Ex Parte Ferrari et al

Patent Trial and Appeal Board

Nov 6, 2014

11824704 (P.T.A.B. Nov. 6, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MICHAEL G. FERRARI and
THOMAS HUGH DAUGHERTY
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Appeal 2012-006551
Application 11/824,704
Technology Center 2600
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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

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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”).
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Application 11/824,704

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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

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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).)
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Application 11/824,704

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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

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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

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