Ex Parte Rusciano et al

Board of Patent Appeals and Interferences

Jan 31, 2012

11244839 (B.P.A.I. Jan. 31, 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.
11/244,839 10/06/2005 James J. Rusciano 7603-0006-1 2450
49698 7590 01/31/2012
MICHAUD-Kinney Group LLP
306 INDUSTRIAL PARK ROAD
SUITE 206
MIDDLETOWN, CT 06457
EXAMINER
MCNALLY, KERRI L
ART UNIT PAPER NUMBER
2612
MAIL DATE DELIVERY MODE
01/31/2012 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 JAMES J. RUSCIANO and
DOMENICK V. TURCHIOE
________________

Appeal 2010-001873
Application 11/244,839
Technology Center 2600
________________

Before CARLA M. KRIVAK, THOMAS S. HAHN, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-001873
Application 11/244,839

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SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejections of claims 1, 2, 4-6, 8-15, 18-24, 26, and 28:
1. Claims 1, 2, 4-6, 9, 14, 15, and 18 stand rejected under 35 U.S.C.
§ 103 as obvious over Turchioe (US 5,602,523; issued Feb. 11, 1997) in
view of Rosenzweig (US 2003/0003944 A1; published Jan. 2, 2003) and
Borsina (US 7,263,033 B2; issued Aug. 28, 2007).
2. Claims 8, 13, and 28 stand rejected under 35 U.S.C. § 103 as obvious
over Turchioe in view of Rosenzweig, Borsina, and Rich (US 2004/0201459
A1; published Oct. 14, 2004).
3. Claim 10 stands rejected under 35 U.S.C. § 103 as obvious over
Turchioe in view of Rosenzweig, Borsina, and Hart (US 5,299,971; issued
Apr. 5, 1994).
4. Claim 11 stands rejected under 35 U.S.C. § 103 as obvious over
Turchioe in view of Rosenzweig, Borsina, and Metcalf (US 5,257,012;
issued Oct. 26, 1993).
5. Claim 12 stands rejected under 35 U.S.C. § 103 as obvious over
Turchioe in view of Rosenzweig, Borsina, and Thompson (US 5,517,201;
issued May 14, 1996).
6. Claim 19 stands rejected under 35 U.S.C. § 103 as obvious over
Turchioe in view of Rosenzweig, Borsina, and Jincks (US 2003/0058740
A1; published Mar. 27, 2003).
7. Claim 20 stands rejected under 35 U.S.C. § 103 as obvious over
Turchioe in view of Rosenzweig, Borsina, and Hayakawa (US 4,563,759;
issued Jan. 7, 1986).
Appeal 2010-001873
Application 11/244,839

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8. Claims 21 and 26 stand rejected under 35 U.S.C. § 103 as obvious
over Turchioe in view of Rosenzweig, Borsina, and Wu (US 6,392,549 B1;
issued May 21, 2002).
9. Claims 22-24 stand rejected under 35 U.S.C. § 103 as obvious over
Turchioe in view of Rosenzweig, Borsina, and Peterson (US 5,450,063;
issued Sep. 12, 1995).
We affirm.

STATEMENT OF THE CASE
Independent claim 1 is representative of the claims on appeal:1
1. An animal repellant system comprising:
triggering means for detecting a presence of animals
within a particular area and for generating signals indicative
thereof;
a controller operable to receive said signals generated by
said triggering means and to issue command signals responsive
thereto; and
deterrent means for effectuating a repellant component of
said animal repellent system in response to said command
signals issued by said controller, thereby dissuading said
animals from entering said particular area, said deterrent means
including a power amplifier operable to receive said command
signals and to create amplified command signals and an audio
driver for processing said amplified command signals, for
transforming said amplified command signals into said

1 Although Appellants nominally argue claims 8, 10-13, 19-24, 26, and 28
(App. Br. 17) separately from claims 1, 2, 4-6, 9, 14, 15, and 18 (App. Br. 4-
12), the arguments presented for claims 8, 10-13, 19-24, 26, and 28 are
substantially the same as those presented for claim 1, 2, 4-6, 9, 14, 15, and
18. Accordingly, we treat claims 1, 2, 4-6, 8-15, 18-24, 26, and 28 as a
single claim grouping, and we select claim 1 as representative of this group.
See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2010-001873
Application 11/244,839

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repellant component and for broadcasting said repellant
component; and
a microphone operable to detect ambient noise and to
transmit noise wave signals corresponding thereto to said
controller; wherein said audio driver, in response to said
command signals, outputs sound waves opposite to and 180
degrees out of phase with said ambient noise.

PRINCIPLES OF LAW
Two separate tests define the scope of analogous prior art: (1)
whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citations omitted).
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, . . . would be led in a direction divergent
from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551,
553 (Fed. Cir. 1994).

CONTENTIONS AND ANALYSIS2
In finding that the combination of Turchioe and Rosenzweig teaches
the limitations of independent claim 1, the Examiner interprets, inter alia,
Turchoie’s deer audio repellant system as corresponding to claim 1’s

2 Rather than repeat Appellants’ arguments or the Examiner’s positions in
their entirety, throughout this opinion we refer to the following documents
for their respective details: (1) the Appeal Brief with corrected sections
(“App. Br.”) filed July 1, 2009; and (2) the Examiner’s Answer (“Ans.”)
mailed Aug. 24, 2009; and (3) the Reply Brief (“Reply Br.”) filed Oct. 21,
2009.
Appeal 2010-001873
Application 11/244,839

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“repellant component” (Ans. 4-5). The Examiner also interprets
Rosenzweig’s system for canceling ambient noise as corresponding to claim
1’s ambient noise cancellation limitation that includes a microphone and
audio driver (id.).
The Examiner reasons that it would have been obvious to combine
Turchioe’s deer audio repellant system with Rosenzweig’s system of
removing undesired ambient noise signal from an audio signal (Ans. 5, 7,
17). That is, the combination would eliminate the ambient noise so that the
audio deer repellant sound is clearer against a quieted background (id.). The
Examiner also uses Borsina’s teachings as evidence to support the
obviousness of combining Turchioe and Rosenzweig (id.). The Examiner
reasons that because Borsina uses noise detecting and cancelling in an
animal deterrent sound system, one skilled in the art similarly would have
used Rosenzweig’s noise cancellation system in Turchioe’s animal deterrent
sound systems (id.).
Appellants assert that when making rejections under 35 U.S.C. § 103,
“the obviousness analysis of KSR is not optional and that a [Teaching-
Suggestion-Motivation] TSM analysis cannot be used ‘instead’ of a KSR
analysis” (Reply Br. 6). This argument is not persuasive. Contrary to
Appellants’ argument, the TSM test is still a valid analysis under KSR.
Although the Supreme Court in KSR cautioned against an overly rigid
application of TSM, it also recognized that TSM was one of a number of
valid rationales that could be used to determine obviousness. According to
the Supreme Court, establishment of the TSM approach to the question of
obviousness “captured a helpful insight.” See KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 389, 418 (2007) (citation omitted).
Appeal 2010-001873
Application 11/244,839

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Appellants argue the Examiner’s motivation for combining Turchioe’s
system with Rosenzweig’s system for reducing ambient noise is improper
because the Examiner did not show that ambient noise was a problem in
animal deterrent systems (App. Br. 8). We are not persuaded by Appellants’
argument. The Examiner finds that Borsina recognizes the problem of
unwanted noise (e.g., boat sounds) (Ans. 5, 19, 25) in sound systems for
deterring animals and uses Borsina’s problem recognition and teaching in
support of the combination of Turchioe and Rosenzweig. Furthermore,
Rosenzweig recognizes the problem of unwanted ambient noise in sound
systems and provides a motivation for combining with Turchioe’s teaching
by removing unwanted ambient noise in broadcasted sound to make the
sound clearer (Ans. 5). Thus, the Examiner applies Rosenzweig’s known
ambient noise cancelling technology to improve Turchioe’s sound system
(Ans. 5, 7).
Appellants argue (Reply Br. 8) the combination of Borsina and
Rosenzweig is improper because Borsina and Rosenzweig are non-
analogous art. We are not persuaded. Borsina and Rosenzweig are
analogous art in that they are both directed to sound systems. Moreover,
Borsina and Rosenzweig are both reasonably pertinent to the inventor’s
problem of producing sounds that could repel animals. See Bigio, 381 F.3d
at 1325. Rosenzweig’s ambient sound cancellation system would have
commended itself to an inventor’s attention in considering the problem of
how to broadcast a repelling sound so that an animal could hear the sound
clearly. Likewise, Borsina’s sound system for repelling lobsters by
canceling unwanted sounds (non-natural ambient sounds) would have been
reasonably pertinent to the inventor’s problem.
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Application 11/244,839

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Appellants argue that the combination of Rosenzweig and Turchioe as
suggested by Borsina does not have a reasonable expectation of success for
repelling deer (Reply Br. 10; see also App. Br. 9). Appellants contend this
is because of the unpredictability disclosed by Borsina concerning the effect
of selected sounds on lobsters, the absence of any suggestion of a useful
effect of sound cancellation on deer-repelling sounds, and lack of a
correlation between lobster behavior and land animal behavior (Reply Br.
10).
Appellants’ arguments are not persuasive. Rosenzweig makes the
general suggestion that eliminating ambient noise from a desired sound
enables a human (land animal) to hear the desired sound more clearly (Ans.
5). Borsina also suggests that eliminating undesired noise from a lobster
repellant sound (i.e., making the sound clearer) makes the repellant sound
more effective (id.). Rosenzweig’s and Borsina’s teachings would have
provided a basis for one of ordinary skill in the art to conclude that
combining Rosenzweig’s noise cancellation system with Turchioe would
provide a reasonable likelihood that Turchioe’s deer audio repellant system
would become more effective specifically for deer. That is, one would have
concluded there was a reasonable likelihood that eliminating ambient noise
would make Turchioe’s deterrent sound clearer to deer since the cited art
evidences that eliminating ambient noise was known to make sounds clearer
to other animals, such as humans and lobsters.
Therefore, it would have been at least obvious to try Rozenzweig’s
noise canceling in Turchioe’s system. Moreover, Appellants present no
evidence indicating that there was not a reasonable expectation of success.
Appeal 2010-001873
Application 11/244,839

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Appellants argue that Turchioe teaches away from the invention
because Turchioe discloses only the positive generation of sound as being
effective for deterring deer (Reply Br. 11; App. Br. 7). We are not
persuaded by Appellants’ arguments. Appellants have not cited to any
teaching in Turchioe that would lead one skilled in the art away from adding
Rosenzweig’s noise cancelation feature to reduce ambient sound. See
Gurley, 27 F.3d at 553.
For the foregoing reasons, Appellants have not persuaded us of error
in the Examiner’s obviousness rejection of representative claim 1.
Accordingly, we will sustain the Examiner’s rejection of that claim and
claims 2, 4-6, 8-15, 18-24, 26, and 28, which fall with claim 1.

DECISION
The Examiner’s decision rejecting claims 1, 2, 4-6, 8-15, 18-24, 26,
and 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)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED

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