Ex Parte Bassan-Eskenazi et al

Patent Trial and Appeal Board

Jan 16, 2018

14085859 (P.T.A.B. Jan. 16, 2018)

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.
14/085,859 11/21/2013 Amir Bassan-Eskenazi 8362-US5 9658
69054 7590 01/18/2018
RFfTTFS PATFNTS
EXAMINER
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AMIR BASSAN-ESKENAZI, NAFTALY SHARIR, and
OFER FRIEDMAN
Appeal 2017-008225
Application 14/085,8591
Technology Center 2600
Before JOHNNY A. KUMAR, JOHN A. EVANS, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—11 and 13—19, which constitute all of the claims pending in this
application. Claim 12 has been cancelled. Br. 3. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Pixie Technology as the real party in interest. Br. 3.
Appeal 2017-008225
Application 14/085,859
THE INVENTION
The disclosed and claimed invention is directed to “detecting a
presence of a tagged item within a tagged enclosure [by] performing
distance measurements between at least one wireless tag of the tagged
enclosure and the tagged item to determine the spatial relationship between
the tagged enclosure and the tagged item.” Abstract
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for detecting a presence of a tagged item
within a tagged enclosure, the method comprising: performing,
by at least one wireless tag of the tagged enclosure, distance
measurements between the at least one wireless tag of the
tagged enclosure and the tagged item to determine the spatial
relationship between the tagged enclosure and the tagged item.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Bridgelall US 2006/0033609 A1 Feb. 16,2006
Rinkes US 2010/0045436 A1 Feb. 25,2010
REJECTION
Claims 1—11 and 13—19 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Rinkes in view of Bridgelall. Final Act.
2-6.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
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Application 14/085,859
considered all evidence presented and all arguments made by Appellants.
We are not persuaded by Appellants’ arguments regarding claims 1—11 and
13-19.
Claims 1, 2, 4—7, 9—11, 13, and 17—19
Appellants argue the Examiner erred in finding the combination of
Rinkes and Bridgelall teaches a “wireless tag” performing “distance
measurements ... to determine the spatial relationship between the tagger
enclosure and the tagged item,” as recited in claim 1. Br. 10—11.
Specifically, Appellants argue Rinkes “A silent on teaching the distant
measurement is performed by the RFID tag” and “Bridgelall makes a clear
distinction between the RF tags (40, 41a-41e) and a RFID/RFDC device 30
(see paragraphs [0011], [0012], [0022][0029] and figures 1, 2 and 3).” Id. at
10. According to Appellants, “[t]he RFID/RFDC device (30) referred to by
the office is an RFID reader and is not wireless tag. The RF tags may
modulate the interrogation signal and respond to the RFID/RFDC - but the
RF tags do not perform location calculation.” Id.
The Examiner finds Bridgelall “teaches a RFID tag device (30)
determining its own location with respect to another RFID tag (paragraph
028-029)” and that “[i]t would have been obvious to one of ordinary skill in
the art to modify the system of Rinkes as disclosed by Bridgelall because
such modification represent the substitution of placement of the distant
measuring function in the RFID tag instead of in the RFID reader.” Final
Act. 3. The Examiner further finds that the RFID/RFDC device 30 is a
transceiver in that it both transmits a signal and receives a response:
The reference of Bridgelall teaches a RFID/RFDC device that
represents an alternative to a RF tag use in locating and tracking
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Application 14/085,859
an item (abstract, paragraph 022). The RFID/RFDC device
disclosed by Bridgelall performs the functions generally
associated with a RFID reader by transmitting an interrogating
signal to the RF tag and receive the response from the RF tag
(paragraph 023). It is therefore the examiner’s position that the
functions of the RF tag and the RFID tag reader are
interchangeable and the shifting of the boundary determination
module of the RFID reader of Rinks to a RF tag to perform the
distance measurement represents an obvious variation.
Ans. 2 (emphasis added).
During examination of a patent application, a claim is given its
broadest reasonable construction “in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). There is a
presumption that a claim term carries its ordinary and customary meaning.
In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An
applicant may rebut this presumption, however, by acting as his own
lexicographer, providing a definition of the term in the specification with
“reasonable clarity, deliberateness, and precision.” See In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994).2 In the absence of such a definition,
limitations are not to be read from the specification into the claims. In re
Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). “[Although the
2 See also Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477
(Fed. Cir. 1998) (Any special meaning assigned to a term “must be
sufficiently clear in the specification that any departure from common usage
would be so understood by a person of experience in the field of the
invention.”); Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379,
1381 (Fed. Cir. 2008) (“A patentee may act as its own lexicographer and
assign to a term a unique definition that is different from its ordinary and
customary meaning; however, a patentee must clearly express that intent in
the written description.”)
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Application 14/085,859
specification often describes very specific embodiments of the invention, we
have repeatedly warned against confining the claims to those
embodiments. . . . [CJlaims may embrace ‘different subject matter than is
illustrated in the specific embodiments in the specification.’” Phillips v.
AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (enbanc) (citations
omitted).
Appellants provided definitions of the terms tag and reader in the
Specification with reasonable clarity, deliberateness, and precision.
Specifically, Appellants states that “[a] tag[3] is a device that includes a
wireless transceiver” and “[a] reader is a device is a device that can
manipulate (control, program) a wireless tag.” Spec. 164, 166. The
Specification continues by stating that “[a] reader can in some situations ace
as a tag.” Id. 1183. Therefore, as used in the Specification, a device with a
wireless transceiver is a tag. Moreover, consistent with Specification
paragraph 183, so long as it has a wireless transceiver, a reader can also “act
as a tag.”
Although Bridgelall draws a distinction between RF tags and
REID/RFDC devices,3 4 Bridgelall goes on to state that “RFID/RFDC device
30 contains a radio frequency identification circuit that provides signals to
and receives signals from RF tag 40 via communications path 35.”
Bridgelall 123 (emphasis omitted). Because RFID/RFDC device 30
includes a wireless transceiver that provides and receives wireless signals,
RFID/RFDC 30 is a wireless tag as that term is used in the claims of the
3 The Specification also states that “‘tag’ and ‘wireless tag’ are used in an
interchangeable manner.” Spec. 1164.
4 See Bridgelall 12.
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instant application. Because Appellants’ argument is premised on
RFID/RFDC device 30 not being a wireless tag, the argument is not
commensurate with the scope of the claims and is unpersuasive. See In re
Self, 671 F.2d 1344, 1348 (CCPA 1982).
Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejection of claims 6 and 10, which are argued on the same grounds,
and dependent claims 2, 4, 5, 7, 9, 11, 13, and 17—19, which are not
separately argued.
Claims 14—16
Appellants argue because “the office did not provide any reference to
any of the elements of claims 14—16,” the Examiner erred in rejecting those
claims. Br. 11.
In the Final Action, the Examiner grouped the rejections of claims 1
and 14—16 together.5 Final Act. 2—3. In doing so, the Examiner made a
specific finding applicable to the additional limitations recited in claims 14—
16: “Bridgelall in an analogous art teaches a RFID tag device (30)
determining its own location with respect to another RFID tag (paragraph
028-029).” Id. at 3. As the Examiner explained in the Answer, this finding
was applicable to claims 1 and 14—16:
It is the examiner’s position that claim 1 recites the limitation of
performing distance measurements between at least one
wireless tag of the tagged enclosure and the tagged item to
determine the spatial relationship between the tagged enclosure
and the tagged item. The examiner responded to the claimed
limitation by pointing out that reference of Rinkes teaches
5 Claim 14 depends from claim 1 and claims 15 and 16 depend from claim
14. Br. 17—18 (Claims App’x).
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determining the spatial relationship between the tagged
enclosure and the tagged item based on whether or not a
response is received from the tagged object and tag of the
enclosures (paragraph 036-037) which also reads on the
limitations of claims 14-16.
Ans. 3.
We agree with the Examiner that the Final Action provided sufficient
findings to support the rejection of dependent claims 14—16. Moreover, to
the extent the rejection in the Final Action was insufficient, it was cured by
the further explanation and finding in the Answer. Because Appellants did
not respond to the Examiner’s findings in the Answer, Appellants have not
adequately addressed the rejection on appeal. Therefore, we are not
persuaded that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claims 14—16.
Claims 3 and 8
Appellants argue the Examiner erred in finding the combination of
Rinkes and Bridgelall teaches the additional evaluating step recited in claim
3. Br. 12—14. Specifically, Appellants argue “[cjlaim 3 teaches of (a) a
tagged user device that evaluates the location of the tagged user device in
relation to the tagged enclosure [and that] (b) the evaluation (executed by the
tagged user device) is responsive to the distance measurement performed by
the wireless tag of the tagged enclosure.” Id. at 14. Appellants further argue
that “[i]n both Bridgelall and Rinkies only one device (out of the RFID tag
and the RFID reader) performs the distance measurement — in contrary to
the teaching of claim 3.” Id.
The Examiner finds “Rinkes teaches evaluating a location of a tagged
user device in relation to the tagged enclosure by evaluating distances
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between at least two wireless tags of the tagged enclosure and the tagged
user device (paragraph 037).” Final Act. 3; see also Ans. 3 (finding that “the
reference of Rinkes teaches evaluating the position of one or more tags in
relation to container 40 by transmitting an interrogating signal and
associating the tag response to the read zone represented by the container
(paragraph 036-038)”). The Examiner further finds that “the RFID reader as
the tagger user device that evaluates the location of the wireless tag
(paragraph 036-037).” Ans. 3. The Examiner also finds Bridgelall teaches
“a RFID tag device (30) determining its own location with respect to another
RFID tag (paragraph 028-029)” and that “[i]t would have been obvious to
one of ordinary skill in the art to modify the system of Rinkes as disclosed
by Bridgelall because such modification represent the substitution of
placement of the distant measuring function in the RFID tag instead of in the
RFID reader.” Final Act. 3.
Our reviewing court guides that “the question under 35 USC § 103 is
not merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made.” Merck & Co., Inc. v. Biocraft Laboratories, Inc., 874 F.2d 804, 807
(Fed. Cir. 1989). Moreover, “[ejvery patent application and reference relies
to some extent upon knowledge of persons skilled in the art to complement
that [which is] disclosed. . . .” In re Bode, 550 F.2d 656, 660 (CCPA 1977)
(quoting In re Wiggins, 488 F.2d 538, 543 (CCPA 1973)). Those persons
“must be presumed to know something” about the art “apart from what the
references disclose.” In re Jacoby, 309 F.2d 513, 516 (CCPA 1962).
Additionally, the skilled artisan is “[a] person of ordinary creativity, not an
automaton.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
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Furthermore, there is no requirement in an obviousness analysis for the prior
art to “contain a description of the subject matter of the appealed claim in
ipsissimis verbis.'’'’ In re May, 574 F.2d 1082, 1090 (CCPA 1978).
Based on the definition of wireless tag discussed above for claim 1,
are not persuaded by Appellants’ argument that the Examiner erred. Instead,
we determine, for the reasons given by the Examiner, that the prior art
teaches or suggests that a person of ordinary skill in the art would have
modified the prior art in the manner found by the Examiner. Accordingly,
the Examiner’s finding provides a “rational underpinning to support the
legal conclusion of obviousness.” See In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006), cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398,418 (2007).
Therefore, we sustain the Examiner’s rejection of claim 3, along with
the rejection of claim 8, which is argued on the same grounds.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—11 and 13—19.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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