Ex Parte Leipold

Patent Trial and Appeal BoardNov 30, 2012

10673914 (P.T.A.B. Nov. 30, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/673,914 09/29/2003 Kurt Leipold Harman.7297 7350 50811 7590 12/03/2012 O''Shea Getz P.C. 1500 MAIN ST. SUITE 912 SPRINGFIELD, MA 01115 EXAMINER LAO, LUNSEE ART UNIT PAPER NUMBER 2655 MAIL DATE DELIVERY MODE 12/03/2012 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 KURT LEIPOLD ____________ Appeal 2010-006403 Application 10/673,914 Technology Center 2600 ____________ Before JOHN A. JEFFERY, JEFFREY S. SMITH, and TRENTON A. WARD, Administrative Patent Judges. WARD, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s non- final rejection of claims 1-34. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention relates to a sound system for a vehicle, which can combine multiple cavities within the doors and frame of a vehicle to Appeal 2010-006403 Application 10/673,914 2 increase the resonant volume for a loudspeaker. See generally Spec. 3:21- 4:15. Claim 1 is illustrative with certain disputed limitations italicized: 1. A sound system for a vehicle having at least one door, the sound system comprising: a loudspeaker having a resonant volume formed by a first cavity situated inside of the at least one door and a second cavity situated inside a structural component of a frame of the at least one door and outside of any other door within the vehicle; and means for pneumatically coupling the first and second cavities to form the resonant volume. THE REJECTIONS (1) The Examiner rejected claims 1-4, 12-19, 21, and 24-28 as being anticipated under 35 U.S.C. § 102(b) over Otani (JP 07-267003 A; published Oct. 17, 1995). Ans. 3-6.1 (2) The Examiner rejected claims 5-11, 20, 22, 23, and 29-34 under 35 U.S.C. § 103(a) as unpatentable over Otani and Official Notice. Ans. 6- 9. THE ANTICIPATION REJECTION CLAIMS 1-4 and 12-19 The Examiner finds that Otani discloses every recited feature of claim 1 including “a second cavity situated inside a structural component of a frame of the at least one door and outside of any other door within the vehicle.” Ans. 3 (quoting claim 1). 1 Throughout this opinion, we refer to (1) the Appeal Brief (“App. Br.”) filed October 20, 2009, (2) the Examiner’s Answer (“Ans.”) mailed January 7, 2010, and (3) the Reply Brief (“Reply Br.”) filed March 8, 2010. Appeal 2010-006403 Application 10/673,914 3 Appellant argues that claim 1 requires “that a resonant volume is formed by the first and second cavities,” and “a resonant volume is not formed by merely connecting [Otani’s] first opening part 5a with the second open end 5b via the tube pipe 6, since the tube pipe 6 includes a second open end 5b, preventing the system from operating as a resonant volume.” App. Br. 8 (emphasis omitted). Furthermore, Appellant argues that the second cavity disclosed in Otani, namely connection pipe 40, cannot be closed and thus “acoustic energy is free to pass through the second opening 50a’, 50b’ and thus out of connection pipe 40.” App. Br. 7. ISSUE Under § 102, has the Examiner erred in rejecting claim 1 by finding that Otani discloses “a second cavity situated inside a structural component of a frame of the at least one door and outside of any other door within the vehicle”? ANALYSIS On this record, we find no error in the Examiner’s anticipation rejection of claim 1. The Examiner finds that Otani discloses a loudspeaker 2 having a resonant volume formed by a first cavity in front door 1 and a second cavity in the space of tube pipe 6, as shown in Drawing 1 reproduced below. Ans. 3. Appeal 2010-006403 Application 10/673,914 4 Otani’s Drawing 1 shows a diagram of a vehicular speaker system with a speaker 2, front door 1, tube 6, and rear door 3. As shown in Drawing 1 above, Otani discloses and openings 5a and 5a’ for pneumatically coupling the first cavity (front door 1) and the second cavity (tube pipe 6). Ans. 3 (citing Otani, ¶¶ 0024-26, Drawing 1). Appellant argues that the vehicular speaker system disclosed in Otani fails to anticipate claim 1 for multiple reasons. First, Appellant alleges that tube pipe 6 cannot form a “resonant volume,” as required by claim 1, because only one of its two openings, 5a’ and 5b, is closed when connected to door 1. App. Br. 8. Specifically, Appellant argues that claim 1 requires “that a resonant volume is formed by the first and second cavities,” and “a resonant volume is not formed by merely connecting the first opening part 5a with the second open end 5b via the tube pipe 6, since the tube pipe 6 includes a second open end 5b, preventing the system from operating as a resonant volume.” App. Br. 8 (emphasis omitted). In short, Appellant argues that claim 1 requires a Appeal 2010-006403 Application 10/673,914 5 “resonant volume” to be created by only the first and second cavities, excluding any additional cavities. Appellant’s arguments, however, are not commensurate with the scope of claim 1, because claim 1 recites a “sound system comprising . . . .” Claim 1. Because “comprising” creates an open set, claim 1 requires that the sound system must have at least a first cavity and a second cavity, but can have more than these two cavities. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (“‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim.”). Accordingly, we are not persuaded of error in the Examiner’s finding that the first door 1 (first cavity), tube pipe 6 (second cavity), and rear door 3 (third cavity) disclosed in Otani can be coupled to form a resonant volume. Second, Appellant contends that Otani does not teach the required limitation of claim 1 of “a second cavity situated inside a structural component of a frame of the at least one door and outside of any other door within the vehicle.” Reply Br. 2-3 (quoting claim 1). Appellant argues that “Otani always uses at least two doors to form the first cavity and the second cavity”; thus, Appellant argues that Otani fails to disclose a second cavity outside of any other door within the vehicle. Reply Br. 2-3. Appellant’s argument ignores the cavity created by tube pipe 6, cited by the Examiner as anticipating the second cavity of claim 1. Ans. 3. As shown in Drawing 1 above, tube pipe 6 is disclosed as being located in the door frame of the front door 1. Otani, ¶¶ 0024-25. Therefore, we are not persuaded of error in the Examiner’s finding that the tube pipe 6 disclosed in Appeal 2010-006403 Application 10/673,914 6 Otani is “outside of another other door within the vehicle,” as required by Appellant’s claim 1. Appellant similarly contends that second cavity disclosed in Otani is not “inside a structural component of a frame” of the front door, because the second cavity must be the rear door 3. Reply Br. 3-4. As above, Appellant’s argument ignores the cavity created by tube pipe 6, cited by the Examiner as anticipating the second cavity of claim 1. As shown in Drawing 1 above, the tube pipe 6 resides within the frame of the front door 1. Ans. 3. 2 We are therefore not persuaded that the Examiner erred in rejecting claim 1, and claims 2-4 and 12-19 not separately argued with particularity. CLAIMS 21 and 24-27 Appellant argues that “Otani is incapable of anticipating claim 21” for the reasons “set forth above with respect to claim 1.” App. Br. 9. Accordingly, we find Appellant’s arguments unpersuasive for the reasons indicated for claim 1. Accordingly, we sustain the Examiner’s rejection of representative claim 21, and claims 24-27 not separately argued with particularity. 2 Appellant provides further argument with respect to the second embodiment cited by the Examiner and disclosed in Otani in relation to Drawing 4. App. Br. 7 and Reply Br. 2-3. Because we sustain the Examiner’s finding that the cited portions of Otani’s first embodiment in relation to Drawing 1 anticipate claim 1 (Ans. 3-4), we do not reach the merits of Appellant’s arguments with respect to additional embodiments in Otani. Appeal 2010-006403 Application 10/673,914 7 CLAIM 28 Appellant argues that “Otani is incapable of anticipating claim 28” for the reasons “set forth above with respect to claims 1 and 21.” App. Br. 9-10. Accordingly, we find Appellant’s arguments unpersuasive for the reasons indicated for claim 1. THE OBVIOUSNESS REJECTION CLAIMS 5-11, 20, 22, 23, and 29-34 The Examiner rejected dependent claims 5-11, 20, 22-23, and 29-34 under 35 U.S.C. § 103(a) as unpatentable over Otani and Official Notice. Ans. 6-9. Appellant argues that the rejections of the dependent claims are “moot since the [independent] claims from which they depend are patentable for at least the reasons set forth” in Appellant’s Brief for claim 1. App. Br. 10. Accordingly, we find Appellant’s arguments unpersuasive for the reasons indicated for claim 1. ORDER The Examiner’s decision rejecting claims 1-34 is affirmed. 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 rwk