Ex parte O'Conner

Board of Patent Appeals and Interferences

Oct 22, 1999

08330335 (B.P.A.I. Oct. 22, 1999)

Application for patent filed February 5, 1993. 1
According to appellant, the application is a continuation of
Application 07/793,023, filed November 15, 1991, now
abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 32
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte JOE S. O'CONNER
________________
Appeal No. 97-0425
Application 08/330,3351
________________
ON BRIEF
________________
Before HAIRSTON, JERRY SMITH and RUGGIERO, Administrative
Patent Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on the appeal under 35 U.S.C. § 134
from the examiner’s final rejection of claims 1-33. An
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amendment after final rejection was filed on August 28, 1995
and was entered by the examiner. This amendment cancelled
claims 31-33. Therefore, this appeal is directed to the
rejection of claims 1-30 which constitute all the claims
remaining in the application.
The disclosed invention pertains to a method and
apparatus for evaluating signals of a Doppler signal
transceiver in order to monitor the relative positions and
velocities of two vehicles which are travelling one behind the
other.
Representative claim 17 is reproduced as follows:
17. An apparatus for producing velocity signals in
accordance with the relative velocity between a first and
second unit, while both are moving relative to a surface,
comprising a Doppler module which is attached to the first
unit and targets the second unit, the Doppler module having
means for transmitting an unmodulated continuous wave signal,
for receiving the continuous wave signal returning from the
targeted second unit with Doppler shift and for providing
phase related Doppler signals from the Doppler module, a
signal processor for receiving Doppler signals from the
Doppler module, wherein the signal processor contains Fourier
transform means for producing and storing the frequency
spectrum of the Doppler signals without intermediate frequency
processing, and means for supplying a signal dependent upon
the velocity of the first unit moving relative to the surface,
and wherein the signal processor further contains direction-
sensitive means for producing output signals indicative of
whether the targeted second unit approaches or moves away from
the first unit.
Appeal No. 97-0425
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The examiner relies on the following references:
Merlo et al. (Merlo) 3,176,294 Mar. 30, 1965
Flannery et al. (Flannery) 3,778,826 Dec. 11, 1973
Gabbitas 4,200,870 Apr. 29, 1980
Fritzlen et al. (Fritzlen) 4,231,039 Oct. 28, 1980
Raudonat et al. (Raudonat), “Multiple-Target FM-CW Radar For
Unambiguous Determination Of Distance and Speed”
[translation], Nachrichtentech. Z., Vol. 30, No. 3, March
1977, pages 255-260.
The following rejections have been made:
1. Claims 17-25 stand rejected under 35 U.S.C. § 103
as being unpatentable over Flannery in view of Raudonat and
Merlo.
2. Claims 11-14 and 26-30 stand rejected under 35
U.S.C. § 103 as being unpatentable over Flannery in view of
Merlo.
3. Claims 15 and 16 stand rejected under 35 U.S.C. §
103 as being unpatentable over Flannery in view of Merlo and
further in view of Fritzlen.
4. Claims 1-3 and 6-9 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Gabbitas in view of Flannery
and Merlo.
5. Claims 4 and 5 stand rejected under 35 U.S.C. § 103
as being unpatentable over Gabbitas in view of Flannery and
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Merlo and further in view of Raudonat.
6. Claim 10 stands rejected under 35 U.S.C. § 103 as
being unpatentable over Gabbitas in view of Flannery and Merlo
and further in view of Fritzlen.
Rather than repeat the arguments of appellant or the
examiner, we make reference to the briefs and the answer for
the respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the
evidence of obviousness relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken
into consideration, in reaching our decision, the appellant’s
arguments set forth in the briefs along with the examiner’s
rationale in support of the rejections and arguments in
rebuttal set forth in the examiner’s answer.
It is our view, after consideration of the record
before us, that the evidence relied upon and the level of
skill in the particular art would have suggested to one of
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ordinary skill in the art the obviousness of the invention as
set forth in claims 1-30. Accordingly, we affirm.
Appellant has nominally indicated that the claims on
appeal do not stand or fall together [brief, page 4].
However, appellant has made no separate arguments with respect
to the claims within each separate rejection. The extent of
appellant’s arguments is to simply repeat what is recited in
each of the claims. Simply pointing out what a claim requires
with no attempt to point out how the claims patentably
distinguish over
the prior art does not amount to a separate argument for
patentability. In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d
1525, 1528 (Fed. Cir. 1987). Since appellant has failed to
appropriately argue the separate patentability of the claims
within each rejection, all contested claims within each
rejection will stand or fall together. See In re King, 801
F.2d 1324, 1325, 231 USPQ 136, 137 (Fed. Cir. 1986); In re
Sernaker, 702 F.2d 989, 991, 217 USPQ 1, 3 (Fed. Cir. 1983).
Accordingly, we will consider the rejection against a single
claim from each ground of rejection as representative of all
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the claims on appeal subject to that rejection.
As a general proposition in an appeal involving a
rejection under 35 U.S.C. § 103, an examiner is under a burden
to make out a prima facie case of obviousness. If that burden
is met, the burden of going forward then shifts to the
applicant to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis
of the evidence as a whole and the relative persuasiveness of
the arguments. See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Hedges, 783 F.2d
1038, 1039, 228 USPQ 685, 686 (Fed.
Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052,
189 USPQ 143, 147 (CCPA 1976). Only those arguments actually
made by appellant have been considered in this decision.
Arguments which appellant could have made but chose not to
make in the brief have not been considered [see 37 CFR §
1.192(a)].
1. The rejection of claims 17-25 as
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unpatentable over Flannery in view of
Raudonat and Merlo.

The examiner cites Flannery as teaching a Doppler
radar system that transmits an unmodulated continuous wave
signal and provides dual channel phase related Doppler
signals. Flannery does not suggest that Fourier transform
means are used in the processing of the signals, and the
examiner cites Raudonat to teach the obviousness of processing
Doppler radar signals using the Fourier transform. Merlo
teaches the desirability of using a vehicle’s own velocity to
control a filter which determines the range of Doppler
frequencies which will be considered. The examiner observes
that it would have been obvious to the artisan to replace the
Flannery low pass filters with programmable filters as taught
by Merlo and to use Fourier transform processing as taught by
Raudonat [Final Rejection, pages 2-3].
In our view, the examiner’s analysis is sufficiently
reasonable that we find that the examiner has satisfied the
burden of presenting a prima facie case of obviousness. That
is, the examiner’s analysis, if left unrebutted, would be
sufficient to support a rejection under 35 U.S.C. § 103. The
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burden is, therefore, upon appellant to come forward with
evidence or arguments which persuasively rebut the examiner’s
prima facie case of obviousness. Appellant has presented
several substantive arguments in response to the examiner’s
rejection. Therefore, we consider obviousness based upon the
totality of the evidence and the relative persuasiveness of
the arguments.
Appellant’s arguments with respect to this rejection
are contained within pages 11-15 of the brief. We will
consider these arguments with respect to representative,
independent claim 17. As we noted above, appellant’s
restatement of the claim language of each of the claims
subject to this rejection is not sufficient to have the claims
considered separately for patentability.
Appellant argues that Flannery does not remove ground
speed from his system. We note that Claim 17 does not recite
that ground speed is removed from the system. Claim 17 only
recites that the velocity of the first vehicle is supplied.
We also note that Merlo, not Flannery, was cited as the
teaching of using a vehicle’s ground speed to adjust the
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frequency range of a Doppler filter. Thus, appellant’s
argument is not commensurate in scope with the claimed
invention and individually challenges references which have
been used in combination. Appellant also argues that Flannery
operates under a flawed principle, but we are unable to find
the relevance of this argument to the invention as broadly
recited in claim 17.
Appellant argues that Flannery does not include the
Fourier transform or direction sensitive means [brief, page
14]. With respect to the former argument, Raudonat was cited
to teach the Fourier transform. With respect to the latter
argument, we disagree with appellant. Flannery clearly
determines whether the vehicles are approaching each other or
are moving away from each other [column 4, lines 47-52].
Therefore, these arguments are not persuasive of error in the
examiner’s rejection.
Appellant argues that Merlo depends on single channel
operation while Flannery depends on two-channel operation. It
is appellant’s position that there would be no motivation to
combine the Merlo single channel device with either the
Flannery or Raudonat two-channel devices. We do not agree.
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Neither the examiner nor we propose to substitute Merlo’s
single channel device for Flannery’s two-channel device.
Rather, Merlo suggests that a Doppler filter should be
adjusted as a function of the velocity of the vehicle upon
which it is attached. This teaching is relevant regardless of
whether a single channel or two-channel device is used to
calculate Doppler frequencies.
In summary, we find each of appellant’s arguments set
forth in the brief to be more limited than the claimed
invention or to point out deficiencies in a reference which
were recognized by the examiner and overcome with the citation
of additional references. Accordingly, none of appellant’s
arguments, taken singly or in combination, is persuasive that
the rejection as formulated by the examiner is in error.
Therefore, we sustain the rejection of claims 17-25.
2. The rejection of claims 11-14 and
26-30 as unpatentable over Flannery in
view of Merlo.
Representative, independent claim 11 is similar to
claim 17 except that the signal processor of claim 17 is
specifically recited as containing parallel programmable
filtering means for each channel which are controlled by the
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velocity of the vehicle having the Doppler equipment. The
examiner cites Flannery for the same reasons discussed above,
and the examiner observes that Merlo teaches controlling a
Doppler filter based upon a vehicle’s own velocity [Final
Rejection, pages 3-4]. The examiner’s rationale for combining
the teachings of Flannery with those of Merlo is sufficient to
establish a prima facie case of obviousness.
Appellant argues that the filters in Flannery are
fixed and not programmable as claimed. The examiner has
recognized this fact and has proposed modifying the Flannery
filters to be programmable as suggested by Merlo. Appellant
does not present any arguments which point to the
nonobviousness of this modification. Instead, appellant’s
arguments attack deficiencies in the references individually
even though the deficiencies have been acknowledged by the
examiner and have been overcome by the application of
additional teachings. Appellant’s arguments related to
features of cost, size and differences in operation are not
relevant to the invention as broadly recited in claim 11.
Since appellant has presented no persuasive arguments of error
in the examiner’s rejection, we sustain the rejection of
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claims 11-14 and 26-30 as proposed by the examiner.
3. The rejection of claims 15 and 16 as
unpatentable over Flannery in view of Merlo
and further in view of Fritzlen.
Representative claim 15 depends from claim 11 and
recites that there are a plurality of frequency comparison
means made up of phase locked loops. The examiner cites
Flannery and Merlo for the same reasons discussed above, and
the examiner observes that Fritzlen teaches monitoring a
plurality of Doppler frequencies using phase locked loops
[Final Rejection, page 4]. The examiner’s rationale for
combining the teachings of Flannery and Merlo with those of
Fritzlen is sufficient to establish a prima facie case of
obviousness.
Appellant argues that Fritzlen does not suggest using
a phase locked loop for controlling a programmable filter
[brief, pages 21-22]. Fritzlen is cited, however, only to
show that Doppler velocities can be computed using phase
locked loops. It is Merlo who teaches that the programmable
filters should be controlled by the velocity of the vehicle.
Thus, the modification proposed by the examiner is to compute
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Merlo’s Doppler velocities using phase locked loops as
suggested by Fritzlen. Appellant’s argument does not address
the examiner’s rationale for combination at all. Therefore,
we sustain the rejection of claims 15 and 16.
4. The rejection of claims 1-3 and 6-9
as unpatentable over Gabbitas in view
of Flannery and Merlo.
Representative, independent claim 1 is similar to
claim 11 and additionally recites details of a dual sensing
channel Doppler module. The examiner cites Flannery and Merlo
for the same reasons discussed above, and the examiner
observes that Gabbitas teaches a Doppler module of the type
claimed [Final Rejection, page 5]. The examiner’s rationale
for combining the teachings of Flannery and Merlo with those
of Gabbitas is sufficient to establish a prima facie case of
obviousness.
Appellant’s arguments are directed to the same alleged
deficiencies in Flannery and Merlo which have been discussed
above. Appellant’s arguments again do not address the
examiner’s rationale for making the proposed combination.
Therefore, we sustain the rejection of claims 1-3 and 6-9.
5. The rejection of claims 4 and 5 as
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unpatentable over Gabbitas in view of
Flannery and Merlo and further in view
of Raudonat.
Claim 4 depends from claim 1 and recites that the
signal processor contains Fourier transform means and
frequency discrimination means. The examiner adds Raudonat to
the combination just discussed because Raudonat teaches the
use of the Fourier transform in processing Doppler signals.
The examiner’s rationale for adding the teachings of Raudonat
to the
teachings of Flannery, Merlo and Gabbitas is sufficient to
establish a prima facie case of obviousness.
Appellant makes the same arguments discussed above and
argues that the modification of the applied references would
destroy the intended functions of each of the references
[brief, page 26]. We do not agree with this argument of
appellant. The rejection does not propose that the teachings
of the references should be poured into a pot and the contents
stirred. Rather, the rejection looks at Flannery as the
principle reference teaching a dual channel Doppler frequency
detector. Gabbitas is cited only to teach the obviousness of
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using a Schottky barrier mixer cavity for the Doppler detector
in Flannery. Raudonat is cited only to teach the obviousness
of performing the Flannery processing using Fourier
transforms. Finally, Merlo is cited only to teach the
obviousness of modifying the Flannery fixed low pass filters
to programmable filters which are controlled by the vehicle’s
own velocity. None of these modifications destroys the basic
nature of the Flannery device which is to determine the
relative velocity between two vehicles. Since no other
arguments are presented by appellant, we sustain the rejection
of claims 4 and 5.
6. The rejection of claim 10 as
unpatentable over Gabbitas in view of
Flannery and Merlo and further in view
of Fritzlen.

Claim 10 depends from claim 9 and adds the recitation
that the frequency comparison means are phase locked loops.
The examiner cites Fritzlen to teach this feature and
indicates why the invention of claim 10 would have been
obvious within the meaning of 35 U.S.C. § 103 [Final
Rejection, pages 6-7].
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Appellant makes the same arguments considered above.
Appellant also asserts that “the prior art references lead
away from the simplicity of the present invention and from the
low cost, low part count and high reliability which goes with
the low parts and the widely available primary components”
[brief, pages 29-30]. None of these considerations is
relevant to the invention as recited in the appealed claims.
The claim language does not preclude large and complex
devices. Therefore, we sustain the rejection of claim 10.
In summary, we have sustained each of the examiner’s
rejections of the claims under 35 U.S.C. § 103. Accordingly,
the decision of the examiner rejecting claims 1-30 is
affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
Appeal No. 97-0425
Application 08/330,335
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KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
JERRY SMITH ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
Appeal No. 97-0425
Application 08/330,335
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James C. Wray
1493 Chain Bridge Road
Suite 300
Mclean, VA 22101
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