Ex Parte Freyer et al

Board of Patent Appeals and Interferences

Apr 30, 2010

10504382 (B.P.A.I. Apr. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ANDREAS FREYER,
ANDREE ROSS, and
WOLFGANG THEIMER,
Appellants
____________________

Appeal 2010-002093
Application 10/504,3821
Technology Center 1600
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Decided: May 3, 2010
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Before CAROL A. SPIEGEL, DONALD E. ADAMS, and
STEPHEN WALSH, Administrative Patent Judges.

SPIEGEL, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from an Examiner's final
rejection of claims 1-4, 6, 7, 10, and 14 (Br. 2; Ans.2 2). Claims 15-23, the
only other pending claims, have been withdrawn from consideration (FR3 1).
We have jurisdiction under 35 U.S.C. § 134. We AFFIRM.

1 The real party in interest is NOKIA CORPORATION (Brief for Appellant,
filed 17 April 2009 ("Br."), 2).
2 Examiner's Answer mailed 6 August 2009 ("Ans.").
3 Final Rejection mailed 8 July 2008 ("FR").
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I. Statement of the Case
The subject matter on appeal is directed to a method of wirelessly
transmitting an odor from an odor encoder (electronic nose) to an odor
decoder (odor generator), e.g., tele-smelling. Claim 1 is illustrative (Br. 6):
A method comprising:
- sensing odor information at an odor sensing
device,
- coding said odor information, said odor
information comprising at least an odor type and a
corresponding odor strength,
- transmitting said coded odor information to a
processor via a wireless communication system,
- processing said coded odor information by
mapping parts of said coded odor information in
accordance with a predefined processing rule for
converting said coding, wherein said odor
information is adapted to properties or
characteristics of an odor emitting unit,
- transmitting said odor information toward
said odor emitting device, via the wireless
communication system,
- decoding said processed odor information,
and
- using said odor emitting device to generate
an emitted odor according to the decoded odor
information.

The Examiner rejected claims 1-4, 6, 7, 10, and 14 as unpatentable
under 35 U.S.C. § 103(a) over the combined teachings of Keller4 and
Swartz5 (Ans. 3-6).

4 Keller et al., Transmission of Olfactory Information for Telemedicine,
INTERACTIVE TECHNOLOGY AND THE NEW PARADIGM FOR HEALTHCARE,
Morgan et al. (eds.), IOS Press and Ohmsha (1995), pp. 168-172 ("Keller").
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The Examiner found that Keller taught transmitting coded odor
information to a processor (Ans. 3) and transmitting the processed odor
information toward an odor generation system (id. at 3-4), but differed from
the claimed invention in failing to teach "wireless" communication (id. at 5).
The Examiner found that Swartz teaches a hand held terminal device that
transmits and receives product information via a wireless communication
system, senses odor, and generates a signal corresponding to the sensed odor
(id.). The Examiner concluded that it would have been obvious to integrate
the coding, processing, and decoding of odor information as taught by Keller
with the wireless transmission of product data as taught by Swartz because
Swartz teaches that the odor sensor can be used to sense odor of produce and
the terminal can use the input from the sensor to determine if the produce is
spoiled and transmit the odor information in places such as grocery stores
(id.).
Acknowledging that the Swartz device transfers bar code, voice, and
product data information via an antenna (wirelessly), Appellants argue that
the device only transfers odor information via circuitry to an internal
processor (Br. 4).
Since Appellants have not argued the patentability of any dependent
claim separately, we decide this appeal on the basis of claim 1, the sole
independent claim. 37 C.F.R. § 41.37(c)(1)(vii).
The dispositive issue is whether the combined teachings of Keller and
Swartz teach or suggest wireless transmission of coded odor information

5 U.S. Patent 6,464,144 B1, Hand Held Terminal with an Odor Sensor,
issued 15 October 2002, based on application 09/573,582, issued 18 May
2000, to Swartz et al. ("Swartz").
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from an odor sensing device to a processor and wireless transmission of
processed odor information from the processor to an odor emitting device.
II. Findings of Fact
The following findings of fact ("FF") are supported by a
preponderance of the evidence of record.
A. Keller
[1] Figure 1 of Keller illustrates an "electronic nose" comprising an
array of chemical sensors coupled to an artificial neural network
("ANN") which has been previously "trained" to recognize the
unique signatures (sensed patterns) of known odors (Keller abstract;
170, ¶ 2). Figure 1 is reproduced below.

[2] Figure 3 of Keller illustrates sample sensor responses to known
odors and ANN classifications (maps). The odor information from a
sensor comprises an odor type and a corresponding odor strength.
Figure 3 is reproduced below.

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Figure 3 shows sample sensor responses and ANN classifications.
[3] In use, the sensor array "smells" an odor, the sensor signals are
digitized and fed into, i.e. transmitted to, a computer, and the ANN
identifies the odor, which can then be transmitted to an odor
regeneration system (Keller 170, ¶ 5).
[4] Figure 4 of Keller illustrates a "tele-smelling" system comprising an
odor identification system (electronic nose), a transmission channel
for relaying odor information, and an odor regeneration system
(Keller 170, ¶ 6). Figure 4 is reproduced below.

[5] Keller is silent regarding the type of transmission channel used to
relay odor information.
B. Swartz
[6] Figure 1 of Swartz illustrates a device which combines an "electronic
nose" with a portable communications terminal 1 having a touch
screen 4, a speaker 16, a microphone 17 which converts voice
signals into electrical signals, log-in/log-out buttons 21/22 for
establishing/terminating cellular communications between the
terminal 1 and a remote party, an opening 23 for an odor sensor 36
which converts odors to electrical signals processed by a processor
31 in the terminal 1, and a laser beam 14 source for reflected light 15
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off a bar code 10 through transmission window 13 for detection and
processing by the circuitry within terminal 1 (Swartz 1:66-67; 2:29-
26; 3:3-11, 19-26). Figure 1 is reproduced below.

Figure 1 shows a portable shopping terminal.
[7] Terminal 1 uses antenna 8 to communicates with a remote party via a
cellular telephone network, i.e., "antenna 8 transmits and receives
bar code, voice and product data" (Swartz 3:28-33).
[8] Figure 2 of Swartz shows a schematic of the device's circuitry.
Figure 2 is reproduced below.

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Figure 2 is a schematic drawing of a terminal's computer system.
[9] According to Swartz, wireless communication circuit 35 for sending
and receiving data can be a Bluetooth communication module, a
WAN (wide area network) circuit, a LAN (local area network), etc.
(Swartz 3:41-44).
III. Discussion
A. Legal principles
An invention is obvious if "the differences between the subject matter
sought to be patented and the prior art are such that the subject matter as a
whole would have been obvious . . . to a person having ordinary skill in the
art to which said subject matter pertains." 35 U.S.C. § 103. The factual
inquiries underlying obviousness include (1) the scope and content of the
prior art, (2) the differences between the prior art and the claims at issue, (3)
the level of ordinary skill in the art at the time the invention was made, and
(4) any objective evidence of non-obviousness. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966).
“The consistent criterion for determination of obviousness is whether
the prior art would have suggested to one of ordinary skill in the art that this
process should be carried out and would have a reasonable likelihood of
success, viewed in the light of the prior art.” In re Dow Chem. Co., 837 F.2d
469, 473 (Fed. Cir. 1988). In determining whether obviousness is
established by combining the teachings of the prior art, “the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Furthermore, in KSR Int’l v. Teleflex Inc., 550 U.S. 398, 415 (2007), the
Supreme Court rejected a rigid application of a teaching-suggestion-
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motivation test in the obviousness determination. The Court emphasized
that “the [obviousness] analysis need not seek out precise teachings directed
to the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” Id. at 418; see also id. at 421 (“A person of ordinary
skill is . . . a person of ordinary creativity, not an automaton.”). Thus, an
“[e]xpress suggestion to substitute one equivalent for another need not be
present to render such substitution obvious.” In re Fout, 675 F.2d 297, 301
(CCPA 1982).
“Obviousness does not require absolute predictability of success. . . .
[A]ll that is required is a reasonable expectation of success.” In re O'Farrell,
853 F.2d 894, 903-04 (Fed. Cir. 1988).
B. Analysis
Here, we agree with the Examiner that the claimed subject matter
would have been obvious over the combined teachings of Keller and Swartz.
In particular, Keller teaches the claimed method of "tele-smelling" but for
wireless transmission of the digitized and the processed odor information
(FF 1-4). Swartz teaches a device comprising sensors for voice, bar codes,
and odors which converts input from the sensors into electrical signals which
are then processed by a microprocessor (FF 6). Swartz teaches transmitting
and receiving electrical signals that have been stored and processed by the
device's microprocessor, i.e., bar code, voice, and product data, via a
wireless communication system (FF 7-8).
Appellants argue that Swartz teaches transferring odor information via
circuitry, not wirelessly, to an internal processor (Br. 4). This argument
overlooks the well-settled proposition that one cannot show nonobviousness
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by attacking references individually where, as here, the rejection is based on
a combination of references. In re Keller, 642 F.2d at 426. Keller teaches a
"tele-smelling" system comprising an odor identification system, a
transmission channel for relaying odor information, and an odor
regenerating system (FF 4). At issue is whether to use a wireless
communication system as the transmission channel.
In our opinion, in addition to expressly teaching transmitting and
receiving processed and stored bar code, voice, and product data (FF 6-8),
Swartz also fairly suggests transmitting and receiving another electrical
signal also being stored and processed by the device's microprocessor, i.e.,
odor information data, with a reasonable expectation of success. Thus, we
agree with the Examiner that it would have been obvious to use the wireless
communication system taught by Swartz as the transmission channels of
Keller in order to "tele-smell" odors to a remote party as suggested by
Swartz. As explained by the Examiner, such "tele-smelling" would allow a
remote party such as a grocery store ordering produce to determine whether
the produce is fresh or spoiled (Ans. 5, 7).
We note that Appellants have not submitted any objective evidence of
non-obviousness for our consideration, e.g., secondary considerations of
unexpected results.
C. Conclusion
Therefore, we agree with the Examiner that the combined teachings of
Keller and Swartz teach or suggest wireless transmission of coded odor
information from an odor sensing device to a processor and wireless
transmission of processed odor information from the processor to an odor
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emitting device. Consequently, we will sustain the rejection of claims 1-4, 6,
7, 10, and 14 under § 103 over Keller and Swartz.
IV. Order
Upon consideration of the record, and for the reasons given, it is
ORDERED that the decision of the Examiner to reject claims 1-4, 6, 7, 10,
and 14 as unpatentable under 35 U.S.C. § 103(a) over the combined
teachings of Keller and Swartz is AFFIRMED; and,
FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a).
AFFIRMED

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