Ex Parte Wilkinson

Patent Trial and Appeal BoardJul 29, 2016

13398492 (P.T.A.B. Jul. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/398,492 02/16/2012 122573 7590 07/29/2016 Fitch, Even, Tabin & Flannery, LLP/ Walmart 120 South LaSalle Street Suite 1600 Chicago, IL 60603-3406 FIRST NAMED INVENTOR Bruce W. Wilkinson 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. 8842-100816(TC2011-12121) 8541 EXAMINER BROWN, VERNAL U ART UNIT PAPER NUMBER 2686 MAILDATE DELIVERY MODE 07/29/2016 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 BRUCE W. WILKINSON Appeal2015-003638 Application 13/398,492 Technology Center 2600 Before JAMES W. DEJMEK, MATTHEW J. McNEILL, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's final rejection of claims 1-15, which constitute all claims pending in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. STATEMENT OF THE CASE The claimed invention relates to an RFID tag that attempts to determine its own relative movement and change its own state. Spec. 1-3. Claims 1 and 10 are independent, and read as follows: 1 Appellant identifies Wal-Mart Stores, Inc. as the real party in interest. App. Br. 3. Appeal2015-003638 Application 13/398,492 1. A radio-frequency identification (RFID) tag configured to unilaterally seek to detect its own motion relative to its environment. 10. A radio-frequency identification (RFID) tag configured to unilaterally change its own read state other than in response to a mere passage of time and other than in response to merely powering up. App. Br. 14--15. THE REJECTIONS ON APPEAL Claims 1--4 and 13 stand rejected under 35 U.S.C. Â§ 102(b) as anticipated by Smith (US 2007/0182578 Al; pub. Aug. 9, 2007). Final Act. 3. Claims 5-8 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Smith and Missimer at al. (US 8,228,173 B2; July 24, 2012) ("Missimer"). Final Act. 4. Claims 9-12 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Smith and Fretenburg, et al. (US 8,334,801 B2; Dec. 18, 2012) ("Fretenburg"). Final Act. 4--5. Claims 14 and 15 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Smith and EPCglobal, EPCâ„¢ Radio Frequency Identity Protocol, Specification for RFID Air Interface, Class-I Generation-2 UHF RFID, Version 1.0.9, 1-94 January 31, 2005. Final Act. 5---6. ANALYSIS We have reviewed the Examiner's rejections in light of Appellant's arguments presented in this appeal. Any other arguments which Appellant could have made but did not make in the Briefs are deemed to be waived. 2 Appeal2015-003638 Application 13/398,492 See 37 C.F.R. Â§ 41.37(c)(l)(iv). On this record, we are not persuaded the Examiner erred. We adopt as our own the findings and reasons set forth in the rejections from which this appeal is taken and in the Examiner's Answer, and highlight the following for emphasis. Claim 1 Appellant argues the Examiner erred in finding Smith discloses a "radio-frequency identification (RFID) tag that is configured to unilaterally seek to detect its own motion," as Appellant argues claim 1 requires. App. Br. 6. Specifically, Appellant alleges Smith discloses connecting an accelerometer to an RFID tag so that "[a]cceleration [detected by the accelerometer can be] indicated in the response [of the RFID tag and] may be used to determine a motion and/or orientation of an object coupled to the accelerometers." Id. Appellant asserts this is not the same as an RFID tag detecting its own motion. Id. Moreover, although Smith also states the accelerometer (ICS) and RFID tag "may [as an alternative to the connection explicitly disclosed] be packaged as an integrated unit," Smith i-f 25, Appellant argues such integrated packaging would involve non-trivial, and possibly insurmountable, technical challenges and no embodying details are disclosed or taught in Smith. App. Br. 9-10. We need not reach the issue of integrated packaging, because we are not persuaded the Examiner erred in finding the disputed claim limitation in Smith's explicit disclosure of an RFID tag connected to an accelerometer. We begin with the claim language. Although Appellent asserts the issue is whether Smith discloses an RFID tag and accelerometer as "one thing" and not "physically separate," App. Br. 7, this is not what the claim recites. The claim requires the RFID tag is "configured'' to "see~' to 3 Appeal2015-003638 Application 13/398,492 "detect" its own motion. App. Br. 14 (Claims Appendix) (emphases added). The Examiner finds Smith Figure 13 is so configured, Final Act. 3. Figure 13 is reproduced below. MCDtJLAflON UH l x ~~~~~~''''' l x I 1:312 FIG. 13 Figure 13 illustrates RFID tag 1310, which includes shift register 1312, modulation circuit 1314, and power harvesting circuit 1315 which "collect[ s] radio frequency energy received through antenna 1316 and provide[s] that energy to operate the various circuits of RFID tag 1310 and to operate the accelerometer 1320." Smith i-f 44 (emphasis added). Accelerometer 1320, in tum, provides input to the RFID tag, namely, latching bits of the shift register 1312, represented in Figure 13 as "Y" bits. Id. Smith discloses "[a]lthough the illustrated embodiment only shows a single accelerometer, other embodiments may use multiple accelerometers, with each one providing a multi-bit value to the shift register [of RFID tag 1310]." Id.; Final Act. 3. 4 Appeal2015-003638 Application 13/398,492 The foregoing disclosures in Smith support the Examiner's finding, Ans. 2, that the RFID tag of Figure 13 is "configured to" (has circuitry to) seek to detect its motion relative to its environment as recited in claim 1. It does so by powering and receiving motion data (input) from one or more accelerometers, as shown. See supra. The claim, as written, does not preclude the RFID tag from seeking data from an accelerometer. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (claim terms given their "their broadest reasonable interpretation consistent with the specification"). 2 For the foregoing reasons, we sustain the Examiner's rejection of claim 1under35 U.S.C. Â§ 102(b) as anticipated by Smith. Claim 10 Claim 10 requires an "(RFID) tag configured to unilaterally change its own read state other than in response to" a passage in time or powering up. App. Br. 15 (Claims Appendix). The Examiner finds this limitation in the combination of Smith, which teaches an RFID tag configured to seek to detect its motion, see supra, and Fretenburg, which teaches a transponder transitioning to wake state when motion is detected. Final Act. 4 (citing Fretenburg col. 6, 11. 7-11). Appellant argues the Examiner erred in rejecting claim 10 for the same reason as claim 1, i.e., that Smith does not 2 The term "unilaterally" also does not distinguish claim 1 from Smith's disclosures. App. Br. 9. Appellant's Specification indicates "unilaterally" means without the involvement of a tag reader (without responding to an inquiry of a reader, i.e., in a quiet state). Spec. i-fi-15, 13. Smith Figure 13 likewise includes no tag reader. Moreover, Smith Figure 13 also accords with the plain meaning of "configured to unilaterally seek to detect its own motion," in that no other device in Figure 13 is telling the RFID tag to seek to detect its own motion. 5 Appeal2015-003638 Application 13/398,492 teach "an RFID tag" as claimed because the accelerometer is separate. App. Br. 10. We are unpersuaded by this argument for the reasons discussed above. See supra. Appellant additionally argues Fretenburg's state change is not a change in "read state" as the claim requires, and that the Examiner lacked rationale for combining Fretenburg and Smith because they are, Appellant alleges, non-analogous art. App. Br. 11-12. We address each argument in tum. The Examiner finds the teaching of an RFID tag configured to "change its own read state" in the combination of Smith and Fretenburg, not merely in Fretenburg as Appellant asserts. Ans. 2-3. Specifically, the Examiner finds Smith teaches an RFID "read" state in which the RFID tag transmits a response signal based on the detected state of the tag. Id.; Smith i-f 38.3 The Examiner further finds Smith teaches the RFID tag is configured to seek to detect its motion. Ans. 2-3; Smith i-fi-126, 38. Fretenburg, according to the Examiner, adds the element of the RFID tag (transponder) changing states when motion is detected, for example, transitioning to wake state which allows the RFID tag to be read. Ans. 3; Fretenburg col. 6, 11. 7- 11. Appellant's argument does not address the combined teachings of the references. App. Br. 11. Because "one cannot show non-obviousness by attacking references individually where ... the rejections are based on combinations of references," In re Keller, 642 F.2d 413, 426 (CCPA 1981), we are not persuaded the Examiner erred in finding Smith and Fretenburg teach the elements of claim 10. 3 Similarly, Appellant's Specification describes the RFID read state as permitting an RFID tag to respond to inquiries (e.g., from tag readers). Spec. i-f 5. 6 Appeal2015-003638 Application 13/398,492 Similarly, we discern no error in the Examiner's finding that Smith and Fretenburg are analogous art and that the combination utilized familiar elements to yield a predictable result (namely, a selectively operable RFID tag). Ans. 5; see also KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Appellant argues "Smith is directed to RFID tags while Fretenberg is not." App. Br. 11. Fretenburg, however, is directed to transponders that detect their motion. Fretenburg col. 6, 11. 7-9. Smith, similarly, is directed to transponders (i.e., powered RFID tags) that detect their motion, see supra. Prior art is analogous if it "is from the same field of endeavor, regardless of the problem addressed." Comaper Corp. v. Antee, Inc., 596 F.3d 1343, 1351 (Fed. Cir. 2010) (emphasis added). Thus, Appellant's argument that Fretenburg and Smith are directed to different problems, App. Br. 11-12, does not persuade us the Examiner erred. Accordingly, we sustain the Examiner's rejection of claim 10 under 35 U.S.C. Â§ 103(a) as unpatentable over Smith and Fretenburg. Remaining Claims Appellant does not argue any of the remaining (dependent) claims separately. Accordingly, we sustain the rejections of claims 2-9 and 11-15. DECISION The Examiner's rejections of claims 1-15 are AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l). See 37 C.F.R. Â§ 1.136(a)(l)(iv) (2014). AFFIRMED 7