Ex Parte Ferrari et alDownload PDFPatent Trial and Appeal BoardNov 6, 201411824704 (P.T.A.B. Nov. 6, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL G. FERRARI and THOMAS HUGH DAUGHERTY ____________ Appeal 2012-006551 Application 11/824,704 Technology Center 2600 ____________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s final decision rejecting claims 1–4 and 6–20. Claim 5 has been canceled. (Br. 1.)1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We refer to Appellants’ Specification (“Spec.”) filed July 2, 2007 and Appeal Brief (“Br.”) filed September 9, 2011. We also refer to the Examiner’s Answer (“Ans.”) mailed December 13, 2011. Appeal 2012-006551 Application 11/824,704 2 Appellants’ Invention The invention at issue on appeal concerns merchandising systems with packaging including displays. Each package includes a display element and a power element connected thereto. The information on the display changes (changes a characteristic) based on data (a characteristic change profile) received from the power element. (Spec. 1:5–7, 17–30; Abstract.) Representative Claim Independent claim 1, reproduced below with the key disputed limitations emphasized, further illustrates the invention: 1. A merchandising system comprising: a plurality of packages, each package comprising a) a package wall, b) a display element integral to the package wall and visible from the exterior of the package, c) a power receiving element operably connected to the display element wherein the display element changes a characteristic according to a first characteristic change profile received from the power receiving element, and a power distribution element, wherein the power distribution element is disposed adjacent to the plurality of packages and provides characteristic change profiles to the packages. Rejections on Appeal 1. The Examiner rejects claims 1–3, 6–18, and 20 under 35 U.S.C. § 103(a) as being unpatentable over U.S. Patent App. Pub. No. 2007/0069883 A1, published Mar. 29, 2007 (“Collier,”) and U.S. Patent No. 6,924,781 B1, issued Aug. 2, 2005 (“Gelbman”). Appeal 2012-006551 Application 11/824,704 3 2. The Examiner rejects claims 4 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Collier, Gelbman, and U.S. Patent No. 7,212,175 B1, issued May 1, 2007 (“Magee”). ISSUE Based upon our review of the administrative record, Appellants’ contentions, and the Examiner’s findings and conclusions, the pivotal issue before us follows: Does the Examiner err in concluding that the combination of Collier and Gelbman collectively would have taught or suggested “a power receiving element operably connected to the display element wherein the display element changes a characteristic according to a first characteristic change profile received from the power receiving element” within the meaning of Appellants’ claim 1 and the commensurate limitations of claims 10 and 20? FINDINGS OF FACT We adopt the Examiner’s findings in the Answer and the Final Office Action mailed February 16, 2011, as our own, except as to those findings that we expressly overturn or set aside in the Analysis that follows. ANALYSIS Based on Appellants’ arguments (Br. 3–4), we find Appellants do not separately argue with particularity the patentability of independent claims 10 and 20 or dependent claims 2–4, 6–9, and 11–19. Accordingly, we select independent claim 1 as representative of Appellants’ arguments and Appeal 2012-006551 Application 11/824,704 4 groupings with respect to claims 1–4 and 6–20. 37 C.F.R. § 41.37(c)(1)(vii) (2004). We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Ans. 4), and (2) the reasons set forth by the Examiner in the Examiner’s Answer (id. at 8–10) in response to Appellants’ Appeal Brief. We concur with the findings and conclusions reached by the Examiner, and we provide the following for emphasis. Appellants contend that Collier and Gelbman do not teach or suggest the disputed features of claim 1. (Br. 3–4.) Specifically, Appellants contend that “Gelbman fails to disclose a label comprising a display which changes a characteristic upon receipt of a display characteristic profile from a distinct power distribution element. . . . [and] also fails to disclose a power distribution element which provides characteristic change profiles to packages” (Br. 4). Initially, we note that Appellants assert features described in their Specification, but not recited in representative claim 1. We broadly but reasonably construe the disputed claim limitations to simply include a power receiving element connected to the display element and the display element receiving data — a first characteristic change profile — from the power receiving element. It is irrelevant that “Gelbman discloses the receipt of instructions and the receipt of power as discrete events and discloses a structure wherein it is necessary to shield the instruction receiving element from the power receiving element to enable proper operation of the disclosed structure.” (Br. 4 (discussing claims 4 and 19).) Appeal 2012-006551 Application 11/824,704 5 We agree with the Examiner that Gelbman describes an electronic label displaying information based on data (a signal) received from an activator module. (Ans. 4, 8–10 (citing Gelbman, col. 4, ll. 12–36; col. 6, ll. 53–61; col. 13, ll. 1–48).) Gelbman’s electronic label receives an output signal (Fig. 2, element 20) from and activation module (Fig. 2, element 18). A power antenna (Fig. 2, element 22; Fig. 4, element 48) receives the output signal and provides a power signal (Fig. 5, element 58) to a processor that controls operation of the display. (Gelbman, col. 5, ll. 12–42; col. 13, ll. 18– 36; Figs 2, 4, 5.) Further, Appellants failed to file a Reply Brief rebutting the findings, responsive arguments, and conclusions made by the Examiner in the Answer. Thus, for all the reasons supra, Appellants do not persuade us of error in the Examiner’s obviousness rejection of representative independent claim 1. Accordingly, we affirm the Examiner’s obviousness rejection of representative claim 1, as well as independent claims 10 and 20 and dependent claims 2–4, 6–9, and 11–19 not separately argued with particularity (supra). CONCLUSION Appellants have not shown that the Examiner erred in rejecting claims 1–4 and 6–20 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner’s rejections of claims 1–4 and 6–20. Appeal 2012-006551 Application 11/824,704 6 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 tj Copy with citationCopy as parenthetical citation