Ex Parte Maugars et al

Patent Trial and Appeal Board

May 23, 2016

13738661 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/738,661 01/10/2013
65913 7590 05/25/2016
Intellectual Property and Licensing
NXPB.V.
411 East Plumeria Drive, MS41
SAN JOSE, CA 95134
FIRST NAMED INVENTOR
Philippe Maugars
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
AT050017US3 1654
EXAMINER
FLEMING-HALL, ERICA L
ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
05/25/2016 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):
ip.department.us@nxp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIPPE MAU GARS and PA TRICE GAMAND
Appeal2015-000487
Application 13/738,661
Technology Center 2600
Before MAHSHID D. SAADAT, JOHN A. EVANS, and ALEX S. YAP,
Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-5. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2
1 NXP B.V. is identified as the applicant. See Bib Data Sheet.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed April 2, 2014, "App. Br."), the Reply Brief
(filed September 30, 2014, "Reply Br."), the Examiner's Answer (mailed
August 1, 2014, "Ans."), the Final Action (mailed January 2, 2014, "Final
Act."), and the Specification (filed January 10, 2013, "Spec.") for their
respective details.
Appeal2015-000487
Application 13/738,661
INTRODUCTION
The claims relate to a wireless mobile communication device having
short range functionality. See Abstract.
Claim 1 is independent. The claims have not been argued separately
and therefore stand or fall together. 37 C.F.R. § 41.37(c)(l)(iv). An
understanding of the invention can be derived from a reading of exemplary
Claim 1, which is reproduced below some formatting added:
1. A wireless mobile communication device having a short
range functionality comprising:
an antenna configured to receive and send short range
signals;
a circuit configured to provide the short range
functionality for the wireless mobile communication device;
a first energy source configured to supply power for the
wireless mobile communication device including the circuit;
a second energy source connectable to the circuit to
supply power thereto;
a controller configured to monitor a charge state of the
first energy source, and configured to switch off the first energy
source and switch on the second energy source if the monitored
charge state of the first energy source falls below a threshold;
a detector configured to detect a charge state of the
second energy source, wherein the second energy source is
configured to be charged via a voltage induced by an external
short range signal received by the antenna if the detected charge
state of the second energy source is not sufficient to allow at
least one short range transaction.
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Application 13/738,661
References and Rejections
The Examiner relies upon the prior art as follows:
Koyama et al. US 2002/0171400 Al Filed Mar. 6, 2002
Palermo et al. US 2003/0050011 Al Pub. Mar. 13,2003
Forster et al. US 2004/0106376 Al Pub. June 3, 2004
Hyde US 2005/0237844 Al Pub. Oct. 27, 2005
The claims stand rejected as follows:
1. Claims 1, 2, 4, and 5 stand rejected on the ground of non-statutory
obviousness-type double patenting over Claims 1 and 4 of
US 8,374,546 and Claims 4, 7, and 12 of US 8,238,823. Final Act. 3-
4.
2. Claims 1-3 and 5 stand rejected under 35 U.S.C. § 103(a) as obvious
over Palermo, Foster, and Koyama. Final Act. 5-8.
3. Claim 4 stands rejected under 35 U.S.C. § 103(a) as obvious over
Palermo; Foster; Koyama; and Hyde. Final Act. 9.
ANALYSIS
We have reviewed the rejections of claims 1-5 in light of Appellants'
arguments that the Examiner erred. We have considered in this decision
only those arguments Appellants actually raised in the Briefs. Any other
arguments which Appellants could have made but chose not to make in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). We are
not persuaded that Appellants identify reversible error. Upon consideration
of the arguments presented in the Appeal Brief and Reply Brief, we agree
with the Examiner that all the pending claims are unpatentable over the cited
combination of references. We adopt as our own the findings and reasons
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Application 13/738,661
set forth in the rejection from which this appeal is taken and in the
Examiner's Answer. We provide the following explanation to highlight and
address specific arguments and findings primarily for emphasis.
We consider Appellants' arguments seriatim, as they are presented in
the Appeal Brief, pages 4--11.
CLAIMS 1, 2, 4, AND 5: NON-STATUTORY, OBVIOUSNESS-TYPE
DOUBLE PATENTING
Appellants contend the Examiner erred in finding "the instant
application is a generic presentation of the claims" in the cited patents
differing only as a "matter of design choice." Final Act. 3--4. Appellants
argue the Examiner merely presents conclusory statements, but fails to
present the articulated reasoning necessary to support of prima facie case of
obviousness. App. Br. 4; Reply Br. 2.
The Examiner finds the instant claims to be generic versions of the
patented claims. Ans. 10. The Examiner finds, unlike the patented claims,
the claimed "short range circuit" is not specified as an "NFC circuit" nor do
the instant claims specify the second power supply powers the "short range
circuit." Id. The Examiner finds that it is a mere "design choice" to
substitute a generic circuit for the patented "NFC circuit." Id.
Appellants fail to persuade us that Claims 1, 2, 4, and 5 are patentably
distinct over the reference claims.
CLAIMS 1-3 AND 5: OBVIOUSNESS OVER PALERMO, FOSTER, AND KOYAMA
Appellants contend dependent Claims 2, 3, and 5 are patentable in
view of Claim 1. App. Br. 10.
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Application 13/738,661
A second energy source connectable to the circuit to supply power thereto.
Appellants contend the references of record fail to teach or suggest
this limitation recited in Claim 1. App. Br. 6. The Examiner finds Palermo
teaches a second energy source connectable to the circuit to supply power.
Final Act. 6 (citing Palermo i-f 28 (numeral 50) ).
Appellants contend that Palermo teaches a device 50 as a "battery
charger which is used to charge the battery 51." App. Br. 6 (citing Palermo
i-f 28). Appellants argue that a "battery charger is not a second energy
source" and that "one of ordinary skill in the art would not regard this
battery charger as 'connectable to the circuit to supply power thereto.'" Id.
Appellants reason the battery charger, per se, is not a separate energy source
for the circuit. Id.; Reply Br. 2-3.
The Examiner finds Palermo provides a rechargeable battery as a first
energy source and a battery charger as a second energy source connected to
the short-range communication circuitry respectively supplying power
directly and indirectly via an intermediate to the short-range communication
circuit. The Examiner finds the claims do not recite that the second energy
source is directly connected to, or directly powers, the circuit. Because the
claims do not recite a "direct connection" to the circuit, the Examiner finds
that the battery charger providing energy to the circuit through an
intermediate reads on "second energy source connectable to the circuit to
supply power thereto." Ans. 11. The Examiner further finds that the
rechargeable battery and the battery charger are two distinct and separate
sources of energy. Id.
The Examiner finds that the claims do not recite a direct connection
between the second energy source and the circuit. Ans. 11. Because of the
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lack of direct connection, the Examiner finds Palermo reads on the claims.
Id. Because we agree with the Examiner's finding, we sustain the rejection
of claims 1-3 and 5. We agree with the Examiner that Palermo would not
read on claims reciting a "direct connection."
A controller ... configured to switch on the second energy source.
Appellants contend the cited prior art also fails to teach a controller
configured to switch off the first energy source and switch on the second
energy source where the monitored charge state of the first energy source
falls below a threshold. App. Br. 7; Reply Br. 3. Appellants argue the art is
deficient in this regard because Foster teaches how a single energy source
may be recharged. App. Br. 7. Appellants so argue because, in their view
Palermo's battery charger is not an energy source that powers the claimed
circuit. Attorney argument is not evidence. In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974). Nor can it take the place of evidence lacking in the
record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977). Lawyer's
arguments and conclusory statements, which are unsupported by factual
evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997). Appellants' case would be more persuasive should it
comprise supportive references or other evidence. For the reasons discussed
above, we are not persuaded the Examiner errs.
CLAIM 4: OBVIOUSNESS OVER PALERMO, FOSTER, KOYAMA, AND HYDE
Appellants contend that Claim 4 is patentable in view of its
dependence from Claim 1 and that Hyde fails to supply the teachings
missing from the combination of Palermo, Foster, and Koyama. App. Br.
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11. For the reasons discussed above, we are not persuaded the Examiner
errs.
DECISION
The rejection of Claims 1, 2, 4, and 5 under the judicial doctrine of
obviousness-type double patenting is AFFIRMED.
The rejection of Claims 1-5 under 35 U.S.C. § 103 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)(l )(iv).
AFFIRMED
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