Ex Parte Pedraza et al

Patent Trials and Appeals Board

Apr 1, 2019

14720051 - (D) (P.T.A.B. Apr. 1, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/720,051 05/22/2015
35083 7590 04/01/2019
CHARLES D. GA VRILOVICH, JR.,
GA VRILOVICH, DODD & LINDSEY, LLP
985 PASEO LA CRESTA, SUITE B
CHULA VISTA, CA 91910-6729
FIRST NAMED INVENTOR
Mark A. Pedraza
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.
RM2-100C3 7733
EXAMINER
PHAM,QUANG
ART UNIT PAPER NUMBER
2684
MAIL DATE DELIVERY MODE
04/01/2019 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 PATENT TRIAL AND APPEAL BOARD
Ex parte MARK A. PEDRAZA, RICHARD G. LUBESKI, and
MARK A. O'CONNELL
Appeal 2018-007168
Application 14/720,051
Technology Center 2600
Before JOHNNY A. KUMAR, JOHN. P. PINKERTON, and
JAMES W. DEJMEK, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-14, and 22-28 which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is RM2, Inc. (App.
Br. 3).
Appeal2018-007168
Application 14/720,051
STATEMENT OF THE CASE
Introduction
Appellants' invention relates to a device for providing moisture data
to a cellular telephone (See Specification, Title). Claim 1 is illustrative of
the invention and reads as follows:
1. A device comprising:
a moisture sensor;
a data interface connected to the moisture sensor and
configured to obtain, using the moisture sensor, a
moisture measurement of a building material forming a
portion of a building structure; and
communication interface circuitry connected to the
data interface and configured to provide, to a cellular
telephone, information indicative of the moisture
measurement for transmission of the information by the
cellular telephone through a cellular network.
(App. Br. 26).
The Examiner's Rejections
Claims 1, 7-8, 14, 22, and 28 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Amacher (US 2003/0222783 Al, pub. Dec 4, 2003)
in view ofDiduck (US 6,025,788, iss. Feb. 15, 2000) and Yamamoto (US
2002/0038353 Al, pub. Mar. 28, 2002).
Claims 2-4, 6, 9-11, 13, 23-25, and 27 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Amacher, Diduck, Yamamoto and
further in view ofBengtsson et al. (US 6,865,191 Bl, iss. Mar. 8, 2005).
Claims 5, 12, and 26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Amacher, Diduck, Yamamoto, Bengtsson and further in
view of Corwin et al. (US 2005/0131652 Al, June 16, 2005). In this
rejection, Examiner relies upon teachings of information comprising date
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and time from the provisional application 60/526462 page 17, pages 32-33,
and FIG. 2-3 or equivalent teachings as indicated in the publication US
2005/0131652 Al.
Appellants ' Contentions
1. Appellants contend the Examiner erred in finding the
disclosures of Amacher, Diduck, and Yamamoto teach or suggest the recited
features of claim 1 because the "cited references do not teach or suggest a
Moisture Measurement of a Building Material Forming a Portion of a
Building Structure" (App. Br. 10-11; Reply Br. 2-4). In particular,
Appellants contend:
Appellants' discussion regarding "the level o(moisture of the
building material on which the sensor 25 [of Amacher] is located" is
clearly related to a "moisture measurement of a building material
forming a portion of a building structure," which is explicitly recited
in Appellants' claim 1. Stated differently, Appellants submit that the
"building material on which the sensor 25 [ of Amacher] is located" is
inherently "building material forming a portion of a building
structure."
the sensor 25 of Amacher can be used to identify the presence
of moisture between electrically conductive leads, 40A and 408,
before the detected moisture intrusion can cause damage. (See
Amacher, numbered paragraph [0019]). In this regard, Appellants
submit that neither the detection of moisture on sensor 25 of Amacher,
nor the resultant signal, teaches or suggests a "moisture measurement
of a building material forming a portion of a building structure."
the signal generated by the presence of moisture on the sensor
25 of Amacher is the same regardless of whether the building material
on which the sensor 25 is located is completely dry or soaking wet.
(Reply Br. 2-3).
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2. Appellants also contend the Examiner erred in finding the
disclosures of Amacher, Diduck, and Yamamoto teach or suggest the recited
features of claim 1 because the "[c]ited [r]eferences [d]o [n]ot [t]each or
suggest a 'Communication Interface Circuitry,"' and "to provide, to a
cellular telephone, information indicative of the moisture measurement for
transmission of the information by the cellular telephone through a
cellular network." (App. Br. 11-16; Reply Br. 4-6).
3. Appellants contend the Examiner erred in finding the
disclosures of Amacher, Diduck, Yamamoto, and Bengtsson teach or
suggest "a digital image indicative of the moisture measurement," as recited
in claim 2. (App. Br. 21-22; Reply Br. 7-8).
4. Appellants contend the Examiner erred in finding the
disclosures of Amacher, Diduck, Yamamoto, Bengtsson, and Corwin teach
or suggest "the information comprises a time stamp," as recited in claim 5.
(App. Br. 23-24; Reply Br. 11).
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
contentions that the Examiner has erred. Except as noted herein, we agree
with the Examiner and adopt as our own (1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken and
(2) the reasons set forth by the Examiner in the Examiner's Answer in
response to Appellants' Appeal Brief (see Ans. 7-9). However, we
highlight and address specific findings for emphasis as follows.
As to Appellants' above contention 1, we are not persuaded of error.
We begin our analysis by first considering the scope and meaning of the
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Application 14/720,051
claim limitation "moisture measurement," which must be given the broadest
reasonable interpretation consistent with Appellants' disclosure. As
explained in In re Morris:
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art, taking
into account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description contained in
the applicant's specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). See also In re
Zietz, 893 F.2d 319, 321 (Fed. Cir. 1989) (stating that "claims must be
interpreted as broadly as their terms reasonably allow").
In the present case, the Specification does not provide an express
definition of "moisture measurement."
The Examiner finds:
Amacher to disclose a plurality moisture sensors located at different
locations of a structure to detect moisture presence at the different
locations of building materials of the structure (Abstract, [0035]-
[0036], and FIG. 1-3: a particular moisture sensor may be used
within the framing of a window unit to a residential housing
structure, as illustrated in FIG. 1, or at the threshold of a door to a
residential housing structure or commercial building, as illustrated in
FIG. 2. Variations in the shape and smoothness of the construction
members ( studs, sheathing, and the like) can be accounted for by the
conformability of the moisture sensor 25 provided by the pliable
substrate 45). Thus, Amacher's teachings reads on the limitations of
"a moisture measurement of a building material forming a portion of a
building structure."
(Ans. 4).
Based on our review of Amacher, and consistent with the Examiner's
stated position (Ans. 4), we interpret the claim language "moisture
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measurement" using the broadest reasonable interpretation consistent with
Appellants' disclosure, to include, for example, the moisture sensors in
Amacher. See Morris, 127 F.3d at 1054. In addition, Amacher (Fig. 2)
explicitly teaches placing the sensors on various locations of a building
structure.
Appellants' contention regarding the "level of moisture" (Reply Br. 2)
is not commensurate with the scope of the claim language. The language of
claim 1 does not recite a level of moisture.
Regarding Appellants' contention 2, we find Appellants are arguing
the references separately. 2 The Examiner properly identifies the relevant
teachings in Amacher, Didi ck, and Yamamoto and states how each claimed
element is met by those teachings. (Ans. 5-8).
The Examiner finds, and we agree:
in view of teachings by Amacher, Diduck, and Yamamoto, it would
have been obvious to one of the ordinary skill in the art at the time of
the claimed invention to implement in the moisture detection system
of Amacher and Diduck to include the information is provided to the
electronic device as the cellular telephone for transmitting to the
remote location using cellular network as claimed, as suggested by
Yamamoto. The motivation for this is to implement a known
alternative method for transmitting sensing information through a
cellular network to a remote location using a cellular telephone.
(Ans. 7).
Regarding Appellants' contention 3, the Examiner finds:
it would been obvious to one of the ordinary skill in the art at the time
of the claimed invention to implement in the moisture detection
2 One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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system of Amacher, Diduck, and Yamamoto to include the
information comprises a digital image indicative of the moisture
measurement, as suggested by Bengtsson. The motivation for this is
to implement a known alternative type of information to a receiving
party.
(Ans. 10).
We agree with the Examiner's findings because all of the features of
the structure in the secondary reference need not be bodily incorporated into
the primary reference, but consideration should be given to what the
combined teachings, knowledge of one of ordinary skill in the art, and the
nature of the problem to be solved as a whole would have suggested to those
of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCPA
1981 ).
In that regard, the Supreme Court has held that:
[It is error to] assum[ e] that a person of ordinary skill
attempting to solve a problem will be led only to those elements
of prior art designed to solve the same problem. . . . Common
sense teaches ... that familiar items may have obvious uses
beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle.
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007) ( citation omitted).
Furthermore, the artisan is not compelled to blindly follow the
teaching of one prior art reference over the other without the exercise of
independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F .2d
881, 889 (Fed. Cir. 1984). As such, the combination of Amacher, Diduck,
and Yamamoto would have been adjusted to accommodate teachings from
Bengtsson by one of ordinary skill in the art. In particular, the combination
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as a whole would have taught one of ordinary skill in the art to provide "a
digital image indicative of the moisture measurement." (See Ans. 10).
Regarding contention 4, we agree with the Examiner that Corwin
explicitly teaches time stamp information in Figure 3. (Ans. 12).
Although Appellant raises additional arguments for patentability of
several other claims (App. Br. 22-24), we find that the Examiner has
responded in the Answer with sufficient evidence. (Ans. 10-13). Therefore,
we adopt the Examiner's findings and underlying reasoning, which are
incorporated herein by reference.
Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner's reading of
the contested limitations on the cited prior art, or in the proper combinability
of the prior-art references as suggested by the Examiner. Therefore, we
sustain the Examiner's obviousness rejections of claims 1-14 and 22-28.
DECISION
The decision of the Examiner to reject claims 1-14 and 22-28 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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