Ex Parte Blaschke et al

Patent Trial and Appeal Board

Mar 16, 2017

13702086 (P.T.A.B. Mar. 16, 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.
13/702,086 02/20/2013 Volker Blaschke BOSC.P7866US 9683
24972 7590 03/20/2017
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
EXAMINER
MCQUITERY, DIEDRA M
ART UNIT PAPER NUMBER
2166
NOTIFICATION DATE DELIVERY MODE
03/20/2017 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VOLKER BLASCHKE, ANDREAS-JUERGEN ROHATSCHEK,
and CLEMENS SCHROFF
Appeal 2017-000358
Application 13/702,086
Technology Center 2100
Before JUSTIN BUSCH, MELISSA A. HAAPALA, and
JASON M. REPKO, Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 11—14, 16, 17, and 19-33. App. Br. I.1 Claims 1—10, 15,
and 18 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Throughout this opinion, we refer to (1) the Final Action (“Final Act.”)
mailed October 22, 2015, (2) the Appeal Brief (“App. Br.”) filed March 15,
2016, (3) the Examiner’s Answer (“Ans.”) mailed July 28, 2016, and (4) the
Reply Brief (“Reply Br.”) filed September 28, 2016.
Appeal 2017-000358
Application 13/702,086
THE INVENTION
Appellants’ invention outputs information that is important to
rescuing a person involved in a motor-vehicle accident—i.e., “rescue­
relevant information.” See Spec. 1:4—5, 3:23—25.2 The rescue-relevant
information can then be displayed on a rescuer’s mobile device. See
id. at 1:28—2:1. In one embodiment, radio-frequency identification (RFID)
chips store the rescue-relevant information. Id. at 3:4—23. Multiple RFID
chips can be located throughout a vehicle so that at least one is not destroyed
during an accident. Id.
Claim 11 is reproduced below:
11. A method for outputting rescue-relevant information, the
method comprising:
reading out information that characterizes rescue-relevant
information from an information carrier on a vehicle; and
displaying the rescue-relevant information on a mobile
device as a function of the read-out information;
wherein the information carrier includes at least two RFID
chips having the same information and located at different
locations on or in the vehicle, so that at least one of the RFID
chips is not damaged in an accident of the vehicle;
wherein the rescue-relevant information is read wirelessly
from the information carrier into the mobile device.
THE REJECTIONS
The Examiner relies on the following as evidence:
Dickmann et al. US 2007/0132564 A1 June 14, 2007
Puleston et al. US 2010/0134257 Al June 3, 2010
2 Citations to the Specification (“Spec.”) refer to the Substitute Specification
filed on December 5, 2012.
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Claim 26 is rejected under 35 U.S.C. § 112, fourth paragraph.
Final Act. 3.
Claims 11—14, 16, 17, and 19-33 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Dickmann and Puleston. Final Act. 3—9.
THE REJECTION UNDER 35 U.S.C. § 112, FOURTH PARAGRAPH
Appellants appeal the Examiner’s rejection “in the Final Office action
dated October 22, 2015.” Notice of Appeal, filed Jan. 1, 2016. This Office
action includes the rejection of claim 26 under 35 U.S.C. § 112, fourth
paragraph. Final Act. 3. Appellants request cancelation of independent
claim 26 by an amendment submitted concurrently with the Appeal Brief.
See App. Br. 5; Reply Br. 2. But “[a] brief shall not include any new or non-
admitted amendment.” 37 C.F.R. § 41.37(c)(2); see also MPEP § 1206 I
(9th ed., Rev. 07.2015, Nov. 2015) (discussing amendments filed at the same
time as the appeal brief). Accordingly, we treat claim 26 as involved in this
appeal.
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the produced arguments and
evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI2010)
(precedential). Appellants do not provide a substantive argument against the
rejection of claim 26 under 35 U.S.C. § 112, fourth paragraph. See
App. Br. 5; Reply Br. 2. In the absence of such an argument, we sustain the
Examiner’s rejection of claim 26. See Frye, 94 USPQ2d at 1075—76
(explaining that if Appellants fail “to present arguments on a particular
issue—or, more broadly, on a particular rejection—the Board will not, as a
general matter, unilaterally review those uncontested aspects of the
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rejection.”); see also MPEP § 1205.02 (“If a ground of rejection stated by
the examiner is not addressed in the appellant’s brief, appellant has waived
any challenge to that ground of rejection and the Board may summarily
sustain it.”).
THE OBVIOUSNESS REJECTION OVER DICKMANN AND
PULESTON
Contentions
The Examiner finds that Dickmann discloses every recited element of
claim 11, except for the “at least two RFID chips having the same
information and located at different locations on or in the vehicle, so that at
least one of the RFID chips is not damaged in an accident of the vehicle.”
Final Act. 4—5. In concluding that claim 11 would have been obvious, the
Examiner relies on Puleston to teach these features. Id. at 5—6.
According to Appellants, Puleston lacks the feature for which it is
cited. App. Br. 6—7 (citing Puleston || 429, 616); see also Reply Br. 4—5. In
Appellants’ view, the Examiner’s findings in this regard are “wholly
unsupported.” App. Br. 8; Reply Br. 5.
Appellants further argue that the Examiner is stating without any
supporting evidence that it would have been obvious to try the proposed
combination. App. Br. 8—10; Reply Br. 6—8. According to Appellants, the
Examiner has made no findings to establish that the claimed features are met
by the relied-upon references, and the Examiner has not presented a prima
facie case of obviousness. App. Br. 9-10; see also Reply Br. 6—8.
Appellants further argue that the Examiner has engaged in conclusory
hindsight and the rejection lacks “proper evidence of a motivation.”
App. Br. 9 (emphasis removed); Reply Br. 7.
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Analysis
I
We are not persuaded by Appellants’ argument that the Examiner’s
rejection lacks support. See App. Br. 6—7 (citing Puleston H 429, 616); see
also Reply Br. 4—5. Here, the Examiner’s rejection is supported by
Puleston’s disclosure regarding composite multi-tag 2902. Final Act. 5
(citing Puleston 1616); Ans. 5—6 (citing Puleston H 611, 616). In
particular, Puleston’s composite multi-tag 2902 has multiple RFID tags.
Puleston 1616, cited in Final Act. 5. Fike the claimed RFID chips, Puleston
stores the same information on multiple RFID tags 102A—C. Puleston 1616.
These tags are “spread out” on a “placement facility,” such as a metal
surface. Id. 1 611, cited in Ans. 5. That is, by stating that the tags are
“spread out,” Puleston discloses that the tags are in different locations. See
Puleston 1611. On this record, the Examiner’s finding that Puleston
discloses “two RFID chips having the same information and located at
different locations” (Final Act. 5; see also Ans. 5—6) is supported by the
weight of the evidence.
Furthermore, we agree with the Examiner (Final Act. 5) that
Puleston’s tags are located “so that at least one of the RFID chips is not
damaged in an accident of the vehicle,” as recited. First, as cited by the
Examiner, Puleston teaches that redundancy improves a system’s reliability
in harsh environments in which RFID tags are prone to physical damage.
Puleston 11 51, 204, cited in Final Act. 5. Second, locating tags in two areas
on a vehicle avoids damage in an accident affecting one area, but not the
other. So, Puleston’s teaching of multiple, spread-out tags (Puleston H 611,
616) satisfies the limitation at issue. Accordingly, the Examiner’s finding
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that Puleston locates the tags so that at least one RFID chip is not damaged
in an accident of the vehicle (Final Act. 5) is supported sufficiently by this
record.
II
Appellants’ arguments against the Examiner’s prima facie case of
obviousness (App. Br. 8—10; Reply Br. 6—8) are also unpersuasive. For the
reasons discussed above, we are not convinced that the Examiner’s findings
are based on unsupported assertions, as argued. See Reply Br. 6—7. To the
extent that Appellants further argue that the Examiner’s obviousness
conclusion lacks the necessary articulated reasoning with some rational
underpinning, we disagree.
Appellants do not explain persuasively why the Examiner’s reliance
on Puleston (Final Act. 6) is insufficient to support the obviousness
conclusion. See App. Br. 8—10; Reply Br. 6—8. Nor do we agree that the
Examiner’s reasoning requires us to engage in unwarranted speculation.
App. Br. 8—10. Rather, in supporting the obviousness conclusion, the
Examiner points to advantages that Puleston discloses—i.e., providing
redundant data when a chip is damaged or fails. Final Act. 6. That is, the
Examiner finds that Dickmann discloses a readable chip on a vehicle
(id. at 4), but not “at least two RFID chips having the same information and
located at different locations on or in the vehicle, so that at least one of the
RFID chips is not damaged in an accident of the vehicle” (id. at 5). For this
limitation, the Examiner turns to Puleston and explains that adding
Puleston’s teachings provide data redundancy. Final Act. 5—6. So, contrary
to Appellants’ argument (App. Br. 8—10; Reply Br. 6—8), the Examiner has
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provided articulated reasoning with a rational underpinning to justify the
obviousness conclusion.
Appellants argue that the Examiner’s reasoning reflects a subjective
“obvious to try” standard. App. Br. 8; Reply Br. 6. We disagree. In fact,
the Examiner’s combination uses Puleston’s RFID tags to perform the same
function as the tags perform separately—providing redundant data
(Final Act. 6)—with no change in their operation. In this way, the Examiner
proposes combining prior art elements according to known methods to yield
predictable results, which is obvious. See KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398,416 (2007).
For these reasons, we are not persuaded by Appellants’ arguments that
the Examiner’s reasoning lacks a factual basis or that the Examiner has
engaged in improper hindsight reconstruction. See App. Br. 8—10;
Reply Br. 6—8.
Accordingly, Appellants have not persuaded us of error in the
rejection of independent claim 11, independent claim 20, and dependent
claims 12—14, 16, 17, 19, and 21—33, which are not argued separately. See
App. Br. 8; Reply Br. 5.
CONCLUSIONS
We sustain the Examiner’s rejection of claim 26 under 35 U.S.C.
§112, fourth paragraph.
We sustain the Examiner’s rejection of claims 11—14, 16, 17, and 19-
33 under 35 U.S.C. § 103.
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DECISION
We affirm the Examiner’s rejection of claims 11—14, 16, 17, and 19—
33.
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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