Ex Parte VanRiper et al

Patent Trial and Appeal Board

Feb 17, 2016

10964282 (P.T.A.B. Feb. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/964,282 10/13/2004
92556 7590
HONEYWELL/HUSCH
Patent Services
115 Tabor Road
P.O.Box 377
MORRIS PLAINS, NJ 07950
02/19/2016
FIRST NAMED INVENTOR
Ryan A. VanRiper
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.
H0007580
8364/92338(1360)
CONFIRMATION NO.
2712
EXAMINER
DIEP, NHON THANH
ART UNIT PAPER NUMBER
2487
NOTIFICATION DATE DELIVERY MODE
02/19/2016 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):
patentservices-us@honeywell.com
amy.hammer@huschblackwell.com
pto-chi@huschblackwell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte RYAN A. VANRIPER, THOMAS ANDERSON WAGNER,
and JOHN A. PHELPS
Appeal2014-004522
Application 10/964,282
Technology Center 2400
Before ELENI MANTIS MERCADER, JAMES W. DEJMEK, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOW ARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 3, 13, 26, 30-32, and 34--36, which constitute all of the claims
pending in this application. Claims 1, 2, 4--12, 14--25, 27-29, and 33 have
been cancelled. App. Br. 14--19 (Claims App'x). We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Honeywell International, Inc. as the real party in
interest. App. Br. 2.
Appeal2014-004522
Application 10/964,282
THE INVENTION
The claimed invention is directed to a system and method for
enhanced situation awareness using RFID technology to track first
responders. Spec. 2--4.
Claim 26, reproduced below, is illustrative of the claimed subject
matter:
26. A system which tracks location and movement of
first responder personnel in a region during an emergency
compnsmg:
a plurality of cameras;
an RFID tag adapted to be carried on a uniform or helmet
of a first responder of the first responder personnel during an
emergency in the region;
a plurality of radio frequency transmitter/receiver units
throughout the region, said transmitter/receiver units are used
with the RFID tag, the units provide location information of the
first responder in the region, wherein when the tag receives a
signal from one of the transmitter/receiver units, a reply signal
is transmitted by the tag and sensed by said one
transmitter/receiver unit so that as the first responder moves
about the region the location of the personnel is continuously
tracked in real time;
a switch for selecting a camera from the plurality of
cameras;
a database which contains at least, a pre-stored set of
representations, each representation illustrating an aspect of a
region being monitored; and
control software coupled to the transmitter/receiver units,
the switch and the database that selects a pre- stored
representation of a map or floor plan of the region and a camera
in response to real time location information from the one
transmitter/receiver unit to visually display in real time the
selected pre-stored representation of the map or floor plan of
the region and real time images from the selected camera.
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Appeal2014-004522
Application 10/964,282
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sengupta US 6,359,647 Bl Mar. 19,2002
Burkley US 7 ,034,678 B2 Apr. 25, 2006
Washington US 7,151,454 B2 Dec. 19, 2006
REJECTION
Claims 3, 13, 26, 30-32, and 34--36 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Sengupta in view of Washington and
Burkley. Final Act. 6-9.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
contentions that the Examiner erred. In reaching this decision, we consider
all evidence presented and all arguments made by Appellants. We disagree
with Appellants' arguments regarding the pending claims and we
incorporate herein and adopt as our own: ( 1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken (Final
Act. 6-9), and (2) the reasons and rebuttals set forth in the Examiner's
Answer in response to Appellants' arguments (Ans. 6-13). We incorporate
such findings, reasons, and rebuttals herein by reference unless otherwise
noted. However, we highlight and address specific findings and arguments
regarding claim 26 for emphasis as follows.
First, Appellants argue Sengupta is directed to a camera based optical
tracking system and the proposed modification to an RFID tracking system
would change the principle of operation. App. Br. 9. According to
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Appellants, "'[i]f the proposed modification or combination of the prior art
would change the principle of operation of the prior art invention being
modified, then the teachings of the references are not sufficient to render the
claims prima facie obvious."' Id. (quoting In re Ratti, 270 F.2d 810 (CCPA
1959)).
We are not persuaded that Appellants have established that the
proposed change would result in such a change in the principle of operation
of the prior art as to make the claimed invention nonobvious. If a proposed
modification would render the prior art invention being modified
unsatisfactory for its intended purpose, then there is no suggestion or
motivation to make the proposed modification. In re Gordon, 733 F.2d 900,
902 (Fed. Cir. 1984). For example, our reviewing court held that an
invention was not obvious where the prior taught the device required rigidity
for operation whereas the claimed invention required resiliency. Ratti, 270
F.2d at 813.
We do not find using an RFID tracking system instead of an optical
tracking system is such a change so that Sengupta will no longer work for its
intended purpose. Appellants provide no evidence in support of their
argument. See App. Br. 9. "Attorney's argument in a brief cannot take the
place of evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
In KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007), the
Supreme Court held that "if a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill." Id. at 417. We agree
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Application 10/964,282
with the Examiner, and adopt the Examiner's findings that the proposed
modification would result in an enhancement, not a change of principle:
[T]he combination would not change the principal [sic]
of operation of the prior art as argued, but rather the
combination would result in an improvement over the prior art
of Sengupta et al by using the [RFID] technologies in tracking
emergency personnel in place of or in addition to the optional
alarm sensors of Sengupta et al, and to select a pre-stored
representation of a map or floor plan of the region and a camera
in response to real time location information from the one
transmitter/receiver unit to visually display in real time the
selected pre-stored representation of the map or floor plan of
the region and real time images from the selected camera. The
RFID technologies would enhance the system of Sengupta et
al by accurately and easily locate and track personnel
whenever and wherever personnel goes without having to
install optional sensors all over the place.
Ans. 8-9 (emphasis added).
Second, Appellants argue none of the references teach an "RFID tag
adapted to be carried on a uniform or helmet of a first responder.'' App. Br.
9.
The Examiner finds the prior art teaches having first responders carry
an RFID tag with them. Final Act. 9; Ans. 10. The Examiner further finds
"adapting the [RFID] tag to either on a uniform or helmet of the first
responder [to be] an obvious designer's choice." Final Act. 9; Abstract.
Appellants have not persuaded us that the Examiner erred. "If a
person of ordinary skill can implement a predictable variation, § 103 likely
bars its patentability." KSR, 550 U.S. at 417. Appellants have not shown
that choosing the location of the placement of the RFID tag "result[ s] in a
difference in function or give[s] unexpected results." In re Rice, 341 F.2d
309, 314 (CCPA 1965).
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Third, Appellants argue none of the references teach the "control
software" limitation of claim 26. App. Br. 9-10. Appellants discuss the
teachings of the references individually. See id. at 8-9.
The Examiner finds "the prior art disclose all the claimed elements."
Ans. 9. The Examiner further finds "one skill in the art could have
combined the elements as claimed by known methods with no change in
their respective functions, and the combination yielded nothing more than
predictable results." Id. Accordingly, the Examiner concludes it would
have been obvious to one of ordinary skill in the art at the time the invention
was made to use the "control software" recited in claim 26. Id.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Furthermore, in KSR, the Supreme Court held that "if a technique has been
used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill."
KSR, 550 U.S. at 417. Appellants have not shown that the combination of
the various references in making the control software would have been
"uniquely challenging or difficult for one of ordinary skill in the art." See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR, 550 U.S. at 418). Accordingly, Appellants have not
persuaded us the Examiner erred.
Finally, Appellants argue the Examiner failed to make a prima facie
case of obviousness. App. Br. 10-12. In addition to the arguments
discussed above, Appellants argue "that none of the cited references
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recognize the problem solved by the claimed invention." App. Br. 12.
According to Appellants, since the concept of the claimed invention "is not
recognized, there would be no reason to combine the cited references (even
if all of the claim elements were present within the combination of Sengupta
et al., Washington and Burkley et al. (which they are not))." Id.
Our reviewing court guides it is irrelevant that the prior art and the
present invention may have different purposes. See Nat 'l Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) ("A finding
that two inventions were designed to resolve different problems ... is
insufficient to demonstrate that one invention teaches away from another.").
That is, it is sufficient that references suggest doing what Appellants did,
although the Appellants' particular purpose was different from that of the
references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re
Gershon, 372 F.2d 535, 538-39 (CCPA 1967)). "Obviousness is not to be
determined on the basis of purpose alone." In re Graf, 343 F.2d 774, 777
( CCP A 1965). "Common sense teaches ... that familiar items may have
obvious uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle." KSR, 550 U.S. at 420; see also id. at 421 ("A
person of ordinary skill is also a person of ordinary creativity, not an
automaton."). Accordingly, we are not persuaded that the Examiner failed
to make a prima facie case of obviousness.
For the reasons discussed above, we sustain the Examiner's rejection
of claim 26, along with the rejection of claims 3, 13, 30-32, and 34--36,
which are not argued separately.
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Application 10/964,282
DECISION
For the above reasons, we affirm the Examiner's rejection of claims 3,
13, 26, 30-32, and 34--36.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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