Ex Parte Levin

Patent Trial and Appeal Board

Jan 17, 2013

11355219 (P.T.A.B. Jan. 17, 2013)

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.
11/355,219 02/16/2006 Eduard Levin RFID/06 8580
29140 7590 01/17/2013
DAVID W. WONG
46 WILLOWBROOK ROAD
THORNHILL, ON L3T 4W9
CANADA
EXAMINER
MAHASE, PAMESHANAND
ART UNIT PAPER NUMBER
2689
MAIL DATE DELIVERY MODE
01/17/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte EDUARD LEVIN
____________

Appeal 2010-004152
Application 11/355,219
Technology Center 2600
____________

Before DENISE M. POTHIER, JOHN A. EVANS, and
JEREMY J. CURCURI, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 4, 5, 7, 8, 11, 12, and 14. Claims 2, 3, 6, 9, 10, 13, and
15-17 have been canceled. App. Br. 2.1 We have jurisdiction under 35
U.S.C. § 6(b). While the Examiner states the appeal involves only claims 1,
4, 5, 7, and 11 (Ans. 2), the Examiner continues to reject claims 8, 12, and

1 Throughout this opinion, we refer to the Appeal Brief (App. Br.) filed
August 26, 2009, the Examiner’s Answer (Ans.) mailed September 25, 2009,
and (3) the Reply Brief (Reply Br.) filed November 19, 2009.
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14 (see Ans. 3, 7-10). We consider all rejected claims in this opinion and
affirm.

Invention
Appellant’s invention relates to a radio frequency identification device
(RFID) for recognizing objects within a zone. See Abstract; Spec. 1.
Illustrative claim 1 is reproduced below with a footnote added:
1. A method for identification and location of radio frequency
identification RFID tags having configurations and locations,
comprising:
providing a plurality of anten[n]as;
selecting a location interrogation zone within a global interrogation
zone;
defining an initial activation signal;
assigning a divided portion of said initial activation signal to each
one of said antennas;
transmitting said divided portion of said initial activation signal
separately from said each one of said antennas, said divided portion of
said activation signal from all antennas arriving said local
interrogation zone to form a restored activation signal2;
determining whether said restored activation signal matches said
initial activation signal from an RFID tag;
activating a transmitter of said RFID tag to transmit tag data
therefrom to a reader when matching occurs; [and]
processing said tag data by said reader.

The Rejections
The Examiner relies on the following as evidence of unpatentability:
Vercellotti US 5,317,309 May 31, 1994
Shanks US 6,784,813 B2 Aug. 31, 2004

2 The phrase, “to form a restored activation signal” is missing from
Appendix H but is in the Amendment filed February 13, 2009 shown in
Appendix C.
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Jusas US 7,073,712 B2 July 11, 2006
(filed Aug. 6, 2003)
Golicz US 7,176,799 B1 Feb. 13, 2007
(filed Dec. 6, 2004)
Claims 1, 11, 12, and 14 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Ans. 3.
Claims 1, 4, 5, 7, 8, 11, 12, and 14 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Shanks, Jusas, Vercellotti, and Golicz.
Ans. 3-10.

THE LACK OF WRITTEN DESCRIPTION REJECTION
Regarding illustrative claim 1, the Examiner finds that the recited
phrases, “a global interrogation zone,” “a divided portion of said initial
activation signal,” and “a restored activation signal” are not sufficiently
described in Appellant’s disclosure. Ans. 3. Without providing any
citations to the disclosure, Appellant argues that these terms have support in
the Specification. App. Br. 4-5.

ISSUES
Under § 112, first paragraph, has the Examiner erred in rejecting
claim 1 by finding that the disclosure fails to convey with reasonable clarity
to an ordinarily skilled artisan that Appellant had possession of the claimed
limitations, “a global interrogation zone,” “a divided portion of said initial
activation signal,” and “a restored activation signal” as of the filing date?
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PRINCIPLES OF LAW
To satisfy the written description requirement, the disclosure must
convey with reasonable clarity to ordinarily skilled artisans that Appellant
had possession of the claimed invention as of the filing date. Ariad Pharms.,
Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010).

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of illustrative claim 1. The Examiner has notified Appellant as to
that the claim limitations, “global interrogation zone,” “a divided portion of
the initial activation signal,” and “a restored activation signal,” lack written
description. See Ans. 3. As such, the burden has shifted to Appellant to cite
where adequate written description is found. See Hyatt v. Dudas, 492 F.3d
1365, 1371 (Fed. Cir. 2007).
These disputed phrases, “global interrogation zone,” “a divided
portion of the initial activation signal,” and “a restored activation signal,” do
not appear in Appellant’s disclosure. While the disclosure need not use
these exact terms, the Specification must convey with reasonable clarity to
an artisan that Appellant had possession of the claimed terms as of the filing
date. Yet, Appellant has not provided sufficient evidence that these are
terms are understood by ordinarily skilled artisan, such that, while the
disclosure may not explicitly use these terms, the disclosure conveys with
reasonably clarity that Appellant had possession of the recited limitations.
Specifically, regarding the recited phrase, “global interrogation zone,”
Appellant contends that this phrase is the totality of a selected number of
local interrogation zones or the described “total interrogation zone.” App.
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Br. 4. Appellant failed to assist us in this matter, providing no citations from
the disclosure to support this statement. App. Br. 4; see generally Reply Br.
Even so, we performed an independent search and agree that the phrase,
“total interrogation zone,” has support in the disclosure. Spec. 5:17; 6:13;
7:7-8; 19:1-2, 7; 20:4, 6-7, 15, 20; 21:12; 24:5; Fig. 7. To the extent
Appellant intended “global” to mean a “total” interrogation zone, we find
that the disclosure supports such a phrase. On the other hand, a similar
search of “a totality” of selected local, large, or general interrogation zone
did not yield any results. See generally Spec. The disclosure discusses local
interrogation zones (Spec. 5:19) but does not address selected general
interrogation zones (App. Br. 4). We therefore do not find that the
disclosure reasonably conveys with reasonable clarity to an artisan that
Appellant had possession of a global interrogation zone that is a selected
general interrogation zones.
Regarding the phrase, “a divided portion of said initial activation
signal,” we agree with the Examiner that the Specification does not provide
written description support for this phrase. Appellant asserts that “various
embodiments of the present invention” describe that the initial activation
signal comprises divided portions, each defining a local interrogation zone.
App. Br. 5. Yet, Appellant has provided no citations to the disclosure to
support this position. Id.; see also generally Reply Br. Appellant also maps
three signals 14, 15, and 33 in Figures 4-6 to the divided portions. App. Br.
3 (citing Spec. 11:13–12:12). However, this cited portion only discusses
signals transmitted from antennas and sending pulses from antennas.
Spec. 11:13–12:12; Fig. 5. There is no discussion of dividing an activation
signal. Also, an independent search of the phrase, “divided portion of said
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initial activation signal” in the disclosure, did not produce any results. See
generally Spec.
Lastly, concerning the recitation, “a restored activation signal,” we
agree with the Examiner that the phrase does not have written description
support. Once again, Appellant has not produced any citation in the
disclosure demonstrating the Specification conveys with reasonable clarity
to ordinarily skilled artisans that Appellant had possession of the “restored
activation signal” as of the filing date. See App. Br. 5; see also Reply Br.
Additionally, Appellant admits this recitation is a “rather indefinite term.”
App. Br. 5. While we agree that the phrase, “control signal,” which
Appellant asserts is the restored activation signal (see id.), is found in the
disclosure (Spec. 6:4-5), Appellant has established insufficient evidence that
this control signal is formed from the divided portion of the activation signal
from all antennas arriving at the location interrogation zone as recited in
claim 1.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of illustrative independent claim 1 and claims 11, 12, and 14
not separately argued with particularity.

THE OBVIOUSNESS REJECTION OVER SHANKS,
JUSAS, VERCELLOTTI, AND GOLICZ
Appellant argues that Shanks does not teach the divided portion of the
initial activation signal is assigned to separate reader antennas so that the
particular tags are activated in response to the activation signal in selected
local interrogation zone without causing other tags to become activated.
App. Br. 5-6. Appellant also contends: (1) Vercellotti is not concerned with
activation of particular tag located in a large interrogation zone and is not
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suitable for interrogating tags in a number of interrogation zones (App. Br.
6); (2) neither Shanks’s nor Appellant’s invention is concerned with
Golicz’s method tag assembly method (App. Br. 6-7); (3) Jusas is not
concerned with tag location (App. Br. 7); and (4) Vercellotti, Golicz, and
Jusas do not relate to a method of interrogating and reading identification of
a particular RFID tag from a number of tags located in a large interrogation
zone.
Regarding claim 4, Appellant argues the cited references do not teach
the local interrogation zone has approximate dimensions of the RFID tags.
App. Br. 7.

ISSUES
(1) Under § 103, has the Examiner erred in rejecting claim 1 by
finding that Shanks, Vercellotti, Golicz, and Jusas collectively would have
taught or suggested its recited limitations?
(2) Under § 103, has the Examiner erred in rejecting claim 4 by
finding that Shanks, Vercellotti, Golicz, and Jusas collectively would have
taught or suggested the local interrogation zone has approximate dimensions
of the RFID tags?

ANALYSIS
Claims 1, 8, 11, 12, and 14
Based on the record before us, we find no error in the Examiner’s
rejection of illustrative claim 1. Regarding Shanks, Appellant argues many
features of the invention which are not found in claim 1. For example,
Appellant asserts that the claimed invention requires the divided portions of
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the initial activation signal are assigned to separate reader antennas to
transmit to a particular local interrogation zone such that only a particular
tag is activated without causing other tags in the whole reader interrogation
zone to become activated. App. Br. 5. However, claim 1 does not specify a
type of antenna (e.g., reader as opposed to tag antenna) or that a particular
tag is activated without causing other tags in the whole reader interrogation
zone to become activated. Additionally, claim 1 does not recite that the
activation is repeated by transmitted a differently divided portion of the
initial activation signal for different local interrogation zone until the
particular tag is located and activated (see generally claim 1), as argued by
Appellant (App. Br. 6). These arguments are not commensurate in scope
with claim 1 and are not persuasive.
We also disagree with Appellant that Shanks sends an activation
signal from one antenna to all the tags. See App. Br. 5. Shanks discloses
multiple antennas (e.g., 210a-d, 211a-d) that are part of a remote access
sensor module (RASM) used to communicate with tags. Shanks, col. 8,
ll. 31-38; Fig. 2. Also, as discussed above, the phrase, “a divided portion of
said initial activation signal,” lacks written description support. Given our
understanding of this phrase, signals transmitted by these antennas can
reasonably be considered a divided portion of the initial activation signal as
broadly as recited.
Concerning whether this activation signal is sent to the entire
interrogation zone or a local interrogation zone (see App. Br. 6), the
Examiner admits Shanks does not teach selecting a local interrogation zone
(see Ans. 4) and relies on the collective teachings of Shanks, Vercellotti, and
Golicz to teach this and related features in claim 1 (see Ans. 4-6). As such,
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attacking Shanks individually for failing to teach a local interrogation zone
does not show nonobviousness where the rejection, as is here, is based on
the collective references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
Additionally, Appellant fails to show nonobviousness by attacking
Vercellotti, Jusas, and Golicz individually rather than what the references
collectively teach. App. Br. 5-7. Specifically, Appellant contends that
Vercellotti is not concerned with activating a particular tag located in a large
interrogation zone. App. Br. 5. The Examiner, on the other hand, found that
Shanks teaches the feature of activating the transmitter of a RFID tag as
recited (see Ans. 4) and relies upon Vercellotti and Golicz to teach that one
skilled in the art would have recognized locating RFID tags within a local
interrogation zone (see Ans. 4-6). For example, Vercellotti’s directional
antennas scan a given area or local interrogation zone to obtain desired tag
information before rotating in another direction or to another local
interrogation zone. Col. 3, ll. 46-61; see also Ans. 10. Thus, when this
teaching is combined with Shanks, the combination teaches selecting a local
interrogation zone. And since Vercellotti teaches selecting a local
interrogation zone when combined with Shanks, the Examiner’s reliance on
Golicz is considered cumulative.
To the extent Appellant is asserting that Vercellotti, Golicz, and Jusas
are non-analogous and not combinable with Shanks (see App. Br. 6-7), we
disagree. “The analogous-art test requires that the Board show that a
reference is either in the field of the applicant’s endeavor or is reasonably
pertinent to the problem with which the inventor was concerned in order to
rely on that reference as a basis for rejection.” In re Kahn, 441 F.3d 977,
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986-87 (Fed. Cir. 2006) (citation omitted). Appellant’s field of endeavor is
RFID technology. See Spec. 1:4-10. All the cited references relate to the
RFID technology. Shanks, Vercellotti, and Golicz also use this RFID
technology for obtaining identification information about the tags. See
Abstracts of Shanks, Vercellotti, and Jusas. Shanks further suggests that
such information includes location of the tags. See col. 1, ll. 26-28.
While Vercellotti and Jusas do not teach using the tag information to
obtain a location, these references are reasonably pertinent to problems
Appellant was concerned with (e.g., defining an initial activation signal and
selecting a local interrogation zone). As explained above, Vercellotti
teaches how to select a local interrogation zone (e.g., area within the
directional antenna’s range) for obtaining tag information. Additionally,
Jusas is relied upon for the limited purpose of teaching that is known in the
field of RFID technology to define and initiate an activation signal. Ans. 4
(citing col. 4, ll. 28-43).
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of illustrative independent claim 1 and claims 8, 11, 12, and 14
not separately argued with particularity (App. Br. 8).

Claims 4, 5, and 7
Based on the record before us, we also find no error in the Examiner’s
rejection of illustrative claim 4. Appellant asserts that the claimed invention
of defining the local interrogation zone to have the approximate dimensions
of the RFID tags as recited in claim 4 is distinguishable over the cited
references. App. Br. 7. However, Appellant provides no supporting
evidence. See id. Mere arguments unsupported by factual evidence are
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entitled to little probative value. Cf. In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997). Appellant also argues the cited references do not suggest a
method that uses a local interrogation zone size such that a particular tag
may be located with high accuracy and memory content of the tag may also
be read with minimum possibility of error. App. Br. 7. Yet, such features
are not commensurate in scope with claim 4.
To better understand claim 4, we look to the disclosure. Appellant
states that support in the disclosure for this phrase is found at page 13,
lines 4-19. See App. Br. 3 (citing Spec. 13:4-19). Appellant states “the
dimensions of local interrogation zone[s] are dependent on the pulse
duration and it is determined by the range definition ΔX and ΔY[, w]herein
ΔX = ΔY ≈ Tp x C.” Spec. 13:4-7. The term, Tp, is the pulse duration (see
id.), while C is a signal propagation velocity (Spec. 9:19-20). We do not see
how the pulse duration and velocity, as described in the disclosure, relate to
the dimensions of the RFID tags and thus how the zone has the dimensions
of the RFID tags as recited.
Even so, Appellant has not adequately demonstrated that Shanks and
Vercellotti collectively fail to teach or suggest the recited zone has
approximate dimensions of the RFID tags as recited. Notably and in
contrast to Appellant’s arguments addressing “a particular tag” (see App.
Br. 7), claim 4 does not limit the dimensions to a single RFID tag (App. Br.
7) but rather an undefined number of RFID tags. Thus, the dimensions of
the local interrogation zone can be greater than a single RFID. As discussed
above and given that Vercellotti teaches directional antennas that rotates
through several interrogation zones, we find that Vercellotti when combined
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with Shanks at least suggest a local interrogation zone that can have the
approximate dimensions of a number of RFID tags as broadly as recited.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of illustrative claim 4 and dependent claims 5 and 7 not
separately argued with particularity (App. Br. 8).

CONCLUSION
The Examiner did not err in rejecting claims 1, 11, 12, and 14 under
§ 112, first paragraph, and claims 1, 4, 5, 7, 8, 11, 12, and 14 under § 103.

DECISION
The Examiner’s decision rejecting claims 1, 4, 5, 7, 8, 11, 12, and 14
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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