Ex Parte KendallDownload PDFPatent Trial and Appeal BoardMay 14, 201411606724 (P.T.A.B. May. 14, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID R. KENDALL ____________ Appeal 2012-007031 Application 11/606,724 Technology Center 2800 ____________ Before JEFFREY T. SMITH, LINDA M. GAUDETTE, and KAREN M. HASTINGS, Administrative Patent Judges. PER CURIAM. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 1, 2, 4-9, 15, 16, 18-21 and 26 under Appeal 2012-007031 Application 11/606,724 2 35 U.S.C. § 102(b) as anticipated by Boockholdt.1 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Claim 1 is illustrative (emphasis added): 1. A method of estimating toner remaining in a toner cartridge installed in a printer, the method comprising: estimating toner remaining in said toner cartridge installed in said printer using an adaptive term, said adaptive term being an expression comprising a value that is adjusted based on actual printer toner usage for a different toner cartridge previously installed in said printer. Independent claims 15 and 26 are respectively drawn to a corresponding printer control and system using an adaptive term for estimating toner remaining in a toner cartridge. ANALYSIS We have thoroughly reviewed each of Appellant’s arguments for patentability. However, we determine that a preponderance of the evidence supports the Examiner’s finding that the claimed subject matter of the rejected claims is anticipated within the meaning of § 102 in view of the applied prior art of Boockholdt. Accordingly, we will sustain all of the Examiner’s rejection for essentially those reasons expressed in the Answer, including the Examiner’s Response to Argument section, and we add the following primarily for emphasis. 1 Boockholdt et al., US 5,794,094, patented Aug. 11, 1998 (shares the common assignee of Hewlett-Packard Co. with the instant case on appeal) Appeal 2012-007031 Application 11/606,724 3 “[T]he PTO must give claims their broadest reasonable construction consistent with the specification. . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” Id. The only limitation in dispute is whether Boockholdt’s description of using artificial intelligence based on historical usage information from previous toner cartridges to estimate toner remaining in a cartridge encompasses using “an adaptive term,” with “said adaptive term being an expression comprising a value that is adjusted” based on actual prior printer toner usage as recited in claim 1 (and corresponding similar language in claims 15 and 26). A preponderance of the evidence supports the Examiner’s position that the artificial intelligence model of Boockholdt would inherently include an adaptive term since Boockholdt discusses that the artificial intelligence model includes historical information of previous toner usage (e.g., Ans. 5, 12). Notably, Appellant has not directed our attention to any persuasive reasoning or credible evidence to establish that the Examiner’s interpretation is unreasonable, and/or to establish that the Examiner’s position that such an adaptive term would have been inherent in such an artificial intelligence model is unreasonable. Appellant has also not directed us to any portion of the Specification that limits the definition of “adaptive term” to exclude the type of historical usage information found in Boockholdt’s artificial intelligence model as pointed out by the Examiner (id. at 12). Appeal 2012-007031 Application 11/606,724 4 Appellant’s arguments further focus on the use of a toner sensor in Boockholdt (App. Br. 9, 10). As pointed out by the Examiner, however, Appellant’s Specification also includes the use of a toner level sensor (Ans. 11; Spec. para. [0052]). Each independent claim uses the term “comprising,” and thus does not preclude the use of a toner level sensor. Accordingly, we affirm the Examiner’s anticipation rejection. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. ORDER AFFIRMED cdc Copy with citationCopy as parenthetical citation