Ex Parte Smith

Patent Trial and Appeal Board

Mar 23, 2017

14097434 (P.T.A.B. Mar. 23, 2017)

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.
14/097,434 12/05/2013 John Douglas Smith 12-DIS-401-PR-US-UTL 1049
63652 7590 03/27/2017
DISNEY ENTERPRISES, INC.
c/o Marsh Fischmann & Breyfogle LLP
8055 East Tufts Avenue
Suite 450
Denver, CO 80237
EXAMINER
SYED, NABIL H
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
03/27/2017 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):
PTOMail @ mfblaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN DOUGLAS SMITH
Appeal 2016-005361
Application 14/097,4341
Technology Center 2600
Before ALLEN R. MacDONALD, MICHAEL M. BARRY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—20, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant’s Brief (“App. Br.”) identifies the real party in interest as Disney
Enterprises, Inc., a wholly owned subsidiary of The Walt Disney Company.
App. Br. 1.
Appeal 2016-005361
Application 14/097,434
CLAIMED SUBJECT MATTER
The claims are directed to an intelligent access control for amusement
park rides to support maintenance and testing. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A method for controlling an amusement or theme
park ride to provide safe access for maintenance and testing,
comprising:
first determining a location of an access control key;
second determining whether the determined location is
within a control space;
when the access control key is determined to be in the
control space as indicated by the second determining, operating
a machine of the park ride in a first operating mode; and
when the access control key is not determined to be in the
control space as indicated by the second determining, operating
the machine of the park ride in a second operating mode differing
from the first operating mode.
App. Br. 15 (Claims App’x).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Farchmin
Self
Nair
Iida
US 2004/0148039 A1
US 2006/0271263 A1
US 2007/0205861 A1
US 2009/0072631 A1
July 29, 2004
Nov. 30, 2006
Sept. 6, 2007
Mar. 19, 2009
REJECTIONS
Claims 1^4 and 6—13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nair and Farchmin. Final Act. 3.
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Application 14/097,434
Claims 5, 14—17, and 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Nair, Farchmin, and Iida. Final Act. 9.
Claims 18 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nair, Farchmin, Iida, and Self. Final Act. 12.
ISSUES
We have reviewed the findings and conclusions of the Examiner in
light of Appellant’s arguments, which raise the following issues for decision:
(1) Has the Examiner erred in finding Nair and Farchmin teach
“when the access control key is determined to be in the control space as
indicated by the second determining, operating a machine of the park ride in
a first operating mode,” as recited in claim 1?
(2) Has the Examiner erred in finding Nair and Farchmin teach
“only when, based on the determining step, the current physical locations are
determined to all be within a predefined control space for the ride, enabling
operation of the ride in a first operating state,” as recited in claim 8?
(3) Has the Examiner erred in finding Iida teaches “wherein the
second determining comprises identifying the RFID tag reader as one in the
control space and identifying the ID as being associated with the access
control key,” as recited in dependent claim 5?
(4) Did Appellant waive its argument that Nair and Farchmin are
improperly combined by failing to raise it prior to the Reply Brief?
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Application 14/097,434
ANALYSIS
First Issue
The Examiner rejects claim 1 as obvious over Nair and Farchmin.
Appellant argues the Examiner erred because neither reference teaches
“when the access control key is determined to be in the control space as
indicated by the second determining, operating a machine of the park ride in
a first operating mode.” App. Br. 11. More specifically, Appellant argues
“the positive determining that a control key is in a safe space or control
space is very different than assuming a key whose location is unknown as in
Nair is in a safe space.” Id. (emphasis omitted). Appellant also argues Nair
is deficient because
The person associated with the access control key may
actually be in the unsafe monitored space or in an undefined,
unmonitored space in the facility due to a failure of a reader or a
failure of a person to wear their tag, but Nair would allow the
facility to operate in the first operating mode in these cases.
Id.
We are not persuaded by Appellant’s arguments. As an initial matter,
Appellant’s assertion that Nair “would allow the facility to operate in the
first operating mode” in the case of a failed reader is unsupported attorney
argument. Appellant points to nothing in Nair demonstrating the accuracy
of this assertion. We also reject Appellant’s arguments because they are not
commensurate with the scope of claim 1. As written, claim 1 has a very
broad scope.2 Appellant’s argument assumes a “control space” is the same
2 In fact, as currently written, claim 1 could be reasonably construed to cover
the use of a physical key device inserted into a control panel on an
amusement park ride, such that when turned to the “on” position, the key is
in a “control space.”
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Application 14/097,434
as a “safe space,” as assumption supported by the neither the language of the
claim nor the description found in Appellant’s Specification. See, e.g., Spec.
123 (distinguishing between “control space” and “safe space”).
In rejecting claim 1, the Examiner finds Nair renders obvious all
limitations in the claim. Final Act. 3^4. The Examiner specifically finds
Nair discloses an RFID component 104 which determines the location of an
RFID tag 102 as being either inside or outside of a protected zone. Ans. 4—
5. According to the Examiner, Nair teaches when the RFID tag 102 (access
control key) is found in protected zone 108 (outside the control space), the
machine is operated in a first operating mode (normally), and when the
RFID tag 102 (access control key) is determined to be in the outside
protected zone 108 (inside the control space), the machine is operated in a
second operating mode (a safe mode). Ans. 4—5 (citing Nair || 31—34). We
agree with these findings, as well as the Examiner’s additional finding that
Farchmin teaches it was known at the time of invention to operate a machine
in different modes based on the location of an access control key. Final Act
4—5, Ans. 5 (citing Farchmin || 86—87, 94—95). Accordingly, we find the
Examiner’s findings in the rejection of claim 1 to be supported by a
preponderance of evidence, and we sustain the rejection.
Second Issue
Appellant also argues the Examiner’s rejection of claim 8 based on
Nair and Farchmin is in error. Claim 8 recites, with disputed limitations
emphasized:
8. A method for controlling personnel access during
operations, comprising:
determining a current physical location of a plurality of
smart tags within a ride;
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Application 14/097,434
only when, based on the determining step, the current
physical locations are determined to all be within a predefined
control space for the ride, enabling operation of the ride in a first
operating state;
when any one of the current physical locations is
unknown, disabling operation of the ride; and
when at least one of the current physical locations is within
a safe space defined for the ride outside of the predefined control
space, enabling operation of the ride in a second operating state,
the second operating state being selected based on an
identification of the safe space.
App. Br. 16 (Claims App’x).
Appellant argues the Examiner errs in finding Farchmin teaches the
“only when” limitation because:
There is no teaching that only two WID’s [wireless information
devices] are present in the entire industrial facility or that we
should care about the location of these other WIDs at all in
operating this particular machine — only that control is affected
when two or more WIDs are present. Hence, in para. [0030],
Farchmin fails to show or suggest determining the location of
“all” the WIDs in the facility and then only operating the
machine in a particular manner when that location coincides with
a predefined control space.
Reply Br. 4. We are not persuaded by Appellant’s argument.
Farchmin describes an embodiment in which a facility includes an
operating machine and at least two associated wireless information devices
(“WIDs”). Farchmin 130. If both (i.e., all) of the WIDs are determined to
be inside the machine zone, machine operations are “regulating machine
operations according to a first regimen.” Id. Farchmin further teaches that
“when only the first WID is located in the machine zone, regulating machine
operation according to a second regimen.” Id. Thus, according to the
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embodiment described by Farchmin at paragraph 30, only if both WIDs are
in the machine zone will the machine operate according to the first regimen.
Appellant contends paragraph 30 of Farchmin does not indicate there
are only two WIDs throughout the facility, and therefore, there is no
teaching that all WIDs are determined to be within the machine zone. This
argument is not persuasive because nothing in the example relied upon by
the Examiner indicates the presence of more than two WIDs. In our view, a
skilled person would have understood from Farchmin’s two WID example
that whatever the number of WIDs present, if the WIDs are all in the
machine zone, a first operating regimen will be applied, and if they are not
all in the machine zone, a second operating regimen will apply.
Accordingly, we are not persuaded the Examiner erred in rejecting claim 8
as obvious over Nair and Farchmin, and we sustain the rejection.3
Third Issue
Appellant separately argues dependent claim 5, which depends from
claim 1 (via intervening claim 4) and recites “wherein the second
determining comprises identifying the RFID tag reader as one in the control
space and identifying the ID as being associated with the access control
key.” App. Br. 13. Appellant argues that in the rejection of claim 5, “the
Examiner failed to provide any specific citations to these references with
regard to the limitations of claim 5 or provide any explanation at all of how
these reference apply to this claim (which depends from claim 1).” App. Br.
13. The Examiner answers with additional explanation and findings for how
3 Appellant relies on the same arguments in support of patentability of
independent claim 14. App. Br. 13—14. We similarly are unpersuaded by
those arguments and sustain the rejection of independent claim 14 for the
same reasons as claim 8.
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Iida, in combination with Nair and Farchmin, renders claim 5 obvious.
Ans. 6—7 (citing Iida H38, 45, Fig. 10; Nair H 31, 44; Farchmin 138).
Appellant provides no rebuttal to these findings in the Reply Brief. As a
result, the Examiner’s findings set forth in the Answer are unchallenged in
this record, and we sustain the rejection of claim 5 as obvious over Nair,
Farchmin, and Iida.
Fourth Issue
In the Reply Brief, Appellant argues for the first time that the
Examiner did not provide a sufficient rationale for combining the teachings
of Nair and Farchmin. Reply Br. 6. “Any bases for asserting error, whether
factual or legal, that are not raised in the principal brief are waived.”
Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (citing
37 C.F.R. § 41.37(c)(l)(vii) (2007)); see also Optivus Tech., Inc. v. Ion
Beam Appl'ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (“[A]n issue not
raised by an appellant in its opening brief... is waived.”) (citations and
quotation marks omitted). Here, Appellant has not asserted it has good
cause for raising this argument for the first time in its Reply Brief. Nor is
good cause self-evident to us, as the Examiner’s statement of rejection and
corresponding explanations in support of the combination are substantively
the same in the Final Action and the Answer. Accordingly, we decline to
consider this argument as untimely made, and we find the Examiner’s
rationale for combining Nair and Farchmin sufficiently articulated and
supported on this record.
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Application 14/097,434
Summary
The remaining claims 2-4, 6, 7, 9—13, and 15—20 are not argued
separately, and, therefore, stand or fall with their respective independent
claims.
Accordingly, we conclude that the Examiner has not erred in rejecting
claims 1—4 and 6—13 under 35 U.S.C. § 103 as being unpatentable over Nair
and Farchmin.
We further conclude that the Examiner has not erred in rejecting
claims 5, 14—17, and 20 under 35 U.S.C. § 103 as being unpatentable over
Nair, Farchmin, and Iida.
Finally, we conclude that the Examiner has not erred in rejecting
claims 18 and 19 under 35 U.S.C. § 103 as being unpatentable over Nair,
Farchmin, Iida, and Self.
DECISION
The Examiner’s rejections of claims 1—20 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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