Ex Parte Franklin et al

Patent Trial and Appeal Board

Feb 6, 2013

11438093 (P.T.A.B. Feb. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte LUKASS ROBERT FRANKLIN, KENNETH ALAN BRASK,
MARI HOASHI FRANKLIN, and ANGELA TOMLINSON
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Appeal 2010-009762
Application 11/438,093
Technology Center 2600
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Before ROBERT E. NAPPI, JUSTIN BUSCH, and MIRIAM L. QUINN,
Administrative Patent Judges.

QUINN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) (2002) from a rejection of
claims 1-23. We have jurisdiction under 35 U.S.C. § 6(b).

We AFFIRM.
Appeal 2010-009762
Application 11/438,093

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STATEMENT OF THE CASE
Exemplary Claim
Independent claim 1 is representative of the invention and reads as
follows:
1. A point of selection merchandise display system,
comprising:

a surface for placement of products where at least one
of the products is associated with a radio frequency
identification (RFID) tag;
an at least one antenna associated with the surface
capable of receipt of RFID signals that contains a tag
identifier from the RFID tag in response to movement of the
RFID tag;
a display; and
a controller in signal communication with the at least
one antenna and is in receipt of the tag identifier that results in
access of content associated with the tag identifier and
transmission of the content to the display which is in signal
communication with the controller.
References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Green US 5,894,261 Apr. 13, 1999
Flurry US 5,898,441 Apr. 27, 1999
Charych US 2005/0285742 A1 Dec. 29, 2005
Melton US 2006/0163350 A1 Jul. 27, 2006
Overhultz US 2006/0164247 A1 Jul. 27, 2006
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Hawthorne US 7,152,040 B1 Dec. 19, 2006
Rejections
Claims 1, 3-4, 8, 11-13, 15, 16, 20 and 22-23 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Hawthorne.
(Ans. 3-8.)
Claims 2 and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hawthorne in view of Flurry. (Ans. 8-9.)
Claims 5-6 and 17-18 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Hawthorne in view of Overhultz. (Ans.
10.)
Claims 7 and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hawthorne in view of Melton. (Ans. 11.)
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hawthorne in view of Green. (Ans. 11-12.)
Claims 10 and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hawthorne in view of Charych. (Ans. 12-
13.)
ISSUES
Appellants challenge the Examiner’s rejection of claims 1, 3-4, 8, 11-
13, 15, 16, 20, and 22-23 under 35 U.S.C. § 103(a) as being unpatentable
over Hawthorne. Based on Appellants’ arguments, the dispositive issues on
appeal are:
a) Whether Hawthorne teaches or suggests the use of a radio
frequency identification (RFID) tag (Br. 8-9); and
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b) Whether Hawthorne discloses “at least one antenna associated with
the surface capable of receipt of RFID signals . . . in response to
movement of the RFID tag” (Br. 9-10).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner has erred. Further, we have reviewed the
Examiner’s findings and conclusions as set forth in the Examiner’s Answer.
We decide the issues presented based on the arguments actually raised. We
do not agree with Appellants’ conclusions of error for the following reasons.
Concerning Appellants’ first contention that Hawthorne does not
disclose RFID tags, we note that Hawthorne expressly discloses the use of
RFID tags. (Ans. 14 (Examiner noting that the tag taught in Hawthorne – at
col. 7, ll. 20-25 – could be employed as an RFID tag).) Accordingly, we are
not persuaded by Appellants’ arguments otherwise.
As to Appellants’ second contention, the broadest reasonable
interpretation of the claim language in light of the specification leads us to
the conclusion that Hawthorne teaches or suggests the limitation of “at least
one antenna associated with the surface capable of receipt of RFID
signals . . . in response to movement of the RFID tag,” as recited in claim 1.
Appellants argue that the “claims recite RFID tags that are moved and not
interrogated.” (Br. 9.) We find, however, that the claim recites movement
of the RFID tag, but does not preclude interrogation of an RFID tag. That is,
the claim may be interpreted to allow for interrogation of the RFID tags,
which thereby respond through signals capable of being received by the at
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least one antenna in response to that RFID tag having moved within range of
that antenna.
Appellants’ Specification supports our interpretation. For example,
Appellants point to paragraph 19 of the Specification as supporting the
limitation-at-issue (Br. 5), and that paragraph also describes that “[t]he
detectable activity may include absence or presence of a specific RFID tag
or a combination of RFID tags” (Spec. [0019] (emphasis added)).
1
The
previous paragraph also describes that the RFID tag may be passive. (Spec.
[0018].) As the Examiner finds, passive RFID tags have no power source
but use the electromagnetic waves from the reader to energize the chip and
transmit back. (Ans. 14.) Such operation is consistent with interrogation.
Furthermore, we agree with the Examiner’s finding that receiving
RFID signals in response to movement is met by an RFID tag’s movement
within the interrogation range of the reader for that reader to receive the
information (the RFID signals). (Ans. 14-15.) We also agree with the
Examiner’s finding that Hawthorne’s disclosure of tracking movement
supports the determination that it would have been obvious to track the
movement when the tag is placed or moves within range. (Ans. 4-5 (citing
Hawthorne column 14, ll. 65-67, which discloses tracking through a retail
store the “movements of consumers, goods or carts”).) As such, we are not
persuaded by Appellants’ arguments that Hawthorne’s interrogation and the
RFID communication techniques that Hawthorne describes are outside the
scope of the claim language.

1
Citation to the Specification is made with reference to the published
application, No. US 2007/0080805 A1, Apr. 12, 2007.
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Appellants contend that the arguments to the patentability of
independent claim 1 are applicable to independent claim 13 as well as
dependent claims 3-4, 8, 11, 12, 15, 16, 20, and 22-23. (Br. 9-10.)
Accordingly, our analysis with respect to claim 1 decides the fate of claims
3-4, 8, 11-13, 15, 16, 20 and 22-23.
Similarly, Appellants assert that the rejections of claims 2, 5-7, 9, 10,
14, 17-19, and 21 are in error for the same reasons as discussed with respect
to claim 1. (Br. 10-11.) Accordingly, our analysis with respect to claim 1
decides the fate of the rejections of these claims under 35 U.S.C. § 103(a).
CONCLUSION
On the record before us, we conclude that the Examiner did not err in
rejecting independent claim 1 under 35 U.S.C. § 103(a) in view of
Hawthorne. Therefore, we sustain the rejection of claims 1-23.

DECISION
The Examiner’s decision to reject claims 1-23 is affirmed.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv)
(2012).

AFFIRMED

ELD