Ex Parte Shemtov et al

Patent Trial and Appeal Board

Sep 26, 2017

13415528 (P.T.A.B. Sep. 26, 2017)

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.
13/415,528 03/08/2012 Niv Shemtov 82893367 1024
22879
HP Tnr
7590 09/28/2017 EXAMINER
3390 E. Harmony Road
Mail Stop 35
TON, TRI T
FORT COLLINS, CO 80528-9544 ART UNIT PAPER NUMBER
2877
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
ipa.mail@hp.com
barbl@hp.com
y vonne.bailey @ hp. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIV SHEMTOV, EVGENY PLASKOV,
ZIV GILAN, and URI TO VIM
Appeal 2015-003282
Application 13/415,528
Technology Center 2800
Before PETER F. KRATZ, GEORGE C. BEST, and JULIA HEANEY,
Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1—18 and 20. We have jurisdiction
pursuant to 35 U.S.C. § 6.
Appellants’ claimed invention is directed to a system and a method
for calculating the concentration of solids in a fluid including providing for
or using a light source that generates a specified light signal of predefined
characteristics (a modulated signal), an optical detector, and a processor.
App. Br. 6. Furthermore, Appellants claim a non-transitory computer
readable medium providing instructions for carrying out the solids
concentration determination method. App. Br. 7.
Appeal 2015-003282
Application 14/415,528
Claim 1 is illustrative and reproduced below:
1. A system to calculate a concentration of solids in a
fluid, the system comprising:
a light source to generate a modulated light signal of
predefined characteristics;
an optical detector, placed opposite the light source
across a gap between the light source and the detector through
which the fluid may flow;
a processor to:
identify the modulated light signal in a detection signal
generated by the optical detector and calculate the concentration
of solids in the fluid based on an identified light signal as
related to a generated light signal.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Yeung US 5,540,825 July 30, 1996
Weiss US 2003/0214655 A1 Nov. 20, 2003
Vanhove US 7,740,750 B2 June 22, 2010
Landry US 2013/0016355 A1 Jan. 17, 2013
Levy US 2013/0229659 A1 Sept. 5,2013
The Examiner maintains the following grounds of rejection:
1. Claims 1, 4, and 16 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Vanhove.
2. Claims 2, 3, 6, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Vanhove.
3. Claims 5 and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Vanhove in view of Weiss.
4. Claims 14 and 15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Vanhove in view of Weiss and Landry.
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5. Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vanhove in view of Yeung.
6. Claims 7—10, 12, and 18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Vanhove in view of Levy.
7. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vanhove in view of Levy and Weiss.
After review of the opposing positions articulated by Appellants and
the Examiner and the evidence of anticipation and obviousness adduced by
the Examiner, we determine that the Appellants’ arguments are insufficient
to identify reversible error in the Examiner’s stated rejections. In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, we affirm the stated anticipation and obviousness
rejections for substantially the fact findings and reasons as set forth by the
Examiner (Ans. 3—8; Final Act. 5—14). We offer the following for emphasis
Rejection 1.
Concerning the anticipation rejection, Appellants argue the rejected
claims together as a group. Accordingly, we select claim 1 as the
representative claim on which we shall focus in deciding this appeal as to
this rejection.
Appellants refer to 1 59 of the subject Specification wherein it is
disclosed that “[i]n some examples, processor 90 may optimize and/or
modulate the frequency of signal 5 from light source 10, such that a ratio of
signal to noise is changed” and argue that Vanhove fails to teach such
subject matter (App. Br. 11). However, representative claim 1 does not
require a processor to modulate a signal from a light source. Indeed,
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Appellants state that a modulator is not a highlighted (relied upon)
distinction between claim 1 and Vanhove (Reply Br. 6).1 Consequently, this
argument has no merit in establishing a substantive error in the Examiner’s
anticipation rejection.
In addition, Appellants argue that the modulated light signal of claim
1 is “a light signal that includes one or more properties that have changed”
whereas “Vanhove does not describe a modulated light signal as none of the
‘properties’ of the laser or the IR laser appear to be changed” and “nowhere
in Vanhove is there described a modulator, or any other component which
might change the signal emanating from the light source” (App. Br. 12). In
this regard, Appellants contend that the Examiner employs an overly broad
claim construction by reading out of claim 1 the claim term “modulated” in
the Examiner’s determination that the solid state laser light source 12 of
Vanhove, such as an infra-red laser, is a light source that generates a light
signal of predefined characteristics (light of a specified wave length range),
which light source is encompassed by the claim 1 requirement for a “a light
source to generate a modulated light signal of predefined characteristics”
(App. Br. 12—13; Reply Br. 4—6; Final Act. 2—3, 5—6; Ans. 4; Vanhove).
We are not persuaded of reversible error in the Examiner’s
anticipation rejection of claim 1 by Appellants’ arguments for reasons
discussed above and by the Examiner in the Final Office Action and the
Answer. Representative claim 1 does not specify a light source control
1 The Reply Brief lacks pagination after page 1. Our references to page
numbers of the Reply Brief other than page 1 is based on assigning the other
pages the page number, beginning with the number 2, that they would have
carried if they were properly numbered.
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Application 14/415,528
device such as “a modulator, or any other component which might change
the signal emanating from the light source” as contended by Appellants to be
missing from Vanhove (App. Br. 12). In interpreting claim terms, it is
inappropriate to read in limitations from the Specification. In re Paulsen, 30
F.3d 1477, 1480 (Fed. Cir. 1994).
After all, during prosecution of a patent application, the claims therein
are given the broadest reasonable interpretation consistent with the
Specification as it would be understood by one of ordinary skill in the art.
Gechterv. Davidson, 116 F.3d 1454, 1457, 1460 n.3 (Fed. Cir. 1997); In re
Zletz, 893 F.2d 319, 321—22 (Fed. Cir. 1989). As pointed out by the court in
In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997):
Absent an express definition in their specification, the fact that
appellants can point to definitions or usages that conform to their
interpretation does not make the PTO’s definition unreasonable
when the PTO can point to other sources that support their
interpretation.
Indeed, Appellants’ Specification further furnishes support for a
broadest reasonable claim construction that is not at all limited by specific
embodiments described therein by stating (Spec. 1 89):
The foregoing description of the embodiments of the
invention has been presented for the purposes of illustration and
description. It is not intended to be exhaustive or to limit the
invention to the precise form disclosed. It should be appreciated
by persons skilled in the art that many modifications,
variations, substitutions, changes, and equivalents are possible in
light of the above teaching. It is, therefore, to be understood that
the appended claims are intended to cover all such modifications
and changes as fall within the true spirit of the invention.
Hence, claim 1 merely requires a light source “to generate a
modulated light signal of predefined characteristics.” Claim 1 does not limit
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the predefined characteristics of the modulated light signal to any particular
light signal characteristics or require a modulator as part of the light source,
much less require a light source structure that can otherwise implement a
particular type or amount of modulation in generating a modulated signal of
predefined characteristics. Nor is claim 1 drawn to a method requiring a
process step wherein the modulated light signal characteristics are altered
from one characteristic to another characteristic in any particular way or
amount, as seemingly argued by Appellants as a distinction over the applied
prior art.
Appellants have not persuasively articulated why they believe a laser
light source, as described by Vanhove, is not capable of generating a
modulated light signal of predefined characteristics as found by the
Examiner to be the case. After all, a laser provides for light amplification
(the term laser is short for light amplification by stimulated emission of
radiation), and Appellants have not specifically articulated why the light
source, including a solid state laser, as described by Vanhove would not
have been expected to have the capability of generating a modulated signal
of predefined characteristics.
Thus, we concur with the Examiner’s anticipation finding given that
Appellants’ argument fails to show that the claimed light source to generate
a modulated light signal of predefined characteristics requires a light source
that differentiates over the light source 12 described by Vanhove (Ans. 3^4;
Final Act. 2—3, 5—6).
On this record, we shall sustain the Examiner’s anticipation rejection
(Rejection 1).
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Rejection 2.
Concerning the Examiner’s obviousness rejection of claims 2, 3, 6,
and 17 under 35 U.S.C. § 103(a) as being unpatentable over Vanhove,
Appellants do not present additional arguments for claims 3 and 6, which
each depend from claim 1. Consequently, we affirm as to claims 3 and 6 for
reasons discussed above and by the Examiner in the Final Office Action and
in the Answer.
As for dependent claim 2, Appellants argue that the filter of Vanhove,
which Vanhove describes as removing “line noise” and “gross intensity
variations” fails to teach or suggest a “filter synchronized to a same
modulation frequency as used by the light source” as required by claim 2
(App. Br. 14; Reply Br. 7—8; Vanhove, col. 6,11. 7—15).
As determined by the Examiner, however, the claim term
“synchronized” requires that the filter is employed at the same time with the
modulated light or otherwise coordinated with the modulation frequency
used by the light source to generate a modulated light and Vanhove teaches
or suggests such coordination to conduct its gross intensity variation and line
noise filtering of unwanted frequencies; otherwise, gross intensity variations
and noise could not be removed as taught by Vanhove (Ans. 5; Final Act. 7;
Vanhove, col. 3,11. 23—25, col. 6,11. 7—15).
We concur with the Examiner that Appellants’ argument does not
articulate why one of ordinary skill in the art would not have been led to
synchronize the filter of Vanhove to the frequency generated by the light
source for purposes of removing unwanted light signal noise and gross
intensity variations as desired by Vanhove.
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As for claim 17, the Examiner has determined that it would have been
obvious to an ordinarily skilled artisan to employ the solids concentration
determination system (densitometer) of Vanhove to determine the solids
concentration in a variety of fluids, such as determining the concentration of
colorant pigments in an inkjet printer ink (Final Act. 8; Ans. 5—6).
Appellants argue that the Examiner’s determination that it would have
been obvious to an ordinarily skilled artisan to employ Vanhove’s system for
quantifying the concentration of particles in a fluid stream for quantifying
the concentration of colorant pigment particles in an ink, such as ink being
used in (flowing through) a printer is conclusory and lacks adequate support
in the teachings of Vanhove wherein the one example cited relates to using
the system of Vanhove for estimating inhomogeneity’s of a tar byproduct
fluid sample (App. Br. 15; Reply Br. 8—9; Vanhove, col. 2,11. 30—32).
However, Appellants’ argument is undercut by Appellants’
acknowledgement that densitometers are used in many industries as solids
concentration measuring tools, including in the analysis of inkjet printer ink
(Spec. 13). Moreover, Appellants do not articulate any persuasive reasons
as to why the optical analysis system (densitometer) of Vanhove would not
have been understood by one of ordinary skill in the art as being adaptable
for the analysis of the solids concentration of fluids other than the example
fluid of Vanhove, such as the ink of a printer in light of the skill in the art
and the recognized use of densitometers for analysis of printer ink, as
essentially contended by the Examiner. Consequently, Appellants argument
fails to show harmful error in the Examiner’s obviousness rejection of claim
17.
ft follows that we shall affirm Rejection 2.
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Rejection 3.
Claims 5 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vanhove in view of Weiss.
Appellants present substantially the same argument with respect to
claims 5 and 13. Accordingly, we select claim 5 as the representative claim
on which we focus in deciding this appeal as to Rejection 3.
Claim 5 requires that the system of claim 1, as modified by claim 3,
further includes a look-up table for converting voltage to a value reflecting
solids concentration, wherein the table includes data relating to amplitude,
frequency, and shape of the detection signal. Claim 5 is drawn to a system
and does not specify the data (information) that is in the table other than
requiring that it have some kind of unspecified relationship to the detection
signal amplitude, frequency and shape.
The Examiner finds that Vanhove teaches the features of claim 5 but
for the look-up table feature (Final Act. 8). The Examiner finds that Weiss
teaches or suggests a look-up table that comprises data relating to color and
shade, which corresponds to the frequency and amplitude of a detection
signal and hence relates to the amplitude, frequency and shape of the
detection signal (Final Act. 8; Weiss 158). Based thereon, the Examiner
maintains that an ordinarily skilled artisan would have been led to modify
Vanhove to include a look-up table corresponding to that required by
Appellants’ claim 5 so as to efficiently determine the corresponding
concentration level of solids in a fluid (Final Act. 8—9; Weiss 1 58). In this
regard, the Examiner maintains that each light color is equivalent to a light
frequency and each light shade is equivalent to one light intensity or a
wavelength amplitude.
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Appellants argue that surface shade and color are distinct from an
amplitude, frequency and shape of a detection signal and ultimately contend
that “Weiss does not indicate what information is indicated in the look-up
tables and merely mentions use of the tables” (App. Br. 16—17; Reply Br.
10).
However, Appellants (1) do not directly contest the Examiner’s
determination that data relating to color and shade can correspond to the
frequency and amplitude of a detection signal and (2) do not articulate how
the unspecified data (that is related to amplitude, frequency, and shape of the
detection signal) of claim 5 distinguishes over the type of data suggested to
be stored in a look-up table by the Examiner’s proposed combination of
Vanhove and Weiss.
It follows that we shall sustain the Examiner’s rejection of claims 5
and 13 (Rejection 3) on this record.
Rejections 4 and 5.
Appellants make the same argument for Rejection 4 as they make for
Rejection 3 (App. Br. 11). Also, Appellants rely on the arguments made
against Rejection 1 in contesting the Examiner’s separate obviousness
rejection of dependent claim 20 notwithstanding the Examiner’s additional
reliance on the teachings of Yeung in the obviousness rejection of claim 20
(App. Br. 11-12).
It follows that we shall sustain Rejection 4 and Rejection 5 for reasons
discussed above with respect to Rejection 3 and Rejection 1 and for the
additional fact findings and reasons expressed by the Examiner in Rejection
4 and Rejection 5.
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Rejection 6.
Appellants argue the Examiner’s separate rejection of method claims
7—10, 12, and 18 under 35 U.S.C. § 103(a) as being unpatentable over
Vanhove in view of Levy based on the argument they made against the
Examiner’s anticipation rejection of claim 1. Appellants do not contest the
Examiner’s findings with respect to the additional teachings of Levy
concerning modulating the frequency of a light source signal such that a
ratio of signal to noise is changed (Final Act. 12; Levy 1 50; see also Levy
11 15-22, 25-35, 42-49).
For reasons set forth above in our affirmance of Rejection 1 and for
reasons set forth by the Examiner in the Final Action and in the Answer with
respect to Rejection 6 and Rejection 1, we affirm Rejection 6.
Rejection 7.
Appellants argue against the Examiner’s separate rejection of method
claim 11, which depends from claim 7, under 35 U.S.C. § 103(a) as being
unpatentable over Vanhove in view of Levy and Weiss based on the reasons
they presented in arguing against the Examiner’s rejection of claim 5 in
Rejection 3.
For reasons discussed above with respect to Rejections 1, 3, and 6 and
for the reasons set forth by the Examiner in the Final office Action and in the
Answer in rejecting claim 11, we affirm Rejection 7.
CONCLUSION/ORDER
The Examiner’s decision to reject the appealed claims is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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