Ex Parte Schnitta

Patent Trial and Appeal BoardMar 10, 2014

11017642 (P.T.A.B. Mar. 10, 2014)

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. 11/017,642 12/22/2004 Bonnie S. Schnitta V0211 3069 17614 7590 03/10/2014 John F. Vodopia, PC 191 New York Avenue Huntington, NY 11743 EXAMINER LUKS, JEREMY AUSTIN ART UNIT PAPER NUMBER 2837 MAIL DATE DELIVERY MODE 03/10/2014 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte BONNIE S. SCHNITTA ____________ Appeal 2011-013676 Application 11/017,642 Technology Center 2800 ___________ Before CHUNG K. PAK, JEFFREY T. SMITH, and KAREN M. HASTINGS, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-013676 Application 11/017,642 2 Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1, 2, 4, 8, 11-14, 16-18, 30, 31, 33, 37, and 38 under 35 U.S.C. § 103(a) as unpatentable over the combined prior art of McGrath2 and Warnaka3; claims 3 and 32 under 35 U.S.C. § 103(a) as unpatentable over the combined prior art of McGrath, Warnaka, and Avery4; and claims 7, 9, 10, and 36 as unpatentable over the combined prior art of McGrath, Warnaka, and Hellon5. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Claim 1 is illustrative of the subject matter on appeal (emphasis added),: 1. A noise attenuation system disposed in a structure including a wall or ceiling, the wall or ceiling including a board having an exposed surface and an opposite surface, comprising: a sound generating object disposed in the structure; and a noise absorbing muffler positioned within the structure and forming an elongated cavity and having an edge abutting the opposite surface of the board of the wall or ceiling, at least a portion of the object extending into the cavity wherein the noise absorbing muffler comprises: an outer barrier layer that limits the passage of sound waves emitted from the object therethrough, and at least one noise absorbing layer positioned adjacent the outer barrier layer, wherein the noise absorbing layer absorbs a predetermined amount of sound waves emitted from the object, wherein the length of the cavity defined by the noise absorbing muffler is selected, based upon the frequency of the noise to be absorbed, such that 1 The Real Party in Interest is Bonnie Schnitta, Ph.D.. 2 US 6,098,743 (August 8, 2000). 3 US 6,435,303 B1 (August 20, 2002). 4 US 5,334,806 (August 2, 1994). 5 US 2,744,584 (May 8, 1956). Appeal 2011-013676 Application 11/017,642 3 the noise absorbing layer substantially absorbs the sound waves emitted by the object. Independent claim 30 is also directed to a noise attenuation system, and independent claims 12 and 16 are directed to a method for attenuating noise. Appellant’s arguments are directed to the common features in each of these claims regarding that the length of the cavity defined by the noise absorbing muffler is selected, based upon the frequency of the noise to be absorbed, and the noise absorbing layer substantially absorbs the sound waves emitted by the sound generating object (see Claims App’x). ANALYSIS We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we determine that a preponderance of the evidence supports the Examiner’s § 103 rejections of all the claims, except for dependent claims 7, 10, and 30. Accordingly, we will sustain the rejections of claims 1-4, 8, 9, 11-14, 16-18, 32, 33, and 36-38 for essentially those reasons expressed in the Answer, and we add the following primarily for emphasis. Appellant’s argues that McGrath cannot teach or suggest the recited feature of “the noise absorbing layer substantially absorbs the sound waves emitted by the object” as recited in claim 1 (and the similar limitations as recited in independent claims 12, 16, and 30) because the speaker assembly disclosed in McGrath functions as a sound diffuser and not a sound muffler. (App. Br. 20). Appellant relies on a singular description in McGrath that refers to “diffuser assembly 2010” (McGrath col. 25, l. 10; App. Br. 20). Based on this reliance, Appellant reasons that a sound diffuser scatters sound Appeal 2011-013676 Application 11/017,642 4 and therefore McGrath cannot suggest “substantially absorbs [the sound waves]” to one of ordinary skill in the art. (App. Br. 22). However, McGrath previously referred to “speaker housing 2010” (McGrath col. 24, l. 3). However, the Examiner asserts that the reference to speaker housing 2010 as a diffuser assembly 2010 is an inadvertent error in McGrath, when McGrath is viewed as a whole, for all the reasons pointed out by the Examiner (Ans. 14, 15). Indeed, as pointed out by the Examiner, the embodiments relied upon in McGrath in the rejection of the claims explicitly states that there is a sound absorbing layer(s) 2015/2039 (id.). Accordingly, the Examiner’s position that the sound absorbing material of McGrath would function as claimed herein to substantially absorb all sound from the object (e.g., the speaker) such that sound from the speaker of McGrath will not be heard in adjacent rooms/spaces is reasonable. Notably, Appellant’s Specification also describes use of a speaker as a sound emitting object (e.g., Spec. paras. [0004], [0013]) that is placed in a wall recess with the noise muffler (Spec. para. [0014]). In light of these circumstances, a preponderance of the evidence supports the Examiner’s position that housing assembly 2010 in McGrath is not a sound diffuser. Appellant also argues that McGrath in combination with Warnaka does not teach or suggest the feature of “wherein the length of the cavity defined by the noise absorbing muffler is selected, based upon the frequency of the noise to be absorbed” (App. Br. 23; see also App. Br. 34-36). The Examiner notes that Warnaka explicitly states that “[t]he length of channels (or cavities when combined with McGrath within a sound absorber) will be Appeal 2011-013676 Application 11/017,642 5 dependent on the sound frequencies that the absorber is designed to absorb. . .” (Warnaka, col. 2, l. 55-58). The Examiner further takes official notice that is was well known in the art that the lower a sound frequency is the longer the sound wave and that a larger sound absorber is needed to absorb the lower sound, as compared to a higher frequency sound wave having a shorter wavelength which necessitates a smaller sound absorber (Ans. 17). Appellant does not challenge the official notice taken by the Examiner. Notably, the language of representative claim 17 does not require any specific length of the cavity, or any minimum noise frequency or level. Appellant has thus not shown error in the Examiner’s position that one of ordinary skill in the art would have recognized that the length of the cavity of McGrath can be selected based upon the desired frequency of the noise to be absorbed (e.g., Ans. 17). Thus, the § 103 rejection of independent claims 1, 12, 16, and 30 is affirmed. To the extent any of the dependent claims 2, 3, 4, 8, 11, 13, 14, 17, 18, 31, 32, 33, 37, and 38 are argued and/or rejected separately, we adopt the position of the Examiner. On the other hand, we reverse the § 103 rejection of dependent claims 7, 10, and 36 which all require that “the elongated cavity has open ends”. Appellant contends that the “open ends” requires a different structure than the plurality of holes 27 formed in the sides of the box 21 of Hellon (e.g., Hellon, Fig. 2) (App. Br. 40, 41). We agree that the broadest reasonable interpretation of “open ends” in light of the Specification requires that there be no closure structure at the ends, that is, the muffler ends are completely open (Spec. para. [0018] (“the ends, however, are not necessary if the length of the muffler is long enough” (emphasis added)); Figs. 1, 3, 4). Appeal 2011-013676 Application 11/017,642 6 Claim 9 is included in this rejection, and does not require “open ends”. Appellants do not specifically present any arguments for this claim. Thus, we affirm the rejection as to this claim. DECISION The rejection of claims 1, 2, 4, 8, 11-14, 16-18, 30, 31, 33, 37, and 38 under 35 U.S.C. § 103(a) over McGrath and Warnaka is affirmed. The rejection of claims 3 and 32 under 35 U.S.C. § 103(a) over McGrath, Warnaka, and Avery is affirmed. The rejection of claims 7, 10, and 36 under 35 U.S.C. § 103(a) over McGrath, Warnaka, and Hellon is reversed; the rejection of claim 9 over these references 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). AFFIRMED-IN-PART sld