Ex Parte Jones et al

Patent Trial and Appeal BoardJul 10, 2018

14032560 (P.T.A.B. Jul. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/032,560 09/20/2013 Nicholaus A. Jones 122573 7590 07/11/2018 Fitch, Even, Tabin & Flannery, LLP/Walmart Apollo 120 South LaSalle Street Suite 2100 Chicago, IL 60603-3406 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. 8842-130969-US 6990 EXAMINER TERRELL, EMILY C ART UNIT PAPER NUMBER 2689 MAIL DATE DELIVERY MODE 07/11/2018 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 NICHOLAUS A. JONES, JARROD LEE BOURLON, AL VIN SCOTT TAULBEE, and BRUCE W. WILKINSON Appeal2018-000154 Application 14/032,560 1 Technology Center 2600 Before BRUCE R. WINSOR, AARON W. MOORE, and MICHAEL J. ENGLE, Administrative Patent Judges. ENGLE, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1-17. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. Technology The application relates to "interrogating RFID tags and receiving corresponding responses from various ones of these RFID tags while also receiving, from a remote source, surrogate response[ s] corresponding to at least some of the plurality of RFID tags that are not responding to the current interrogation." Spec. Abstract. 1 According to Appellants, the real party in interest is Wal-Mart Stores, Inc. App. Br. 3. Appeal2018-000154 Application 14/032,560 Illustrative Claim Claim 1 is illustrative and reproduced below with the limitations at issue emphasized: 1. A method to facilitate an end user reading a plurality of radio frequency identification (RFID) tags using an RFID tag reader, the method comprising: interrogating en masse the plurality of RFID tags; receiving corresponding responses from various ones of the plurality of RFID tags; receiving from a remote source surrogate responses corresponding to at least some of the plurality of RFID tags that did not respond to the interrogation but which did respond to a previous interrogation, the surrogate responses comprising content as though the RFID tags that did not respond to the interrogation had in fact responded to the interrogation; providing at the RFID tag reader a plurality of end user- perceivable indications corresponding to the responses from the various ones of the plurality of RFID tags and the surrogate responses to thereby inform an end user of the RFID tag reader with respect to a corresponding read state as regards the plurality ofRFID tags. Rejection Claims 1-17 stand rejected under 35 U.S.C. Â§ I03(a) as obvious over the combination of Nasser (US 2008/0249899 Al; Oct. 9, 2008) and Stem et al. (US 2011/0025462 Al; Feb. 3, 2011). Final Act. 3. ISSUE Did the Examiner err in finding the combination of Nasser and Stem teaches or suggests "the surrogate responses comprising content as though the RFID tags that did not respond to the interrogation had in fact responded to the interrogation," as recited in claim 1? 2 Appeal2018-000154 Application 14/032,560 ANALYSIS The Specification discloses that in some RFID protocols, RFID tags can have different states, namely "A" or "B." Spec. ,r 6. RFID tags in the "A" state respond to interrogations but then change to the "B" state, whereas tags in the "B" state do not respond to interrogations while in the "B" state but do revert back to the "A" state after a period of time or after losing power. Id. ,r,r 6-7. Thus, if two interrogations are done within a short period of time, then the first interrogation will count all the nearby tags in the "A" state, but those same tags will then change to the "B" state and not respond to the second interrogation, even though those tags are still present. See id. ,r,r 8, 7, 43. In that sense, the second interrogation will undercount the number of tags actually present. The Specification proposes using "surrogate responses" to treat such "B" state tags as if they "had, in fact, responded to the ... interrogation" even though they were instead "silent." Id. ,I 44. Specifically, claim 1 recites "the surrogate responses comprising content as though the RFID tags that did not respond to the interrogation had in fact responded to the interrogation." Independent claim 10 recites a commensurate limitation. Appellants argue: Although the Examiner has leeway to interpret the word "surrogate" in the broadest[] reasonable manner, that interpretation is not also free to ignore the explicit limitation and requirement that the surrogate response also have that specific content (i.e., that the response have content as though the non- responding tag had, in fact, itself responded). The Examiner has offered no evidence or analysis to explain how either Nasser or Stem describe providing a response ("surrogate" or otherwise) that comprises content as though the RFID tags that did not 3 Appeal2018-000154 Application 14/032,560 respond to an interrogation had in fact responded to the interrogation. App. Br. 10. We agree with Appellants. The Examiner relies on Nasser teaching a table storing information for each tagged item. Ans. 6-11 ( citing in part Nasser ,r 62, Fig. 17). Figure 17, for example, depicts a display to "provide information about inventory items not yet accounted for," such as showing the "location" and "item code" for "all unverified items." Nasser ,r 70. Although such a table provides information about missing items, the Examiner fails to sufficiently explain how such information comprises content "as though the [ missing items] that did not respond to the interrogation had in fact responded to the interrogation." To the contrary, we agree with Appellants that if missing items were treated "as though" they "had in fact responded," then they no longer would be treated as missing. The Examiner's reliance on Stem comparing an old list of RFID tags to a new list of RFID tags in order to identify new items and missing items is deficient for the same reasons. See Ans. 11. Accordingly, we do not sustain the Examiner's rejection of independent claims 1 and 10, and their dependent claims 2-9 and 11-17. DECISION For the reasons above, we reverse the decision rejecting claims 1-1 7. REVERSED 4