Ex Parte Michalski

Patent Trial and Appeal Board

Sep 13, 2018

11918855 (P.T.A.B. Sep. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/918,855 01/14/2009 Bernhard Michalski
23364 7590 09/17/2018
BACON & THOMAS, PLLC
625 SLATERS LANE
FOURTH FLOOR
ALEXANDRIA, VA 22314-1176
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.
MICH3008/FJD/TL 7722
EXAMINER
BARKER, MATTHEW M
ART UNIT PAPER NUMBER
3646
NOTIFICATION DATE DELIVERY MODE
09/17/2018 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):
MAIL@BACONTHOMAS.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERNHARD MICHALSKI
Appeal2017-006304
Application 11/918,855
Technology Center 3600
Before ELENI MANTIS MER CADER, ROBERT L. KINDER, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 11, 13, 15,
and 19-23, which are all the claims pending in the application. The Board
previously rendered a decision on this application in Appeal No. 2013-
005601 (PTAB July 1, 2015). We have jurisdiction under 35 U.S.C. § 6(b).
1 The real party in interest is identified as ENDRESS + HAUSER GMBH +
CO. KG. Br. 2.
Appeal2017-006304
Application 11/918,855
For the reasons explained below, we do not find error in the
rejections. Accordingly, we AFFIRM.
Claimed Subject Matter
Claims 11, 21, and 23 are independent. Claims 11 and 23, reproduced
below, illustrate the claimed subject matter.
11. A method for ascertaining a distance to a surface on the
basis of travel-time of high-frequency measuring signals,
comprising the steps of:
transmitting at least one periodic, pulsed transmission-
signal having a pulse repetition frequency;
receiving at least one reflected measuring signal from the
surface;
transforming the transmission signal and the reflected
measuring signal by means of a sampling signal having a
sampling frequency into a time-expanded, intermediate-
frequency signal having an intermediate-frequency;
filtering the time-expanded, intermediate-frequency signal
by means of at least one filter and producing a filtered
intermediate-frequency signal;
matching the intermediate-frequency to at least one of a
limit frequency and a center frequency of the filter;
checking the matching of the intermediate-frequency by
evaluating the signal strength of the filtered intermediate-
frequency signal;
determining the signal strength of the filtered
intermediate-frequency signal by an algorithm from the filtered
intermediate-frequency signal, by ascertaining at least one of
amplitude of a fill level echo and an integral over all data points
of the filtered intermediate-frequency signal;
ascertaining a transformation factor, which corresponds to
a time-expansion ratio, from a pulse repetition frequency to
frequency difference ratio;
transmitting the transformation factor for further
evaluation and processing of the filtered, time-expanded,
intermediate-frequency signal;
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ascertaining the travel-time of a pulse sequence, or burst
sequence from the transmission signal and the reflected
measuring signal taking into consideration the time-expansion,
respectively, the transformation factor; and
the intermediate - frequency is matched by so varying at
least one of the pulse repetition frequency and the sampling
frequency, that the frequency difference between the pulse
repetition frequency and the sampling frequency is changed.
23. An optimized, method for improving matching of a filter
to the intermediate-frequency of a time-expanded measuring
signal, comprising the steps of:
ascertaining distance on the basis of travel-time of high
frequency measuring signals, by transmitting at least one
periodic transmission signal having a pulse repetition frequency
and receiving at least one reflected measuring signal; and
producing a sampling signal which transforms the
transmission signal and the reflected measuring signal, wherein:
the transmission signal and reflected measuring signal is
transformed into a time-expanded, intermediate-frequency
signal;
the time-expanded, intermediate-frequency signal is
filtered by means of at least one filter; and
a filtered echo curve signal is produced, and the
intermediate-frequency is matched to a limit frequency and a
center frequency of the filter.
Rejections
I. Claims 11, 13, and 21 stand rejected on the ground of res
judicata based on our previous decision of July 1, 2015. Final Act. 2.
II. Claims 11, 13, 15, 19, and 20 stand rejected under pre-AIA
35 U.S.C. § I03(a) as unpatentable over Spanke (US 2002/0109626 Al,
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Application 11/918,855
published Aug. 15, 2002) and Taura (JP 09224015 A, published Aug. 26,
1997). 2 Final Act. 3--4.
III. Claims 21-23 stand rejected under pre-AIA 35 U.S.C. § I03(a)
as unpatentable over Spanke in view ofKoslar (DE 10215798 Al, published
Oct. 3, 2003), 3 or Visee (US 6,718,167 B2, issued Apr. 6, 2004), or Taura.
Final Act. 4--5.
DISCUSSION
Rejection II: Claims 11, 13, 15, 19, and 20 under 35 U.S.C. § 103(a)
Appellant argues the Examiner's "proposed modification of the
method of measuring a level of Spanke in accordance with the teachings of
Taura" fails to result in "the intermediate - frequency is matched by so
varying at least one of the pulse repetition frequency and the sampling
frequency, that the frequency difference between the pulse repetition
frequency and the sampling frequency is changed," as recited in claim 11.
Br. 11. Appellant acknowledges that Taura teaches fitting the intermediate
frequency signal to the center frequency of the filter, but argues the above-
recited limitation is not taught because Taura "only discloses that the
matching is performed by adjusting a local oscillator (4)." Br. 13. Thus,
Appellant argues, "the Examiner has not provided any evidence in Taura
2 Citation to Taura's Abstract refers to the English abstract provided by the
Examiner with the Non-Final Office Action dated January 25, 2011. We
note the Examiner also provided an English translation of Taura with the
Examiner's Answer on December 12, 2016.
3 Citations to Koslar refer to the English translation provided by the
Examiner on January 15, 2013.
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that the pulse repetition frequency or the sampling frequency is in fact
varied." Br. 14.
The Examiner finds Taura's local oscillator frequency corresponds to
the claimed sampling frequency, and that the local oscillator frequency is
changed in order to match the intermediate frequency to the filter. Final Act.
6; Ans. 3. Appellant does not respond to this finding or persuasively explain
why it is in error. We agree with the Examiner that using Taura's local
oscillator to change the sampling frequency in Spanke results in changing
the difference between the pulse repetition frequency and the sampling
frequency, thereby allowing the intermediate frequency to be matched to the
center frequency of the filter, as taught by Taura. See Ans. 3; Taura Abstract
("A system controller 12 detects the center frequency deviation of the
intermediate frequency filter 5 by comparing the levels, adjusts the
frequency of a local oscillator 4 and an intermediate frequency oscillator 8
corresponding to the deviation amount and controls the intermediate
frequency so as to be almost matched with the center frequency of the filter
5.").
Appellant also contends "the Examiner has also failed to provide
sufficient factual evidence to establish that it would have been obvious to
modify the method of measuring a level of Spanke in accordance with the
teachings of Taura to result in the features recited in claim 11." Br. 15.
Appellant argues that Spanke is directed to measuring a level, but Taura "is
only directed to mitigating a precision request for a digital broadcasting
receiver" and "is only directed to providing an economical digital
broadcasting receiver that prevents a deteriorating reception performance."
Br. 16-17. Appellant argues "the Examiner has not provided any evidence
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why a method for improving the reception performance of a digital
broadcasting receiver would have logically commended itself to the skilled
person in the art of measuring levels to have modified the method of
measuring a level as taught in Spanke." Br. 17. For this reason, argues
Appellant, Taura is not reasonably pertinent to the problem facing the
inventor and is, therefore, not analogous art to the claimed invention. Br.
16-17.
In the Final Office Action, the Examiner determines that "Taura is
both in the field of endeavor (radio receivers) and reasonably pertinent to the
particular problem with which the applicant was concerned (matching
intermediate frequency to receiver filter)." Final Act. 5---6. The Examiner
further explains:
One of ordinary skill in the art recognizes that in terms of both
methodology and hardware, the reception of radio waves in a
communications receiver such as that of Taura has a great deal
of commonality with the reception of radio waves in a radar
receiver such as that of the instant invention and Spanke.
Ans. 4.
Appellant does not address the field of endeavor prong of the
analogous art inquiry, and, therefore, does not inform us of error in the
Examiner's determination. In addition, Appellant has not persuasively
challenged the Examiner's finding that the Appellant was concerned with
matching the intermediate frequency to the receiver filter. Final Act. 6. We
agree with the Examiner that Taura is reasonably pertinent to this problem
because "one of ordinary skill in the art of radio receivers for level
measurement would be reasonably knowledgeable of different applications
of radio receivers such as a communications receiver, and particularly the
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common challenges faced by both." Ans. 4--5. Appellant's observation that
Spanke is related to level measurement and Taura relates to digital
broadcasting does not rebut these findings.
Appellant further contends the Examiner has not established any
temperature variation in a vessel, and argues that, therefore, the Examiner's
reasoning that one of skill in the art would have incorporated Taura's
frequency-matching method into Spanke to account for temperature
variation in the filter is in error. Br. 17. The Examiner responds that "one
of ordinary skill in the art readily recognizes that level measurement devices
such as that of Spanke were commonly used to measure the contents of
vessels such as oil storage tanks and grain silos at the time the invention was
made," and "such vessels would have been subject to seasonal, if not daily
temperature variation." Ans. 5. Appellant does not identify error in the
Examiner's findings, with which we agree.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claim 11 under
35 U.S.C. § 103(a) as unpatentable over Spanke and Taura. For the same
reasons, we sustain the rejection of claims 13, 15, 19, and 20, which are not
argued separately.
Rejection III: Claims 21-23 under 35 U.S.C. § 103(a)
Appellant contends Spanke combined with Koslar, or Visee, or Taura
"fails to at least result in 'a filtered echo curve signal is produced, and the
intermediate-frequency is matched to a limit frequency and a center
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frequency of the filter,' as recited in claim 23." Br. 18. 4 Appellant argues
the Examiner has not provided any evidence that the proposed modification
of Spanke would have resulted in producing a filtered echo curve signal and
the limitation that "the intermediate frequency is matched to a limit
frequency and a center frequency of the filter." Br. 19.
To the extent Appellant is arguing that the combined teachings of the
references do not teach a "filtered echo curve signal," we agree with the
Examiner's finding, which is not addressed by Appellant, that the claimed
"filtered echo curve signal" "refers to a received signal after filtering that in
the instant invention is used to determine the level." Ans. 6 ( citing Spec.
1: 17-20). The Examiner finds the signal output from filter 31 of Spanke is a
"filtered echo curve signal" and is used for the same purpose. Id. Appellant
does not address these findings or explain why Spanke' s filtered signal is not
a filtered echo curve signal. Appellant, therefore, does not inform us of
error in these findings.
Regarding claim 23 's requirement that the intermediate frequency is
"matched to a limit frequency and a center frequency of the filter," we agree
with the Examiner that this language cannot be interpreted to mean the
intermediate frequency is made equal to both a center frequency and a limit
frequency of the same filter at the same time, as these are generally different
frequencies. Ans. 6-7. Thus, "matched" must refer to the "iterative check
and adjustment process to ensure the intermediate frequency signal is passed
4 We note that this argument does not apply to claim 21, which recites,
similar to claim 11, that "the intermediate-frequency is matched by so
varying at least one of the pulse repetition frequency and the sampling
frequency, that the frequency difference between the pulse repetition
frequency and the sampling frequency is changed."
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by the filter(s) and not filtered out," as illustrated by Appellant's flow chart
at Figure 1 of the Specification and the corresponding description. Ans. 7
( citing Spec. Fig. 1, 6:22-31 ). The Examiner explains that because Koslar,
Visee, and Taura each match the intermediate frequency to the center
frequency of a filter, the frequency falls within a frequency band passed by
the filter and is, therefore, "necessarily also 'matched' to a limit frequency
of that filter and the claim language is satisfied by each of Koslar, Visee, and
Taura." Id.
We note that Appellant does not present an alternate interpretation of
claim 23 's requirement that "the intermediate-frequency is matched to a
limit frequency and a center frequency of the filter." Koslar teaches a
"matched filter receiver," Koslar 4, and Visee teaches using an oscillator to
change an intermediate frequency ( a first signal that is transformed by a
selection frequency) to follow the shift of the center frequency of a band-
pass filter, Visee Abstract. Taura's similar teachings are discussed supra in
connection with claim 11. In light of the Examiner's interpretation of claim
23 based on Appellant's Specification, and the teachings of Koslar, Visee,
and Taura, we agree with the Examiner's findings that each of Koslar Visee,
and Taura teach the claimed matching.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claim 23 under
35 U.S.C. § 103(a) as unpatentable over Spanke and Koslar, or Visee, or
Taura. For the same reasons, we sustain the rejection of claims 21 and 22,
which are not argued separately.
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Rejection I: Claims 11, 13, and 21 based on res judicata
The Examiner determines that "claim 11 as amended is effectively the
previously rejected claim 12," which was subject to appeal in our previous
decision on this application. Final Act. 2. The Examiner similarly
determines claim 13 is "effectively unchanged" and claim 21 is "effectively
identical" to those same claims addressed in our previous decision. Id. The
Examiner, therefore, determines that our previous decision affirming the
rejection of these claims on the same grounds is the law of the case and
controls claims that are not patentably distinct from the previous claims
absent a showing of facts relating to them. Id.
Appellant does not persuasively challenge the Examiner's
determinations as to the scope of current claims 11, 13, and 21 as compared
to claims 12, 13, and 21 pending at the time of our decision in Appeal No.
2013-005601 (PTAB July 1, 2015). Instead, Appellant argues claims 11, 13,
and 21 are "directed to different inventions than argued'' in the previous
appeal, because the main issue argued by Appellant in that appeal was
whether Spanke and Taura taught steps 3-7 of then-pending claim 11 and
the claimed matching by determining the signal strength. Br. 22 ( emphasis
added). "[S]ince claims 11 and 21 include additional features not previously
argued," Appellant asserts, "the pending claims are not directed to the same
invention as previously adjudicated by the PTAB." Id. (emphasis added).
Appellant also contends that the grounds of rejection are no longer valid and,
therefore, a rejection based on res judicata would no longer be proper. Id. at
22-23.
The Manual of Patent Examining Procedure (9th Ed., Rev. 08.2017,
Jan. 2018) ("MPEP") provides that an "applicant is precluded from seeking
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a claim that is not patentably distinct from a claim that was finally refused"
in a decision of the Board when there is no opportunity for further court
review of the earlier decision. MPEP § 706.03(w). Absent contrary
argument from Appellant, we agree with the Examiner that claims 11, 13,
and 21 are not patentably distinct from claims 12, 13, and 21, the rejections
of which were affirmed in our decision in Appeal No. 2013-005601.
Appellant's contention as to the arguments presented in the prior appeal are
not relevant to the doctrine of res judicata. For example, the limitations
Appellant relies on to establish a distinction were considered and the claims
were all subject to a final rejection that we affirmed in the prior proceeding.
In addition, having reviewed the merits of Appellant's arguments as
discussed supra, we do not agree that the grounds of rejection are no longer
valid, unlike the circumstances of In re Craig, 411 F.2d 1333 (CCPA 1969),
cited by Appellant, Br. 10. Appellant improperly seeks to have us review a
second time the same claims and same prior art that were finally decided in
the prior proceeding without any additional evidence.
Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claims 11, 12,
and 21 on the ground of res judicata.
DECISION
We affirm the Examiner's rejections of claims 11, 13, 15, and 19-23
under 35 U.S.C. § 103(a), and the rejection of claims 11, 13, and 21 on the
ground of res judicata.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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