Ex Parte Wilkinson

Patent Trials and Appeals Board

Jan 2, 2019

14052102 - (D) (P.T.A.B. Jan. 2, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/052,102 10/11/2013 Bruce W. Wilkinson
122573 7590 01/02/2019
Fitch, Even, Tabin & Flannery, LLP/Walmart Apollo
120 South LaSalle Street
Suite 2100
Chicago, IL 60603-3406
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.
8842-131456-US 1027
EXAMINER
AKHTER, SHARMIN
ART UNIT PAPER NUMBER
2689
MAIL DATE DELIVERY MODE
01/02/2019 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
Appeal 2018---001453 1
Application 14/052, 102
Technology Center 2600
Before MELISSA A. RAAP ALA, Acting Vice Chief Administrative Patent
Judge, and JOHNNY A. KUMAR and TERRENCE W. MCMILLIN,
Administrative Patent Judges
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which are all the pending claims in this
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellant, the real party in interest is Wal-Mart Stores, Inc.
App. Br. 3.
Appeal2018---001453
Application 14/052, 102
STATEMENT OF THE CASE
Introduction
Appellant's disclosure relates to delivery receptacles. See Spec. ,r 1.
Claim 1 is illustrative and reads as follows, with disputed elements
highlighted in italics:
1. An apparatus comprising:
a delivered-package vault having a selectively-lockable
access portal;
a radio-frequency identification (RFID)-tag reader;
a control circuit operably coupled to the RFID-tag reader and
the selectively-lockable access portal and configured to verify
when at least one expected package RFID tag has actually
been placed within the delivered-package vault, at least in
part by comparing information read from the package RFID
tag with previously-received information regarding the
expected package, to confirm delivery of a corresponding
expected package.
App. Br. 14 (Claims App.).
The Examiner's Rejections
Claims 1-3, 6, 9, 10, 12, and 13 are rejected under 35 U.S.C. § 103 as
being unpatentable over Biasi et al. (US 2005/0075989 Al, published April
7, 2005) (hereinafter "Biasi") in view of Dohrmann et al. (US 6,967,575 Bl,
issued November 22, 2005) (hereinafter "Dohrmann").
Claims 4 and 5 are rejected under 35 U.S.C. § 103 as being
unpatentable over Biasi in view of Dohrmann and further in view of Martin
(US 2013/0063008 Al, published March 14, 2013).
Claims 7, 8, and 15-20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Biasi in view of Dohrmann and further in view of Nielsen
(US 2002/0180582 Al, published December 5, 2002).
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Appeal2018---001453
Application 14/052, 102
Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable over
Biasi in view of Dohrmann and further in view of Mcintyre (WO
2012/174387 A2, published December 20, 2012).
Claim 14 is rejected under 35 U.S.C. § 103 as being unpatentable over
Biasi in view of Dohrmann and further in view of Moreno (US
2002/0035515 Al, published March 21, 2002).
Prior Board's Decision on Appeal
In the Decision on Appeal dated March 9, 2017 ("Decision"), we
affirmed the rejection of claims 1-20 as being unpatentable over Biasi, and
Dohrmann alone or in combination with Martin, Nielsen, McIntyre, and
Moreno. The discussion of the teachings and the combination of Biasi in
view of Dohrmann, as applied to claim 1 on appeal are substantially similar
to those presented for claim 1 in the prior Decision. To the extent
Appellant's arguments are similar to those presented in the prior Decision,
we will not repeat our analysis and will refer to the prior Decision.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We adopt as our own ( 1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to Appellant's Appeal Brief. We concur
with the conclusions reached by the Examiner. We highlight and address
specific findings and arguments for emphasis as follows.
Appellant contends:
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Appeal2018---001453
Application 14/052, 102
By now placing the word "actually" in the claims as the applicant has
done, the applicant's arguments of record now fully accord with the
language and scope of the claims and the applicant's points regarding
what distinguishes the prior art from the claims are now indisputably
in play.
App. Br. 12 (hereinafter the "actually been placed" disputed
limitation).
Regarding the "actually been placed" disputed limitation, we adopt
the Examiner's findings at Ans. 5. In particular, we agree with the Examiner
that changing the claim language from "is placed" ( as was set forth in claim
1 at the time of our prior Decision) to "has actually been placed" does not
change the claim interpretation. Further, Appellant provides no persuasive
evidence or argument regarding why the teachings of Biasi do not meet the
disputed limitation of "actually been placed." We agree with the Examiner's
findings that Biasi teaches the "actually been placed" disputed limitation:
[T]he sender/courier places the object in the assigned box and closes
the assigned door. Then, the controller 16 locks the door, sets in use
indicator 19, scans the object for the object identification, i.e.,
package identification code 41, and captures the image of the person
who placed object 42 in the assigned box. Then, the sender/courier
confirms object delivery using user interface device 17 and obtains a
confirmation number from controller 16.
Final Act. 4 ( citing Biasi, ,r 28) ( emphasis added).
It is well settled that mere attorney's arguments and conclusory
statements, which are unsupported by factual evidence, are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such
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Application 14/052, 102
argument take the place of evidence lacking in the record. Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977).
Appellant presents no arguments for claims 2-20 and the
corresponding rejections. We refer to the above discussion and further adopt
the Examiner's findings and conclusion concerning the rejections of these
claims.
We have considered Appellant's arguments in the Reply Brief but find
them unpersuasive to rebut the Examiner's responses. Consequently, we
conclude there is no reversible error in the Examiner's rejections of claims
1-20.
DECISION
We affirm the Examiner's 35 U.S.C. § 103(a) rejections of claims
1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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