Ex Parte Rawls-Meehan et al

Patent Trial and Appeal Board

Sep 27, 2013

90011777 (P.T.A.B. Sep. 27, 2013)

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.
90/011,777 06/29/2011 MARTIN B. RAWLS-MEEHAN REVE-0002-R23 7646
87084 7590 09/27/2013
GTC Law Group LLP & Affiliates
c/o CPA Global
P.O. Box 52050
Minneapolis, MN 55402
EXAMINER
STORMER, RUSSELL D
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/27/2013 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 Martin B. Rawls-Meehan
____________________

Appeal 2013-009040
Application 90/011,777
Patent 7,805,785 B21
Technology Center 3900
____________________

Before JEFFREY B. ROBERTSON, DANIEL S. SONG, and
BRETT C. MARTIN, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued October 5, 2010 to Martin B. Rawls-Meehan.
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STATEMENT OF THE CASE
Martin B. Rawls-Meehan (Appellant) appeals under 35 U.S.C.
§§ 134(b) and 306 from a Final Rejection of claims 1-20. We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.

THE INVENTION
Appellant’s invention is directed generally to an adjustable bed.
Claims 1, 14, and 20 are independent. Claim 1, reproduced below with
emphasis added, is illustrative of the claimed subject matter:
1. An adjustable bed controller, comprising:
a cellular phone including a wireless module for
communicating with an adjustable bed that includes one or more
articulating portions;
a timer in the cellular phone; and
a touch screen on the cellular phone that presents one or more
controls based upon whether the one or more controls are
available in the adjustable bed facility, wherein the one or more
controls include a graphical representation of a user control that
receives a user input to control the one or more articulating
portions of the adjustable bed, the user control responsive to the
user input with a control signal transmitted to the adjustable bed
at a time determined by the timer using the wireless module.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Luff
Suomela
Branson
Yamauchi
US 6,008,598
US 6,885,362 B2
US 2006/0117482 A1
US 2007/0026889 A1
Dec. 28, 1999
Apr. 26, 2005
Jun. 08, 2006
Feb. 01, 2007
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Lemire
Gillespie
US 7,690,059 B2
US 7,730,401 B2
Apr. 06, 2010
Jun. 01, 2010

Hudak, Programmable Controllers, Process/Industrial Instruments and
Controls Handbook 3.32-3.33 (McMillan ed., 1999) (“McMillan”).

THE REJECTIONS ON APPEAL
The Examiner made the following rejections:
1. Claims 1, 2, 4-6 and 9-12 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Luff, Suomela, and Yamauchi. Ans. 3.
2. Claims 3 and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Luff, Suomela, Yamauchi, and McMillan. Ans. 7,
12.
3. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Luff, Suomela, Yamauchi, and Gillespie. Id.
4. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Luff, Suomela, Yamauchi, and Branson. Ans. 8.
5. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Luff, Suomela, Yamauchi, and Lemire. Ans. 9.
6. Claims 14, 15 and 17-202 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Luff and Suomela. Id., Ans. 12.

2 Claim 20 is rejected as unpatentable over Suomela in view of Luff.
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ANALYSIS
As stated above, all of the rejections rely upon some combination of
Luff and Suomela. Appellant’s arguments focus on one element of each of
independent claims 1, 14, and 20 that is allegedly missing from the
Examiner’s combination of references, namely that Suomela fails to disclose
“a touch screen on the cellular phone that displays one or more controls
based upon whether the one or more controls are available in the adjustable
bed.” See e.g., Claims App'x., App. Br. 26-28.3 Although Appellant
separates the arguments into three sections, one for each of the independent
claims, the arguments are essentially identical and Appellant does not argue
any other limitations of any of the claims other than the limitation quoted
above. See App. Br. 11-25. Accordingly, all of the claims stand or fall
based upon our determination regarding claim 1.
The crux of Appellant’s argument is that Suomela does not teach the
recitation at issue because Suomela discloses “the display of controls
traditionally associated with the type of device in question,” which, in the
case of Suomela, is a VCR. App. Br. 12. Appellant asserts that this is “quite
the opposite” of “available” controls. App. Br. 13. Appellant alleges this is
so because “to the extent that Suomela teaches selecting/including any
control buttons, such an inclusion is drawn from control buttons
traditionally associated with the control of the underlying devices in

3 We note that in the argument relating to claim 1, Appellant misquotes the
recitation at issue and replaces “presents” with “displays.” App. Br. 12. As
seen in the Claims Appendix (App. Br. 26-28), the recitation at issue in each
of independent claims 1, 14, and 20 is identical.
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general.” Id. Further, in response to a point made by the Examiner
regarding the fast forward control in a VCR, Appellant additionally argues
that “Suomela teaches the possibility of including – NOT OMITTING –
such a control.” App. Br. 16.
As we understand Appellant’s arguments taken as a whole, Appellant
is attempting to differentiate presenting all of the exact controls “available”
on the device in question versus generally presenting controls that one would
expect to find on the device (in the case of Suomela, a VCR), i.e., the
“traditional” controls. As the Examiner points out, “Appellant argues as if
the term ‘available’ were synonymous with necessarily present.” Ans. 18.
Along these same lines, the Examiner further notes that Appellant appears
“to interpret the phrase ‘based upon whether’ as if it read ‘whether or not’ so
as to exclude any unavailable controls or those [that] are not present on the
device.” Ans. 19. Appellant’s line of argument is unpersuasive for at least
two reasons.
First, contrary to Appellant’s argument, there is nothing in the claim
language that requires a one-to-one correlation of the controls in the device
versus those presented on the touch screen display. That is, the claim
recitation at issue merely requires “present[ing] one or more controls based
upon whether the one or more controls are available.” As such, claim 1 only
conditions presenting the one or more controls on the touch screen based
upon whether the corresponding control is an “available” control on the
device, which, as the Examiner points out, Suomela teaches. See e.g., Ans.
4-5. As the Examiner further explains, Suomela provides a device that
meets the claim language “because the claim requires one or more controls
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to be displayed based upon whether (or not) they are available in the
device.” Ans. 19. We agree. In particular, as found by the Examiner, in
Suomela, “Power” and “Play” controls are provided based on their
availability in a VCR disclosed therein.
Second, whether the one control is “traditional” versus “available” is
not relevant because Suomela teaches presenting numerous controls that are
both available and traditional by way of inclusion of controls such as
“Power” and “Play” as depicted in Figure 11. See also col. 8, ll. 18-37. By
presenting these two controls, or even one of these two controls, the teaching
of Suomela meets the recitation at issue because the claim only requires
presentation of “one or more controls” and each of the “Power” and “Play”
controls is “available” on the VCR as noted above.
Further to this point, Appellant argues that “[a]ccording to the
teachings of Suomela, as new models of VCRs are released with previously
unavailable functionality, it would not be possible to display controls
directed to such new ‘non-traditional’ functionality.” App. Br. 14. As the
Examiner correctly points out, “[t]his is not persuasive because it is not
germane to the claimed subject matter, and any future functionality of the
controller is not an issue.” Ans. 18. As discussed above, the claim does not
require any new functionality provided on the device to be presented on the
touch screen display in that there is nothing in the claim language that
requires a one-to-one correlation of the controls in the device versus those
presented on the touch screen display. Appellant’s arguments, therefore, are
not commensurate with the scope of claim 1, and thus, for that reason, do not
demonstrate error in the Examiner’s rejection of claim 1. See In re Self,
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671 F.2d 1344, 1348 (CCPA 1982) (limitations not appearing in the claims
cannot be relied upon for patentability).
We further note that during reexamination (and contrary to
Appellant’s arguments now in the Appeal Brief), Appellant admitted that “it
appears that Suomela permits display on a mobile device of controls for a
consumer electronics component based upon the functions available on that
component.” Amendment dated March 20, 2012, p. 12, emphasis added.
This admission alone vitiates Appellant’s present argument that Suomela
does not teach the recitation at issue.
Accordingly, for at least the reasons stated herein, we sustain the
Examiner’s rejection of claim 1. Because Appellant’s arguments are the
same for each of independent claims 14 and 20, we likewise sustain the
Examiner’s rejection of claims 14 and 20. Appellant does not make any
separate argument for any of the dependent claims, and we, therefore, also
sustain the Examiner’s rejection of claims 2-13 and 15-19 for the same
reasons as stated with respect to claim 1.

DECISION
For the above reasons and after having considered all of Appellant’s
arguments, we AFFIRM the Examiner’s decision to reject claims 1-20.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED
peb
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FOR PATENT OWNER:
GTC Law Group LLP & Affiliates
c/o CPA Global
P.O. Box 52050
Minneapolis, MN 55402