Ex Parte Moeller et al

Patent Trial and Appeal BoardDec 31, 2012

09791802 (P.T.A.B. Dec. 31, 2012)

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. 09/791,802 02/26/2001 Klaus R. Moeller 2339-0106P 1088 30593 7590 12/31/2012 HARNESS, DICKEY & PIERCE, P.L.C. P.O. BOX 8910 RESTON, VA 20195 EXAMINER LAO, LUNSEE ART UNIT PAPER NUMBER 2655 MAIL DATE DELIVERY MODE 12/31/2012 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 KLAUS R. MOELLER, NIKLAS MOELLER, MIRCEA RUSU and CARL DERLA ____________ Appeal 2011-010798 Application 09/791,802 Technology Center 2600 ____________ Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM and ANDREW J. DILLON, Administrative Patent Judges. WHITEHEAD, JR., Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-010798 Application 09/791,802 2 STATEMENT OF THE CASE Appellants are appealing claims 46-51, 56-60, 63, 64, 68-78. Appeal Brief 1. We have jurisdiction under 35 U.S.C. § 6(b) (2012). We affirm. Introduction The invention is directed to “networked sound masking system with individually controllable and programmable sound masking units.” Appeal Brief 5. Illustrative Claim 46. A sound masking system for controlling the ambient noise in a physical environment, said sound masking system comprising: a communication network in said physical environment; a plurality of sound masking units including a communication interface for coupling to said communication network for receiving one or more control signals over said communication network including a masking volume signal and a masking frequency signal, at least some of said sound masking units including a sound masking component, said sound masking component being responsive to said one or more control signals for generating a sound masking output signal; a control unit configured to generate said one or more control signals including said masking volume signal and said masking frequency signal, and said control unit having a communication interface for coupling to said communication network for transmitting said one or more control signals to selectively control operation of said plurality of sound masking units. Appeal 2011-010798 Application 09/791,802 3 Rejections on Appeal Claims 46-51, 56-60, 63, 64, 68-75, 78 and 80-84 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Orfield (U.S. Patent Number 4,319,088; issued March 9, 1982) and Farinelli (U.S. Patent Number 5,440,644; issued August 8, 1995). Answer 5-27. Claims 76 and 77 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Orfield, Farinelli and Ritter (U.S. Patent Number 4,686,693; issued August 11, 1987). Answer 27-28. Issues on Appeal Do Orfield and Farinelli, either alone or in combination, disclose a communication network as recited in the claims? Do Orfield and Farinelli, either alone or in combination disclose sending out separate masking volume and sound making frequency signals as required by the control unit recited in the claims? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. We concur and adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and the reasons set forth by the Examiner in the Answer in response to Appellants’ Appeal Brief. However, we highlight and address specific findings and arguments for emphasis as follows. Appellants argue that Orfield does not disclose a communication network and further Orfield fails to disclose a communication network that App App prov Orfie Orfie soun Orfie Orfie build eal 2011-0 lication 09 ides contro ld’s Figur ld’s Figur d masking ld’s Figur ld’s Figur ing.” 10798 /791,802 l informa es 1 and 2 es 1 and 2 unit respe e 3 is repr e 3 disclos tion or con are reprod discloses ctively. oduced be es “an ele 4 trol signal uced belo a master s low: vated pers s. Appeal w: ound mak pective of Brief 24- ing unit an the interio 26. d a slave r of a Appeal 2011-010798 Application 09/791,802 5 Appellants argue that Orfield is deficient because Orfield does not disclose a communication network: [T]he slave unit 16 can include a second voice coil 68 for receiving a signal from an alternate sound source control module 14 and coupling the alterative signal to the speaker 62. The speakers 26 and 62 as taught by Orfield comprise a conventional passive speaker that emits the sound masking signal generated by the octave equalizer 24 in the master sound masking unit 14, and applied to the slave sound masking unit 16 via the cable 18. Accordingly, the cable 18 as taught by Orfield does not comprise a "communication network", but is merely, a wire connection for passing the sound masking signal generated by the master unit 14 to the slave unit 16 for emission on the speaker 62. Appeal Brief 26. Appellants conclude that Orfield cable 18 does not constitute a communication network as the Examiner alleges. Id. We do not find Appellants arguments to be persuasive because the Examiner does not merely rely on the Orfield’s cable 18 to disclose a communication network but relies on the entirety of Orfield’s invention as shown in Figures 1-3. See Answer 5. Further, during examination of a patent application, a claim is given its broadest reasonable construction “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted) (internal quotation marks omitted). “[T]he words of a claim ‘are generally given their ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations omitted). Appellants did not provide any definition that would distinguish the claimed Appeal 2011-010798 Application 09/791,802 6 communication network over the communication network disclosed in Orfield and therefore we are permitted to construe “communication network” with its ordinary and customary meaning. Appellants further argue that Orfield does not disclose the “control unit configured to generate said one or more controls signals including said masking volume signal and said masking frequency signal” as recited in claim 46. Appeal Brief 27. In referring to Orfield’s Figures 1 and 2, Appellants argue: As shown in Fig. 1 of Orfield, the master unit 14 (not the slave unit 16) includes a masking sound generator 20 generating a masking sound signal, which passes through an amplifier 22 and an equalizer 24. Manually controlled potentiometers 48 and 46 control output of the amplifier 22 and the equalizer 24, respectively. (foot note omitted). The Examiner alleges that since the master unit 14 of Orfield generates a sound masking signal, controls the volume of the sound masking signal and controls the frequency of the volume controlled sound masking signal, the resulting output signal of the master unit 14 provides the claimed “masking volume signal” and “sound masking frequency signal.” This reasoning is flawed. The master unit 14 sends a single signal, i.e. the sound masking output signal, to the slave unit 16, and this single signal drives a speaker 62 in the slave unit 16. The master unit 14 does not send separate masking volume and sound masking frequency signals as required of the control unit of claim 46. Appeal Brief 28-29. Appeal 2011-010798 Application 09/791,802 7 We do not find Appellants’ arguments to be persuasive because the arguments are not commensurate with the scope of the claims. Claim 46 states “a control unit configured to generate said one or more control signals” which is contrary to Appellants’ arguments that multiple signals must be generated. See Appeal Brief 27. The claim limitation only requires that one signal is generated and therefore we agree with the Examiner’s findings that Orfield discloses the claim limitation. See Answer 5-6. Further, the claim only requires that the control unit be configured to generate a signal and regardless of the purpose of the signal, it is still just a signal and thus, generating a signal is well within the structural composition of Orfield’s invention. See Orfield’s Figures 1 and 2. Therefore we sustain the Examiner’s rejections claim 46 as well as independent claims 58, 63, 68, 73, 78 and 80, having limitations commensurate in scope and those claims dependent therefrom. DECISION The rejections of claims 46-51, 56-60, 63, 64, 68-78 are 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). See 37 C.F.R. § 41.50(f). AFFIRMED Vsh