Ex Parte Kamlah

Board of Patent Appeals and Interferences

May 29, 2012

09940092 (B.P.A.I. May. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
09/940,092 08/27/2001 Siegfried Kamlah GR 00 P 16715 5991
24131 7590 05/29/2012
LERNER GREENBERG STEMER LLP
P O BOX 2480
HOLLYWOOD, FL 33022-2480
EXAMINER
SYED, NABIL H
ART UNIT PAPER NUMBER
2612
MAIL DATE DELIVERY MODE
05/29/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SIEGFRIED KAMLAH
____________

Appeal 2009-014459
Application 09/940,092
Technology Center 2600
____________

Before SCOTT R. BOALICK, BRUCE R. WINSOR, and
JENNIFER S. BISK, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-9
1
, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
“[Appellant’s] invention relates to an anti-theft system for a motor
vehicle and a method for operating an anti-theft system for a motor vehicle
with which door locks can be locked or unlocked and an immobilizer
released.” (Spec. 1:8-11).
A vehicle-mounted transmitter emits an interrogation code
signal in a wave having elliptical or circular polarization. A
portable receiver evaluates the received signal only if it receives
field components in at least two spatial directions. If the
interrogation code signal is accepted by the receiver, a response
code signal is transmitted back to the motor vehicle as proof of
authorization.
(Abstract). Claim 1, which is illustrative of the invention, reads as follows:
1. An anti-theft system for a motor vehicle, comprising:
a vehicle-mounted transceiver unit for emitting an
interrogation signal, said transceiver unit having an antenna
unit emitting a wave having one of an elliptical polarization
and a circular polarization and the wave including the
interrogation signal;
a portable code transmitter transmitting back a response signal
only after receiving the interrogation signal having one of the
elliptical polarization and the circular polarization; and

1
We note plural inconsistencies in the record in the identification of the
claims under appeal (see, e.g., Ans. 9; Reply Br. 4). We rely on the Final
Rejection Office Action Summary and Appellant’s statement of the status of
claims (App. Br. 2).
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a vehicle-mounted evaluation unit receiving and checking an
authorization of the response signal and upon the response
signal providing proper authorization, said vehicle-mounted
evaluation unit evaluating a received signal and comparing a
code content of the received signal with a stored value only
after receiving a circularly polarized or elliptically polarized
signal, said evaluation unit one of triggering and enabling
vehicle-specific functions.
The Examiner relies on the following prior art in rejecting the claims:
Nysen US 5,164,985 Nov. 17, 1992
Daiss US 6,549,115 B1 Apr. 15, 2003
Kirchlinde US 6,577,227 B1 June 10, 2003
Gold DE 197 18 423 A1 Nov. 5, 1998
Claims 1-2, 4, 6-7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kirchlinde in view of Nysen. (Ans. 4).
Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kirchlinde and Nysen in view of Daiss. (Ans. 6).
Claims 5 and 8 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kirchlinde and Nysen in view of Gold. (Ans. 7).
Rather than repeat the arguments here, we make reference to the
Briefs ((Substitute) App. Br. filed July 25, 2005; Amended App. Br. filed
Sept. 18, 2006; Reply Br. filed Oct. 8, 2006)
2
and the Answer (Ans. mailed
Aug. 9, 2006) for the respective positions of Appellant and the Examiner.
Only those arguments actually made by Appellant have been considered in
this decision. Arguments that Appellant did not make in the Brief have not

2
The Brief on Appeal filed May 2, 2005, has not been considered as it is
deemed to have been superseded and replaced by the Substitute Brief on
Appeal (App. Br.) filed July 25, 2005.
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been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).

ISSUE
Appellant argues the patentability of independent claims 1, 4, and 7
together (App. Br. 7-12) and argues the patentability of claims 2, 3, 5, 6, 8,
and 9 based solely on their dependency from claim 1, 4, or 7 (App. Br. 6;
12-13), without presenting additional substantive arguments. Therefore,
based on Appellant’s grouping of claims (App. Br. 6) and the arguments
presented by Appellant, we will decide this Appeal on the basis of claim 1.
Appellant contends that it would not have been obvious to the person
of ordinary skill in the art (hereinafter “skilled person”) to combine
Kirchlinde’s access control system for a vehicle with Nysen’s circular or
elliptical polarized waves. More particularly, Appellant contends the
combination would not have been obvious because: (1) “the two references
Nysen . . . and Kirchlinde . . . are positioned in different technical
applications” (App. Br. 10); (2) a skilled person would not look to Nysen’s
communication system, preferably operating at a frequency of 2.45 GHz for
a vehicle anti-theft system, preferably operating at a frequency 125 kHz
(Reply Br.2-3); (3) a skilled person would be deterred from using Nysen’s
circular or elliptical polarization because it “requires more complex and
hence more costly transmitting and receiving hardware which is not very
popular in a highly competitive automotive market” (App. Br. 9); (4)
“Kirchlinde . . . was filed more than 10 years after Nysen . . . and still does
not give any hint toward using circular or elliptical polarized waves for anti-
theft systems for vehicles” (id.); and (5) “there is no suggestion or
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motivation for a person skilled in the art to combine Kirchlinde . . . and
Nysen . . .” (App. Br. 12).
The issue presented by Appellant’s contentions is: Did the Examiner
err in concluding that a skilled person would have found it obvious to
combine Kirchlinde and Nysen to achieve the invention recited in claim 1?

ANALYSIS
We have considered Appellant’s arguments (App. Br. 7-12; Reply Br.
2-3) in light of the Examiner’s findings (Ans. 4-5) and explanations (Ans. 8).
We agree with the Examiner’s findings and explanations (Ans. 4-5, 8) and
adopt them as our own. We provide the following discussion and findings
for emphasis.
Appellant contends that “the two references Nysen . . . and Kirchlinde
. . . are positioned in different technical applications” (App. Br. 10) and that
it is unrealistic to assume that the skilled person “has knowledge of all
publications in all cross-sectional technologies” (App. Br. 9). In substance,
Appellant is arguing that Kirchlinde and Nysen would not be combined by
the skilled person because Nysen is non-analogous art. However, as pointed
out by the Examiner (Ans. 8), Nysen, like claim 1 and Kirchlinde, is related
to transmitting a signal between a vehicle and an external communication
device (see Nysen, col. 5, l. 33-col. 6, l. 44), and “both Kirchlinde and
Nysen disclose wireless devices wherein the communication requires
interrogation and response signals” (Ans. 8). Therefore, we find that Nysen
“is reasonably pertinent to the particular problem with which the inventor is
involved.” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011). Therefore,
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we find that Nysen is analogous art that would have been considered by the
skilled person when faced with the problems addressed by claim 1.
Appellant contends that a skilled person would not look to Nysen’s
communication system, preferably operating at a frequency of 2.45 GHz, for
a vehicle anti-theft system, preferably operating at a frequency 125 kHz
(Reply Br.2-3). This argument is presented for the first time in the Reply
Brief. Such an argument is untimely and waived. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”).
We also note that Appellant has submitted evidence (“Polarization,”
Wikipedia, 11 pages, attached to Reply Br.) in support of Appellant’s
contentions regarding operating frequencies (see Reply Br. 3). Such new
evidence, which was not before the Examiner during prosecution, will not be
considered. See 37 C.F.R. § 41.41(a)(2). However, even if we were to
consider Appellant’s untimely argument and evidence, the argument and
evidence are unpersuasive as they address limitations not recited in the
claims. “Though understanding the claim language may be aided by the
explanations contained in the written description, it is important not to
import into a claim limitations that are not a part of the claim.” SuperGuide
Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). In
addition, Appellant’s Specification contemplates operating at frequencies
higher than 125 kHz (see Spec. 10:10-12).
Appellant contends that a skilled person would be deterred from
using Nysen’s circular or elliptical polarization because it “requires more
complex and hence more costly transmitting and receiving hardware which
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is not very popular in a highly competitive automotive market” (App. Br. 9).
However, Appellant does not identify any convincing evidence in the record
to support the contention. Such an unsupported contention has little
probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). In
addition, we find Nysen teaches circular polarization for signals to be used
in an automotive context (Nysen, col. 6, ll. 29-44; col. 15, ll. 1-46).
Appellant contends that the skilled person would not have combined
Kirchlinde with Nysen because “Kirchlinde . . . was filed more than 10 years
after Nysen . . . and still does not give any hint toward using circular or
elliptical polarized waves for anti-theft systems for vehicles” (App. Br. 9).
Appellant further points out that circular polarization of light (i.e.,
electromagnetic radiation) was discovered in 1817 (App. Br. 11). “The fact
that circular polarized [electromagnetic radiation] has not been used for
vehicles until now is an indication for [claim 1] not being obvious.” (Id.). It
is well established that “[t]he mere age of references is not persuasive of the
unobviousness of the combination of their teachings, absent evidence that,
notwithstanding knowledge of these teachings, the art tried and failed to
solve the problem.” In re Wright, 569 F.2d 1124, 1127 (CCPA 1977).
Additionally, as discussed supra, Nysen teaches circular polarization for
signals to be used in an automotive context (Nysen, col. 6, ll. 29-44; col. 15,
ll. 1-46).
Appellant finally contends that “there is no suggestion or motivation
for a person skilled in the art to combine Kirchlinde . . . and Nysen . . .”
(App. Br. 12). However, “[t]he obviousness analysis cannot be confined by
a formalistic conception of the words teaching, suggestion, and motivation,
or by overemphasis on the importance of published articles and the explicit
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content of issued patents.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007). “The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
Id. at 416. “If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability.” Id. at 417. Additionally, the
Court instructs that:
“[[r]]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”… however, the
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 (citation omitted).
The combination of Kirchlinde and Nysen articulated by the Examiner
(Ans. 4-5) is a combination of familiar elements according to known
methods that does no more than yield predictable results, see KSR at 416,
that can be implemented by a person of ordinary skill, see id. at 417, using
no more than the skill, inferences, and creative steps that a person of
ordinary skill in the art would employ, see id. at 418. Furthermore, the
Examiner has stated as a reason for the combination that “it would have been
obvious to one of ordinary skill in the art at the time the invention was made
to have used orthogonal circular polarized signals to provide full duplex
communication in the Kirchlinde system as suggested by Nysen, since such
would provide non-interfering bi-directional communication.” (Ans. 5). We
find the Examiner has articulated reasoning with rational underpinning to
support the conclusion of obviousness. See KSR at 418.
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We will, therefore, sustain the rejection of claim 1 for the reasons set
forth supra, and of claim 2-9 for the same reasons.

CONCLUSIONS
On the record before us, we conclude Appellant has failed to
demonstrate that the Examiner erred in rejecting claims 1-9 as obvious under
35 U.S.C. § 103(a) over the combination of Kirchlinde and Nysen.

ORDER
The decision of the Examiner to reject claims 1-9 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). See 37 C.F.R.
§ 1.136(a)(1)(iv)(2010).

AFFIRMED

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