Ex Parte Moeller et al

Patent Trial and Appeal Board

Dec 31, 2012

09791802 (P.T.A.B. Dec. 31, 2012)

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.
09/791,802 02/26/2001 Klaus R. Moeller 2339-0106P 1088
30593 7590 12/31/2012
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 8910
RESTON, VA 20195
EXAMINER
LAO, LUNSEE
ART UNIT PAPER NUMBER
2655
MAIL DATE DELIVERY MODE
12/31/2012 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 KLAUS R. MOELLER, NIKLAS MOELLER,
MIRCEA RUSU and CARL DERLA
____________

Appeal 2011-010798
Application 09/791,802
Technology Center 2600
____________

Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM and
ANDREW J. DILLON, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-010798
Application 09/791,802

2
STATEMENT OF THE CASE
Appellants are appealing claims 46-51, 56-60, 63, 64, 68-78. Appeal
Brief 1. We have jurisdiction under 35 U.S.C. § 6(b) (2012).
We affirm.

Introduction
The invention is directed to “networked sound masking system with
individually controllable and programmable sound masking units.” Appeal
Brief 5.

Illustrative Claim
46. A sound masking system for controlling the ambient
noise in a physical environment, said sound masking system
comprising:

a communication network in said physical environment;

a plurality of sound masking units including a
communication interface for coupling to said communication
network for receiving one or more control signals over said
communication network including a masking volume signal and
a masking frequency signal, at least some of said sound
masking units including a sound masking component, said
sound masking component being responsive to said one or more
control signals for generating a sound masking output signal;

a control unit configured to generate said one or more
control signals including said masking volume signal and said
masking frequency signal, and said control unit having a
communication interface for coupling to said communication
network for transmitting said one or more control signals to
selectively control operation of said plurality of sound masking
units.

Appeal 2011-010798
Application 09/791,802

3
Rejections on Appeal
Claims 46-51, 56-60, 63, 64, 68-75, 78 and 80-84 stand rejected under
35 U.S.C. §103(a) as being unpatentable over Orfield (U.S. Patent Number
4,319,088; issued March 9, 1982) and Farinelli (U.S. Patent Number
5,440,644; issued August 8, 1995). Answer 5-27.
Claims 76 and 77 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Orfield, Farinelli and Ritter (U.S. Patent Number
4,686,693; issued August 11, 1987). Answer 27-28.

Issues on Appeal
Do Orfield and Farinelli, either alone or in combination, disclose a
communication network as recited in the claims?
Do Orfield and Farinelli, either alone or in combination disclose
sending out separate masking volume and sound making frequency signals
as required by the control unit recited in the claims?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We concur and adopt as our own the findings and reasons set
forth by the Examiner in the action from which this appeal is taken and the
reasons set forth by the Examiner in the Answer in response to Appellants’
Appeal Brief. However, we highlight and address specific findings and
arguments for emphasis as follows.
Appellants argue that Orfield does not disclose a communication
network and further Orfield fails to disclose a communication network that
App
App

prov

Orfie
Orfie
soun

Orfie
Orfie
build
eal 2011-0
lication 09
ides contro
ld’s Figur
ld’s Figur
d masking
ld’s Figur
ld’s Figur
ing.”
10798
/791,802
l informa
es 1 and 2
es 1 and 2
unit respe
e 3 is repr
e 3 disclos
tion or con
are reprod
discloses
ctively.
oduced be
es “an ele
4
trol signal
uced belo
a master s
low:
vated pers
s. Appeal
w:
ound mak
pective of
Brief 24-
ing unit an

the interio
26.

d a slave
r of a
Appeal 2011-010798
Application 09/791,802

5
Appellants argue that Orfield is deficient because Orfield does not
disclose a communication network:

[T]he slave unit 16 can include a second voice coil 68 for
receiving a signal from an alternate sound source control
module 14 and coupling the alterative signal to the speaker
62. The speakers 26 and 62 as taught by Orfield comprise
a conventional passive speaker that emits the sound
masking signal generated by the octave equalizer 24 in the
master sound masking unit 14, and applied to the slave
sound masking unit 16 via the cable 18. Accordingly, the
cable 18 as taught by Orfield does not comprise a
"communication network", but is merely, a wire
connection for passing the sound masking signal generated
by the master unit 14 to the slave unit 16 for emission on
the speaker 62.

Appeal Brief 26.
Appellants conclude that Orfield cable 18 does not constitute a
communication network as the Examiner alleges. Id. We do not find
Appellants arguments to be persuasive because the Examiner does not
merely rely on the Orfield’s cable 18 to disclose a communication network
but relies on the entirety of Orfield’s invention as shown in Figures 1-3. See
Answer 5. Further, during examination of a patent application, a claim is
given its broadest reasonable construction “in light of the specification as it
would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted)
(internal quotation marks omitted). “[T]he words of a claim ‘are generally
given their ordinary and customary meaning.’” Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations omitted).
Appellants did not provide any definition that would distinguish the claimed
Appeal 2011-010798
Application 09/791,802

6
communication network over the communication network disclosed in
Orfield and therefore we are permitted to construe “communication
network” with its ordinary and customary meaning.
Appellants further argue that Orfield does not disclose the “control
unit configured to generate said one or more controls signals including said
masking volume signal and said masking frequency signal” as recited in
claim 46. Appeal Brief 27.
In referring to Orfield’s Figures 1 and 2, Appellants argue:

As shown in Fig. 1 of Orfield, the master unit 14 (not the
slave unit 16) includes a masking sound generator 20
generating a masking sound signal, which passes through
an amplifier 22 and an equalizer 24. Manually controlled
potentiometers 48 and 46 control output of the amplifier
22 and the equalizer 24, respectively. (foot note omitted).

The Examiner alleges that since the master unit 14 of
Orfield generates a sound masking signal, controls the
volume of the sound masking signal and controls the
frequency of the volume controlled sound masking signal,
the resulting output signal of the master unit 14 provides
the claimed “masking volume signal” and “sound masking
frequency signal.”

This reasoning is flawed. The master unit 14 sends a single
signal, i.e. the sound masking output signal, to the slave
unit 16, and this single signal drives a speaker 62 in the
slave unit 16. The master unit 14 does not send separate
masking volume and sound masking frequency signals as
required of the control unit of claim 46.

Appeal Brief 28-29.
Appeal 2011-010798
Application 09/791,802

7
We do not find Appellants’ arguments to be persuasive because the
arguments are not commensurate with the scope of the claims. Claim 46
states “a control unit configured to generate said one or more control
signals” which is contrary to Appellants’ arguments that multiple signals
must be generated. See Appeal Brief 27. The claim limitation only requires
that one signal is generated and therefore we agree with the Examiner’s
findings that Orfield discloses the claim limitation. See Answer 5-6.
Further, the claim only requires that the control unit be configured to
generate a signal and regardless of the purpose of the signal, it is still just a
signal and thus, generating a signal is well within the structural composition
of Orfield’s invention. See Orfield’s Figures 1 and 2. Therefore we sustain
the Examiner’s rejections claim 46 as well as independent claims 58, 63, 68,
73, 78 and 80, having limitations commensurate in scope and those claims
dependent therefrom.

DECISION
The rejections of claims 46-51, 56-60, 63, 64, 68-78 are 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). See 37
C.F.R. § 41.50(f).

AFFIRMED

Vsh