Ex Parte Schalberger et alDownload PDFPatent Trial and Appeal BoardJun 29, 201612953789 (P.T.A.B. Jun. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/953,789 11/24/2010 278 7590 07/01/2016 MICHAEL J, STRIKER 103 EAST NECK ROAD HUNTINGTON, NY 11743 FIRST NAMED INVENTOR Patrick Schalberger 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 4963 4132 EXAMINER TAYLOR JR, DUANE N ART UNIT PAPER NUMBER 2626 NOTIFICATION DATE DELIVERY MODE 07/01/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): striker@strikerlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PA TRICK SCHALBERGER, MARCUS HERRMANN, and NORBERT FRUEHAUF Appeal2014-007735 Application 12/953,789 1 Technology Center 2600 Before LARRY J. HUME, NORMAN H. BEAMER, and SCOTT E. BAIN, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Non- Final Rejection of claims 1-12. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 According to Appellants, the real party in interest is Universitaet Stuttgart at Keplerstrasse. Br. 3. Appeal2014-007735 Application 12/953,789 STATEMENT OF THE CASE2 The Invention Appellants' disclosed and claimed invention relates to "[a] regulating circuit for driving a display screen pixel having a light emitting diode." Abstract. Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal (emphasis added): 1. A regulating circuit for driving a display screen pixel having a light-emitting diode, comprising: at least one operational amplifier (11) having a first input (12), a second input (13), and an output (16), wherein a measuring signal (Urness) dependent on the flow of current through a driver transistor of the light-emitting diode is applicable[3J to the first input (12) of said at least one operational amplifier; and a network (15, 15') consisting of active and/or passive components and at least one capacitor (C), wherein said network (15, 15') is connected to the second input (13), wherein the network (15, 15') has a plurality of inputs (U1- Un), wherein a digital reference input signal is applicable to the plurality of 2 Our decision relies upon Appellants' Appeal Brief ("Br.," filed Mar. 10, 2014); Examiner's Answer ("Ans.," mailed May 2, 2014); Non- Final Office Action ("Non-Final Act.," mailed Oct. 22, 2013); and the original Specification ("Spec.," filed Nov. 24, 2010). We note Appellants did not file a Reply Brief in response to the factual findings and legal conclusions in the Examiner's Answer. 3 In the event of further prosecution, we invite the Examiner's attention to the recitation of "a measuring signal ... is applicable to the first input" to determine whether the recitation of "is applicable to" meets the definiteness requirements of 35 U.S.C. § 112, second paragraph. 2 Appeal2014-007735 Application 12/953,789 inputs (U 1 - Un), and wherein the output ( 16) of the operational amplifier (11) is connected to a data line of the pixel. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Cavanna us 4,818,896 Apr. 4, 1989 Tobita et al. ("Tobita") US 7 ,006,067 B2 Feb.28, 2006 Cho et al. ("Cho") US 2007 /0075939 Al Apr. 5, 2007 Yoshioka et al. ("Yoshioka '905") US 2007 /0080905 Al Apr. 12, 2007 Li at al. ("Li") US 7,345,530 Bl Mar.18, 2008 Park et al. ("Park") US 7,755,578 B2 July 13, 2010 Yoshioka et al. ("Yoshioka '720") US 7 ,855, 720 B2 Dec. 21, 2010 Rejections on Appeal RI. Claims 1-3, 6, 8, and 10-12 stand rejected under 35 U.S.C. § 103 (a) as being obvious over the combination of Park, Yoshioka '720, and Cho. Ans. 2.4 R2. Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being obvious over the combination of Park, Yoshioka '905, Cho, and Cavanna. Ans. 8. R3. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being obvious over the combination of Park, Yoshioka '905, Cho, and Li. Ans. 10. 4 We note the Examiner incorrectly includes claim 9 in the explicit statement of Rejection RI, but actually addresses this claim in Rejection R4. Ans. 2, 11. 3 Appeal2014-007735 Application 12/953,789 R4. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being obvious over the combination of Park, Yoshioka '905, Cho, and Tobita. Ans. 11. CLAIM GROUPING Based on Appellants' arguments (Br. 9-18), we decide the appeal of obviousness Rejection RI of claims 1-3, 6, 8, and 10-12 on the basis of representative claim 1. Remaining claims 4, 5, 7, and 9 in rejections R2 through R4, not argued separately, stand or fall with independent claim 1 from which they depend.5 ISSUE Appellants argue (Br. 9-15) the Examiner's rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the combination of Park, Yoshioka; and Cho is in error. These contentions present us with the following issues: (a) Did the Examiner err in finding the cited prior art combination teaches or suggests all the limitations of the regulating circuit recited in claim 1? (b) Would a person with skill in the art be motivated to modify Park by the teachings of either Yoshioka or Cho as suggested by the Examiner to render claim 1 obvious under§ 103? 5 "Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal2014-007735 Application 12/953,789 ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. We do not consider arguments that Appellants could have made but chose not to make in the Briefs, and we deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claims 1-12, and we incorporate herein and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. However, we highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Issue (a)-All Limitations Taught or Suggested Appellants first contend, "Park's measuring signal (FL 1) that is dependent on the flow of current through the drive transistor of the LED is not applied to the first (non-inverting) input of Park's op amp 126-d within Park's first data compensation 126-1, as required by claim 1." Br. 11. Appellants next argue: In Park, an output of first switching unit 126-a is connected to the non-inverting (FIRST) input of op amp 126-d and an output of second switching unit 126-b is connected to the inverting (SECOND) input of op amp 126-d. Nowhere does Park assert that the FLl is applied to the non-inverting input of op amp 126-d, nor even first switching circuit 126-a because Park operates under different principles. So modifying Park irrespective of the teachings of Yoshioka and/or Cho would not realize the invention as claimed (as first mentioned above). 5 Appeal2014-007735 Application 12/953,789 Br. 13. We first point out, nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F .2d 1091, 1097 (Fed. Cir. 1986). We specifically note Appellants' challenge to the references individually is not convincing of error in the Examiner's position because all of the features of the secondary reference need not be bodily incorporated into the primary reference, but consideration should be given to what the combined teachings, knowledge of one of ordinary skill in the art, and the nature of the problem to be solved as a whole would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Furthermore, the artisan is not compelled to blindly follow the teaching of one prior art reference over the other without the exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881; 889 (Fed. Cir. 1984). As a matter of claim construction, we give the claim its broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). "In the patentability context, claims are to be given their broadest reasonable interpretations .... [L ]imitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). The Examiner finds, and we agree, Appellants are arguing limitations not present in the claim. Ans. 13. Specifically, "[i]f the applicant's intent was to claim that the feedback component is connected to the non-inverting component then the office urges the applicant to explicitly state that in the claim." Id. We also reiterate the Examiner's finding that, under PTO 6 Appeal2014-007735 Application 121953,789 practice, the use of reference numerals (apparently relied upon by Appellants as the claimed "first input (12)") in the claims is considered as having no effect on the scope of the claims. Id. (citing MPEP § 608.0l(m)). Therefore, we agree with the Examiner's finding that the combination of Park, Yoshioka, and Cho teaches or at least suggests all the limitations of claim 1. Issue (b)-Motivation to Combine With respect to the purported lack of motivation to combine, Appellants contend: Yoshioka fails to overcome the shortcomings of Park and show a measuring signal (Urness) dependent on the flow of current through the driver [transistor] of an OLED at the non-inverting (FIRST) input, so even though Yoshioka teaches negative feedback (conditioned on switches SW2, SW3) at the inverting (SECOND) op amp input, neither Yoshioka nor Parks teach or suggest the inventive circuit of its operation. Br. 13-14. From this assertion, Appellants conclude it would not have been obvious to modify Park as purportedly taught by Yoshioka "because doing so is not feedback from the OLED," and "[i]t does not make sense, therefore, to REPLACE Park's first switching circuit 126-a with Yoshioka's string type DIA converter, as it is absolutely unnecessary in view of Park's DIA converter providing input thereto (Fig. 4)." Ans. 14. We first note, claim 1 does not explicitly recite "feedback" of OLED current to the operational amplifier. In addition, the Examiner makes other findings related to the motivation to combine the references, and we adopt these factual findings and legal conclusions herein as our own. Ans. 13-14. 7 Appeal2014-007735 Application 12/953,789 Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the combined teachings and suggestions of the cited prior art combination to teach or suggest the disputed limitation of claim 1, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of independent claim 1, and grouped claims 2-3, 6, 8, and 10-12 which fall therewith. See Claim Grouping, supra. § 103(a) Rejections R2-R4 of Claims 4, 5, 7, and 9 In view of the lack of any substantive or separate arguments directed to the obviousness Rejections R2-R4 of claims 4, 5, 7, and 9 under§ 103 (see Br. 16-18), we sustain the Examiner's rejection of these claims. We deem arguments not made waived. 6 CONCLUSION The Examiner did not err with respect to obviousness Rejections RI through R4 of claims 1-12 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. DECISION We affirm the Examiner's decision rejecting claims 1-12. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 6 Appellants generally argue these claims are patentable for the same reasons as set forth with respect to claim 1. Br. 16-18. 8 Copy with citationCopy as parenthetical citation