Ex Parte Liberty et al

Patent Trial and Appeal Board

Oct 31, 2016

12424090 (P.T.A.B. Oct. 31, 2016)

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.
12/424,090 04/15/2009 Matthew G. Liberty 0320-114 9843
113648 7590 11/02/2016
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
EXAMINER
SCHNIREL, ANDREW B
ART UNIT PAPER NUMBER
2625
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
Mailroom@ppblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW G. LIBERTY and JOSEPH S. TANEN
Appeal 2015-007004
Application 12/424,090
Technology Center 2600
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1 and 3—47. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-007004
Application 12/424,090
STATEMENT OF THE CASE
The present application concerns “tracking a linear position and an
angular position of a device relative to a base station . . . based on an angular
gradient distribution of an intensity of an electromagnetic wave generated by
an electromagnetic source.” Spec. 12. Claims 1 and 23 illustrate the
claimed subject matter:
1. A method for detecting a position of a handheld device,
the method comprising:
measuring intensities received by two receivers placed at
different locations on the handheld device and due to a beam
emitted by a base station, the beam having a predetermined
angular gradient intensity distribution defined relative to a
predetermined direction;
calculating relative intensities based on the measured
intensities; and
determining the position of the hand held device, wherein
a distance between the base station and the handheld device is
calculated based on the measured intensities, and an angle
between the predetermined direction and a line between a
reference point of the base station and a reference point of the
handheld device is determined based on the calculated relative
intensities.
App. Br. 22.
23. A base station configured to communicate with a handheld
device, the base station comprising:
at least one emitter configured to emit a beam of an
electromagnetic wave from a location of the base station such
that an intensity of the beam has a predetermined angular
gradient intensity distribution; and
a processor configured to control an emitting time of the
at least one emitter, wherein an amplitude of the beam follows a
same pattern in time at a given location.
Id. at 26.
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REJECTIONS
Claims 1, 3—22, and 28-47 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Ohta,1 Barnes,2 and one or more of Fan,3 Sleator,4 and
Wey5. See Ans. 6—29.
Claims 23—27 stand rejected under 35 U.S.C. § 102(e) as anticipated
by Ohta. See id. at 3—5.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments and the evidence of record, and we disagree with Appellants that
the Examiner erred. We adopt the Examiner’s reasoning, findings, and
conclusions set forth in the Final Action and Answer to the extent consistent
with the analysis below. We address Appellants’ arguments in turn.
Claims 1, 4, 6—22, and 29—47
The “Measuring Intensities” Limitation
Appellants contend the cited prior art does not teach or suggest claim
1 ’s “measuring intensities” limitation for several reasons. See App. Br. 11—
14; Reply Br. 1—5. First, Appellants argue that Ohta’s markers are light
sources and do not teach or suggest “two receivers placed at different
locations on the handheld device.” See App. Br. 11; Reply Br. 2. Relatedly,
1 Ohta (US 7,786,976 B2; issued Aug. 31, 2010).
2 Barnes et al. (US 6,069,594; issued May 30, 2000).
3 Fan (US 5,926,168; issued July 20, 1999).
4 Sleator (US 7,102,616 Bl; issued Sept. 5, 2006).
5 Wey (US 7,768,498 B2; issued Aug. 3, 2010).
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Application 12/424,090
Appellants contend Bames does not teach or suggest “measuring intensities”
by time of arrival of pulsed light but instead teaches measuring signal
traveling times from a transducer to each of a plurality of microphones. See
App. Br. 12; Reply Br. 3.
We find Appellants’ arguments unpersuasive. The Examiner found
Ohta teaches all of the “measuring” limitation except for “two receivers
placed at different locations on the handheld device,” for which the
Examiner relied on Barnes’ disclosure of a hand-held pointing device having
a plurality of detecting elements. See Ans. 6 (citing Ohta col. 13,1. 56-col.
14,1. 8), 7 (citing Bames Fig. 3A, items 30—33; col. 5,11. 25—33), 30. Yet,
Appellants attack Ohta and Bames individually without adequately
addressing the Examiner’s combination. See Ans. 6—8, 30; App. Br. 11.
“[0]ne cannot show non-obviousness by attacking references individually
where, as here, the rejections are based on combinations of references.” In
re Keller, 642 F.2d 413, 426 (CCPA 1981).
Second, Appellants contend that Ohta’s markers 8a and 8b generate
two beams, not “a beam emitted by a base station” as recited in claim 1.
See Reply Br. 4.
We find Appellants’ argument unpersuasive because the argument is
not commensurate with the broadest reasonable interpretation of the claim.
Claim 1 does not recite a single beam, but instead merely recites “a” beam.
The Federal Circuit “has repeatedly emphasized that an indefinite article
[such as] ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’
in open-ended claims containing the transitional phrase ‘comprising,’”
unless there is a clear intent to limit “a” or “an” to one. Baldwin Graphic
Systems, Inc. v. Siebert, Inc., 512 F.3d 1338, 1342-43 (Fed. Cir. 2008)
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(citing KCJCorp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir.
2000)). Here, the written description does not clearly limit “a beam” to one
beam. In fact, the written description discloses several embodiments that
allow for more than one beam. See Spec. H 19 (“The method includes
measuring intensities of at least one beam emitted by a base station”), 20
(“The handheld device includes a first receiver configured to measure
intensities of beams emitted by a base station”). Nor have Appellants
provided any persuasive argument or reasoning to support that “a beam
emitted by the base station” is limited to a single beam emitted by a base
station. See App. Br. 11; Reply Br. 4. Accordingly, we find no error in the
Examiner’s finding that the light emitting from Ohta’s markers teaches or
suggests “a beam emitted by a base station.” See Ans. 6 (citing Ohta col. 13,
1. 56—col. 14,1. 8). Moreover, even if Appellants are correct that Ohta
teaches two beams, Appellants have not shown that emitting infrared light
from one of Ohta’s markers alone would not satisfy “a beam” as recited in
claim 1. See App. Br. 11; Reply Br. 3-A; Ans. 33.
Third, Appellants argue that Ohta’s luminance values do not teach or
suggest the claimed “intensities” because “[ljight intensity, whose unit is
lumens per radians, lm sr'1, is different from luminance, whose unit is
lumens per radians and per square meter, lm sr'1 m'2.” App. Br. 11.
We find Appellants’ argument unpersuasive. Appellants acknowledge
intensity is mathematically related to luminance. See id. Given the
mathematical relationship between intensity and luminance, one of ordinary
skill in the art would have recognized intensity as an obvious variant of
luminance. Because one of ordinary skill in the art is “a person of ordinary
creativity, not an automaton,” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398,
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421 (2007), deriving intensities from Ohta’s luminance values would have
been within the “inferences and creative steps that a person of ordinary skill
in the art would employ.” Id. at 418 (explaining that an obviousness
analysis “can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ”); Perfect Web Techs., Inc. v.
InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (holding that an
obviousness analysis “may include recourse to logic, judgment, and common
sense available to the person of ordinary skill that do not necessarily require
explication in any reference or expert opinion”).
Fourth, Appellants argue that Ohta does not teach or suggest
“measuring intensities” because the luminance of Ohta’s markers are not
measured, but are merely compared with a threshold. See App. Br. 11—12.
We find Appellants’ argument unpersuasive. The Examiner found
Ohta teaches a controller with an image capturing element that captures an
image of each of the markers. See Ans. 6 (citing Ohta col. 13,1. 56—col. 14,
1. 8). The Examiner further found Ohta teaches detecting an area within the
image whose luminance is higher than or equal to a predetermined value.
See id. at 6, 32. Based on these findings, the Examiner found Ohta teaches
measuring intensities. See id. at 6, 32. We find a person of ordinary skill in
the art would understand that detecting that an area’s luminance is higher
than or equal to a predetermined value implies or at least suggests measuring
the area’s luminance first in order to enable the detecting step, which
includes comparing the area’s luminance to the predetermined luminance
value. See Keller, 642 F.2d at 425; KSR, 550 U.S. at 417 (explaining that an
obviousness rejection may rely on the explicit, implicit, and inherent
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disclosures of a reference, and may take into account the knowledge of one
of ordinary skill in the art).
Fifth, Appellants argue neither Ohta nor Barnes, alone or in
combination, teaches or suggests “the beam having a predetermined angular
gradient intensity distribution defined relative to a predetermined direction.”
See App. Br. 12—13; Reply Br. 1—4. The Examiner found that the beam of
light emitted from one of Ohta’s markers, which are infrared light emitting
diodes (“IR LEDs”), will inherently have a predetermined angular intensity
distribution relative to a predetermined direction, i.e., toward the front of
Ohta’s monitor. See Ans. 33—34 (citing Ohta Fig. 8); Ans. 6 (citing Ohta
col. 6,11. 63—66). Appellants disagree with the Examiner’s findings because
“the front of the monitor is a plane and not a direction,” App. Br. 12, and in
Ohta, “no direction or point relative to which such distribution is defined is
specified or practical to use for Ohta’s two distinct markers,” Reply Br. 3.
We find Appellants’ arguments unpersuasive. Contrary to
Appellants’ arguments, by emitting infrared light towards the front of the
monitor, each of Ohta’s IR LEDs emits infrared light in a predetermined
direction, which is normal to the front of the monitor. See Ans. 6 (citing
Ohta col. 6,11. 63—66). We further agree with the Examiner that the infrared
light emitted from one of Ohta’s IR LEDs in this predetermined direction
teaches or suggests “a beam having a predetermined angular gradient
intensity distribution defined relative to a predetermined direction.” See
Ans. 6 (citing Ohta col. 6,11. 63—66), 33—34 (citing Ohta Fig. 8).
Specifically, one of ordinary skill in the art would have understood that light
emitted from an IR LED, such as one of Ohta’s markers, has a certain
angular gradient intensity distribution defined relative to a certain direction.
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See DyStar Textilfarben GmbH & Co. DeutschlandKG v. C.H. Patrick Co.,
464 F.3d 1356, 1368 (Fed. Cir. 2006) (stating that “the prior art” includes
basic principles unlikely to be restated in cited references). In fact, even if
Appellants are correct that “LEDs typically emit equal intensity in all
directions,” Reply Br. 2, the limitation at issue still would be satisfied
because distributing the emission of light with equal intensity in all
directions is an example of a predefined angular gradient intensity
distribution, e.g., a uniform distribution, which is defined equally relative to
any predefined direction. Our analysis is consistent with the written
description, which merely offers examples of, and does not limit, “a
predetermined angular gradient intensity distribution” to any one particular
distribution. See Spec. H 38 (“The emitter 42 is assumed to emit an infrared
wave that has a set angular gradient intensity distribution. For example, a
set angular gradient intensity distribution is shown in Figure 5, which is a
normal (Gaussian) distribution.”), 40 (“According to one exemplary
embodiment, the angular gradient intensity distribution of the infrared
emitter 42 is as shown in Figure 5, i.e., a Gaussian distribution. Other
distributions are also possible.”).
For the above reasons, Appellants have not persuaded us the
Examiner erred in finding that the combination of Ohta and Barnes teaches
or suggests the “measuring” limitation of claim 1.
The “Calculating” and “Determining the Position” Limitations
Claim 1 further recites “calculating relative intensities based on the
measured intensities” and “determining the position of the hand held device,
wherein a distance between the base station and the handheld device is
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calculated based on the measured intensities.” App. Br. 22. Appellants’
arguments concerning these limitations rest on Appellants’ contention that
Ohta fails to teach or suggest “measuring intensities.” See id. at 13—14. For
the reasons discussed above for the “measuring intensities” limitation, we
also find these arguments unpersuasive.
The “Determining . . . An Angle” Limitation
Appellants contend Fan does not teach or suggest “determining ... an
angle between the predetermined direction and a line between a reference
point of the base station and a reference point of the handheld device is
determined based on the calculated relative intensities.” See App. Br. 14—
15; Reply Br. 5. The Examiner found Fan teaches or suggests determining
an angle a, P, or y, which is “between” reference line 730 and a line between
transmitter set 710 of pointing means 40 and receiver set 740, 750, or 760,
respectively, of screen 20. See Ans. 7—8, 36 (citing Fan Fig. 8a, col. 14,11.
39—51). The Examiner also found Fan teaches or suggests determining the x
and y coordinate by using intensity gradients across the screen. See id. at 7—
8, 36—37 (citing Fan 17b, 17c; col. 21,1. 66—col. 23,1. 53). Appellants argue
none of the three angles cited by the Examiner teach or suggest the disputed
limitation as “Appellants found no equivalent in Fan of the predetermined
direction relative to which the beam’s predetermined angular gradient
intensity distribution is defined (as shown, e.g., 42e to X, marked along by
arrows A and B, in application’s Figure 7 . . .).” App. Br. 15. Appellants
assert “[t]he Examiner's arguments merely pick Element 730 in Fan as
corresponding to the claimed predetermined direction, which choice is
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random and irrelevant because it does not reflect the claimed link between
the beam and the angle.” Reply Br. 5.
We find Appellants’ arguments unpersuasive. As found by the
Examiner, Figure 8a of Fan teaches or suggests determining angle a, P, or y
(“determining ... an angle”), which is “between” reference line 730 (“the
predetermined direction”) and a line between receiver set 740, 750, or 760,
respectively, of screen 20 (“a reference point of the base station”), and
transmitter set 710 of pointing means 40 (“a reference point of the handheld
device”). See Ans. 7—8, 36 (citing Fan Fig. 8a, col. 14,11. 39—51).
Reference line 730, which extends from transmitter set 710 of pointer means
40 to cursor 10 of screen 20, teaches or suggests a “predetermined direction”
because it represents the direction in which the pointing means was pointed.
Regarding Appellants’ argument that Fan does not teach or suggest a
predetermined direction “relative to which the beam’s predetermined
angular gradient intensity distribution is defined,” the Examiner found that
Ohta teaches or suggests this element, as discussed above for the
“measuring” limitation. Accordingly, we find Appellants’ argument
improperly attacks Fan individually without persuasively addressing the
Examiner’s combination. See Ans. 6—8; App. Br. 14—15; Reply Br. 5; see
also Keller, 642 F.2d at 426.
Nevertheless, Fan also teaches or suggests this limitation.
Specifically, Fan teaches that its pointing means can include a light source
that emits visible or invisible (e.g., infrared) light. See Fan col. 8,11. 34—38;
col. 17,11. 3—8, 23—32. Given this teaching, one of ordinary skill in the art
would have understood that light emitted from Fan’s light source has a
certain angular gradient intensity distribution defined relative to a certain
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direction, e.g., the direction in which the light source is pointed. See DyStar,
464 F.3d at 1368. Accordingly, contrary to Appellants’ arguments, Fan’s
teaching of pointing the pointing means in a direction towards a cursor on
the screen, wherein the pointing means can include a light source that emits
light in that direction, teaches or suggests the predetermined direction,
“relative to which the beam’s predetermined angular gradient intensity
distribution is defined.” See Fan Fig. 8a; col. 7,11. 3—5; col. 8,11. 34—38; col.
14,11. 39-51; col. 17,11. 3—8, 23—32; contra App. Br. 14—15; Reply Br. 5.6
Rationale to Combine
Appellants further assert the Examiner has not provided a valid reason
to combine Ohta and Barnes because the Examiner’s finding as to Barnes’
field of endeavor “is blatantly insufficient” and “Barnes’ improvement of the
detection of [a] transducer source is not genuine to the claimed subject
matter or to Ohta.” App. Br. 12. Appellants similarly assert the Examiner
has not provided a valid reason to combine Ohta and Fan because the
Examiner’s finding as to Fan’s field of endeavor “is insufficient” and “Fan’s
providing an intuitive graphic interface for the new generation of
microprocessor based home electronics is not genuine to the claimed subject
matter, to Ohta or to Barnes.” App. Br. 15.
6 Although we find Appellants’ arguments unpersuasive for the reasons
discussed above, we additionally note for emphasis Fan teaches or suggests
most (if not all) of the limitations recited in claim 1 if Fan’s “pointing
means” and “display means” are respectively mapped to the recited “base
station” and “handheld device.” See Fan Figs. 2, 8a, 17b—c; col. 2,11. 46—56;
col. 8,11. 7—31; col. 14,11. 6—38; col. 21,1. 66—col. 23,1. 53; see also Spec.
126, Fig. 3.
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We find Appellants’ arguments unpersuasive. Simply asserting the
Examiner’s rationale to combine prior art references is insufficient or not
“genuine” to the claimed subject matter does not establish the Examiner
erred. Cf. 37 C.F.R. § 41.37(c)(l)(iv) (“A statement which merely points
out what a claim recites will not be considered an argument for separate
patentability of the claim.”); In reLovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.”). The Examiner provided reasons one of
ordinary skill in the art would have made each of the proposed
modifications, see Final Act. 3—4, and Appellants’ unsupported assertions
have not persuaded us the reasons are inadequate.
Conclusion
Accordingly, we sustain the Examiner’s rejection of independent
claims 1, 15, 29, and 38; as well as the rejection of dependent claims 4, 6—
14, 16—22, 30-37, and 39-47, which were not argued separately with
particularity beyond the arguments advanced for claim 1. See App. Br. 18—
19, 21; Reply Br. 5—6.
Claim 3
Appellants contend Ohta does not teach or suggest “receiving beams
emitted from plural base stations; and independently controlling each base
station of the plural base stations using the handheld device,” as recited in
claim 3. See App. Br. 16, 22; Reply Br. 5. The Examiner found, although
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Ohta does not explicitly disclose this limitation, “[i]t would have been
obvious to one of ordinary skill however that if the controller 7 of Ohta was
moved within range of another game apparatus 3 it would receive the
intensities of the markers 8a and 8b associated with that game apparatus 3
and would transmit the coordinates to that apparatus and therefore control it
for the purpose of using one controller one [sic] multiple game apparatus
[sic].” Ans. 8; see Ans. 37. Appellants argue the Examiner’s findings are
speculative and do not render obvious the disputed limitation “because if
moved, the controller would no longer receive ‘beam’ from the initial base
station, and, thus, at no time (before or after being moved), the controller
would receive beams emitted from plural base stations as claimed.” App.
Br. 16; see Reply Br. 5. Appellants further argue the disputed limitation
requires using the handheld device for controlling more than one base station
in the same period of time, while the Examiner’s rejection sets forth reusing
the controller with another base station at another location. See App. Br. 16.
We find Appellants’ arguments unpersuasive because they rely on an
unduly narrow interpretation of the disputed claim limitations. The
limitation “receiving beams emitted from plural base stations” broadly but
reasonably encompasses receiving a first beam emitted from a first base
station and receiving at least a second beam from a second base station,
irrespective of time. See Ans. 37. Applying this interpretation, we disagree
with Appellants that the “receiving beams” limitation requires receiving the
first and second beams within a certain period of time or at the same time.
Contra App. Br. 16; Reply Br. 5. Similarly, the limitation “independently
controlling each base station of the plural base stations using the handheld
device” broadly but reasonably encompasses controlling, one at a time, each
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base station of the plural base stations using the handheld device. See Ans.
37. Applying this interpretation, we also disagree with Appellants that the
“independently controlling” limitation requires “using the handheld device
for controlling more than one base station in the same period of time.”
Contra App. Br. 16. These interpretations are consistent with the plain
language of the claims read in light of the written description, which
provides an example where a “remote could dynamically control different
TVs independently,” but does not clearly define a certain period of time
during which (1) beams must be emitted by and received from the plural
base stations; and (2) more than one base station must be controlled using
the handheld device. See, e.g., Spec. 178.
Accordingly, Appellants have not persuaded us the Examiner erred in
concluding it would have been obvious to modify Ohta’s teachings to arrive
at the claimed invention. See Ans. 8, 37. Therefore, we sustain the
Examiner’s rejection of claim 3.
Claim 5
Claim 5 recites the following:
determining a first direction from the base station to the
handheld device based on the calculated relative intensities, the
first direction being defined in a frame of reference associated
with the base station; and
determining a second direction from the handheld device
to the base station based on the calculated relative intensities, the
second direction being defined in a frame of reference associated
with the handheld device,
wherein the first direction is defined by two angles and the
second direction is defined by other two angles.
App. Br. 22—23.
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The Examiner found Ohta teaches the limitations of claim 5 except for “the
first direction being defined in a frame of reference associated with the base
station . . . wherein the first direction is defined by two angles and the
second direction is defined by other two angles,” for which the Examiner
relied on Barnes. See Ans. 9-10 (citing Ohta Fig. 16, col. 22,1. 48—col. 23,
1. 13; Barnes col. 9,11. 28-30), 37-38.
Appellants contend neither Ohta nor Barnes, singularly or in
combination, teaches or suggests claim 5. App. Br. 22—23. Appellants
argue “in Ohta, no first direction from the base station (i.e., Ohta's markers)
to the handheld device (i.e., Ohta's controller) is determined based on
calculated relative intensities, defined in frame of reference associated with
the base station, and defined by two angles as recited in claim 5.” App. Br.
17. Appellants further argue “Ohta's Figure 16 state B and col. 22 lines 50-
54 do not render obvious ‘determining a second direction from the handheld
device to the base station based on the calculated relative intensities, the
second direction being defined in a frame of reference associated with the
handheld device . . . [and being] defined by other two angles.’” Id. Lastly,
“Appellants respectfully submit that the injection of Barnes’ alleged relevant
teachings into Ohta’s situation(s) is confusing and inappropriate as there is
no logical way or reason to combine the identified teachings.” Id.
Appellants merely restate the Examiner’s rejection, cite certain claim
features, and conclude that those claim features are not taught or suggested
by Ohta and Barnes. Id. Accordingly, because Appellants’ arguments do
not substantively address the Examiner’s findings and conclusions and point
out with particularity the Examiner’s purported error, we find Appellants’
arguments unpersuasive. Cf. 37 C.F.R. § 41.37(c)(l)(iv); Lovin, 652 F.3d at
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1357; In re Baxter TravenolLabs., 952 F.2d 388, 391 (Fed. Cir. 1991).
Therefore, we sustain the Examiner’s rejection of claim 5.
Claims 23—28
Appellants repeat arguments about Ohta’s purported deficiencies as
discussed above for claim 1. See App. Br. 19. We find these arguments
unpersuasive for the reasons given above. See discussion of claim 1, supra.
Appellants further contend the Examiner erred in finding that Ohta discloses
“a processor configured to control an emitting time of the at least one
emitter, wherein an amplitude of the beam follows a same pattern in time at
a given location.” App. Br. 19. Specifically, Appellants argue “Ohta’s
teachings emphasized relative to the claimed processor in the FOA seem to
argue that such a processor is superfluous in Ohta and do not prove its non-
obvious existence.” Id.
We find Appellants’ arguments unpersuasive. Appellants’ argument
amounts to little more than reciting a limitation of claim 23 and generalizing
about Ohta’s teachings, with no particularized explanation as to why Ohta’s
teachings do not meet the claim limitation. Such arguments are
unpersuasive of Examiner error. Cf. 37 C.F.R. § 41.37(c)(l)(iv); Lovin, 652
F.3d at 1357; Baxter Travenol Labs., 952 F.2d at 391. Moreover, we agree
with the Examiner that Ohta teaches or suggests “a processor” as recited in
claim 23. See Ans. 4 (citing Ohta col. 6,11. 63—66), 39. The Examiner
explained that because Ohta’s “IR LED’s [sic] must emit light for the system
to operate properly, there must be something to control the driving of the IR
LED’s [sic]; which will be the processor.” Ans. 39. Similarly, given Ohta’s
disclosure of an IR LED that emits light in a certain manner (see Ohta col. 6,
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11. 63—66; col. 14,11. 31—32), we conclude that one of ordinary skill in the art
would have understood that Ohta teaches, or at the very least suggests, a
processor would have been used to drive and control the IR LED’s emission
of light. See DyStar, 464 F.3d at 1368.
Accordingly, we sustain the Examiner’s rejection of independent
claim 23; as well as the rejection of dependent claims 24—28, which were not
argued separately with particularity beyond the arguments advanced for
claim 23. See App. Br. 9—21; Reply Br. 1—6.
DECISION
The decision of the Examiner to reject claims 1, 3—22, and 28-47
under 35 U.S.C. § 103(a) is affirmed.
The decision of the Examiner to reject claims 23—27 under 35 U.S.C.
§ 102(e) 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)(l)(iv).
AFFIRMED
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