Ex Parte Knapp et al

Patent Trial and Appeal Board

Mar 9, 2018

13773322 (P.T.A.B. Mar. 9, 2018)

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.
13/773,322 02/21/2013 David J. Knapp 5299-01401 4757
75589 7590 03/13/2018
Matheson Keys Daffer & Kordzik PLLC
7004 Bee Cave Rd.
Bldg. 1, Suite 110
Austin, TX 78746
EXAMINER
LAMBERT, DAVID W
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
03/13/2018 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):
kkordzik@ mathesonkeys.com
claney @ mathesonkeys .com
kdaffer @ mathesonkeys. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID J. KNAPP and HORACE C. HO
Appeal 2017-006698
Application 13/773,322
Technology Center 2600
Before JOSEPH L. DIXON, ELENI MANTIS MERCADER, and
JASON M. REPKO, Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—3, 5—23, 26, 27, 34, and 35. App. Br. I.2 Claims 4, 24,
25, and 28—33 have been canceled. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
1 Appellants identify the real party in interest as Ketra, Inc. App. Br. 1.
2 Throughout this opinion, we refer to the Final Rejection (“Final Act.”)
mailed August 17, 2016, the Appeal Brief (“App. Br.”) filed November 4,
2016, the Examiner’s Answer (“Ans.”) mailed February 27, 2017, and the
Reply Brief (“Reply Br.”) filed March 15, 2017.
Appeal 2017-006698
Application 13/773,322
THE INVENTION
Appellants’ invention pertains to communication with controlled
devices using visible light. Spec. 12. According to the Specification, some
advantages of visible light communication (VLC) include being globally
unregulated and costing less. Id. 16. VLC, however, is restricted to line of
sight. Id. 1 8. For example, optical data cannot be communicated around
comers or through walls. Id. To allow a remote control device to
communicate with controlled devices outside the line of sight, Appellants’
controlled devices retransmit the remote control device’s messages bi­
directionally between themselves. Id. 137. In one example, a remote
control device sends a message containing a “retransmit command” to
nearby controlled devices. Id. The controlled devices then retransmit the
message in different directions. Id.
Claim 1 is reproduced below:
1. A visible light communication system comprising:
a remote control device configured to transmit a first
communication message through free space using visible light;
and
a plurality of controlled devices, wherein a first one of
the controlled devices is configured to receive the first
communication message and retransmit the first communication
message through free space using visible light to a second one
of the controlled devices, and wherein the first one of the
controlled devices is configured to retransmit the first
communication message in synchronization with a second
communication message, which is transmitted from the remote
control device and identical to the first communication
message.
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The Examiner relies
THE REJECTIONS
on the following as evidence:
Gurney et al. US 5,905,445 May 18, 1999
Kamitani US 6,359, 712 B1 Mar. 19, 2002
Basil et al. US 2002/0138850 Al Sept. 26, 2002
Shurmantine et al. US 2003/0179721 Al Sept. 25, 2003
Lovison et al. US 2004/0220922 Al Nov. 4, 2004
Stanchfield et al. US 2005/0053378 Al Mar. 10, 2005
Keum et al. US 2005/0265731 Al Dec. 1, 2005
Pahlavan et al. US 2009/0051496 Al Feb. 26, 2009
Cheron et al. US 2009/0189776 Al July 30, 2009
Flammer III et al. US 2009/0303972 Al Dec. 10, 2009
Sato US 2010/0054748 Al Mar. 4,2010
Haggerty et al. US 8,595,748 B1 Nov. 26, 2013
Claims 1—3, 5, 14, 18, 22, 23, and 35 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Stanchfield, Robbins, Cheron, and Auerbach.
Final Act. 7—14.
Claims 15, 16, and 19-21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Stanchfield, Robbins, Cheron, Auerbach, and Kamitani.
Final Act. 15—18.
Claim 17 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Stanchfield, Robbins, Cheron, Auerbach, Kamitani, and Keum.
Final Act. 18—19.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Stanchfield, Robbins, Cheron, Auerbach, and Sato. Final Act. 19-20.
Claims 7 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Stanchfield, Robbins, Cheron, Auerbach, and
Shurmantine. Final Act. 20—23.
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Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Stanchfield, Robbins, Cheron, Auerbach, and Haggerty.
Final Act. 23—25.
Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Stanchfield, Robbins, Cheron, Auerbach, and Basil. Final Act. 25—26.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Stanchfield, Robbins, Cheron, Auerbach, Basil, and Gurney.
Final Act. 26—27.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Stanchfield, Robbins, Cheron, Auerbach, Basil, Flammer III, Gurney,
and Pahlavan. Final Act. 27—29.
Claims 26, 27, and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Stanchfield, Robbins, Lovison, and Haggerty.
Final Act. 29—33.
Appellants argue claims 1—3, 14, 18, 22, and 23 together. App. Br. 4.
Therefore, we select claim 1 as representative of these claims.
Appellants argue claims 5 and 35 together. Id. Therefore, we select
claim 5 as representative of these claims.
Appellants argue claims 15, 16 and 19—21 together. Id. Therefore,
we select claim 15 as representative of these claims.
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Application 13/773,322
THE OBVIOUSNESS REJECTION OVER STANCHFIELD, ROBBINS,
CHERON, AND AUERBACH
Claims 1—3, 14, 18, 22, and 23
I
Claim 1 recites, in part, “a remote control device configured to
transmit a first communication message through free space using visible
lighC (emphasis added).
The Examiner finds that Stanchfield teaches every limitation recited
in representative claim 1 except for (1) using visible light and (2)
retransmitting a first communication message in synchronization with a
second, identical communication message from the remote control device.
Final Act. 7—9. In concluding that claim 1 would have been obvious, the
Examiner cites Robbins, Cheron, and Auerbach as teaching these features.
Id. at 8—9. Of relevance to the first issue raised by Appellants, the Examiner
finds that it would have been obvious to modify Stanchfield’s system with
Robbins’s teaching of using visible light as an alternative to infrared (IR).
Id. at 8.
Appellants argue that Robbins cannot be used to modify Stanchfield’s
repeater system. App. Br. 7—8; Reply Br. 1—3. According to Appellants,
Stanchfield’s repeater system is visible-light resistant. App. Br. 7.
Appellants argue that Stanchfield’s controller is designed to discriminate and
distinguish against visible-light artifacts that cause IR noise. Id. at 7—8. In
Appellants’ view, the Examiner’s proposed modification would destroy
Stanchfield’s principle of operation and would render Stanchfield
unsatisfactory for its intended purpose. Id. at 8. According to Appellants,
modifying Stanchfield to receive visible light would create an unexpected
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result that no visible-light message would ever be retransmitted because
Stanchfield’s repeater would invalidate or block the light. Id. at 8—9.
We are unpersuaded by Appellants’ argument that the proposed
combination with Stanchfield would necessarily result in blocking the light.
See id.
First, Appellants provide no persuasive evidence on this record to
substantiate such a theory apart from conclusory assertions that have little
probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
(noting that mere arguments and conclusory statements that are unsupported
by factual evidence are entitled to little probative value).
Second, it is well settled that “a determination of obviousness based
on teachings from multiple references does not require an actual, physical
substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
2012) (citations omitted). Nor is the test for obviousness whether a
secondary reference’s features can be bodily incorporated into the structure
of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art. Id.
Here, Stanchfield teaches that IR noise can interfere with a signal
from a remote control. Stanchfield 112. To solve this problem, Stanchfield
discriminates between noise and an input signal. Id. 145. To be sure,
Stanchfield explains that traditional sources of IR noise include ambient
lighting (e.g., sunlight) or artificial light sources (e.g., compact fluorescent
lamps). Id. 112. We, however, disagree with Appellants that Stanchfield
would have suggested to one of ordinary skill in the art that visible light
should always be blocked. See App. Br. 8—9; Reply Br. 2. And we are
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unconvinced that using visible light would destroy Stanchfield’s principle of
operation or would render Stanchfield unsatisfactory for its intended
purpose. App. Br. 8. Instead, Stanchfield teaches blocking visible light
when it contributes to noise. See Stanchfield 145.
For the input signal, the Examiner relies on Robbins’s teaching that
visible light is an alternative to IR light. Final Act. 8. Indeed, Appellants
acknowledge that “[substituting a visible light emitter and detector in
general for an IR emitter and detector in general is certainly not new since
visible light and IR light emitters/detectors are fairly well known and, in
some circumstances, interchangeable.” Reply Br. 2.
Also recognizing this interchangeability, the Examiner concludes that
Robbins’s visible light could be substituted with predictable results.
Final Act. 8. We agree. Notably, like Stanchfield, Robbins also teaches the
advantage of blocking undesired impinging wavelengths of light.
Robbins 7:26—30. We agree with the Examiner that one of ordinary skill in
the art would have made the proper modifications to the system to account
for a visible-light input signal. See Ans. 31. In this way, the Examiner’s
proposed combination predictably uses prior art elements according to their
established functions to yield a predictable result. See KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007).
On this record, we are unpersuaded that the Examiner erred in finding
that Stanchfield and Robbins collectively teach “a remote control device
configured to transmit a first communication message through free space
using visible light,” as recited in representative claim 1. See Final Act. 8.
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II
Claim 1 further recites, in part, “wherein the first one of the controlled
devices is configured to retransmit the first communication message in
synchronization with a second communication message, which is transmitted
from the remote control device and identical to the first communication
message” (emphasis added).
In the proposed combination, the Examiner finds that Cheron teaches
transmitting the first and second messages, and Auerbach teaches that
multiple devices in communication can be synchronized to a common timing
reference. Final Act. 8—9. The Examiner then concludes that it would have
been obvious to modify Stanchfield’s controlled devices to retransmit the
first communication message in synchronization with a second to establish a
reference for successful transmission. Id.
Appellants argue that the proposed combination does not teach that
messages are synchronized to one another, as recited in claim 1.
App. Br. 10-11; Reply Br. 4. According to Appellants, Auerbach only
teaches the receiver’s circuits are synchronized with and phase locked to an
incoming signal, which is used to determine a remote control’s orientation.
App. Br. 10. Appellants further argue Cheron does not synchronize
controlled devices to a common timing reference. Id. at 12.
We are unpersuaded by Appellants’ arguments because they do not
squarely address the Examiner’s reliance on the combination of Cheron and
Auerbach. See id. at 10-11; Reply Br. 4. Instead, Appellants present
arguments against Auerbach and Cheron individually. See App. Br. 10-11;
Reply Br. 4. For instance, although Appellants argue that Cheron lacks the
recited synchronization, the Examiner does not rely on Cheron for
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synchronization. Final Act. 8. Rather, the Examiner relies on Cheron for
the recited first and second messages. Id.
Regarding these teachings, Cheron teaches a home-automation system
that includes a motorized window product, such as a mechanically driven
Venetian blind. Cheron 129. The system uses universal remote control
IRUC and several transmitters and receivers, which are shown below in
Figure 1. See id. Fig. 1.
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Figure 1 shows Cheron’s system that includes a motorized window
product 10.
The remote control receives and resends signals from first transmitter
IRT1 intended to control first receiver IRR1 (arrows A3 and A4). Id. 140.
The remote control can also receive and retrieve signals from second
transmitter IRT2 (arrows A6 and A7). Id. 142. For example, signals from
the second transmitter IRT2 sent to the second receiver IRR2 contain
messages. Id. 1 51. Thus, we agree that Cheron teaches retransmitting the
first and second messages. See Final Act. 8.
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Because the Examiner relies on Cheron for the first and second
messages, we are unpersuaded by Appellants’ argument that Auerbach does
not suggest synchronizing a first and second message. App. Br. 10-11;
Reply Br. 4. To be sure, the claimed synchronization refers to messages.
See App. Br. 11. To address this feature, the Examiner proposes applying
Auerbach’s synchronization to Cheron’s messages to arrive at the claimed
synchronized first and second messages. Final Act. 9. Although Auerbach
does not also teach each message, the skilled artisan is “a person of ordinary
creativity, not an automaton.” KSR, 550 U.S. at 421. Here, the Examiner’s
proposed enhancement to synchronize Cheron’s messages involves a
creative step well within the skill level of ordinarily skilled artisans. See
Final Act. 9.
Accordingly, we sustain the Examiner’s rejection of representative
claim 1 and claims 2—3, 14, 18, 22, and 23, which are not separately argued.
Claims 5 and 35
Representative claim 5 further recites, in part, “wherein the plurality
of controlled devices is synchronized to a common timing reference, and
wherein the first one of the controlled devices is configured to retransmit the
first communication message to the second one of the controlled devices in
synchronization with the common timing reference” (emphasis added).
The Examiner rejects claim 5 over the combination of Stanchfield,
Robbins, Cheron, and Auerbach. Final Act. 10. In this combination, the
Examiner finds Stanchfield teaches multiple controlled devices and
Auerbach teaches synchronization to a common timing reference. Ans. 36—
38.
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Appellants argue that Auerbach does not teach or suggest multiple
controlled devices synchronized to a common timing reference.
App. Br. 12—13. Appellants emphasize that Auerbach uses a remote control
and a controlled device, not a first and second controlled device as claimed.
Reply Br. 5. Appellants, however, explain that Auerbach synchronizes a
first controlled device to a remote control device, not a controlled device.
Id. at 5—6.
We are unpersuaded by Appellants’ arguments because they do not
squarely address the Examiner’s reliance on the combination of Auerbach
and Stanchfield. See App. Br. 12—13; Reply Br. 5—6. Appellants argue that
Auerbach does not teach a controlled device. App. Br. 12—13; Reply Br. 5—
6. But the Examiner did not rely on Auerbach for this feature. Ans. 38.
Here, the Examiner applies the teachings of Auerbach to Stanchfield’s
system, which includes a remote control and a plurality of controlled device.
Ans. 38. Because Appellants’ arguments do not squarely address, let alone
persuasively rebut, the Examiner’s findings in this regard, we sustain the
Examiner’s rejection of claims 5 and 35.
Claims 15, 16 and 19—21
Representative claim 15 further recites, in part, “the remote control
device further comprises a light detector for receiving optically modulated
data, which is transmitted through free space using visible light from one or
more of the controlled devices.”
In the proposed combination of Stanchfield, Robbins, Cheron,
Auerbach, and Kamitani, the Examiner finds that Kamitani teaches a
detector for receiving optically modulated data, which is transmitted using
light. Final Act. 15. According to the Examiner, Robbins teaches using
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visible light specifically, and it would have been obvious to combine
Robbins, Kamitani and the other cited references to arrive at the claimed
invention. Ans. 40.
Appellants argue that it would not have been obvious to modify the
proposed combination with Kamitani to obtain a detector for receiving data
transmitted using visible light. App. Br. 14—15; Reply Br. 7. According to
Appellants, Kamitani is limited solely to polarized IR light, not visible light.
App. Br. 14—15. Appellants argue that Kamitani prohibits substituting a
visible-light detector for an IR photodiode sensor. Reply Br. 7. We
disagree.
Appellants have not presented persuasive evidence that Kamitani
criticizes, discredits, or otherwise discourages use of visual light, for
example. See App. Br. 14—15; Reply Br. 7. Nor have Appellants have
shown, for example, that using Kamitani and Robbins together in this way
would have been uniquely challenging or otherwise beyond the level of
ordinarily skilled artisans. See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007).
Rather, Kamitani merely teaches IR light is one way that the
communication system could be implemented and discusses the beneficial
properties of using IR light. See Ans. 42 (discussing Kamitani 7:52—60;
14:20-24). The Examiner finds, and we agree, that Robbins suggests that
visible light is an alternative to infrared light, and that modifying the
combination to use visible light involves a creative step well within the skill
level of ordinarily skilled artisans. Ans. 42. Likewise, in discussing claim
1, Appellants acknowledge that “[substituting a visible light emitter and
detector in general for an IR emitter and detector in general is certainly not
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new since visible light and IR light emitters/detectors are fairly well known
and, in some circumstances, interchangeable.” Reply Br. 2. On this record,
we are not convinced the Examiner erred in combining Robbins and
Kamitani.
Accordingly, we sustain the Examiner’s rejection of representative
claim 15 as well as 16 and 19-21, which are not separately argued.
THE REMAINING OBVIOUSNESS REJECTIONS
Claims 6—13, 17, 26, 27, and 34 depend from claims 1 or 22.
Appellants, likewise, do not argue claims 6—13, 17, 26, 27, and 34 separately
with particularity. App. Br. 6; Reply Br. 7. Therefore, for the reasons
discussed above, we also sustain the rejections of claims 6—13, 17, 26, 27,
and 34.
DECISION
We affirm the Examiner’s rejection of claims 1—3, 5—23, 26, 27, 34,
and 35.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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