Stephen J. Kelly et al.

Patent Trials and Appeals Board

Jan 31, 2020

14587798 - (D) (P.T.A.B. Jan. 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.
14/587,798 12/31/2014 Stephen J. KELLY H0044450 5593
113760 7590 01/31/2020
HONEYWELL/OLIFF PLC
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
MILLER, BRIAN E
ART UNIT PAPER NUMBER
2688
NOTIFICATION DATE DELIVERY MODE
01/31/2020 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):
OfficeAction113760@oliff.com
SPSIP@honeywell.com
patentservices-us@honeywell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
___________

Ex parte STEPHEN J. KELLY and PAVEL NIKITIN
____________

Appeal 2018-004721
Application 14/587,7981
Technology Center 2600
____________

Before JOSEPH L. DIXON, HUNG H. BUI, and
JON M. JURGOVAN, Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) from the
Examiner’s Final rejection of claims 1–7 and 9–13. Claim 8 has
beenwithdrawn from consideration. Appeal Br. A-2, Claims App. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.2

1 We use the word “Appellant” to refer to “applicant(s)” as defined in 37
C.F.R. § 1.42. The real party in interest is INTERMEC IP
CORPORATION. Appeal Br. 1.
2 Our Decision refers to Appellant’s Appeal Brief filed November 24, 2017
(“Appeal Br.”); Reply Brief filed April 2, 2018 (“Reply Br.”); Examiner’s
Answer mailed February 1, 2018 (“Ans.”); the Final Office Action mailed
April 3, 2017 (“Final Act.”); and the original Specification filed December
31, 2014 (“Spec.”).
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STATEMENT OF THE CASE
Appellant’s invention is directed to adaptive reader systems (e.g.,
RFID readers) that “learn[] the state of each [RFID] tag and how long the
tag takes to charge,” thereby learning “how often it [(the RFID reader)]
should query a particular RFID tag.” (Spec. ¶¶ 6, 18.) According to
Appellant, the RFID reader may “adjust its querying pattern, giving each
RFID tag enough time to recharge,” such that “[t]ags that charge relatively
quickly can be accessed more frequently,” but for “[tags] that do not charge
as quickly, readings can be performed at much longer intervals allowing the
tag a long time to gather enough energy to complete the transaction.” (Id.)
Independent claims 1 and 9, reproduced below, are exemplary of the
subject matter on appeal.
1. An RFID reader comprising:
an antenna that sends, at first time intervals, interrogation
signals to an RFID tag that harvests energy from a source other
than the RFID reader;
a controller that:
identifies responses received from the RFID tag in
response to the interrogation signals sent to the RFID tag,
in response to a determination that the RFID tag did
not respond to at least one of the interrogation signals, the
controller increases the first time interval to a second time
interval;
sets an interrogation signal interval of the RFID
reader to the second time interval so that the interrogation
signals are sent at the second time intervals.

9. An RFID reader comprising:
an antenna that sends, at first time intervals, interrogation
signals to an RFID tag that harvests energy from a source other
than the RFID reader;
a controller that:
identifies responses received from the RFID tag in
response to the interrogation signals sent to the RFID tag,
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in response to a determination that the RFID tag
responded to all of the interrogation signals, the controller
decreases the first time interval to a second time interval;
sets an interrogation signal interval of the RFID
reader to the second time interval so that the interrogation
signals are sent at the second time intervals.

Appeal Br. A-1, A-2, A-3 (Claims App.).

Evidence Considered

Name Reference Date
Bridgelall et al.
(“Bridgelall”)
US 2007/0096876 A1 May 3, 2007

Examiner’s Rejections
(1) Claims 1–7 and 9–13 stand rejected under 35 U.S.C. § 112(b)
as being indefinite. Final Act. 2–3.
(2) Claims 1–5 and 9–13 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Bridgelall. Final Act. 3–4.
ANALYSIS
§ 112(b) Indefiniteness Rejection of Claims 1–7 and 9–13
Independent claims 1 and 9 recite a RFID reader comprising “an
antenna that sends, at first time intervals, interrogation signals to an RFID
tag that harvests energy from a source other than the RFID reader.”
The Examiner asserts the “‘RFID tag’ is not an element of an RFID
reader, and as such, the metes and bounds of the claim(s) [1 and 9] cannot be
ascertained.” Final Act. 2. The Examiner also finds claims 3, 4, 6, 7, and 11
indefinite because (i) “claims 6, 7 include limitations directed only to the
RFID tag,” (ii) “claim 3 (and similarly for claim 11), recites ‘that the
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interrogation signals sent to the RFID tag are sent at a higher frequency’”
which “is vague, as it is not readily apparent whether ‘frequency’ pertains to
the rate that the signals are sent or to the RF of the signal being transmitted,”
and in “claim 3, the language ‘wherein the controller increases the first time
interval to a third time interval,’ is misdescriptive, since a previous claim
already sets forth that the controller sets the ‘interrogation signal interval’ to
a second time interval,” and (iii) in claim 4, the claimed “controller
increases the third time interval to a time interval between the first time
interval and the third time interval” is “misdescriptive, as it is presumed that
the ‘third time interval’ is the longest, so any time interval between the first
and third time interval would be a decrease not an increase.” Final Act. 2–3.
Whether a claim is indefinite is an issue of claim construction and a
question of law. Cordis Corp. v. Boston Scientific Corp., 561, F.3d 1319,
1331 (Fed. Cir. 2009). “The legal standard for definiteness is whether a
claim reasonably apprises those of skill in the art of its scope.” In re
Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). The “inquiry therefore is
merely to determine whether the claims do, in fact, set out and circumscribe
a particular area with a reasonable degree of precision and particularity.” In
re Moore, 439 F.2d 1232, 1235 (CCPA 1971). During prosecution, we
apply the approach for assessing indefiniteness approved by the Federal
Circuit in Packard, i.e., “[a] claim is indefinite when it contains words or
phrases whose meaning is unclear” or “if a claim is amenable to two or more
plausible claim constructions.” Ex parte McAward, Appeal 2015-006416,
2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential as to Section
I.B) (citing In re Packard, 751 F.3d 1307, 1310 (Fed. Cir. 2014); Ex parte
Kenichi Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008) (precedential).
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Here, we agree with Appellant’s arguments regarding claims 1 and 9.
Particularly, Appellant argues that the meaning of claims 1 and 9 is clear
because claim 1 (and similarly, claim 9) is directed to an RFID reader that
includes “an antenna that sends, at first time intervals, interrogation signals
to an RFID tag that harvests energy from a source other than the RFID
reader,” thus “referenc[ing] a particular type of tag that the RFID reader,
which claim 1 is directed to, communicates with.” Appeal Br. 7.
We find the scope of the subject matter embraced by claims 1 and 9 is
clear, i.e., claims 1 and 9 recite, inter alia, energy-harvesting characteristics
of an RFID tag (i.e., the tag “harvests energy from a source other than the
RFID reader”) with which the claimed RFID reader’s antenna
communicates. We further agree with Appellant the scope of claims 6 and 7
is clear as these claims merely clarify what claim 1’s “source other than the
RFID reader” may be: “an energy source from an antenna separate from the
RFID reader” (per claim 6) or “a transducer producing an ultrasonic wave”
(per claim 7). Appeal Br. 7–8. That is, claims 6 and 7 provide details
regarding the energy-harvesting characteristics of the RFID tag with which
claim 1’s RFID reader communicates.
With respect to claim 3, we find the phrase “the interrogation signals
sent to the RFID tag are sent at a higher frequency” is clear and refers to the
frequency with which the interrogation signals are sent by the RFID reader’s
antenna to the RFID tag (e.g., a number of interrogation signals sent to tag in
a unit of time), whereby—as recognized by a skilled artisan—the frequency
is inversely proportional to the signals’ time interval (as recited in claim 3,
i.e., the “third time interval”). In other words, claim 3’s “higher frequency”
indicates that claim 3’s frequency of sending interrogation signals (inversely
proportional to the “third time interval”) is set to be higher than claim 1’s
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frequency of sending interrogation signals (inversely proportional to claim
1’s “second time interval”). Similarly, claim 11’s “lower frequency”
indicates claim 11’s frequency of sending interrogation signals (inversely
proportional to claim 11’s “third time interval”) is set to be lower than base
claim 9’s frequency of sending interrogation signals (inversely proportional
to claim 9’s “second time interval”). As such, we agree with Appellant that
the scope of “wherein the controller increases the first time interval to a third
time interval” in claims 3 and 11 is clear, as it merely indicates that “the
time interval in claim 1 is increased to the second time interval and then in
claim 3, the time interval is increased to the third time interval—resulting in
the controller increasing the first time interval to a third time interval” (and,
for claim 11, that the time interval in claim 9 is decreased from the first time
interval to the second time interval, and then in claim 11 the time interval is
increased to a third time interval). Reply Br. 2.
For these reasons, we decline to sustain the Examiner’s rejection of
claims 1, 9, 6, 7, 3, and 11 under 35 U.S.C. § 112(b) as being indefinite. We
also decline to sustain the Examiner’s rejection of claims 2, 5, 10, 12, and 13
that depend from claims 1 and 9.
With respect to claim 4, however, we agree with the Examiner that the
limitation “the controller increases the third time interval to a time interval
between the first time interval [smaller than the third time interval, per claim
3] and the third time interval” is unclear, because it would be unclear to a
skilled artisan how the third time interval can be increased to a value that
less than the third time interval itself or increased to a value is already equal
to the third time interval itself. See Final Act. 2–3. That is, it is unclear how
the range recited in claim 4 (“between the first time interval and the third
time interval”) could control an increase in the “third time interval” itself.
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[U]nder the broadest reasonable interpretation when read in light
of the Specification, [the phrase ‘the controller increases the third
time interval to a time interval between the first time interval and
the third time interval’] is vague and unclear, and a person having
ordinary skill in the art would not be able to discern the metes
and bounds of the claimed invention in light of this claim
language.
Ex parte McAward, 2015–006416 (PTAB Aug. 25, 2017) (precedential).
Accordingly, we sustain the Examiner’s rejection of claim 4 under
35 U.S.C. § 112(b) as indefinite
§ 103 Rejection of Claims 1–3, 5, and 9–13
With respect to claims 1 and 9, the Examiner finds Bridgelall teaches
Appellant’s claimed “controller” that “in response to a determination that the
RFID tag did not respond to at least one [or responded to all] of the
interrogation signals,” “increases [or decreases] the first time interval to a
second time interval” and “sets an interrogation signal interval of the RFID
reader to the second time interval so that the interrogation signals are sent at
the second time intervals.” Final Act. 3–4 (citing Bridgelall ¶¶ 34, 36, 46–
47, Fig. 3). Particularly, the Examiner finds “the number of interrogation
signals sent [in each of claims 1 and 9] could be only one” and “the reader of
Bridgelall would necessarily send at least one interrogation signal to the
appropriate RFID tag, then modifying/optimizing the ‘reader rate’ interval
depending on this data, would have been encompassed by the teachings of
Bridgelall (see para [0046]).” Ans. 6. The Examiner then asserts
“decreas[ing] the frequency [of] interrogation signals as a consequence of
not getting a response [per claim 1], or increasing frequency when there is a
response [per claim 9]” would have been obvious “through routine
engineering optimization and predictive modeling techniques (see Bridgelall
para [0046]–[0047][)], in order to improve the reader’s read rate and reduce
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power consumption, both advantages . . . well known design goals in the
art.” Final Act. 4 (citing Bridgelall ¶¶ 36, 46–47). We do not agree.
We agree with Appellant that (1) both claims 1 and 9 require “a
plurality of ‘interrogation signals’” (not “only one” as the Examiner asserts,
see Ans. 6), and (2) Bridgelall does not teach or suggest the “very specific
condition [in claim 1] for the increasing to occur and [the] very specific
condition [in claim 9] for the decreasing to occur—both of which are based
on whether the previous interrogation signals have all been responded to or
not by the RFID tag.” Reply Br. 4; see also Appeal Br. 10–12. For
example, paragraph 46 of Bridgelall describes “[p]redictive modeling
techniques [that] can be used to automatically improve or optimize a
reader’s read rate” such as “a predictive model using historical read rate data
over specified time period (e.g., 5 minutes, 10 minutes, 1 hour, 1 day, or
more) [that] can cause the reader to read less or more often based on this
information,” and “[i]f tags are infrequently presented or the tag population
infrequently changes, the reader can initiate a read less often.” See
Bridgelall ¶ 46. This section of Bridgelall merely teaches a predictive model
determining the RFID read rate based on historical read rates, but “says
nothing about changing an interrogation interval based on whether a tag has
responded to all previous interrogations or not” and does not teach an
increase or decrease in an RFID’s read rate “in response to a determination
that the RFID tag responded to all of the interrogation signals” (as in claim
9) or based on a “determination . . . that a single RFID tag does not respond
to the interrogation signals” that are “sent at the same first time intervals” (as
in claim 1). Appeal Br. 11; Reply Br. 3, 6. Paragraph 47 of Bridgelall also
teaches two or more predictive models “such as a short term and long term
model” being combined to adjust an RFID’s read rate by “set[ting] the
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maximum and minimum read rates” and “chang[ing] the read rate between
the maximum and minimum read rates defined by the long term model.”
See Bridgelall ¶ 47. However, this section of Bridgelall does not teach or
suggest the conditional changes in RFID read rates recited in claims 1 and 9.
Thus, we disagree with the Examiner that Bridgelall’s teaching that
“[i]f tags are infrequently presented or the tag population infrequently
changes[sic], the reader can initiate a read less often” would suggests the
conditional changes in RFID read rates recited in claims 1 and 9. See Ans. 5
(citing Bridgelall ¶ 46). We also agree with Appellant that the Examiner has
not shown that “increasing or decreasing the interrogation signals in
response to whether the tag has responded to all of the previous
interrogation signals” would be a known design goal that could be gleaned
from Bridgelall. Reply Br. 4; Appeal Br. 10.
Thus, for the reasons set forth above, we do not sustain the
Examiner’s obviousness rejection of independent claims 1 and 9, and claims
2, 3, 5, and 10–13 dependent therefrom. Because the above-discussed issues
are dispositive as to the obviousness rejections of claims 1–3, 5, and 9–13,
we do not reach additional issues raised by Appellant’s arguments as to the
§ 103 rejections of claims 2, 3, 5, and 10–13. See Appeal Br. 12–13; Reply
Br. 7.
§ 103 Rejection of Claim 4
Review of the rejection of claim 4 under 35 U.S.C. § 103 would
require considerable speculation as to the scope of the claim. Such
speculation would not be appropriate. In re Steele, 305 F.2d 859, 862
(CCPA 1962) (“[W]e do not think a rejection under 35 U.S.C. § 103 should
be based on such speculations and assumptions.”). We, therefore, decline to
reach the 35 U.S.C. § 103 rejection of claim 4 as a result of our affirmance
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of the indefiniteness rejection of claim 4, and the uncertain meaning of the
phrase “the controller increases the third time interval to a time interval
between the first time interval and the third time interval.”

CONCLUSION
On the record before us, we conclude Appellant has demonstrated the
Examiner erred in rejecting: (1) claims 1–3, 5–7, and 9–13 under
35 U.S.C. § 112(b) as being indefinite; and (2) claims 1–3, 5, and 9–13
under 35 U.S.C. § 103. However, we conclude Appellant has not
demonstrated the Examiner erred in rejecting claim 4 under
35 U.S.C. § 112(b) as being indefinite.

DECISION SUMMARY
As such, we AFFIRM the Examiner’s final rejection of claim 4 under
35 U.S.C. § 112(b) as being indefinite. However, we REVERSE (1) the
Examiner’s final rejection of claims 1–3, 5–7, and 9–13 under
35 U.S.C. § 112(b) as being indefinite, and (2) the Examiner’s final rejection
of claims 1–3, 5, and 9–13 under 35 U.S.C. § 103.

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9–13 112(b) indefiniteness 4 1–3, 5–7, 9–
13
1–3, 5, 9–13 103 Bridgelall 1–3, 5, 9–13
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
4 103 Bridgelall Not
reached3
Not
Reached4
Overall
Outcome
4 1–3, 5–7,
9–13

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).

AFFIRMED-IN-PART

3,4 As explained above, we do not reach this rejection. Steele, 305 F.2d at
862 (“[W]e do not think a rejection under 35 U.S.C. § 103 should be based
on such speculations and assumptions.”).