Ex Parte ViceDownload PDFBoard of Patent Appeals and InterferencesJul 12, 201211541475 (B.P.A.I. Jul. 12, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte MICHAEL WENDELL VICE ____________________ Appeal 2010-001249 Application 11/541,475 Technology Center 2800 ____________________ Before: JOSEPH L. DIXON, JEAN R. HOMERE, and JAMES R. HUGHES, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001249 Application 11/541,475 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1- 20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to gate load impedance networks for field effect transistor attenuators and mixers. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An electrical circuit, comprising: a variable resistance shunt circuit having a first field effect transistor (FET) that includes: a gate with a conductive channel controlled by the gate; a first channel terminal connected to one end of the conductive channel; and a second channel terminal connected to the other end of the conductive channel, wherein the first channel terminal is coupled to a first signal-carrying node and the second channel terminal is coupled to an electrical ground or a virtual ground of the electrical circuit; and a linearizing circuit coupled to both the gate of the first FET and to the virtual ground, wherein the linearizing circuit is adapted to alter a driving point impedance of the first FET in a manner as to substantially improve the linearity of the first FET. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Nishibe Rofougaran US 6,542,045 B2 US 6,961,546 B1 Apr. 1, 2003 Nov. 1, 2005 Appeal 2010-001249 Application 11/541,475 3 REJECTIONS Claims 1-17 stand rejected under 35 U.S.C §112 second paragraph as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention. Claims 1-3, 5-10,13-16, 18 and 19 stand rejected under 35 U.S.C §102(b) as being anticipated by Nishibe. Claims 1-3, 12-16 and 18 stand rejected under 35 U.S.C §102(e) as being anticipated by Rofougaran. Claims 4, 11, 17, and 20 stand rejected under 35 U.S.C §103(a) as being unpatentable over Nishibe. OPINION 35 U.S.C. §112, SECOND PARAGRAPH Appellant argues claims 1-17 as a group (App. Br. 5). We select independent claim 1 as the representative claim for this group and address Appellant's arguments thereto. The Examiner maintains that: It is unclear to the examiner what is meant by "improving the linearity of the first FET". Other then [sic] merely mentioning that the linearity of the FET is improved, the specification provides no example or explanation as to how the linearity of the FET is improved. Does it result in the attenuation becoming more linear? Is the voltage response of the FET more linear? As a result the claim is unclear, and therefore indefinite. (Ans. 3). Appellant contends that the standard for reviewing a claim is based on "reading the claims in light of the supporting specification." (App. Appeal 2010-001249 Application 11/541,475 4 Br. 5; emphasis deleted). Appellant further contends that the definiteness is analyzed "in light of the teachings of the prior art and of the particular application disclosure as it would be interpreted by one possessing the ordinary level of skill in the pertinent art." (App. Br. 6; emphasis deleted). Appellant identifies paragraphs [0170] and [0230] (App. Br. 6-7) which mention "linearity" as it relates to a driving point impedance, but does not identify what aspect of "linearity" with respect to the operation of the FET. The Examiner maintains that "[s]pecifically the specification fails to define what is meant by the 'linearity of the FET'. Without first defining what is meant by the 'linearity of the FET' it is impossible to disclose how that linearity is improved." (Ans. 11). We agree with the Examiner that Appellant has not addressed the merits of the rejection with respect to what aspect of "linearity of the FET" is intended in the claimed invention as set forth by the Examiner in the statement of the rejection. Therefore, Appellant has not shown error in the Examiner's rejection based upon a lack of particularity and distinctness in the claimed invention. Therefore, we will sustain the rejection of representative independent claim 1 under § 112, second paragraph. Appeal 2010-001249 Application 11/541,475 5 35 U.S.C. §102 With respect to the Nishibe reference, Appellant argues claims 1-3, 5- 10, 13-16 and 18-19 as a group. (App. Br. 7). We select independent claim 1 as the representative claim for this group and address Appellant's arguments thereto. The Examiner maintains that: Since the appellant has failed to properly define the "linearity of the FET" and thereby how to improve it, the examiner has taken the broad reasonable interpretation that the linearity of the FET directly correlates to the slope of the attenuation curve. Therefore when the linearizing circuit determines the slope of the determining circuit it is altering the driving the point impedance of the first FET and thereby improving the linearity of the FET. This is basic circuit analysis with no reliance on inherency. (Ans. 12). We agree with the Examiner that the Nishibe reference teaches the claimed circuit as broadly recited in independent claim 1. (Ans. 4, 12). Similarly, we agree with the Examiner that the language of independent claim 1 should have a broad interpretation (Ans. 12) since there is no recited field of use, frequency range, or other limitations with which to impart further context to the claimed "electrical circuit." We further find the language "wherein the linearizing circuit is adapted to …" to recite a statement of intended use, which does not distinguish over the prior art teachings of the Nishibe reference. A statement of intended use does not distinguish the invention from the prior art. (Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1346 (Fed. Cir. 2003) (“An intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates.”)) Furthermore, the statement does not provide any meaningful metric to evaluate how linearity is substantially Appeal 2010-001249 Application 11/541,475 6 improved. Therefore, we find Appellant's contentions regarding anticipation to be insufficient to show error in the Examiner's showing of anticipation of representative claim 1. With respect to the Rofougaran reference, Appellant presents arguments for claims 1-3, 12-16 and 18 as a group (App. Br. 12). We select independent claim 1 as the representative claim for this group and address Appellant's arguments thereto. Appellant provides similar arguments as discussed above with respect to Nishibe (App. Br. 13) and maintains that "a claim rejection must be based on objective evidence of record, and cannot be supported merely on subjective belief and unknown authority…No such concrete evidence has been provided by the Examiner here". (App. Br. 11). While we agree with Appellant that a rejection must be based upon objective evidence, we find that the Examiner has provided objective evidence of the "electrical circuit…" and Appellant has not identified why the circuit of Rofougaran does not anticipate the broad claim language regarding the "electrical circuit" of independent claim 1. The Examiner maintains a similar line of reasoning as discussed above with the Nishibe reference and showing of the "electrical circuit" of representative claim 1. (Ans. 8-9; 12-13). We agree with the Examiner and find that the proffered distinction is directed to a statement of intended use, which does not distinguish over the prior art teachings of the Rofougaran reference. Furthermore, the statement does not provide any meaningful metric to evaluate how linearity is substantially improved. Therefore, we find Appellant's contentions regarding anticipation to be insufficient to show error in the Examiner's showing of anticipation of representative claim 1. Appeal 2010-001249 Application 11/541,475 7 35 U.S.C. §103 With respect to the rejection based upon obviousness of claims 4, 11, 17, and 20, Appellant relies upon the arguments advanced with respect to independent claim 1 which we found unpersuasive of error in the Examiner's showing anticipation. Since Appellant has identified no further basis for a showing of error, we find Appellant's argument to be unpersuasive of error in the Examiner's showing of obviousness. CONCLUSIONS OF LAW Appellant did not show that the Examiner erred in rejecting independent claim 1 based upon a lack of particularity and distinctness in the claimed invention. Appellant did not show that the Examiner erred in rejecting independent claim 1 based upon anticipation. DECISION For the above reasons, the Examiner’s § 112, second paragraph rejection of claims 1-17 is affirmed. The Examiner’s anticipation rejections of claims 1-3, 5-10, 12-16, 18, and 19 are affirmed. The Examiner’s obviousness rejection of claims 4, 11, 17, and 20 is affirmed. 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) (2009). See 37 C.F.R. § 41.50(f). Appeal 2010-001249 Application 11/541,475 8 AFFIRMED tkl Copy with citationCopy as parenthetical citation