NXP B.V.

Patent Trials and Appeals Board

Jun 22, 2020

2019005557 (P.T.A.B. Jun. 22, 2020)

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.
14/324,203 07/06/2014 Joost van Beek 81643964US01 6906
65913 7590 06/22/2020
Intellectual Property and Licensing
NXP B.V.
411 East Plumeria Drive, MS41
SAN JOSE, CA 95134
EXAMINER
N'DURE, AMIE MERCEDES
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
06/22/2020 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):
ip.department.us@nxp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOOST VAN BEEK, RADU SURDEANU,
FRANCISCUS WIDDERSHOVEN, PATRICE GAMAND, RIK JOS,
GERARDO DAALDEROP, and HANS RIJNS
Appeal 2019-005557
Application 14/324,203
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–8, 10–14, and 16–19. See Non-
Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM, DESIGNATING NEW GROUNDS OF REJECTION.

1 We use the term “Appellant” to refer to “applicant,” here NXP B.V, as
defined in 37 C.F.R. § 1.42. Appellant does not identify the real party in
interest in the Appeal Brief.
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2
CLAIMED SUBJECT MATTER
The claims are directed to an ultra-sound communication system.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A device, comprising:
a plurality of microphones configured to receive ultra-sound
signals, wherein the ultra-sound signals include encoded data;
and
a processor coupled to the plurality of microphones,
configured to detect the ultra-sound signals through the plurality
of microphones, calculate an angle of arrival, compare the
calculated angle of arrival to a preset angular threshold of the
ultra-sound signals at a microphone in the plurality of
microphones, perform a transaction based on the encoded data
received via the microphone in the plurality of microphones, and
disregard the ultra-sound signals after the calculated angle of
arrival is outside the preset angular threshold.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Wake US 2001/0019516 A1 Sept. 6, 2001
Fox US 2002/0089449 A1 July 11, 2002
Marks US 2010/0033427 A1 Feb. 11, 2010
Aoyagi US 2011/0075857 A1 Mar. 31, 2011
Kitazawa US 2011/0293107 A1 Dec. 1, 2011
Atsmon WO 00/21203 A1 Apr. 13, 2000

REJECTION2
Claims 1, 3–8, 10–14, and 16–19 are rejected under 35 U.S.C. § 103
as being unpatentable over Atsmon, Marks, Fox, Aoyagi, and Kitazawa.
Non-Final Act. 4.

2 The Examiner withdrew the rejection under 35 U.S.C. § 112(a). Ans. 17.
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3
OPINION
Independent claims 1, 7, and 14 are argued as a group for which we
select claim 1 as representative under 37 C.F.R. § 41.37(c)(1)(iv).
In rejecting claim 1, the Examiner found Atsmon to disclose the basic
device claimed including ultrasound microphones used to determine a
position of, and communicate between, electronic devices. Non-Final Act.
4–5 (citing, inter alia, Atsmon p. 2, ll. 1–5; p. 9, ll. 25–35, p. 25, ll. 3–4
portions of Atsmon). The Examiner recognized Atsmon does not disclose
subject matter satisfying the portion of the claim involving signal angle of
arrival calculation and disregarding signals outside a particular angle of
arrival. The Examiner relies predominantly on Marks to account for these
deficiencies. Non-Final Act. 5. The Examiner cites additional references
(Fox, Aoyagi, and Kitazawa) in a manner that Appellant apparently found
somewhat confusing, essentially for demonstrating the general knowledge
available, or level of skill, in the art with regard to signal processing, namely
triangulation-type directional measurement and filtration techniques. The
limitations not satisfied by Atsmon form the basis for Appellant’s
arguments. App. Br. 8. The Examiner confirms that it is chiefly Marks that is
relied upon to account for the noted deficiencies of Atsmon. Ans. 11–12.
We find no substantive discussion of Marks in Appellant’s Appeal
Brief arguments concerning claim 1 other than the assertion that “[t]he
Examiner [] cited various paragraph numbers from Marks without
explanation.” We think the Examiner’s citations to Marks are sufficiently
precise to render it apparent what subject matter the Examiner is relying on
to satisfy the disputed claim limitations. See In re Jung, 637 F. 3d 1356,
1363 (Fed. Cir. 2011); see also 37 C.F.R. § 1.104(c)(2) (“The pertinence of
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Application 14/324,203
4
each reference, if not apparent, must be clearly explained” (emphasis
added)).
Paragraphs 93 and 94 of Marks describe the embodiment depicted in
Figure 15 of Marks and discuss how sound capture unit 1506 has
microphones 1506a which allow it to:
select sound coming from particular directions. By enabling the
computing system 102 to filter out sounds from directions which
are not central to the interactivity, distracting sounds in the
environment will not interfere with or confuse the execution of
the interactive program determining an intensity value of the
sound generated by the input object, device, or other means.
We think the ability to “filter out sounds from [particular] directions”
would be understood by the skilled artisan to fall squarely within the
broadest reasonable interpretation of “disregard[ing] [] signals after the
calculated angle of arrival is outside [a] preset angular threshold” as recited
in claim 1. It is not necessary for the prior art to use identical language to
describe structures or acts disclosed therein in order to consider claim
limitations satisfied by those structures or acts. In re Neugebauer, 330 F. 2d
353, 356 n. 4 (CCPA 1964) (“In the construction of words, not the mere
words, but the thing and the meaning, are to be inquired after.”). We also
think the ability to filter out a signal based on its direction or angle of
incidence, without more, would also fairly imply to the skilled artisan the
ability to “calculate an angle of arrival” and “compare the calculated angle
of arrival to a present angular threshold” because the angle must be
calculated to determine whether or not it should be filtered out. Even if that
were not the case, paragraph 96 of Marks, cited by the Examiner in the
Answer (Ans. 12) clearly clarifies that “a standard triangulation algorithm”
is employed. We think this would be readily understood by the skilled
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artisan to involve, according to Figure 16 of Marks, “calculating the angle of
arrival” of signals originating from sources 1616. The portions of Fox (para.
4), Aoyagi (para. 59), and Kitazawa (para. 39) cited by the Examiner (Non-
Final Act. 5) strongly corroborate our determination in this regard.
Appellant takes issue with the Examiner’s elaboration on Marks’s
teachings. However, the subject upon which the Examiner expounds only
relates to general explanations of common engineering principles and
subject matter in paragraphs previously cited by the Examiner. In any case,
the filing of a reply brief is understood as a waiver of any procedural remedy
available for an examiner allegedly altering the thrust of a rejection in an
examiner’s answer. See 37 C.F.R. § 41.40(a).
Accordingly, for the foregoing reasons we sustain the Examiner’s
rejection of claims 1, 7 and 14.
With regard to claims 6, 13, and 19, respectively depending from
claims 5, 12 and 18, Appellant argues, “[w]hile Atsmon may disclose
‘encrypts information’ on line 24 of page 11, Atsmon fails to use the
claimed secret code.” Again, the obviousness analysis is not a question of
identifying disclosures in the prior art that match the claim language
verbatim. One skilled in the art would understand encryption to necessarily
involve the use of a secret code and the ability to encrypt, and for that
matter, decrypt, data to be sent or sent using that code. This seems a matter
capable of instant and unquestionable verification with any dictionary,
technical or otherwise. A skilled artisan must be presumed to know the
ordinary meaning of common terms used in the art. See, e.g., In re Jacoby,
309 F.2d 513, 516 (CCPA 1962) (an artisan must be presumed to know
something about the art apart from what the references expressly disclose).
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With regard to claims 4, 11, and 17, Appellant presents a rather
minimal argument regarding the alleged absence in any cited reference of
the recited “preset radial threshold” and its use to further filter or
“disregard” certain signals. App. Br. 10. We have reviewed the cited portion
of Atsmon (Final Act. 6 (citing Atsmon p. 25 l. 1–p. 26, l. 10); Ans. 13–14
(citing Atsmon p. 25, ll. 1–5)) and the subject matter therein satisfying the
language of claims 4, 11, or 17 is not apparent. It is true there is a generic
mention of “[p]osition determination,” however this does not appear to be
specific enough to satisfy the requirements of any of claims 4, 11, and 17,
which require either a processor or microcontroller configured to disregard,
or disregarding “ultra-sound signals after the measured distance is greater or
smaller than a preset radial threshold.”
Paragraph 94 of Marks, cited by the Examiner with regard to the
independent claims, additionally mentions that “[i]n a similar manner, the
sound capture unit can isolate sounds from a target focus zone to reliably
identify an intensity value.” Marks indicates that this aspect of Marks’s
system will be described in further detail in subsequent paragraphs.
Paragraphs 103 and 104 of Marks discuss the “volume of focus 1974”
(emphasis added). See Marks Fig. 18. In order to have a “volume of focus”
or “spatial volume” as described and illustrated in Marks, in addition to the
angles theta θ and phi Φ, discussed in the Examiner’s Answer and paragraph
59 of Marks, each of which relate to directions from the monitor 1506, there
must be at least a “radial” component to determine distance from the
monitor because such a component would be necessary in order to define a
three-dimensional, i.e., volumetric, boundary. See, e.g., Marks Fig. 18. Thus,
by incorporating Marks’s teachings regarding positional measurement and
filtration as proposed by the Examiner for reasons not the subject of any
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7
dispute in the present appeal, one would arrive at the subject matter of
claims 4, 11, and 17. Accordingly, we sustain the Examiner’s rejection of
these claims. However, as we have modified the thrust of the Examiner’s
rejection thereof, we designate this opinion as including new grounds of
rejection pursuant to 37 C.F.R. § 41.50(b) so as to afford Appellant the
procedural options for response associated therewith.
CONCLUSION
The Examiner’s rejection is AFFIRMED.
We designate our affirmance of the rejection of claims 4, 11, and 17
as being based on new grounds of rejection.
DECISION SUMMARY
Claim(s) 35 U.S.C. § Basis/Reference(s) Affirmed Reversed New
Grounds
1, 3–8,
10–14,
16–19
103 Atsmon, Marks,
Fox, Aoyagi, and
Kitazawa
1, 3–8,
10–14,
16–19
4, 11, 17

RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
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Application 14/324,203
8
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED; 37 C.F.R. § 41.50(b)