Ex Parte Lavache

Patent Trial and Appeal Board

Dec 28, 2016

12294880 (P.T.A.B. Dec. 28, 2016)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/294,880 10/21/2010 Steven David Lavache 13RZ-140248 3617
30764 7590 12/30/2016
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
12275 EL CAMINO REAL, SUITE 200
SAN DIEGO, CA 92130
EXAMINER
LOBO, IAN J
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
12/30/2016 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):
DOCKETING@ SHEPPARDMULLIN.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN DAVID LAVACHE
Appeal 2015-002736
Application 12/294,880
Technology Center 3600
Before JAMES P. CALVE, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Steven David Lavache (“Appellant”) appeals under 35 U.S.C.
§ 134(a) from the Examiner’s final decision rejecting claims 1, 2, 4—8, 11,
and 27—29.1 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellant submits the real party in interest is Performance Design
Products, LLC. Appeal Br. 1.
Appeal 2015-002736
Application 12/294,880
THE CLAIMED SUBJECT MATTER
Claim 4, reproduced below, is illustrative of the claimed subject
matter.
4. A method of position sensing using a wireless mobile
component carrying an ultrasonic transducer and a fixed
component carrying a plurality of ultrasonic transducers in a
predetermined spaced-apart relationship, the method
comprising:
selecting the mobile component from a plurality of similar
mobile components by modulating a signal transmitted by the
fixed component with a unique code selected from a
predetermined set of codes; and
configuring the mobile component to be responsive to a
predetermined subset of the codes from the predetermined set of
codes;
wherein each of the codes of the predetermined subset of
the set of codes is used to indicate a mode of operation of the
mobile component, the mode of operation including at least one
of vibration equipment activation, sound activation, or lighting
effect activation.
REJECTIONS2
1) Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Holm ’759 (US 2006/0077759 Al, pub. Apr. 13, 2006) and Pucci
(US 7,046,141 B2, iss. May 16, 2006).
2) Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Holm ’759, Pucci, and Gibbs (GB 2368991 A,
pub. May 15, 2002).
2 In the Answer, the Examiner withdrew the rejections set forth in the Final
Action of claims 1,2, 11, 27, and 28 under 35 U.S.C. § 103(a). Ans. 2. As
a result, there are no rejections of these claims for us to review.
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Application 12/294,880
3) Claims 7 and 8 are rejected under 35 U.S.C. § 103 (a) as
unpatentable over German Patent (DE 10333012 Al, pub. Oct. 14,
2004) or Holm ’759, Pucci, and Wolfe (US 2005/0030175 Al,
pub. Feb. 10, 2005).
4) Claim 29 is rejected under 35 U.S.C. § 103(a) as unpatentable over
German Patent or Holm ’759, Pucci, Wolfe, Gilchrist (US
4,991,148, iss. Feb. 5, 1991) or Sato (US 6,568,281 Bl, iss. May
27, 2003), and Holm ’070 (US 2006/0013070 Al, pub. Jan. 19,
2006).
DISCUSSION
Rejection 1
The Examiner finds that Holm ’759 discloses the limitations of claim
4 except for the limitation that the codes are not “used ‘to indicate a mode of
operation including at least one of vibration equipment activation, sound
activation or lighting effect activation.’” Final Act. 2. The Examiner finds
that Pucci3 “discloses an object location system having tags (mobile
components) for tracking objects” and “using an audible sound as a mode of
operation.” Id. The Examiner concludes it would have been obvious to
modify “the method of Holm [’759] to also include audible sound activation
for position sensing of the mobile component.” Id. at 3.
Appellant contends that Pucci discloses “tags that are assigned
identification codes when text is associated with a tag” but the “codes are
3 The Examiner refers to “Pucci” as “Passi” in various places in the Final
Action and Answer. See Final Act. 2. Based on Appellant’s representation,
we understand that the Examiner’s references to Passi are typographical
errors and the Examiner intended to refer to Pucci. Appeal Br. 21, n.2.
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Appeal 2015-002736
Application 12/294,880
not used to identify modes of operation.” Appeal Br. 19,20. In response,
the Examiner maintains that Pucci teaches “a mobile unit may have a unique
code of a set of codes . . . that may be attributable to a mode of operation
(sound activation)” which is “tantamount to the instantly claimed ‘wherein
each of the codes ... is used to indicate a mode of operation of the mobile
component.’” Ans. 4 (citing Pucci, col 9,11. 30—69). For the following
reasons, we do not sustain the rejection of claim 4.
Pucci discloses an “object location system having tags for tracking
objects.” Pucci, Abstract. Pucci discloses finder 12 and tags 14 that can
send and receive RF signals. See id. col. 8,11. 19-34, 58—59. Finder 12
assigns an identification code to tag 14 based on a “descriptive text
identifier.” Id. col. 9.11. 30—33. Tag 14 communicates with finder 12 by RF
signal transmission to indicate it has been found. Id. col. 9.11. 56—57. Tag
14 may also emit an audible sound to indicate its location. Id. col. 9,
1. 66-col. 10,1. 1.
Claim 4 recites “each of the codes ... is used to indicate a mode of
operation of the mobile component.” Pucci’s identification codes are just
that: a code or text that identifies a particular tag 14 to finder 12. Pucci
discloses that tag 14 may also emit an audible sound but the Examiner does
not direct us to any disclosure in Pucci where the identification codes are
each assigned to “indicate a mode of operation of’ tags 14 or otherwise
explain how Pucci’s identification codes each indicate a mode of operation.
The Examiner’s finding is, thus, not supported by a preponderance of the
evidence. As the rejection of claim 4 is based on an unsupported factual
finding, the conclusion of obviousness cannot stand. See In re Warner, 379
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Appeal 2015-002736
Application 12/294,880
F.2d 1011, 1017 (CCPA 1967). Therefore, we do not sustain the rejection of
claim 4.
Rejection 2
The Examiner rejects claims 5 and 6 as unpatentable over Holm ’759,
Pucci, and Gibbs. Final Act. 6. Claims 5 and 6 both depend ultimately from
claim 4. Appeal Br. 26 (Claims App.). The Examiner does not cite Gibbs to
cure the deficiencies in the combination of Holm ’759 and Pucci stated
above for claim 4. Final Act. 6. Therefore, we do not sustain the rejection
of claims 5 and 6 for the same reasons stated above in connection with claim
4.
Rejection 3
The Examiner rejects claims 7 and 8 as unpatentable over the German
Patent or Holm ’759, Pucci as applied to claims 1 and 4, and Wolfe. Final
Act. 4. Appellant raises the same contentions regarding Pucci as for claim 4.
Appeal Br. 20—22. The Examiner does not cite the German Patent or Wolfe
to cure the deficiencies in the combination of Holm ’759 and Pucci stated
above for claim 4. Final Act. 4—5. Therefore, we do not sustain the
rejection of claims 7 and 8 for the same reasons stated above in connection
with claim 4.
Rejection 4
The Examiner rejects claim 29 as unpatentable over the German
Patent or Holm ’759, Pucci, Wolfe, Gilchrist or Sato, and Holm ’070. Final
Act. 5—6. Claim 29 depends from claim 28 which in turn depends from
claim 27. Appeal Br. 31 (Claims App.). In rejecting claim 29, the Examiner
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Application 12/294,880
turned to Holm ’070 to further modify the combination, applied in the
rejection of claims 27 and 28, of the German Patent or Holm ’759, Pucci,
Wolfe, and Gilchrist or Sato. Final Act. 6. The Examiner withdrew the
rejection, set forth in the Final Action, of claims 27 and 28 under 35 U.S.C.
§ 103(a). Ans. 2. Therefore, we reverse the rejection of claim 29 under 35
U.S.C. § 103(a). See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988)
(“Dependent claims are nonobvious under section 103 if the independent
claims from which they depend are nonobvious.”).
DECISION
The Examiner’s decision rejecting claims 4—8 and 29 is reversed.
REVERSED
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