Ex parte Berliner et al.

Board of Patent Appeals and Interferences

Jun 26, 1998

08069957 (B.P.A.I. Jun. 26, 1998)

Application for patent filed May 28, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte EDWARD F. BERLINER
JOHN P. KUHN, SCOTT A. RAWSON
and ANTHONY D. WHALEN
_____________
Appeal No. 95-1783
Application 08/069,9571
______________
HEARD: June 10, 1998
_______________
Before JERRY SMITH, BARRETT and CARMICHAEL, Administrative
Patent Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 95-1783
Application 08/069,957
2
This is a decision on the appeal under 35 U.S.C. § 134
from the examiner's rejection of claims 1-4, which constitute
all the claims in the application.
The disclosed invention pertains to a method and
apparatus for detecting the presence of a motor vehicle in a
detection zone. A plurality of sound transducers are
spatially arranged to detect sounds of motor vehicles within
the detection zone. Spatial and frequency discrimination
circuitry determines when a motor vehicle is within the
detection zone.
Representative claim 1 is reproduced as follows:
1. An apparatus for detecting the presence of a motor
vehicle (105) in a detection zone (107), said apparatus
comprising:
a first electro-acoustic transducer (201) for
receiving a first acoustic signal radiated from said motor
vehicle and for converting said first acoustic signal into a
first electric signal that represents said first acoustic
signal;
a second electro-acoustic transducer (203) for
receiving a second acoustic signal radiated from said motor
vehicle and for converting said second acoustic signal into a
second electric signal that represents said second acoustic
signal;
spatial discrimination circuitry (305) for creating a
third electric signal, based on said first electric signal and
Appeal No. 95-1783
Application 08/069,957
The examiner’s answer cites two additional references2
which have not been applied in any rejection and, therefore,
are not listed here.
3
said second electric signal, that substantially represents the
acoustic energy emanating from said detection zone;
frequency discrimination circuitry (317) for creating
a fourth signal based on said third signal; and
interface circuitry (119) for creating an output
signal based on said fourth signal such that said output
signal is asserted when said motor vehicle (105) is within
detection zone (107) and whereby said output signal is
retracted when said motor vehicle (105) is not within said
detection zone (107).

The examiner relies on the following references :2
Hendricks 3,047,838 July 31, 1962
Auer, Jr. (Auer) 3,445,637 May 20, 1969
DeMetz, Sr. (DeMetz) 5,060,206 Oct. 22, 1991
Stanzcyk 5,250,946 Oct. 05, 1993
(filed Feb. 10,
1992)
Claims 1-4 stand rejected under 35 U.S.C. § 103. As
evidence of obviousness the examiner offers DeMetz or Auer in
view of Hendricks with respect to claims 1, 2 and 4, and adds
Stanzcyk with respect to claim 3.
Appeal No. 95-1783
Application 08/069,957
4
Rather than repeat the arguments of appellants or the
examiner, we make reference to the brief and the answer for
the respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the
evidence of obviousness relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken
into consideration, in reaching our decision, the appellants'
arguments set forth in the brief along with the examiner's
rationale in support of the rejections and arguments in
rebuttal set forth in the examiner's answer.
It is our view, after consideration of the record
before us, that the evidence relied upon and the level of
skill in the particular art would not have suggested to one of
ordinary skill in the art the obviousness of the invention as
set forth in claims 1-4. Accordingly, we reverse.
We consider first the rejection of claims 1, 2 and 4
under 35 U.S.C. § 103 as unpatentable over the teachings of
DeMetz or Auer in view of Hendricks. Appellants have
indicated that these claims stand or fall together as a single
Appeal No. 95-1783
Application 08/069,957
5
group [brief, page 2]. Therefore, we will consider claim 1 as
the representative claim for this group.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In
so doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1, 17, 148 USPQ 459, 467 (1966), and to provide a reason why
one having ordinary skill in the pertinent art would have been
led to modify the prior art or to combine prior art references
to arrive at the claimed invention. Such reason must stem
from some teaching, suggestion or implication in the prior art
as a whole or knowledge generally available to one having
ordinary skill in the art. Uniroyal Inc. v. Rudkin-Wiley
Corp., 837 F.2d 1044, 1051, 5 USPQ2d 1434, 1438 (Fed. Cir.),
cert. denied, 488 U.S. 825 (1988); Ashland Oil, Inc. v. Delta
Resins & Refractories, Inc., 776 F.2d 281, 293, 227 USPQ 657,
664 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986); ACS
Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572,
1577, 221 USPQ 929, 933 (Fed. Cir. 1984). These showings by
Appeal No. 95-1783
Application 08/069,957
6
the examiner are an essential part of complying with the
burden of presenting a prima facie case of obviousness. Note
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992).
DeMetz teaches a marine acoustic detector which can
detect the presence of a specific type of aircraft within a
measurable zone. The examiner observes that DeMetz does not
teach a second electro-acoustic transducer or spatial
discrimination circuitry as recited in claim 1 [answer, page
3]. Auer teaches an apparatus using sonic detector means for
measuring traffic density. The examiner observes that Auer
does not teach spatial discrimination circuitry [Id., page 4].
The examiner cites Hendricks as a teaching of using a
plurality of traffic density detectors for detecting traffic
density in each of a plurality of street lanes. It is the
position of the examiner that the determination of traffic
volume in Hendricks from the traffic density signals is
equivalent to a spatial discrimination means for combining and
converting the detected electrical signals into an electrical
signal representative of the detected traffic [Id.]. The
examiner concludes that it would have been obvious within the
Appeal No. 95-1783
Application 08/069,957
7
meaning of 35 U.S.C. § 103 to employ the multiple detectors of
Hendricks with DeMetz or Auer to arrive at the claimed
invention.
Appellants argue that neither DeMetz nor Auer teaches
the two claimed electro-acoustic transducers and that
Hendricks does not cure this deficiency [brief, page 2].
DeMetz does not teach the claimed two transducers as admitted
by the examiner. Auer teaches two electro-acoustic
transducers, but the examiner notes that one of these
transducers is for transmitting signals and one is for
receiving signals [answer, page 3]. Therefore, Auer also does
not teach two different electro-acoustic transducers for
receiving acoustic signals as recited in claim 1.
As noted above, however, the examiner relies on
Hendricks to overcome this deficiency of DeMetz and Auer.
Appellants argue that there is no motivation to combine
Hendricks’ plural transducers with DeMetz or Auer because
DeMetz has no traffic density or volume problem and because
Auer’s speed-based Doppler shift system has no need for
spatial discrimination circuitry. We agree with appellants
that the artisan would find no motivation to combine the
Appeal No. 95-1783
Application 08/069,957
8
teachings of Hendricks with either DeMetz or Auer for the
reasons indicated by appellants.
Appellants also point out that Hendricks uses plural
sensing elements for monitoring plural zones such that there
is one sensor for each monitored zone. Although the examiner
finds that this operation teaches the claimed spatial
discrimination circuitry, appellants strongly disagree. We
again agree with appellants.
Claim 1 recites that the two different transducers
receive signals from the same motor vehicle. The transducers
in Hendricks are designed to receive signals from a specific
one of the street lanes. Thus, no two transducers in
Hendricks receive signals from the same motor vehicle so that
spatial discrimination circuitry is unnecessary. The
examiner’s finding that Hendricks teaches two transducers and
the spatial discrimination circuitry as recited in claim 1 is
clearly erroneous.
Although the examiner may view the point of contention
here to be minor or clearly obvious, the indisputable fact is
that this record does not support the examiner’s rejection.
We are not in a position to say whether there is any prior art
Appeal No. 95-1783
Application 08/069,957
9
which is better than that applied by the examiner. We can
say, however, that the prior art applied by the examiner does
not support the rejection formulated by him. Therefore, we do
not sustain the rejection of claims 1, 2 and 4.

Claim 3 depends from claim 1 and was rejected on the
same prior art with Stanzcyk added. Since Stanzcyk does not
overcome the deficiencies noted above in the combination of
DeMetz or Auer in view of Hendricks, we also do not sustain
the rejection of claim 3.
The decision of the examiner rejecting claims 1-4 is
reversed.
REVERSED
)
JERRY SMITH )
Administrative Patent Judge )
)
)
Appeal No. 95-1783
Application 08/069,957
10
) BOARD OF PATENT
LEE E. BARRETT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JAMES T. CARMICHAEL )
Administrative Patent Judge )
Mr. S. H. Dworetsky
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