Ex Parte Daoud et al

Board of Patent Appeals and Interferences

May 12, 2009

10881568 (B.P.A.I. May. 12, 2009)

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
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Decided 1: May 12, 2009
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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:
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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.
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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).

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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.”
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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
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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.
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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

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