Ex Parte Graber

Patent Trial and Appeal Board

Mar 30, 2018

13066697 (P.T.A.B. Mar. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/066,697
41863 7590
TAYLOR IP, P.C.
P.O. Box 560
142. S Main Street
A villa, IN 46710
FILING DATE FIRST NAMED INVENTOR
04/21/2011 Curtis E. Graber
04/02/2018
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.
WAC0006.US 9500
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
MAILDATE DELIVERY MODE
04/02/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CURTIS E. GRABER
Appeal 2016-001887
Application 13/066,697
Technology Center 3600
Before WILLIAM A. CAPP, BRANDON J. WARNER, and
FREDERICK C. LANEY, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Curtis E. Graber ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 1-19, which are all the pending
claims. Appeal Br. 1, 5. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-001887
Application 13/066,697
CLAIMED SUBJECT MATTER
Appellant's disclosed invention "relates to sound projection and more
particularly for targeting a relatively directional sound beam under variable
atmospheric conditions." Spec. i-f 2. Claims 1 and 12 are independent.
Claim 1, reproduced below with emphasis added, is illustrative of the subject
matter on appeal.
1. A system for targeting directed acoustic energy,
compnsmg:
a directed acoustic energy source;
means for locating a target relative to the location for the
directed acoustic energy source;
data inputs relating to atmospheric conditions; and
means for determining a targeting solution to the target,
dependent upon the data inputs, and for directing the acoustic
energy to the target.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Desrochers US 2006/0234621 Al Oct. 19, 2006
Godbold US 2008/0078610 Al Apr. 3, 2008
Graber US 2008/0084787 Al Apr. 10, 2008
Haque US 2008/0289422 Al Nov. 27, 2008
Roussel US 2012/0051183 Al Mar. 1, 2012
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Application 13/066,697
REJECTIONS
The following rejections are before us for review:
I. Claims 1-3, 12, and 14 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Graber and Roussel. Final Act. 2--4.
II. Claims 4--8, 11, 13, 15, 17, and 18 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Graber, Roussel,
and Haque. Id. at 4--5.
III. Claims 9 and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Graber, Roussel, Haque, and Godbold.
Id. at 5---6.
IV. Claims 16 and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Graber, Roussel, Haque, and
Desrochers. Id. at 6-7.
ANALYSIS
Rejection I- Claims 1-3, 12, and 14 as unpatentable over
Graber and Roussel
Appellant presents the same substantive arguments against the
rejection of independent claims 1 (see Appeal Br. 11-12) and 12 (see id.
at 12-14), and does not present any separate arguments for the dependent
claims subject to Rejection I. We select independent claim 1 as
representative of the issues that Appellant presents in the appeal of this
rejection, with claims 2, 3, 12, and 14 standing or falling therewith. See
37 C.F.R. § 41.37(c)(l)(iv).
The Examiner determines that a combination of teachings from
Graber and Roussel renders obvious the subject matter of claim 1. See Final
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Application 13/066,697
Act. 2-3. Appellant argues that neither Graber nor Roussel teaches a means
for determining a targeting solution to the target that is dependent upon data
inputs relating to atmospheric conditions. See Appeal Br. 11-12; Reply
Br. 1-2. This argument is unpersuasive.
In rejecting claim 1, the Examiner finds that Graber teaches a means
for determining a target solution, but that such means is not disclosed as
being dependent on data input that includes atmospheric conditions. Final
Act. 2; Ans. 3. For this feature, the Examiner relies on Roussel for teaching
the use of data input that includes atmospheric conditions. Final Act. 2;
Ans. 3--4. The Examiner explains that, given the known manner in which
atmospheric conditions can affect sound waves, "[i]t would have been
obvious to modify the system of Graber to include atmospheric input data
for target determination capabilities in order to improve the precision and
accuracy of the desired transmitted acoustic signal." Final Act. 2-3
(emphasis added).
Appellant's argument is premised on a contention that Roussel
teaches directing a "sensor," rather than a "source," based on the data inputs
relating to atmospheric conditions. See Appeal Br. 11-12; Reply Br. 2. But
this contention is misplaced, as Roussel expressly discloses that its
adjustable wave ranger sensor 12 includes both transmitter 20 (a source) and
receiver 22, such that directing the sensor encompasses directing the source.
See Roussel i-f 20; Ans. 3--4.
Further, to the extent that Appellant attempts to distinguish Graber, in
asserting that Graber' s means for locating a target is done "using the
electromagnetic spectrum, which effects a line of sight solution" (Appeal
Br. 12; see id. at 13), we agree with the Examiner that Graber's means for
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Application 13/066,697
locating a target includes video cameras, provides for detection, tracking,
and identification of a target (see Ans. 2, citing Graber, Abstract), and that
the means for locating a target recited in claim 1 does not require any more
specificity than this. 1
Most fundamentally, Appellant's argument does not address the
ultimate issue of whether the claimed subject matter as a whole would have
been obvious at the time the invention was made to a person having ordinary
skill in the art to which the subject matterpertains. 2 See 35 U.S.C. § 103(a).
Here, the Examiner's conclusion that the claimed subject matter would have
been obvious in view of the art is reasonable, and Appellant does not explain
We note that the Summary of Claimed Subject Matter (Appeal Br. 7)
identifies paragraphs 25, 29, and 33 of Appellant's Specification as
disclosing the structure, material, or acts corresponding to the recited means
for locating a target. From these paragraphs, we understand this means to
encompass targeting computer 50 (which also appears to be part of the
means for determining a targeting solution to the target), inclusive of various
inputs, such that an operator can identify a target, likely with reference to
operator display 54. See, e.g., Spec. i-f 29. However, specific operation of
how this is accomplished, or incorporated into the means, is unclear. For
example, even if the claim were to require that the means for locating a
target relies on acoustic energy, as Appellant appears to suggest (see Appeal
Br. 12), it is unclear whether the target would be located via acoustic energy
emanating originally from the target or via acoustic energy emanating
originally from Appellant's system and merely reflected by the target. We
query whether the Specification sufficiently describes the recited means so
as to ensure that the disclosure and the claims comply with the requirements
of 35 U.S.C. § 112, first and second paragraphs.
2 As the rejection here is based on a conclusion of obviousness, it
already presumes the presence of some distinctions. Thus, the relevant
inquiry is not whether distinctions exist between the claimed subject matter
and the disclosures of Graber and Roussel; rather, it is whether those
distinctions are such that the subject matter as a whole would have been
obvious.
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Application 13/066,697
how the proposed modification to Graber' s means for determining a target
solution, by including atmospheric input data for target determination
capabilities to improve precision and accuracy (see Final Act. 2-3;
Ans. 3--4), would have been unpredictable or somehow beyond the level of
ordinary skill in the art. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007).
We note that any other arguments not specifically addressed in detail
herein have been thoroughly considered by the panel but are not persuasive
for the reasons discussed supra and those expressed in the Examiner's
Answer.
After careful consideration of all the evidence of record, Appellant's
arguments do not apprise us of error in the Examiner's findings or reasoning
in support of the conclusion of obviousness. Accordingly, we sustain the
rejection of claim 1, and claims 2, 3, 12, and 14 falling therewith, under
35 U.S.C. § 103(a) as being unpatentable over Graber and Roussel.
Rejections II-IV- Claims 4-11, 13, and 15-19 as unpatentable over
Graber and Roussel, with one or more of Haque, Godbold, and Desrochers
Appellant refers to the arguments presented in the context of
Rejection I, discussed supra, and additionally contends that the rejections of
these dependent claims should be reversed "for the reasons given above."
Appeal Br. 14--15. For the reasons discussed supra, we are unpersuaded of a
deficiency with respect to the combination of Graber and Roussel as applied
in Rejection I, such that Appellant's arguments do not apprise us of error in
the Examiner's findings or reasoning in support of the conclusion of
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Application 13/066,697
obviousness for Rejections II-IV. Accordingly, we likewise sustain these
rejections.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-3, 12, and
14 under 35 U.S.C. § 103(a) as being unpatentable over Graber and Roussel.
We AFFIRM the Examiner's decision rejecting claims 4--8, 11, 13,
15, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Graber,
Roussel, and Haque.
We AFFIRM the Examiner's decision rejecting claims 9 and 10 under
35 U.S.C. § 103(a) as being unpatentable over Graber, Roussel, Haque, and
Godbold.
We AFFIRM the Examiner's decision rejecting claims 16 and 19
under 35 U.S.C. § 103(a) as being unpatentable over Graber, Roussel,
Haque, and Desrochers.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a). See 3 7 C.F .R.
§ 1.136(a)(l )(iv).
AFFIRMED
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