Ex Parte Leonard

Patent Trial and Appeal Board

Jan 25, 2017

13341790 (P.T.A.B. Jan. 25, 2017)

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.
13/341,790 12/30/2011 John-Mark Leonard 1083-126U 8270
29973 7590 01/27/2017
CRGO LAW
ATTN: STEVEN M. GREENBERG, ESQ.
7900 Glades Road
SUITE 520
BOCA RATON, EL 33434
EXAMINER
CHENG, JACQUELINE
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
01/27/2017 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@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN-MARK LEONARD1
Appeal 2015-005633
Application 13/341,790
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN,
and TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a lamp
with variable flickering frequency that have been rejected as obvious. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant states that the patent application has not been assigned, and thus
we interpret Appellant’s statement as indicating that the Real Party in
Interest is the named inventor, John-Mark Leonard. (App. Br. 2.)
Appeal 2015-005633
Application 13/341,790
STATEMENT OF THE CASE
Appellant’s invention “relates to lamps, and more particularly to
flickering lamps.” (Spec. 11.) Appellant’s “lamp for generating flickering
at a selectable frequency corresponding to a desired human brainwave state
comprises a base, a light source, a shade, a drive mechanism and a speed
control for the drive mechanism.” {Id. at | 6.)
Claims 1—20 are on appeal. Claim 1 is illustrative:
1. A lamp for generating flickering at a selectable frequency
corresponding to a desired human brainwave state, comprising:
a base;
a light source supported by the base;
a shade having a plurality of regularly circumferentially
spaced apertures defined therein;
the shade circumferentially surrounding the light source
and rotatably supported by the base for rotation about the light
source;
a drive mechanism supported by the base and drivingly
coupled to the shade for rotating the shade about the light source;
the drive mechanism and the light source coupled to at
least one power connector for supplying power to the drive
mechanism and the light source;
wherein rotation of the shade while the light source is
emitting light produces flickering for an observer looking at the
lamp from a fixed position;
the lamp further comprising at least one speed control
coupled to the drive mechanism for controlling the drive
mechanism to select a rotational speed of the shade to selectively
produce one of at least:
flickering within a first predetermined frequency
range corresponding to a first pre-selected human
brainwave state; and
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Application 13/341,790
flickering within a second predetermined frequency
range corresponding to a second pre-selected human
brainwave state;
the first and second pre-selected human brainwave states
being different from one another.
(App. Br. 16—17 (Claims App’x).)
The claims stand rejected as follows:
I. Claims 1—4, 7—11, and 13—18 under 35 U.S.C. § 103(a) over
Ho,2 Mrklas,3 and Ehara.4
II. Claims 5 and 19 under 35 U.S.C. § 103(a) over Ho, Mrklas,
Ehara, and VanderSchuit.5
III. Claims 6 and 20 under 35 U.S.C. § 103(a) over Ho, Mrklas,
Ehara, and Takacs.6
IV. Claim 12 under 35 U.S.C. § 103(a) over Ho, Mrklas, Ehara, and
Thomas.7
REJECTION I
Appellant argues the patentability of the claims together. We select
claim 1 as representative.
The Examiner finds that “Ho discloses an illusive lamp (‘a lamp’)
(Abstract) with a cylindrical shade (1) (‘a shade’), a spherical housing (2),
2 Ho, US 5,552,975, issued Sept. 3, 1996.
3 Mrklas et al., US 5,304,112, issued Apr. 19, 1994.
4 Ehara, US 2011/0301406 Al, published Dec. 8, 2011.
5 VanderSchuit, US 2008/0165527 Al, published July 10, 2008.
6 Takacs, US 2006/0109653 Al, published May 25, 2006.
7 Thomas, US 2010/0161010 Al, published June 24, 2010.
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Application 13/341,790
and a rotating seat (50) (see Figure 2; column 1, lines 55—60).” (Final Act.
3.) The Examiner also finds that
Ho teaches the rotation of the shade while the light source is
emitting light produces flickering because Ho teaches the
cylindrical shade (1) has a vertical surface (12) provided with a
plurality of holes (126) and that the spherical housing (2),
together with the cylindrical shade (1) will be rotated with the
collar (55) (Figure 2; column 1, line 60-column 2, line 3; column
2, lines 19-24).
(Id.)
The Examiner acknowledges that
Ho does not teach at least one speed control coupled to the drive
mechanism for controlling the drive mechanism to select a
rotational speed to produce flickering within frequency ranges
corresponding to pre-selected human brainwave states. Ho does
not explicitly teach at least one power connector for supplying
power to the drive mechanism and the light source.
(Id. at 4.)
The Examiner turns to Mrklas and finds it teaches that “speed control
(94) is connected to a wheel rotation motor (100) to control the rotational
speed thereof (‘at least one speed control coupled to the drive mechanism for
controlling the drive mechanism to select a rotational speed’) (column 9, line
63—column 10, line 1).” (Id.)
The Examiner concludes that it would have been obvious to “modify
the rotating cylindrical shade and light bulb taught by Ho to include the
power source and speed control taught by Mrklas in order to selectively
control operation of the device (Mrklas, column 9, lines 59—63).” (Id.)
The Examiner acknowledges that “the combination of Ho and Mrklas
does not explicitly teach a rotational speed to produce flickering within
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Application 13/341,790
frequency ranges corresponding to pre-selected human brainwave states.”
(Id. at 5.)
The Examiner turns to Ehara and finds it teaches
in a period (Tl) from time (tO) to (tl) a fluctuation frequency for
the light source (10) is set at (fl) (“flickering within a first
predetermined frequency range”) and in a period (T2) from time
(tl) to (t2) the fluctuation frequency is set at (£2) (“flickering
within a second predetermined frequency range”), which is
larger than frequency (fl) (“different from one another”)
(paragraph [0019]). Ehara teaches the brightness controller (20)
controls the light source (10) so that the brightness fluctuates at
a frequency in the range of delta wave (1 to 3 Hz) or theta wave
(4 to 7 Hz) for sleep, in the range of alpha wave (8 to 13 Hz) to
beta wave (14 to 30 Hz) for work and study, in the range of theta
wave (4 to 7 Hz) to alpha wave (8 to 13 Hz) for relaxation, or in
the range of beta wave (14 to 30 Hz) for wakeup (“frequency
ranges corresponding to human brainwave states”) (paragraph
[0018]).
(Id.)
The Examiner concludes that it would have been obvious to “modify
the speed control of Ho and Mrklas to change at a frequency corresponding
to human brainwaves as taught by Ehara in order to positively control a
biological rhythm of a person (Ehara, paragraph [0017]).” (Id.)
The issue with respect to this rejection is: Does the evidence of
record support the Examiner’s conclusion that Ho, Mrklas, and Ehara would
have rendered claim 1 obvious?
Findings of Fact (FF)
1. Ehara teaches
When receiving an external stimulus agreeing with a brain wave
frequency, a person is led into a biological rhythm corresponding
to the brain wave frequency. The illuminating apparatus
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. . . according to the present embodiment illuminates a person
with light at a fluctuation frequency that is selected to agree with
a brain wave frequency, to positively control a biological rhythm
of the person. In addition, the illuminating apparatus
. . . enhances the biological rhythm controlling effect by
changing a brightness variation range (amplitude) of light
according to the 1/f power spectral model.
(Ehara 117; see also Final Act. 5.)
2. Ehara teaches
the brightness controller . . . controls the light source ... so that
brightness of the light source . . . fluctuates at a frequency in the
range of delta wave (1 to 3 Hz) to theta wave (4 to 7 Hz) for
sleep, in the range of alpha wave (8 to 13 Hz) to beta wave (14
to 30 Hz) for work and study, in the range of theta wave (4 to 7
Hz) to alpha wave (8 to 13 Hz) for relaxation, or in the range of
beta wave (14 to 30 Hz) for wakeup.
(Ehara 118; see also Final Act. 5.)
3. Ehara teaches “[i]n a period T1 from time tO to tl, a fluctuation
frequency for the light source ... is set at fl, and in a period T2 from time tl
to t2, at f2. The frequency fl is smaller than the frequency f2, and therefore,
the frequency fl is a minimum fluctuation frequency.” (Ehara 119; see
also Final Act. 5.)
4. Ehara teaches
It is preferable to modul[a]te brightness of the light source ... in
a manner of a sinusoidal wave. If the light source ... is
modulated according to a rectangular wave such as one provided
by pulse width modulation (PWM), the light source . . . will
cause flickering to give the user with an unpleasant feeling.
(Ehara 128; see also App. Br. 11.)
5. The Specification teaches
Rotating the shade ... at a given speed while the light source . . .
is emitting light will result in the apertures ... in the shade . . .
producing flickering for an observer looking at the lamp . . .
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from a fixed position. The frequency of the observed flickering
will be a function of the rotational speed of the shade . . . relative
to the base . . . together with the circumferential width and
circumferential spacing of the apertures ... in the shade ....
(Spec. 119; see also App. Br. 8.)
6. The Specification teaches and embodiment wherein
the light source . . . can emit light of variable intensity and light
of multiple colors, and a light control ... is integrated into the
power cord. . . and electrically coupled to the light source ... for
activating and deactivating the light source . . . and for
controlling the intensity and the color of the light source ....
Typically, the light control. . . will include suitable markings or
other indicia to indicate the current intensity and/or color of light
emitted by the light source ....
(Spec. 129; see also App. Br. 9.)
DISCUSSION
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 3—13; Ans. 2—5; FF 1—3) and
agree that claim 1 would have been obvious over Ho, Mrklas, and Ehara.
We address below Appellant’s arguments.
We begin with claim interpretation, since before a claim is properly
interpreted, its scope cannot be compared to the prior art. During
prosecution, we give claim terms the broadest reasonable interpretation as
understood by a person of ordinary skill in the art in light of the
specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997); In re Am.
Acad. OfSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (“Construing
claims broadly during prosecution is not unfair to the applicant. . . because
the applicant has the opportunity to amend the claims to obtain more precise
claim coverage.”)
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The interpretation in dispute is the meaning of the term “flickering” as
required by claim 1 (see App. Br. 6; Ans. 2).
The Examiner determines that
[flickering is defined as “to bum or flow in an unsteady way:
to produce an unsteady light” and “to appear or pass briefly
or quickly” (Merriam-Webster online) and as “shine
unsteadily; vary rapidly in brightness” (Oxford Dictionaries
online), and thus under a broadest reasonable interpretation
flickering does not require a change to zero brightness of the
light source, but rather just changes in the brightness of the
light.
(Final Act. 13.)
Appellant contends that
the Examiner’s constmction is not consistent with the
specification and also is not consistent with the interpretation
that those skilled in the art would reach. Notably, the
Examiner’s claim constmction relies solely on dictionary
definitions, and omits any reference to the specification or to
the interpretation that those skilled in the art would reach.
(App. Br. 7; see also Reply Br 2—8.) Referring to paragraphs [19] and [29]
of the Specification, Appellant contends that “the only constmction of the
claim term ‘flickering’ that is consistent with the specification is binary
flickering, that is, a constmction which requires changes between zero and
non-zero brightness and excludes ‘just changes in the brightness of the
light.’” (App. Br. 7—8; see also App. Br 8—10.)
The Examiner has the better position.
Appellant does not provide an explicit definition for “flickering” in
the Specification, but instead, refers this term in relation to the rotation of
the shade. (FF 5 (“Rotating the shade . . . producing flickering for an
observer looking at the lamp . . . from a fixed position. The frequency of
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the observed flickering will be a function of the rotational speed of the
shade.”); FF 6; see also Ans. 3 4). We are not persuaded that these
disclosures exclude an interpretation where the light merely varies
unsteadily in intensity or brightness. Indeed, in view of the apertures shown
in a preferred embodiment (Fig. 1) and the fact that a “shade” is employed
over what appears to be any type of light source, we are not persuaded that
the Specification limits “flickering” to the narrow interpretation advanced by
Appellant on appeal — binary flickering or changes between zero and non­
zero brightness. (FF 5—6.) As noted by the Examiner, the terms “binary,”
“zero” and “0” are not contained in the Specification. (Ans. 3.) We are,
thus, unwilling to read these narrower terms into the interpretation of
flickering as recited in the claims. See In re Zletz, 893 F.2d 319, 322 (Fed.
Cir. 1989) (“[DJuring patent prosecution when claims can be amended,
ambiguities should be recognized, scope and breadth of language explored,
and clarification imposed.”)
Referring to paragraph [29] of Ehara, Appellant also contends that
“the Examiner’s proposed construction of the claim term ‘flickering’ is not
even consistent with the reference cited by the Examiner as teaching
flickering.” (See App. Br. 10; see also App. Br. 9; FF 4.)
We are not persuaded. As discussed above, Appellant does not
expressly define “flickering.” The Examiner’s definition of the term is
reasonable and consistent with the Specification. Appellant has not
persuasively shown otherwise. Appellant’s argument that Ehara’s usage of
the term as conflicting to the Examiner’s proposed construction, is
unavailing. See In re Morris, 127 F.3d at 1054—56 (“Absent an express
definition in their specification, the fact that appellants can point to
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definitions or usages that conform to their interpretation does not make the
PTO’s definition unreasonable when the PTO can point to other sources that
support its interpretation.”)
We thus conclude that the broadest reasonable interpretation of the
term “flickering” in claim 1 is producing an unsteady light or shining
unsteadily.
We next turn to Appellant’s arguments concerning the teachings of
the cited prior art.
Appellant contends that “Ehara does not teach the additional feature
of a rotational speed to produce flickering corresponding to pre-selected
human brainwave states, and in fact expressly teaches that flickering ‘will
cause a psychological unpleasantness’ that should be avoided. Hence, Ehara
clearly teaches away from the use of flickering.” (See App. Br. 12—13
(referring to Ehara 28—29).)
These arguments are unpersuasive.
Ehara was not relied upon for rotational speed. (See Final Act. 3 (“Ho
teaches a rotating seat”), 4 (“Mrklas teaches speed control... is connected
to a wheel rotation motor ... to control the rotational speed thereof’).)
“Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references []. [The reference] must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole.” In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Ehara teaches
It is preferable to modul[a]te brightness of the light source . . .
in a manner of a sinusoidal wave. If the light source ... is
modulated according to a rectangular wave such as one provided
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Application 13/341,790
by pulse width modulation (PWM), the light source . . . will
cause flickering to give the user with an unpleasant feeling.
(FF 4 (emphasis added).) Even if Ehara is understood as teaching toward
sinusoidal modulation and away from zero/non-zero (i.e., “rectangular
wave”) modulation, “flickering” in claim 1 is not limited to zero/non-zero
variations in brightness as discussed above. Accordingly, we are not
persuaded that Ehara teaches away from Appellant’s invention.
For these reasons, we conclude the Examiner established by a
preponderance of the evidence that claim 1 would have been obvious over
Ho, Mrklas, and Ehara. Claims 2—4, 7—11, and 13—18 have not been argued
separately and fall with claim 1.
REJECTION II
Appellant contends that “[a]s claim 5 depends indirectly from
independent claim 1 and claim 19 depends from independent claim 17,
claims 5 and 19 are patentable for at least the reasons stated above.” (App.
Br. 14.) Having affirmed the rejection of the parent claim for the reasons
given above, we thus affirm the rejection of claims 5 and 19.
REJECTION III
Appellant contends that “[a]s claim 6 depends indirectly from
independent claim 1 and claim 20 depends from independent claim 17,
claims 5 and 19 are patentable for at least the reasons stated above.” (Id.)
Having affirmed the rejection of the parent claim for the reasons given
above, we thus affirm the rejection of claims 6 and 20.
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REJECTION IV
Appellant contends that “[a]s claim 12 depends from independent
claim 1, claim 12 is patentable for at least the reasons stated above.” {Id. at
15.) Having affirmed the rejection of the parent claim for the reasons given
above, we thus affirm the rejection of claims 12.
CONCLUSION OF LAW
We affirm the rejection of claims 1—4, 7—11, and 13—18 under
35 U.S.C. § 103(a) over Ho, Mrklas, and Ehara.
We affirm the rejection of claims 5 and 19 under 35 U.S.C. § 103(a)
over Ho, Mrklas, Ehara, and VanderSchuit.
We affirm the rejection of claims 6 and 20 under 35 U.S.C. § 103(a)
over Ho, Mrklas, Ehara, and Takacs.
We affirm the rejection of claim 12 under 35 U.S.C. § 103(a) over Ho,
Mrklas, Ehara, and Thomas.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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