Ex Parte NoblittDownload PDFPatent Trial and Appeal BoardApr 21, 201511738257 (P.T.A.B. Apr. 21, 2015) 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. 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). Appeal 2012-007483 Application 11/738,257 2 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”). Appeal 2012-007483 Application 11/738,257 3 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. Appeal 2012-007483 Application 11/738,257 4 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. Appeal 2012-007483 Application 11/738,257 5 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 Appeal 2012-007483 Application 11/738,257 6 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 Appeal 2012-007483 Application 11/738,257 7 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 Appeal 2012-007483 Application 11/738,257 8 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 Appeal 2012-007483 Application 11/738,257 9 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 cdc Copy with citationCopy as parenthetical citation