Quantum Technology Sciences, Inc.

Patent Trials and Appeals Board

Mar 2, 2021

2020000867 (P.T.A.B. Mar. 2, 2021)

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.
15/343,312 11/04/2016 Brian Richard Kryszczynski 11848-014 4002
158051 7590 03/02/2021
FERDINAND ROMANO
ACCEL IP LAW, PLLC
PO Box 427
COCOA, FL 32923
EXAMINER
BAGHDASARYAN, HOVHANNES
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
03/02/2021 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):
fromano@acceliplaw.com
mhill@acceliplaw.com
rgatewood@acceliplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BRIAN RICHARD KRYSZCZYNSKI,
MARK ANDREW TINKER, PAUL ARMIN NYFFENEGGER,
ARTHUR OWEN ENDRESS, and KENNETH ALLAN PORTS
____________

Appeal 2020-000867
Application 15/343,312
Technology Center 3600
____________

Before JEREMY M. PLENZLER, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 2–17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Quantum Technology Sciences, Inc. as
the real party in interest. Appeal Br. 1.
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THE INVENTION
Appellant’s invention relates to “sensor devices for acquisition and
characterization of data.” Spec. ¶ 2. Claims 9 and 14 are the independent
claims on appeal, and claim 9, reproduced below with emphasis added, is
illustrative of the subject matter on appeal.
9. A method of forming a sensing system responsive to
signals in a wavefield of seismic or acoustic energy, comprising:
providing a foil layer configured as a sheet and having
piezoelectric properties;
positioning the foil layer along or about a frame in an
entirely spaced-apart relation to the frame, the frame having a
surface to which the foil layer is connected to stabilize the shape
of the foil layer, the spaced-apart relation between the frame and
the foil layer resulting in a seismic or acoustic isolating gap
which decouples transmission of wavefield energy from the
frame to the foil layer, whereby decoupling of seismic or acoustic
signals between the frame and the foil layer renders the foil layer
more responsive to direct coupling with the wavefield of seismic
or acoustic energy, based on direct incidence of the wavefield on
the foil layer, and renders the foil layer less responsive to
wavefield energy received by the frame and then transmitted
from the frame to the foil layer; and
[providing] circuitry coupled to the foil layer to transform
separations of charge, occurring when material of the foil layer
undergoes strains, into voltages and to convert the voltages into
digital data in response to signals in the wavefield sensed by the
foil layer.

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THE REJECTIONS2
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Martin US 5,434,830 July 18, 1995
Toda US 6,411,014 B1 June 25, 2002
Duheille US 2010/0276215 A1 Nov. 4, 2010
Kopetsch US 2011/0166459 A1 July 7, 2011
Pearce US 2013/0208571 A1 Aug. 15, 2013
Fennell US 2014/0352440 A1 Dec. 4, 2014
The following rejections are before us for review:
I. Claims 2–17 stand rejected based on obviousness-type
double patenting as being unpatentable over claims 1–23
of U.S. Application 15/343,295 (now issued as U.S. Pat.
10,185,054 B2 on January 22, 2019).
II. Claims 2, 9, 10, and 14 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Pearce and Kopetsch.
III. Claims 2–4, 7, 9–12, and 14–17 stand rejected under 35
U.S.C. § 103 as being unpatentable over Toda and
Kopetsch.
IV. Claim 5 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Toda, Kopetsch, and Fennel.

2 The Examiner’s rejections of claims 3 and 11 under 35 U.S.C. § 112(b) as
indefinite, and of claims 2–4, 7, 9–12, and 14–17 under 35 U.S.C.
§ 102(a)(1) as anticipated by Toda, have been withdrawn. Ans. 3.
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V. Claims 8 and 13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Toda, Kopetsch, and Martin.
VI. Claim 6 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Toda, Kopetsch, and Duheille.

OPINION
Rejection I
The Examiner rejected claims 2–17 on the basis of obviousness-type
double patenting as being unpatentable over claims 1–23 of U.S. Application
15/343,295 (now issued as U.S. Pat. 10,185,054 B2 on January 22, 2019)
stating only that the claims of the instant application are “broader in scope
than” and “not patentably distinct from” the “independent claims of the
allowed Application 15343295.” Final Act. 3. Appellant argues that the
Examiner has failed to state a prima facie case of obviousness to support a
double patenting rejection, because the Examiner has not provided “any
basis for any obviousness-type double patenting rejection.” Response filed
under 37 C.F.R. § 1.116, pp. 7, 8 (dated Mar. 12, 2019). Indeed, the MPEP
explains that the analysis required for an obviousness-type double patenting
rejection is similar to that which must be undertaken for an obviousness
rejection based on 35 U.S.C. § 103. See MPEP § 804. In other words, it is
the Examiner’s initial burden to set forth a proper rejection. The Examiner
does not address this rejection (or Appellant’s argument regarding same) in
the Examiner’s Answer. Ans. 1–11. On the record before us, we agree with
Appellant that a sustainable rejection has not been established by the
Examiner.
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Accordingly, we do not sustain the Examiner’s rejection of claims 2–
17 on the basis of obviousness-type double patenting over claims 1–23 of
U.S. Application 15/343,295 (now issued as U.S. Pat. 10,185,054 B2 on
January 22, 2019).
Rejection II
Claim Construction
Independent claims 9 and 14 require positioning a foil layer in an
entirely spaced-apart relation along or about a frame, while at the same time
requiring that the frame has a surface to which the foil layer is connected.
Appeal Br. 23, 24 (Claims App.). Thus, we construe claims 9 and 14 to
mean that the foil layer has no direct structural connection (or, as Appellant
argues infra, direct mechanical coupling) to the frame, but is entirely
spaced-apart from the frame, and that the foil layer is indirectly connected to
a surface of the frame (i.e., the foil layer is in indirect contact with a surface
of the frame by a structure that is not the frame, for example, by an
intermediate layer). See, e.g., Spec. ¶ 51 (“intermediate layer 47 functions to
so limit mechanical coupling between the sheet and the frame”).
Claims 9 and 14 also require the entirely spaced-apart relation of the
foil layer to the frame to result in an isolating gap which decouples
transmission of wavefield energy from the frame to the foil layer. Appeal
Br. 23, 24 (Claims App.). We construe claims 9 and 14 to mean that the
isolating gap decouples transmission of wavefield energy from the frame to
the foil layer by mechanically decreasing direct contact between the frame
and the foil layer; however, because the foil layer remains indirectly
connected to a surface of the frame, the decoupling achieved by the isolating
gap does not eliminate all mechanical coupling between the foil layer and
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the frame. In other words, according to claims 9 and 14, some wavefield
energy is still transmitted from the frame to the foil layer via the indirect
connection between the foil layer and a surface of the frame, or put another
way, some mechanical coupling remains between the foil layer and the
frame notwithstanding the isolating gap. Our claim construction appears to
be consistent with Appellant’s claim construction: “[a] feature of the
disclosed embodiments is that mechanical coupling between the frame and
the sheet is so limited . . . .” Appeal Br. 4 (emphasis added); id. (“[s]ee
Figure 3A, which illustrates a foam layer 47 positioned between a frame 46
and a sheet 35,” wherein “[t]here is reduced or minimum mechanical
coupling between the sheet and the frame”).
Claims 9 and 14 also recite a “whereby” clause that uses terms of
degree, namely, “more responsive” and “less responsive” (emphasis added),
without expressly stating a reference point against which to measure
increases or decreases in the responsiveness of the foil layer:
whereby decoupling of seismic or acoustic signals between the
frame and the foil layer renders the foil layer more responsive to
direct coupling with the wavefield of seismic or acoustic energy,
based on direct incidence of the wavefield on the foil layer, and
renders the foil layer less responsive to wavefield energy
received by the frame and then transmitted from the frame to the
foil layer.
Appeal Br. 23, 24 (Claims App. (emphasis added)). To the extent the
“whereby” clause requires structure (i.e., there exists a decoupling resulting
from an isolating gap due to an entirely spaced-apart relation of the foil layer
and the frame that would not result in the foil layer being more responsive to
direct wavefield energy coupling and less responsive to frame transmitted
wavefield energy), we construe claims 9 and 14 to mean that the decoupling
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of signals between the frame and the foil layer renders the foil layer more or
less responsive to such wavefield energies as compared to a frame and foil
layer that is not decoupled by an isolating gap resulting from an entirely
spaced-apart relation between a frame and foil layer.3
Our claim construction in this regard appears to be contrary to
Appellant’s suggested interpretation of claims 9 and 14. Appellant submits
that
[t]he claims define the invention with a comparison between
stimulation of the piezoelectric sheet by direct coupling and
stimulation of the piezoelectric sheet with energy transferred
between the frame and the piezoelectric sheet, i.e., energy which
the frame receives from the wavefield and which is transferred
to the piezoelectric sheet. The claims require that the energy the
piezoelectric sheet receives via coupling of seismic or acoustic
signals between the frame and the foil layer, compared to energy
the piezoelectric sheet receives by direct coupling, is so limited
that the direct coupling of the piezoelectric sheet with signals of
the wavefield is the predominant, i.e., the primary, means for
stimulating the sensor element with seismic or acoustic energy.
Appeal Br. 3; see also Reply Br. 16 (“claim 9 explicitly requires that [the]
signal received by [the] sensor element from the frame is less than that
received by [the] sensor element due to direct incidence of the wavefield
upon the sensor element”). In other words, we do not agree with a claim
construction that interprets claims 9 and 14 as requiring the foil layer to have
a greater responsiveness to direct wavefield energy coupling than to frame
transmitted wavefield energy due to the decoupling. Nor do we read any

3 Notably, the Examiner also determines that the independent claims fail to
provide specifics with respect to a reference point against which the
increased and decreased responsiveness of the claimed foil layer is
compared; however, the Examiner does not reject the claims as indefinite.
Ans. 8.
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magnitude of responsiveness (i.e., predominant or primary responsiveness)
into claims 9 and 14 for the foil layer. Cf. Appeal Br. 22–24 (Claims App.)
(wherein dependent claims 3, 8, 11, 13, and 15 require the responsiveness of
the foil layer to direct wavefield energy coupling to be the predominant or
primary means for stimulating the foil layer).
The Examiner’s Final Office Action Rejection
Appellant submits that claims 2, 10, and 14 “rise or fall with the
disposition of claim 9.” Appeal Br. 11.
Regarding independent claim 9, in the Final Office Action, the
Examiner finds, inter alia, that Pearce’s foil layer (i.e., piezoelectric element
300) is positioned in an entirely spaced-apart relation to Pearce’s frame (i.e.,
outer tube diaphragm 104), as claimed. Final Act. 4 (citing Pearce Fig.
3A).4
Appellant argues that
the foil layer of Pearce is not shown to primarily respond to
wavefield energy via direct coupling of the wavefield energy
with the piezo element 300. Rather, the element 300 appears to
primarily respond via transmission of wavefield energy from the
frame (e.g., frame 102) or the diaphragm (104) to the foil layer.
Appeal Br. 11–12 (emphasis added); see also Reply Br. 4 (“piezoelectric
element 300 of Pearce does not appear to primarily respond to wavefield
energy transmitted from (i) the substrate 102 . . . or (ii) from the diaphragm
104”).
We are not persuaded by Appellant’s argument because independent
claim 9, as construed supra, does not require the foil layer to primarily
respond to direct wavefield energy coupling, but only that the isolating gap

4 Kopetsch is relied on by the Examiner for teaching the claimed circuitry.
Final Act. 5 (citations omitted).
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resulting from the entirely spaced-apart relation of the foil layer to the frame
decouples the frame and foil layer to render the foil layer more responsive to
direct wavefield energy coupling as compared to the responsiveness of the
foil layer to direct wavefield energy when the foil layer is not decoupled
from the frame by an isolating gap resulting from an entirely spaced-apart
relation between a frame and foil layer. See also Reply Br. 2 (wherein
Appellant’s argument that “[n]one of the referenced patents address
mechanically decoupling a sensing element from other support structures in
order to better effect coupling of the sensing element directly with the wave
field” is misplaced as applied to claims 9 and 14). Unclaimed features
cannot impart patentability to claims. In re Hiniker Co., 150 F.3d 1362,
1369 (Fed. Cir. 1998); In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Notwithstanding, Appellant argues persuasively that the Examiner
erred by finding an isolating gap between Pearce’s foil layer (i.e.,
piezoelectric element 300) and frame (i.e., outer tube diaphragm 104). See
Appeal Br. 13; Reply Br. 5 (“claim 9 recites that the foil layer is in an
entirely spaced apart relation to the frame,” and therefore, “the diaphragm
element of Pearce cannot be part of the frame”). Figures 3A and 3B of
Pearce are reproduced below.
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Figures 3A and 3B depict a hydrophone assembly with an inner tube
substrate 102, an outer tube diaphragm 104, and a piezoelectric element 300.
Pearce ¶¶ 15, 16, 27, 29. Pearce discloses that “piezoelectric element 300 is
wrapped around and bonded to the diaphragm 104 by applying pressure to
the flexible piezoelectric element 300 until the adhesive side 302 affixes to
the diaphragm 104.” Id. ¶ 29. Thus, Pearce describes the adhesive as a side
of piezoelectric element 300 itself—not a separate layer of adhesive that
entirely spaces apart piezoelectric element 300 from outer tube diaphragm
104, and therefore, we do not agree that Pearce’s outer tube diaphragm 104
corresponds to the claimed frame.
The Examiner’s Answer
In the Examiner’s Answer, the Examiner relies on Pearce’s inner tube
substrate 102 as corresponding to the claimed frame, rather than outer tube
diaphragm 104. Ans. 3–4 (Pearce’s “foil 300 [is] positioned entirely on 104
plastic diaphragm which is separate from the frame 102 inner tube substrate”
(citing Pearce, Fig. 3A)). The Examiner further finds that the annular cavity
between Pearce’s inner tube substrate 102 and outer tube diaphragm 104
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discloses an isolating gap, as claimed. Id. at 4 (citing Pearce ¶ 9). Notably,
as described supra, Pearce’s piezoelectric element 300 is bonded to outer
tube diaphragm 104. The Examiner explains that the annular cavity between
Pearce’s inner tube substrate 102 and piezoelectric element 300 bonded to
outer tube diaphragm 104, as well as the limited mechanical connection (i.e.,
the gluing) between Pearce’s inner tube substrate 102 and piezoelectric
element 300 bonded to outer tube diaphragm 104, decouples acoustic signals
from being transmitted from inner tube substrate 102 to piezoelectric
element 300 as compared to “[i]f piezoelectric element [300] would be
contacting [inner] tube [substrate 102].” Id. In this respect, the
Examiner’s findings are consistent with our claim construction discussed
supra.
Regarding the Examiner’s findings as set forth in the Examiner’s
Answer, Appellant argues that Pearce fails to disclose “[a] spaced-apart
relation between the frame and the foil layer resulting in a seismic or
acoustic isolating gap which decouples transmission of wavefield energy
from the frame to the foil layer,” because “Pearce’s piezoelectric element
300 is only attached to the diaphragm 104 and the diaphragm is essentially
entirely clamped along its edges to the substrate 102.” Reply Br. 4–5; cf. id.
at 6 (“in Pearce, there is an annular cavity, formed from the hermetical seal
of the . . . diaphragm edges to the frame via a bonding agent”).
We are not persuaded by Appellant’s argument. First, we recognize
that Pearce’s Figure 3A supra depicts piezoelectric element 300 sized
relative to outer diaphragm 104, such that outer tube diaphragm 104 entirely
spaces apart piezoelectric element 300 from inner tube substrate 102, as
required by claim 9. However, we also recognize that claim 9 requires that
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the spaced-apart relation between piezoelectric element 300 and inner tube
substrate 102 must result in an isolating gap. Thus, we further recognize that
the annular cavity around the inner tube substrate 102 formed by gluing
outer tube diaphragm 104 to inner tube substrate 102 contributes to
piezoelectric element 300 being in an entirely spaced-apart relation to inner
tube substrate 102, and also results in an isolating gap, as claimed. Pearce
¶ 27. In particular, Pearce discloses that
[h]ydrophone base 100 may be comprised of an inner tube
substrate 102 and a[n] outer tube diaphragm 104. Included on
the diaphragm 104 are two diaphragm holes on the bottom 106a,
106b, and a symmetric two diaphragm holes on the top 106c,
106d. The inner tube substrate 102 is inserted into the diaphragm
104 so that the diaphragm is positioned substantially in the center
of the inner tube substrate 102 as depicted in FIGS. 1A and 1B.
Glue is then inserted into the diaphragm holes 106a-106d and
allowed to dry, affixing the diaphragm 104 to the inner tube
substrate 102. . . . The diaphragm 104 may comprise a flexible
material, such as plastic, and its gluing to the substrate 102
creates a hermetically sealed annular cavity around the substrate
102.
Id.
Although Appellant identifies Pearce’s figures, generally, we cannot
find express support for Appellant’s submission that Pearce discloses
clamping between diaphragm 104 and substrate 102. See Reply Br. 4
(simply stating “as understood from the figures” without further discussion
of particular portions of specific figures or reproduction of those figures).
Rather, Pearce describes inner tube substrate 102 as concentrically centered
within outer tube diaphragm 104 and glued thereto to create a hermetically
sealed annular cavity between inner tube substrate 102 and outer tube
diaphragm 104. Thus, Appellant’s argument does not apprise us of error in
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the Examiner’s reliance on Pearce’s annular cavity for disclosing an
isolating gap that results from the entirely spaced-apart relationship of the
piezoelectric element 300 from inner tube substrate 102. Moreover,
although piezoelectric element 300 is also indirectly connected to a surface
of inner tube substrate 102 via the gluing of outer tube diaphragm 104 to
which piezoelectric element 300 is bonded, claim 9 requires such an indirect
connection between the foil layer and a surface of the frame to stabilize the
shape of the foil layer.5
Appellant also argues that “[n]one of the referenced patents address
mechanically decoupling a sensing element from other support structures in
order to better [a]ffect coupling of the sensing element directly with the
wave field.” Reply Br. 2. However, we agree with the Examiner’s reliance
on inherency to determine that decoupling Pearce’s piezoelectric element
300 from inner tube substrate 102 (i.e., by creating the annular cavity)
mechanically decouples piezoelectric element 300 from inner tube substrate
102, such that piezoelectric element 300 is rendered more responsive to
direct wavefield energy coupling and less responsive to frame transmitted
wavefield energy, as compared to piezoelectric element 300 not being
decoupled to inner tube substrate 102 by the annular cavity that results from

5 Although the Specification discusses no contact (i.e., excluding direct and
indirect contact) between the foil layer and the frame, there are no
embodiments in the Specification that show such a configuration. See, e.g.,
Spec. ¶ 37 (“[T]he sheet comprising piezoelectric material extends along, or
is wrapped about, a frame with little or no mechanical coupling between the
sheet and the frame. Disclosed embodiments exhibit reduced or minimum
mechanical coupling between the sheet comprising piezoelectric material
and the frame . . . . In certain embodiments the level of mechanical coupling
between the sheet and the frame may be greater than an ideal minimum level
of coupling, e.g., having no mechanical coupling to the frame.”); Fig. 3A.
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the entirely spaced-apart relation between piezoelectric element 300 and
inner tube substrate 102.
Appellant further submits that “[a] central point in this appeal is the
Examiner’s labeling of certain elements of Appellant[’s] system as being
‘diaphragms’.” Reply Br. 5. However, this submission does not apprise us
of error in the Examiner’s finding that claim 9 reads on Pearce’s
hydrophone, which includes outer tube diaphragm 104. Claim 9 does not
exclude a diaphragm from being an element of the claimed sensing system,
provided there is a foil layer, a frame, and circuitry, as claimed.
Appellant further argues that the “the design and operation of the
Pearce hydrophone are inconsistent with the claimed invention.” Reply Br.
6. More specifically, Appellant submits that
[t]he Examiner’s basis for rejection fails to recognize that the foil
layer in Pearce is mechanically coupled to the diaphragm to
respond with and measure the response of the diaphragm, and
that it is the Pearce diaphragm which receives energy by direct
incidence of the wavefield. The design of the Pearce diaphragm
concentrates or collects the energy received as a pressure
differential and converts that energy into a strain along the
surface of the diaphragm due to the deflection of the diaphragm.
The strain energy resulting from the deflection of the diaphragm
that the piezoelectric foil element of Pearce measures is much
greater than the energy received by the foil through direct
incidence of the wavefield upon the foil.
Reply Br. 14; see also id. at 19–25 (“Diaphragm Dynamics in the Pearce
Patent”). Appellant also submits that because Pearce’s piezoelectric
element is bonded to the diaphragm, “piezoelectric element 300 of Pearce
will largely be responsive in the d31 mode and, to a lesser extent in the d32
mode, but cannot respond in d33 mode.” Id. at 25 (emphasis added). In
comparison, Appellant submits that “the claims are enabled by providing a
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piezoelectric element that is not bonded to any structure, such that the
element is free to respond to all aspects of an incident acoustic or seismic
wavefield . . . .” Id. at 24; see also id. at 25 (“[o]nly the Appellant[]
teach[es] a piezoelectric element that is responsive in the d3h mode, which is
the combination of the d31, d32, and d33 modes”).
We are not persuaded by Appellant’s argument because, although
Appellant submits that the “predomin[a]nt signal received by [Pearce’s]
piezoelectric sensing element is that of the wave energy received by direct
incidence on the [diaphragm, as] piezoelect[r]ic element respond[s] in the
d3h mode” (Reply Br. 15 (emphasis added)), Appellant admits supra that
some wavefield energy in a mode other than the primary mode of incidence
on the diaphragm is also directly incident on Pearce’s piezoelectric element
300. Therefore, a preponderance of evidence supports the Examiner’s
finding that decoupling Pearce’s piezoelectric element 300 from inner tube
substrate 200 renders the piezoelectric element more responsive to that
aspect of wavefield energy that is directly incident on Pearce’s piezoelectric
foil 300 as compared to no decoupling, and notwithstanding that a greater
wavefield energy response by piezoelectric foil 300 is attributable to
wavefield energy incident on outer tube diaphragm 104 and transmitted to
piezoelectric element 300 bonded thereto. Moreover, claim 9 does not
require that the foil layer is responsive to all modes of wavefield energy that
are directly incident on the foil layer.
Appellant further argues that Pearce’s annular cavity “has a specific
purpose, completely irrelevant to the Appellant[’s] claims and
specification,” wherein Pearce’s annular cavity “is critical for enabling the
deflection of the tubular diaphragm due to the differential pressure across the
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diaphragm due to direct incidence of a wavefield upon and across the
diaphragm.” Reply Br. 6–7. However, Appellant’s argument does not
apprise us of error in the Examiner’s finding that such an annular cavity
would also function as an isolating gap, as claimed.
Finally, Appellant argues that
[t]he sensor of Pearce physically cannot operate to collect
signal information as Appellant[] teach[es] for the rejected
claims, e.g., a broad range of seismic signals propagating through
a solid earth environment[, and a]lso [that] the transduction
mechanism of Pearce is not suitable for responding to shear
waves as needed to sense seismic waves according to the
Specification.
Reply Br. 2; see also id. at 10 (“the claimed invention senses seismic
wavefields while the hydrophone design of Pearce is not designed to sense
shear waves, and Rayleigh waves, and Love waves, as none of these can
exist in purely acoustic media.”). To the extent Appellant argues that claim
9 requires a measurement of seismic wavefield energy, we disagree, because
claim 9 more broadly recites an isolating gap that pertains to seismic or
acoustic energy, which decouples seismic or acoustic signals between the
frame and the foil layers, and circuitry coupled to the foil layer to transform
separations of charge in response to signals in the wavefield sensed the foil
layer. Moreover, whether Pearce is suitable for responding to shear waves,
as compared to the responsiveness of piezoelectric element 300 to
movement of outer tube diaphragm 104, Appellant acknowledges supra that
incidental direct wavefield energy other than wavefield energy transmitted to
piezoelectric element 300 from outer tube diaphragm 104 is incident directly
on piezoelectric element 300.
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Accordingly, we sustain the Examiner’s rejection of claim 9, under 35
U.S.C. § 103 as being unpatentable over Pearce and Kopetsch, and claims 2,
10, and 14 fall with claim 9.
Rejection III
Independent claims 9 and 14, and dependent claims 2, 4, 10, 12, and 15
Appellant submits that claims 2–4, 10–12, and 14–17 “rise or fall with
the disposition of claim 9,” however, Appellant provides separate arguments
for the patentability of claims 3, 11, 16, and 17. Appeal Br. 14, 20.
Regarding independent claim 9, the Examiner finds that Toda
discloses, inter alia, positioning a foil layer (i.e., piezoelectric polymer film
26, such as PVDF film, with active layer 200) along or about a frame in an
entirely spaced-apart relation to the frame (i.e., soft material 400 entirely
spaces PVDF film from cylindrical frame 10), wherein the spaced-apart
relationship of film 26 to cylindrical frame 10 results in a seismic or acoustic
isolating gap that decouples transmission of wavefield energy from the
frame to the foil layer, whereby the decoupling inherently renders the foil
layer more responsive to direct wavefield energy coupling and less
responsive to frame transmitted wavefield energy, as claimed.6 Final Act. 5
(citing Toda 6:29–55, Fig. 12).
Appellant argues that
[Toda] does not disclose or enable an isolating gap which
decouples transmission of wavefield energy from a frame
(Toda’s spool 10) to the foil layer (Toda’s PVDF film 26), e.g.,
so as to allow the foil layer to be more responsive to wavefield
energy reaching the foil layer via a different mechanism than
that path which includes the spool 10 of the wideband transducer
140 as shown in Fig. 12 of the Toda reference. With lack of any

6 Kopetsch is relied on by the Examiner for teaching the claimed circuitry.
Final Act. 6 (citations omitted).
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express disclosure indicating that the wideband transducer 140 is
designed to produce mechanical decoupling, it appears that the
rejection only relies on an unsupportable contention that the
decoupling features of claim 9 are inherent in the wideband
transducer 140.
Appeal Br. 15–16; id. at 16–18; see also Reply Br. 2 (“[n]one of the
referenced patents address mechanically decoupling a sensing element from
other support structures in order to better effect coupling of the sensing
element directly with the wave field”). Appellant submits that rather than
decoupling film 26 from cylindrical frame 10, the presence of soft material
400 within gap g of Toda’s transducer results in mechanical coupling
between film 26 and cylindrical frame 10. See also Reply Br. 19 (“[Toda]
teaches, per the system of Figure 12, use of a gap filled with [soft] material
400 that enhances mechanical coupling between the frame 10 and the PVDF
film”). Appellant further submits that “Toda does not and cannot use the
mechanical decoupling required by the claims to maximize the signal
response,” but rather, provides “mechanical damping, via strong mechanical
coupling, . . . to effect Toda’s teachings to modify the frequency response of
the Transmitter and Receiver elements”) id. at 28; see also id. 35–41.
Appellant submits that “the prior art is replete with hydroacoustic or
ultrasound transducer designs incorporating foam while not decoupling (or
otherwise limiting) transmission from a frame to a transduce[r] element.”
Id. at 17; id. at 35–41 (discussing the use of foam for damping); id. at 41–64.
Toda relates to audio or ultrasonic, cylindrical polymer piezoelectric
material (PVDF) airborne transducers used as acoustic transmitters, acoustic
receivers, or wideband transducers with omni-directional angle performance.
Toda 1:16–18, 21–24, 65–66, 3:8–33. Toda discloses that “extensions,”
extending from spool 10, “may be used to support the piezoelectric polymer
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film about the spool body 12 so that the film is wrapped around the spool
and offset a predetermined distance g from the body portion [of spool 10].”
Id. at 4:57–5:9. Toda discloses that “piezoelectric polymer film 26 . . . is
wrapped around the spool 10 and positioned to surround the outer peripheral
edge 24 of the elevated region 14 (rather than being in direct surface contact
with the body portion 12 of the spool).” Id. at 5:10–14.
The Examiner relies on the embodiment in Toda depicted in Figure
12. Toda discloses, with reference to the Figure 12 embodiment that
[t]he above identified features are also useful in formation
of a wideband transducer 140 where the PVDF film 26 is
wrapped onto a cylindrical frame 10 with a gap. When this gap
is filled by a soft material 400 such as polyurethane foam, cloth,
paper etc., the resonance becomes broader. FIG. 12 illustrates
the structure of the wideband transducer. Generally, as shown in
FIG. 13, the frequency response of the transmitter extends more
than resonance frequency fTO and to damped resonance makes
useful band higher than fTO.
Id. at 8:16–21. Figure 12 of Toda is reproduced below.

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Figure 12 of Toda depicts PVDF film 26 wrapped onto cylindrical frame 10
with a gap g, wherein the gap is filled by a soft material 400. Toda 8:16–21.
We determine that a preponderance of evidence supports the
Examiner’s finding that Toda’s piezoelectric material 26 is in an entirely
spaced-apart relation to cylindrical frame 10 because soft material 400
mechanically decouples piezoelectric material 26 from cylindrical frame 10,
as compared to piezoelectric material 26 being directly attached to
cylindrical frame 10. Although soft material 400 is in contact with both a
surface of cylindrical frame 10 and film 26, such contact is also required by
claim 9: “the frame having a surface to which the foil layer is connected to
stabilize the shape of the foil layer.”
Notably, Toda’s transducer construction is similar to Appellant’s
second embodiment, as depicted in Figure 3B, wherein piezoelectric sheet
45 is in an entirely spaced-apart relation to frame 46´ by intermediate foam
layer 47, which is in direct contact with both the foil layer and the frame.
See, e.g., Spec. ¶ 48 (“piezoelectric sheet 45 . . . is positioned along the flat
surface 46” of frame 46’ to assume a flat shape”); ¶ 49 (“intermediate layer
47 is advantageously placed in the sensor device 32 to separate the
piezoelectric sensing element 44 from the relatively rigid frame 46”); ¶ 50
(“intermediate layer 47 [is] positioned as a standoff material between the
sensor sheet 45 and the frame surface 46”). For reference, Appellant’s
Figure 3B is reproduced below.
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“Figure 3B is a perspective view of another embodiment of the sensor
device also formed with a layer comprising piezoelectric material and
having a sheet configuration.” Spec. ¶ 15.
We also determine that a preponderance of the evidence supports the
Examiner’s finding that Toda’s gap g results in an acoustic isolating gap
that decouples transmission of wavefield energy from cylindrical frame 10
to film 26, as required by claim 9, and inherently renders film 26 more
responsive to direct wavefield energy coupling and less responsive to
wavefield energy transmitted from cylindrical frame 10 to film 26 as
compared to such responsiveness of film 26 without gap g, or in the case
when film 26 is directly attached to cylindrical frame 10. Although the
presence of soft material 400 within gap g may affect (i.e., dampen,
according to Appellant) the wavefield energy or signal traveling within gap
g, we determine that a preponderance of the evidence supports the
Examiner’s finding that gap g itself nonetheless functions to decouple
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acoustic signals between spool 10 and film 26 by entirely spacing apart film
26 from spool 10, as required by claim 9.
In sum, we determine that the Examiner has provided a basis in fact
by relying on Toda’s gap for determining that (mechanical) decoupling
between Toda’s piezoelectric material 26 and cylinder 10 is inherent and
because the gap eliminates direct contact between piezoelectric material 26
and cylinder 10, such that the gap inherently results in the claimed some
decoupling of transmission of wavefield energy from the frame to the foil
layer. See, e.g., Ex Parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990) (“the
[E]xaminer must provide a basis in fact and/or technical reasoning to
reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art”).
Appellant also argues that “Toda does not disclose use of a gap which
is not filled with material 400,” and that Toda “only teaches filling a gap,
e.g., to dampen and create the weakened resonance effect shown in Fig. 13,”
wherein “[n]one of the applied art discloses an unfilled gap and the scope of
the independent claims includes gaps which are not filled with materials.”
Appeal Br. 17. We are not persuaded by Appellant’s argument because
claim 9 does not exclude the presence of foam within the isolating gap.
Appellant further argues that
[b]y applying the teachings of claim 9 to the wideband transducer
140, the Examiner appears to require [a] reconstruction of Toda
that would decouple elements in the wideband transducer 140 of
Toda (i.e., the spool 10 and Toda’s PVDF film 26) and thereby
block a mechanism primarily relied upon in the prior art to
stimulate the PVDF film.
Appeal Br. 18; see also id. (“with the material 400 in intimate contact with
both the film 26 and the spool 10, there is a continuous structure which
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provides a more efficient path than the surrounding air for dissipating energy
from the film 26,” wherein “Toda would not have any motivation to
decouple the foam or the spool 10 from the PVDF film 26”); id. at 18–20.
We are not persuaded by Appellant’s argument, because as discussed
supra, the Examiner relies on Toda’s gap g, and the presence of soft material
400 within the gap does not cause Toda’s gap g from failing to meet the
requirements of the acoustic isolating gap as set forth in claim 9. In other
words, the Examiner does not propose modifying Toda’s transducer, except
in view of Kopetsch to include circuitry.
Appellant also argues that Toda’s transducer “is only intended to
operate at ultrasonic frequencies,” and that “[a]pplying the design principles
taught in Toda to recreate the Appellant[’s] sensor system, operating at the
seismic or acoustic frequencies would result in a sensing element having a
diameter on the order of 50 meters.” Reply Br. 2. Appellant submits that
“[n]one of the devices, techniques and methods disclosed in Toda are
directed to operation of a sensor in the seismic or acoustic frequency
ranges”; rather, “Toda only concerns an ‘ultrasonic receiver’ and only
applies principles of physics within the ultrasonic range of sound energy.”
Reply Br. 26; see also id. at 26–34. Appellant concludes that “Toda is not
enabling for the claimed invention.” Reply Br. 31.
We are not persuaded by Appellant’s argument, because as discussed
supra, Toda discloses that the teachings and embodiments are applicable to
“audio or ultrasonic air transducers” (Toda 1:21–24), and we do not find
support in Toda for concluding that wideband transducer 140 must perform
outside of seismic or acoustic frequencies (see, e.g., Toda 8:16–31).
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Appellant further states that Toda’s sensor is a “vibration sensor,”
while Appellant is developing “a strain rate sensor.” Reply Br. 34.
However, Appellant’s general statement does not apprise us of errors in the
Examiner’s findings relative to Toda required to render obvious the claimed
invention.
Appellant also presents a “Brief Discussion on Active and Passive
Systems,” noting, however, that “the claims are not limited to active
systems” and that “the claimed invention is capable of passive detection.”
Reply Br. 31. Appellant concludes that “Toda would not decouple
wavefield energy transmitted from the frame to the foil layer.” Id. at 32.
However, Appellant’s conclusion is contrary to Toda’s express disclosure
that film 26 should be separated by gap g from cylinder 10, as Toda
generally teaches that film 26 should not be “in direct surface contact with
the body portion 12 of the spool.” Toda 5:10–14.
Accordingly, we sustain the Examiner’s rejection of claim 9 under 35
U.S.C. § 103 as being unpatentable over Toda and Kopetsch, and claims 2,
4, 10, 12, 14, and 15 fall therewith.
Dependent claims 3, 11, 16, and 17
Claims 3 and 11, which depend from independent claims 9 and 14,
further require, in relevant part,
an intermediate layer positioned between the frame surface and
the foil layer to so limit mechanical coupling between the foil
layer and the frame as to render the direct coupling of the foil
layer with the wavefield energy the predominant means for
stimulating the foil layer with seismic or acoustic energy.
Appeal Br. 22, 23 (Claims App.) (emphasis added). Claims 16 and 17,
which depend from independent claims 9 and 14, further require, in relevant
part,
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an intermediate layer positioned[7] in the gap to effect seismic or
acoustic isolation between the frame surface and the
piezoelectric sheet which isolation limits mechanical coupling
that effects energy between the sheet and the frame, thereby
rendering the foil layer more responsive to direct coupling with
the wavefield of seismic or acoustic energy and less responsive
to wavefield energy received into the frame and then transmitted
from the frame to the foil layer.
Id. at 25 (emphasis added).
Regarding claims 3 and 11, the Examiner refers to Figure 12 of Toda.
Final Act. 6. Regarding claims 16 and 17, the Examiner refers to Toda’s
soft material 400 within gap g and inherency. Id. In the Examiner’s
Answer, the Examiner also determines that because cylindrical frame 10 is
rigid and film 26 is more sensitive to wavefield energy, soft material 400
positioned within gap g will limit mechanical coupling between spool 10 and
film 26, and also provide acoustic isolation, as claimed. Ans. 10–11. We
understand that the Examiner implies that due to soft material 400 which
creates gap g, the predominant means for stimulating the film 26 will
therefore be the incoming wavefield energy on film 26, rather than
wavefield energy transmitted from rigid cylindrical frame 10 to film 26.
Indeed, Toda is not designed to produce a measurement of wavefield energy
incident on cylindrical frame 10.
Appellant argues generally in the Reply Brief that Toda’s soft material
400 provides mechanical damping or even coupling, rather than acoustic
isolation and mechanical decoupling. See, e.g., Reply Br. 3.
We determine that a preponderance of the evidence supports the
Examiner’s finding that soft material 400 is an intermediate layer that is

7 Claim 17 states: “positioning an intermediate layer in the gap.” Appeal
Br. 25 (Claims App.).
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within Toda’s isolating gap g and that soft material 400 functions to
mechanically limit the contact between Toda’s film 26 and cylindrical frame
10. In other words, soft material 400 is a standoff that causes film 26 not to
be in direct contact with cylindrical frame 10, in the same way Appellant’s
foam layer 47 is an intermediate layer that mechanically decouples
piezoelectric sheet 45 from frame 46´. See, e.g., Spec. Fig. 3B. Appellant’s
argument also does not apprise us of error in finding that Toda’s transducer
operates by predominantly measuring incoming wavefield energy incident
on film 26, rather than wavefield energy transmitted from cylindrical frame
10 to film 26, and we agree with the Examiner that providing gap g filled
with soft material 400 mechanically decouples film 26 from cylindrical
frame 10 to achieve this result, as compared to having film 26 directly
affixed to cylindrical frame 10.
Accordingly, we sustain the Examiner’s rejection of claims 3, 11, 16,
and 17 as being unpatentable over Toda and Kopetsch.
Rejections IV–VI
Appellant does not present arguments for the patentability of claims 5,
6, 8, and 13 apart from the arguments presented for independent claim 9 and
claims 3, 11, 16, and 17. Appeal Br. 7–21; Reply Br. 1–79.
Accordingly, for essentially the same reasons as stated supra, we also
sustain the Examiner’s rejections of 5, 6, 8, and 13 under 35 U.S.C. § 103 as
being unpatentable over Toda and Kopetsch, and Fennel, Martin, or
Duheille.
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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
2–17 Nonstatutory Double
Patenting
2–17
2, 9, 10,
14
103 Pearce, Kopetsch 2, 9, 10,
14

2–4, 7, 9–
12, 14–17
103 Toda, Kopetsch 2–4, 7, 9–
12, 14–17

5 103 Toda, Kopetsch,
Fennell
5
8, 13 103 Toda, Kopetsch,
Martin
8, 13
6 103 Toda, Kopetsch,
Duheille
6
Overall
Outcome
2–17
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)(iv).
AFFIRMED