Lee Miller

Patent Trials and Appeals Board

Mar 16, 2022

2021000927 (P.T.A.B. Mar. 16, 2022)

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. 15/823,145 11/27/2017 Lee Miller KIT 01U 4702 67990 7590 03/16/2022 Rosser IP LLC 1630 Covington Road Yardley, PA 19067 EXAMINER BOYLAN, JAMES T ART UNIT PAPER NUMBER 2486 NOTIFICATION DATE DELIVERY MODE 03/16/2022 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): roy.rosser@gmail.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LEE MILLER ___________ Appeal 2021-000927 Application 15/823,145 Technology Center 2400 ____________ Before CARL W. WHITEHEAD JR., ADAM J. PYONIN and AMBER L. HAGY, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL1 Appellant is appealing the final rejection of claims 1, 21 and 24-30 under 35 U.S.C. § 134(a).2 See Appeal Brief 3. Claims 1, 27 and 29 are 1 Rather than reiterate Appellant’s arguments and the Examiner’s determinations, we refer to the Appeal Brief (filed August 10, 2020), the Reply Brief (filed November 18, 2020), the Final Action (mailed March 6, 2020) and the Answer (mailed September 25, 2020), for the respective details. 2 Appellant refers to “applicant” as defined in 37 C.F.R. 1.42(a). (“The word ‘applicant’ when used in this title refers to the inventor or all of the joint inventors, or to the person applying for a patent as provided in §§ 1.43, 1.45, or 1.46.”). Appellant identifies Lee Miller as the real party in interest. Appeal Brief 3. Appeal 2021-000927 Application 15/823,145 2 independent. Claims 2-20, 22 and 23 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Introduction According to Appellant, “The invention relates to [a] toy for the amusement or exercise of an animal, and more particularly to a laser toy for remotely viewing and playing with a pet and a smartphone app to facilitate interaction.” Specification 2. Independent Claims (disputed limitations emphasized) Claim 1. An animal monitoring and treat dispensing apparatus, comprising: a housing, a portion of the housing including a curved, translucent window that allows transmission of light to pass; a directed light source, said directed light source being one of a laser and a focused light emitting diode, and emitting light in a beam such that, where said beam intersects a solid surf ace, a spot is visible, and wherein said directed light source is disposed within the housing, behind said curved, translucent window, and which is mounted on a multi-axis mounting mechanism, having motion about two or more axis, motion about at least one of the two of more axis being powered by a servo-motor that is controllable remotely from a mobile device, thereby allowing light emitted from the source to be directed to automatically form a predetermined, user selected, pattern in multiple dimensions; an optical device integrated into the housing, which captures and transmits moving video, said optical device having a lens positioned and oriented such that said pattern created by said directed light source is viewable via said optical device; a speaker operable to transmit audio received from said mobile device; a microphone operable such that audio generated at a location of said apparatus is received by said mobile device; Appeal 2021-000927 Application 15/823,145 3 a multi-compartment, movable dispensing mechanism, communicatively coupled to, and controllable via, a wireless signal to dispense one or more items via a dispensing outlet, and configured to be responsive to a wireless signal to activate said dispensing from one of plural compartments in said multi- compartment, movable dispensing mechanism in order to dispense an item via said dispensing outlet, and, wherein, said multi-compartment, movable dispensing mechanism is disposed between said directed light source and said dispensing outlet such that it is situated below said directed light source and immediately above said dispensing outlet. Claim 27. An apparatus comprising: a housing, a portion of said housing including a curved, translucent window; a video camera integrated into said housing; a directed light source, said directed light source being one of a laser and a focused light emitting diode, and emitting light in a beam such that, where said beam intersects a solid surf ace, a spot is visible, and wherein said directed light source is disposed within said housing, and is mounted on a multi-axis mounting mechanism, having motion about two or more axes, motion about at least one of the two or more axis being powered by a servo motor that is controllable remotely from a mobile device, and wherein light emitted from said directed light source passes through said curved, translucent window in a user-controlled, alterable direction; that is independent of an orientation of said video camera; and a multi-compartment, rotatable dispensing mechanism and a dispensing outlet, said multi-compartment, rotatable dispensing mechanism disposed within said housing, between said directed light source and said dispensing outlet such that it is situated below said directed light source and below said video camera and directly above said dispensing outlet, and which is controllable remotely via said mobile device to dispense one or more items. Appeal 2021-000927 Application 15/823,145 4 Claim 29. An apparatus comprising: a housing; a camera integrated into or on said housing, and which is controllable remotely from a wireless, mobile device to capture and transmit still images and video; a directed light source, said directed light source being one of a laser and a focused light emitting diode, and emitting light in a beam such that, where said beam intersects a solid surface, a spot is visible, and wherein said directed light source is disposed within said housing and which is mounted on a multi-axis mounting mechanism, having motion about two or more axes, motion about at least one of the two of more axis being powered by a servo motor that is controllable remotely from said wireless, mobile device to direct light to form user selected patterns in multiple dimensions; a multi-compartment, rotatable dispensing mechanism and a dispensing outlet, said multi-compartment, rotatable dispensing mechanism disposed within said housing, between said directed light source and said dispensing outlet such that it is situated below said directed light source and below said video camera and directly above said dispensing outlet, and controllable from said wireless, mobile device, to dispense one or more items. Appeal Brief 17, 19-20 (Claims Appendix). References Name3 Reference Date Kates US 2006/0011144 A1 January 19, 2006 Salivar US 2006/0028548 A1 February 9, 2006 Jamison US 2013/0068173 A1 March 21, 2013 Tait US 2013/0300863 A1 November 14, 2013 Davis US 2013/0319337 A1 December 5, 2013 3 All reference citations are to the first named inventor only. Appeal 2021-000927 Application 15/823,145 5 Rejections on Appeal Claims 1, 21 and 24-26 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Davis, Jamison, Salivar and Kates. Final Action 4-10. Claims 27 and 28 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Davis, Jamison, Salivar, Kates and Tait. Final Action 10-15. Claims 29 and 30 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Davis, Jamison, Kates and Tait. Final Action 15- 19. ANALYSIS Claim 1 Appellant argues that, “Salivar is concerned with ‘video systems . . . providing both a wide angle field of view and a narrower view of an environment[.]’ (See Salivar Figure 1 at 10 and 20, [0002] lines 1-4). The field of endeavor is ‘surveillance for security or military applications’ (Salivar [0003] lines 4-6)” and “[t]he field of endeavor of Applicant’s invention is, in contrast, a ‘toy for the amusement or exercise of an animal and more particularly to a laser toy for remotely viewing and playing with a pet’ (page 2, lines 12 -14).” Appeal Brief 9 (emphasis omitted). Appellant’s argument that Salivar is non-analogous art is not persuasive of Examiner error because both Salivar and Appellant’s invention incorporate the use of lasers. See Salivar Abstract (“Devices such as lasers may also be used to correlate views of two or more video camera systems.”); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419-20 (2007); and Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (Noting that “[t]he Appeal 2021-000927 Application 15/823,145 6 Supreme Court’s decision in KSR . . . directs us to construe the scope of analogous art broadly,” and stating that “familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle.”). Appellant further argues, “[t]he difference between transparent and translucent, as defined in the Merriam-Webster dictionary is that transparent is the property of transmitting light without appreciable scattering so that bodies lying beyond are seen clearly, while translucent is the property of transmitting and diffusing light so that objects beyond cannot be seen clearly.” Appeal Brief 9-10. “Applicant, therefore, submits that a transparent window is not the functional equivalent of a translucent window, and that Salivar does not, therefore, disclose Applicant’s claim element of ‘curved, translucent window.’” Appeal Brief 10. Appellant does not provide a specific citation to the dictionary definition; however, Merriam Webster defines translucent as including “1b: CLEAR, TRANSPARENT.” See Merriam Webster (https://www.merriam- webster.com/dictionary/translucent; last visited March 6, 2022); see also Specification 14 (“The window 550 is preferably a transparent and/or translucent plastic and has shatter resistant properties.”). Accordingly, Appellant’s argument is not persuasive of Examiner’s error. The Examiner cites to Kates for teaching the claimed “multi- compartment, movable dispensing mechanism is disposed between said directed light source and said dispensing outlet such that below said light source and immediately above said dispensing outlet. [See Kate [Fig. 5] Light source (511) is above gate (504) and the outlet is the vertical space between dispenser and bowl.].” Final Action 8. Conversely, Appellant contends, the Appeal 2021-000927 Application 15/823,145 7 claimed “dispensing outlet (See Figure 5 at 540) is the point at which the treat being dispensed comes to rest and can be retrieved by the pet” and “in Kates’ Figure 5, the point at which the treat comes to rest and can be retrieved by the pet is the food bowl.” Appeal Brief 11. “[Appellant] therefore submits that [Appellant’s] ‘dispensing outlet’ and Kates’ ‘food bowl’ are the correct functional equivalents, and that the vertical space between the gate and the food bowl in Kates’ Figure 5 is simply a vertical space.” Appeal Brief 11. Appellant concludes that, “Kates does not, therefore, disclose [Appellant’s] claim limitation that reads in relevant part ‘wherein, said multi-compartment, movable dispensing mechanism is disposed . . . immediately above said dispensing outlet.’” Appeal Brief 12. Kates’ Figure 5 is reproduced below: FIG. 5 is a block diagram of the treat dispenser 122. In the dispenser 122, a first RF transceiver 502, a treat sensor 503, a low-supply sensor 510, and a gate 504 are provided to a processor 501. On command from the computer system 103, the processor 501 controls Appeal 2021-000927 Application 15/823,145 8 the gate 504 to release a treat (or medicine, vitamin, etc.) from a reservoir 508. Kates ¶ 183. Here, we agree with Appellant that Kates’ vertical space (between the gate dispensing mechanism and the food bowl) is not an outlet in the same vein as the claimed dispensing outlet, as consistent with the Specification. See Specification 15 (“[T]he dispensing mechanism 530 activates and the desired item is moved from [its] storage position to the dispensing outlet 540 located in the housing 520.”); see also Appellant’s Figure 5. We also agree with Appellant that Kates’ food bowl is the functional equivalent of the claimed dispensing outlet. See Appeal Brief 11. Nonetheless, even considering that Kates’ food bowl is actually equivalent to Appellant’s dispensing outlet, we are not persuaded of Examiner error. Claim 1 requires the multi-compartment, movable dispensing mechanism to be disposed between the directed light source and the dispensing outlet such that the multi-compartment, movable dispensing mechanism is situated below the directed light source and immediately above said dispensing outlet. However, the Specification does not describe nor limit the location of the multi- compartment, movable dispensing mechanism in relation to the light source and dispensing outlet. See Appeal Brief 5 (referring solely to Appellant’s Figure 5 (elements 530, 540 and 560)); see also Specification 13-16. Appellant’s Figure 5 depicts a space between the multi-compartment, movable dispensing mechanism and the dispensing outlet, in the same manner as Kates’ Figure 5. Thus, we discern no meaningful difference between the claimed immediately above limitation and Kates’ configuration of components disclosed in Figure 5. Appeal 2021-000927 Application 15/823,145 9 If we construe immediately above as narrowly as Appellant implies, Kates discloses the disputed limitation because there is just vertical space between the food bowl and the gate, therefore the multi-compartment, movable dispensing mechanism is situated below the directed light source and immediately above said dispensing outlet as required in claim 1.4 Finally, Appellant has not demonstrated that the Examiner’s proffered combination in regard to positioning the multi-compartment, movable dispensing mechanism would have been “uniquely challenging or difficult for one of ordinary skill in the art,” so therefore we agree with the Examiner that the proposed modification would have been within the purview of the ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Accordingly, we affirm the Examiner’s obviousness rejection of independent claim 1, as well as dependent claims 21 and 24-26. We also affirm the Examiner’s obviousness rejections of both independent claims 27 (“directly above”) and 29 (“directly above”), commensurate in scope with claim 1 for the same reasons discussed for claim 1, as well as dependent claims 28 and 30. See Appeal Brief 12-15. 4 Appellant’s disclosure, as filed, provides no information relating to the distance between the dispensing mechanism and the outlet. In the event of further prosecution, the Examiner may wish to determine whether the boundaries of the claimed “immediately above” and “directly above” limitations are sufficiently clear, so as to comply with 35 U.S.C. § 112, second paragraph. Appeal 2021-000927 Application 15/823,145 10 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 21, 24-26 103 Davis, Jamison, Salivar, Kates 1, 21, 24- 26 27, 28 103 Davis, Jamison, Salivar, Kates, Tait 27, 28 29, 30 103 Davis, Jamison, Kates, Tait 29, 30 Overall Outcome 1, 21, 24- 30 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). See 37 C.F.R. § 1.136(a)(1)(v). AFFIRMED