Ex Parte McCanless

Patent Trials and Appeals Board

Jan 28, 2019

14696042 - (D) (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/696,042 04/24/2015 Forrest Starnes McCanless
20350 7590 01/30/2019
KILPATRICK TOWNSEND & STOCKTONLLP
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
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.
N0023-920210 8153
EXAMINER
CARTER, WILLIAM JOSEPH
ART UNIT PAPER NUMBER
2875
NOTIFICATION DATE DELIVERY MODE
01/30/2019 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):
ipefiling@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FORREST STARNES McCANLESS
Appeal 2018-004814
Application 14/696,042 1
Technology Center 2800
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
Opinion for the Board filed by HOUSEL, Administrative Patent Judge.
Opinion Dissenting filed by HASTINGS, Administrative Patent Judge.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
Appellant filed an appeal under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1-19.
We have jurisdiction under 35 U.S.C. § 6(b). 2
1 Appellant is the Applicant, ABL IP Holding LLC., which according to the
Appeal Brief is the real party in interest. Appeal Brief ("Appeal Br." 1) filed
October 11, 2017.
2 Our Decision additionally refers to the Specification ("Spec.") filed April
24, 2015, the Final Office Action ("Final Act.") dated December 15, 2016,
Appeal 2018-004814
Application 14/696,042
We AFFIRM-IN-PART.
The subject matter on appeal relates to tri-lobe optics; light rails
comprising, among other things, a tri-lobe optic; retrofit kits for a
fluorescent light fixture, the kits comprising, among other things, a tri-lobe
optic; and a light fixture comprising, among other things, a tri-lobe optic
(see, e.g., claims 1, 13, 14, and 17). The Inventors disclose that light
emitting diodes (LEDs) are increasingly used as light emitters instead of
fluorescent tubes because of their efficiency, reliability, and stability over
time, but LEDs emit light in a small emitting area, which makes them
uncomfortable to view directly. Spec. ,r,r 1-2, 20. In view of this, the
Inventors disclose embodiments that spread light from LEDs over an area
equivalent to the light emitting surface of a fluorescent tube, which
minimizes or eliminates viewing discomfort. Id. ,r 20.
Independent claim 1 is illustrative and is reproduced below from the
Claims Appendix of the Appeal Brief. 3 Limitations at issue are italicized.
1. A tri-lobe optic for a linear light source, the linear light
source defining a light emitting region along an axis, the tri-
lobe optic comprising:
an optical material forming:
an inner surface and an outer surface; and
a constant cross-sectional profile along a direction of the
axis from a first axial end to a second axial end, the cross-
sectional profile comprising:
a first azimuthal side relative to the axis;
concave and convex curves relative to the axis, the
curves being:
a first concave curve coupled with the first
the Examiner's Answer ("Ans.") dated February 12, 2018, and Appellant's
Reply Brief ("Reply Br.") filed April 6, 2018.
3 Appeal Br. 34--35.
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Appeal 2018-004814
Application 14/696,042
azimuthal side,
a first convex curve,
a second concave curve,
a second convex curve and
a third concave curve,
such that each of the concave curves defines
a lobe of the optical material along the direction of
the axis; and
a second azimuthal side relative to the axis,
coupled with the third concave curve;
wherein each of the inner surface and the outer surface
follow each of the concave and convex curves between the first
azimuthal side and the second azimuthal side.
REJECTIONS ON APPEAL
I. Claim 19 is rejected under 35 U.S.C. § 112(b) as being
indefinite;
II. Claims 1---6 and 9--18 under 35 U.S.C. § 103 as being
unpatentable over Yang4 in view ofNegishi5 and Ter-
Hovhannisian; 6 and
III. Claims 7 and 8 under 35 U.S.C. § 103 as being
unpatentable over Yang, Negishi, and Ter-Hovhannisian
and further in view of Suehiro. 7
4 Yang et al., US 2011/0228528 Al, published September 22, 2011
("Yang").
5 Negishi, US 4,734,836, issued March 29, 1988 ("Negishi").
6 Ter-Hovhannisian, US 7,121,675 B2, issued October 17, 2006 ("Ter-
Hovhannisian").
7 Suehiro et al., US 7,111,964 B2, issued September 26, 2006 ("Suehiro").
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Application 14/696,042
B. DISCUSSION
Rejection I
Claim 19 is rejected under 35 U.S.C. § 112(b) as being indefinite.
Appellant does not appeal the§ 112(b) rejection of claim 19. Appeal Br. 1,
fn. 1. Therefore, we summarily affirm this rejection.
Rejection II
Claims 1-6 and 9-18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Yang in view ofNegishi and Ter-Hovhannisian.
Appellant argues claims 1-6, 9-13, and 18 as a first group and claims
14--17 as a second group. Appeal Br. 14--32. For reasons addressed below,
we analyze claims 1---6 and 9-13 as a first group, claims 14--17 as a second
group, and claim 18 as a third group.
Claims 1---6 and 9-13
The Examiner finds Yang discloses a bi-lobe optic for a linear light
source having an optical material with a constant cross-sectional profile
along an axis from a first axial end to a second axial end, wherein the cross-
sectional profile includes a first azimuthal side, concave and convex curves,
and a second azimuthal side. Final Act. 3.
The Examiner finds Yang does not disclose a tri-lobe optic having the
curves recited in claim 1. Id. at 3--4. The Examiner finds Negishi discloses
a linear light source having a tri-lobe optic having the curves of claim 1 and
concludes it would have been obvious to modify Yang to use Negishi's tri-
lobe optic because Negishi demonstrates bi-lobe and tri-lobe optics are
alternatives that create a desired light output. Id. at 4.
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Application 14/696,042
The Examiner finds Ter-Hovhannisian discloses a light source having
inner and outer surfaces that follow concave and convex curves, as recited in
claim 1, and has a constant thickness, as recited in claim 18. Id. at 4--5. The
Examiner concludes it would have been obvious to use the shape of Ter-
Hovhannisian's surface in Yang's optic, as modified in view ofNegishi, to
provide a thinner optic that uses less material. Id. at 5.
Appellant asserts the Examiner's mischaracterizes Negishi because
Negishi does not disclose bi-lobe and tri-lobe optics as obvious alternatives.
Appeal Br. 15-1 7; Reply Br. 2-5. Appellant contends the Examiner's
proposed modification of Yang in view ofNegishi would not have been
obvious because Yang is devoted to achieving a batwing light distribution
while embodiments 2c and 2d in Negishi's Figure 4 produce parallel and
converging light distributions and thus different results. Appeal Br. 17-20;
Reply Br. 5, 8-10.
As an initial matter, we analyze the limitation "wherein each of the
inner surface and the outer surface follow each of the concave and convex
curves between the first azimuthal side and the second azimuthal side" to
determine its meaning and scope.
When applying the mode of claim construction applicable during
examination, we "give claims their broadest reasonable construction
consistent with the specification." In re ICON Health & Fitness, Inc., 496
F.3d 1374, 1379 (Fed. Cir. 2007). "Therefore, we look to the specification
to see if it provides a definition for claim terms, but otherwise apply a broad
interpretation." Id.
In the "Summary of Claimed Subject Matter" section of the Appeal
Brief, Appellant cites Figures 3 and 5-8 of their disclosure when explaining
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Appeal 2018-004814
Application 14/696,042
how inner and outer surfaces of a tri-lobe optic follow concave and convex
curves but also cites those drawings when explaining how such an optic has
a constant thickness across its width. Appeal Br. 3. Figures 3 and 5-8
depict optics 110, 210, 310 having a constant thickness between first and
second azimuthal sides 112(1 ), 112(2) ( see Figure 5) but do not clearly
define how the optics "follow" the concave and convex curves in those
drawings. Also, Appellant does not cite a passage of their Specification that
defines the "follow" limitation of claim 1. Nor does the limitation explicitly
appear in the Specification. Therefore, Appellant's disclosure does not
provide a definition for the "follow" limitation of claim 1.
"[T]he presence of a dependent claim that adds a particular limitation
gives rise to a presumption that the limitation in question is not present in
the independent claim." Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.
Cir. 2005) (en bane) (citing Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
898,910 (Fed. Cir. 2004)). Here, claim 18 depends from claim 1 and further
recites "wherein the optical material forms a constant thickness between the
inner surface and the outer surface, along the concave and convex curves."
Thus, under the doctrine of claim differentiation (i.e., that each claim has a
different scope), claim 1 does not require that the optical material has a
constant thickness, as recited in claim 18.
As noted above, we construe a claim by applying the broadest
reasonable interpretation in light of the Specification. In view of the little
guidance provided by Appellant's disclosure and the fact that claim 1 does
not require the constant thickness limitation of claim 18, we construe the
limitation "wherein each of the inner surface and the outer surface follow
each of the concave and convex curves between the first azimuthal side and
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Appeal 2018-004814
Application 14/696,042
the second azimuthal side" to mean the inner and outer surfaces of the
optical material include and extend along the concave and convex curves
between the first azimuthal side and the second azimuthal side.
We now analyze the Examiner's rejection of claim 1. Yang discloses
retrofit-style LED lamps for use with fixtures located within enclosed
storage structures, such as refrigeration cases. Yang ,r,r 2, 5, 7. The lamp
includes a linear batwing lens that produces a batwing type of beam pattern.
Id. ,r 21. Yang describes the batwing distribution as "substantially uniform
within a defined space" and that "[t]he substantial uniformity of the
distribution is such that the light, as beam shaped by the one-dimensional
linear batwing lens, fills up a defined space." Id. ,r 28.
Negishi discloses a fluorescent light emitting tube having a lens. As
described by Appellant (Appeal Br. 10-11), Negishi discloses changing the
shape of the lens to provide different light flux characteristics. Figure 4 of
Negishi is reproduced below.
2a
2
~... : . ,
2c .x-