13680783 (P.T.A.B. Mar. 31, 2016)

Ex Parte Van Herpen

Patent Trial and Appeal BoardMar 31, 2016

13680783 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/680,783 11/19/2012 24737 7590 04/04/2016 FIRST NAMED INVENTOR Maarten Marinus Johannes Wilhelmus VAN HE RP EN PHILIPS INTELLECTUAL PROPERTY & STANDARDS P.O. BOX 3001 BRIARCLIFF MANOR, NY 10510 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. 2007P02004US01 8828 EXAMINER LEE, JONG SUK ART UNIT PAPER NUMBER 2875 NOTIFICATION DATE DELIVERY MODE 04/04/2016 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): debbie.henn@philips.com marianne.fox@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte MAARTEN MARINUS JOHANNES WILHELMUS VAN HERPEN1 Appeal2014-006876 Application 13/680,783 Technology Center 2800 Before BRADLEY R. GARRIS, BEYERL YA. FRANKLIN, and N. WHITNEY WILSON, Administrative Patent Judges. FRANKTJN; Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is Koninklijke Philips N.V. Appeal Br. 2. Appeal2014-006876 Application 13/680,783 Appellant seeks our review under 35 U.S.C. Â§ 134 of the Examiner's decision rejecting claims 1-29. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). STATEMENT OF THE CASE Claim 1 is illustrative of Appellant's subject matter on appeal and is set forth below (with text in bold for emphasis): 1. A light emitting tufted carpet comprising: a primary backing layer; a plurality of LEDs integrated within the light emitting carpet and arranged to generate carpet light; and a first electric conductor and a second electric conductor arranged to provide power from a power source to the LEDs, with one or more of the first electric conductor, and the second electric conductor at least partially integrated within the primary backing layer. The Examiner relies on the following prior art references as evidence of unpatentability: Shillito et al. (hereafter "Shillito") Harrison Anderson, Jr. et al. (hereafter "Anderson") us 4, 728,300 us 4,737,764 US 6,773,129 B2 2 Mar. 1, 1988 Apr. 12, 1988 Aug. 10, 2004 Appeal2014-006876 Application 13/680,783 THE REJECTIONS 1. Claims 1-29 are rejected on the ground of nonstatutory obviousness- type double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 8,388,184. 2. Claims 1, 6, 7, 14, 17, 19, 20, and 23-26 are rejected under 35 U.S.C. Â§ 102(b) as being anticipated by Harrison. 3. Claims 2-5, 15, 16, 18, and 20 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Harrison in view of Shillito. 4. Claims 8-12 and 15 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Harrison in view of Shillito, as applied to claim 1 above, and further in view of the Appellants' admitted prior art. 5. Claims 21 and 22 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Harrison in view of Anderson. ANALYSIS Rejection 1 On page 8 of the Appeal Brief, Appellant indicates that the obviousness-type double patenting rejection is not addressed because a terminal disclaimer may be filed if warranted. As such, this rejection is summarily affirmed. 3 Appeal2014-006876 Application 13/680,783 Rejection 2 The issue is whether Harrison anticipates the claimed subject matter, in particular, with regard to the phrase "with one or more of the first electric conductor, and the second electric conductor at least partially integrated within the primary backing layer" as recited in claim 1 (the other independent claims 17, 18, and 28 similarly recite this limitation). There is no dispute as to the meaning of the aforementioned claimed phrase.2 The Examiner provides a meaning on pages 12-13 of the Final Office Action. The Examiner finds that the term "integrated" means "combining or coordinating separate elements so as to provide a harmonious, interrelated whole". The Examiner finds that the word "within" is defined as "in or into the interior or inner part". Final Act. 13. Appellants do not dispute the Examiner's findings in this regard. Appeal Br. 10-11. Appellants dispute the Examiner's interpretation of Harrison as it pertains to the claimed phrase "with one or more of the first electric conductor, and the second electric conductor at least partially integrated within the primary backing layer". Appeal Br. 11-12. It is the Examiner's positon that because conductors 48 are "combined" with the primary backing layer (56, 57), and then secured with tape 50, such that it is "interior" to the opening, Harrison meets the limitation. The Examiner refers to Figure 25 of Harrison in this regard. Final Act. 13. Harrison's Figures 20, 21, 22, 23, 24, and 25 are reproduced below. 2 Appellant's Figure 3a depicts how conductors 10 and 20 are partially integrated in the felt layer 30 (which is the primary backing layer). See also page 20 of the Specification which describes Figures 3a-3c. 4 Appeal2014-006876 Application 13/680,783 ~~+-:>Â·--~ $7q ., 4~ /''"',"t ~/;:;! . ....._., ~v- ~y~Â· .,.,, . .-.Â·' ~~.... ' $ ,~i'"1 ,. .... ~Â·lfÂ·f~~ Â·~Â·::-.-- Figure 20 is a perspective view of the light-transmissive housing with light-emitting diodes 53 shown. Figure 21 illustrates the light-emitting means of Figure 20. Figure 22 is a sectional view of Figure 21. Figure 23 is a sectional view but showing the light tranmissive housing in side elevation. Figure 24 is a transverse sectional view. Figure 25 is a sectional view but showing the light transmissive housing in end elevation. 5 Appeal2014-006876 Application 13/680,783 Appellant disagrees with the Examiner's stated interpretation of Harrison (discussed, supra). Appellant states that the depictions of Harrison shown in Figures 20-25 show that flat cable 48 of Harrison (i.e., electrical conductor as shown) runs along a bottom side of the secondary backing layer 57, and is covered by tape 50. Appellant submits that it is clear that the embodiments of Harrison cited for showing this feature, especially Figures 21 and 25, show the flat cable 48 runs along a bottom side of the secondary backing layer 57, and therefore, Harrison does not suggest "integrated within" as interpreted by the Examiner, and as recited in the claims. Appeal Br. 11. In response, on pages 3--4 of the Answer, the Examiner states that column 4, 11. 49-56 of Harrison shows "[t]he secondary backing is formed of resilient plastic material". The Examiner refers to Figure 21, and states that Figure 21 shows the secondary backing has been resiliently compressed by conductor 48, such that is "in the interior" of the primary backing layer (56, 57). The Examiner states that Figures 22 and 23 show LED 53, with an oval shape, "electrically connected" (Harrison, col. 4, 11. 25-28) to the flat cable 48. The Examiner states that this electrical connection is "at least partially ... in" the opening 46 of the primary backing layer (56, 57). The Examiner states that Figure 25 shows the bottom layer of secondary backing layer 57. The Examiner states that if Appellant were to connect a horizontal line between the comers of the opening 46, that line would intersect with the conductors 48, and therefore, the conductors 48 are "at least partially integrated within the primary backing layer". 6 Appeal2014-006876 Application 13/680,783 In reply, Appellant reiterates that each of the Figures of Harrison shows that the conductor 48 runs along a bottom surface of the secondary backing layer 57. Reply Br. 3--4. Appellant also states that Harrison explains that "[a] light transmissive housing 47 is inset in each opening. As will be explained below, each housing 47 contains at least one light emitting diode (LED) 53 which is electrically connected by flat cable 48 to an electrical union 49." Harrison, Figs. 16 and 17 and col. 4, 11. 25-28. Appellant submits that Figure 23 of Harrison shows that housing 4 7 extends from the carpet tile 45, to beyond the bottom surface of the backing layer, and as such, it is clear that the cable 48 is not "partially integrated within the primary backing layer" as recited in the claims. Reply Br. 4--5. With regard to the Examiner's position concerning the a horizontal line analogy, Appellant states that while the Appellant has tried to connect a horizontal line as proposed by the Examiner, such a line does not intersect the conductor of cable 48 as asserted because the horizontal line passes over the top of the conductor of the cable 48. Reply Br. 5. We agree with Appellant's stated positon in the record. Harrison's Figure 16, for example, shows how conductor 48 having housing 4 7 (with the LEDS) is positioned underneath primary backing 57. Tape 60 is used to affix conductor 48 to primary backing layer 57. Slits 46 allow for the housing 47 to be visible. We agree with Appellant that cable 48 (the conductor) therefore runs along the backside of primary backing layer 57. As such, the conductor cannot be at least partially integrated within the primary backing layer. 7 Appeal2014-006876 Application 13/680,783 We thus reverse Rejection 2. Because the Examiner does not rely upon the other applied references applied in Rejections 3-5, we also reverse these rejections. DECISION Rejection 1 is summarily affirmed. Rejections 2-5 are reversed. TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a). ORDER AFFIRMED 8