Ex Parte Noblitt

Patent Trial and Appeal Board

Apr 21, 2015

11738257 (P.T.A.B. Apr. 21, 2015)

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.
11/738,257 04/20/2007 Daniel J. Noblitt DJN.0100 7154
39602 7590 04/21/2015
THE NOBLITT GROUP, PLLC
Daniel J. Noblitt
8800 NORTH GAINEY CENTER DRIVE
SUITE 279
SCOTTSDALE, AZ 85258
EXAMINER
VALENTI, ANDREA M
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
04/21/2015 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 DANIEL J. NOBLITT
__________

Appeal 2012-007483
Application 11/738,257
Technology Center 3600
__________

Before ERIC B. GRIMES, JEFFREY N. FREDMAN, and
ULRIKE W. JENKS, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellant requested rehearing of the decision entered February 3,
2015. That decision entered New Grounds of Rejection over claims 1–20 as
obvious.
Appellant’s request is denied with respect to making any
modifications to the New Grounds of Rejection made under 35 U.S.C.
§ 103(a).
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DISCUSSION
Appellant contends that the “characterization of McLintock reference,
however, is misguided; FF 13 is based on paragraph 46 of the McLintock
reference, which plainly discusses a monitoring administrator
communicating with a doorbell/intercom signaling device via email, pager
or telephone. Nothing in paragraph 46 relates to controlling door access”
(Req. Reh’g 17).
We find the arguments focused on paragraph 46 of McLintock
unpersuasive because they fail to recognize that the obviousness conclusion
was based on all of the teachings in the prior art, including FF 12, paragraph
50 of McLintock,1 cited in the same portion of the Decision, where
McLintock teaches that
[D]oor control/lock assembly 20 can also include a digital
camera (still or video) that is configured to provide an image
of the individual attempting to gain access to a person
assigned to make human judgements . . . . The judging
person may then allow the individual in, if desired, by
signalling the door control/lock assembly 20 from the Web
browser 52.

(McLintock 4–5 ¶ 50). This is an express teaching that a person using a web
browser may control door access by signalling the door lock assembly. FF
13 simply evidences that the person using the web browser may be located
remotely, “anywhere that an Internet connection and browser software are
available” (McLintock 4 ¶ 46).

1 McLintock et al., US 2002/0099945 A1, published July 5, 2002
(hereinafter “McLintock”).
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Our obviousness conclusion is predicated upon the reasoning that
McLintock reasonably teaches and suggests control of a door lock by a web
browser (FF 12) where the web browser may be remotely located (FF 13),
and that the ordinary artisan would have found it obvious to apply this
control of a door lock to a pet door lock because Kates2 teaches computer
control of pet door locks (FF 4, 7) and McLintock teaches that a web
browser may be used to set times of operation for the pet door lock (FF 14).
Appellant also contends that “[c]ontrary to the assertion of the
decision on appeal, this disclosure merely notes that the pet door may be
operated by the pet’s own key or via a timer. The cited text indicates that
the timer may be controlled via a Web browser, not the door itself” (Req.
Reh’g 17).
We find this argument unpersuasive because the times of operation set
by the pet owner in paragraph 65 of McLintock directly control whether the
pet door lock will be able to open or close in response to the pet’s “key” (FF
14). The ordinary artisan would reasonably understand this as a locking
mechanism which selectively locks the pet door lock when the timer is set to
prohibit door lock operation, and selectively unlocks the pet door lock when
the timer is set to permit door lock operation, even if that control is indirect.
The teaching in paragraph 65, in combination with the teaching in paragraph
50 for direct signaling of a door lock by a web browser, would have
reasonably suggested to the ordinary artisan the remote control of a pet door
by a pet owner using a web browser to signal the lock assembly to open or
close as desired by the pet owner.

2 Kates, US 2006/0011145 A1, published Jan. 19, 2006.
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Appellant contends that the “decision on appeal recites and relies on
various other positions that are similarly misguided. . . . The issue is not
whether the Kates remote control 112 functions to control locking and
unlocking the pet door, but whether the Kates reference discloses the
claimed elements in claims 1-20” (Req. Reh’g 18).
We find Appellant’s series of arguments specifically pointing out that
each of the finding of facts fails to anticipate the claimed invention
unpersuasive. The issue is not anticipation, but obviousness, and whether
the complete teachings of Kates and McLintock embodied in all of the
factual findings together renders the claimed invention obvious. For the
reasons given in the Decision, we remain persuaded that the ordinary artisan
would have found the claimed invention obvious over the teachings and
suggestions of Kates and McLintock as embodied by the cited factual
findings. “The test for obviousness is not whether . . . the claimed invention
must be expressly suggested in any one or all of the references. Rather, the
test is what the combined teachings of the references would have suggested
to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA
1981) (citations omitted). “Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references.” In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (citing Keller, 642 F.2d at 425). In determining
obviousness, furthermore, a reference “must be read, not in isolation, but for
what it fairly teaches in combination with the prior art as a whole.” Id.
Appellant’s arguments fail to address the combined teachings of Kates and
McLintock. Appellant instead attacks each separate factual finding.
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Appellant contends that the motivation to combine
[I]s based on mischaracterizations of the references. The
cited ¶ 46 of the McLintock reference relates to the
doorbell/intercom signaling device, not controlling door
access. And the cited ¶ 187 of the Kates reference relates to
automatically controlling access based on temperature
conditions, not a control signal generated by a remote
computer and transmitted wirelessly to the controller

(Req. Reh’g 21–22).
We find this argument unpersuasive. As we have already noted,
Appellant fails to address McLintock’s teaching of a door lock assembly
with a video camera where a person “may then allow the individual in, if
desired, by signalling the door control/lock assembly 20 from the Web
browser 52” (McLintock 4–5 ¶ 50). This direct teaching by McLintock of
controlling door access for an individual, combined with Kates’ teaching of
remote interaction with pets (FF 7, 9), remote locking of dog doors when a
“strange dog or other animal is in the area” (FF 4) and remote video
monitoring of pets (FF 8) supports the determination in our Decision that the
ordinary artisan would have found it obvious to apply apply McLintock’s
remote door lock control to a pet door for control of pet access.
Appellant contends that “the decsion on appeal relies on the
appellant’s disclosure and/or hindsight to support the obviousness rejections.
This is undeniably so because the cited references do not contain any hint of
the claimed limitations as described above, and the rejections rely entirely
on distorted, inaccurate portrayals of the references” (Req. Reh’g 22).
We are not persuaded. While we are fully aware that hindsight bias
may plague determinations of obviousness, Graham v. John Deere Co., 383
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U.S. 1, 36 (1966), we are also mindful that the Supreme Court has clearly
stated that the “combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). In the
instant case, McLintock’s teaching of a door lock assembly with a video
camera where a person “may then allow the individual in, if desired, by
signalling the door control/lock assembly 20 from the Web browser 52”
(McLintock 4–5 ¶ 50) combined with Kates’ teaching of remote interaction
with pets (FF 7, 9), remote locking of dog doors when a “strange dog or
other animal is in the area” (FF 4) and remote video monitoring of pets (FF
8) supports the finding that remote browser control of a pet door lock over
the internet by a pet owner represents a predictable and obvious alternative
method of controlling pet access to the computer controls or pet “keys” of
Kates or McLintock.
Appellant contends, regarding claim 15, that “[n]othing in either
reference, however, discloses transmitting image data to a remote computer”
(Req. Reh’g 23).
We find this argument unpersuasive because both references teach
transmission of image data to a remote computer. Kates teaches that “video
camera 717 can be used to provide a video feed . . . to the owner or trainer
thereby, allowing the owner to keep watch over the dog 101 from a remote
location on the remote control 112” (Kates 10 ¶ 186; FF 8). McLintock
teaches that the “door control/lock assembly 20 can also include a digital
camera (still or video) that is configured to provide an image of the
individual attempting to gain access to a person” (McLintock 4–5 ¶ 50; FF
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12). These express teachings reasonably render claim 15 obvious for the
reasons given in the decision.
Appellant contends, regarding claims 10 and 16, that “nothing in the
either reference relates to transmission of the audio data to a remote
computer” (Req. Reh’g 23).
We find this argument unpersuasive. McLintock teaches
incorporation of a microphone and speaker assembly into the door
control/lock assembly in order to permit communications with the person
controlling the door (FF 15). As we noted in the Decision, the person of
ordinary skill would have reasonably found it obvious to combine the
microphone and speaker taught by both Kates and McLintock with the door
locking system to permit the owner to remotely judge whether the door
should be locked or unlocked based on the sounds received.
Appellant contends, regarding claims 11 and 17, that “[n]othing in the
Kates reference indicates that the food dispenser may be operated via a
remote computer, and nothing suggests that it could or should be so
configured” (Req. Reh’g 23).
We find this argument unpersuasive. Kates teaches that “a computer-
controlled treat dispenser is used to reward the dog” (Kates 1 ¶ 8; FF 9).
Kates also teaches that “a remote trainer can use the Internet or telephone
modem to connect to the computer system 103 and remotely train the dog or
provide other interaction with the dog” (Kates 16 ¶ 235; FF 7). As we noted
in the Decision, the person of ordinary skill would have reasonably found it
obvious to incorporate Kates’ remote control food dispenser into the
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complete pet door system in order to permit the remote trainer to remotely
feed or reward the dog with food treats during training.
Appellant contends, regarding claims 6, 12, and 18, that “mere
mention of the Internet, however, does not anticipate the limitation that the
control system may be controlled via a website” (Req. Reh’g 23).
We find this argument unpersuasive. While a mention of the Internet
may not “anticipate” website control, the instant rejection is for obviousness,
not anticipation. The teachings by Kates and McLintock of the Internet and
browser software reasonably render the use of a website for control of the
door lock assembly obvious.
Appellant contends, regarding claims 19 and 20, that “nothing in the
Kates reference discloses that the elements of the base unit 104 are at least
partially disposed in a single unit, such as within a single housing” (Req.
Reh’g 24).
We find this argument unpersuasive because Kates teaches integration
of multiple components into a single unit as discussed in the rejection (FF
10). See In re Larson, 340 F.2d 965, 968 (CCPA 1965) (making elements of
a device integral or separable is considered an obvious design choice and
does not render an invention patentable); see also KSR, 550 U.S. at 417
(“[W]hen a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.”).
Appellant contends that
[T]he decision on appeal makes a number of assertions
regarding the disclosures of the references and the skill of
those in the art. . . . To the extent the decision on appeal
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relies on “common knowledge” in the rejections of the
claims, the appellant traverses these findings and requests
adequate evidence to support them in accordance with 37
CFR § l.104

(Req. Reh’g 25).
We find this argument unpersuasive. Appellant fails to identify a
single specific fact relied upon in the Decision that is not supported by the
evidence of record in Kates or McLintock. Further, this request for a
§ 104(d)(2) affidavit or declaration is clearly inappropriate because the
rejection does not rely on personal knowledge but on the specifically
enumerated teachings of the cited references, Kates and McLintock.
Appellant’s Request for Rehearing does not point to any argument,
any evidence of record, or any legal authority, that was before us in the
Briefs, that we overlooked or misapprehended in reaching the conclusions
set forth in the Decision. We therefore decline to alter our earlier
conclusions.
CONCLUSION
Appellant’s Request for Rehearing is denied.

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).

DENIED

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