Ex Parte Wolf

Patent Trial and Appeal Board

May 25, 2016

12749873 (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121749,873 03/30/2010
46726 7590 05/27/2016
BSH Home Appliances Corporation
100 Bosch Boulevard
NEW BERN, NC 28562
FIRST NAMED INVENTOR
Christian Wolf
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.
2010P00549US 7824
EXAMINER
PHAM, QUANG
ART UNIT PAPER NUMBER
2684
NOTIFICATION DATE DELIVERY MODE
05/27/2016 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):
MBX-NBN-IntelProp@bshg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN WOLF
Appeal2014-007844
Application 12/749,873
Technology Center 2600
Before ST. JOHN COURTENAY III, JAMES R. HUGHES, and
KAMRAN JIVANI, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection, mailed November 7, 2013, of claims 1-21. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
Invention
The claimed invention on appeal is directed to: "an appliance having a
radio frequency identification (RFID) device and a method of
communicating via the RFID device, and more particularly, to an appliance
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Application 12/749,873
having an RFID device operable for two-way communication of dynamic
data and a method of performing the two-way communication." (Spec. i-f 1.)
Representative Claim 1
1. A two-way radio frequency identification (RFID) system,
the two-way RFID system comprising:
[L 1] an active two-way RFID device integrated with an
appliance, the two-way RFID device comprising:
an electronic controller in communication with a control
module of the appliance via a first communications link;
a first RFID chipset in communication with the electronic
controller via a second communications link, the first RFID
chipset including a storage medium structured to store dynamic
data related to the appliance and computer-executable
instructions operable to control the operating functions of the
appliance; and
[L2] a dynamic data transmitter in communication with
the first RF1D chips et and operable to send and receive dynamic
data via a radio frequency (RF) link using two-way
communication protocols;
[L3] one or more remote RFID devices capable of
dynamic communication with the active two-way RFID device
via the RF link, the one or more remote RFID devices
comprising, a controller; and a second RFID chipset in
communication with the controller via a fourth communications
link; and
[L4] wherein the second RFID chips et is in
communication with the first RFID chipset via the RF link,
1 We note claim 9 is the broadest independent claim on appeal, and was not
argued separately from independent claim 1.
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thereby enabling sending and receiving of dynamic data between
the appliance via the two-way RFID device and the one or more
remote RFID devices.
(Emphasis, bracketing, and underlining added regarding the contested
limitations, labeled as "LI," "L2," "L3" and "L4".)
Rejections
A. Claims 1-5, 7, 9-13, 15, and 17-21 are rejected under 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Yokoyama et al. (US 2005/0280511 Al; published
December 22, 2005) ("Yokoyama"), Montgomery et al. (US
2008/0048838 Al; published February 28, 2008) ("Montgomery"),
Connors et al. (US 2005/0093374 Al; published May 5, 2005)
("Connors"), Lu et al. (US 6,172,609 Bl; issued January 9, 2001)
("Lu") and Stilp (US 2004/0212500 Al; published October 28,
2004).
B. Claims 6 and 14 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of
Yokoyama, Montgomery, Connors, Lu, Stilp, and Maenishi et al.
(US 2007 /0021964 Al; published January 25, 2007) ("Maenishi").
C. Claims 8 and 16 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of
Yokoyama, Montgomery, Connors, Lu, Stilp, and Mashinsky (US
2007/0143456 Al; published June 21, 2007) ("Mashinsky").
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Grouping of Claims
Based on Appellant's arguments, we decide the appeal of all claims
rejected under rejection A on the basis of representative claim 1. See 37
C.F.R. § 41.37(c)(l)(iv). We address rejections Band C, infra.
ANALYSIS
We have considered all of Appellant's arguments and any evidence
presented. We disagree with Appellant's arguments, and we adopt as our
own: ( 1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Answer in response to Appellant's arguments. However, we highlight
and address specific findings and arguments for emphasis in our analysis
below.
Contested Limitation LI
Issue: Under § 103, did the Examiner err by finding the cited
combination of Yokoyama, Montgomery, Connors, Lu, and Stilp would
have taught or suggested contested limitation LI: "an active two-way RFID
device," within the meaning of representative claim 1? (Emphasis added.)
Appellant contends Montgomery does not teach "an active two-way
RFID device capable of dynamic communication" as recited in contested
limitation L 1 of claim 1:
the examiner attempts to broaden the teachings of Montgomery,
alleging that Montgomery teaches an active two-way RFID
device capable of dynamic communication. However,
Montgomery makes no such disclosure. Instead, Montgomery is
related to a code upgrade system that employs only passive RFID
tags for exchanging static data. Specifically, Montgomery
describes a code upgrade system that employs a passive RF tag
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Application 12/749,873
to exchange solely static information such as a software version
code ID associated with a packaged electronic device. See, e.g.,
Montgomery, Fig. 3; i-f 0027 (noting that the only information
available on the RF tag is static data - i.e. "a code identification
or ID").
(App. Br. 10).
The Examiner disagrees, and explains the basis for the rejection. (Ans.
20 -21 ). The Examiner does not rely on the teachings of Montgomery
considered in isolation, but rather on the combined teachings and
suggestions of the cited references, and finds, in pertinent part (id.):
Yokoyama provides the teaching of a two-way RFID device
(FIG. 1 the RFID tag module 10) comprises a storage medium
(FIG. 3 the data storage circuit unit 130) structured to store
information related to the appliance ([0055], [0061 ], [008],
[0095]-[0097], and [O 101]) ....
Montgomery provides the known teaching of a storage
medium in an RFID device (FIG. 1 the RFID tag 14) to store
dynamic data related to the appliance and the dynamic data is
transmitted to the one or more remote device via a dynamic data
transmitter ([0008], [0012], [0023]-[0024], [0027], [0030]-
[0032], FIG. 1 the RFID tag 14 and FIG. 3: the tag 14 enables
the device 22 or the device 24 to determine whether new or
replacement code should be transmitted to the tag 14 and
recorded on the tag 14, and the term "code" include computer
readable instructions or language embodied as either software or
firmware; thus the code stored in the tag 14 constitutes as
dynamic data since the code language is upgraded to add
function to a program to upgrade functionality of an existing
routine or program of the appliance and the transmitter used to
transmit dynamic data constitutes as the dynamic data
transmitter).
Connors provides the known teaching of an active two-
way RFID device (FIG. 3 the active tag 302).
Id. (emphasis added).
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In reviewing Appellant's contentions in the Appeal Brief (9--13), and
Reply Brief ( 4--9), we find Appellant does not substantively traverse the
Examiner's findings regarding Connor's express description of an active tag
(if 27): 2
FIG. 3 illustrates a system 300 including an active tag 302 in an
electronic device 301, according to an embodiment of the
invention. The active tag 302 is similar to the passive tag 120,
except the circuits of the active tag are powered by an internal
power source, such as the power source 114. The active tag 302
may include a microcontroller 310, radio frequency circuitry
312, antenna 314, clock source 316, and sensor 318. The
electronic device 301 may include a single device housing the
active 15' tag 302, the passive tag 120, the power control circuit
116 and the power source 114.
(Emphases omitted).
See also Connor (if 29): "The active tag 302 includes low power radio
frequency circuitry 312 and an antenna 314 for providing short range
wireless signal transmission and reception." (Emphasis omitted.)
Given the aforementioned evidence, we are not persuaded the
Examiner erred in finding the contested "active two-way RFID device"
limitation L 1 is taught or suggested by the cited combination.
Limitations L2-L4
Issue Under§ 103(a), did the Examiner err by finding the cited
combination of Yokoyama, Montgomery, Connors, Lu, and Stilp would
2 One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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have taught or suggested contested limitations L2-L4, within the meaning of
representative claim 1?
Appellant particularly focuses the arguments for limitations L2-L4 on
the "dynamic" features recited in claim 1, e.g., sending and receiving
dynamic data" and "dynamic communication" (emphasis added) (App. Br.
10):
The RF tag of Montgomery is not capable of
communicating dynamic data like the device of, for example,
claims 1, 9, and 17 of the present application. Therefore,
Montgomery does not disclose an active two-way RFID device
capable of communicating "dynamic data between the appliance
and the RFID reader" as alleged by the examiner. Final Office
Action, p. 11. Moreover, Montgomery also fails to disclose the
other missing elements of claims 1, 9, and 17 listed above.
Accordingly, Montgomery does not disclose appellant's recited
features of two-way dynamic data communication; a dynamic
data transmitter ... operable to send and receive dynamic data;
one or more remote RFID devices capable of dynamic
communication; one or more remote RFID devices comprising,
a controller; and a second RFID chipset in communication with
the controller via a fourth communications link; and sending and
receiving of dynamic data between the appliance via the two-way
RFID device and the one or more remote RFID devices.
Therefore, Montgomery fails to teach or fairly suggest all the
elements of appellant's claims that the examiner alleged were
taught by Montgomery.
Regarding the contested "dynamic data" and "dynamic
communication" features recited in claim 1, we tum to Appellant's
Specification (i-f 28) for context: 3
3 We note the scope of the claims on appeal, at a minimum, at least covers
the corresponding supporting embodiment( s) described in the Specification.
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[0028] In another exemplary embodiment, the dynamic
data obtained at step 320 may include computer-executable
instructions, and the appliance through the RFID device, may
query the one or more remote RFID devices to obtain updates to
computer-executable instructions used to operate the appliance.
(Emphasis added).
We observe Montgomery (i-f 30) teaches a similar query operation:
controller 26 generates control signals directing device 22 or
device 24 to read the code version ID from tag 14 of the
electronic device 16. The code version ID is read from tag 14 in
a wireless fashion using electromagnetic waves, such as radio
frequency waves, which are transmitted through packaging 70 to
tag 14 to activate or power tag 14. Upon being activated or being
powered, tag 14 responds by transmitting the code version ID
wirelessly through packaging 70 to the read component 32 of
either RF device 22 or RF device 24.
(Emphases omitted).
Montgomery (i-f 32) further teaches: "The code upgrade is wirelessly
transmitted by write component 30 through packaging 70 to tag 14."
(Emphasis added).
We emphasize, however, that under a broad but reasonable interpretation (or
the more narrow construction applied by the federal courts), the scope of the
claims is not limited to the preferred embodiments described in the
Specification: "[A ]lthough the specification often describes very specific
embodiments of the invention, we have repeatedly warned against confining
the claims to those embodiments .... [C]laims may embrace 'different
subject matter than is illustrated in the specific embodiments in the
specification."' Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir.
2005) (en bane) (internal citations omitted).
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Because Montgomery teaches that computer-executable instructions
are updated using a radio frequency tag device (i1i130, 32, 33), we find
Montgomery teaches or suggests the contested claim term "dynamic data"
under a broad but reasonable interpretation, which is fully consistent with
Appellant's Specification (i-f 28). Montgomery further teaches an alternative
embodiment (i-f 9) that uses tags with battery power that can transmit and
receive data (i.e., an active tag embodiment):
Tags 14 comprise transponders configured to record data and to
transmit data. In particular, each tag 14 is configured to receive
data from device 22 and/or device 24 and to record such data in
a memory. In one embodiment, tags 14 are configured to receive
such data from device 22 or device 24 while deriving power from
device 22 or device 24 or from a battery while an associated
electronic device 16 is inactive, off or unpowered.
(Emphases omitted).
Given the aforementioned teachings and suggestions, we find a
preponderance of the evidence supports the Examiner's finding (Ans. 21;
emphasis added):
( ... the code stored in the [Montgomery] tag 14 constitutes as
dynamic data since the code language is upgraded to add
function to a program to upgrade functionality of an existing
routine or program of the appliance and the transmitter used to
transmit dynamic data constitutes as the dynamic data
transmitter).
Moreover, given the lack of a definition for the claim term "dynamic
data" in the claim or the Specification, on this record, we are not persuaded
the Examiner's interpretation of contested claim limitations L2-L4 is overly
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broad or unreasonable. 4 Moreover, a reference may be relied upon for all
that it would have reasonably suggested to one having ordinary skill the art~
including non-preferred embodiments. See 1vlerck & Co., Inc. v. Biocrajt
Labs., Inc., 874 F.2d 804~ 807 (Fed. Cir.\ cert. denied. 493 lJ.S. 975 (1989).
Given the aforementioned evidence, we are not persuaded the
Examiner erred regarding contested limitations L2-L4, that each tum on the
"dynamic" aspect of the data that is communicated. On this record, we find
the cited descriptions in the references, considered in combination, would
have taught or suggested the contested claim language (limitations Ll----L4\
so as to render claim l obvious under § 103.
Therefore, by a preponderance of the evidence, and for the reasons
discussed above, we are not persuaded the Examiner erred. Accordingly, we
sustain the rejection of representative claim 1, independent claims 9 and 17,
and dependent claims 2-5, 7, 10-13, 15, and 18-21, also rejected under
rejection A. See "Grouping of Claims," supra.
Rejection B of claims 6 and 14 under§ 103(a)
Appellant advances no separate arguments for claims 6 and 14, which
4 Regarding descriptions in the Specification that are not definitions or clear
and unambiguous disclaimers, our reviewing "court has repeatedly
'cautioned against limiting the claimed invention to preferred embodiments
or specific examples in the specification."' Williamson v. Citrix Online,
LLC, 792 F.3d 1339, 1346-47 (Fed. Cir. 2015) (quoting Teleflex, Inc. v.
Ficosa N. Am. Corp., 299 F.3d 1313, 1328 (Fed. Cir. 2002)). Because
"applicants may amend claims to narrow their scope, a broad construction
during prosecution creates no unfairness to the applicant or patentee." In re
ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)
(internal citation omitted).
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are rejected under rejection B. Arguments not made are considered waived.
See 37 C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain rejection B of
dependent claims 6 and 14.
Rejection C of claims 8and16 under§ 103(a)
Appellant advances no separate arguments for claims 8 and 16, which
are rejected under rejection C. Arguments not made are considered waived.
Therefore, we sustain rejection C of dependent claims 8 and 16.
Conclusion
For the reasons discussed above, on this record, and by a
preponderance of the evidence, we are not persuaded of error regarding the
Examiner's underlying factual findings and ultimate legal conclusion of
obviousness, for all claims on appeal.
DECISION
We affirm the Examiner's rejections of claims 1-21under§103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(f).
AFFIRMED
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