Intel Corporation

Patent Trials and Appeals Board

May 21, 2020

2019003535 (P.T.A.B. May. 21, 2020)

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

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Application 14/666,622

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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.
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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

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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.
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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
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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
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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).
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“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
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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.
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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
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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).
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AFFIRMED