Ex Parte Noe et alDownload PDFPatent Trial and Appeal BoardMay 22, 201512226834 (P.T.A.B. May. 22, 2015) Copy Citation 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. 12/226,834 10/29/2008 Robert G. Noe RNOE.0001 1159 46514 7590 05/22/2015 JAMES E. MROSE 4719 RIVER ROAD BETHESDA, MD 20816-3034 EXAMINER MA, KAM WAN ART UNIT PAPER NUMBER 2681 MAIL DATE DELIVERY MODE 05/22/2015 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 ROBERT G. NOE and RICHARD J. TATE ____________________ Appeal 2013-004309 Application 12/226,834 Technology Center 2600 ____________________ Before MAHSHID D. SAADAT, JOHN F. HORVATH, and DANIEL J. GALLIGAN, Administrative Patent Judges. GALLIGAN, Administrative Patent Judge. DECISION ON APPEAL Appellants1 seek our review under 35 U.S.C. § 134(a) of the Examiner’s rejection of claims 1–4, 6–8, 10–15, and 18–21. We have jurisdiction under 35 U.S.C. § 6(b). Claims 5, 9, 16, 17, and 22 have been canceled. App. Br. 5. We AFFIRM.2 1 The Appeal Brief identifies Trapco, Ltd. as the real party in interest. App. Br. 3. 2 Our Decision refers to Appellants’ Appeal Brief filed on November 14, 2012 (“App. Br.”); Appellants’ Reply Brief filed February 5, 2013 (“Reply Br.”); Examiner’s Answer mailed December 5, 2012 (“Ans.”); and Final Office Action mailed March 14, 2012 (“Final Act.”). Appeal 2013-004309 Application 12/226,834 2 STATEMENT OF THE CASE Claims on Appeal Claims 1, 6, and 10 are independent claims. Claim 1 is reproduced below: 1. A device for electrocuting pests, comprising (a) at least one reference electrode and at least one non- reference electrode, including a plurality of non-reference electrode regions, each of the non-reference electrode regions being spaced apart from a portion of the reference electrode by an insulating gap, the at least one reference electrode and the at least one non-reference electrode being electrically isolated from one another and arranged to be both contacted by parts of a body of a pest to be electrocuted, (b) an infrared detector responsive to infrared radiation emitted by a pest, said infrared detector providing output signals indicative of the presence of a pest, and (c) a circuit responsive to said output signals, said circuit providing high voltage between the at least one reference electrode and the at least one non-reference electrode when the output signals are indicative of the presence of a pest. The prior art relied upon by the Examiner in rejecting the claims on appeal: Roberts et al. US 5,600,143 Feb. 4, 1997 (hereinafter “Roberts”) Kuhnly et al. US 5,870,022 Feb. 9, 1999 (hereinafter “Kuhnly”) Rich et al. US 2005/0144830 A1 July 7, 2005 (hereinafter “Rich”) Finburgh et al. US 2006/0079792 A1 Apr. 13, 2006 (hereinafter “Finburgh”) Appeal 2013-004309 Application 12/226,834 3 Muller et al. WO 2004/030450 A2 Apr. 15, 2004 (hereinafter “Muller”) Examiner’s Rejections Claims 1, 2, 4, 6, 9, 10, 15, and 17–20 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Muller and Kuhnly. Final Act. 4–13. Claim 3 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Muller, Kuhnly, and Roberts. Final Act. 13–14. Claims 7, 8, 11–13, 21, and 22 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Muller, Kuhnly, and Rich. Final Act. 14–17. Claim 14 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Muller, Kuhnly, and Finburgh. Final Act. 18. ANALYSIS The Examiner found Muller’s electrodes are “spaced apart . . . by an insulating gap” when an insulating gap is between the two components, even if additional components are between as well. See Ans. 15–16. Appellants contend the Examiner erred because the phrase “spaced apart . . . by an insulating gap” is “intrinsically exclusionary” (App. Br. 17) and means “the gap defines the distance of spacing apart” (Reply Br. 2). We are not persuaded by Appellants’ arguments because claim 1 does not recite that the gap defines the distance of spacing apart, nor does it require “spaced apart . . . by” to be exclusionary. During examination, claims are to be given their broadest reasonable interpretation. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We do not find the Examiner’s interpretation of the disputed claim language to be unreasonable, and we agree with the Examiner that “[i]nclusion of Appeal 2013-004309 Application 12/226,834 4 unspecified ingredients, such as electrode 5 being spaced apart from a portion of electrode 7 by electrode 6 in addition to the insulating gap, is not precluded by the open scope of the claims.” Ans. 15. Because we are not persuaded of error in the Examiner’s interpretation of the disputed claim language, we sustain the rejection of claim 1. We also sustain the rejections of claims 2–4, 6–8, 10–15, and 18– 21, which are not separately argued with sufficient particularity. See App. Br. 12, 18. DECISION We affirm the Examiner’s rejections of claims 1–4, 6–8, 10–15, and 18–21. 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 KRH Copy with citationCopy as parenthetical citation