Ex parte O'Conner

Board of Patent Appeals and Interferences

Sep 18, 2000

08371995 (B.P.A.I. Sep. 18, 2000)

Application for patent filed January 12, 1995.1
The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JOE S. O'CONNER
_____________
Appeal No. 1997-1317
Application No. 08/371,9951
______________
ON BRIEF
_______________
Before MARTIN, FLEMING, and BLANKENSHIP, Administrative Patent
Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
examiner's final rejection of claims 1-12, all of the pending
claims, under 35 U.S.C. §§ 102 and 103. We affirm.
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Application No. 08/371,995
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A. The invention
The invention is a device for distance measurement
by radar.
B. The claims
Claim 1, the sole independent claim, reads as
follows:
1. Device for distance measurement by radar,
comprising:
(a) a distance measuring device having a frequency
modulated radar -transmitter and -receiver (10) for guiding a
radar beam onto an object to be measured and reflecting said
beam from the object and for mixing of a transmitted frequency
with a received frequency, a beat signal (30) [being]
generated by mixing the transmitted and received frequencies,
(b) [a] frequency modulator connected to the radar
-transmitter and -receiver for periodically varying the
transmitted frequency of the radar signal of the radar
-transmitter and -receiver as a saw tooth function and wherein
the frequency of the beat signal corresponds to a travel time
of the radar beam reflected by the object to indicate a
measure of a distance of the object and
(c) a signal processing circuit connected to the
modulator generating a measured value corresponding to the
distance of the object and,
(d) a phase control circuit (phase locked loop
circuit) (66) connected to the modulator for feeding the beat
signal and for providing an output frequency, the output
frequency forming the measured value of the distance.
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We assume that the text enclosed in parenthesis is
to be treated in the same way as the numerals enclosed in
parentheses, i.e., given no weight. See Manual of Patent
Examining Procedure § 608.01(m) (7th ed., Rev. 1, Feb. 2000)
(reference characters enclosed in parentheses are given no
weight). Appellant does not contend otherwise.
C. The references and grounds of rejection
The references relied on by the examiner are:
Strauch 4,205,314 May 27, 1980
Kipp et al. (Kipp '221) 4,245,221 Jan. 13, 1981
Kipp ('309) 4,429,309 Jan. 31, 1984
Lazarus 4,739,330 Apr. 19, 1988
Hethuin et al. (Hethuin) 5,072,223 Dec. 10, 1991
Claims 1-12 stand rejected under 35 U.S.C. § 102 as
anticipated by Strauch.
Claims 1-6 stand rejected "under 35 U.S.C. § 102(b)
as anticipated by or, in the alternative, under 35 U.S.C. §
103 as obvious over either Kipp et al[.] ('221) or Kipp
('309), alone, or in view of Lazarus ('330) or Hethuin et
al[.] ('223)" (Answer at 4). We note that appellant's brief
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(at 10) incorrectly describes this rejection as based solely
on § 103.
D. The level of skill in the art
The level of skill in the art is represented by the
references. See In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210,
214 (CCPA 1978) ("the PTO usually must evaluate both the scope
and content of the prior art and the level of ordinary skill
solely on the cold words of the literature"); In re GPAC Inc.,
57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995)
(Board did not err in adopting the approach that the level of
skill in the art was best determined by the references of
record).
E. The merits of the § 102 rejection
of claims 1-12 based on Strauch
Anticipation under 35 U.S.C. § 102 requires that
each element of the claim in issue be found, either expressly
described or under principles of inherency, in a single prior
art reference. In re King, 801 F.2d 1324, 1326, 231 USPQ 136,
138 (Fed. Cir. 1986). Thus, appellant's burden on appeal with
respect to a rejection for anticipation is to identify at
least one claimed element that the examiner has failed to show
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is disclosed or inherent in the reference. Compare In re
Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1455 (Fed. Cir.
1998) ("[o]n appeal to the Board, an applicant can overcome a
[35 U.S.C. § 103] rejection by showing insufficient evidence
of prima facie obviousness or by rebutting the prima facie
case with evidence of secondary indicia of nonobviousness."
Comparing claim 1 to Strauch, the examiner (Answer
at 3) reads the claimed "distance measuring device having a
frequency modulated radar -transmitter and -receiver" on
Strauch's duplexer-mixer 3 and directional transmitting-
receiving antenna 4, the claimed "frequency modulator" on
modulator 2, the claimed "signal processing circuit" on time
measuring device 7, and the claimed "phase control circuit" on
frequency discriminator 6.
Appellant argues (Brief at 14) that "Strauch clearly
teaches away from a radar unit by pointing out in column 1
that prior art devices ('the system described in these
specifications') use radar systems (lines 60+) which are
disadvantageous as they have a panoramic field of view."
Appellant is apparently relying on column 1, lines 59-67 of
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Application No. 08/371,995
The American Heritage Dictionary of the English2
Language 1075 (New College ed. 1975).
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Strauch, which state that the prior art system described in
United Kingdom patent specification Nos. 671 461 and 671 464
"is a radar system intended for locating any moving body and
hence has a panoramic field of view, whereas the device
accoring [sic] to the invention has a sectional view which is
directed towards a specific known, moving target" (col. 1,
lines 62-67). While it is true Strauch does not use the term
"radar" to describe his device in this passage or anywhere
else in the specification, we agree with the examiner that his
device clearly employs radar, which, as the examiner notes
(Answer at 5-6), is shorthand for RA(DIO) D(ETECTING) A(ND)
R(ANGING). Strauch's abstract describes the invention as2
"[a] radio range measuring apparatus" and Strauch's claim 1
recites, inter alia,
[a]n apparatus for measuring the range and
the recessional or approach speed of a
target comprising means for generating a
radio signal, means for frequency
modulating said radio signal . . . to
produce a linearly frequency modulated
radio signal, means for transmitting said
frequency modulated radio signal toward
said target, [and] means for receiving the
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radio signal reflected from said target.
[Emphasis added.]
Appellant's next argument relative to claim 1 is
that Strauch further points out in column 2, lines 3-7, that
the system described in the U.K. patent specifications
"generates a sawtooth transmission frequency having a fixed
modulation slope and consequently operates according to a
different principle than the device according to the
invention" (Brief at 14). This argument is not understood,
because appellant has not explained why claim 1 precludes
variation of the slope, as occurs in Strauch's device,
wherein the modulation slope of the transmitted frequency
varies as a function of the range (col. 2, lines 7-9).
Appellant also argues that "Strauch mandates (column
4) divider 10 as a necessity, for that device to work, for
cancelling drifts in the two inputs of the mixer, which leads
away from the simple device proposed in the present invention"
(Brief at 14). This argument fails because appellant has not
explained why claim 1 precludes the presence of such a
divider.
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Appellant's final argument that Strauch "lack[s] all
the claimed crucial elements of the present claims" (Brief at
14) is unconvincing because appellant has not explained which
claimed feature or features do not appear in the reference.
For the foregoing reasons, the § 102 rejection based
on Strauch is affirmed with respect to claim 1.
Turning now to dependent claims 2-12, appellant
describes the limitations of these claims (Brief at 11-13) and
argues that none of these limitations are disclosed in Strauch
(Brief at 13). The examiner dismissed this portion of the
brief as "merely a redacted version of the claims under
appeal" (Answer at 5) and did not address any of these
limitations. In our view, this dismissal was unjustified,
because the final rejection fails to explain how the
limitations of claims 2-12 read on Strauch. Under these
circumstances, appellant's denial that these limitations are
disclosed in Strauch should have been met with an explanation
of how they are satisfied by the reference. The examiner's
failure to provide such an explanation with respect to any of
claims 2-12 means the § 102 rejection of those claims based on
Strauch cannot be sustained.
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F. The merits of the rejections based on
Kipp '221, Kipp '309, Lazarus, and Hethuin
The examiner contends (Answer at 5) that claims 1-6
are anticipated by each of the Kipp patents because the claim
term "sawtooth" reads on the triangular modulating waveforms
shown in these patents (see the sole figure of Kipp '221 and
Figure 2 of Kipp '309). Alternatively, the examiner argues
that the use of sawtooth waveforms to frequency-modulate a
distance-determining radar signal is suggested by each of
Lazarus and Hethuin, which employ the terms "saw tooth" and
"sawtooth" to describe their waveforms (Lazarus, col. 3, line
55; Hethuin, col. 2, lines 41-42). As the examiner correctly
notes (Answer at 7), appellant does not deny that the
triangular waveforms in the Kipp patents accurately can be
described as sawtooth in shape. In any event, the triangular
waveforms disclosed in the Kipp patents fall within the
definition of the term "sawtooth wave" given in the Academic
Press Dictionary of Science and Technology: "Electronics. a
periodic wave whose amplitude varies linearly between two
values." This definition can be found on-line at
http://www.harcourt.com/dictionary/def/9/0/0/1/ 9001900.htm,
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which site can be reached via http:/ptoweb/patents/
siradmin/stic/sticnp.
1. Anticipation
Inasmuch as appellant failed to specifically address
the § 102 rejection based on the Kipp patents, we have
considered appellant's § 103 arguments as also directed to the
§ 102 rejection.
The examiner describes each Kipp patent as
disclosing a device for measuring distance by radar,
including a radar transmitter and receiver, a mixer for
outputting a beat frequency, a triangle wave generator or
modulator, and a signal processing circuit which includes a
phase locked loop circuit (Answer at 4). Considering in
particular Kipp '309, the examiner appears to be reading the
claim limitations on the reference as follows: the claimed
"distance measuring device" on voltage controlled oscillator
14, directional coupler 20, circulator 24, antenna 26, and
mixer 22; the claimed "frequency modulator" on triangle-wave
generator 12; the claimed "signal processing circuit" on the
remaining circuitry, which produces an output frequency FL
representing the range (col. 3, lines 55-58); and the claimed
Appeal No. 1997-1317
Application No. 08/371,995
Appellant does not argue that the claim language3
precludes the phase control circuit from being part of the
signal processing circuit.
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"phase control circuit" on phase lock loop 44, which is part
of the signal processing circuitry. Kipp '221 discloses3
similar circuitry.
Appellant contends (Brief at 17) that the Kipp
references fail to disclose the claimed "distance measuring
device having a frequency modulated radar -transmitter and
-receiver (10) for guiding a radar beam onto an object to be
measured and receiving a reflecting beam from the object and
for mixing of a transmitted frequency with a received
frequency and generating a beat signal (30) by mixing the
transmitted and received frequencies." The only reasons given
are that Kipp '221 "describes a system that requires
predetermined range parameters for comparing with input from a
target of interest" and Kipp '309 "provides a phase locked
loop for receiving a frequency modulated/continuous wave radar
transmitted and received input signal and selective filter for
filtering the undesired frequencies" (Brief at 17). This
reasoning is unpersuasive because it fails to explain why the
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claim language cannot be read onto the elements relied on by
the examiner in Kipp '309
(i.e., elements 14, 20, 22, 24, and 26) or the corresponding
elements in Kipp '221.
Appellant's assertions (Brief at 18) that the Kipp
references also fail to disclose the claimed frequency
modulator, signal processing circuit, and phase control
circuit are
unconvincing because they, too, are unsupported by an
explanation of why these claimed elements do not read on the
elements relied on by the examiner in the Kipp patents.
The rejection of claim 1 as anticipated by either
one of Kipp '221 and Kipp '309 is therefore affirmed.
Appellant also argues (Brief at 18-19) that other
specific limitations are not taught or suggested by any of the
references, including the frequency voltage converter of claim
2, the gate circuit of claim 3, the comparator of claim 4, and
the amplifier of claim 5, on which claim 6 depends. Rather
than explaining how these limitations are satisfied by the
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Kipp patents, the examiner responds by stating that "the
rejection sets forth, and the individual references clearly
spell out, the elements that are claimed" (Answer at 7), which
is inadequate to satisfy the examiner's initial burden of
establishing anticipation with respect to the claimed elements
in question. The § 102 rejection of claims 2-6 based on
either one of the Kipp patents is reversed.
2. Obviousness
Turning now to the question of obviousness, the §
103 rejection of claim 1 based on either one of the Kipp
patents in
view of Lazarus or Hethuin is affirmed pro forma because the
§ 102 rejection of that claim based on the Kipp patents has
been affirmed. Anticipation is the epitome of obviousness.
Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548, 220 USPQ
193, 198 (Fed. Cir. 1983).
As already noted, the examiner has not shown that
the limitations recited in dependent claims 2-5 are disclosed
in either of the Kipp patents. Nor has the examiner explained
how these limitations are suggested by Lazarus and Hethuin,
which the examiner cites solely for their disclosure of using
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sawtooth waveforms to frequency-modulate radar signals (Answer
at 5). Consequently, the § 103 rejection of claims 1-5 and of
claim 6, which depends on claim 5, is reversed.
In summary, each of the rejections is affirmed only
with respect to claim 1.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
JOHN C. MARTIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )
Appeal No. 1997-1317
Application No. 08/371,995
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JCM:psb
Appeal No. 1997-1317
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James C. Wray, Esq.
1493 Chain Bridge Road
Suite 300
McLean, VA 22101