Ex Parte Ben-Shmuel et al

Patent Trial and Appeal Board

Jun 8, 2017

12457154 (P.T.A.B. Jun. 8, 2017)

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.
12/457,154 06/02/2009 Eran Ben-Shmuel 11254.0032-01000 2528
22852 7590 06/12/2017
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
CALVETTI, FREDERICK F
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
06/12/2017 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):
regional-desk @ finnegan. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERAN BEN-SHMUEL, ALEXANDER BILCHINSKY,
UDI DAMARI, OMER EINAV, BENNY ROUS SO,
and SHLOMO BEN-HAIM
Appeal 2015-002538
Application 12/457,154
Technology Center 3700
Before JOHN C. KERINS, NEIL T. POWELL, and
ARTHUR M. PESLAK, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Eran Ben-Shmuel et al. (Appellants) seek our review under
35 U.S.C. § 134 of the final rejection of claims 21, 23, 27-33, 36^40, 42^44,
46, 48-50, 52-54, and 56-62. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2015-002538
Application 12/457,154
THE INVENTION
Appellants’ invention is directed to an apparatus for dielectrically
heating a product using radio frequency (RF) heating. Claim 21, reproduced
below, is illustrative:
21. An apparatus for dielectrically heating a product using
radio frequency (RF) energy, comprising:
an interface configured to:
receive an identifier from a machine readable element
associated with the product; and
at least one processor configured to:
use the identifier to access and retrieve processing information
from a remote location with respect to the apparatus;
receive feedback relating to an input efficiency as a function of
frequency;
determine an instruction for processing the product by RF
energy based on the processing information and the feedback;
and
cause the product to be processed based on the determined
instruction, wherein the processing information comprises at
least one of:
a quantity of inputs for transmitting RF energy;
a phase of at least one of the inputs;
multiple frequencies to be used for transmitting RF energy;
a power level associated with at least one of the multiple
frequencies;
a frequency/power/time triplet;
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Appeal 2015-002538
Application 12/457,154
s parameters; or
information relating to RF energy absorption by the product as
a function of frequency.
THE REJECTIONS
The Examiner rejects:
(i) claims 21, 27-33, 36^10, 43, 44, 46, 48-50, 52-54, and 56-62
under 35 U.S.C. § 103(a) as being unpatentable over Johnson
(US 5,521,360, issued May 28, 1996) in view of Clothier (US 6,953,919 B2,
issued Oct. 11, 2005), and Fagrell (US 2002/0175163 Al, published
Nov. 28, 2002), or Turner (US 4,589,423, issued May 20, 1986);
(ii) claims 23 and 42 under 35 U.S.C. § 103(a) as being unpatentable
over Johnson in view of Clothier, and Fagrell or Turner, and further in view
of Lentz (US 4,210,795, issued July 1, 1980); and
(iii) claims 21, 33, 57, and 60 under 35 U.S.C. § 103(a) as being
unpatentable over Fagrell or Turner.
ANALYSIS
Claims 21, 27-33, 36-40, 43, 44, 46, 48-50, 52-54, and 56-62-
Unpatentability over Johnson, Clothier, Fagrell, and Turner
The Examiner’s findings with respect to what subject matter is
deemed to be taught by Johnson are, in certain instances, incomprehensible
in terms of matching up claim limitations with the portions of Johnson cited,
and, in other circumstances, plainly erroneous or inconsistent. Appellants
point out a considerable number of these problems with the rejection.
Appeal Br. 13-17; Reply Br. 4-10.
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Application 12/457,154
As but one example, the Examiner finds that Johnson discloses an
interface (reference numerals 10, 14 of Johnson) that is configured to
perform the functions required of the interface in claim 21. Final Act. 3.
One page later, the Examiner states that “[t]he claim differs from Johnson in
that an interface is configured to obtain an identifier from a machine
readable element associated with the product,” which we understand to mean
that the Examiner finds that the Johnson interface does not perform this
claimed function. Id. at 4. The Examiner continues with a finding that
Clothier discloses an apparatus having “an interface 60 configured to obtain
an identifier from a machine readable element associated with the product
(bar code or RFID tag[,] column 7 lines 30-35),” and to perform the
remaining functions required of the claimed interface. Id.
Upon being challenged by Appellants as to these positions taken, the
Examiner explains that the rejection is based upon Johnson having an
interface, but one that does not function as claimed, and that Clothier teaches
the claimed functions. Ans. 13. In substantiating the finding that Johnson
discloses an interface, the Examiner appears to abandon the initial finding
that elements 10 and 14 of Johnson provide an interface, and states,
“[mjicrowaves have interfaces and such is noted at column 4 line 65 under
the background of the invention [in Johnson], Clothier expands on that.” Id.
The interface mentioned at column 4, line 65, of Johnson is, as
pointed out by Appellants, a spatial region in the microwave cavity where
reactive gases contact a waveguide. Reply Br. 4, citing Johnson, col. 4,
11. 65-67 and col. 12,11. 16-24. The Examiner fails to address how this
relates to a claimed interface that is configured to perform particular tasks.
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Application 12/457,154
Clothier does disclose an interface that operates, in general, in a
similar manner to the claimed interface. That interface, however, is not user
interface 60, relied on by the Examiner in making the rejection. Instead, the
RFID Reader/Writer Coupler (item 52 in Clothier Figure 1) is configured to
perform functions not entirely dissimilar from those set forth in the claims
herein. However, as noted, the Examiner does not rely on this component in
Clothier when concluding, tersely and in a conclusory manner, that it would
have been obvious to “modify Johnson with the identifier and processing
capability, remote or otherwise, of Clothier to facilitate product processing.”
Final Act. 5 (emphasis added).
Given the fatally flawed nature of the rejection, we are not able to
sustain the same as to claims 21, 27-33, 36-40, 43, 44, 46, 48-50, 52-54,
and 56-62, as being unpatentable over Johnson, Clothier, Fagrell, and
Turner.
Claims 23 and 42— Unpatentability—Johnson/Clothier/Fagrell/Turner/Lentz
This ground of rejection is deficient for the same reasons as presented
with respect to the rejection addressed above. The rejection is, therefore, not
sustained.
Claims 21, 33, 57, and 60— Unpatentability over Fagrell or Turner
The Examiner’s findings set forth in this ground of rejection do not
correlate to the limitations set forth in these claims. Final Act. 10-12.
Accordingly, no prima facie case of unpatentability of these claims in view
of these references has been made. The rejection of claims 21, 33, 57, and
60 over Fagrell or Turner is, thus, not sustained.
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Application 12/457,154
DECISION
The Examiner’s rejections of claims 21, 23, 27-33, 36^40, 42^44, 46,
48-50, 52-54, and 56-62 are reversed.
REVERSED
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