Ex Parte Ksienski et al

Patent Trials and Appeals Board

May 21, 2019

13558643 - (D) (P.T.A.B. May. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/558,643 07/26/2012 David A. Ksienski
16752 7590 05/23/2019
The Aerospace Corporation
Attn: C. Mulchinski, Ml/040
2310 E. El Segundo Boulevard
El Segundo, CA 90245
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.
1110.0012 1047
EXAMINER
BARKER, MATTHEW M
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
05/23/2019 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):
carole. a.mulchinski@aero.org
patents@leonardpatel.com
spatel@leonardpatel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID A. KSIENSKI, SAMUELS. OSOFSKY,
and ADAM M. CHANDLER
Appeal 2017-009262 1
Application 13/558,6432
Technology Center 3600
Before BART A. GERSTENBLITH, PHILIP J. HOFFMANN, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 1-11, 16-19, and 26-29. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 Our decision references the Appeal Brief filed Jan. 18, 2017 ("Appeal
Br."); the Reply Brief filed June 15, 2017 ("Reply Br."); the Examiner's
Answer mailed May 12, 2017 ("Ans."); and the Final Office Action mailed
Oct. 18, 2016 ("Final Act.").
2 According to Appellants, the real party in interest is "The Aerospace
Corporation." Appeal Br. 3.
Appeal2017-009262
Application 13/558,643
BACKGROUND
According to Appellants, "[t]he present invention relates to high-
resolution radar imaging, and more particularly, to collecting a radar image
by utilizing a passive reflector." Spec. ,i 1.
CLAIMS
Claims 1, 16, and 26 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A system, comprising:
a transmitting and receiving unit configured to transmit at
least one beam to, and receive at least one reflected beam from,
a target via an elliptical shaped reflector,
wherein the at least one beam is electronically steered in a
direction of a curved surface of, and into one or more locations
on, the elliptical shaped reflector to create a plurality of virtual
apertures behind the elliptical shaped reflector.
Appeal Br. 39.
REJECTION
The Examiner rejects claims 1-11, 16-19, and 26-29 under 35 U.S.C.
§ 103(a) as unpatentable over L6ffler3 in view of Kolinko4 or May. 5
DISCUSSION
Appellants present substantive arguments only with respect to the
independent claims on appeal. See Appeal Br. 14-36. Moreover, the
arguments for each independent claim are substantially duplicative. See id.
3 Loffler, US 2011/0043403 Al, pub. Feb. 24, 2011.
4 Kolinko et al., US 8,362,948 B2, iss. Jan. 29, 2013 ("Kolinko").
5 May, SiGe integrated circuits for millimeter-wave imaging and phased
arrays, UC San Diego Electronic Theses and Dissertations (2009).
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Thus, we discuss claim 1 below, and our analysis is equally applicable to
claims 16 and 26.
As recited above, independent claim 1 requires a system that is
configured to electronically steer a beam in a direction of a curved surface.
The Specification defines electronic steering as requiring that the beam may
be aimed by time or phase-delaying signals from array elements, in contrast
to mechanical steering in which the beam is physically pointed in different
directions. Spec. ,i,i 22, 23.
With respect to claim 1, the Examiner finds that Loffler discloses a
system as claimed, except that Loffler discloses a beam that is mechanically
steered in the direction of a curved surface instead of the claimed electronic
steering. Final Act. 2-3 (citing Loffler Fig. l; ,i,i 38, 41, 42, 57). More
specifically, the Examiner finds that Loffler discloses electronically steering
a beam in the vertical direction and mechanically steering the beam in the
horizontal direction, which is the direction of the curved surface in Loffler.
Id. The Examiner further finds that Kolinko discloses mechanical steering
in one direction and electronic steering in a perpendicular direction and that
Kolinko does not limit electronic steering to the vertical direction. Id. at 3
( citing Kolinko Abstract). The Examiner also finds that "May discloses that
it is well known to one of ordinary skill in the art that electronic steering is
an alternative to mechanical steering such as that provided by the rotation or
translation of the transmitting and receiving unit of Loffler." Id.
The Examiner determines that it would have been obvious to modify
Loffler in view of Kolinko because Kolinko contemplates electronic steering
in the horizontal direction and such a "combination would ... achieve a
desired field of view for a given application and/or to limit or eliminate time
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consuming mechanical movement." Id. Alternatively, the Examiner finds
that it would have been obvious "to modify Loffler to employ electronic
scanning in the direction of the curved surface of the reflector for the known
benefits cited by May, e.g. speed and increased reliability." Id. at 3-4
( citing May 2).
As discussed below, we are not persuaded of reversible error in the
rejection of claim 1 over Loffler in view of Kolinko or May.
Appellants first argue that Loffler' s or Kolinko' s mechanical steering
cannot be replaced with electronic steering without substantial
reconstruction or redesign of the system. Appeal Br. 15. In support,
Appellants assert that Kolinko cannot be reconfigured to electronically steer
in the horizontal direction, and that Kolinko does not teach or suggest
electronically scanning in the azimuthal direction. Id. at 16. Appellants
assert that a modification of Kolinko would require "a substantial change in
relative geometry of the sensor and target, and a form of pulse compression,
would be required to electronically scan in the azimuthal direction," which
"would be outside of the scope of teaching in Kolinko." Id. (citing
Declaration under 37 C.F.R. § 1.132, filed Jan. 18, 2017 ("Chandler
Declaration")).
We are not persuaded by either Appellants' argument or the Chandler
Declaration on this point. As an initial matter, we note that the rejection
does not appear to rely on a modification of Kolinko' s system. Rather, the
Examiner finds that Kolinko teaches electronic scanning in either the
horizontal or vertical direction and that it would have been obvious to
modify Loffler to do the same. See Final Act. 3. Regardless, we disagree
with Appellants' assertion that "Kolinko does not provide any teaching or
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Application 13/558,643
suggestion that scanning may occur electronically in the azimuthal
direction." Appeal Br. 16. Kolinko discloses a wave imaging radar system
that includes transmitting a beam with an antenna, wherein the beam is
electronically steered in one direction and the antenna is mechanically
pivoted in another direction. See Kolinko Abstract. Kolinko appears to
contemplate that electronic steering may occur in either the horizontal or
vertical direction. See id. Abstract, claim 1 (identifying that electronic
steering occurs in one direction and mechanical steering occurs in a
perpendicular direction).
Further, Appellants assert that Kolinko is limited to mechanical
steering in the azimuthal direction. See, e.g., Reply Br. 4. Kolinko,
however, discloses an embodiment that uses "a multi-element phased array"
in which "the need for mechanical scanning in azimuth is obviated by the
ability of a beam-forming processor to simultaneously record and process
returns from all azimuth positions without rotating the phased array
antenna." Kolinko col. 16, 1. 63-col. 17, 1. 13. This is a form of electronic
steering, and thus, Kolinko specifically discloses an embodiment that is not
limited to mechanical steering along the azimuthal direction. See also
Ans. 7 (The Examiner notes that Kolinko "avoids requiring electronic or
mechanical steering in any particular direction."). Appellants and the
Chandler Declaration address this embodiment, and assert that there would
be no curved reflector used. See Reply Br. 1 O; see also Chandler
Declaration ,i 13. Regardless of whether that is correct, this embodiment of
Kolinko nonetheless provides a clear teaching of electronic steering along
the azimuth.
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Next, Appellants assert that although May describes "the benefits of
electronically steering arrays, May does not disclose electronically steering
in the azimuthal direction" such that the proposed modification would
require substantial reconstruction or redesign of Loffler. Appeal Br. 17. We
fail to see how this fact alone shows that substantial reconstruction of
Loffler would be required, particularly in light of Kolinko' s disclosure of
electronic steering along the azimuth, as discussed above.
Next, Appellants argue that even if May can be said to teach
electronic steering in the azimuthal direction, "one of ordinary skill in the art
cannot incorporate such a feature into [Loffler or] Kolinko without
substantial reconstruction and redesign." Id. In support, Appellants rely on
the Chandler Declaration. Id. at 18 (citing Chandler Declaration ,-J,-J 9, 10);
see also Reply Br. 4-8. Specifically, Appellants assert that "if the antenna
... of [Loffler] or the slotted waveguide of Kolinko were to be turned on its
side, the antenna and/or the slotted waveguide would obscure ray paths from
certain target areas in the plane of the [area]." Appeal Br. 1 7. Appellants
also assert that the result would be a "slant-plane" image, rather than an
"optical image," and because "this would change the imaging paradigm, the
teachings of [Loffler] and Kolinko would require substantial change." Id.
For similar reasons, Appellants assert that such a modification would render
the systems of Loffler and Kolinko inoperable "without conducting detailed
modeling calculations to properly locate the feed relative to the focus." Id.
at 19.
We are not persuaded by this argument. Appellants' argument here,
and the submitted Declaration, appear to assume that the beam transmitter in
either Loffler or Kolinko must be turned on its side to be electronically
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steered along the curved surface in either system. Appellants fail to explain
why this must be the case in order to achieve electronic steering in the
azimuthal direction. Specifically, the Examiner finds that Loffler's feed
need not be rotated to perform electronic steering along the curve and rather,
a two-dimensional array could be used which allows for steering both
horizontally and vertically. Ans. 6. With respect to this finding, Appellants
argue only that it is conclusory and does not articulate how Loffler may be
modified without frustrating its purpose or without substantial modification.
The Examiner's finding, however, is supported by the disclosure in Kolinko
discussed above, in which a phased array is used to electronically steer the
beam in the azimuthal direction, in addition to the vertical direction. Thus,
we are not persuaded that employing a phased array as taught by May would
necessarily require the substantial reconstruction contemplated by
Appellants.
Next, Appellants argue that Loffler teaches away from the claimed
invention. Appeal Br. 19-20; see also Reply Br. 9-10. Appellants only
assert that Loffler teaches away "from using [a] curvature-aligned feed
arrangement" "[b ]y aligning the electronically steered feed parallel to the
(linear) focus of the cylindrical reflector." Appeal Br. 20. A reference may
be said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant. In re Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994).
Appellants do not adequately explain why Loffler' s disclosure of an
electronically steered feed in the focus of a cylinder, i.e. vertically in Loffler,
would discourage the use of electronic steering in the place of mechanical
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steering in the direction of a curved surface, i.e. horizontally in Loffler, as
required by the claim. Loffler' s disclosure of mechanical steering in the
horizontal direction does not persuade us that Loffler teaches away from the
use of electronic steering without some disclosure that expressly or
implicitly discourages the use of electronic steering. Thus, we agree with
the Examiner that the mere disclosure of one alternative, i.e., mechanical
steering in the horizontal direction, without any disclosure of the other
alternative, i.e., electronic steering in the horizontal direction, "does not
criticize, discredit, or otherwise discourage the" use of electronic steering
the horizontal direction. Ans. 7.
Similarly, Appellants argue that "Kolinko teaches away from aligning
the linear slotted waveguide feed in any direction other than along the focal
axis of the cylindrical reflector." Appeal Br. 20. Here, Appellants
acknowledge that Kolinko teaches a system in which electronic steering
occurs in the azimuthal direction, but Appellants assert that these
embodiments would not require a curved reflector. Id. Appellants,
however, fail to provide any explanation as to how this shows that Kolinko
teaches away from the claimed invention.
Finally, Appellants argue "that the Examiner failed to rebut the
evidence submitted in the [Chandler] Declaration." Appeal Br. 20-21. We
are not persuaded by this argument. The Chandler Declaration relies on
substantially the same evidence and repeats the same arguments by
Appellants discussed above, which we have addressed herein. Thus, we are
not persuaded by the Declaration for the reasons discussed herein.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 1. For the same reasons, we are not persuaded of error in the
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rejection of independent claims 16 and 26, for which Appellants rely on the
same arguments. Finally, we note that Appellants argue that the rejection of
the dependent claims includes only conclusory statements. See, e.g., Appeal
Br. 21. Appellants' argument, however, lacks explanation regarding any
specific claims and we are not persuaded of error by this mere allegation.
Accordingly, we sustain the rejection of claims 1-11, 16-19, and 26-29.
CONCLUSION
We AFFIRM the rejection of claims 1-11, 16-19, and 26-29.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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