Intel CorporationDownload PDFPatent Trials and Appeals BoardMay 21, 202014666622 - (D) (P.T.A.B. May. 21, 2020) 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. 14/666,622 03/24/2015 Mikko Kursula 01.P78151 1051 119829 7590 05/21/2020 Green, Howard, & Mughal LLP 5 Centerpointe Dr. Suite 400 Lake Oswego, OR 97035 EXAMINER KOLB, NATHANIEL J ART UNIT PAPER NUMBER 2856 NOTIFICATION DATE DELIVERY MODE 05/21/2020 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@ghmip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MIKKO KURSULA, MARKO VAARANMAA, SEPPO VESAMAKI, TIMO H. NISSINEN, and MATTI A. LAHDENPERA Appeal 2019-003535 Application 14/666,622 Technology Center 2800 Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2019-003535 Application 14/666,622 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 4, 6–11, 13, 16, 18–22, and 24–27. See Appeal Br. 3; Advisory Action dated July 24, 2018.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to a wearable computing device with an integrated gas sensor. Spec. ¶¶ 1, 2. Claims 1 and 19, reproduced below, are illustrative of the claimed subject matter: 1. An apparatus comprising: a housing including a surface having a single opening to facilitate air movement; a gas sensor positioned within the housing and displaced from an edge of the opening such that the gas sensor is not directly underneath the opening, the gas sensor operable to sense gas; and a device positioned within the housing, and operable to generate an electromechanical induced air movement such that gas is exchanged between the opening and the gas sensor, 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Intel Corporation.” Appeal Br. 1. 2 The Examiner rejects claims 1–27 in the Final Office Action. Final Act. 2, 4, 7, 8, 11, 12, 13, and 14. Appellant subsequently amended the claims (for example, amending independent claim 1 by incorporating the limitations of cancelled dependent claims 2 and 3, amending independent claim 13 by incorporating the limitations of cancelled dependent claims 14 and 15, and amending independent claim 19 by incorporating the limitations of cancelled dependent claim 23) which the Examiner entered. Advisory Action of July 24, 2018. Appeal 2019-003535 Application 14/666,622 3 wherein the device is a speaker membrane which is operable to produce audible sound, and wherein the device comprises logic to lower a frequency of an AC signal for the speaker membrane such that the speaker membrane vibrates without generating human audible noise. 19. One or more non-transitory machine readable media having machine executable instructions, that when executed cause one or more processors to perform an operation comprising: determining information associated to airflow, wherein the airflow is to cause a gas sensor to sense gas, wherein the gas sensor is positioned within a housing which comprises a surface having a single opening to facilitate air movement, wherein the gate sensor is displaced from an edge of the opening such that the gas sensor is not directly underneath the opening, wherein the determined information is used to cause generation of an electromechanically induced air movement corresponding to the determined information, wherein the device is a speaker membrane; and instructing to adjust the airflow by lowering frequency of an AC signal for the speaker membrane such that the speaker membrane vibrates without generating human audible noise. Claims Appendix (Appeal Br. 20, 23). REFERENCES The prior art references relied upon by the Examiner are: Name Reference Date Hartline Consadori US 2,312,712 US 5,055,270 Mar. 2, 1943 Oct. 8, 1991 Pedicini Toth Anglin US 6,475,658 B1 US 2014/0275857 A1 US 2015/0338390 A1 Nov. 5, 2002 Sept. 18, 2014 Nov. 26, 2015 Appeal 2019-003535 Application 14/666,622 4 REJECTIONS On July 10, 2018, Appellant filed an After-Final Amendment together with the Appeal Brief. In the July 24, 2018 Advisory Action, i.e., after the filing of the Appeal Brief, the Examiner states that the amendments to the claims were entered. However, the Appellant represents that during Examiner Interviews on May 23 and June 29, 2018, the Examiner advised that the amendments would be entered. See July 10, 2018 After-Final Amendment p. 7. The Appellant describes the amendments to the claims as incorporating features of claims 2 and 3 into associated independent claim 1 (note that claim 2 depended from claim 1, and claim 3 depended from claim 2); incorporating features of claims 14 and 15 into associated independent claim 13 (note that claim 14 depended from claim 13, and claim 15 depended from claim 14); incorporating features of claim 23 into associated independent claim 19; and cancelling claims 2, 3, 5, 12, 14, 15, 17, and 23. Id. at 8. In the Appeal Brief, the Appellant argues in support of patentability of the amended claims. Appeal Br. 3. As noted above, independent claim 1 was amended to include the limitations of cancelled dependent claims 2 and 3, independent claim 13 was amended to include the limitations of cancelled dependent claims 14 and 15, and independent claim 19 was amended to include the limitations of cancelled dependent claim 23. The Examiner has not restated the rejections to reflect the claim amendments. Our understanding, however, is that the rejections of amended claims 1, 13, and 19, as well as of the dependent claims, are based on the references previously relied upon in rejecting dependent claims 2 and 3, claims 14 and 15, and claim 23, respectively. The rejections, as modified to reflect the After-Final Amendments to the claims, are listed below. Appeal 2019-003535 Application 14/666,622 5 Claims 19–22 are rejected under 35 U.S.C. 112(b) as indefinite. Final Act. 3. Claims 1, 4, 6–11, 13, 16, 18, and 24–27 under 35 U.S.C. § 103 are rejected as unpatentable over Consadori in view of Hartline, Pedicini, and Toth. Final Act. 4–12. Claims 19–22 are rejected under 35 U.S.C. § 103 as being unpatentable over Anglin in view of Consadori, Toth, Hartline, and Pedicini. Final Act. 13–14. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that reversible error has been identified, and we affirm the Examiner’s indefiniteness and § 103 rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Indefiniteness The Examiner rejects claims 19–22 as indefinite because the claim language “determining information associated to airflow to cause a gas sensor to sense gas” and “the determined information is used to cause generation of an electromechanically induced air movement corresponding to the determined information” is circular and ambiguous. Final Act. 3. The Appeal 2019-003535 Application 14/666,622 6 Examiner also finds that the claim is ambiguous as to what component or entity, if any, uses “the determined information” in order to “cause generation of an . . . air movement . . . .” Id. The Examiner also finds ambiguous Appellant’s proposed interpretation (Appeal Br. 7) of “information associated to an airflow” to include the type of sensor used. Ans. 4. In the Appeal Brief, Appellant cites paragraphs 33 and 34 of the Specification but does not respond to the Examiner’s findings in support of the indefiniteness rejection. See Appeal Br. 7–8. Paragraph 33 of the Specification describes that “information about airflow speed for proper function or operation of the one or more Gas Sensor 203 is determined by a terminal device (e.g., smart phone, tablet PC, etc.).” Paragraph 33 of the Specification goes on to describe that if Gas Sensor 203 is a particular type of sensor, for example, an alcohol sensor, “then higher speed air exchange is needed compared to a carbon monoxide sensor.” That is, different gas sensors require different air exchange characteristics such as air speed. See Spec. ¶ 33 (“If device 200 has both of these sensors, then the terminal device uses the limiting sensor's air speed requirements to set the air exchange characteristics.”). Appellant does not explain why paragraph 33 which does not use the claim term “information associated to an airflow” shows that the phrase may include “information associated with whether the airflow is an alcohol sensor . . . .” Appeal Br. 8. Paragraph 34 of the Specification describes that the “determined information is used by device 200 to generate an electromechanical induced air movement (e.g., via Actuator 204) corresponding to the determined information.” As the Examiner points out, however, claim 19 does not recite Appeal 2019-003535 Application 14/666,622 7 that the determined information is used by a particular device to generate the air movement. Final Act. 3. Based on the foregoing, particularly in light of the fact that Appellant does not address the Examiner’s fact findings in support of the rejection, we sustain the indefiniteness rejection of claim 19. The indefiniteness rejection of claims 20–23 is likewise sustained because Appellant argues for the indefiniteness rejection of claims 19–23 as a group. See Appeal Br. 7–8; see also 37 C.F.R. § 41.37(c)(1)(vii). Claim 13 Appellant argues that the Examiner reversibly erred in rejecting claim 1for obviousness because “nowhere does Hartline disclose or suggest that the vibrating diaphragm can produce audible sound.” Appeal Br. 10. Appellant argues, without evidence, that “is well known to those skilled in the art, to generate an audible sound, a vibrating diaphragm is not enough.” Id. We are not persuaded by this argument because it is incommensurate in scope with the clam language which requires no more than “a speaker membrane which is operable to produce audible sound” and does not (1) preclude additional components to generate the audible sound and (2) require vibration as the sole means of operation. Appellant’s argument is unpersuasive also because it does not structurally distinguish the recited “speaker membrane” from the prior art. As the Examiner finds – and Appellant does not dispute – the limitation 3 Appellant does not separately argue for the obviousness rejections of all remaining claims other than claim 24 (which we address in this Opinion). The remaining claims subject to the same ground of rejection as claim 1 (claims 4, 6–11, 13, 16, 18, and 25–27) will stand or fall with claim 1. See Appeal Br. 8–17; see also 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2019-003535 Application 14/666,622 8 “operable to produce audible sound” “is a statement of intended use and does not structurally limit the claim.” Ans. 5. Appellant’s argument that “Pe[n]dicini also discloses a diaphragm that is vibrated below the audible range” (Appeal Br. 10) is unpersuasive for the same reason as provided supra – in particular, that the argument does not structurally distinguish the prior art. Moreover, the Examiner finds that Pedicini describes that “‘if noise is a concern’ the device can be operated at frequency below human hearing” indicating that the Pendicini’ device may indeed be operable to produce audible sound. Ans. 5. Appellant does not dispute this finding and we accept it as fact. See In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964). Appellant next argues that “Consadori does not disclose or suggest using any speaker membrane or diaphragm for purposes of air flow – rather, Consadori specifically uses heating for gas flow, as well as to decrease dependence of the sensor reading upon the environmental temperature” and combining Consadori with Hartline and Pedicini would “defeat a main objective” of Consadori. Appeal Br. 12. Appellant, however, does not address the Examiner’s finding that Consadori “teaches using different types of pumps” depending on parameters such as temperature. See Ans. 6. Appellant does not address the Examiner’s finding that Consadori explicitly teaches replacing a thermal pump with an electromechanical pump in “highly temperature sensitive gas sensing elements.” See id. (citing Consadori 9:47–60). Appellant has therefore not identified reversible error in the Examiner’s findings here. Appellant also argues that the proposed modification would also “result in a highly redundant system” in Hartline and Pedicini and “would Appeal 2019-003535 Application 14/666,622 9 increase the cost of the combined system.” Appeal Br. 12. These assertions are not supported by factual evidence and in any event do not address the Examiner’s rationale in combining the references. See id at 12, 14–15. For example, the Examiner explains that “one skilled in the art would substitute the speaker membrane of HARTLINE for one of the electromechanical pumps of CONSADORI which is that it has a simple construction and fewer parts subject to wear[.]” Ans. 7 (citing Hartline 1:24–31). The Examiner also explains that “one skilled in the art would want to operate such a pump outside the audible range which is that noise might be a concern[.]” Id. (citing Pedicini 6:53–65). The Examiner provides a rationale as to why a skilled artisan would have combined Toth with the other references. Id. Appellant’s various arguments do not address (Appeal Br. 12, 14–15) the Examiner’s rationale in support of the rejection and are therefore unpersuasive of error. Appellant’s argument that “the increased gas flow caused by the two different gas flow means may cause calibration issues in Consadori” is likewise unsupported by factual evidence and unpersuasive. Appeal Br. 13. This argument is also unpersuasive because it does not structurally distinguish the prior art. Appellant next argues that the Examiner’s proposed combination “would not yield predictable results” repeating the assertions regarding redundancy and calibration issues. Appeal Br. 14–15. Claim 1, however, is an apparatus claim. Appellant does not explain why such issues related to the operation of an apparatus would render the recited apparatus structurally unpredictable. We are not persuaded as a result. Appeal 2019-003535 Application 14/666,622 10 Claim 24 Claim 24 depends from claim 1 and additionally recites “wherein the single opening in the housing is positioned in the middle of the housing.” The Examiner finds that Figures 8 and 9 of Consadori show “that the sensor is not directly underneath the opening to the chamber” meeting the relevant limitation of claim 1 and that Figure 1 of Consadori meets the limitation of claim 24. Final Act. 5, 6. Appellant does not dispute these findings only that “Consadori fails to disclose or suggest a single embodiment that has: (i) a single opening positioned in the middle of a housing, and (ii) a gas sensor that is not directly underneath the opening.” Appeal Br. 16. As to the Examiner’s rationale to modify Consadori, Appellant argues that “disclosure of Consadori is merely about using mechanical pump to remove the effects of having a change in sample temperature associated with the pumping cycle, which is not in any way associated with the positioning of the gas sensor and/or the opening.” Appeal Br. 17. Appellant, however, does not address the Examiner’s finding that the different embodiments shown in Consadori “show that the sensor and opening can be configured in many different ways” which is within the ordinary skill. Compare id., with Final Act. 17. “Combining two embodiments disclosed adjacent to each other in a prior art patent does not require a leap of inventiveness.” Boston Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 991 (Fed. Cir. 2009). We are therefore not persuaded that reversible error has been identified here. Claims 13 & 19 Although appearing under a separate heading, Appellant’s argument with regard to the rejections of claims 13 and 19 is limited to the statement Appeal 2019-003535 Application 14/666,622 11 that “claims 13 and 19 are allowable at least for reasons claim 1 is allowable.” Appeal Br. 17–18. The rejections of claims 13 and 19 are sustained for the reasons provided supra with regard to claim 1. We further note that claim 19 is rejected based on Anglin, Consadori, Toth, Hartline, and Pedicini. See Final Act. 13, 14. Given Appellant’s argument does not address Anglin, the rejection of claim 19 is sustained for this additional reason. CONCLUSION The Examiner’s rejections are affirmed. More specifically, DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 19–22 112 Indefiniteness 19–22 1, 4, 6–11, 13, 16, 18, 24–27 103 Consadori, Hartline, Pedicini, Toth 1, 4, 6–11, 13, 16, 18, 24–27 19–22 103 Anglin, Consadori, Toth, Hartline, Pedicini 19–22 Overall Outcome: 1, 4, 6–11, 13, 16, 18– 22, 24–27 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). Appeal 2019-003535 Application 14/666,622 12 AFFIRMED Copy with citationCopy as parenthetical citation