Ex Parte Driscoll et al

Patent Trial and Appeal Board

Sep 19, 2018

13950719 (P.T.A.B. Sep. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/950,719 07/25/2013
44765 7590 09/21/2018
INTELLECTUAL VENTURES - ISF
ATTN: DOCKETING, ISF
3150 - 139th Ave SE
Bldg.4
Bellevue, WA 98005
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Tom Driscoll
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.
0513-035-001-000000 6423
EXAMINER
SERAYDARYAN, HELENA H
ART UNIT PAPER NUMBER
3648
NOTIFICATION DATE DELIVERY MODE
09/21/2018 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):
ISFDocketlnbox@intven.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOM DRISCOLL, RODERICK A. HYDE, JORDIN T. KARE,
DAVID R. SMITH, and CLARENCE T. TEGREENE
Appeal2018-000355
Application 13/950, 719
Technology Center 3600
Before JAMES P. CAL VE, JEREMY M. PLENZLER, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 1-29, 32-34, 36-39, 43, 44, and 57. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART, and designate our affirmance of claims
12-14, 18, 19, 21-23, and 39 as NEW GROUNDS OF REJECTION
pursuant to our authority under 3 7 C.F .R. § 41. 50(b ). We also enter NEW
GROUNDS OF REJECTION, under 35 U.S.C. § 103, of (i) independent
1 Appellants identify the real party of interest as Elwha LLC, an affiliate of
The Invention Science Fund II, LLC. Appeal Br. 4.
2 Appeal is taken from the Final Office Action dated October 3, 2016, as
supplemented by the Advisory Action dated March 8, 2017.
Appeal2018-000355
Application 13/950,719
claims 1, 2, 4---6, 8, 10, 11, 20, 24--26, 28, 29, 32, 34, 38, and 43 under 35
U.S.C. § 103 as unpatentable over Auer and any one of Bas, Larsen, and
Scott; (ii) claims 7 and 33 as unpatentable over Auer and any one of Bas,
Larsen, and Scott, and in further view of Frysz; (iii) claim 9 as unpatentable
over Auer and any one of Bas, Larsen, and Scott, and in further view of
Wootton; (iv) claims 15-17, 36, and 37 as unpatentable over Auer and any
one of Bas, Larsen, and Scott, and further in view of Grimm; and ( v) claims
44 and 57 as unpatentable over Auer and any one of Bas, Larsen, and Scott,
and in further view of Kikuchi; all pursuant to our authority under 37 C.F.R.
§ 4I.50(b).
STATEMENT OF THE CASE
Claims 1, 25, and 44 are the independent claims on appeal. Claim 1,
reproduced below, is exemplary of the subject matter on appeal.
1. A wearable radar reflector, comprising:
a retroreflector configured to reflect radiation having a
frequency of 1 to 300 GHz; and
a garment configured to be worn by a pedestrian, wherein
the retroreflector is attached to the garment and configured to
retroreflect an information signal from a vehicle.
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Application 13/950,719
THE REJECTI0NS 3
I. Claims 1, 2, 4---6, 8, 10, 11, 24--26, 28, 29, 32, 34, 38, and 43
stand rejected under 35 U.S.C. § I02(a)(l) as anticipated by Auer (DE 10
2009 021 851 Al; published Dec. 24, 2009). 4,5
II. Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable
over Auer and Moore, JR. (US 2012/0256727 Al; published Oct. 11, 2012).
III. Claims 7 and 33 stand rejected under 35 U.S.C. § 103 as
unpatentable over Auer and Frysz (US 2010/0328049 Al; published Dec.
30, 2010).
IV. Claim 9 stands rejected under 35 U.S.C. § 103 as unpatentable
over Auer and Wootton (US 5,434,668; issued July 18, 1995).
V. Claims 18 and 39 stand rejected under 35 U.S.C. § 103 as
unpatentable over Auer and Bas (US 2004/0080447 Al; published Apr. 29,
2004).
VI. Claims 3, 12, 19, and 27 stand rejected under 35 U.S.C. § 103
as unpatentable over Auer and Larsen (US 2011/0128625 Al; published
June 2, 2011).
3 The Claims Appendix included in the Appeal Brief contains
typographical errors indicating that claims 2--4, 12, 15, and 18-24 depend
from "claim O." See Appeal Br. 39--43. We rely on the Claims Appendix
included in the Reply Brief, which indicates claims 2--4, 12, 15, and 18-24
depend from independent claim 1. See Reply Br. 7-10.
4 We refer to the English translation provided in the record.
5 The inclusion of claims 13-17 and 20 in the statement of rejection is a
typographical error in view of the lack of findings regarding claims 13-17
and 20 in the body of the rejection, and Rejections II, VII, and VIII. See
Final Act. 6-10.
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Application 13/950,719
VII. Claims 13 and 14 stand rejected under 35 U.S.C. § 103 as
unpatentable over Auer, Larsen, and Grimm (US 2011/0090093 Al;
published Apr. 21, 2011 ).
VIII. Claims 15-17, 36, and 37 stand rejected under 35 U.S.C. § 103
as unpatentable over Auer and Grimm.
IX. Claims 21-23 stand rejected under 35 U.S.C. § 103 as
unpatentable over Auer and Scott (US 2013/0015977 Al; published Jan. 17,
2013).
X. Claims 44 and 57 stand rejected under 35 U.S.C. § 103 as
unpatentable over Auer and Kikuchi (US 2008/0042894 Al; published Feb.
21, 2008).
ANALYSIS
Rejection I
Regarding independent claim 1, the Examiner finds that Auer teaches
a wearable radar reflector as claimed, including "a retroreflector." Final
Act. 6-7 (citing, inter alia, Auer ,r 7). The Examiner also finds that Auer
teaches the claimed 1 to 300 GHz range by disclosing that "the ...
frequency range can be adjusted by the design of the reflective elements."
Id. at 6 ( citing Auer ,r 26 ( disclosing that the dimensions of the strip-shaped
elements is "determined by the search frequency of a radar locating device 4
adapted to the wavelength of the reflecting radar beams")).
Appellants argue that "[t]he reflective object in Auer is described as a
'radar-reflecting reflector,' not a retroreflector." Appeal Br. 14; see also
Reply Br. 3. Appellants submit that "a retroreflector is a term of art in
physics that suggests specific geometries (such as a comer cube, a cat's-eye
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Application 13/950,719
reflector, or a Van Atta array) which reflect an incoming beam in only one
direction, back towards its source." Id. (citing THE IEEE STANDARD
DICTIONARY OF ELECTRICAL AND ELECTRONICS TERMS, 925 ( 6th ed., IEEE
Std. 100-1996) ("retro-reflector (illuminating engineering): A device
designed to reflect light in a direction close to that at which it is incident,
whatever the angle of incidence")). Id. Appellants argue that "Auer
describes a geometry of thin parallel fibers with a spacing selected to
increase their reflective properties for a specific frequency, but with no
effect on the direction of the reflected beam." Id.
The Specification discloses that
"[ r ]etroreflector," as that term is used herein, includes
"passive" retroreflectors that reflect a signal back in the direction
from which it came (e.g., a comer cube or a Van Atta array), and
also "active'" retroreflectors which boost or filter a received
signal or send a modulated response signal back in the direction
from which a signal was received (e.g., a Van Atta array
including switches for modulation of the retroreflection, as
described in Thornton, et al., "Modulating retro-reflector as a
passive radar transponder," Elect. Lett. (Sept. 1998)
34(19): 1880-1881, which is incorporated by reference herein).
Spec. 4: 19--26 ( emphasis added). This passage from the Specification
discloses that the claim term "retroreflector" is meant to include both passive
and active retroreflectors, while also distinguishing between them; however,
this passage does not expressly provide a definition of the claim term
"retroreflector." We agree with Appellants that the claim term
"retroreflector" is a term of art, with a particular meaning that is distinct
from the term "reflector," or the term "radar reflector," as used in Auer
(which only reflects electromagnetic radiation back along the incident path
when the reflector's surface is perpendicular to the incident path). We also
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accept Appellants' definition as set forth in the IEEE Standard Dictionary of
Electrical and Electronics Terms, as set forth supra. Cf ENGLISH OXFORD
LIVING DICTIONARIES
(https:// en.oxforddictionaries.com/ definition/us/retroreflector) (last visited
Sept. 6, 2018) ( defining "retroreflector" to mean "[a] device which reflects
light back along the incident path, irrespective of the angle of incidence")
( emphasis added); https:// en.oxforddictionaries.com/ definition/us/reflector
(last visited Sept. 6, 2018) ( defining "reflector" to mean-more broadly than
a retroreflector, "[a] piece of glass, metal, or other material for reflecting
light in a required direction"). Notably, Appellants' definition is consistent
with the use of the claim term "retroreflector" in the prior art. 6
Auer discloses a "radar reflective reflector," but does not disclose a
retroreflector, as claimed. See, e.g., Auer ,r 7. In particular, Auer is
concerned with an "effective reflecti[ on] surface" as "an object-specific
parameter" (wherein the object may be a pedestrian or cyclist). Id. ,r,r 7, 8.
Auer discloses that the construction of reflector 1 (which is formed of
individually spaced, strip-shaped, conductive elements 7 arranged in a
pattern) results in a significant increase in the effective reflecting surface of
the object, "as long as the individual element lengths the wavelengths of
roughly correspond to reflecting radar beams [sic]." Id. ,r,r 24--27, Fig. 2.
Auer also discloses that "[ t ]he spacing of the individual elements ... is
6 See Bas ,r 3 ("[ c ]omer reflector structures are known in the art as means
for reflecting electromagnetic radiation ... including radar, ... back towards
the source of the energy"); Larsen ,r 2 ("comer cube retro-reflectors
... redirect an incoming beam of incident light from a wide range of
viewable angles back towards the source of the incident light without the
need for moving optics or other assemblies").
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essential, as the progressively increased with increasing number of
individual elements 7 per surface of the reflector 1 [sic]." J d. Thus,
although Auer's reflector 1 reflects radar from an improved effective
reflection surface, Auer does not disclose that the reflected radiation is
reflected back along the incident path, irrespective of the angle of incidence,
as required by the claim term "retroreflector."
Accordingly, we do not sustain the Examiner's rejection of
independent claim 1, and claims 2, 4--6, 8, 10, 11, and 24, which depend
from claim 1. The Examiner relies on the same finding with respect to Auer
as relied on in the rejection of claim 1, as set forth supra, for disclosing the
step of "retroreflecting the radar signal" as recited in independent claim 25,
and, therefore, for essentially the same reasons as set forth supra, we do not
sustain the Examiner's rejection of independent claim 25 and claims 26, 28,
29, 32, 34, 38, and 43, which depend from claim 25. Final Act. 8-9.
Re} ection II
Regarding claim 20, which depends from independent claim 1, the
Examiner's reliance on Moore, JR. for teaching "a second retroreflector
attached to ... [a] garment," in view of Moore, JR.'s disclosure of the use of
two antennas for communicating signals within an RFID technology
application, does not cure the deficiencies in the Examiner's reliance on
Auer for teaching a (first) retroreflector, for the reasons set forth supra with
respect to claim 1. Final Act. 11 (citing Moore, JR. ,r 15). Notably, the
claim term "retroreflector" does not appear in Moore, JR.
Accordingly, we do not sustain the Examiner's rejection of claim 20.
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Re} ection III
Regarding claims 7 and 33, which depend from independent claims 1
and 25, respectively, the Examiner's reliance on Frysz for teaching that "the
retroreflected radar signal includes the demographics of the pedestrian" does
not cure the deficiencies in the Examiner's reliance on Auer for teaching a
retroreflector, for the reasons set forth supra with respect to claim 1. Final
Act. 11-12 (citing Frysz ,r 15). Notably, the claim term "retroreflector" does
not appear in Frysz.
Accordingly, we do not sustain the Examiner's rejection of claims 7
and 33.
Re} ection IV
Regarding claim 9, which depends from independent claim 1, the
Examiner's reliance on Wootton for teaching that "the response signal is
frequency encoded by vibration of the retroreflector" does not cure the
deficiencies in the Examiner's reliance on Auer for teaching a retroreflector,
for the reasons set forth supra with respect to claim 1. Final Act. 12 ( citing
Wootton 2:36-37 ("information obtained is a vibration signature of the
target"). Notably, the claim term "retroreflector" does not appear in
Wootton.
Moreover, we are persuaded by Appellants' argument that Wootton
fails to disclose frequency encoding the response signal from a reflector by
vibrating the reflector, as required in claim 9. Appeal Br. 22. Rather, as
argued by Appellants, Wootton discloses interrogating a target using a laser
vibrometer to identify a target by measuring the vibration of the target. Id.;
see, e.g., Wootton, Abstract.
Accordingly, we do not sustain the Examiner's rejection of claim 9.
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Rejection V
Regarding claims 18 and 39, the Examiner relies on Bas for teaching
"an omnidirectional comer reflector ... configured to control the angular
divergence of the retroreflected signal," and reasons that it would have been
obvious "to have modified the retroreflector of Auer with the properties of
[the] Bas retroreflector so that at least a portion of the reflected
electromagnetic radiation can be optimally returned regardless of the
position of the illumination source with respect to the object." Final Act.
13-14 (citing Bas ,r,r 2, 7, 16).
Appellants argue that "the Examiner failed to show that claim 1 is
primafacie anticipated by Auer, because ... [Auer] does not teach or
suggest a retroreflector, as recited ... [in] claim 1," and that"[ w ]hile Bas
does teach comer reflectors, they are tiny enough to be embedded in a
coating, and thus are not suitable for reflecting the frequencies recited in
claims 1 and 25." Appeal Br. 24. Appellants submit that
[ w ]hile it is true that changing the size of an element is normally
routine in the art, this is not true when the change in size scale is
large enough to defeat the purpose of the original invention. The
omni-directional comer reflectors of Bas must be small enough
to be embedded in a coating with a variety of random orientations
in order to maintain their omnidirectional function. This is not
possible for reflectors that function in the recited frequency
ranges, which have a size scale on the order of centimeters or
larger.
Id. at 24--25.
The Examiner responds that Appellants' arguments "amount to a
general allegation that ... it would not be possible to maintain the
omnidirectional function of the smaller size comer reflectors of Bas for
recited frequency ranges," and the Examiner determines that "[t]he
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omnidirectional reflection function of the reflector depends on the geometry
and should not change depending on the size change of the comer reflector."
Ans. 7-8.
Appellants reply that
[ t ]he comer reflectors of Bas must be embedded with a variety
of random orientations in order to maintain their omnidirectional
function. This is clear and obvious physics, and is also fully
described in Bas. . . . It is not so much that the larger comer
reflectors do not function in the same way as smaller ones, as that
it is not practical to embed centimeter-plus size comer cubes into
a paint that is meant to be applied to an object. Thus, it would
defeat a primary purpose of Bas (a reflective paint) to use comer
cubes large enough to reflect vehicle radar.
Reply Br. 5 ( citing Bas ,r,r 16, 17, 20).
We determine that the Examiner's reliance on Bas cures the
deficiencies in the Examiner's reliance on Auer for disclosing a
retroreflector ( or for retroreflecting a radar signal), as discussed with respect
to independent claims 1 and 25 supra. Bas discloses that "[ c ]omer reflector
structures are known in the art as means for reflecting electromagnetic
radiation (energy or field strength), including radar ... back towards the
source of the energy." Bas ,r 3. Bas also discloses that a known application
for "comer reflectors" is on "signs," and that "[g]enerally, comer reflectors
... [ on sign applications] are static structures on the order of tens of
centimeters in size." Id. With respect to Bas' improvement (i.e., a miniature
omni-directional comer reflector (MOCR) disposed in a coating (see, e.g.,
Bas ,r,r 13, 16), Bas discloses that the MOCR coating "may be utilized to
specifically mark objects in the non-visible electromagnetic spectrum, as for
example in the budding technologies of road recognition systems and
automobile autopilots," which suggests the use of retroreflectors-in general
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and not the improved MOCR coatings, in Appellants' field of object
identification by vehicles (id. ,r 20). Thus, we determine that it would have
been obvious to one skilled in the art to have substituted Auer's radar
reflective reflector with a known comer reflector 7 ( which is one type of
retroreflector), which may be worn by Auer's pedestrian or cyclist, to reflect
radar back towards Auer's radar locating device or vehicle, as taught in Bas,
to increase the safety of the pedestrian or cyclist moving in traffic. See, e.g.,
Auer ,r 8 ( disclosing that a vehicle is equipped with a radar detection
device); ,r 9 ( disclosing that the radar-reflecting reflector and radar detection
device is intended to increase the safety of the pedestrian or cyclist moving
in traffic).
Alternatively, we determine that Bas is evidence that a radar-
reflecting reflector and a retroreflector for reflecting electromagnetic
radiation are known substitutes in the field of radar detection devices,
notwithstanding that the focus of Bas is an improvement over known comer
reflectors, namely, to use miniature omni-directional comer reflectors in a
reflective coating. See Bas, Abstract; KSR Int 'l Co. v. Teleflex, Inc., 550
U.S. 398,416 ("[Where] a patent claims a structure already known in the
prior art that is altered by the mere substitution of one element for another
known in the field, the combination must do more than yield a predictable
result."); In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR,
550 U.S. at 418-21 ("A reference may be read for all that it teaches,
including uses beyond its primary purpose"); In re Gurley, 27 F.3d 551, 553
7 To clarify, our modification involves the known comer reflector, as
disclosed in Bas, and not the MOCR improvement, which is the subject
matter of Bas' invention.
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(Fed. Cir. 1994) ("[a] known or obvious composition does not become
patentable simply because it has been described as somewhat inferior to
some other product for the same use").
Because our proposed modification of Auer involves comer reflectors
(i.e., retroreflectors) that are not miniature, but rather, on the order of tens of
centimeters in size, as taught by Bas supra, Appellants' argument is moot.
Appellants do not dispute the Examiner's finding, as set forth supra,
that Auer teaches a reflector configured to reflect radiation having a
frequency of 1 to 300 GHz, as claimed, by disclosing that the structure of
Auer' s reflector is adjustable based on the search frequency of a radar
locating device. See, e.g., Auer ,r 26. We interpret the Examiner's
determination as relying on design choice, and we agree with the Examiner
that it would have been an obvious design choice to configure a
retroreflector to reflect radiation having a frequency of 1 to 300 GHz. Scott
is evidence that radio transceivers are well-known as operating in a
millimeter band, and Scott specifically teaches that operating a transceiver in
the 60 GHz band, which is within the claimed range, is preferable for a
retroreflective target. See Scott ,r 115. Notably, "a millimeter band"
generally refers to "the wavelength of radio signals on frequencies between
30 GHz and 300GHz," which significantly overlaps the claimed range.
https://fcc.gov/wireless /bureau-divisions/broadband-division/millimeter-
wave (last visited Sept. 18, 2018). This overlap of the claimed range creates
a prima facie case of obviousness. See In re Applied Materials, Inc., 692
F.3d 1289, 1295 (Fed. Cir. 2012) ("Such overlap itself provides sufficient
motivation to optimize the ranges.").
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Accordingly, we sustain the Examiner's rejection of claims 18 and 39.
Because we rely on Bas for disclosing a retroreflector as recited in
independent claims 1 and 25, however, we designate our affirmance as a
new ground of rejection, pursuant to our authority under 37 C.F.R. §
41.50(b ), to provide Appellants a fair opportunity to respond.
Re} ection VI
Dependent claims 3 and 2 7
Regarding claims 3 and 27, the Examiner relies on Larsen for teaching
"[a] retroreflector ... configured to boost the power of the retroreflected
information signal." Final Act. 14, 16 ( citing Larsen ,r 31 ( disclosing that
"the reflectance of the photonic crystal layer is changed by varying the
voltage across the conductive layers by the modulation source")).
Appellants argue, inter alia, that "while Larsen teaches a variable
reflectance provided by the photonic crystal layer, it does not teach or
suggest reflecting more light than impinges on the surface of the reflector
('boosting' the power of the signal) as recited in these claims." Appeal Br.
28.
We are persuaded by Appellants' argument. Paragraph 31 of Larsen
discloses "a variably reflective surface 202," wherein "[t]he reflectance of
the photonic crystal layer 210 is changed by varying the voltage across the
conductive layers 208, 212 by the modulation source 216," however, a
preponderance of the evidence does not support the Examiner's finding that
this passage discloses that the retroreflector is configured to boost the power
of the retroreflected information signal, which implies increasing the power
to a level greater than the power of the signal received by the retroreflector,
as claimed.
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Accordingly, we do not sustain the Examiner's rejection of dependent
claims 3 and 27.
Dependent claims 12 and 19
Regarding claims 12 and 19, the Examiner relies on Larsen for
teaching "a low-power retro-reflective communication device" that "only
requires power for the modulator circuit," and reasons that it would have
been obvious "to have modified the retroreflector of Auer with the
retroreflector property of Larsen in order to communicate telemetry
information to the remote system." Final Act. 15 (citing Larsen ,r 36). The
Examiner also relies on Larsen for teaching "[a] retroreflector ... [having] a
frequency dependent response," and reasons that it would have been obvious
"to have modified the retroreflector of Auer with the retroreflector property
of Larsen to increase the effective amount of information per transition."
Final Act. 15-16 (citing Larsen ,r,r 31, 32). Appellants do not dispute the
Examiner's findings or reasoning with respect to Larsen. See Appeal Br.
25-28; Reply Br. 3-5.
Appellants argue that "the Examiner failed to show that claim 1 is
prima facie anticipated by Auer, because ... [Auer] does not teach or
suggest a retroreflector, as recited ... [in] claim 1," and that "[t ]his
deficiency is not repaired by the addition of Larsen." Appeal Br. 29-30.
We determine that the Examiner's reliance on Larsen cures the
deficiencies in the Examiner's reliance on Auer for disclosing a
retroreflector ( or for retroreflecting a radar signal), as discussed with respect
to independent claims 1 and 25 supra. Larsen discloses "a low-power retro-
reflective communication system that reflects modulated light back in
substantially the same direction as the light source using a retro-reflector,"
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for example, "a comer-cube retro-reflector." Larsen, Abstract. Larsen also
discloses that "[ t ]he term light is used throughout this disclosure for
convenience only and is intended to include any frequency of
electromagnetic radiation," and "[a]s one of ordinary skill in the art would
appreciate, the aspects of the present disclosure could be applied to ...
radar applications." Id. ,r 30 (emphasis added). Larsen further discloses
that an advantage of a comer-cube retroreflector is that they are "self-
aiming, thereby reducing the need for power or time to correctly aim the
communications device." Id. ,r 35. Larsen also discloses that the comer-
cube retroreflectors may be applied to "objects of interest." Id. ,r 49. Thus,
we determine that it would have been obvious to one skilled in the art to
have substituted Auer's radar reflective reflector with a comer-cube reflector
(which is one type of retroreflector), which may be worn by Auer's
pedestrian or cyclist, to reflect radar back towards Auer's radar locating
device or vehicle to provide self-aiming, as taught by Larsen, and to increase
the safety of the pedestrian or cyclist moving in traffic. See, e.g., Auer ,r,r 8,
9; KSR, 550 U.S. at 416.
As set forth supra, we are not apprised of error in the Examiner's
determination that it would have been an obvious design choice to configure
a retroreflector to reflect radiation having a frequency of 1 to 300 GHz.
Accordingly, we sustain the Examiner's rejection of claims 12 and 19;
however, because we rely on Larsen for disclosing a retroreflector as recited
in independent claims 1 and 25, we designate our affirmance as a new
ground of rejection, pursuant to our authority under 37 C.F.R. § 41.50(b ), to
provide Appellants a fair opportunity to respond.
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Re} ection VII
Regarding claims 13 and 14, the Examiner relies on Grimm for
teaching that "the retroreflector is configured to use power only under a
predetermined condition," such as the time of day (i.e., "at all times during
darkness [or] low lighting"), and reasons that it would have been obvious "to
have modified the wearable radar reflector of Auer with the powering
property of Grimm's communication system to maintain longevity of the
power source." Final Act. 16-17 (citing Grimm ,r 29). Appellants do not
dispute the Examiner's findings or reasoning with respect to Grimm. See
Appeal Br. 25-28; Reply Br. 3-5.
Appellants argue that "the Examiner failed to show that claim 1 is
prima facie anticipated by Auer, because ... [Auer] does not teach or
suggest a retroreflector, as recited ... [in] claim 1," and that "[t ]his
deficiency is not repaired by the addition of Larsen." Appeal Br. 29-30.
However, for the reasons stated supra, we determine that with respect to
claim 1, Larsen cures the deficiencies in the Examiner's reliance on Auer for
disclosing a retroreflector ( or for retroreflecting a radar signal).
Appellants also argue that "Larsen does not actually teach power
boosting" and that Grimm fails to remedy the deficiency in the Examiner's
reliance on Larsen for power boosting. Appeal Br. 29-30. However,
"power boosting" is not a requirement of the retroreflector as recited in
claims 1, 12, 13, and 14; rather, claims 3 and 27 recite limitations regarding
boosting the power of the reflected radar signal, which are subject to
Rejection VI supra.
As set forth supra, we are not apprised of error in the Examiner's
determination that it would have been an obvious design choice to configure
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a retroreflector to reflect radiation having a frequency of 1 to 300
GHz.Accordingly, we sustain the Examiner's rejection of claims 13 and 14.
Because we rely on Larsen for disclosing a retroreflector as recited in by
independent claim 1 and 25, however, we designate our affirmance as a new
ground of rejection, pursuant to our authority under 37 C.F .R. § 41.50(b ), to
provide Appellants a fair opportunity to respond.
Re} ection VIII
Regarding claims 15-17, 36, and 37, which depend from independent
claims 1 and 25, respectively, the Examiner's reliance on Grimm for
teaching that the reflector may further comprise "an accelerometer" and for
teaching "storing movement data for the pedestrian," does not cure the
deficiencies in the Examiner's reliance on Auer for teaching a retroreflector,
as recited in claims 1 and 25, for the reasons set forth supra. Final Act.
18-20 ( citing Grimm ,r 23). Notably, the claim term "retroreflector" does
not appear in Grimm.
Accordingly, we do not sustain the Examiner's rejection of claims
15-17, 36, and 37.
Rejection IX
Claims 21, 22, and 23, each of which depends from independent claim
1, recite, in relevant part, different types of retroreflectors: a comer cube, a
composite comer cube, and a Van Atta array. Appeal Br. 41 (Claims App.);
see Spec. 4: 19-23 (listing a comer cube and a Van Atta array as examples of
retroreflectors ). The Examiner relies on Scott for disclosing "a metallic
comer-cube retro reflector" and also "a passive Van-Atta type retro
reflector." Final Act. 21-22 ( citing Scott ,r 26). The Examiner reasons that
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it would have been obvious "to have modified the wearable radar reflector of
Auer with the retro-reflector of Scott to enable detection of the target." Id.
Appellants argue that "the Examiner failed to show that claim 1 is
prima facie anticipated by Auer, because ... [Auer] does not teach or
suggest a retroreflector, as recited in claim 1." Appeal Br. 34. Appellants
also argue that "[ s ]ince Auer [does] not teach or suggest the use of a
retroreflector, there would be no motivation to combine it with the comer
cubes or Van Atta arrays disclosed in Scott." Id.
We determine that the Examiner's reliance on Scott cures the
deficiencies in the Examiner's reliance on Auer for disclosing a
retroreflector, as discussed with respect to independent claim 1 supra. Scott
discloses that retro-reflectors are a "simple" and "practical" substitute for
"prior art ... powered transponders and transmitters," such as radio
frequency systems. Scott ,r,r 6, 8. Scott's invention "relates to a hand-held
electromagnetic transceiver acting as a pulsed RADAR ... device that can
detect the presence of one or many objects via passive retro-reflectors that
are close or distant in a preferred angle of detection and to ignore any retro-
reflector not within that preferred angle of detection." Id. ,r 21. Scott further
discloses that an advantage of its invention is "that it can detect the presence
of several passive retro-reflectors located at any range within the
predetermined direction." Id. ,r 11.
Scott specifically discloses
[a] system comprising RADAR and retro-reflector operating as
separate devices. The radar is configured to transmit a beam of
radio frequency in the direction of interest and to detect the
reflected signal from a compatible retro-reflector. . . . In a
preferred embodiment the retro-reflector would be a passive
Van-Atta ... retro-reflector .... A metallic comer cube retro-
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reflector could be used in situations where physical size is less
important.
Scott ,r 90.
As set forth supra, we are not apprised of error in the Examiner's
determination that it would have been an obvious design choice to configure
a retroreflector to reflect radiation having a frequency of 1 to 300 GHz.
Thus, we determine that it would have been obvious to one skilled in
the art to have substituted Auer's radar reflective reflector with a
retroreflector, including a comer cube, composite comer cube, and/or Van
Atta array, as disclosed by Scott, which may be worn by Auer' s pedestrian
or cyclist, to enable detection of the target (as determined by the Examiner
supra), and also to detect the presence of several passive retro-reflectors at
any range within the predetermined direction, as taught in Scott, to increase
the safety of the pedestrian or cyclist moving in traffic. See, e.g., Auer ,r,r 8,
9.
Alternatively, we determine that Scott is evidence that a radar-
reflecting reflector and a retroreflector for reflecting electromagnetic
radiation are known substitutes in the field of radar detection devices. KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 ("[Where] a patent claims a
structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result"); Mouttet, 686 F.3d at 1331,
citing KSR, 550 U.S. at 418-21 ("A reference may be read for all that it
teaches, including uses beyond its primary purpose").
We are also not persuaded by Appellants' argument, as set forth
supra, that because Auer discloses a radar reflector instead of a
retroreflector, there would be no motivation to substitute Auer's radar
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reflector with Scott's retroreflectors (i.e., comer cubes or Van Atta arrays).
To the contrary, as set forth supra, Scott suggests that such retroreflectors
are a simple and practical substitute for paired radar detection systems.
Accordingly, we sustain the Examiner's rejection of claims 21, 22,
and 23. Because we rely on Scott for disclosing a retroreflector as recited in
independent claim 1, however, we designate our affirmance as a new ground
of rejection, pursuant to our authority under 37 C.F.R. § 4I.50(b), to provide
Appellants a fair opportunity to respond.
RejectionX
Regarding independent claim 44, the Examiner finds that Auer
teaches a method for preventing collisions, comprising sending a radar
signal having a frequency of 1 to 300 GHz from an operating vehicle, and
receiving a retroreflected response radar signal from a pedestrian in response
to the sent signal, as claimed. Final Act. 22 (Auer ,r,r 1, 2, 26). The
Examiner determines that Auer fails to disclose taking action to prevent the
vehicle from striking the pedestrian, or to mitigate the effect of striking the
pedestrian, as claimed, and relies on Kikuchi for teaching a vehicle control
system with a controller that "'performs a deceleration control of the vehicle
with respect to an object existing in a traveling direction of the vehicle."' Id.
at 22-23 (citing Kikuchi ,r,r 11-12). The Examiner reasons that it would
have been obvious "to have modified the method of Auer with the action
step of Kikuchi to provide a vehicle control system which prevents the
vehicle control from being activated with respect to a stationary object
which is not an obstacle to a subject vehicle." Id. at 23 (citing Kikuchi ,r 7).
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Claim 57, which depends from claim 44, recites, in relevant part,
"wherein the radar signal has a frequency of 70 to 85 GHz." Appeal Br. 43
(Claims App.).
The Examiner's reliance on Kikuchi for teaching the preventive action
step does not cure the deficiencies in the Examiner's reliance on Auer for
teaching a retroreflector, for the reasons set forth supra with respect to claim
1. Notably, the claim term "retroreflector" does not appear in Kikuchi.
Accordingly, we do not sustain the Examiner's rejection of
independent claim 44, and claim 57 depending therefrom.
NEW GROUND OF REJECTION
We enter a new ground of rejection for independent claims 1 and 25,
and dependent claims 2, 4---6, 8, 10, 11, 20, 24, and 26, under 35 U.S.C.
§ 103, as unpatentable over Auer and any one of Bas, Larsen, and Scott,
based on the findings and reasoning, as set forth supra with respect to
Rejections V, VI, and IX, as applied to independent claims 1 and 25, and the
additional findings presented infra, pursuant to our authority under 3 7
C.F.R. § 41.50(b).
Independent claims 1 and 25
We rely on Scott in each case as evidence that it would have been an
obvious design choice to configure a retroreflector to reflect radiation having
a frequency of 1 to 300 GHz, as set forth supra.
Further, with respect to claim 1, we understand the claim term
"information signal"-as in "the retroreflector is ... configured to
retroreflect an information signal from a vehicle" ( emphasis added), to be
the signal transmitted from the vehicle to the reflector, i.e., incoming into the
reflector. The Specification discloses that a characteristics of the incoming
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signal includes, for example, its frequency (which "may indicate that it is
used for parking purposes rather than for collision avoidance purposes")
(Spec. 7:4--5), and we determine that frequency is inherent "information" for
signals sent from the radar devices of each of Bas, Larsen, and Scott. Claim
25 requires "the retroreflection [to] indicate[] information to the radar source
about a position of ... [the object]." Appeal Br. 41 (Claims App.). We also
determine that inherent in the signal that is reflected back to the reflector is
information about the position of an object, namely, that an object with a
reflector is, in fact, positioned within the range of the radar source.
Dependent claims 2 and 26
The Specification defines "passive" reflection as "retroreflectors that
reflect a signal back in the direction from which it came (e.g., a comer cube
or a Van Atta array)," as compared to "active" reflection, wherein reflectors
"boost or filter a received signal or send a modulated response signal back in
the direction from which a signal was received (e.g., a Van Atta array
including switches for modulation of the retroreflection ... ). " Spec. 4: 19--
24. Bas generically discloses that "[ c ]omer reflector structures are known in
the art as means for reflecting electromagnetic radiation," and thus, discloses
that the retroreflector is configured to passively reflect the information
signal, as claimed. Bas ,r 3. Similarly, Larsen discloses comer-cube
reflectors as generally designed to "redirect an incoming beam of incident
light from a wide range of viewable angles back towards the source of the
incident light without the need for moving optics or other assembles"-i.e.,
passive retroreflectors. Larsen ,r 2. Likewise, Scott discloses using "passive
retro-reflectors attached to or worn by people or objects." Scott, Abstract.
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Thus, Bas, Larsen, and Scott disclose known "passive" retroreflectors,
and we determine that it would have been obvious to one of skill in the art to
substitute Auer's radar-reflective reflector with known passive retro-
reflectors, such as comer cube or Van Atta array reflectors, as taught in Bas,
Larsen, and Scott, to reflect radar back towards Auer' s radar locating device
or vehicle, as taught in Bas, Larsen, and Scott, to increase the safety of the
pedestrian or cyclist moving in traffic, as taught in Auer.
Dependent claims 4-6, 28, and 32
Appellants do not present arguments regarding the Examiner's
rejection of claims 4---6, 28, and 32, apart from the arguments presented for
independent claims 1 and 25. Appeal Br. 8-37; Reply Br. 3-5. Except for
the disclosure of a retroreflector, we are not apprised of error in the
Examiner's findings that Auer discloses "a radar-reflective reflector" that is
configured to receive the information signal (i.e., radar beams emitted from
a radar tracking device) and to emit (or transmit) a response signal (i.e., a
reflector having a reflection surface for reflecting back radar beams to the
radar device), as required by claims 4 and 28, and adopt them as our own.
Final Act. 7, 9; see Auer ,r,r 7, 8. Regarding claims 5, 6, and 32, the
Specification defines "identifying information" as "position or
demographics." Spec. 2:13-15 ("[t]he retroreflector may ... emit a
response signal, which may include identifying information for the
pedestrian (e.g., position or demographics)." As discussed supra, we
determine that inherent in the signal that is reflected back to the reflector is
information about the position of an object, namely, that an object with a
reflector (i.e., a pedestrian as disclosed by Auer) is, in fact, positioned within
the range of the radar source.
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Dependent claims 8 and 29
Appellants do not present arguments regarding the Examiner's
rejection of claims 8 and 29, apart from the arguments presented for
independent claims 1 and 25. Appeal Br. 8-37; Reply Br. 3-5. The
Specification discloses that "[ t ]he response signal may be encoded, for
example, by a spatial dependence of the retroreflection" (Spec. 2: 15-18),
and that "[ t ]he placement of [the] retroreflectors within the array may create
a characteristic spatial pattern at the radar receiver" (id. at 7:22-23). Except
for the Examiner's reliance on Auer for disclosing a retroreflector, we are
not apprised of error in the Examiner's finding that Auer's radar-reflective
reflector encodes the response signal by a spatial dependence of the
reflection, due to the "spacing of the individual elements to one another"
within the reflective surface, and adopt the Examiner's finding as our own.
Final Act. 7 (citing Auer ,r,r 3, 26, 27).
Dependent claims 10, 11, and 34
As discussed supra, "signal frequency" is an inherent characteristic of
the information signal sent by Auer's radar source to Auer's reflector.
Further, Auer's response signal is emitted in response to a characteristic of
the information signal (i.e., signal frequency), as Auer discloses that the
dimensions of individual elements 7 of Auer' s reflector are "determined by
the search frequency of ... [the] radar locating device 4," as required by
claims 10 and 11. Auer ,r 26.
Dependent claim 20
Appellants do not present arguments regarding the Examiner's
rejection of claim 20, apart from the arguments presented for independent
claim 1. Appeal Br. 8-37; Reply Br. 3-5. Except for the Examiner's
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reliance on Auer for disclosing a retroreflector, we find that Auer discloses
that "parts of clothing and/ or protective clothing of the object 2 [(i.e., a
pedestrian)] are covered with the radar reflective fabric 9, for example, a
motorcycle or bicycle helmet, or the radar reflective fabric 9 is sewn onto
the clothing itself." Auer ,r 30. We determine that, in view of Auer's
teaching that the radar fabric 9 may be discretely applied to helmets and
fabrics that it would be obvious to one of ordinary skill in the art that a
pedestrian may have a more than one radar fabric 9 attached to their
garment, as required by claim 20. See also Scott ,r 106 (disclosing with
reference to Figures 3A, 3B, that "light emitted by the transceiver must be
incident on at least some retro-reflective material 12," wherein Figures 3A,
3B depict several retroreflectors attached to the garment of a person).
Dependent claims 24 and 43
As set forth supra with respect to the frequency range recited in claim
1, we are not apprised of error in the Examiner's determination that it would
have been an obvious design choice to configure a retroreflector to reflect
radiation having a frequency of 1 to 300 GHz. Similarly, we are not
apprised of error in the Examiner's determination that it would have been an
obvious design choice to configure a retroreflector to reflect radiation having
a frequency of 70 to 85 GHz, as recited in claims 24 and 43.
Dependent claim 3 8
Appellants do not present arguments regarding the Examiner's
rejection of claim 38, apart from the arguments presented for independent
claim 25. Appeal Br. 8-37; Reply Br. 3-5. The Examiner finds that "Auer
teaches the method of preventing collision ... comprising reporting
movement data for the pedestrian." Final Act. 9 ( citing Auer ,r,r 7, 20, 22).
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Except for the Examiner's reliance on Auer for disclosing a retroreflector,
we agree with the Examiner's finding that Auer's radar tracking device
reports movement data for the pedestrian, as required by claim 38, by
detecting and signaling (i.e., reporting) the position of pedestrians.
NEW GROUND OF REJECTION
Dependent claims 7 and 33
We enter a new ground of rejection for claims 7 and 33, under 35
U.S.C. § 103, as unpatentable over Auer and any one of Bas, Larsen, and
Scott, and further in view of Frysz, based on the findings and reasoning, as
set forth supra with respect to Rejections V, VI, and IX, as applied to
independent claims 1 and 25, and the additional findings presented infra,
pursuant to our authority under 3 7 C.F .R. § 41. 50(b ).
Appellants do not present arguments regarding the Examiner's
rejection of claims 7 and 33, apart from the arguments presented for
independent claims 1 and 25. Appeal Br. 20-22; Reply Br. 3-5. Except for
the Examiner's reliance on Auer for disclosing a retroreflector, we adopt the
Examiner's findings and reasoning with respect to claims 7 and 33 as our
own. Final Act. 11-12 (citing Frysz ,r 15). In other words, the Specification
discloses that "'[d]emographics' of a pedestrian may include species, age,
sex, physical capabilities, or other relevant information about the
pedestrian" (Spec. 5:5---6 (emphasis added)), and we agree with the
Examiner that Frysz' s disclosure of information such as a "treating
physician's name and contact information, and ... patient's name, contact
information, medical condition and treatment" (Frysz ,r 15) is a disclosure of
"demographics," as claimed, and as applied to the pedestrian of Auer.
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NEW GROUND OF REJECTION
Dependent claims 15-17, 36, and 37
We enter a new ground of rejection for claims 15-17, 36, and 37,
under 35 U.S.C. § 103, as unpatentable over Auer and any one of Bas,
Larsen, and Scott, and further in view of Grimm, based on the findings and
reasoning, as set forth supra with respect to Rejections V, VI, and IX, as
applied to independent claims 1 and 25, and the additional findings
presented infra, pursuant to our authority under 37 C.F.R. § 4I.50(b).
Appellants do not present arguments regarding the Examiner's
rejection of claims 15-17, 36, and 37, apart from the arguments presented
for independent claims 1 and 25. Appeal Br. 30-32; Reply Br. 3-5. Except
for the Examiner's reliance on Auer for disclosing a retroreflector, we adopt
the Examiner's findings and reasoning with respect to claims 15-17, 36, and
3 7 as our own. Final Act. 18-20 ( citing Grimm ,r 23); see, e.g., Grimm,
Abstract (disclosing that "[a] transmitter broadcasts a global position of the
vehicle as part of a vehicle periodic beacon message" and "[a] pedestrian-
based device ... carried by the pedestrian ... has a transmitter and receiver
for communicating a global position of the pedestrian as part of a pedestrian
periodic beacon message"); id. ,r 23 ("[i]n the pedestrian standalone
architecture, the pedestrian-based device ... may include GPS or other
position-aiding sensors such as accelerometers or gyroscopes 64 for
determining heading information," wherein "the information is collected and
processed by a controller 66 ... [ and] broadcast and received using a
transmitter and receiver").
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NEW GROUND OF REJECTION
Independent claim 44 and dependent claim 57
We enter a new ground of rejection for independent claim 44 and
dependent claim 57, under 35 U.S.C. § 103, as unpatentable over Auer and
any one of Bas, Larsen, and Scott, and further in view of Kikuchi, based on
the findings and reasoning, as set forth supra with respect to Rejections V,
VI, and IX, as applied to independent claims 1 and 25, and the additional
findings presented infra, pursuant to our authority under 37 C.F.R.
§ 41.50(b).
Appellants do not present arguments regarding the Examiner's
rejection of independent claim 44 and dependent claim 57, apart from the
arguments presented for independent claims 1 and 25. Appeal Br. 35-37;
Reply Br. 3-5. Except for the Examiner's reliance on Auer for disclosing a
retroreflector, we adopt the Examiner's findings and reasoning with respect
to independent claim 44 as our own. Final Act. 22-23 ( citing Kikuchi ,r,r 7,
10-12).
Regarding claim 57, as set forth supra with respect to the frequency
range recited in claim 1, it would have been an obvious design choice to
configure a retroreflector to reflect radiation having a frequency range of 70
to 85 GHz.
DECISION
The Examiner's rejection of claims 1, 2, 4---6, 8, 10, 11, 24--26, 28, 29,
32, 34, 38, and 43 under 35 U.S.C. § 102(a)(l) as anticipated by Auer is
REVERSED, and we enter a NEW GROUND OF REJECTION of claims 1,
2, 4---6, 8, 10, 11, 20, 24--26, 28, 29, 32, 34, 38, and 43 under 35 U.S.C.
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§ 103 as unpatentable over Auer and any one of Bas, Larsen, and Scott.
The Examiner's rejection of claim 20 under 35 U.S.C. § 103 as
unpatentable over Auer and Moore, JR. is REVERSED.
The Examiner's rejection of claims 7 and 33 under 35 U.S.C. § 103 as
unpatentable over Auer and Frysz is REVERSED, and we enter a NEW
GROUND OF REJECTION of claims 7 and 33 under 35 U.S.C.
§ 103 as unpatentable over Auer and any one of Bas, Larsen, and Scott, and
in further view of Frysz.
The Examiner's rejection of claim 9 under 35 U.S.C. § 103 as
unpatentable over Auer and Wootton is REVERSED.
The Examiner's rejection of claims 18 and 39 under 35 U.S.C. § 103
as unpatentable over Auer and Bas is AFFIRMED, and we designate our
affirmance as a NEW GROUND OF REJECTION.
The Examiner's rejection of claims 3 and 27 under 35 U.S.C. § 103 as
unpatentable over Auer and Larsen is REVERSED.
The Examiner's rejection of claims 12 and 19 under 35 U.S.C. § 103
as unpatentable over Auer and Larsen is AFFIRMED, and we designate our
affirmance as a NEW GROUND OF REJECTION.
The Examiner's rejection of claims 13 and 14 under 35 U.S.C. § 103
as unpatentable over Auer, Larsen, and Grimm is AFFIRMED, and we
designate our affirmance as a NEW GROUND OF REJECTION.
The Examiner's rejection of claims 15-17, 36, and 37 under 35 U.S.C.
§ 103 as unpatentable over Auer and Grimm is REVERSED, and we enter a
NEW GROUND OF REJECTION of claims 15-17, 36, and 37, under 35
U.S.C. § 103, as unpatentable over Auer and any one of Bas, Larsen, and
Scott, and further in view of Grimm.
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The Examiner's rejection of claims 21-23 under 35 U.S.C. § 103 as
unpatentable over Auer and Scott is AFFIRMED, and we designate our
affirmance as a NEW GROUND OF REJECTION.
The Examiner's rejection of claims 44 and 57 under 35 U.S.C. § 103
as unpatentable over Auer and Kikuchi are REVERSED, and we enter a
NEW GROUND OF REJECTION of claims 44 and 57 under 35 U.S.C.
§ 103, as unpatentable over Auer and any one of Bas, Larsen, and Scott, and
further in view of Kikuchi.
FINALITY OF DECISION
This decision contains new grounds of rejection as permitted under 37
C.F.R. § 4I.50(b). Section 4I.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
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 prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
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(2) Request rehearing. Request that the proceeding be
reheard under §41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the MANUAL OF PATENT EXAMINING PROCEDURE§ 1214.01 (9th
Ed., Rev. 08.2017, Jan. 2018).
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. § 4I.50(b)
31