Ex Parte Gerszberg et al

Patent Trial and Appeal Board

May 23, 2016

13661914 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/661,914 10/26/2012 Seth M. Gerszberg
112622 7590 05/25/2016
Nicholas R. Lewis, P.A.
3873 NE 22nd Way
Lighthouse Point, FL 33064
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
GER01-001-CON2 9379
EXAMINER
WONG, ALBERT KANG
ART UNIT PAPER NUMBER
3649
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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):
nlewisesq@gmail.com
nlmiami@hotmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SETH M. GERSZBERG and JAMES R. BENYA
Appeal2014-009368
Application 13/661,914
Technology Center 3600
Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and
JOHN R. KENNY, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-3, 5, and 13-18, all the pending
claims in the present application. Claims 4 and 6-12 are withdrawn (App.
Br. 3). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
The present invention relates generally to an illumination device that
may be manipulated between two different illumination conditions. See
Abstract.
Appeal2014-009368
Application 13/661,914
Claim 1 is illustrative:
1. A system comprising:
an apparatus including
a receiver,
a power source,
an illumination device, and
a processor in communication with the receiver,
the power source, and the illumination device; and
a venue communication device including a processor and
a transmitter and adapted to communicate with the apparatus to
change a color of the illumination device, wherein the venue
communication device has a limited range of communication
associated with a venue and communicates with the apparatus to
change the color of the illumination device with the apparatus within
the limited range of communication.
Appellants appeal the following rejections:
RI. Claims 1, 2, and 13-17 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Harrell (US 8, 179,252, B2; May 15, 2012); and
R2. Claims 3, 5, and 18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Harrell and Cannon, Jr. (US 2009/0191839 Al; July
30, 2009).
ANALYSIS
Claims 1-3, 5, 13, 17, and 18
Issue 1: Did the Examiner err in finding that Harrell teaches or
suggests a venue communication device that has a limited range of
communication associated with a venue, as set forth in claim 1?
Appellants contend that Harrell's "extended geographic range far
exceeds the claimed 'venue' limited range of communication stated in Claim
1" (App. Br. 4). Appellants further contend that "[c]haracterizing a natural
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disaster such as a tornado as an 'event' and any location that is affected by a
tornado as a 'venue' is far beyond any reasonable interpretation of the claim
terms, and certainly fails to be consistent with the specification" (App. Br.
5).
In response, the Examiner finds "that applicant has not defined the
terms 'venue' or 'limited range' ... a venue may be as small as a conference
room or as large as an Olympic village" (Ans. 2) and "the broadest
reasonable interpretation of limited range is something that may[]be
practical without extraordinary hardware" (id.). The Examiner further finds
that "a venue may cover large portions of a city or campus which may be
substantial" (id. at 3). We agree with the Examiner.
As an initial matter, we find that Appellants' Specification notes that
"[t]he venue may be any type of venue ... but are not limited to, music
concerts, sporting events, restaurants, bars, anywhere else people gather in
numbers, or any other venue" (see Spec. ,-r 64). In other words, Appellants
fail to limit the term "venue" to any particular place or area. Furthermore,
Appellants' Specification uses the relative terms "limited range of
communication" without quantifying or otherwise lending some specificity
or precision to what would and would not be considered "limited" in these
circumstances (see ,-r 13). When a word of degree is used in a claim, it is
incumbent upon Appellants to provide, in the specification, some standard
for measuring that degree. Seattle Box Co., Inc. v. Industrial Crating &
Packaging, Inc., 731F.2d818, 826 (Fed. Cir. 1984). Here, Appellants fail
to provide a standard for measuring the range of communication.
Therefore, we find that the broadest reasonable interpretations of the
claimed "venue" and "limited range of communication" is any location that
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Application 13/661,914
is associated with an event, and any range that covers that particular venue,
respectively.
With that in mind, we find that the claimed "limited range of
communication associated with a venue" reads on Harrell's RF
communication system that broadcast a weather alarm to an applicable
county code or sub-county code within a local range or region in a county
(see Harrell col. 2, 1. 63 to col. 3, 1. 9). In other words, Harrell's local
range/region relates to a venue and the weather alert provided thereto can be
seen as the limited range of communication, i.e., as it is not broadcast to the
entire state, just a particular county therein.
As such, we find unavailing Appellants' contention that Harrell's
"extended geographic range far exceeds the claimed 'venue' limited range of
communication stated in Claim 1" (see App. Br. 4), given Appellants' broad
disclosure related thereto.
Accordingly, we sustain the Examiner's rejection of claims 1-3, 5,
and 13, 17, and 18.
Claims 14-16
Issue 2: Did the Examiner err in taking Official Notice?
Appellants contend that "[t]he Examiner improperly rejects claims
14--15 by summarily stating" conclusory statements, but "[t]he Examiner
fails to cite any support for these conclusory statements" (App. Br. 5).
The Examiner finds that "[i]t has been long held by the courts that
using multiple items for multiple effect is considered to be obvious. . .. if a
broadcast is sent to one television, it may be received by a plurality of
televisions" and "[it] would have been obvious that a general transmitted
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Application 13/661,914
signal may be received by a plurality of device[s] with the same capability"
(Ans. 3--4). We agree with the Examiner.
In essence, the Examiner has taken official notice and explained that it
is reasonable to expect that a broadcast would be received by a plurality a
similar devices, i.e., all having a receiver, power source, etc. In reviewing
the record, Appellants have not traversed the Examiner's finding by stating
that the purported well-known fact is not considered to be common
knowledge or well-known in the art. See MPEP § 2144.03(C) ("To
adequately traverse such a finding, an applicant must specifically point out
the supposed errors in the examiner's action, which would include stating
why the noticed fact is not considered to be common knowledge or well-
known in the art. See 3 7 CPR 1.111 (b ). " Cf An adequate rebuttal of the
Examiner's taking of Official Notice must contain sufficient information or
argument to create on its face a reasonable doubt regarding the
circumstances justifying the Examiner's notice of what is well known to one
of ordinary skill in the art. In re Boon, 439 F.2d 724, 728 (CCPA 1971).
Here, Appellants merely argue that "[t]he Examiner fails to cite any support
for these conclusory statements" (App. Br. 5), without pointing out the
supposed errors in such findings.
Similarly, regarding claim 16, Appellants further contend that "the
[E]xaminer again gives an obviousness conclusion lacking any support or
substantiation .... The Examiner's 'police car' example fails to provide any
indication of how or why a police car's light would have separate power
sources, receivers, and the like" (App. Br. 6). Here, the Examiner is using
the officially noticed police car's light example to illustrate it is well-known
to illuminate in complementary colors and/or to establish a combined
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pattern, not to show separate power sources, receivers, and the like (see
Final Act 3 and Ans. 4). Thus, again Appellants fail to properly point out
the supposed errors in such findings.
As a result, we find Appellants' mere request for support was
inadequate by failing to state why the taking of Official Notice was
improper, and why the noticed facts were not well known.
Accordingly, we sustain the Examiner's rejection of claims 14--16.
DECISION
We affirm the Examiner's§ 103(a) rejections of claims 1-3, 5, and
13-18.
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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