiency discussed above regarding the rejection of claim 7. See Final Act. 8–9. Appeal 2017-007995 Application 14/567,034 7 DECISION We affirm the Examiner’s decision rejecting claims 1–6 and 13–24. We reverse the Examiner’s decision rejecting claims 7–12. 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). See 37 C.F.R. § 41.50(f). AFFIRMED-IN-PART