Ex Parte Nicholson et alDownload PDFPatent Trial and Appeal BoardDec 28, 201613076547 (P.T.A.B. Dec. 28, 2016) Copy Citation 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. 13/076,547 03/31/2011 Travis E. Nicholson H-l 1-058-US 3950 71016 7590 Bose Corporation Patent Group Mountain Road, MS 3B1 Framingham, MA 01701 12/30/2016 EXAMINER PATEL, YOGESHKUMAR G ART UNIT PAPER NUMBER 2651 NOTIFICATION DATE DELIVERY MODE 12/30/2016 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): docket @ bose. com designs @ bose. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TRAVIS E. NICHOLSON, PAUL WARREN, and DEWEY L. POTTER1 Appeal 2016-001144 Application 13/076,547 Technology Center 2600 Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and JAMES W. DEJMEK, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 2, 6—9, 13—15, 18, and 19. Claims 3—5, 10-12, 16, and 17 have been cancelled. Br. 2. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Bose Corporation as the real party in interest. Br. 2. Appeal 2016-001144 Application 13/076,547 STATEMENT OF THE CASE Introduction Appellants’ invention is directed to a portable loudspeaker. Spec. Title. Claim 1 is representative of the subject matter on appeal and is reproduced below with disputed limitations emphasized in italics'. 1. A portable loudspeaker, comprising: an electro-acoustic driver which creates sound waves when operated; a housing having a front side to which the driver is secured, an internal part of the housing defining a first portion of an acoustic volume in which at least a portion of the driver is located, the sound waves from the driver being capable of acoustically energizing the acoustic volume; a unitary battery module removably secured to the housing for providing electrical power to the driver, a part of the battery module defining a second portion of the acoustic volume; a first passive radiator secured to the front side of the housing; and a second passive radiator that is located on a back side of the housing that is substantially opposite to the front side of the housing. The Examiner’s References and Rejections Claims 1, 2, 8, 9, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Eaton et al. (US 2009/0154756 Al; June 18, 2009) (“Eaton”), Bates et al. (US 2010/0008514 Al; Jan. 14, 2010) (“Bates”), Jacob et al. (US 8,126,180 B2; Feb. 28, 2012) (“Jacob”), and Beppu (US 5,621,804; Apr. 15, 1997). Final Act. 2-5. Claims 6, 7, 13, 14, 18, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Eaton, Bates, Jacob, Beppu, and 2 Appeal 2016-001144 Application 13/076,547 Kennedy et al. (US 2012/0072752 Al; Mar. 22, 2012 (filed Sept. 22, 2010)) (“Kennedy”). Final Act. 5—6. ANALYSIS2 We have reviewed the Examiner’s rejections in light of Appellants’ arguments the Examiner has erred. Br. 4—5. We are not persuaded by Appellants’ contentions regarding the pending claims and, in connection therewith, adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2—7), and as set forth by the Examiner in the Answer in response to arguments made in Appellants’ Appeal Brief (Ans. 2—8). We highlight and address specific findings and arguments below. In rejecting claim 1, the Examiner relies on Eaton for disclosing a portable loudspeaker comprising a housing. Final Act. 2—3. The Examiner further relies on Bates, in combination with Eaton, for disclosure of a unitary battery module removably secured to the housing.3 Final Act. 3. In particular, the Examiner relies on Bates to teach, inter alia, a battery cover that is removable from an audio belt buckle without the use of a tool. Ans. 6 2 In this Opinion, we refer to Appellants’ Appeal Brief (“Br.,” filed June 30, 2015); the Final Office Action (“Final Act.,” mailed February 10, 2015); and the Examiner’s Answer (“Ans.,” mailed on October 5, 2015). 3 Furthermore, we note in passing and without reliance in rendering our decision, Eaton discloses a cellular telephone (60), which, at the time of Appellants’ invention, one of ordinary skill in the art would have understood, often includes a battery removably secured to the cellular telephone ’ s housing. 3 Appeal 2016-001144 Application 13/076,547 (citing Bates 55, 56); see also Final Act. 3 (citing Bates 163; Figures 2A— 2B). Appellants contend the Examiner erred in finding Bates teaches or suggests, “a unitary battery module removably secured to a housing”, as recited in independent claim 1. Br. 4—5. In particular, Appellants assert Figure IB of Bates illustrates a battery cover that may be placed on an audio belt buckle’s back cover. Br. 4. Appellants further assert the audio belt buckle’s front and back covers are secured by a screw. Br. 4. We are not persuaded of Examiner error. Appellants fail to persuasively explain why Bates’s battery cover attached to an audio belt buckle fails to teach a unitary battery module removably secured to a housing. For example, Appellants fail to provide sufficient persuasive evidence or reasoning supporting an interpretation of the disputed “unitary battery module” distinguishing it over the prior art based on a plain meaning of the terms and/or a definition found in the Specification or otherwise explain why the Examiner’s interpretation is inconsistent with the Specification. Instead, Appellants’ contentions amount to no more than naked assertions that the corresponding elements were not found in the prior art and are, therefore, unpersuasive of Examiner error. See 37 C.F.R. § 41.37(c)(l)(iv); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Thus, in the absence of persuasive rebuttal, we agree that, under a broad but reasonable interpretation of a “unitary battery module,” consistent with the Specification, Bates’s battery cover teaches or suggests, “a unitary battery module removably secured to a housing,” as recited in independent claim 1. 4 Appeal 2016-001144 Application 13/076,547 Furthermore, we note in passing and without reliance in rendering our decision, Bates further teaches, “the audio belt buckle 100 contains a power source such as a battery (not shown) coupled with an amplification device (not shown).” Bates 1 55. We find Bates’s battery alone, or in combination with the battery cover, teaches or suggests, “a unitary battery module removably secured to a housing,” as recited in independent claim 1. Appellants further contend the motivation for adding Bates’s battery module to Eaton’s portable loudspeaker is improper. Br. 4—5. In particular, Appellants argue adding Bates’s battery module to Eaton’s portable loudspeaker “will increase the weight and probably the size of [Eaton’s] device.” Br. 4—5. Appellants conclude, “one of ordinary skill in the art would thus not modify Eaton as suggested by the Examiner.” Br. 5. We are not persuaded of Examiner error because Appellants’ arguments are not responsive to the Examiner’s rejection. In particular, the Examiner finds “it would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize the teachings of Bates into the teachings of Eaton to provide a lightweight and portable system.” Final Act. 3 (citing Bates 14) (emphasis added). Appellants’ arguments inappropriately solely focus on Eaton’s teaching of providing a lightweight system, and not Eaton’s teaching of providing a portable system. Thus, in the absence of persuasive rebuttal why the motivation for providing a portable system is improper, we find the Examiner has articulated a reason based on rational underpinnings, for the proposed combination, and Appellants have not persuaded us the Examiner erred. See KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). 5 Appeal 2016-001144 Application 13/076,547 In rejecting claim 1, the Examiner further relies on Jacob, in combination with Eaton and Bates, for disclosing a first passive radiator secured to a front side of the housing. The Examiner finds “it would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize the teachings of Jacob into the teachings of Eaton in view of Bates, in order to enhance the performance of the device.” Final Act. 4. Appellants contend the motivation for adding Jacob’s first passive radiator to Eaton’s portable loudspeaker is improper. Br. 4—5. In particular, Appellants assert Figure 8 of Eaton illustrates one side of a cell phone including a keyboard and speaker. Br. 5. Appellants argue, “[c]ell phones would typically also have a display on this side of the phone” and conclude “there is not sufficient space on this side of the cell phone so that a passive radiator can be placed on this side of the phone.” Br. 5. We remain unpersuaded of Examiner error. Appellants provide only unsupported assertions and fail to identify any evidence that a passive radiator cannot be placed on a side of a cell phone that also includes a keyboard, speaker, and display. It is well settled that mere attorney 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); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977). Rather, we agree the combination of Eaton, Bates, and Jacob is both proper and teaches the disputed first passive radiator secured to a front side of a housing. See Final Act. 4. 6 Appeal 2016-001144 Application 13/076,547 Accordingly, we sustain the Examiner’s rejection of independent claim 1 and, for similar reasons, the rejection of independent claims 8 and 15, which recite similar limitations and were not argued separately. Additionally, we sustain the Examiner’s rejections of dependent claims 2, 6, 7, 9, 13, 14, 18, and 19, which were not argued separately. See Br. 9. DECISION We affirm the Examiner’s decision to reject claims 1, 2, 6—9, 13—15, 18, and 19. 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. § 41.50(f). AFFIRMED 7 Copy with citationCopy as parenthetical citation