Ex Parte Gillis et al

Patent Trial and Appeal Board

Jan 31, 2017

12637848 (P.T.A.B. Jan. 31, 2017)

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.
12/637,848 12/15/2009 Greg Gillis 34502.00 4065
22465 7590
PITTS & LAKE P C
PO BOX 51295
KNOXVTT.TE, TN 37950-1295
EXAMINER
YANG, JAMES J
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
02/02/2017 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):
docketing @ pl-iplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREG GILLIS, BRENT A. GOETZL, LANCE TRACY, JAMES
L. JAMESON, and CHRIS MORGAN
Appeal 2016-004733
Application 12/637,8481
Technology Center 2600
Before CARLA M. KRIVAK, HUNG H. BUI, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—12, 14—16, and 19—23, which are all
the claims pending in the application. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is Radio Systems
Corporation. App. Br. 3.
2 Our Decision refers to Appellants’ Appeal Brief filed August 17, 2015
(“App. Br.”); Reply Brief filed April 1, 2016 (“Reply Br.”); Examiner’s
Answer mailed February 1, 2016 (“Ans.”); Final Office Action, mailed
February 20, 2015 (“Final Act.”); and original Specification, filed December
15,2009 (“Spec.”).
Appeal 2016-004733
Application 12/637,848
STATEMENT OF THE CASE
Appellants ’ Invention
Appellants’ invention relates to “an animal training device for
delivering a stimulus to an animal.” Spec. 13. The animal training device
includes a stimulus delivery device having an adjustable stimulus intensity
range, whereby a range of available intensities is selected from a plurality of
discrete ranges that have been predefined or defined by a user. Spec. 110;
Abstract; Title. The intensity of the stimulus to be delivered to the animal is
selected from the intensities within the selected range. Id-
Representative Claims
Claims 1, 11, 16, and 21—23 are independent. Representative claim 1
is reproduced below with disputed limitations in italics'.
1. An animal training system comprising:
a transmitter device that transmits an activation signal, the
activation signal indicating a selected one of a plurality of
intensities within a discrete range of available intensities to be
delivered to an animal, the discrete range of available intensities
being selectable by a user from a plurality of discrete ranges of
intensities such that only the plurality of intensities within a
selected discrete range of intensities are available to be
delivered to the animal, each discrete range of intensities having
an upper limit and a lower limit different than the upper limit and
the lower limit of the other discrete ranges, respectively; and
a stimulus delivery device adapted to be carried by the
animal, said stimulus delivery device being configured to receive
the activation signal and to deliver to the animal a stimulus
having the selected one of the plurality of intensities.
App. Br. 31—34 (Claims Appendix).
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Appeal 2016-004733
Application 12/637,848
Evidence Considered
Brose
Stapelfeld et al
Mainini et al.
US 4,898,120
US 6,079,367
US 2007/0221138 Al
Feb. 6, 1990
June 27, 2000
Sept. 27, 2007
Examiner’s Rejections
(1) Claims 1—12, 14—16, 19, 20, 22, and 23 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Mainini and Stapelfeld. Final
Act. 2-16.
(2) Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mainini, Stapelfeld, and Brose. Final Act. 17—19.
Issue on Appeal
Based on Appellants’ arguments, the dispositive issue on appeal is
whether the combination of Mainini and Stapelfeld teaches or suggests the
disputed range selection limitation, i.e.,
the discrete range of available intensities being selectable by a
user from a plurality of discrete ranges of intensities such that
only the plurality of intensities within a selected discrete range
of intensities are available to be delivered to the animal, each
discrete range of intensities having an upper limit and a lower
limit different than the upper limit and the lower limit of the other
discrete ranges, respectively,
as recited in Appellants’ independent claim 1, and the similar selection
limitations recited in independent claims 11, 16, and 21—23. App. Br. 19—
30; Reply Br. 1—5.
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Appeal 2016-004733
Application 12/637,848
ANALYSIS
With respect to independent claim 1, the Examiner finds Mainini
teaches an animal training system, shown in Figures 1 and 3, including a
transmitter device 300 that transmits an activation signal. . . indicating a
selected one of a plurality of intensities within a discrete range of available
intensities to be delivered to an animal; and a stimulus delivery device 102 .
. . configured to receive the activation signal and to deliver the animal a
stimulus having the selected one of the plurality of intensities. Final Act. 2—
3 (citing Mainini || 18, 28, 43; Figs. 1 and 3).
Mainini’s Figures 1 and 3 are reproduced with additional markings
below:
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The Examiner acknowledges Mainini does not disclose:
the discrete range of available intensities being selectable by a
user from a plurality of discrete ranges of intensities such that
only the plurality of intensities within a selected discrete range
of intensities are available to be delivered to the animal, each
discrete range of intensities having an upper limit and a lower
limit different than the upper limit and the lower limit of the
other discrete ranges, respectively,
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Appeal 2016-004733
Application 12/637,848
as recited in claim 1. Final Act. 3. However, the Examiner relies on
Stapelfeld for teaching and suggesting a plurality of different discrete
selectable ranges of intensities to support the conclusion of obviousness.
Final Act. 3^4 (citing Stapelfeld col. 13,11. 46—51, col. 14,11. 14—15); Ans.
2-4.
Appellants dispute the Examiner’s factual findings regarding
Stapelfeld and Mainini. Particularly, Appellants argue Stapelfeld does not
teach or suggest “selecting a discrete range of intensities from a plurality of
discrete ranges of intensities such that only the plurality of intensities within
a selected discrete ranse of intensities are available to be delivered to the
animal” (App. Br. 22); rather, Stapelfeld “merely describes that the user can
set a particular level of stimulus (e.g., low, medium, high). . . [hjowever,
once the user sets the desired intensity level, only the set intensity level can
be delivered to the animal” (App. Br. 23). Appellants also argue Stapelfeld
does not teach ranges for which “each discrete range of intensities has an
upper limit and a lower limit which are different than the upper limit and the
lower limit of the other discrete ranges, respectively.” App. Br. 24—25.
Appellants further argue the combination of Mainini and Stapelfeld cannot
teach or suggest the claimed selectable ranges because “neither of these
references teach or suggest [sic] selecting a discrete range of intensities from
a plurality of discrete ranges of intensities.” Reply Br. 2, 5.
We do not find Appellants’ arguments persuasive. Rather, we find the
Examiner has provided a comprehensive response to Appellants’ arguments
supported by a preponderance of evidence. Ans. 2-4. As such, we adopt the
Examiner’s findings and explanations provided therein. Id. For additional
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Application 12/637,848
emphasis, we note Appellants’ arguments are predicated on a narrow reading
of obviousness under KSR International Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) and improper attacks on Mainini and Stapelfeld when the
rejection is based on the combination. In re Keller, 642 F.2d 413, 425
(CCPA 1981) (“one cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of references”).
In addition, Appellants’ arguments do not address the Examiner’s findings
regarding what Stapelfeld and Mainini would have suggested to one of
ordinary skill in the art.
The proper test for obviousness is not whether the prior art references
disclose all elements of the claimed invention; rather, what the combined
teachings would have suggested to a person of ordinary skill in the art. See
In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000). In such an analysis,
precise teachings directed to the specific subject matter of the challenged
claim need not be identified because the inferences and creative steps that a
person of ordinary skill in the art would employ can be taken into account.
See KSR, 550 U.S. at 418.
For example, although Mainini discloses “[o]ne of several levels [of a
signal’s intensity] can be selected by the user” operating a stimulus intensity
selector (see Mainini || 28, 43), Mainini also discloses:
[0]ther devices may use a combination of automatic and/or
manual intensity adjustment. . . . Consider an electronic animal
confinement system used with multiple animals having a remote
transmitter and stimulus units worn by each of the pets. The
remote transmitter may include selectors allowing the type
and/or intensity of the stimulus to be set on a global level. The
stimulus units may contain additional selectors that override or
modify the global setting allowing the intensity to be adjusted to
the needs of the particular animal. Further, the stimulus units
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Application 12/637,848
may contain additional programming that adjusts the stimulus
intensity based on the actions of the animal. Certainly, one
skilled in the art will recognize that these exemplary devices do
not cover all permutations of the control over the stimulus
intensity known in the pet product industry and that various
combinations and modifications in the stimulus intensity control
remain within the scope and spirit of the present invention. . . .
[T]he stimulus intensity can be manually selected by adding a
stimulus intensity selector as described with respect to FIG. 3.
Further embodiments allow the manual selection of the base
stimulus intensity with automatic adjustment of the stimulus
intensity by controller in response to monitored conditions.
Mainini || 27, 31 (emphases added).
The use of multiple intensity ranges and sub-selection of any intensity
range, as required by claim 1, are not beyond the abilities of the skilled
artisan in view of Mainini’s broad disclosure of various “permutations of the
control over the stimulus intensity” including: (1) combinations and
modifications in the [pet] stimulus intensity control; (2) intensities set on a
global level; (3) intensities adjusted based on an animal’s actions; (4)
intensities overridden or modified to allow intensity adjustment to the needs
of a particular animal; and (5) manual selection of a base stimulus intensity
with additional automatic adjustment of the intensity. See Mainini || 27, 31;
Fig. 3. Thus, Mainini teaches or suggests a “discrete range of available
intensities being selectable by a user from a plurality of discrete ranges of
intensities,” as recited in claim 1.
As an extension of Mainini, Stapelfeld teaches a similar animal
training apparatus “capable at any given time of delivering any of a variety
of stimulus types, in any range of rates and at any level of intensity'1'’
(Stapelfeld 9:50-52 (emphases added)) including:
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Application 12/637,848
[T]hree rates (low, medium and high) and three intensities
(low, medium and high) of stimulus. Other combinations can be
used and different types, rates and/or intensities of stimulus may
be delivered. . . .
Other configurations may be used for the coded
transmitter signal. The pulse rate can be other than the
approximately 8 kHz rate described in the examples. Burst
repetition rates (and, hence, the rate of stimulus) other than those
illustrated can be used, and others may prove more effective for
different breeds and types of animals; rates as low as about 3
bursts per second and as high as about 300 bursts per second
have been shown to be effective. A different range of selectable
repetition rates can be provided.
The intensity of each shock in the stimulus series can be
different from that shown, although shocks at approximately
2000, 3500 or 5000 volts, delivering approximately 5 mA, appear
to be effective for canines; currents in the range between about
1 mA and about 30 mA also appear effective. The shock energy
and shock pulse shape can differ, particularly for different types
and breeds of animal. Burst lengths other than those illustrated
can be used.
Stapelfeld 13:45—51, 14:1—19 (emphases added).
Based on Stapelfeld’s versatile stimulus control device using ranges
of intensity and rate, we find a skilled artisan would understand Stapelfeld’s
stimulus control “effectively gives the user access to select a different range
of intensities, having corresponding lower and upper thresholds.” Ans. 3
(citing Stapelfeld Fig. 2). Accordingly, we agree with the Examiner that the
skilled artisan would recognize Stapelfeld’s low, medium, and high intensity
values provide a first selectable range of intensities to the user, while
Stapelfeld’s Figure 2 enables the user to “establish[] a much higher or much
lower intensity to be a high or low intensity, respectively, effectively
establishing a second range of available intensities.” Ans. 3.
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Application 12/637,848
We also note Stapelfeld teaches ranges of intensities, as opposed to a
single value for each level of intensities, as advocated by Appellants. App.
Br. 23. For example, Stapelfeld describes “any range of rates” and “any
level of intensity” including: (1) “currents in the range between about 1 mA
and about 30 mA”; (2) “shocks at approximately 2000, 3500 or 5000 volts”;
and (3) “rates as low as about 3 bursts per second and as high as about 300
bursts per second” together with “[a] different range of selectable repetition
rates,” where a rate is characterized by “bursts of pulses.” See Stapelfeld
7:3—5, 8:6—16, 9:51—52, 14:1—4 and 7—14, Fig. 2. Thus, Stapelfeld’s
parameters of rate (determined by pulses) and intensity (determined by
voltage and current) are commensurate with the broad description of the
term “intensity ” in Appellants’ Specification—which describes “intensity”
measured by voltage, current, and pulse width. See Spec. Fig. 3, H 17—18.3
We further note Appellants’ argument that Stapelfeld “is limited in
providing a single intensity level at any given time, [so] Stapelfield [sic]
cannot provide a series of increasing intensities in response to increasingly
extreme behavior”—in contrast to Appellants’ system—is not commensurate
with the scope of claim 1. App. Br. 23, 26. Appellants’ claim 1 does not
3 Appellants’ Specification provides “the intensity of the stimulus is defined
by the amount of electrical current applied to the electrical components and
the duration at which the current is applied,” “selecting the intensity of the
stimulus includes selecting the magnitude of the electrical current applied to
the electrical components and selecting the pulse width of the applied
current,” and “various potential combinations of current magnitude and
current pulse width result in various potential voltages. These voltages
define the intensity of the stimulus delivered to the animal.” See Spec.
1117—18 (emphases added).
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Application 12/637,848
recite or require providing “a series of increasing intensities in response to
increasingly extreme behavior.”
Appellants’ claim 1 also does not recite or require “delivering stimuli
of varying intensities within each discrete range of intensities available to be
delivered to the animal” as Appellants argue. App. Br. 23, 26. Instead, the
claim recites “deliver to the animal a stimulus having the selected one of the
plurality of intensities.” App. Br. 31 (emphasis added). Thus, claim 1
requires only the selected intensity to be delivered to the animal, which is
expressly disclosed by Stapelfeld and Mainini. Ans. 3; Final Act. 3. The
additional limitation in claim 1 reciting “only the plurality of intensities
within a selected discrete range of intensities are available to be delivered to
the animal” (App. Br. 31 (emphasis added)) does not require “the plurality
of intensities . . . available to be delivered to the animal” to actually be
delivered to the animal. Ans. 3.
In summary, we find sufficient evidence in the teachings of Stapelfeld
and Mainini to support the Examiner’s findings that the combination of
Stapelfeld and Mainini teaches and suggests the discrete range of available
intensities is selectable by a user from a plurality of discrete ranges of
intensities such that (1) only the plurality of intensities within a selected
discrete range of intensities are available to be delivered to the animal, and
(2) each discrete range of intensities has an upper limit and a lower limit
different than the upper limit and the lower limit of the other discrete ranges,
as recited in claim 1.
For the reasons set forth above, we sustain the Examiner’s
obviousness rejection of independent claim 1 and its dependent claims 2—10,
which Appellants do not argue separately. App. Br. 27—28.
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With respect to independent claims 11, 16, and 21—23, Appellants
reiterate the same arguments presented against claim 1. App. Br. 21—27, 30.
For the same reasons discussed, we also sustain the Examiner’s obviousness
rejections of claims 11, 16, 21, 22, and 23, and their respective dependent
claims 12, 14, 15, 19, and 20 for which no substantive arguments are
provided. App. Br. 28.
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 1—12, 14—16, and 19—
23 under 35 U.S.C. § 103(a).
DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1—12,
14—16, and 19—23.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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