Ex Parte Daoud et alDownload PDFBoard of Patent Appeals and InterferencesMay 12, 200910881568 (B.P.A.I. May. 12, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte BASSEL H. DAOUD, IVAN PAWLENKO, and RICHARD R. SCHWARTZ ____________ Appeal 2009-1390 Application 10/881,568 Technology Center 2600 ____________ Decided 1: May 12, 2009 ____________ Before KENNETH W. HAIRSTON, JOSEPH F. RUGGIERO, AND ROBERT E. NAPPI, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL 1 The two-month time period for response or filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2009-1390 Application 10/881,568 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1-9, 11-13, and 15-21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The invention claimed on appeal relates to a system for aligning a transmitter and receiver for direct, line-of-sight communications, and more particularly, to a system for aligning communications transmitted by laser or microwave carrier (Spec. 1). Claim 1, which further illustrates and represents the invention claimed on appeal, follows: 1. A method of aligning a transmitter and receiver for line-of- sight wireless communications, comprising the steps of: directing a diffused laser pointer beam toward a wireless receiver to illuminate thereby at least a portion of the wireless receiver; and aligning the wireless transmitter according to laser pointer beam light reflected by the wireless receiver such that a wireless transmission signal is aligned substantially along a line-of-sight path between the wireless transmitter and the wireless receiver. The Examiner relies on the following prior art references to show unpatentability: Sepp US 4,731,879 Mar. 15, 1988 Carbonneau US 5,274,379 Dec. 28, 1993 The Final Rejection mailed on August 7, 2007 set forth two prior art rejections on appeal as follows: 2 Appeal 2009-1390 Application 10/881,568 1. Claims 1-9, 11-13, 15, 20, and 21 were rejected under 35 U.S.C. § 102(b) as being anticipated by Sepp. 2. Claims 16-19 were rejected under 35 U.S.C. § 103(a) as being unpatentable over Sepp and Carbonneau. Rather than repeat the arguments of Appellants or the Examiner, we refer to the Appeal Brief filed on December 31, 2007, the Examiner’s Answer mailed on February 20, 2008, and the Reply Brief filed on March 25, 2008. . ISSUES Rejection under 35 U.S.C. § 102(b) Appellants argue that the rejection of claims 1 through 9, 11 through 13, 15, 20, and 21 under 35 U.S.C. § 102(b) is in error. Appellants assert that Sepp fails to teach or suggest the claim limitation of “aligning the wireless transmitter according to laser pointer beam light reflected by the wireless receiver such that a wireless transmission signal is aligned substantially along a line-of-sight path between the wireless transmitter and the wireless receiver.” (App. Br. 10-11) Appellants provide three reasons for this assertion. Appellants reason that the diffused laser pointer beam, the wireless transmitter, and the wireless receiver are separate and distinct claim elements and as such Sepp does not teach the laser pointer beam and wireless transmitter as claimed in representative claim 12 (App. Br. 10, Reply Br. 2-3). Additionally, Appellants assert that Sepp does not teach aligning the transmitter and receiver as there is no separate wireless receiver 2 Appellants argue claims 1 through 9, 11 through 13, 15, 20, and 21 as a group. We select claim 1 as representative of the group. 3 Appeal 2009-1390 Application 10/881,568 and transmitter taught. (App Br. 11). Further, Appellants assert that Sepp is only concerned with conditional reflections whereas in the invention the laser beam is always reflected. (App. Br. 11). Based on these contentions, we frame the issues as follows. (1) Have Appellants shown that the Examiner erred by not construing the claims as requiring the laser pointer beam as being provided by a device separate from the wireless transmitter? (2) Have Appellants shown that the Examiner erred in finding that Sepp teaches aligning a transmitter and receiver as claimed? (3) Have Appellants shown that the reflections of the laser in Sepp are different than that claimed? Rejection under 35 U.S.C. § 103(a) Appellants argue on page 12 of the Appeal Brief that the Examiner’s rejection of claims 16 through 19 under 35 U.S.C. § 103(a) is in error. Appellants state “[s]ince [the] rejection under 35 U.S.C. § 102 given Sepp has been overcome, as described hereinabove, and there is no argument put forth by the Office action that Carbonneau supplies that which is missing from Sepp to render the independent claims anticipated, these grounds can not be maintained.” (App. Br. 12). Thus, Appellants have not presented any additional arguments directed to the rejection based upon 35 U.S.C. § 103(a) and we are presented with the same issues identified above with respect to the rejection under 35 U.S.C. § 102(b). 4 Appeal 2009-1390 Application 10/881,568 FINDINGS OF FACT 1. Sepp is directed to a data monitoring system which employs a laser and a modulated retroreflector for use in simultaneous friend or foe identification (IFF) situations. Abstract 2. Sepp describes a laser (e.g., wireless) transmitter-receiver 10 producing a laser transmission beam 11 which is directed to reflector device item 40. Fig. 1; col. 3, ll. 39-46. 3. The reflector device includes a laser (e.g., wireless) receiver 51 and 51 and a retroreflector item 64. Fig. 1; col. 5, ll. 3-20. 4. When operated, the laser transmitter’s optics are placed in a search phase, where the optics create a divergent beam. When a reflector item 40 is sensed, the optics are changed to create a less divergent laser beam and the device starts tracking the reflector device 40. Fig. 1; col. 3, ll. 52-56, col. 4, ll. 29-43. 5. The laser beam is modulated with an IFF code which is received by the reflector device. Col. 3, ll. 46-50, col. 5, ll. 23-36. PRINCIPLES OF LAW “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987). Anticipation is determined by first construing the claims and then comparing the properly construed claims to the prior art. In re Cruciferous Sprout Litigation, 301 F.3d 1343, 1346 (Fed. Cir. 2002). During patent examination, the pending claims must be given their broadest reasonable interpretation “consistent with the specification.” 5 Appeal 2009-1390 Application 10/881,568 Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc). Claims must be interpreted "in view of the specification" without importing limitations from the specification into the claims unnecessarily. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). ANALYSIS Appellants’ arguments have not persuaded us that the Examiner erred in rejecting claim 1. Contrary to Appellants’ arguments we do not consider claim 1 to require that the laser pointer beam, the wireless transmitter, and the wireless receiver are separate and distinct elements. For example, claim 1 on appeal does not include the words "separate and distinct" when defining the laser pointer beam, wireless transmitter, and wireless receiver. Rather, claim 1 includes a limitation of “directing a diffused laser pointer beam towards a wireless receiver.” Claim 1 further recites aligning the “wireless transmitter according to the laser pointer beam.” However, claim 1 does not identify the source of the laser beam, and thus is not limited to the laser beam being generated from a device separate from the line of sight wireless transmitter (which can be a laser transmitter see Appellants’ Specification paragraph 0015). Thus, we find no error in the Examiner’s claim construction as we do not find that the claims require the laser pointer beam to be produced by a device separate from the wireless transmitter. Further, Appellants have not persuaded us that the Examiner erred in finding that Sepp teaches aligning a transmitter and receiver as claimed. In rejecting Claim 1, the Examiner finds that Sepp’s teaching of the divergent laser beam meets the claimed divergent laser beam. (Answer 7). Further, the Examiner finds that Sepp’s teaching of once a reflection is sensed, a less 6 Appeal 2009-1390 Application 10/881,568 divergent laser beam being used to track the object, meets the claimed alignment of transmitter and receiver. (Answer 8). We concur with the Examiner’s analysis. Sepp teaches that the transmitter uses a divergent laser beam to find the reflector of a wireless receiver by sensing the reflection. (Fact 4). The source of this laser beam is also used as a transmitter to transmit data (the IFF code) to the receiver. (Fact 5). As the laser is using light to transmit information, it is a line of sight wireless transmitter. That the laser is used as the transmitter and to locate and track the reflector on the transmitter does not differentiate Sepp’s invention from the claim because as discussed above the scope of the claim does not identify that the source of the laser pointer beam is a different device from the line of sight wireless transmitter. Further, Sepp teaches that the laser beam is used to track the receiver (Fact 4) which necessarily implies that the laser (wireless transmitter) is aligned with the receiver. Additionally, Appellants’ arguments directed to the rejection being in error as Sapp does not teach “always reflecting” is not persuasive. Appellants have not identified a limitation in claim 1, nor do we find any limitation in claim 1, which identifies that the laser beam is always reflected. Thus, while there may be a difference in the manner in which the laser beam is reflected in Sepp and the manner in which the laser beam is reflected in Appellants’ disclosed invention, we do not consider any such distinction to be claimed. For the foregoing reasons, Appellants have not shown error in the rejection of independent claim 1 over Sepp. Accordingly, we affirm the § 102 rejection of claim 1, as well as claims 2-9, 11-13, 15, 20, and 21 that fall therewith. 7 Appeal 2009-1390 Application 10/881,568 For similar reasons, we affirm the § 103 rejection of claims 16-19 over Sepp and Carbonneau. Appellants have not particularly pointed out errors in the Examiner’s reasoning to persuasively rebut the Examiner's prima facie case of obviousness, but merely rely on the same arguments presented in connection with claim 1 (App. Br. 10-13, Reply Br. 2-3). There is no substantive discussion in Appellants’ Briefs concerning the § 103(a) rejection (App. Br. 10-13, Reply Br. 2-3). Thus, we are not persuaded that the Examiner erred in rejecting claims 16-19 for the same reasons discussed above with respect to claim 1. The § 103 rejection is therefore sustained. ORDER The Examiner’s decision rejecting claims 1-9, 11-13, 15, 20, and 21 under 35 U.S.C. § 102(b) as being anticipated by Sepp is affirmed. The Examiner's decision rejecting claims 16-19 under 35 U.S.C. § 103(a) as being unpatentable over Sepp and Carbonneau is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 8 Appeal 2009-1390 Application 10/881,568 gvw PATTERSON & SHERIDAN LLP LUCENT TECHNOLOGIES, INC 595 SHREWSBURY AVENUE SHREWSBURY, NJ 07702 9 Copy with citationCopy as parenthetical citation