12056778 (P.T.A.B. Feb. 13, 2015)

Ex Parte Ghabra et al

Patent Trial and Appeal BoardFeb 13, 2015

12056778 (P.T.A.B. Feb. 13, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RIAD GHABRA and EHAB TARMOOM ____________________ Appeal 2012-009970 Application 12/056,778 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, JASON V. MORGAN, and J. JOHN LEE, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-009970 Application 12/056,778 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1–11 and 13–18. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claims Exemplary claim 1 under appeal reads as follows: 1. A passive entry system for an automotive vehicle comprising: a token including a display; and a control unit being configured to broadcast a wake-up signal at a first frequency to prompt the token to power-up if the token is in a low-power consumption mode, the token being configured to receive the wake-up signal and to deactivate the display if the display is active in response to receiving the wake-up signal. Rejections The Examiner rejected claims 1, 3, 8, and 16 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ghabra (US 2006/0114100 A1, pub. June 1, 2006), Baumgartner (US 2006/0208854 A1, pub. Sept. 21, 2006), and Schommer (US 2005/0075692 A1, pub. Apr. 7, 2005).1 The Examiner rejected claims 2, 4–7, 9–11, 13–15, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over various combinations of Ghabra, Baumgartner, Schommer, and other prior art references.2 1 Separate patentability is not argued for claims 3, 8, and 16. Except for our ultimate decision, these claims are not discussed further herein. App. Br. 6. 2 Separate patentability is not argued for claims 2, 4–7, 9–11, 13–15, 17, and 18. Rather, Appellants argue these claims only by referencing the argument for claim 1. App. Br. 7. Thus, the rejection of these claims turns on our decision as to claim 1. Except for our ultimate decision, these claims are not discussed further herein. Appeal 2012-009970 Application 12/056,778 3 Appellants’ Contentions 1. Appellants contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because “Schommer is not analogous art.” See App. Br. 2–4. 2. Appellants also contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because Appellants “distinguished between the phrases ‘low frequency’ and ‘high or radio frequency’” in Appellants’ Specification. That is within the context of Appellant’s application, the terms radio frequency and high frequency are understood to be interchangeable, and low frequencies are different from radio frequencies. Hence, the Examiner’s conclusions listed above are incorrect because the premise upon which they are based (i.e., that “radio frequency comprises low frequency”) is incorrect. App. Br. 6. Issue on Appeal Did the Examiner err in rejecting claim 1 as being obvious? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ Appeal Brief arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We disagree with Appellants’ conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 11–14) in response to Appellants’ Appeal Appeal 2012-009970 Application 12/056,778 4 Brief. We concur with the conclusions reached by the Examiner. We highlight the following added points. As to Appellants’ above contention 1, we disagree. Appellants’ argument overreaches. Although we agree that the Examiner has misstated the particular problem as “temporarily disabling the display during signal reception to avoid interference introduced by the display” (see Ans. 14), Appellants’ arguments fail to acknowledge that the problem to be solved, “to avoid interference introduced by the display,” is included in the Examiner’s statement. We agree with the Examiner that Schommer is reasonably pertinent because it recognizes the problem of interference introduced by the display and solves that problem by disabling the display. “A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). As to Appellants’ above contention 2, we disagree. It is well established that Appellants can act as their own lexicographer when describing their own invention. See CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002). However, that does not extend, as Appellants are attempting here, to acting as the lexicographer for the prior art references. Contrary to Appellants’ argument, the Examiner correctly points out that, as to the prior art, an artisan would understand radio frequency comprises low frequency. According to The Random House Dictionary of the English Language 1593 (2nd ed. 1987) the term “radio frequency” is “a frequency within the range of radio transmission, from Appeal 2012-009970 Application 12/056,778 5 about 15,000 to 1011 hertz.”3 Thus, we agree with the Examiner that the teaching of radio frequency signals in the prior art supports the conclusion of obviousness. CONCLUSIONS (1) The Examiner has not erred in rejecting claims 1–11 and 13–18 as being unpatentable under 35 U.S.C. § 103(a). (2) Claims 1–11 and 13–18 are not patentable. DECISION The Examiner’s rejections of claims 1–11 and 13–18 are 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)(1)(iv). AFFIRMED msc 3 See also, Electrical Engineers’ Handbook; Donald G. Fink ed.; MacGraw- Hill; 1975; page 22-3, Table 22-1, Bands of the Radio-Frequency Spectrum; showing radio frequencies at 10–30 kHz (VLF—very low frequency) and 30–300kHz (LF—low frequency).