Ex Parte Wheeler

Patent Trial and Appeal Board

Feb 24, 2017

13460591 (P.T.A.B. Feb. 24, 2017)

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.
13/460,591 04/30/2012 Theodore J. WHEELER 82922672 5093
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
MUNOZ, DANIEL
ART UNIT PAPER NUMBER
2845
NOTIFICATION DATE DELIVERY MODE
02/28/2017 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THEODORE J. WHEELER
Appeal 2016-000406
Application 13/460,591
Technology Center 2800
Before KAREN M. HASTINGS, WESLEY B. DERRICK, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals the Examiner’s decision finally rejecting claims 1—
8 and 10—15. 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 In this Decision, we refer to the Final Office Action appealed from, mailed
August 13, 2014 (“Final Act.”); the Appeal Brief filed March 30, 2015
(“App. Br.”); the Examiner’s Answer to the Appeal Brief mailed August 4,
2015 (“Ans.”); and the Reply Brief filed October 5, 2015 (“Reply Br.”).
2 Appellant identifies Hewlett-Packard Development Company, LP as the
Real Party in Interest. App. Br. 3.
Appeal 2016-000406
Application 13/460,591
The Claimed Invention
Appellant’s disclosure relates to an antenna, which includes an active
antenna layer, a ground layer, and a dielectric layer sandwiched between the
active antenna and the ground layers. Abstract. Claim 1 is illustrative of the
claimed subject matter and is reproduced below from the Claims Appendix
to the Appeal Brief (App. Br. 17) (key disputed limitation italicized):
1. An antenna comprising:
an active antenna layer including at least one multiple-
input and multiple-output (MIMO) chain;
a ground layer; and
a dielectric layer sandwiched between the active antenna
and the ground layers,
wherein the antenna is bendable to conform to a contour
of a surface on which the antenna is positioned.
The References
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Kogure et al.,
(hereinafter “Kogure”)
Lin et al.,
(hereinafter “Lin”)
Chiang
Peters
US 2004/0263405 Al Dec. 30, 2004
US 2005/0195110 Al Sept. 8, 2005
US 2006/0022880 Al Leb. 2, 2006
US 2010/0182211 Al July 22, 2010
The Rejections
On appeal, the Examiner maintains the following rejections:
1. Claims 1, 2, 5, 8, 9, and 11—15 are rejected under pre-AIA
35 U.S.C. § 102(b) as being anticipated by Lin. Pinal Act. 2; see also Ans.
2.
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Application 13/460,591
2. Claim 15 is rejected under pre-AIA 35 U.S.C. § 102(b) as being
anticipated by Peters. Final Act. 5; see also Ans. 2.
3. Claim 3 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Lin in view of Chiang. Final Act. 6; see also Ans. 2.
4. Claims 4 and 10 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Lin. Final Act. 6; see also Ans. 2.
5. Claims 6 and 7 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Lin in view of Kogure. Final Act. 8; see also
Ans. 2.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner’s
rejections for the reasons set forth in the Answer to the Appeal Brief and
Final Office Action appealed from, which we adopt as our own. We
highlight and address specific findings and arguments for emphasis as
follows.
Rejection 1
Claims 1—8 and 10, 1L 13 and 14. In response to the Examiner’s
rejection of claims 1—8 and 10, 11, 13 and 14, Appellant presents substantive
argument for the patentability of claim 1, and relies on this for all other
claims. We, therefore, select claim 1 as representative and the claims 2—8
and 10, 11, 13 and 14 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Lin discloses all of the limitations of claim 1
and concludes that the reference anticipates the claim. Final Act. 2, 3 (citing
Lin, Fig. 1 A, || 17, 34). In particular, the Examiner finds that Lin discloses
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Application 13/460,591
an antenna (100 in Fig. 1A) comprising: an active antenna layer (104 in
Figure 1A) including at least one multiple-input and multiple-output
(MIMO) chain (Lin 134); a ground layer (106 in Fig. 1 A); and a dielectric
layer (110 in Fig. 1 A) sandwiched between the active antenna and the
ground layers, wherein the antenna is bendable to conform to a contour of a
surface on which the antenna is positioned (Lin 117). Id. at 2, 3.
Appellant argues that the Examiner’s rejection of claim 1 should be
reversed because Lin does not disclose each and every element of the claim.
App. Br. 5, 6. In particular, Appellant argues that Lin does not teach or
suggest an antenna comprising ‘“an active antenna layer including at least
one multiple-input and multiple-output (MIMO) chain,’” as recited in the
claim. Id. at 7 (emphasis in original); Reply Br. 8. Appellant also argues
that the portions of Lin that the Examiner relies upon for disclosing this
limitation do not “support the Examiner’s position.” App. Br. 8.
We are not persuaded by Appellant’s arguments. To serve as an
anticipatory reference, “the reference must disclose each and every element
of the claimed invention.” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir.
2009).
Based on the record before us, we find that a preponderance of the
evidence supports the Examiner’s determination (Final Act. 2, 3; Ans. 3, 4)
that Lin discloses each and every element of claim 1, including “an active
antenna layer including at least one multiple-input and multiple-output
(MIMO) chain,” and that the reference anticipates the claim. Lin, Figs. 1 A—
ID, Fig. 2,11 17, 27, 29, 32-34.
As the Examiner finds (Ans. 3, 4; Final Act. 2), Lin discloses an
antenna (100 in Figure 1 A) comprising an active antenna layer (104 in
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Application 13/460,591
Figure 1A) and describes patches 112 and 113, Lin’s top layer, as well as
patches 116,118, and 120 capable of transmitting MIMO signals (Lin ||
32—34, Fig. IB) and corresponding to the claimed MIMO chains (Lin, Figs.
1 A—ID, || 27, 32—34). In particular, Lin explicitly discloses:
a multiple-input-multiple-output (MIMO) channel comprising a
single subchannel having up to four spatial channels, or a
wideband-MIMO-channel comprising two or more frequency
separated subchannels where each subchannel has two or more
spatial channels.
Lin 134.
Moreover, as the Examiner further finds (Ans. 3, 4), paragraph 29 of
Lin teaches that “Antenna 100 (FIGS. 1A through ID) is an example of an
antenna that may be suitable for use as one or more of antennas 206,” which
is consistent with the Examiner’s findings regarding Lin’s active antenna
layer 104 including at least one MIMO chain and that MIMO transmissions
can be either through the use of multiple antenna elements or through the use
of separate sub bands in frequency from a single antenna element or multiple
antenna elements. Appellant’s argument exposes no reversible error in the
Examiner’s factual findings in this regard.
Appellant’s assertions that Lin does not teach or suggest that “patches
112 and 114” form, or include any type of MIMO chain and that Lin does
not describe the “antennas 206 (or the Antenna 100 of Figure 1A)” as
including any type of MIMO chain (App. Br. 7, 8; Reply Br. 5, 8) are not
persuasive because they are largely conclusory and, without more,
insufficient to rebut or otherwise establish reversible error in the Examiner’s
contrary findings. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Claim 12. Claim 12 depends from claim 1 and recites:
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Application 13/460,591
The antenna of claim 1, wherein the active antenna layer
selectively forms the at least one MIMO chain, a single-input
and single-output (SISO) antenna, or a frequency band antenna
element, and wherein elements of the at least one MIMO chain
are of different sizes, elements of the SISO antenna are of
different sizes, and the frequency band antenna element is to
operate at a plurality of frequency bands.
App. Br. 19 (Claims App’x). The Examiner determines that Lin discloses all
of the limitations of claim 12 and anticipates the claim. Final Act. 4 (citing
Lin, Figs. 1A-1C, H 11, 32, 34).
In response to the Examiner’s rejection of claim 12, Appellant relies
on principally the same arguments presented above for the patentability of
claim 1. App. Br. 10-12. We do not find these arguments persuasive for
essentially the same reasons discussed above in affirming the Examiner’s
rejection of claim 1.
Appellant’s assertions that Lin does not teach or suggest “wherein the
active antenna layer selectively forms the at least one MIMO chain, a single­
input and single-output (SISO) antenna, or a frequency band antenna
element,” as recited in dependent claim 12” and the Examiner “fails to
address how Lin discloses selective formation of these elements” (App. Br.
11) are equally unpersuasive because they are conclusory and fail to rebut or
otherwise establish reversible error in the Examiner’s analysis and factual
findings in this regard. De Blauwe, 736 F.2d at 705.
Accordingly, we affirm the Examiner’s rejection of claims 1, 2, 5, 8,
9, and 11—15 under pre-AIA 35 U.S.C. § 102(b) as being anticipated by Lin.
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Rejection 2
With respect to the Examiner’s rejection of claim 15 as being
anticipated by Peters (Final Act. 5), Appellant offers no substantive
argument on the merits in either the Appeal Brief or the Reply Brief.
Accordingly, because the Examiner’s Rejection 2 has not been
withdrawn (Ans. 2, 8; see also Final Act. 5) and Appellant offers no
substantive argument on the merits, we summarily affirm the rejection. Cf.
Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008); Ex parte Frye, 2010
WF 889747, *4 (BPAI 2010) (“If an appellant fails to present arguments on
a particular issue — or, more broadly, on a particular rejection — the Board
will not, as a general matter, unilaterally review those uncontested aspects of
the rejection.”) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011)).
Rejections 3, 4, and 5
Appellant does not present any additional substantive arguments in
response to the Examiner’s rejection of claim 3 as obvious over the
combination of Fin and Chiang (Rejection 3); Examiner’s rejection of
claims 4 and 10 as obvious over Fin (Rejection 4); and the Examiner’s
rejection of claims 6 and 7 as obvious over the combination of Fin and
Kogure (Rejection 5).
Rather, with respect to claim 3, Appellant contends that the
“Examiner has not and cannot reasonably assert that the disclosure contained
in Chiang makes up for any of the deficiencies with respect to Fin” and “the
proposed modification would still fail to yield all of the features of
independent claim 1, upon which claim 3 depends.” App. Br. 14; Reply Br.
13, 14. Similarly, with respect to claims 4 and 10, Appellant contends that
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Application 13/460,591
the claims are “allowable over the cited document of record for at least the
same reasons as set forth above in connection with independent claim 1.”
App. Br. 14; Reply Br. 14
With respect to claims 6 and 7, Appellant, again, contends that the
“Examiner has not and cannot reasonably assert that the disclosure contained
in Kogure makes up for any of the deficiencies with respect to Lin” and “the
proposed modification would still fail to yield all of the features of
independent claim 1, upon which claims 6 and 7 depend.” App. Br. 15;
Reply Br. 14, 15.
We do not find Appellant’s arguments in this regard persuasive
because they are conclusory and, without more, insufficient to rebut or
otherwise establish reversible error in the Examiner’s analysis and findings.
De Blauwe, 736 F.2d at 705; cf. In reLovin, 652 F.3d 1349, 1356—57 (Fed.
Cir. 2011); and 37 C.F.R. § 41.37(c)(l)(iv).
Accordingly, based on the findings and technical reasoning provided
by the Examiner (Final Act. 6—9) and for the same reasons discussed above
for affirming Rejection 1, we affirm the Examiner’s Rejection 3, Rejection 4
and Rejection 5, stated above.
DECISION/ORDER
The Examiner’s rejections of claims 1—8 and 10—15 are affirmed.
It is ordered that the Examiner’s decision is 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).
AFFIRMED
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