Ex Parte Fluck

Patent Trial and Appeal BoardMay 22, 2013

12145625 (P.T.A.B. May. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/145,625 06/25/2008 Frederick Dean Fluck CONT.003CNT 3632 67559 7590 05/22/2013 Parsons Behle & Latimer Attn: Docketing 960 Broadway Ave., Suite 250 Boise, ID 83706 EXAMINER LAU, HOI CHING ART UNIT PAPER NUMBER 2682 MAIL DATE DELIVERY MODE 05/22/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte FREDERICK DEAN FLUCK ____________ Appeal 2011-001766 Application 12/145,625 Technology Center 2600 ____________ Before MICHAEL R. ZECHER, RAMA G. ELLURU, and MIRIAM L. QUINN, Administrative Patent Judges. ZECHER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-001766 Application 12/145,625 2 I. STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-31. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellant’s Invention Appellant invented a method and system for detecting very small magnetic moments that surround ferromagnetic materials, which in turn allows users to screen personnel for concealed weapons and contraband electronic devices. Abstract. Illustrative Claim Claims 1 and 24 are independent claims. Independent claim 1 is illustrative and reproduced below: 1. A metal detection system comprising: a sensor array comprising a plurality of magnetic field fluxgate sensors mounted on a support structure, the sensors being arranged to define a sensing region within the sensor array; electronic drive circuitry in communication with each magnetic field fluxgate sensor, the electronic drive circuitry comprising one or more filtering digital mixers and a frequency-to-voltage converter; data acquisition circuitry in communication with the electronic drive circuitry of each magnetic field fluxgate sensor; a video camera aimed at the sensing region of the sensor array; a video frame grabber in communication with the video camera; and a computer control unit comprising a control module and a user interface, the computer control unit in communication with the data acquisition circuitry and the video frame grabber. Appeal 2011-001766 Application 12/145,625 3 Prior Art Relied Upon Shepard US 4,417,352 Nov. 22, 1983 Crain US 4,962,473 Oct. 9, 1990 Ousborne US 5,499,182 Mar. 12, 1996 Roybal US 6,150,810 Nov. 21, 2000 Chen US 6,228,743 B1 May 8, 2001 Burton US 6,326,739 B1 Mar. 26, 2002 Scalese US 2002/0035792 A1 Mar. 28, 2002 Rodriguez US 6,435,013 B1 Aug. 20, 2002 Rippingale US 2004/0027120 A1 Feb. 12, 2004 Beevor US 2004/0080315 A1 Apr. 29, 2004 Kruse US 2004/0100357 A1 May 27, 2004 Castle US 2004/0217862 A1 Nov. 4, 2004 Li US 2005/0225383 A1 Oct. 13, 2005 (filed May 20, 2004) Hoult US 2005/0242817 A1 Nov. 3, 2005 (PCT filed Apr. 15, 2003) Luu US 2005/0265054 A1 Dec. 1, 2005 (filed May 27, 2004) Keene US 7,113,092 B2 Sept. 26, 2006 (filed Nov. 12, 2003) Malik US 7,119,572 B2 Oct. 10, 2006 (filed July 2, 2003) Waehner US 2007/0133844 A1 June 14, 2007 (effectively filed Oct. 25, 2002) Hermerding, II US 7,275,012 B2 Sept. 25, 2007 (filed Dec. 30, 2002) Rejections on Appeal Claims 27, 29, and 31 were rejected under 35 U.S.C. § 112, second paragraph for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. Ans. 4. Claims 1-4, 7, and 12 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal and Rodriguez. Id. at 4-10. Appeal 2011-001766 Application 12/145,625 4 Claim 5 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Rippingale. Id. at 10-11. Claim 6 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Hoult. Id. at 11. Claims 8, 9, and 16 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Beevor. Id. at 11-13. Claim 10 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Shepard. Id. at 13. Claim 11 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Waehner. Id. at 13-14. Claim 13 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Castle. Id. at 26. Claim 14 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Crain. Id. at 14. Claim 15 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Malik. Id. at 15. Claims 17 and 18 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Li. Id. at 15- 16. Claims 19 and 20 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Scalese. Id. at 25-26. Claim 21 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, Scalese, Ousborne, and Luu. Id. at 26-27. Appeal 2011-001766 Application 12/145,625 5 Claims 22 and 23 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Burton. Id. at 16-17. Claims 24, 25, and 31 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, and Hermerding, II. Id. at 17-22. Claims 27 and 28 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, Hermerding, II, and Kruse. Id. at 22. Claim 26 was rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, Hermerding, II, and Keene. Id. at 23. Claims 29 and 30 were rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Roybal, Rodriguez, Hermerding, II, Kruse, and Chen. Id. at 23-24. Examiner’s Findings and Conclusions The Examiner finds that Roybal discloses every recited element of independent claim 1 except “the electronic drive circuitry comprising one or more filtering digital mixers and a frequency-to-voltage converter.” Ans. 4- 8, 29. The Examiner refers to Rodriguez to teach this claim limitation. Id. Appellant’s Contentions Appellant contends that Rodriguez teaches away from combining its mixer and frequency-to-voltage converter with Roybal’s metal detection system and, as a result, teaches away from “the electronic drive circuitry comprising one or more filtering digital mixers and a frequency-to-voltage converter,” as recited in independent claim 1. Br. 5-6. Further, Appellant Appeal 2011-001766 Application 12/145,625 6 argues that because Roybal and Rodriguez disclose different types of sensors, it would not have been obvious to one with ordinary skill in the art to combine Rodriguez’s circuitry, i.e., mixer 74 and frequency-to-voltage converter 80, with Roybal’s metal detection system. Id. at 6. Appellant also contends that neither Rodriguez nor Roybal discloses “electronic drive circuitry in communication with each magnetic field fluxgate sensor,” and “data acquisition circuitry in communication with the electronic drive circuitry of each magnetic field fluxgate sensor,” as recited in independent claim 1. Id. at 7. II. ISSUE Has the Examiner erred in determining that the combination of Roybal and Rodriguez renders independent claim 1 unpatentable? In particular, the issue turns on whether: (a) Roybal teaches away from its combination with Rodriguez and, as a result, teaches away from “the electronic drive circuitry comprising one or more filtering digital mixers and a frequency-to-voltage converter,” as recited in independent claim 1; (b) the combination of Roybal and Rodriguez collectively teaches “electronic drive circuitry in communication with each magnetic field fluxgate sensor ,” as recited in independent claim 1; and (c) the combination of Roybal and Rodriguez collectively teaches “data acquisition circuitry in communication with the electronic drive circuitry of each magnetic field fluxgate sensor,” as recited in independent claim 1. Appeal 2011-001766 Application 12/145,625 7 III. ANALYSIS 35 U.S.C. § 112, Second Paragraph Rejection Claims 27, 29, and 31 Because Appellant does not present any arguments with respect to the Examiner’s rejection of dependent claims 27, 29, and 31 as lacking sufficient antecedent basis under 35 U.S.C. § 112, second paragraph, we summarily sustain the indefiniteness rejection of these claims. See Manual of Patent Examining Procedure§ 1205.02 (Rev. 9, Aug. 2012) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, that ground of rejection will be summarily sustained by the Board.”). 35 U.S.C. § 103(a) Rejections Claim 1 Based on the record before us, we do not discern error in the Examiner’s obviousness rejection of independent claim 1, which recites, inter alia: (1) “the electronic drive circuitry comprising one or more filtering digital mixers and a frequency-to-voltage converter;” (2) “electronic drive circuitry in communication with each magnetic field fluxgate sensor;” and (3) “data acquisition circuitry in communication with the electronic drive circuitry of each magnetic field fluxgate sensor.” We are not persuaded by Appellant’s argument that Roybal teaches away from its combination with Rodriguez and, as a result, teaches away from “the electronic drive circuitry comprising one or more filtering digital mixers and a frequency-to-voltage converter,” as claimed. Br. 5-6. In response to Appellant’s teaching away argument, the Examiner takes the position that Roybal discloses removing “noise” from a sensor input signal by: (1) using a digital filter 129 at the data acquisition system (“DAS”) 30 Appeal 2011-001766 Application 12/145,625 8 or, alternatively, (2) using an analog filter 29 at the buffer system 28. Ans. 29 (citing to Roybal, col. 4, ll. 27-47 and col. 18, ll. 33-50). The Examiner then concludes that it would have been obvious to one with ordinary skill in the art at the time of the claimed invention to implement a filtering process in Roybal’s metal detection system either “upstream” or “downstream” from a converter. See id. We agree with the Examiner. Appellant’s teaching away argument is predicated on the notion that Roybal’s digital filter 129 “should be located ‘downstream’ of the analog-to- digital (A/D) converter [] associated with the [DAS] 30.” Br. 6 (citing to Roybal, col. 18, ll. 40-43). However, this textual portion of Roybal is described in connection with a preferred embodiment. See, e.g., Roybal, col. 18, ll. 43-45 (“By way of example, the digital filter 129 in one preferred embodiment is located between the [DAS] 30 and computer system 32.” (Emphasis added)). We will not limit the teachings of Royal to this preferred embodiment. As discussed above, the Examiner correctly indicates that Roybal discloses removing “noise” from a sensor input signal using one of two alternative approaches, the latter approach includes using an analog filter 29 at the buffer system 28. Ans. 29 (citing to Roybal, col. 4, ll. 27-47). In light of this finding, we agree with the Examiner that one with ordinary skill in the art would have substituted Rodriguez’s mixer 74 and frequency-to- voltage converter 80 (Rodriguez, Fig. 2; col. 3, ll. 35-50) for Roybal’s filter system 29 contained within the buffer system 28 (Roybal, Fig. 1; col. 4, ll. 27-47), thereby placing a filtering mixer and frequency-to-voltage converter upstream from Roybal’s DAS 30. See Ans. 7-8, 29. In our view, such a substitution is a predictable use of prior art elements according to their Appeal 2011-001766 Application 12/145,625 9 established functions—an obvious improvement. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 479 (2007). Next, we are not persuaded by Appellant’s argument that because Roybal and Rodriguez disclose different types of sensors, it would not have been obvious to one with ordinary skill in the art to combine Rodriguez’s circuitry, i.e., mixer 74 and frequency-to-voltage converter 80, with Royal’s metal detection system. Br. 6. The Examiner relies upon the magnetic sensors 12 illustrated in Roybal’s Figure 1 to teach the claimed “magnetic field fluxgate sensors”—not the mass sensitive surface acoustics wave sensors 38 illustrated in Rodriguez’s Figure 2. Ans. 5 (citing to Roybal, Figs, 2, 9, and 10; col. 8, ll. 19-65). Therefore, contrary to Appellant’s argument, the Examiner’s position with respect to the claimed “magnetic field fluxgate sensors” is not based on combining the different types of sensors disclosed in Roybal and Rodriguez. Finally, we note that the Examiner satisfies the burden of establishing a prima facie case of obviousness with respect to the claimed “electronic drive circuitry in communication with each magnetic field fluxgate sensor,” and “data acquisition circuitry in communication with the electronic drive circuitry of each magnetic field fluxgate sensor.” Ans. 5 (citing to Roybal, Fig. 1; col. 4, ll. 27-60, col. 9, l. 50-col. 10, l. 6, and col. 18, ll. 32-49). That is, the Examiner finds that Roybal’s Figure 1 illustrates that the buffer system 28 and filter system 29 are in communication with each magnetic sensor 12, and the DAS 30 is in communication with the buffer system 28 and filter system 29. See id. In response thereto, Appellant generally alleges that neither Rodriguez nor Roybal discloses the aforementioned Appeal 2011-001766 Application 12/145,625 10 claim limitations. Br. 7. Moreover, we note that Appellant did not file a Reply Brief that specifically rebuts the Examiner’s position. Because Appellant fails to provide any substantive arguments explaining why the Examiner’s fact finding is in error, the weight of the evidence favors the Examiner’s position. In other words, Appellant has not shown reversible error in the Examiner’s position that Roybal teaches “electronic drive circuitry in communication with each magnetic field fluxgate sensor,” and “data acquisition circuitry in communication with the electronic drive circuitry of each magnetic field fluxgate sensor,” as claimed. See In re Jung, 637 F.3d 1356, 1365-66 (Fed. Cir. 2011). It follows that the Examiner has not erred in determining that the combination of Roybal and Rodriguez renders independent claim 1 unpatentable. Claims 2-31 Appellant does not provide separate and distinct arguments for patentability with respect to independent claim 24, and dependent claims 2- 23 and 25-31. Therefore, we accept Appellant’s grouping of these claims with independent claim 1. Br. 5. Consequently, claims 2-31 fall with independent claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). IV. CONCLUSIONS For the foregoing reasons, the Examiner has not erred in rejecting: (1) claims 27, 29, and 31 as being indefinite under 35 U.S.C. § 112, second paragraph; and (2) claims 1-31 as being unpatentable under 35 U.S.C. § 103(a). Appeal 2011-001766 Application 12/145,625 11 V. DECISION We affirm the Examiner’s decision to reject claims 1-31. 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 llw