Ex Parte Allen et al

Patent Trial and Appeal Board

Mar 25, 2016

13445881 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/445,881 04/12/2012
46320 7590 03/29/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Lloyd W. Allen JR.
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.
RSW920060026US2
(386DIV)
CONFIRMATION NO.
8592
EXAMINER
SWARTHOUT, BRENT
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
03/29/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LLOYD W. ALLEN, JR., JANA HELTON JENKINS,
and STEVEN MICHAEL MILLER
Appeal2014-005164
Application 13/445,881
Technology Center 2600
Before MAHSHID D. SAADAT, ST. JOHN COURTENAY III, and
CATHERINE SHIANG, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 3, 7, 9, 11, 13, and 15-18, which are all the
claims pending in the application. We have jurisdiction under 35 U.S.C. §
6(b). We affirm.
STATEMENT OF THE CASE
Introduction
The present invention relates to monitoring technology. See generally
Spec. 1. Claim 1 is exemplary:
Appeal2014-005164
Application 13/445,881
1. A method for warnmg of hazardous conditions, in a
monitored space, comprising:
continuously monitoring the monitored space usmg an
RFID tag reader;
detecting presence in the monitored space of a moving
object bearing an RFID tag by the RFID tag reader;
determining whether the moving object poses a hazard,
using data read from the RFID tag; and
if the moving object is determined to pose a hazard,
determining the nature of the hazard by accessing a database
using data read from the RFID tag, and providing a warning
proximate to the monitored space about the nature of the hazard
so that the warning is observable by any other moving object
entering the monitored space.
References and Rejections
Claims 1, 3, 7, 9, 11, 13, and 15-18 stand rejected on the ground of
non-statutory obviousness-type double patenting as being unpatentable over
claims 1-2 of Allen (US 8,179,257 B2; iss. May 15, 2012).
Claims 1, 3, 7, 9, 11, 13, and 15-18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Krahnstoever (US 2007/0291985 Al;
pub. Dec. 20, 2007), Osredkar (US 6,995,673 B 1; iss. Feb. 7, 2006), and
Grisham (US 7,148,791 B2; iss. Dec. 12, 2006) ("Grisham").
ANALYSIS
The Double Patenting Rejection
Because Appellants do not contest the merits of the rejection, we
summarily sustain the Examiner's rejection of claims 1, 3, 7, 9, 11, 13, and
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Application 13/445,881
15-18 on the ground of obviousness-type double patenting as being
unpatentable over claims 1-2 of Allen. See Final Act. 3.
The Obviousness Rejection
On this record, we find the Examiner did not err in rejecting claim 1.
We disagree with Appellants' arguments (App. Br. 6-11; Reply Br.
1---6), and agree with and adopt the Examiner's findings and conclusions on
pages 3-5 of the Answer as our own. Therefore, we limit our discussion to
the following points for emphasis.
Appellants contend the cited references do not collectively teach:
continuously monitoring the monitored space using an RFID tag
reader; ... determining whether the moving object poses a hazard
... and if the moving object is determined to pose a hazard, ...
providing a warning proximate to the monitored space about the
nature of the hazard so that the warning is observable by any
other moving object entering the monitored space,
as recited in claim 1. See App. Br. 6-11; Reply Br. 1---6. In particular,
Appellants argue:
Krahnstoever either monitors a non-moving railcar that carries a
hazardous material indicated by the RFID tag of the non-moving
railcar or monitors moving railcars that are not indicated as
carrying hazardous materials (noting that the hazardous working
conditions are different from hazardous materials indicated by
the RFID tag). However, Krahnstoever does not teach
monitoring a moving object that is indicated as carrying a
hazardous material. ... in G[r]isham it is the vehicles carrying
hazardous material, not any monitoring system, that transmit a
warning signal. It is noted that the receivers on the nearby
vehicles only receive the warning signal, but do not monitor and
do not provide any warning signal.
App. Br. 10-11; see also Reply Br. 3---6.
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Application 13/445,881
Appellants have not persuaded us the Examiner erred.
First, because the Examiner relies on the combination of
Krahnstoever, Grisham, and Osredkar to teach the disputed claim
limitations, Appellants cannot establish nonobviousness by attacking the
references individually. See In re Merck & Co., Inc., 800 F .2d 1091, 1097
(Fed. Cir. 1986).
Second, the Examiner correctly finds Krahnstoever and Grisham
collectively teach "continuously monitoring the monitored space using an
RFID tag reader." See Final Act. 4--5. We understand the Examiner's
mapping to mean Krahnstoever teaches monitoring the monitored space
[mapped to Krahnstoever' s teaching of monitoring the rail yard] using an
RFID tag reader [mapped to Krahnstoever's teaching of using an RFID tag
reader]. See Final Act. 4--5; Krahnstoever i-f 25 ("the intelligent railyard
monitoring system 10 may be configured to monitor specific tasks or actions
... Exemplary tasks or actions may include ... monitoring the receiving
yard ... if the RFID tag ... indicated that a particular railcar is carrying a
hazardous material .... ").
Further, the Examiner correctly finds Grisham teaches "continuously
monitoring" a warning signal, which is continuously transmitted by a vehicle
with hazardous waste. See Final Act. 5; Grisham col. 27, 11. 28-34
("Vehicles carrying hazardous waste ... could ... transmit an identifYing
signal warning of the potential dangerous situation as a result of their being
present. Generally, most vehicle types could receive warnings of potentially
dangerous situations including those warning signals being conveyed by
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Application 13/445,881
other vehicles.") (emphases added). 1 Therefore, Krahnstoever and Grisham
collectively teach "continuously monitoring the monitored space using an
RFID tag reader." Utilizing the Grisham technique in the Krahnstoever
method would have been "the predictable use of prior art elements according
to their established functions"-an obvious improvement. KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
Third, the Examiner correctly finds "determining whether the moving
object poses a hazard" is taught by or obvious in light of Krahnstoever's
teachings. See Final Act. 4; Krahnstoever i-f 25 ("the intelligent railyard
monitoring system 10 may monitor railcars differently depending upon the
type of cargo the railcar is carrying. For example, if the RFID tag or other
identification system indicated that a particular railcar is carrying a
hazardous material .... "). Contrary to Appellants' unsupported assertion,
Krahnstoever' s paragraph 25 does not state the railcar is nonmoving.
Because Krahnstoever teaches a railcar, which an artisan would understand
as a means of transportation, we find a "moving" railcar is taught by or
obvious in light ofKrahnstoever's (i-f25) description. Seen.I.; Ans. 5; In re
Bond, 910 F .2d 831, 832 (Fed. Cir. 1990) (whether a reference teaches a
claim limitation "is not an 'ipsissimis verbis' test").2 Therefore, we agree
1 We observe the Examiner's finding is cumulative. Krahnstoever also
teaches "continuously monitoring" because the intelligent railyard
monitoring system continuously monitors the railyard, including
"monitoring the receiving yard to report the train arrival" (i.e., an arriving
moving train). See Krahnstoever i-f 25.
2 Krahnstoever also explicitly teaches a "moving" railcar. See Final Act. 4;
Krahnstoever i-f 27 ("a railcar approaching a worker"); Boston Scientific
Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 991 (Fed. Cir. 2009)
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Application 13/445,881
with the Examiner that "determining whether the moving object poses a
hazard" is taught or obvious in light of Krahnstoever' s teachings.
Fourth, as discussed above, Krahnstoever and Grisham collectively
teach "continuously monitoring the monitored space using an RFID tag
reader" and therefore, teach the claim element "the monitored space."
Further, Krahnstoever teaches "providing a warning proximate to [a certain]
space ... so that the warning is observable by any other moving object
entering the ... space." See Final Act. 4; Krahnstoever i-f 27 (""the
intelligent railyard monitoring system may detect a railcar approaching a
worker in a blue flag zone and sound an audible alarm to warn the worker")
(emphases added).
Additionally, Osredkar teaches the claim element "about the nature of
the hazard." See Final Act. 4; Osredkar col. 13, 11. 36-39 ("wherein the host
computer generates a second signal 122a and transmits the second signal
122a containing current NFP A or HMIS information on the hazardous
material"). Therefore, we agree with the Examiner that Krahnstoever,
Grisham and Osredkar collectively teach "providing a warning proximate to
the monitored space about the nature of the hazard so that the warning is
observable by any other moving object entering the monitored space."
Utilizing the Osredkar and Grisham techniques in the Krahnstoever method
would have been "the predictable use of prior art elements according to their
established functions"-an obvious improvement. See KSR, 550 U.S. at
417.
("Combining two embodiments disclosed adjacent to each other in a prior art
patent does not require a leap of inventiveness").
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Application 13/445,881
Accordingly, we sustain the Examiner's rejection of claim 1, and
corresponding dependent claim 3, which Appellants do not separately argue
(App. Br. 11-12).
Appellants argue independent claims 7, 9, 11, and 13 recite limitations
similar to those discussed above with respect to claim 1 (App. Br. 7).
Therefore, for essentially the same reasons discussed above regarding claim
1, we sustain the Examiner's rejection of independent claims 7, 9, 11, and
13, and corresponding dependent claims 15-18, which Appellants do not
separately argue (App. Br. 11-12).
DECISION
We affirm the Examiner's rejection of claims 1, 3, 7, 9, 11, 13, and
15-18, under the doctrine of non-statutory obviousness-type double
patenting.
We affirm the Examiner's rejection of claims 1, 3, 7, 9, 11, 13, and
15-18 under 35 U.S.C. § 103(a).
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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