Ex Parte Brizard

Patent Trial and Appeal Board

Jun 8, 2017

13972139 (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.
13/972,139 08/21/2013 Thierry BRIZARD 0336-189-3/100376US-3 8736
11171 7590 06/12/2017
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404
EXAMINER
OLSON, LARS A
ART UNIT PAPER NUMBER
3617
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):
Mailroom@ppblaw.com
eofficeaction @ appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THIERRY BRIZARD
Appeal 2016-002023
Application 13/972,1391
Technology Center 3600
Before DEBRA K. STEPHENS, SHARON FENICK, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1—20, which are all of the claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Technology
The application relates to an “autonomous underwater vehicle (AUV)
for recording seismic signals.” Spec. Abstract.
Illustrative Claim
Claim 1 is illustrative and reproduced below with the limitation at
issue emphasized:
1 According to Appellant, the real party in interest is CGGVeritas Services
SA. App. Br. 2.
Appeal 2016-002023
Application 13/972,139
1. An autonomous underwater vehicle (AUV) for recording
seismic signals during a marine seismic survey, the AUV
comprising:
a body extending along an axis X and having a head
portion, a middle portion, and a tail portion, wherein the middle
portion is sandwiched between the head portion and the tail
portion along the X axis;
a cross-section of the middle portion, substantially
perpendicular on the X axis, having a triangular-like shape',
the head portion including a base portion having the
triangular-like shape and configured to match the middle portion;
the head portion having a tip that, when projected along
the X axis on the base portion, substantially coincides with a
centroid of the base portion having the triangular-like shape; and
a seismic payload located within the body and configured
to record seismic signals.
Rejections
Claims 1—20 stand rejected under 35 U.S.C. § 112, second paragraph
as indefinite. Final Act. 2.
Claims 1—4, 7, 8, and 13—20 stand rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Asfar et al. (US 7,290,496 B2; Nov. 6,
2007) and de Feo (US 1,571,833; Feb. 2, 1926). Final Act. 3^1.
ISSUES
1. Did the Examiner err in concluding the term “triangular-like”
rendered claim 1 indefinite?
2. Did the Examiner err in finding de Feo teaches or suggests “a
triangular-like shape,” as recited in claim 1?
2
Appeal 2016-002023
Application 13/972,139
ANALYSIS
Indefiniteness
(Claims 1—20)
Claim 1 recites an autonomous underwater vehicle with “a cross-
section of the middle portion, substantially perpendicular on the X axis,
having a triangular-like shape” (emphasis added).
The Specification explains “a triangular-like shape is a triangle whose
vertices are replaced with curved comers 410a as shown in Figures 4C and
4D.” Spec. 138. The Examiner concludes Appellant’s “special definition”
does not resolve the indefmiteness problem because “[n]o term of degree has
been provided by the appellant that would allow one of ordinary skill in the
art to ascertain what the appellant is claiming as a ‘triangle whose vertices
are replaced with curved comers.’” Ans. 3. For example, “no arc range has
been provided for the degree of curvature for said curved comers,” leaving
the limits of triangular-like “boundless in scope.” Id.
For indefmiteness prior to issuance, a well-grounded rejection should
identify “ways in which language in a claim is ambiguous, vague,
incoherent, opaque, or otherwise unclear in describing and defining the
claimed invention.” In re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014).
“At the same time, this requirement is not a demand for unreasonable
precision” and “how much clarity is required necessarily invokes some
standard of reasonable precision in the use of language in the context of the
circumstances.” Id. at 1313. “Thus, a patentee need not define his invention
with mathematical precision in order to comply with the definiteness
requirement.” Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377
(Fed. Cir. 2017) (quotation omitted).
3
Appeal 2016-002023
Application 13/972,139
Here, we agree with Appellant that a person of ordinary skill could
reasonably determine “if an object is a triangle” and “if a vertex has been
replaced by a curved comer.” Reply Br. 3. Under Federal Circuit precedent,
exact mathematical precision is not required.
Accordingly, we do not sustain the Examiner’s rejection of claim 1
and claims 2—20, which include commensurate limitations.
Obviousness
(Claims 1—4, 7, 8, and 13—20)
As discussed above, claim 1 recites “a cross-section of the middle
portion . . . having a triangular-like shape” (emphasis added).
The Examiner relies on de Feo for teaching this limitation. Ans. 4—5.
Specifically, the Examiner relies on Figures 3 and 7 of de Feo. Id. We
agree with Appellant, however, that de Feo expressly discloses, “According
to my invention, I substantially divide the submarine in three parts, of which
I make the central one in circular cross section throughout its length.” De
Feo 1:12—15 (emphasis added); App. Br. 12. Thus, de Feo teaches a middle
portion that is circular, not triangular.
We further agree with Appellant that Figure 3 and Figure 7 of de Feo,
illustrating the stem and bow ends of a submarine, do not teach a
“triangular-like” shape as that term is defined in the Specification. App. Br.
12—13. The Specification states “a triangular-like shape is a triangle whose
vertices are replaced with curved comers.” Spec. 138. We determine
Appellant has defined explicitly the term “triangular-like shape.” “When a
patentee defines a claim term, the patentee’s definition governs, even if it is
contrary to the conventional meaning of the term.” Honeywell Int 7, Inc. v.
Universal Avionics Sys. Corp., 493 F.3d 1358, 1361 (Fed. Cir. 2007). Even
4
Appeal 2016-002023
Application 13/972,139
assuming Figures 3 and 7 depicted a triangle with one vertex replaced by a
curved comer, we agree with Appellant that the other two vertices are “sharp
or pointed and not curved.” App. Br. 13; Reply Br. 4. Thus, Figures 3 and 7
of de Feo fail to teach the “curved comers” as defined by the Specification,
and the Examiner has not provided any further reason for modifying the
shapes of Asfar or de Feo to be triangular-like.
Accordingly, we are constrained to reverse the Examiner’s rejection
of claim 1, and claims 2-4, 7, 8, and 13—20, which include commensurate
limitations. Because we agree with at least one argument advanced by
Appellants, we need not reach the merits of Appellants’ other arguments.
“The Board’s reversal of a rejection should not be interpreted as an
instmction to the Examiner to allow the claims so rejected. The Board’s
primary role is to review the adverse decision as presented by the Examiner,
and not to conduct its own separate examination of the claims.” MPEP
§ 1213.02.
DECISION
For the reasons above, we reverse the Examiner’s decision rejecting
claims 1—20 as indefinite and claims 1—4, 7, 8, and 13—20 as obvious.
REVERSED
5