LIBMAN, Avner et al.

Patent Trials and Appeals Board

Nov 4, 2019

13080072 - (D) (P.T.A.B. Nov. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/080,072 04/05/2011
156823 7590 11/18/2019
Finnegan/Goji
901 New York A venue, NW
WASHINGTON, DC 20001-4413
FIRST NAMED INVENTOR
Avner LIBMAN
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.
l 1254.0047-00000 1086
EXAMINER
DUNNER, DIALLO IGWE
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
11/18/2019 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):
Regional-desk@finnegan.com
paralegal@hobart-group.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AVNER LIBMAN, SHARON HADAD,
CAROLINE MYRIAM RACHEL OBADIA, NATAN MIZRAHI,
ERAN BEN-SHMUEL, ALEXANDER BILCHINSKY,
and ITZHAK CHAIMOV
Appeal2018-003163
Application 13/080,072
Technology Center 3700
Before STEP AN STAICOVICI, MICHELLE R. OSINSKI, and
LEE L. STEPINA, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-39 and 43. 2 An oral hearing was held on
1 We use the term "Appellant" to refer to "applicant" as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Goji Limited.
Appeal Br. 3.
2 Claims 40-42 are cancelled. Appeal Br. 37 (Claims App.).
Appeal2018-003163
Application 13/080,072
October 10, 2019. 3 We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
THE CLAIMED SUBJECT MATTER
Claims 1, 32, 34, 37, 38, 39, and43 are independent. Claims 1 and43
are reproduced below.
1. An apparatus for applying radio frequency (RF) energy to
an object in an energy application zone within a resonator cavity
via at least one radiating element, the apparatus comprising:
a source configured for connection to the at least one
radiating element to supply energy; and
at least one processing device configured to:
determine a value indicative of energy absorbable
by the object at each of a plurality of frequencies; and
cause energy to be supplied to the at least one
radiating element at two or more radio frequencies among
the plurality of frequencies, such that the amount of energy
supplied to the at least one radiating element varies across
the two or more radio frequencies inversely with respect
to the value indicative of energy absorbable by the object
at the respective ones of the two or more radio frequencies.
43. An apparatus for applying radio frequency (RF) energy to
an object in an energy application zone within a resonator cavity
via at least one radiating element, the apparatus comprising:
a source configured for connection to the at least one
radiating element to supply energy; and
at least one processing device configured to:
determine a value indicative of energy absorbable
by the object at each of a plurality of radio frequencies;
determine a frequency, among the plurality of radio
frequencies, at which the value indicative of energy
3 The record includes a transcript of the oral hearing ("Tr.").
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absorbable by the object exceeds a predetermined
threshold; and
prevent energy from being supplied to the at least
one radiating element at the determined frequency.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Lentz
Fagrell
Hadinger
us 4,210,795
US 2002/0175163 Al
US 2004/0206755 Al
REJECTIONS
July 1, 1980
Nov. 28, 2002
Oct. 21, 2004
I. Claims 1-39 and 43 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite. Final Act. 2-3.
II. Claims 1, 8, 14, 16-20, 26-30, 32-39, and 43 stand rejected under 35
U.S.C. § 112, second paragraph, as being incomplete for omitting
essential structural cooperative relationships of elements. Id. at 3-5.
III. Claim 43 stands rejected under 35 U.S.C. § 102(b) as anticipated by
Fagrell. Id. at 5-8.
IV. Claims 1, 2, 4, 6, 8, 10-30, and 32-39 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Fagrell and Lentz. Id. at 8-24.
V. Claim 31 stands rejected under 35 U.S.C. § I03(a) as unpatentable
over Fagrell, Lentz, and Hadinger. Id. at 19-28.
OPINION
Rejection I
Claims 1, 32, 37 38, and 43 recite "a source configured for connection
to the at least one radiating element to supply energy." Appeal Br. 25, 33,
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35, 36, 37 (Claims App.). Claim 1 also recites limitations in which "energy
[is] supplied to the at least one radiating element." Id. at 25 (Claims App.).
The Examiner determines that this language renders the claim
indefinite because "[i]t is unclear to the Examiner how the source ...
supplies energy" and "[i]t is unclear to the Examiner how the at least one
radiating element receives energy." Final Act. 2-3. The Examiner suggests
the language be modified "to indicate that the source provides electrical
power to the at least one radiating element to generate energy." Id. at 2.
The Examiner also asserts that "[i]t is unclear from [the] claim language of
the relationship between [the] source's supplying energy and the source's
connection to the radiating element" and "[i]t does not appear that the
radiating element is used by the source, but merely connected to the source
while the source is supplying energy." Ans. 29.
Appellant argues that "the source is a source of electromagnetic
energy that supplies energy to the radiating elements" in at least some
embodiments. Appeal Br. 12-13 (citing Spec. ,r,r 45, 99-105, 145-146); see
also Spec. ,r 99 ("A 'source' may include any components that are suitable
for generating electromagnetic energy."). Appellant also argues that "[a]
person of ordinary skill in the electrical art would have readily recognized
that energy = power x time, and thus when applying power for a duration of
time, energy is supplied" such that a source can be considered to supply
"energy," and not just "power." Id. at 13. Appellant also argues that the
recitation that energy is supplied to the radiating element is 'technically
accurate" and "more appropriate than the Examiner's suggested revisions" to
recite that the radiating element generates energy. Id. at 14.
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Appellant also indicates that the assertions in the Examiner's Answer
are "correct and indicate[] that the claims are clear" and moreover, that in
view of the claim's preamble, "it would have been clear to one of ordinary
skill in the art that the source supplies energy to the radiating element which
is then used to produce the RF energy applied to the object in the energy
application zone." Reply Br. 3--4; see also Spec. ,r 45 ("[T]he terms
'radiating element' and 'antenna' may broadly refer to any structure from
which electromagnetic energy may radiate and/or be received."); ,r 44 ("[A]n
antenna as used herein may function as a transmitter, a receiver, or both,
depending on particular application and configuration"); ,r 46 ("Energy
supplied to a transmitting antenna may result in energy emitted by the
transmitting antenna (referred to herein as 'incident energy.'). The incident
energy may be applied to zone 9.").
"[A] claim is indefinite when it contains words or phrases whose
meaning is unclear." In re Packard, 751 F.3d 1307, 1322 (Fed. Cir. 2014).
(citing MPEP § 2173.05(e)); see also Ex parte McAward, Appeal 2015-
006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential)
( adopting the approach for assessing indefiniteness approved by the Federal
Circuit in Packard). We agree with Appellant's assertion that applying
energy is the result of applying power for any amount of time, and,
therefore, the recitation that energy is supplied (instead of saying "power is
supplied") to the radiating element is technically accurate. In other words, it
appears that the claim language is clear regardless of whether the word
"energy" or the word "power" (as suggested by the Examiner) is used. The
Examiner has not sufficiently explained why the scope of the identified
claim language would be unclear to one of ordinary skill in the art, and thus
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has not established that claims 1-39 and 43 are indefinite. Accordingly, we
do not sustain the rejection of claims 1-39 and 43 under 35 U.S.C. § 112,
second paragraph as indefinite.
Rejection II
The Examiner also rejects claims 1, 8, 14, 16-20, 32-39, and 43 as
indefinite on the ground that these claims are "incomplete for omitting
essential structural cooperative relationships of elements, such omission
amounting to a gap between the necessary structural connections." Final
Act. 3 (citing MPEP § 2172.01). More specifically, the Examiner
determines first that there is an omission of the structural cooperative
relationship between the processing device and the value indicative of
energy absorbable by an object. The Examiner states that it is unclear "how
the processing device is capable of determining the absorbable energy value
of the object without the use of another structure to provide the value of
absorption." Id. The Examiner suggests including "the critical or essential
structure to provide the absorption value, such as a sensor, lookup table, or
software used to load the value by an operator." Id. (citing Spec. ,r,r 85, 147,
150; Figs. 14--15).
The Examiner maintains in the Answer that "[a]lthough [a] generic
processing device can process, receive/transmit information and store
information and algorithms, it is unclear from Appellant's claim how the
processor determines a value indicative of energy absorbable at each of a
plurality of frequencies in light of the specification without additional
structure claimed." Ans. 3 1. The Examiner continues that 'the processing
device requires both additional algorithm steps and sensory structure (i.e.,
for example dual directional coupler) to be claimed to perform the
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determination of the absorbable energy of the object." Id. at 32 (citing Spec.
Fig. 15, steps 1430-40). The Examiner further continues that "[ w ]ithout the
critical structure claimed, one of ordinary skill in the art would have to
improperly import claim limitations from the Appellant['s] [S]pecification to
allow the processor to determine (i.e. measure, calculate, or establish) a
value indicative of energy absorbable. Id.
A claim which omits matter disclosed to be essential to the invention
as described in the Specification or in other statements of record may be
subject to rejection under pre-AIA 35 U.S.C. 112, second paragraph. See In
re Mayhew, 527 F.2d 1229 (CCPA 1976); In re Venezia, 530 F.2d 956
(CCPA 1976); In re Collier, 397 F.2d 1003 (CCPA 1968). Here, any of the
various structure disclosed in the Specification and pointed out by the
Examiner may serve as the structural connection between the claimed
elements and would be understood by one of ordinary skill in the art. Thus,
we determine that the absence of the structure to assist in determining the
absorbable energy value of the object in the claims is merely an issue of
breadth and not indefiniteness. See In re Gardner, 427 F.2d 786 (CCPA
1970).
Secondly, with respect to claims 32, 34, and 36-38, the Examiner
states that "[i]t is unclear how the processing device adjust[s] input energy
supplied to the at least one radiant element" and suggests amending the
claims "to indicate that the processing device adjusts input power supplied to
the at least one radiant element." Id. Final Act. 4 (emphasis added).
Thirdly, with respect to claim 39, the Examiner states that "[i]t is unclear
how the processing device control[ s] the source in order to apply energy at a
plurality of radio frequencies" and suggests amending the claim "to indicate
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that the processing device controls the source to provide power to the at least
one radiant element in order to generate energy at a plurality of radio
frequencies." Id. Fourth, with respect to claim 43, the Examiner states that
"[i]t is unclear how the apparatus applies a radio frequency energy to an
object" and suggests "amending the body of claim 43 to indicate the
applying of radio frequency energy to an object." Id. at 4--5. Because the
body of the claim does not recite the application of radio frequency to an
object, the Examiner determines it is unclear (i) what is the purpose of the
source and the radiating element; (ii) how a value indicative of energy
absorbable by an object can be determined or exceed a predetermined
threshold; and (iii) how energy from the radiating element at a determined
frequency is prevented. Id. at 5.
For the reasons discussed above, we are not persuaded that the use of
the term "energy" rather than "power" results in the omission of the essential
structural cooperative relationship of elements. We also are not persuaded
that the recitation of the application of radio frequency energy to an object in
the preamble, rather than the body, of the claim results in the omission of the
essential structural cooperative relationship of elements. Rather, we are
persuaded that one of ordinary skill in the art would understand what is
claimed given the ordinary meaning of the claim language when read in light
of the Specification. See Orthokinetics, Inc. v. Safety Travel Chairs, Inc.,
806 F.2d 1565, 1576 (Fed. Cir. 1986) (The test for definiteness under 35
U.S.C. § 112, second paragraph, is "whether those skilled in the art would
understand what is claimed when the claim is read in light of the
specification.").
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Accordingly, we do not sustain the rejection of claims 1, 8, 14, 16-20,
26-30, 32-39, and 43 under 35 U.S.C. § 112, second paragraph, as omitting
the essential structural cooperative relationship of elements.
Rejection III
The Examiner rejects claim 43 as anticipated by Fagrell. Final Act.
5-8. Appellant argues that Fagrell fails to disclose at least a processing
device configured to "determine a frequency ... at which the value
indicative of energy absorbable by the object exceeds a predetermined
threshold" and "prevent energy from being supplied to the at least one
radiating element at the determined frequency." Appeal Br. 16. More
particularly, Appellant argues that "Fagrell teaches supplying energy at the
frequency associated with the maximum power absorption, quite the
opposite to" preventing energy from being applied at a particular frequency
in which the energy absorbable by the object exceeds a predetermined
threshold. Id.
The Examiner responds that Fagrell discloses a "processing device
(i.e., controller) in combination with the power measuring devices [that]
determines a value indicative of energy absorbable by the object at a single
frequency and then over a range of frequencies." Ans. 33 (citing Fagrell
,r,r 131, 140-144, 164). The Examiner further responds that "Fagrell
discloses ... controlling ... the signal source in response to the power
absorbed measured by the power devices" and that "the controller has the
ability to control or determine the output frequency of the signal source
along with the settings relating to frequency scans." Id. at 34 (citing Fagrell
,r,r 141, 151, 153, 161-166). The Examiner asserts that "Fagrell teaches ...
monitoring the object's parameters (i.e. pressure, temperature, amount of
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power absorbed in the sample, etc.)"; "that the controller ... can respond to
the monitored parameters if a parameter reaches a predetermined value (i.e.
threshold)"; and "that the controller varies the frequency and power of the
radiation to the object in respon[se] to a predetermined threshold value." Id.
at 35 (citing Fagrell ,r,r 143, 166, 167). The Examiner also asserts that
"Fagrell teaches ... using a scanning feature to lock and track the frequency
that gives the maximum amount of power absorbed by the object." Id.
( citing Fagrell ,r 168).
Although the Examiner explains how the power and/or energy
absorbed by an object can be measured and used to control the frequency of
a signal generator and how the controller can control and monitor parameters
such as temperature, pressure, pH, conductivity, etc. and respond if these
process parameters, for example, reach a predetermined value (see, e.g.,
Fagrell ,r,r 164--166), this is not an adequate explanation of how Fagrell
discloses preventing energy from being supplied at a frequency at which the
value indicative of energy absorbable by the object exceeds a predetermined
threshold, as claimed. Moreover, although the Examiner explains that
"[t]racking and locking to the frequency that gives maximum power
absorbed in the sample 1, (moving maxima) is another available feature"
(see id. ,r 168), this is not an adequate explanation of how Fagrell discloses
preventing energy from being supplied at a frequency at which the value
indicative of energy absorbable by the object exceeds a predetermined
threshold, as claimed. In other words, tracking and locking to the frequency
that gives maximum power absorption only explains how energy is
prevented from being supplied at frequencies in which power absorption is
lower.
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For the foregoing reasons, we do not sustain the rejection of claim 43
under 35 U.S.C. § 102(b) as anticipated by Fagrell.
Re} ection IV
Independent Claims 1, 32, 34, and 37-39 and
Dependent Claims 2, 4, 6, 8, 12-16, 19, 20, 22-30, 33, 35, and 36
The Examiner finds that Fagrell teaches many of the limitations of the
independent claims, but "is silent regarding the processing unit caus[ing] the
amount of energy supplied to the at least one radiating element [to vary]
inversely with respect to the value indicative of energy absorbable by the
object" or "such that a plot of the amount of input energy supplied vs.
frequency and a plot of the value indicative of energy absorbable by the
object vs. frequency mirror one another." Final Act. 9-11 (independent
claims 1, 38, and 39); id. at 20-22 (independent claims 32 and 34); id. at 24--
27 (claim 37).
The Examiner finds that "Lentz teaches of the processing unit 52
caus[ing] the amount of energy (high power mode and low power mode)
supplied to the at least one radiating element 14 [to vary] inversely with
respect to the value indicative of energy absorbable by the object." Id. at 11,
22, 27 (citing Lentz 1:42---68; 2:3-13; 2:60-3:14; Figs. 1---6). The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to "modify[] the processing device ability to supply energy based on
reflection power and absorption power feedback of the object of Fagrell in
view of the applying of electromagnetic radiation by the processing device
inversely of the reflection power coefficient of Lentz because Lentz
effectively speeds up the defrost operation by incorporating the initial high-
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power mode followed by a low-power mode operative until the food item is
completely thawed." Id. at 12, 23, 28.
Appellant asserts that all of the claim limitations of the independent
claims are "directed to an 'inverse relationship' between ... 'the amount of
energy supplied to the at least one radiating element ... across the two or
more radio frequencies' and 'the value indicative of energy absorbable by
the object at the respective ones of the two or more radio frequencies."'
Appeal Br. 19. Appellant then argues that "[n]either Fagrell nor Lentz,
taken alone or in combination, teaches or suggests this relationship between
the amount of energy applied across a range of frequencies and the energy
absorbable by the object across the range of frequencies." Id. (emphasis
omitted).
In particular, Appellant argues that the Examiner "concedes [that
Fagrell] fails to disclose or suggest the 'inverse relationship' required by the
... independent claims" and "Lentz does not cure the deficiencies of
Fagrell." Id. ( emphasis omitted). According to Appellant, "[t]he Examiner
appears to characterize the switch between high-power mode and low-power
mode based on a change in the average reflection coefficient disclosed by
Lentz as the claimed 'inverse relationship."' Id. ( emphasis omitted) ( citing
Final Act. 12). Appellant argues that "the claimed 'inverse relationship' is
with respect to frequencies, while Lentz computes an 'average value of the
reflection coefficient' and switches between the two modes with respect to
time." Id. at 20 (emphasis omitted) (citing Lentz 7:67-8:9; Figs. 4--6).
We do not find this argument persuasive. Although Lentz describes
calculating the average value of the reflection coefficient over a pre-
determined time interval and also that the switched-to low-power operation
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will occur for a "pre-selected time" (Lentz 3:7-9, 8:60-63), Lentz discloses
that the switch between the high power mode and low power mode is made
when the average value of the reflection coefficient is less than a pre-
determined value. Lentz 8:6-9, 47---60; Fig. 5. Lentz discloses that the pre-
determined value is designed to "indicate [the] beginning of defrost in the
food item or the point at which the reflection coefficient undergoes the most
dramatic change." Id. at 8:57-60. Thus, Lentz suggests a direct correlation
between the reflection coefficient of a food item and power to be applied
when defrosting or thawing food items-i.e., a reflection coefficient lower
than a pre-determined value would suggest application of lower power to
improve defrosting/thawing. Because absorption is the converse of
reflection (id. at 1 :42--45), Lentz suggests an inverse correlation between
absorption capability of a food item and power to be applied when
defrosting or thawing food items.
Appellant further argues that "Lentz has no teaching of applying
energies at different frequencies" and "[t]here is no 'inverse relationship'
disclosed 'at the respective ones of the two or more radio frequencies,' as
required by the claims." Appeal Br. 20 (underlining omitted). We do not
find this argument persuasive in that the Examiner is not relying on Lentz
for applying energies at different frequencies, but on Fagrell for this feature.
See, e.g., Final Act. 8 ("Fagrell teaches providing an apparatus capable of
controlling many samples in parallel, with individual[] adjustments of
process parameters such as frequency, power, temperature, pressure, etc.
(Para. 24)"); id. at 10 ("Fagrell discloses at least one processing device 45
that is structurally capable of being used to supply the at least one radiating
element 12 two or more radio frequencies among the plurality of frequencies
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(Para. 162, 167-168, 202; Figures 1-3)"); Ans. 35 ("Fagrell ... teaches that
the controller varies the frequency and power of the radiation to the object in
respon[ se] to a predetermined threshold value (Para. 0167)"). Fagrell
recognizes that the dielectric properties of "starting and formed materials
during the chemical reaction ... are temperature dependent" and "known to
change with the frequency." Fagrell ,r 173. The Examiner then turns to
Lentz for teaching an inverse correlation between absorption capability of a
food item and power to be applied when defrosting or thawing food items.
The Examiner then suggests that Lentz's teachings would have led one of
ordinary skill in the art to modify Fagrell, such that when Fagrell controls
the frequency of the signal generator, it does so in a way in which the energy
supplied at each of the frequencies varies inversely with respect to the value
indicative of energy absorbable by the object at each frequency.
Appellant's representative at the oral hearing advanced a new
argument that had not been presented to the Examiner in the Appeal Brief or
Reply Brief. In particular, Appellant's representative argued that the
principles of operation of Fagrell and Lentz are "counter" to each other or
"at odds with one another" in that Fagrell seeks to determine the maximum
coupling where energy absorption is most efficient and deliver energy at
those settings, whereas Lentz seeks to reduce the power or energy at a
particular frequency when energy absorption is high. Tr. 14: 13-20.
Appellant's representative, however, conceded that the briefing did not
address the rationale for combining the references "in that way." Id. at
14:24--25.
As the argument was not properly before the Examiner, such that we
might have had the benefit of the Examiner's views on the argument in
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reaching our decision in this appeal, we have considered only those
arguments presented by Appellant in the briefs. See 37 C.F.R. § 41.47(e)(l):
"At the oral hearing, appellant may only rely on Evidence that has been
previously entered and considered by the primary examiner and present
argument that has been relied upon in the brief or reply brief except as
permitted by paragraph (e)(2) of this section." Paragraph (e)(2) of the
relevant section provides: "Upon a showing of good cause, appellant and/or
the primary examiner may rely on a new argument based upon a recent
relevant decision of either the Board or a Federal Court." Appellant has not
alleged that a circumstance of good cause is present here.
With respect to independent claim 34 in particular, Appellant further
argues that "Fagrell and Lentz both fail to determine any target energy
absorption amount, or calculate any amount of energy the object absorbs."
Appeal Br. 20 ( emphasis omitted). The Examiner finds that "Fagrell
discloses the signal generator and amplifier can be controlled in response to
the power absorbed in the sample." Final Act. 21 (citing Fagrell ,r 140).
Although Fagrell does not explicitly call out any amount of energy
absorption as being a "target energy absorption amount," Fagrell's teaching
of controlling the signal generator in response to the actual level of signal
energy absorbed in the applicator (Fagrell ,r 98, 140) is itself a teaching of
Fagrell having a target energy absorption amount in that there is an amount
that is desired, wanted, and/or needed so as to trigger controlling the
operation of the signal generator.
For the foregoing reasons, we sustain the rejection of claims 1, 32, 34,
and 37-39 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz.
We also sustain the rejection of claims 2, 4, 6, 8, 12-16, 19, 20, 22-30, 33,
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35, and 36, which depend therefrom and for which Appellant relies on the
same arguments and reasoning we found unpersuasive in connection with
the independent claims. Appeal Br. 21-23.
Dependent Claims 10 and 11
Dependent claims 10 and 11 require the processing device be
"configured to cause the at least one radiating element to apply RF energy to
the object in a predetermined amount." Appeal Br. 27 (Claims App.).
Appellant argues that "neither Fagrell nor Lentz discloses or suggests
applying energy 'in a predetermined amount" as required by claims 10 and
11." Id. at 21 ( emphasis omitted). Similar to the discussion above regarding
a "target energy absorption amount," we find Fagrell's teaching of
controlling the signal generator in response to the actual level of signal
energy absorbed in the applicator (Fagrell ,r 98, 140) is itself a teaching of
Fagrell having a predetermined amount in that there is an amount established
in advance so as to trigger controlling the operation of the signal generator.
Dependent claim 11 further recites that the "processing device is
configured to cause the ... radiating element to apply RF energy ... to
cause a phase change in at least a portion of the object." Appeal Br. 27
(Claims App.). The Examiner finds that Fagrell discloses that "at least one
processing device 45 is capable of causing the at least one radiating element
12, 18 to apply RF energy to the object 1 in a predetermined amount to
cause a phase change in at least a portion of the object." Final Act. 14
(citing Fagrell i-fi-f 179-82, 199, 201---04). Appellant argues that "the
references do not disclose or suggest applying energy to 'cause a phase
change in at least a portion of the object,' as required by claim 11." Appeal
Br. 21. Appellant's argument does not respond with sufficient particularity
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to the Examiner's finding regarding the capability of Fagrell's processing
device to apply energy so as to cause a phase change in at least a portion of
the object. For the foregoing reasons, we sustain the rejection of dependent
claims 10 and 11 under 35 U.S.C. § 103(a) as unpatentable over Fagrell and
Lentz.
Dependent Claim 17
Dependent claim 1 7 recites that the "processing device is further
configured to ... cause the energy to be supplied to the at least one radiating
element at the at least one frequency at an energy level less than a maximum
incident energy associated with a power amplifier supplying the energy to
the at least one radiating element." Appeal Br. 28-29 (Claims App.). The
Examiner finds that Fagrell discloses this limitation. Final Act. 17.
Appellant argues that "Fagrell does not disclose preventing energy supply at
frequencies that have higher energy absorption capabilities." Appeal Br. 22.
Appellant's argument is not persuasive because it is not commensurate with
the scope of claim 1 7, which does not require the prevention of energy at
frequencies that have higher energy capabilities. See In re Self, 671 F.2d
1344, 1348 (CCPA 1982) (noting that it is well established that limitations
not appearing in the claims cannot be relied upon for patentability). For the
foregoing reason, we sustain the rejection of dependent claim 17 under
35 U.S.C. § 103(a) as unpatentable over Fagrell and Lentz.
Dependent Claims 18 and 21
Dependent claim 18 recites that the "processing device is further
configured to ... prevent energy from being supplied to the at least one
radiating element at the at least one frequency [ wherein the value indicative
of energy absorbable by the object exceeds a predetermined threshold]."
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Appeal Br. 29 (Claims App.). Dependent claim 21 similarly recites that the
"processing device is further configured to ... prevent energy from being
supplied to the at least one radiating element at the at least one sub band
[ wherein a quality factor associated with the sub band is above a
predetermined threshold]." Id. at 30 (Claims App.). Appellant relies on the
same arguments made with respect to independent claim 43. Appeal Br. 22-
23. For the same reasons described above in connection with the rejection
of claim 4 3, we do not sustain the rejection of claims 18 and 21.
Rejection V
Appellant relies on the same arguments and reasoning we found
unpersuasive in connection with independent claim 1 as the basis for seeking
reversal of the rejection of claim 31. Appeal Br. 23. Accordingly, we also
sustain the rejection of claim 31 under 35 U.S.C. § 103(a) as unpatentable
over Fagrell, Lentz, and Hadinger.
CONCLUSION
In summary:
1-39,43 112 Indefiniteness 1-39,43
1, 8, 14, 112 Omission of 1, 8, 14,
16-20, 26- essential structural 16-20,
30, 32-39, cooperative 26-30,
43 relationship of 32-39,43
elements
43 102(b) Fa rell 43
1, 2, 4, 6, 8, 103(a) Fagrell, Lentz 1, 2, 4, 6, 18,21
10-30,32- 8, 10-17,
39 19,20,22-
30,32-39
18
Appeal2018-003163
Application 13/080,072
31
Overall
Outcome
103(a) Fagrell, Lentz,
Radin er
31
1, 2, 4, 6,
8, 10-17,
19,20,22-
39
3, 5, 7, 9,
18,21,43
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)(l )(iv).
AFFIRMED-IN-PART
19