Ex Parte DeMaio et al

Patent Trial and Appeal BoardNov 28, 2018

12000097 (P.T.A.B. Nov. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/000,097 12/07/2007 Martin Paul DeMaio 26694 7590 11/30/2018 VENABLELLP P.O. BOX 34385 WASHINGTON, DC 20043-9998 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. 42713-246187 8716 EXAMINER LOBO,IANJ ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 11/30/2018 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): PTOMail@Venable.com khauser@venable.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARTIN PAUL DEMAIO, JOHN T. GREEN, LARRY FREEMAN, DONALD T. LERRO, and ATULR. SHAH Appeal 2018-003130 Application 12/000,097 Technology Center 3600 Before STEFAN STAICOVICI, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Martin Paul Demaio et al. ("Appellants") appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 33-56, 58, and 59. 1 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellants submit the real party in interest is Alion Science and Technology Corp. Br. 2. Appeal 2018-003130 Application 12/000,097 THE CLAIMED SUBJECT MATTER The claims are directed to an active sonar method. Spec. ,r 13. Claim 33, reproduced below, is illustrative of the claimed subject matter: 33. A method enabling a sonar capable of simultaneously transmitting and receiving to detect an echo resulting from reflections of a continuous transmitted acoustic signal, which transmitted acoustic signal has any frequency, bandwidth, time history and/or phase characteristics versus time; analyzing the echo to obtain a result; and providing awareness of the echo and the result to a user, even when said transmitted signal is present at the receiver with the same frequency content as that of the echo and exceeds it in acoustic intensity. REJECTIONS 2 1. Claims 35, 47, and 52 are rejected under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. 2. Claims 33-37, 40-49, 52-56, 58, and 59 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Feintuch et al. (US 4,933,914, issued June 12, 1990) ("Feintuch") and P.T. Gough et al., Continuous Transmission FM Sonar with One Octave Bandwidth and No Blind Time, 131 IEE PROCEEDINGS, Part F, No. 3, 270-74 (June 1984) ("Gough"). 3. Claims 38, 39, 50, and 51 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Feintuch, Gough, and Rooney, III et al. (US 7,486,591 B2, issued Feb. 3, 2009) ("Rooney"). 2 A rejection of claim 57 under 35 U.S.C. Â§ 112, first paragraph, as failing to comply with the written description requirement, is withdrawn by the Examiner. Ans. 3. As such, there is no rejection of claim 57 before us. 2 Appeal 2018-003130 Application 12/000,097 DISCUSSION Rejection 1 In rejecting claims 35, 47, and 52 as indefinite, the Examiner states that for "claims 3 5 and 4 7, last line, it is questioned what 'rate of change of versus time' means. The dependency of claim 52 is questioned." Non-Final Act. 4. Appellants contend that "claims 3 5 and 4 7 refer to a change in the position of the reflector with respect to time" and that claim 52 depends from claim 34. Br. 6 ( citing Spec. ,r 31 ). The Examiner responds that Appellants' "arguments are not commensurate with the actual claims." Ans. 3. We agree with the Examiner that Appellants' argument for claims 3 5 and 47 is not responsive to the rejection because the argument omits the word "of' between "change" and "versus" in the phrase "rate of change of versus time." Because it is not apparent whether inclusion of the word "of' between "change" and "versus" as presently claimed is a typographical error, we agree with the Examiner that claims 35 and 47 are unclear. Claim 5 2 recites " [ t ]he of claim 3 4." Because it is not apparent whether the phrase "[t]he method according to claim 34," or a different phrase was intended, claim 52 is unclear. Accordingly, we sustain the Examiner's rejection of claims 35, 47, and 52 as indefinite. Rejection 2 Appellants argue that "[T]he claims recite transmitted signals that can be full bandwidth at any point in time and all the time ( continuously) as 3 Appeal 2018-003130 Application 12/000,097 shown in FIG. C." Br. 7. 3 According to Appellants, the transmitted signals of Feintuch and Gough "are not full frequency band signals but continuously time frequency modulated ( CTFM) signals with a single frequency transmitted at any point in time," although continuous in time. Id. Appellants make a related argument that because "Gough teaches a method that may be used only with specific types of signals, specifically, various forms of CTFM transmissions ... Gough does not disclose a continuously transmitted acoustic signal that has any frequency or frequency continuum, amplitude and/or phase characteristics," as claimed. Id. at 9. In response to the "full frequency" argument, the Examiner states that Appellants' argument "is not commensurate in scope with what is actually claimed," because the independent claims recite a "transmitted acoustic signal (that) has any frequency, bandwidth, time history and/or phase characteristics versus time," but does not require full frequency band or bandwidth signals. Ans. 4 ( emphasis added). As to whether Gough only teaches a specific signal, the Examiner responds that "the Continuous transmission FM ( CTFM) transmissions [ of Gough] read upon the instant broadly claimed 'transmitted acoustic signal has any frequency, bandwidth, time history and/or phase characteristics versus time."' Id. at 6. We agree with the Examiner on both points for the following reasons. 4 Appellants' arguments are premised on the term "any" in the phrase "any frequency, bandwidth, time history and/or phase 3 Appellants do not direct our attention to any portion of the Specification where Figure C shown on page of 7 of the Appeal Brief is disclosed. Compare Br. 7 and Spec. passim.; see also Ans. 4. 4 Although not required by our rules, we note that Appellants do not submit a Reply Brief to dispute any of the Examiner's assertions in the Answer. 4 Appeal 2018-003130 Application 12/000,097 characteristics," being equated to "full" or "all." The term "any," however, is defined as "a : one or more -used to indicate an undetermined number or amount" and "b : ALL-used to indicate a maximum or whole." MERRIAM- WEBSTER COLLEGIATE DICTIONARY (11th ed. 2005). Thus, Appellants' arguments are based on definition "b" whereas the Examiner relies on definition "a." In order to resolve this issue, we must ascertain the proper construction of the term "any," and we do so by giving the claim terms the broadest reasonable interpretation consistent with the Specification as it would be interpreted by one of ordinary skill in the art. See In re Suitco Surface, Inc., 603 F.3d 1255, 1259---60 (Fed. Cir. 2010); In re Morris, 127 F.3d 1048, 1054--55 (Fed. Cir. 1997). Although the claims are interpreted in light of the Specification, limitations from the Specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Appellants do not direct our attention to any portion of the Specification to support the construction that "any" means "all." See Br. passim. In the "SUMMARY OF CLAIMED SUBJECT MATTER ... " section of the Brief, Appellants list paragraphs 29--30 of the Specification as providing support for the phrase "transmitted acoustic signal has any frequency, bandwidth, time history and/or phase characteristics versus time." Br. 3. Paragraph 30 of the Specification describes various exemplary signals only some of which could be considered full bandwidth or full frequency, namely, "a wide band random (WBR) waveform having all frequencies simultaneously with unpredictable non repeatable amplitude and phase relationships at any time, and a pseudo random noise (PRN) waveform having all frequencies simultaneously with predictable and repeatable 5 Appeal 2018-003130 Application 12/000,097 amplitude and phase at any time." Spec. ,r 30. Other exemplary signals, however, are not disclosed as full bandwidth, including "a continuous wave (CW) having a constant frequency, a frequency modulated (FM) waveform having a continuously varying frequency, [ and] a phase modulated (PM) waveform having continuously varying phase." Spec. ,r 30. For these reasons, the broadest reasonable interpretation of the term "any," in light of the Specification, does not require the signals to have frequencies at full bandwidth, or all bandwidths. Rather, the term "any," as claimed, requires one or more frequency, which, as the Examiner finds, is met by Gough's FM waveform that has a "continuously changing frequency." Appellants do not provide persuasive argument or technical reasoning that the Examiner's finding is in error. Appellants also argue that because Feintuch switches between a "channel measurement mode" and a "normal mode," the modified Feintuch "does not change that underlying [(switching)] requirement." Br. 8. According to Appellants, because "Feintuch' s method, whether pulsed or continuous, requires sequential operation ... it cannot therefore meet the continuous detection/optimization capabilities that are cited in the present application. As such, there is no rationale to modify Feintuch to meet the rejected claims." Id. The Examiner responds that although Feintuch uses a transmit-wait- receive sequence, the rejection modifies "the non-continuous sequence (transmit-wait-receive) of Feintuch ... to a continuous transmission sequence so as to (Gough: abstract) provide for a single transmit/receive transducer." Ans. 4--5. According to the Examiner, because Gough's continuous transmission "results in the complete elimination of blind time 6 Appeal 2018-003130 Application 12/000,097 and a better range resolution," modifying Feintuch based on the teachings of Gough "would have been an obvious expedient to one of ordinary skill in this art." Id. at 5. Appellants' arguments are not persuasive because the arguments are an attack on Feintuch individually while the rejection is based on the combined teachings of Feintuch and Gough. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (explaining that one cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references). Here, the Examiner finds that Gough teaches continuous transmission, and proposes to modify the method of Feintuch "by utilizing a continuously transmitted acoustic signal at any frequency chosen by the operator," and reasons that the combination of Feintuch and Gough would have been obvious "to permit an improved sonar." Non-Final Act. 5. Appellants fail to persuasively apprise us of error in the Examiner's factual findings or rationale for the rejection. Appellants also argue that "the combination of Feintuch with Gough would change the principle of operation of Feintuch." Br. 8. Appellants assert "Feintuch requires the pulse-wait-receive sequence," whereas Gough is "used only with specific types of signals, specifically, various forms of continuously transmitted frequency modulation (CTFM) transmissions." Id. According to Appellants, because a "pulsed system is very different from the continuous system," the Examiner's proposed modification "would clearly change the principle of operation of Feintuch from one type of sonar system, those which operate based on pulsed signals, to a system that operate on an entirely different principle, continuous signals." Br. 8-9. 7 Appeal 2018-003130 Application 12/000,097 In response, the Examiner notes that Feintuch "is not a pulsed system," because Feintuch discloses "the optimum waveform for transmission is selected," which "is not indicia of a pulsed system but rather a continuous system (waveform)." Ans. 5---6. Thus, according to the Examiner, "the principle of operation of Feintuch et al (continuous) would NOT be changed by its modification by Gough et al." Id. at 6. Notwithstanding that the Examiner relies on Gough as disclosing continuous transmission, Appellants do not dispute the Examiner's position that Feintuch also can operate as a continuous system. Even if Feintuch teaches a pulsed system, Appellants' contention that the Examiner's proposed modification would change the principle of operation of Feintuch, is not persuasive. Feintuch is directed to an active sonar that includes a "sonar transmitter for transmitting sonar excitation signals" and "sonar receiver means for receiving the return from the excitation signal and processing the return signals to provide target indication signals." Feintuch 3: 1-8. Gough is directed to a sonar system having a transmitter that continuously transmits and a receiver that continuously receives echoes from targets that are continuously demodulated. Gough 274, ,r 6. Because both Feintuch and Gough are directed to sonar systems that operate under the same principle of transmitting a signal and receiving an echo of the signal, the Examiner's proposed modification would not change the principle of operation under which Feintuch is designed to operate. Moreover, given that Gough discloses that "[w]hen the length of the chirp Tc equals the pulse repetition period T, the chirped pulse transforms into a CTFM ( or CWFM) waveform," Appellants do not persuasively explain why Gough's CTFM 8 Appeal 2018-003130 Application 12/000,097 method of transmitting signals cannot be employed with the waveform based system of Feintuch. Gough 270, ,r 1; see also Feintuch Abstract. We have considered all of Appellants' arguments and are not persuaded of Examiner error in the rejection of claim 33, and, therefore, we sustain this rejection. Appellants do not provide separate argument for the patentability of any one of claims 34--37, 40-44, 52, 58, and 59, which depend from claim 33. Br. 6-9. We, thus, sustain the rejection of claims 34--37, 40-44, 52, 58, and 59 for the same reasons. With respect to independent claim 45 and claims 46-49 and 53-56, which depend from claim 45, Appellants rely on the same arguments as for the rejection of claim 33. Id. We, thus, also sustain the rejection of claims 45--49 and 53-56. Rejection 3 Claims 38 and 39 depend from claim 33, and claims 50 and 51 depend from claim 45. Br. 11-13 (Claims App.). For these dependent claims, Appellants rely on the same arguments as for the rejection of claim 33. Id. at 10. We, thus, sustain the rejection of claims 38, 39, 50, and 51 for the same reasons stated above. DECISION The Examiner's decision to reject claims 33-56, 58, and 59 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). 9 Appeal 2018-003130 Application 12/000,097 AFFIRMED 10