14439445 (P.T.A.B. Dec. 17, 2018)

Ex Parte Florczak

Patent Trial and Appeal BoardDec 17, 2018

14439445 (P.T.A.B. Dec. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/439,445 04/29/2015 39231 7590 12/19/2018 SMITH LAW OFFICE 8517 EXCELSIOR DRIVE, SUITE 402 MADISON, WI 53717 FIRST NAMED INVENTOR Keld Florczak 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. 10016.591 6406 EXAMINER WANG,JACKK ART UNIT PAPER NUMBER 2687 NOTIFICATION DATE DELIVERY MODE 12/19/2018 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): JWS@JSMITHPATENTLAW.COM paralegal@j smithpatentlaw .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KELD FLORCZAK 1 Appeal2018-002445 Application 14/439,445 Technology Center 2600 Before JEAN R. HOMERE, NABEEL U. KHAN, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-13, all pending claims of the application. Appeal Br. 1. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 According to Appellant, the real party in interest is GEA Farm Technologies GmbH. See Appeal Brief 3. Appeal2018-002445 Application 14/439,445 STATEMENT OF THE CASE Introduction Appellant's invention is directed to "achiev[ing a] real time position of [an] animal in a limited area." Spec. 1 :28-29. 2 Illustrative Claims Claims 1 and 10 are independent. Claims 1 and 10 are illustrative of the claimed subject matter and are reproduced below with limitations at issue emphasized: 1. A system for real time detection of the position of a plurality of animals held in a limited area, the system comprising: a fixed reference radio transmitter tag disposed in the limited area; a plurality of radio receiver/transmitter animal tags capable of being carried by animals moving in the limited area; a sensor, in wireless communication with the fixed reference radio transmitter tags and the radio receiver/transmitter animal tags, based on a time or a phase delay of received signals at the sensors from the radio receiver/transmitter animal tags; a position detector comprising: a computer that calculates an optimal placement of the sensor for communicating with the radio receiver/transmitter animal tags and the fixed reference radio transmitter tag in the limited area; and for calculating an optimal placement of the fixed reference radio transmitter tag, and then receives a signal 2 Throughout this Decision, we refer to: (1) Appellant's Specification filed April 29, 2015 ("Spec."); (2) the Final Office Action ("Final Act.") mailed February 23, 2017; (3) the Appeal Brief filed September 5, 2017 ("Appeal Br."); (4) the Examiner's Answer ("Ans.") mailed November 1, 2017; and the Reply Brief filed December 29, 2017 ("Reply Br."). 2 Appeal2018-002445 Application 14/439,445 from the fixed reference radio transmitter tag to calibrate the system and then measure a position of at least one of the radio receiver/transmitter animal tags. 10. A method for configuration and operation of an animal position detector system for detecting positions of a plurality of animals, with each animal carrying at least one radio receiver/transmitter tag, the method comprising the following steps: a: defining at least one limited area for the animals to be detected in the animal position detection system, b: dividing the limited area into a number of sub areas, c: calculating a number of sensors for monitoring the limited area; d: calculating an optimal position for each sensor; e: defining a number of fixed reference radio receiver/transmitter tags; f: calculating an optimal position for each fixed reference radio receiver/transmitter tag; g: installing each sensor and each fixed reference radio receiver/transmitter tag at its calculated optimal position within the area and sub area; h: performing a calibration test of the system by sensing signals from the fixed reference radio receiver/transmitter tag; i: calculating an actual position of at least one animal carrying a radio receiver/transmitter tag; and j: calculating activity of at least one animal. Appeal Br. 21, 23. 3 Appeal2018-002445 Application 14/439,445 REFERENCE AND REJECTIONS Claims 1, 2, and 8-13 stand rejected under pre-AIA 35 U.S.C. Â§ I02(b) as anticipated by Guice et al. (US 2002/0010390 Al, published Jan. 24, 2002) ("Guice"). Final Act. 3--4. Claims 3-7 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Guice and Chung et al. (US 2007 /026813 8 A I ,published Nov. 22, 2007) ("Chung"). Final Act. 4--7. Our review in this appeal is limited only to the above rejections and the issues raised by Appellant. Arguments not made are waived. See 37 C.F.R. Â§Â§ 4I.37(c)(l)(iv), 4I.39(a)(l). ANALYSIS 35 US.C. Â§ 102 Rejection of Claim 1 Issue: Whether the Examiner errs in finding Guice discloses "a computer ... for calculating an optimal placement of the fixed reference radio transmitter tag," as recited in illustrative claim 1. The Examiner finds Guice's processing device 70 discloses "a computer," as claimed and Guice's "wireless receivers, transmitters, transceivers, and/or transponders 62, 64, 66[,]" disclose "a fixed reference radio transmitter tag," as recited in claim 1. Final Act. 2-3 ( citing Guice Fig. 1, items 64, 66, 70). Appellant argues the Examiner errs in finding Guice discloses the limitations at issue because "Guice et al. does not even contemplate using a system computer to select locations for sensors or fixed reference tags." Appeal Br. 12. Appellant also argues transponders 64 and 66 are not fixed reference tags as claimed. Id. 4 Appeal2018-002445 Application 14/439,445 The Examiner finds Appellant's arguments unpersuasive because, in Guice, in order for the system to be able to receive the information from the telesensors embedded in each livestock, the effective receiving distance and the minimal signal strength is inherently to be considered prior to selecting and fixed the location of the radio transmitter tag receiver, wherein the optimal location is an subjective term with respect to the maximum efficiency in the system that requires determination of signal to noise ratio which was not found in the specification. Ans. 3. We agree with Appellant that the Examiner's findings are not supported by substantial evidence. "[ A ]n invention is anticipated if the same device, including all the claim limitations, is shown in a single prior art reference. Every element of the claimed invention must be literally present, arranged as in the claim." Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236 (Fed. Cir. 1989) (citations omitted). Here, we disagree with the Examiner's finding that Guice inherently discloses using a computer "for calculating an optimal placement of the fixed reference radio transmitter tag," as recited in claim 1. On this record, we find the Examiner has not explained sufficiently why this limitation is necessarily disclosed by Guice' s illustration of transponders 64, 66 communicating wirelessly with relays 62 or sensors 80. See Guice Fig. 1. Because we agree with at least one of the dispositive arguments advanced by Appellant for claim 1, we need not reach the merits of Appellant's other arguments. Accordingly, based on the record before us, we do not sustain the Examiner's 35 U.S.C. Â§ 102 rejection of independent claim 1, and, for the same reasons, of dependent claims 2, 8, and 9. 5 Appeal2018-002445 Application 14/439,445 35 USCÂ§ 102 Rejection of Claim 10 Issue: Whether the Examiner errs in finding Guice discloses "calculating a number of sensors for monitoring the limited area," as recited in illustrative claim 10. The Examiner finds Guice' s illustration of transponder 62 discloses the disputed limitation because "[ t ]his step can be easily perform by a human prior to setup the system." Final Act. 4 ( citing Guice Fig. 1 showing pens 12, sensors 62). Appellant argues Guice fails to disclose "calculating the number of sensors to be used in animal monitoring, and there is no citation in the office action to a disclosure of such a calculation." Appeal Br. 12. We find Appellant's argument persuasive. "A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros., Inc. v. Union Oil Co. of California, 814 F.2d 628,631 (Fed. Cir. 1987). "[D]ifferences between the prior art reference and a claimed invention, however slight, invoke the question of obviousness, not anticipation." Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008) Here, because the Examiner relies on the inference that calculating a number of sensors in Guice "can be easily perform[ ed] by a human prior to setup [ of] the system" rather than on an express or inherent disclosure in Guice, we are not persuaded the Examiner has shown Guice anticipates claim 10. Final Act. 4. That is, the Examiner has not shown there are no differences between Guice and the claimed invention, as recited in claim 10. 6 Appeal2018-002445 Application 14/439,445 Because we agree with at least one of the dispositive arguments advanced by Appellant for claim 10, we need not reach the merits of Appellant's other arguments. Accordingly, based on the record before us, we do not sustain the Examiner's 35 U.S.C. Â§ 102(b) rejection of independent claim 10, and, for the same reasons, dependent claims 11-13. 35 USCÂ§ 103 Rejection of Claims 3-7 We do not sustain, for similar reasons, the 35 U.S.C. Â§ 103(a) rejection of claims 3-7, which depend from claim 1 and, thus, also recite the limitation at issue. DECISION We reverse the Examiner's decision to reject claims 1, 2, and 8-13 under 35 U.S.C. Â§ 102(b). We reverse the Examiner's decision to reject claims 3-7 under 35 U.S.C. Â§ 103(a). REVERSED 7