Ex Parte Lozier

Patent Trial and Appeal Board

Nov 30, 2016

13585129 (P.T.A.B. Nov. 30, 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.
13/585,129 08/14/2012 Todd Brian Lozier EBM0026-02/P-326B 6741
832 7590 12/02/2016
FAFPtRF rakfr dantft n t t p
EXAMINER
110 WEST BERRY STREET GANEY, STEVEN J
SUITE 2400
FORT WAYNE, IN 46802 ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
12/02/2016 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):
inteas @faegrebd.com
mickie .potter @ faegrebd .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TODD BRIAN LOZIER
Appeal 2015-003006
Application 13/585,1291
Technology Center 3700
Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 23—26 under 35 U.S.C. § 102(b) as anticipated by
Pillar (US 6,922,615 B2, iss. July 26, 2005). We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellant, “[t]he real party in interest is ELKHART
BRASS MANUFACTURING COMPANY.” Appeal Br. 2.
Appeal 2015-003006
Application 13/585,129
STATEMENT OF THE CASE
Claimed Subject Matter
Claim 23, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
23. Control system for a fire fighting device having a base and a
first portion moveable relative to the base, said control system
comprising:
a touch screen display;
a controller in communication with the touch screen
display, said controller generating a manipulatable input icon to
be displayed on the touch screen display, the manipulatable input
icon being a graphical representation of the first portion of the
fire fighting device, said controller generating a first input
position signal in response to a manipulation of the
manipulatable input icon;
said controller adjusting a position of the first portion of
the fire fighting device relative to the base in response to said
input position signal.
ANALYSIS
The Appellant contends, among other things, that Pillar lacks a
“controller generating a first input position signal in response to a
manipulation of the manipulatable input icon” where “the manipulatable
input icon [is] a graphical representation of the first portion of the
firefighting device,” as required by independent claim 23. See Appeal Br.
6—7. The Appellant supports this contention by asserting that Pillar lacks a
manipulatable input icon and as such, “it is impossible to have disclosure
that the controller generates a first input position signal in response to a
manipulation of that manipulatable input icon.” Id. at 7. Also, the Appellant
asserts that “Pillar does not disclose that an icon is displayed on the touch
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Application 13/585,129
screen, let alone an icon that is manipulatable.” Id. at 6. The Appellant’s
contention is persuasive.
The Examiner’s finding that Pillar discloses the aforementioned
limitation of claim 23 is essentially supported by a two-fold approach. First,
the Examiner takes the position that “as currently claimed the only apparatus
limitations/features positively recited are a touch screen display[ ](i.e. touch
screen 773 to Pillar et al '615) and a controller (i.e. controller 660 to Pillar et
al '615) which Pillar et al '615 clearly discloses and anticipates.” Ans. 5. As
such, it appears that the Examiner is taking the position that the
aforementioned contested limitation is not positively recited (i.e., not given
patentable weight). See also Appeal Br. 5. At best, the Examiner’s position
appears to rely on a claim construction that is incomplete. Although the
aforementioned contested limitation includes functional language, the claim
requires that Pillar disclose that functional language. In other words, Pillar
must disclose a corresponding structure to the claimed “controller” and that
corresponding structure must be capable of performing the claimed function
without being later modified to perform the function. See also Typhoon
Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1380 (Fed. Cir. 2011)
(discussing Microprocessor Enhancement Corp. v. Texas Instruments, Inc.,
520 F.3d 1367 (Fed. Cir. 2008)).
Second, the Examiner finds that the aforementioned contested
limitation reads on Pillar because of the description provided at column 42,
lines 40-53, which states:
Also shown in FIG. 26 is an additional operator interface
773 which includes an additional joystick 774 and an additional
display 775. The operator interface 773 is identical to the
operator interfaces 616, and operates in the same manner as the
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Appeal 2015-003006
Application 13/585,129
operator interfaces 616, except that it is coupled to the control
system 612 by way of a wireless (e.g., radio-frequency)
communication link. According to one embodiment, the
additional operator interface 773 is implemented using a personal
digital assistant or other handheld computer and joystick
operation is simulated using a touch screen interface of the
handheld computer.
Ans. 4; see Final Act. 4. The Examiner explains that “manipulatable
icon/joystick operation 774 is simulated using a touch screen interface of the
handheld computer” and that it “is a graphical representation of at least the
first portion[ ](i.e. first arm 626) of the fire fighting device.” Ans. 4.
However, the above-quoted portion of Pillar lacks an explicit description of
an icon. As such, Pillar may still anticipate the aforementioned limitation as
long as it is inherent in Pillar’s disclosure. See In re Cruciferous Sprout
Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002) (citations omitted) (“It is well
settled that a prior art reference may anticipate when the claim limitations
not expressly found in that reference are nonetheless inherent in it. ‘Under
the principles of inherency, if the prior art necessarily functions in
accordance with, or includes, the claimed limitations, it anticipates.’”).
However, it is not necessarily the case that a “joystick operation . . .
simulated using a touch screen interface” is in the form of a “manipulatable
input icon.” A “joystick operation” is a control input which can be
simulated using a touch screen in many different forms. And it is not
necessarily the case that all of those forms are manifested as a
“manipulatable input icon being a graphical representation of the first
portion of the fire fighting device” or more broadly, a “manipulatable input
icon.” As such, Pillar’s description at column 42, lines 40—53 fails to
explicitly or inherently (i.e., necessarily) disclose a “manipulatable input
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Appeal 2015-003006
Application 13/585,129
icon,” as required by claim 23. Additionally, the Examiner’s citations to
other portions of Pillar’s description (e.g., column 43, lines 16—33 and
Figure 26) do not disclose a “manipulatable input icon,” as required by
claim 23. Therefore, the Examiner’s finding that Pillar discloses a
“controller generating a first input position signal in response to a
manipulation of the manipulatable input icon” where “the manipulatable
input icon [is] a graphical representation of the first portion of the
firefighting device,” as required by claim 23, is not adequately supported.
Thus, we do not sustain the Examiner’s rejection of independent
claim 23, and dependent claims 24—26, as anticipated by Pillar.
DECISION
We REVERSE the Examiner’s decision rejecting claims 23—26.
REVERSED
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