Ex Parte Hunter et al

Board of Patent Appeals and Interferences

Jul 21, 2011

10117492 (B.P.A.I. Jul. 21, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANTHONY HUNTER and JUSTIN LINDORFF
____________

Appeal 2009-007503
Application 10/117,492
Technology Center 2400
____________

Before CARLA M. KRIVAK, CARL W. WHITEHEAD, JR., and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-007503
Application 10/117,492

2
STATEMENT OF THE CASE
Introduction
Appellants appeal under 35 U.S.C. § 134 (a) from a final rejection of
claims 1-15. Appeal Brief 3. We have jurisdiction under 35 U.S.C. § 6(b)
(2002). We reverse.

Exemplary Claim
Exemplary independent claim 1 under appeal reads as follows:
1. A system, comprising:
an envelope detector to provide peak-to-peak amplitude of an
incoming waveform at any given time;
a peak-to-peak amplitude monitor to monitor peak-to-peak amplitude,
to determine an upper trigger and a lower trigger of the waveform, to set a
trigger signal when the peak-to-peak amplitude exceeds the upper trigger
and to deactivate the trigger signal when the peak-to-peak amplitude falls
below the lower trigger;
a data packet searcher to start searching for a data packet when the
peak-to-peak amplitude monitor issues the trigger; and
a data packet processor to process and extract information from the
recovered data packet.

Appeal 2009-007503
Application 10/117,492
3
Rejections on Appeal1
Claims 1, 6, 7, 10, and 13-15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over U.S. Patent Number 6,359,939 B1 issued to
Calderone (“Calderone”) and U.S. Patent Number 5,953,418 issued to Bock
(“Bock”). Answer 3-6.

Appellants’ Contention
Appellants contend that any combination of Calderone and Bock fails
to disclose “determining a lower trigger of a waveform, or deactivating a
trigger signal when peak-to-peak amplitude falls below the lower trigger.”
Appeal Brief 11-12 (emphases omitted).

Issue on Appeal
Does the combination of Calderone and Bock disclose determining a
lower trigger of a waveform or deactivating a trigger signal when peak-to-
peak amplitude falls below the lower trigger?

PRINCIPLE OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of

1 Appellants state that the remaining rejections rely on the rejection of
claims 1, 6, 7, 10, and 13-15 and therefore only the rejection of claims 1, 6,
7, 10, and 13-15 is to be reviewed. Appeal Brief 6. See Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to
present arguments on a particular issue — or, more broadly, on a particular
rejection — the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection.”) (designated as precedential at
http://www.uspto.gov/ip/boards/bpai/decisions/prec/index.jsp).
Appeal 2009-007503
Application 10/117,492
4
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). If the Examiner’s burden
is met, the burden then shifts to Appellants to overcome the prima facie case
with argument and/or evidence. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness of the
arguments. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments (Appeal Brief) that the Examiner has erred. We agree with
Appellants’ conclusion.
Appellants contend that any combination of Calderone and Bock fails
to disclose or suggest a peak-to-peak amplitude monitor determining an
upper and lower trigger of a wave form. Appeal Brief 11. Appellants
further argue that neither Calderone nor Bock discloses deactivating a
trigger signal when the peak-to-peak amplitude falls below a lower trigger.
Id. The Examiner relies upon Calderone column 5, lines 46-50, to determine
the upper and lower trigger of the waveform. Answer 4; Appeal Brief
11. However, in the Examiner’s response to Appellants’ arguments that
Calderone does not determine the lower trigger of the waveform in the cited
passage, the Examiner contends that Figure 2B illustrates both the upper and
lower triggers. Answer 11.
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Appeal 2009-007503
Application 10/117,492
6
CONCLUSION
The Examiner has erred in rejecting claims 1, 6, 7, 10, and 13-15 as
being unpatentable under 35 U.S.C. § 103(a).

REVERSED

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