Ex Parte Peinetti et al

Board of Patent Appeals and Interferences

May 14, 2012

12137536 (B.P.A.I. May. 14, 2012)

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.
12/137,536 06/11/2008 Donald L. Peinetti 33271.03 7739
22465 7590 05/15/2012
PITTS & LAKE P C
P O BOX 51295
KNOXVILLE, TN 37950-1295
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
05/15/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DONALD L. PEINETTI and
WILLIAM P. MOORE
__________

Appeal 2011-001504
Application 12/137,536
Technology Center 3600
__________

Before TONI R. SCHEINER, ERIC GRIMES, and ERICA A. FRANKLIN,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
of animal control, which the Examiner has rejected as anticipated or
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
STATEMENT OF THE CASE
The Specification discloses “a system for controlling an animal. One
particular embodiment relates to a system for transmitting a low power
signal for use in keeping pets out of specific areas.” (Spec. 1, ¶ 3.)
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Application 12/137,536

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Claims 1-8 are on appeal. Claim 1 is the only independent claim and
reads as follows:
1. A method of controlling an animal, said method comprising the
steps of:
(a) providing a collar receiver assembly to be worn by an animal;
(b) detecting a transmitted signal with a detector indicating said
detector is located within a first zone;
(c) applying a first sequence of correction signals for controlling the
animal;
(d) determining whether the animal has not moved from said first
zone after said step of applying said first sequence of correction signals;
(e) waiting a period of time after initiating application of said first
sequence of correction signals; and
(f) applying a second sequence of correction signals for controlling
the animal different from said first sequence of correction signals when the
animal has not moved from first zone after said period of time.

The Examiner has rejected claims 1 and 3-8 under 35 U.S.C. § 102(b)
based on Lee1 (Answer 3). The Examiner has rejected claim 2 under 35
U.S.C. § 103(a) based on Lee and Price2 (Answer 5). The Examiner finds
that Lee discloses a method that includes all of steps (a) through (f) of claim
1 (Answer 3-4), and that Price would have made obvious the additional
limitation of claim 2 (id. at 5).
Appellants contend that Lee does not anticipate the claims on appeal
because, among other things, it discloses administering a single correction
after a triggering event (Appeal Br. 12-13), not the claimed first and second
sequences of corrections that differ from each other (id. at 13-14).
Appellants argue that “[n]owhere in Lee is there any disclosure of grouping

1 Lee, US 6,637,376 B2, Oct. 28, 2003
2 Price et al., US 4,965,552, Oct. 23, 1990
Appeal 2011-001504
Application 12/137,536

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or sequencing of the corrections” (id. at 16). See also id. at 18 (“A ‘second
correction signal’ is not the same as a ‘second sequence of correction
signals.”).
We agree with Appellants that the Examiner has not shown that Lee
discloses a method meeting all of the limitations of claim 1. “[T]he
examiner bears the initial burden, on review of the prior art or on any other
ground, of presenting a prima facie case of unpatentability. If that burden is
met, the burden of coming forward with evidence or argument shifts to the
applicant.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “A claim is
anticipated only if each and every element as set forth in the claim is found,
either expressly or inherently described, in a single prior art reference.”
Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987).
Here, we agree with Appellants that Lee does not disclose differing
first and second sequences of correction signals, as required by the claims.
Lee describes an apparatus and method for training pets by applying a static
(electric) stimulation, and increasing the intensity of the stimulation if the
animal continues to require correction (Lee, col. 1, ll. 22-27, 50-55). In
Lee’s method, when an event is detected indicating that a response is
necessary, a stimulus occurs to deter the animal from the unwanted behavior
(see id. at col. 4, ll. 42-66).
Lee’s apparatus includes a “timer [that] begins counting the time
period . . . between the end of the previous stimulus S and the next detected
event E. The length [of] time between the previous event and the next
subsequent event determines whether the intensity is increased or remains
constant.” (Id. at col. 5, ll. 39-43.) Specifically,
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when the next subsequent event occurs within a predetermined
period of time relative to the previous event, the reoccurrence
period, the intensity of the stimulus is increased. This occurs
because the rapid repetition of the undesired behavior indicates
that the previous stimulus did not have sufficient intensity to
deter the animal from continuing in the unwanted behavior.
However, when the next subsequent event occurs after the
expiration of the reoccurrence period, the intensity of stimulus
remains at the prior intensity level.
(Id. at col. 5, ll. 43-53.)
That is, in Lee’s method, a (single) stimulus is applied after the animal
exhibits an unwanted behavior, and the apparatus begins a timing function.
If the animal repeats the unwanted behavior during the reoccurrence period,
the next (single) stimulus is applied at a greater intensity, but if the next
repetition of the behavior is after the reoccurrence period, the (single)
stimulus is repeated at the same intensity.
We agree with Appellants that the method described by Lee does not
include the steps of applying a first sequence of correction signals and, if the
animal has not moved from the zone after a period of time, applying a
second, different sequence of correction signals, as recited in steps (c)
through (f) of claim 1. We have considered the specific passages of Lee that
the Examiner cited as disclosing these steps (Answer 3-4), but we do not
agree that those passages describe the claimed steps.
The Examiner relies on Price only for the limitation added to claim 1
by claim 2 (Answer 5), and therefore has not shown that Price would have
made obvious the limitations that are missing from Lee.
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Application 12/137,536

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SUMMARY
We reverse the rejection of claims 1 and 3-8 as anticipated by Lee and
the rejection of claim 2 as obvious based on Lee and Price.

REVERSED

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