Ex Parte SmithDownload PDFPatent Trial and Appeal BoardMar 23, 201714097434 (P.T.A.B. Mar. 23, 2017) Copy Citation 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. 2 Appeal 2016-005361 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? 3 Appeal 2016-005361 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.” 4 Appeal 2016-005361 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; 5 Appeal 2016-005361 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 6 Appeal 2016-005361 Application 14/097,434 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. 7 Appeal 2016-005361 Application 14/097,434 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. 8 Appeal 2016-005361 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 9 Copy with citationCopy as parenthetical citation