Ex Parte Langstrom

Board of Patent Appeals and Interferences

Mar 16, 2009

10333075 (B.P.A.I. Mar. 16, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MIKAEL LANGSTROM
____________

Appeal 2009-0791
Application 10/333,075
Technology Center 2600
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Decided1: March 16, 2009
____________

Before JOSEPH F. RUGGIERO, MAHSHID D. SAADAT, and JOHN A.
JEFFERY, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final Rejection of
claims 5-24, which are all of the pending claims. Claims 1-4 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-0791
Application 10/333,075

Rather than reiterate the arguments of Appellant and the Examiner,
reference is made to the Brief (filed July 30, 2007 and supplemented Oct. 8,
2008) and the Answer (mailed November 2, 2007) for the respective details.
Only those arguments actually made by Appellant have been considered in
this decision. Arguments which Appellant could have made but chose not to
make in the Brief have not been considered and are deemed to be waived
[see 37 C.F.R. § 41.37(c)(1)(vii)].

APPELLANT’S INVENTION
Appellant’s claimed invention relates to the providing of security
protection to a remote entity at a first location in which a wireless signal is
continuously transmitted from the remote entity’s location. The wireless
signal is continuously detected at a second location remote from the first
location and an alert is generated upon detection of the cessation of the
wireless signal. (Spec. 1:11-29).

Claim 5 is illustrative of the invention and reads as follows:
5. A method of providing security protection to a remote
entity comprising:
transmitting a continuous wireless signal from a location
of an entity at a first location, said continuous wireless
signal including data unique to its transmitter;
continuously detecting said continuous wireless signal from
a second location remote from said first location; and
detecting a cessation of transmission of said continuous
wireless signal and upon detection of said cessation of
transmission, generating an alert status.

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THE EXAMINER’S REJECTIONS

The Examiner relies on the following prior art references to show
unpatentability:
Williamson US 4,999,613 Mar. 12, 1991
Meadows US 6,716,101 B1 Apr. 6, 2004
(filed Jun. 28, 2000)

Claims 5, 6, 8-11, 13-16, 18-21, 23, and 24 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Williamson.
Claims 7, 12, 17, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Williamson in view of Meadows.

ISSUES
(i) Under 35 U.S.C. § 102(b), does Williamson have a disclosure
which anticipates the invention set forth in claims 5, 6, 8-11,
13-16, 18-21, 23, and 24?

The pivotal issue before us in making this determination is whether
Appellant has demonstrated that the Examiner erred in finding that
Williamson discloses the generation of an alert signal upon detection of the
cessation of transmission of a continuous transmitted wireless signal.

(ii) Under 35 U.S.C. § 103(a), with respect to appealed claims 7,
12, 17, and 22, would one of ordinary skill in the art at the time
of the invention have found it obvious to combine Williamson
with Meadows to render the claimed invention unpatentable?

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The pivotal issue before us in making this determination is whether
Appellant has demonstrated the Examiner erred in determining the
obviousness to the skilled artisan of modifying Williamson by adding the
mobile telephone location monitoring features of Meadows.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence:
1. Williamson discloses a security protection system in which an
alert is generated upon a detection of the absence of a continuously
transmitted wireless signal from a remote entity (Fig. 1 and col. 1, ll. 29-55).
2. Williamson further discloses (col. 4, l. 66-col. 5, l. 3) the
generation of an alert when the absence of the continuously transmitted
signal is a result of the remote entity, e.g., a prisoner, moving out of range of
a home receiver.
3. Williamson alternatively discloses (col. 5, ll. 3-5 and col. 9, ll.
16-22) the generation of an alert when the absence of the continuously
transmitted signal from the remote entity is a result of the transmitter being
in a transmission-shielded location.
4. Meadows discloses (col. 2, ll. 29-58, col. 3, ll. 36-67, and col.
7, ll. 20-33) the monitoring of the location of an individual using a mobile
telephone as a source of continuous remote signal transmission.

PRINCIPLES OF LAW
1. ANTICIPATION

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It is axiomatic that anticipation of a claim under § 102 can be found if
the prior art reference discloses every element of the claim. See In re King,
801 F.2d 1324, 1326 (Fed. Cir. 1986) and Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir.
1984).
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis
Pharmaceutical Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005), citing
Minn. Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976
F.2d 1559, 1565 (Fed. Cir. 1992). “Anticipation of a patent claim requires a
finding that the claim at issue ‘reads on’ a prior art reference.” Atlas Powder
Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed Cir. 1999) (“In other words, if
granting patent protection on the disputed claim would allow the patentee to
exclude the public from practicing the prior art, then that claim is
anticipated, regardless of whether it also covers subject matter not in the
prior art.”) (internal citations omitted).

2. OBVIOUSNESS
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
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). “[T]he examiner bears
the initial burden, on review of the prior art or on any other ground, of
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presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore,
‘there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness’ . .
. [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim,
for a court can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.

KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

ANALYSIS
35 U.S.C. § 102(b) REJECTION
Appellant’s arguments in response to the Examiner’s anticipation
rejection, based on Williamson, of independent claims 5 and 15 assert that
the Examiner has not shown how each of the claimed features is present in
the disclosure of Williamson, so as to establish a prima facie case of
anticipation. Appellant’s arguments focus on the contention that, in contrast
to the claimed invention, the security protection system of Williamson will
only generate an alert when a continuously transmitted signal from an entity
is too weak to be received, e.g., when the monitored prisoner in Williamson
has moved out of range of the home receiver.
According to Appellant (App. Br. 6-7), there is no detection of the
cessation of a transmission in Williamson but, rather, only an indication that
the transmitted signal is too weak to be detected. In Appellant’s view (id.),
the claimed invention provides advantages over that described by
Williamson since there is no limitation to operational distance. As asserted
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by Appellant, the claimed invention will provide security protection, for
example, when a transmitted signal is blocked by interference with the
transmission such as by “jamming”.
We do not find Appellant’s arguments persuasive in convincing us of
any error in the Examiner’s stated position. As pointed out by the Examiner
(Ans. 8-9), there are no claim recitations which limit the detection of a loss
of transmission to a particular cause or reason. In particular, there is no
claim language which precludes distance factors as being a cause of a
detected absence of a transmitted signal.
We would also point out that, while Williamson, indeed, discloses the
generation of an alert when a transmitting entity, i.e. a prisoner, moves out
of range of a home receiver (FF 2), Williamson also discloses (col. 5, ll. 3-5
and col. 9, ll. 16-22) that an alert will be generated if signal loss is caused by
the transmission being shielded, i.e., blocked (FF 3). It is noteworthy that
Appellant’s arguments (App. Br. 6) equate the “jamming,” i.e., blocking, of
a signal with a cessation of transmission as claimed.
In view of the above discussion, since Appellant has not demonstrated
that the Examiner erred in finding that all of the claimed limitations are
present in the disclosure of Williamson, the Examiner’s 35 U.S.C. § 102(b)
rejection of independent claims 5 and 15, as well as dependent claims 6, 8-
11, 13, 14, 16, 18-21, 23, and 24 not separately argued by Appellant, is
sustained.

35 U.S.C. § 103(a) REJECTION

The Examiner’s obviousness rejection of dependent claims 7, 12, 17,
and 22 based on the combination of Williamson and Meadows is sustained
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as well. We find no error in the Examiner’s application, to the security
protection system of Williamson, the teaching of Meadows (col. 2, ll. 29-58,
col. 3, ll. 36-67, and col. 7, ll. 20-33) of monitoring the location of
individuals using a mobile telephone as a source of continuous remote signal
transmission. (Ans. 6, 7, 9, and 10). See also FF 4. Appellant’s arguments
(App. Br. 7-8)) rely on the arguments asserted previously against
independent claims 5 and 15, which arguments we have found to be
unpersuasive for all of the previously discussed reasons.

CONCLUSION
Based on the findings of facts and analysis above, we conclude that
Appellant has not shown that the Examiner erred in rejecting claims 5, 6, 8-
11, 13-16, 18-21, 23, and 24 for anticipation under 35 U.S.C. § 102(b), nor
in rejecting claims 7, 12, 17, and 22 for obviousness under 35 U.S.C.
§ 103(a).

DECISION
The Examiner’s decision rejecting claims 5, 6, 8-11, 13-16, 18-21, 23,
and 24 under 35 U.S.C. § 102(b) and claims 7, 12, 17, and 22 under
35 U.S.C. § 103(a) is 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

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