RANLOS AB

Patent Trials and Appeals Board

Dec 31, 2020

2019005434 (P.T.A.B. Dec. 31, 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.
15/113,641 07/22/2016 Per-Simon KILDAL 1003301-000555 4567
21839 7590 12/31/2020
BUCHANAN, INGERSOLL & ROONEY PC
1737 King Street
Suite 500
ALEXANDRIA, VA 22314-2727
EXAMINER
YANG, JIANXUN
ART UNIT PAPER NUMBER
2664
NOTIFICATION DATE DELIVERY MODE
12/31/2020 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):
ADIPDOC1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PER-SIMON KILDAL
_____________

Appeal 2019-005434
Application 15/113,641
Technology Center 2600
____________

Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP A. BENNETT, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–9, 18, 19, and 32–35. Claims 10–17, 20–31 and 36 are canceled.
We have jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a) (2019). According to Appellant, the real party in interest
is the Assignee of record for this application, Ranlos AB. See Appeal Br. 2.
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STATEMENT OF THE CASE 2
Introduction
Appellant’s claimed invention relates to “a new compact and cost-
effective test chamber/apparatus for wireless communication in automotive
applications.” Spec. ¶ 1.

Representative Independent Claim 1
1. An apparatus for measuring over-the-air (OTA)
wireless communication performance in an automotive
application of a device under test arranged on or in a vehicle,
comprising:

a chamber defining an internal cavity therein, and

a platform for supporting the vehicle,

wherein the chamber is adapted to enclose the platform,

wherein the platform is a rotatable platform that can rotate the
vehicle, and

wherein the floor of the chamber is inwardly reflective, and
covered with a top layer to resemble asphalt or other road
covers.

Claims App. 1 (disputed “wherein” clause limitation emphasized).

2 We herein refer to the Final Office Action, mailed July 28, 2017 (“Final
Act.”); Appeal Brief, filed March 26, 2018 (“Appeal Br.”); and the
Examiner’s Answer, mailed February 4, 2019 (“Ans.”). We note a
Supplemental Appeal Brief (hereinafter Supp. Brief) was filed on February
4, 2019 that provided an amended “Summary of the Claimed Subject
Matter” section. No Reply Brief was filed.
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Prior Art Patent Evidence
Name Reference Date
Zerod et al. (“Zerod”) US 5,739,695 April 14, 1998
Mohan et al.
(“Mohan”)
US 6,137,992 Oct. 24, 2000
Hayes et al. (“Hayes”) US 6,371,240 B1 April 16, 2002
Disbrow, Jr. et al.
(“Disbrow”)
US 2010/0013722 A1 Jan. 21, 2010
Yang et al. (“Yang”) WO 2014/062112 A1 Sept. 30, 2013
Non-Patent Evidence
Skårbratt et al., Over-the Air Performance Testing of Wireless Terminals by
Data Throughput Measurements in Reverberation Chamber, Proceedings of
the 5th European Conference on Antenna and Propagation (EUCAP) 2011.
Google, Honda Accord 2010 Dimensions, Nov. 3, 2016
Google, U-Haul 20 foot truck, Nov. 3, 2016
Rejections
Rejection Claims
Rejected
35 U.S.C. § Reference(s)/Basis
A 1, 4, 7 103

Skårbratt, Mohan, Hayes
B 2 103

Skårbratt, Mohan, Hayes, Zerod
C 3, 5, 6, 8 103 Skårbratt, Mohan, Hayes,
Disbrow
D 9 103 Skårbratt, Mohan, Hayes, Yang
E 18, 19 103 Skårbratt, Mohan, Hayes, Zerod,
Google (Honda), U-Haul
F 32 103 Skårbratt, Mohan
G 33 103 Skårbratt, Mohan, Zerod
H 34, 35 103 Skårbratt, Mohan, Disbrow
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ANALYSIS
Rejection A under 35 U.S.C. § 103
As an initial matter of claim construction, we list below the claimed
abbreviations (acronyms), which we construe as terms of art:
1) “OTA testing” is the acronym for “Over-The-Air testing.” See Spec.
1, l. 24.
2) “RIMP environment” is the acronym for a Rich Isotropic Multipath
environment. See Spec. 7, l. 21.
3) “RC” is the acronym for Reverberation Chamber. See Spec. 2, l. 5–6.
4) Further regarding RCs, see Appellant’s Specification:
In a first embodiment, as illustrated in Fig. 1, the
apparatus comprises a reverberation chamber (RC). The
reverberation chamber 1 has walls of an inwardly
reflective material, rendering the walls reflective to
electromagnetic waves, thereby emulating a multi-path
environment, and preferably a rich isotropic multipath
(RIMP) environment. Thus, the internal chamber formed
in the chamber is preferably completely shielded, having
reflecting material, such as metal, on all walls and floor
and ceiling. The floor of the chamber is inwardly
reflective, but optionally covered with a top layer to
resemble asphalt or other road covers.
Spec. 15. (emphasis added).
Under 35 U.S.C. § 103, we focus our analysis on the following argued
limitation regarding Rejection A of representative independent claim 1.
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Issue: Did the Examiner err by finding that Skårbratt, Mohan, and Hayes
collectively, teach or suggest the disputed limitation:
“wherein the floor of the chamber is inwardly reflective,
and covered with a top layer to resemble asphalt or other road
covers[,]”
within the meaning of independent claim 1? (emphasis added).3
The Examiner finds Mohan’s signals that are reflected from the floor
inside the chamber teach or suggest the disputed claim 1 limitation “wherein
the floor of the chamber is inwardly reflective.” Final Act. 4, citing Mohan,
Fig. 7, col. 4, ll. 60–65. The Examiner also finds Hayes’ anechoic walls and
ceilings with acoustically reflective floors, e.g., floors made of concrete or
asphalt, teach or suggest the disputed claim 1 limitation “covered with a top
layer to resemble asphalt or other road covers.” Final Act. 5, citing Hayes,
Fig. 1, col. 2, ll. 30–45.
The Examiner clarifies that Skarbratt’s reverberation chamber uses an
absorbing material that produces a specific signal delay spread which
“implicitly teaches that the material used inside the chamber should be
somewhat reflective and carry certain characteristic[s] of the materials used
in an outdoor environment.” Ans. 21. The Examiner finds that Hayes’
semi-anechoic rooms or chambers having anechoic walls and ceilings and
acoustically reflective floors, in which the floors are made of concrete,
asphalt, steel, or other materials, teach the disputed claim 1 limitation:
“covered with a top layer to resemble asphalt or other road covers.” Id.

3 Throughout this opinion, we give the contested claim limitations the
broadest reasonable interpretation (BRI) consistent with the Specification.
See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
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Appellant particularly urges that Hayes does not cure the deficiencies
of the Skarbratt and Mohan cited references because
[T]he inward reflectiveness described by the claims arises
from the conductive property of materials, and does not
arise from the presence of asphalt or road covers. Notably,
the specification also explains “the floor/metal can
additionally be covered with something to resemble a top
layer of asphalt or road covers.” Id. at 6, 7, 15. Hayes,
however, lacks any description of a conductive material
for providing an inwardly reflective floor as recited in the
claims.
Appeal Br. 6 (emphasis added).
Claim Construction
As an initial matter of claim construction, we turn to Appellant’s
Specification for context, and note that the Specification, at page 5, lines
7–8, inter alia, is referenced by Appellant in the Supp. Brief, page 2, as
providing written description support for the disputed last recited “wherein”
clause limitation of “wherein the floor of the chamber is inwardly reflective,
and covered with a top layer to resemble asphalt or other road covers.”
Claim 1 (emphasis added).
See Appellant’s Specification:
wherein the platform is a rotatable platform that can rotate
the vehicle, and wherein the floor of the chamber is
inwardly reflective, and optionally covered with a top
layer to resemble asphalt or other road covers.
Spec. p. 5, ll. 7–8 (emphasis added).
Regarding Appellant’s argument that Hayes teaches how metals and
other materials “can be acoustically reflective but not inwardly reflective”
(Appeal Br. 7), as pertaining to the claim 1 limitation “wherein the floor of
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the chamber is inwardly reflective” (emphasis added), we note Appellant
attempts to distinguish the apparatus of claim 1 in terms of function, not
structure.
Regarding apparatus claims generally, our reviewing court guides the
patentability of an apparatus claim “depends on the claimed structure, not on
the use or purpose of that structure.” Catalina Marketing Int'l., Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). “It is well settled
that the recitation of a new intended use for an old product does not make a
claim to that old product patentable.” In re Schreiber, 128 F.3d 1473, 1477
(Fed. Cir. 1997) (citations omitted). See also Paragon Solutions, LLC v.
Timex Corp., 566 F.3d 1075, 1090 (Fed. Cir. 2009). “[A]pparatus claims
cover what a device is, not what a device does.” Hewlett-Packard Co. v.
Bausch & Lomb, Inc., 909 F.2d 1464, 1468 (Fed.Cir.1990).
Moreover, “where a patentee defines a structurally complete invention
in the claim body and uses the preamble only to state a purpose or intended
use for the invention, the preamble is not a claim limitation.” Rowe v. Dror,
112 F.3d 473, 478 (Fed. Cir. 1997); accord Catalina, 289 F.3d at 809 (a
preamble is not regarded as limiting “when the claim body describes a
structurally complete invention such that deletion of the preamble phrase
does not affect the structure or steps of the claimed invention.”).
Such is the case here regarding apparatus claim 1. Following our
reviewing court’s guidance, we conclude the statement of intended use
recited in the preamble of claim 1 (“an apparatus for measuring over-the-air
(OTA) wireless communication performance in an automotive application of
a device under test arranged on or in a vehicle . . .” (emphasis added)) does
not limit the scope of the claim, because the preamble phrase does not affect
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the structure of the claimed invention. Catalina, 289 F.3d at 809. We
conclude the body of apparatus claim 1 describes a structurally complete
invention such that deletion of the preamble phrase does not affect the
structure of the claimed invention. See Id.
Therefore, Appellant’s arguments pertaining to the disputed
“wherein” clause claim 1 limitation (“the floor of the chamber is inwardly
reflective”) are only applicable to the extent that the property of the floor of
the claimed “chamber” being “inwardly reflective” is construed as a
structural property of the floor, e.g., including the type of material the floor
is made of, such as steel and/or asphalt, and not its intended function of
being inwardly reflective.
Turning to the evidence, and based upon our review of the record, we
find a preponderance of the evidence supports the Examiner underlying
factual findings and ultimate legal conclusion of obviousness, for at least the
reasons which follow.
In particular, Hayes expressly describes in pertinent part:
According to currently accepted standards, semianechoic rooms
or chambers, i.e., those with anechioic walls and ceilings but
with acoustically reflective floors, e.g., floors made of concrete,
asphalt, steel, or other metals or materials, can deviate from the
inverse square law by a maximum of about 3 dB depending on
frequency.
Hayes col. 2, ll. 37–42 (emphasis added).
Although Appellant provides no limiting definition for the claim 1
term “inwardly reflective” in the Specification, we nevertheless compare the
above description from Hayes with Appellant’s own non-limiting,
exemplary description in the Specification: “The floor should be inwardly
reflective, and e.g. be of metal, or of other conductive material(s), but the
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floor/metal can additionally be covered with something to resemble a top
layer of asphalt or other road covers.” Spec. 6, ll. 24–27.
Applying our claim construction from above, we find Hayes (id.)
teaches the equivalent structure of reflective materials that are capable of
inwardly reflecting both acoustic sound waves and RF (Radio Frequency)
electromagnetic radiation within the claimed “chamber” of claim 1.
Thus, we find a person of ordinary skill in the art would have
understood the steel floor described in Hayes (col. 2, l. 40) to have provided
reflective properties to both acoustic sound waves and to radio frequency
signals at the time of Appellant’s invention. Therefore, we find the floor
embodiments taught by Hayes at column 2, lines 37–42, teach or suggest the
disputed last recited “wherein” clause limitation of claim 1, when combined
with the teachings and suggestions of Skårbratt and Mohan.
Regarding the collective teachings of Skårbratt, Mohan, and Hayes,
we emphasize that “‘the question under 35 USC 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made.’” Merck & Co.
v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976)). (emphasis added); see also
MPEP § 2123.
Given the aforementioned evidence cited by the Examiner (Final Act.
2–5), we find Appellant’s contentions are unavailing. Moreover, Appellant
does not traverse the Examiner’s findings and clarifications in the Answer as
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no Reply Brief was filed. Arguments not made are forfeited.4 See 37 C.F.R.
§ 41.37(c)(1)(iv).
Motivation to Combine
Appellant additionally argues that the Examiner has not properly
combined the cited Skårbratt, Mohan, and Hayes references under 35 U.S.C.
§ 103. Appellant specifically contends:
Nor is there any commonality between Skarbratt and Mohan
with respect to Hayes. Hayes is directed to an anechoic chamber
for sound emissions testing. This is an entirely different type of
emissions than the electromagnetic emissions that Skarbratt and
Mohan contemplate. Indeed, Hayes sets forth how surfaces
made of "concrete, asphalt, steel, or other metals or materials"
are acoustically reflective. Hayes therefore only contemplates
these materials for their acoustic properties, and does not
consider whether or not these types of surfaces have any
relevance to the electromagnetic emissions that Skarbratt seeks
to emulate, and that Mohan seeks to measure. Appellant
therefore respectfully submits that there is no reason a person of
ordinary skill in the art would i) consider the disclosure of
Skarbratt, ii) turn to the teachings of Mohan regarding the
measurement of actual audio distortion caused by electrical
vehicle components, and iii) modify the system described by
Skarbratt with the teachings of Mohan. Nor is there a reason a
person of ordinary skill in the art would iv) further turn to the

4 See In re Google Technology Holdings LLC, 2020 WL 6685948, slip op. at
* 3 (Fed. Cir. 2020):
It is well established that “[w]aiver is different from forfeiture.” United
States v. Olano, 507 U.S. 725, 733 (1993).[] “Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.’” Id. (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two
scenarios can have different consequences for challenges raised on appeal,
id. at 733–34, and for that reason, it is worth attending to which label is the
right one in a particular case.
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teachings of Hayes and v) further modify the combination of
Skarbratt and Mohan with the further modifications described
by Hayes.
Appeal Br. 5.
We are not persuaded by Appellant’s motivation-to-combine
argument (id.) because Appellant’s argument is based upon the preamble of
claim 1, which recites an intended use: “An apparatus for measuring over-
the-air (OTA) wireless communication performance in an automotive
application of a device under test arranged on or in a vehicle” (emphasis
added).
Similar to our discussion above, “[g]enerally, the preamble does not
limit the claims.” Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336,
1346 (Fed. Cir. 2002). Furthermore, the preamble has no separate limiting
effect if, for example, “the preamble merely gives a descriptive name to the
set of limitations in the body of the claim that completely set forth the
invention.” IMS Tech., Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1434-
35 (Fed.Cir.2000); see also Am. Med. Sys., Inc. v. Biolitec, Inc., 618 F.3d
1354, 1359 (Fed. Cir. 2010).
As explained above, we decline to give patentable weight to the
preamble of apparatus claim 1, because the claim recites a complete
structure within the body of the claim. See Rowe, 112 F.3d at 478; accord
Catalina, 289 F.3d at 809.
Therefore, on this record, we find the Examiner (Final Action 2–5,
Ans. 19–21) has provided a sufficient “rational underpinning to support
the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Moreover, “if a technique has been used to improve one device, and a person
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of ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.” KSR, 550 U.S. at 417.
This reasoning is applicable here. Nor does Appellant point to any
evidence of record that shows combining the respective teachings of
Skårbratt, Mohan, and Hayes in the manner found by the Examiner (Final
Act. 4–7) would have been “uniquely challenging or difficult for one of
ordinary skill in the art” or would have “represented an unobvious step over
the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Therefore, based upon a preponderance of the evidence, we are not
persuaded of error regarding the Examiner’s underlying factual findings and
ultimate legal conclusion of obviousness regarding Rejection A of
independent representative claim 1.
Accordingly, we sustain the Examiner’s obviousness Rejection A
of independent representative claim 1. The remaining grouped dependent
claims 4 and 7, also rejected under Rejection A (and not argued separately)
fall with representative independent claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv)(2017). Accordingly, we sustain the Examiner’s
obviousness Rejection A of claims 1, 4, and 7.
Rejection F of Independent Claim 32 under 35 U.S.C. § 103
Regarding independent claim 32, Appellant argues that someone of
ordinary skill in the art would not have combined Skårbratt and Mohan
as proposed by the Examiner because Skårbratt contemplates “using
a simulation of a real-life multipath scattering environment, and Mohan
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describes a system where actual measurements of the audio system noise are
taken so that the effects of the activation of different vehicle components can
be characterized.” Appeal Br. 7. Appellant “submits that there is no reason
a person of ordinary skill in the art would i) consider the disclosure of
Skarbratt, ii) turn to the teachings of Mohan regarding the measurement of
actual audio distortion caused by electrical vehicle components, and iii)
modify the system described by Skarbratt with the teachings of Mohan.”
Appeal Br. 7–8 (emphasis added).
We are not persuaded by Appellant’s arguments because Appellant
does not address the Examiner’s specific finding of motivation.5 The
Examiner finds an artisan would have incorporated:
the teachings of Mohan et al into the system or method of
Skarbratt et al in order to enable an RF test chamber capable of
measuring OTA wireless communication quality of a vehicle
equipped with wireless devices for better understanding wireless
communication in a vehicle environment. The combination of
Skarbratt et al and Mohan et al also teaches other enhanced
capabilities.
Final Act. 15.
As noted above, no Reply Brief was filed. Arguments not made are
forfeited. See 37 C.F.R. § 41.37(c)(1)(iv). Because Appellant does not
substantively traverse the Examiner’s specific finding of motivation for
combining Skårbratt and Mohan (Final Act. 15), on this record we are not
persuaded the Examiner erred. Accordingly, we sustain the Examiner’s

5 The presence or absence of a reason “to combine references in an
obviousness determination is a pure question of fact.” In re Gartside, 203
F.3d 1305, 1316 (Fed. Cir. 2000) (citing In re Dembiczak, 175 F.3d 994,
1000 (Fed. Cir. 1999)).
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obviousness Rejection F of remaining independent claim 32 over the cited
combination of Skårbratt and Mohan.
Rejections B, C, D, E, G, and H under 35 U.S.C. § 103
The remaining dependent claims, as rejected under Rejections B, C,
D, E, G, and H were not argued separately. Arguments not made are
forfeited. See 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we sustain the
Examiner’s obviousness Rejections B, C, D, E, G, and H of the remaining
dependent claims on appeal.

CONCLUSION
The Examiner did not err in rejecting claims 1–9, 18, 19, and 32–35
as being obvious under 35 U.S.C. § 103, over the cited combinations of
references.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4, 7 103 Skårbratt, Mohan,
Hayes
1, 4, 7
2 103 Skårbratt, Mohan,
Hayes, Zerod
2
3, 5, 6, 8 103 Skårbratt, Mohan,
Hayes, Disbrow
3, 5, 6, 8
9 103 Skårbratt, Mohan,
Hayes, Yang
9
18, 19 103 Skårbratt, Mohan,
Hayes, Zerod,
Google, U-Haul
18, 19
32 103 Skårbratt, Mohan 32
33 103 Skårbratt, Mohan,
Zerod
33
34, 35 103 Skårbratt, Mohan,
Disbrow
34, 35
Overall
Outcome
1–9, 18, 19
32–35

FINALITY AND 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)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED