Ex Parte Van Wiemeersch et alDownload PDFPatent Trial and Appeal BoardJan 8, 201814151216 (P.T.A.B. Jan. 8, 2018) 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. 14/151,216 01/09/2014 John Robert VAN WIEMEERSCH 83376902 3486 28395 7590 01/10/2018 RROOKS KTTSHMAN P C /FfTET EXAMINER 1000 TOWN CENTER MAHASE, PAMESHANAND 22ND FLOOR SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER 2689 NOTIFICATION DATE DELIVERY MODE 01/10/2018 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): docketing @brookskushman. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN ROBERT VAN WIEMEERSCH and KEVIN THOMAS HILLE Appeal 2017-006973 Application 14/151,216 Technology Center 2600 Before: JOHN A. JEFFERY, ST. JOHN COURTENAY III, and JOHN P. PINKERTON, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1—17. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE Appellants’ vehicle inventory system authenticates a key fob in the vehicle’s vicinity, where an antenna in the vehicle transmits a tag challenge after a key fob challenge period ends to reduce interference. See generally Spec. H3—5, 82—83; Fig. 11. Claim 1 is illustrative: 1. A vehicle inventory system comprising: a passive entry system including an antenna and a controller configured to: Appeal 2017-006973 Application 14/151,216 cause, during a key fob challenge period, the antenna to transmit at least one key fob challenge for authenticating a key fob in a vicinity of the vehicle, cause, during a tag challenge period, the antenna to transmit at least one tag challenge, the tag challenge period starting after the key fob challenge period has ended, and receive, during a tag response period, a tag response to the challenge indicative of a tag in a vicinity of the vehicle. THE REJECTIONS1 The Examiner rejected claims 1—4, 7—10, 14, and 16 under 35 U.S.C. § 103 as unpatentable over Smith (US 2013/0187762 Al; pub. July 25, 2013) and Georgi (US 2010/0217457 Al; pub. Aug. 26, 2010). Final Act. 3—8.2 The Examiner rejected claims 5, 6, 12, 13, 15, and 17 under 35 U.S.C. § 103 as unpatentable over Smith, Georgi, and Bandy (US 2007/0126555 Al; pub. June 7, 2007). Final Act. 8—13. 1 Although the Examiner omits claim 11 from the two appealed obviousness rejections, both the Examiner and Appellants acknowledge the rejection of this claim. See Final Act. 1 (indicating claims 1—17 are rejected); see also App. Br. 1 (same). 2 Throughout this opinion, we refer to: (1) the Final Rejection mailed April 20, 2016 (“Final Act.”); (2) the Appeal Brief filed November 21, 2016 (“App. Br.”); (3) the Examiner’s Answer mailed February 1, 2017 (“Ans.”); and (4) the Reply Brief filed March 30, 2017 (“Reply Br.”). 2 Appeal 2017-006973 Application 14/151,216 THE OBVIOUSNESS REJECTION OVER SMITH AND GEORGI Regarding claim 1, the Examiner finds that Smith’s controller is configured to cause an antenna to transmit a “tag challenge” during a “tag challenge period,” namely when a radio frequency identification (RFID) reader queries an RFID tag in operation 351 of Figure 3. Final Act. 3. This reader is said to receive a “tag response” responsive to the query during a “tag response period” in operations 355 and 359. Id. Although the Examiner acknowledges that Smith lacks (1) a vehicle, (2) a key fob, and (3) a passive entry system, and (4) authenticating the key fob in the vehicle’s vicinity during a key fob challenge period, the Examiner cites Georgi for teaching these features in concluding that the claim would have been obvious. Final Act. 3^4. Appellants argue that the cited references do not teach or suggest two challenge periods, where a tag challenge period starts after a key fob challenge period ends, as claimed. App. Br. 5—7. According to Appellants, each cited reference is cited for teaching a respective challenge period, but neither reference interrelates the disclosed challenge periods to render obvious the recited tag challenge period starting after the key fob challenge period ends. App. Br. 7; Reply Br. 1. ISSUE Under § 103, has the Examiner erred in rejecting claim 1 by finding that Smith and Georgi collectively would have taught or suggested a tag challenge period starting after a key fob challenge period ends? 3 Appeal 2017-006973 Application 14/151,216 ANALYSIS It is undisputed that neither Smith nor Georgi individually discloses both recited challenge periods. See Final Act. 3^4; Ans. 5—6; App. Br. 6. Nor is it disputed that (1) Smith discloses a tag challenge period during which a query is sent from an RFID reader to a tag in operation 353 in Figure 3, and (2) Georgi discloses a key fob challenge period in paragraphs 25 and 26. See Final Act. 3^4; Ans. 6; App. Br. 6 (acknowledging the respective challenge periods in Smith and Georgi). The question, then, is whether it would have been obvious for Smith’s tag challenge period to start after Georgi’s key fob challenge period ends as claimed, despite neither reference disclosing multiple challenge periods, let alone their temporal relationship. Appellants’ Specification explains that to avoid interference between key fob and tag responses, the antenna may only listen for tag responses after the window for key fob responses concludes. Spec. 177. This coordination of the devices’ response times can reduce or eliminate the risk of collisions. Id. Accord Spec. 176 (noting that because tags 175 have a fixed frequency with other devices, such as key fobs 160, the antennas must be managed to listen and transmit at specific times and intervals to avoid interference). As shown in Appellants’ Figure 11, key fob challenges in interval 220 do not overlap with tag challenges in interval 225. Spec. 82— 83. This deliberate temporal segregation of key fob and tag challenges in the present invention is not merely arbitrary, but rather serves a useful purpose: to mitigate or eliminate interference. See Spec. 1 82. The Examiner, however, finds that an ordinarily skilled artisan could “easily” 4 Appeal 2017-006973 Application 14/151,216 determine if the key fob challenge period should start when the tag challenge period ends or vice-versa. Ans. 6. The Examiner adds that these challenges could even occur concurrently. Id. These findings are problematic on this record. Not only are they speculative and unsubstantiated by any evidence on this record, to perform the challenges concurrently as the Examiner proposes (Ans. 6) is diametrically opposite to the very purpose of the claimed invention, namely to reduce interference by avoiding overlapping challenge periods as noted previously. Nevertheless, there is nothing on this record suggesting that it would have been obvious to combine Smith’s and Georgi’s respective challenge periods as the Examiner proposes, let alone do so with the particular recited temporal relationship between those periods—a key interference-reducing feature of the claimed invention. To the extent that the Examiner concludes that it would have been obvious to try the three temporal possibilities for the two disclosed challenge periods, namely either one before the other or concurrently under KSR Int 7 Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007) (see Ans. 6), we find such a rationale problematic on this record, particularly since neither cited reference discloses more than one challenge period, let alone interrelates multiple periods temporally as Appellants indicate. Reply Br. 1. Not only is there no reason to combine Smith and Georgi to teach multiple challenge periods apart from impermissible hindsight, to say that it would have been obvious to start Smith’s tag challenge period after Georgi’s key fob 5 Appeal 2017-006973 Application 14/151,216 challenge period ends, as the Examiner proposes (see Final Act. 3^4; Ans. 5—6), is merely conclusory statement, without more.3 Therefore, we are persuaded that the Examiner erred in rejecting: (1) independent claim 1; (2) independent claims 7 and 14 that recite commensurate limitations; and (3) dependent claims 2-4, 8—10, and 16 for similar reasons. Because this issue is dispositive regarding our reversing the Examiner’s rejection of these claims, we do not address Appellants’ other associated arguments. THE OTHER OBVIOUSNESS REJECTION Because the Examiner has not shown that Bandy cures the deficiencies regarding the rejection of the independent claims, we do not sustain the obviousness rejection of claims 5, 6, 12, 13, 15, and 17 (Final Act. 8—13) for similar reasons. CONCLUSION The Examiner erred in rejecting claims 1—17 under § 103. 3 The Examiner’s articulated reasoning in the rejection must possess a rational underpinning to support the legal conclusion of obviousness. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). The Supreme Court stated that ‘“rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting Kahn, 441 F.3d at 988). 6 Appeal 2017-006973 Application 14/151,216 DECISION We reverse the Examiner’s decision to reject claims 1—17. REVERSED 7 Copy with citationCopy as parenthetical citation