Ex Parte Tuttle

Board of Patent Appeals and Interferences

Aug 19, 2003

08943889 (B.P.A.I. Aug. 19, 2003)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
Paper No. 29
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte MARK E. TUTTLE

Appeal No. 2002-2308
Application No. 08/943,889

ON BRIEF

Before THOMAS, KRASS, and BARRETT, Administrative Patent Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 6, 8, 9 and 16-19.
The invention is directed to wireless identification
devices. In particular, a push-on/push-off switch is used in a
radio frequency identification device in order to conserve
battery power, since the user of the device has control over when
the device responds to an interrogator. The device may include a
Appeal No. 2002-2308
Application No. 08/943,889
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wireless receiver, with the switch controlling the receiver so
that pushing the switch toggles the receiver between being
enabled and disabled.
Representative independent claim 6 is reproduced as follows:
6. A radio frequency identification device comprising:
a housing;
a battery supported in the housing and having first and
second terminals of opposite polarity;
transmitter circuitry in the housing configured to provide a
modulated backscatter signal by reflecting or not reflecting a
carrier signal provided by an interrogator to communicate with
the interrogator, to identify the device in response to an
interrogation signal by the interrogator;
receiver circuitry in the housing, coupled to the
transmitter circuitry, and configured to receive the
interrogation signal;
a push-on/push-off switch supported by the housing and
controlling whether the circuitry provides the signal to identify
the device by controlling whether or not the receiver is coupled
to the battery, the switch including a first conductor formed of
printed thick film and having a first end coupled to the first
terminal of the battery and having a second end, a second
conductor formed of printed thick film and having a first end
coupled to the receiver and having a second end spaced apart from
the second end of the first conductor, an insulating ring having
a periphery circumscribing the second end of the first conductor
and the second end of the second conductor, and a diaphragm
having a periphery corresponding to the periphery of the
insulating ring and having a conductive face facing the second
end of the first conductor and the second end of the second
conductor, the conductive face of the diaphragm being biased, by
the insulating ring, away from coupling the first and second
Appeal No. 2002-2308
Application No. 08/943,889
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conductors; and
a latch coupled between the receiver and the switch such
that each actuation of the switch toggles the receiver between
being coupled to the battery and being uncoupled from the
battery.
The examiner relies on the following references:
Walton 4,384,288 May 17, 1983
Kawauchi 4,501,938 Feb. 26, 1985
Froschermeier 5,525,992 Jun. 11, 1996
Brady et al. (Brady) 5,972,156 Oct. 26, 1999
(filed Aug. 21, 1997)

Claims 6, 8, 9 and 16-19 stand rejected under 35 U.S.C.
§ 103. As evidence of obviousness, the examiner cites Walton,
Froschermeier and Kawauchi with regard to claims 6, 8, 9 and 16,
adding Brady with regard to claims 17-19.
Claims 6, 8, 9 and 16-19 stand further rejected under
obviousness-type double patenting over either claims 1-17 of U.S.
Patent No. 6,130,602 in view of Walton or claims 1-49 of U.S.
Patent No. 5,963,177 in view of Walton.
Reference is made to the brief and answer for the respective
positions of appellant and the examiner.
OPINION
Turning first to the rejection of claims 6, 8, 9 and 16
under 35 U.S.C. § 103, the examiner points to Walton for a
Appeal No. 2002-2308
Application No. 08/943,889
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wireless identification device, having a housing 10, a battery
14, and circuitry 12, with a switch 15. Switch 15 controls
whether or not the circuit is connected to the battery, enabling
the device to operate. Since switch 15 enables receiver circuit
81, this allows for user control of when identification is sent.
The examiner employs Froschermeier to show an RF identifier
which utilizes a modulated backscatter system for saving battery
strength and concludes that it would have been obvious to have
utilized the user control switch of Walton in Froschermeier’s
backscatter identifier in order to provide user control over the
battery saving operation of the device. Appellant does not argue
to the contrary.
The examiner employs Kawauchi to show a switch comprising a
button having two thick film conductors, 2A and 2B, an insulative
ring, 7, and a conductive-faced diaphragm, 9, concluding that it
would have been obvious to have used the specific switch of
Kawauchi in the wireless identification device of Walton, to make
an effectively operated switch. Again, appellant does not
dispute this.
Appellant argues only the “push-on/push-off” nature of the
claimed switch, urging that since Walton’s switch is
automatically reset after a predetermined interval, the user
cannot push OFF the switch in Walton. As support for this
Appeal No. 2002-2308
Application No. 08/943,889
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position, appellant points to column 5, lines 1 et seq.,
describing a process whereby “the user initiates the
identification cycle by depressing the switch 15 on the
identifier 9.”
We will not sustain the rejection of claims 6, 8, 9 and 16
under 35 U.S.C. § 103. It is our view that Walton does teach a
“push-on/push-off” switch, as broadly claimed, in the sense that
Walton’s switch 15 is clearly described as a “pushbutton” at
column 2, lines 1-2. It is further described thereat as a
pushbutton switch “for energizing the circuit of the identifier.”
Thus, it appears to us, that Walton does describe a pushbutton
switch which controls whether the circuitry provides the signal
to identify the device by controlling whether or not the receiver
is coupled to the battery, as claimed. That is, before
initialization by the user, i.e., prior to the user pushing the
switch 15, the receiver is not connected to the battery. Yet,
after initialization by the user, the receiver is connected to
the battery. Accordingly, the claimed language of a
“switch...controlling whether the circuitry provides the signal
to identify the device by controlling whether or not the receiver
is coupled to the battery...” is met by Walton.
Appeal No. 2002-2308
Application No. 08/943,889
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While appellant stresses the “push-off” language of the
claim, and it appears to us that the broad language, “push-
on/push-off switch,” per se, is merely a “pushbutton switch,”
there is additional language in instant claims 6 and 16 which
requires that the switch toggle between being coupled to the
battery and being uncoupled from the battery or that the switch
toggle between the receiver being enabled or disabled. There is
absolutely no suggestion in Walton that switch 15 may operate in
such a manner and the examiner has not suggested that it would.
The examiner merely argues that the term “push-on/push-off” is an
alternative term and that the mere teaching, by Walton, of a
pushbutton switch which has a “push-on” feature is enough to meet
the claim language. However, the examiner does not take into
account the “toggling” language of the claims. Accordingly, we
will not sustain the rejection of claims 6, 8, 9 and 16 under
35 U.S.C. § 103, since neither Froschmeier nor Kawauchi provide
for the deficiency of Walton.
Further, we will not sustain the rejection of claims 17-19
under 35 U.S.C. § 103 because claims 17-19 depend from claim 16
and the additional reference of Brady also does not provide for
the deficiency of Walton.
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Application No. 08/943,889
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Hence, we have not sustained either of the rejections under
35 U.S.C. § 103.
We turn our attention now to the rejections based on
obviousness-type double patenting.
We also will not sustain the rejections based on
obviousness-type double patenting because each of these
rejections is based on Walton’s alleged teaching of the claimed
“push-on/push-off switch” which, as discussed supra, Walton fails
to show. Moreover, we note that the examiner’s rejections are
not entirely clear because all of claims 6, 8, 9 and 16-19 stand
rejected, alternatively, over all of the claims of U.S. Patent
No. 6,130,602, or all of the claims of U.S. Patent No. 5,963,177,
each in view of Walton. Thus, it is not clear exactly which of
the instant claims are being rejected over which of the patented
claims. In making a rejection based on obviousness-type double
patenting, the examiner is required to specifically point out
exactly which claim or claims of the reference patent is/are
being relied upon in rejecting, specifically, which claim(s) of
the instant application. The examiner has failed to do that here
and, so, no prima facie case of obviousness-type double patenting
has been shown.
Appeal No. 2002-2308
Application No. 08/943,889
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We have not sustained the rejection of claims 6, 8, 9 and
16-19 under either 35 U.S.C. § 103 or under obviousness-type
double patenting.
Accordingly, the examiner’s decision is reversed.
REVERSED
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
)
ERROL A. KRASS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
LEE E. BARRETT )
Administrative Patent Judge )
EK/RWK
Appeal No. 2002-2308
Application No. 08/943,889
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