Ex Parte Noe et al

Patent Trial and Appeal Board

May 22, 2015

12226834 (P.T.A.B. May. 22, 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.
12/226,834 10/29/2008 Robert G. Noe RNOE.0001 1159
46514 7590 05/22/2015
JAMES E. MROSE
4719 RIVER ROAD
BETHESDA, MD 20816-3034
EXAMINER
MA, KAM WAN
ART UNIT PAPER NUMBER
2681
MAIL DATE DELIVERY MODE
05/22/2015 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 ROBERT G. NOE and RICHARD J. TATE

____________________

Appeal 2013-004309
Application 12/226,834
Technology Center 2600
____________________

Before MAHSHID D. SAADAT, JOHN F. HORVATH, and
DANIEL J. GALLIGAN, Administrative Patent Judges.

GALLIGAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s rejection of claims 1–4, 6–8, 10–15, and 18–21. We have
jurisdiction under 35 U.S.C. § 6(b). Claims 5, 9, 16, 17, and 22 have been
canceled. App. Br. 5.
We AFFIRM.2

1 The Appeal Brief identifies Trapco, Ltd. as the real party in interest. App.
Br. 3.
2 Our Decision refers to Appellants’ Appeal Brief filed on November 14,
2012 (“App. Br.”); Appellants’ Reply Brief filed February 5, 2013 (“Reply
Br.”); Examiner’s Answer mailed December 5, 2012 (“Ans.”); and Final
Office Action mailed March 14, 2012 (“Final Act.”).
Appeal 2013-004309
Application 12/226,834

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STATEMENT OF THE CASE
Claims on Appeal
Claims 1, 6, and 10 are independent claims. Claim 1 is reproduced
below:
1. A device for electrocuting pests, comprising
(a) at least one reference electrode and at least one non-
reference electrode, including a plurality of non-reference electrode
regions, each of the non-reference electrode regions being spaced
apart from a portion of the reference electrode by an insulating gap,
the at least one reference electrode and the at least one non-reference
electrode being electrically isolated from one another and arranged to
be both contacted by parts of a body of a pest to be electrocuted,
(b) an infrared detector responsive to infrared radiation emitted
by a pest, said infrared detector providing output signals indicative of
the presence of a pest, and
(c) a circuit responsive to said output signals, said circuit
providing high voltage between the at least one reference electrode
and the at least one non-reference electrode when the output signals
are indicative of the presence of a pest.

The prior art relied upon by the Examiner in rejecting the claims on
appeal:
Roberts et al. US 5,600,143 Feb. 4, 1997
(hereinafter “Roberts”)
Kuhnly et al. US 5,870,022 Feb. 9, 1999
(hereinafter “Kuhnly”)
Rich et al. US 2005/0144830 A1 July 7, 2005
(hereinafter “Rich”)
Finburgh et al. US 2006/0079792 A1 Apr. 13, 2006
(hereinafter “Finburgh”)
Appeal 2013-004309
Application 12/226,834

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Muller et al. WO 2004/030450 A2 Apr. 15, 2004
(hereinafter “Muller”)
Examiner’s Rejections
Claims 1, 2, 4, 6, 9, 10, 15, and 17–20 stand rejected under 35 U.S.C.
§103(a) as being unpatentable over Muller and Kuhnly. Final Act. 4–13.
Claim 3 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Muller, Kuhnly, and Roberts. Final Act. 13–14.
Claims 7, 8, 11–13, 21, and 22 stand rejected under 35 U.S.C. §103(a)
as being unpatentable over Muller, Kuhnly, and Rich. Final Act. 14–17.
Claim 14 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Muller, Kuhnly, and Finburgh. Final Act. 18.

ANALYSIS
The Examiner found Muller’s electrodes are “spaced apart . . . by an
insulating gap” when an insulating gap is between the two components, even
if additional components are between as well. See Ans. 15–16. Appellants
contend the Examiner erred because the phrase “spaced apart . . . by an
insulating gap” is “intrinsically exclusionary” (App. Br. 17) and means “the
gap defines the distance of spacing apart” (Reply Br. 2).
We are not persuaded by Appellants’ arguments because claim 1 does
not recite that the gap defines the distance of spacing apart, nor does it
require “spaced apart . . . by” to be exclusionary. During examination,
claims are to be given their broadest reasonable interpretation. In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We do not
find the Examiner’s interpretation of the disputed claim language to be
unreasonable, and we agree with the Examiner that “[i]nclusion of
Appeal 2013-004309
Application 12/226,834

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unspecified ingredients, such as electrode 5 being spaced apart from a
portion of electrode 7 by electrode 6 in addition to the insulating gap, is not
precluded by the open scope of the claims.” Ans. 15.
Because we are not persuaded of error in the Examiner’s
interpretation of the disputed claim language, we sustain the rejection of
claim 1. We also sustain the rejections of claims 2–4, 6–8, 10–15, and 18–
21, which are not separately argued with sufficient particularity. See App.
Br. 12, 18.
DECISION
We affirm the Examiner’s rejections of claims 1–4, 6–8, 10–15, and
18–21.
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).

AFFIRMED

KRH