Ex Parte Stevens et al

Patent Trial and Appeal Board

Jun 28, 2018

12348989 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/348,989 01/06/2009
23570 7590 07/02/2018
PORTER WRIGHT MORRIS & ARTHUR, LLP
INTELLECTUAL PROPERTY GROUP
41 SOUTH HIGH STREET
29THFLOOR
COLUMBUS, OH 43215
Saundra Janese Stevens
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.
4007694-174075 4171
EXAMINER
KIM, SHINH
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
07/02/2018 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):
ipdocket@porterwright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SAUNDRA JANESE STEVENS and ROBERT GLENN FULLER
Appeal2017-000918
Application 12/348,989
Technology Center 3600
Before MAHSHID D. SAADAT, CARLL. SILVERMAN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Non-final Rejection of claims 11-29, which are all the claims pending in this
application. 2 We have jurisdiction over the pending claims under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is EVIS, LLC, an Ohio
limited liability company. Br. 3.
2 Claims 1-10 have been cancelled previously.
Appeal2017-000918
Application 12/348,989
STATEMENT OF THE CASE
Introduction
Appellants' Specification describes "systems and methods for
evacuating structures having a plurality of inhabited rooms and, more
particularly, to systems and methods for keeping track of which rooms have
been evacuated." Spec. ,r 5. Exemplary claims 11 and 12 under appeal read
as follows:
11. A system for indicating status of an evacuation of
inhabitants during an emergency evacuation situation, said
system comprising:
a structure having a plurality of rooms each with a door;
a plurality of evacuation status indicators permanently
mounted at an exterior of the rooms in close proximity to the
doors so that each of the rooms has an associated one of the
evacuation status indicators;
wherein each of the evacuation status indicators includes
first and second components affixed together and selectively
moveable relative to one another between an open state wherein
a visual stimulus recognizable by evacuation personnel in the
field of emergency protocol is visible to the evacuation
personnel to indicate that evacuation of the associated one of
the rooms has occurred and a closed state wherein the visual
stimulus is hidden and not visible the evacuation personnel;
wherein the visual stimulus is the same on each of the
evacuation status indicators and the visual stimulus is secured
to the first and second components such that the visual stimulus
cannot be removed from the first and second components;
wherein each of the evacuation status indicators further
includes a latch mechanism removably holding the first and
second components in the closed state until an external input is
selectively applied to move the first and second components to
the open state;
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wherein the second component is rigidly secured to the
structure and the first component is movably secured to the
second component; and
wherein the evacuation status indicators are maintained
in the closed state during non-emergency evacuation situations
so that the visual stimulus which indicates completed
evacuation is hidden from view and each of the evacuation
status indicators are moved from the closed state to the open
state by the evacuation personnel during an emergency
evacuation situation once all inhabitants of its associated room
have been evacuated so that the visual stimulus which indicated
completed evacuation is visible to the evacuation personnel
after evacuation of the associated room has occurred and the
evacuation personnel can see which of the rooms have been
evacuated and which of the rooms have not been evacuated.
12. The system according to claim 11, wherein the
visible stimulus consists of a single alphanumeric character and
the first and second components each form a portion of the
single alphanumeric character.
References and Rejections
Claims 11-14, 18, 20-24, and 28 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Leflet (US 4,885,857; issued Dec. 12, 1989)
and Bank et al. (US 2001/0045037 Al; published Nov. 29, 2001) ("Bank").
See Non-final Act. 3-7.
Claims 15 and 25 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Leflet, Bank, and Prevou (US 5,326,265; issued July 5,
1994). See Non-final Act. 7-8.
Claims 16, 17, 26, and 27 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Leflet, Bank, and Bosworth et al. (US 2,931,117; issued
Apr. 5, 1960) ("Bosworth"). See Non-final Act. 8.
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Claims 19 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Leflet, Bank, and Allen et al. (US 6,267,598 B 1; issued
July 31, 2001). See Non-final Act. 9.
PRINCIPLES OF LAW
The Supreme Court has rejected the rigid requirement of
demonstrating a teaching, suggestion, or motivation in the references to
show obviousness. See KSR Int'! Co., v. Teleflex Co., 550 U.S. 398, 415-16
(2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017)
("KSR directs that an explicit teaching, suggestion, or motivation in the
references is not necessary to support a conclusion of obviousness.").
Further, one cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413,425 (CCPA 1981).
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments in Appellants' Appeal Brief that the Examiner has erred. We are
unpersuaded by Appellants' contentions and concur with the findings and
conclusions reached by the Examiner as explained below.
Independent Claim 11
In rejecting claim 11, the Examiner relies on Leflet as disclosing all
the elements of the recited system except for maintaining the status of the
evacuation indicators in closed or open states during non-emergency or
emergency evacuation, respectively. Ans. 3--4. The Examiner finds Bank's
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Figures 2 and 4 disclose "a system for indication comprising: a structure
having a room with a door; a status indicator mounted at an exterior of the
room in close proximity to the door" and "a visual stimulus recognizable by
personnel in the field of protocol is visible." Ans. 4. The Examiner explains
that "[i]t is up to the user to selectively choose that such colors will have the
meaning of specific situations like an empty room during a state of
emergency." Id. The Examiner concludes it would have been obvious to
one of ordinary skill in the art to combine the teachings of Leflet and Bank
in order to indicate the status of a room by placing a sign on the door. Id.
First Argument
Appellants contend the combination of Leflet and Bank fails to teach
or suggest the structure having a two-position signal device recited in claim
11 because "Leflet discloses attaching a single signal device to a primary
object such as an office file, an item of manufacture, a pill bottle, or like
items" whereas Bank teaches "permanently attaching message boards to
walls associated with rooms and temporarily attaching status indicators to
the message boards." See App. Br. 12, 14. Additionally, Appellants
contend Leflet teaches away from using his signaling on a building and
Bank provides no teaching or suggestion for permanently mounting status
indicators at the exterior of the rooms. App. Br. 14.
The Examiner responds that combining Leflet's sign indicator and
Bank's sign for indicating the status of a room meet the disputed claim
limitation whereas the type of information, such as the status of a patient in
the room or whether the room is evacuated, would have been obvious to one
of ordinary skill in the art. Ans. 3. We agree with the Examiner that the
sign shown in Figure 5 of Leflet teaches a sign having different colors or
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alphanumeric symbols that is attached to a building for indicating two
different types of information. See Leflet 1:20-27, 49--55, 4:50-59, Fig. 5.
Second Argument
Appellants contend the combination of Leflet and Bank fails to teach
or suggest the evacuation status indicator having a single visible stimulus
that is visible or hidden recited in claim 11 because "[t]he two-position
signal device of Leflet has a panel that is rotated between two different
signaling positions which have different colors, letters, numbers, symbols,
etc." and Bank "has placards that are attached and removed from the
message board." See App. Br. 12, 14--15. Appellants also argue that
Leflet's signal device displays one or the other indicia, which is different
from the claimed signal that is required to be either hidden or revealed.
App. Br. 15. According to Appellants, Bank fails to teach the recited feature
because Bank "has placards that are attached and removed from the message
board," rather than being "secured to the message board in a manner that
movement relative to one another hides and exposes the messages on the
placards." Id.
The Examiner explains Leflet's display panel rotates and displays one
of the two display panels in an open or closed position, whereas the
teachings of Bank would have suggested adding other types of information
to the display panel and attaching the indicator to the wall near a door.
Ans. 3. We agree with the Examiner's findings and further note that Leflet's
sign provides for at least two positions for conveying different types of
information when the moveable part is flipped to one or the other side. See
Leflet Figs. 1-5, 4:41-53. We also observe that Bank suggests attaching the
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sign to a wall to provide information related to the status of a room such as a
patient's room in a hospital. See Bank Figs. 1--4, ,r 2.
Third Argument
Appellants further contend the combination of Leflet and Bank fails to
teach or suggest the same visual stimulus on each of the evacuation status
indicators that are secured to the first and second components recited in
claim 11. App. Br. 12. According to Appellant, "Leflet discloses attaching
a single signal device to a primary object such as an office file, an item of
manufacture, a pill bottle, or like items" whereas "Bank[] et al. describes
attaching a plurality of message boards to a building but each of the message
boards have placards that are unique to a particular associated rooms." See
App. Br. 12-13, 15.
In response, the Examiner characterizes Leflet's display panel surface
as "a single visible stimulus" that is rotated in open or closed positions and
thus reveals one of the two messages as the panel is rotated. Ans. 4. We
agree with the Examiner's finding and adopt it as our own. The Examiner
also correctly finds that the proposed combination teaches attaching Leflet's
visual stimulus showing one of the two different indicators to the wall next
to each room for providing the status of that room, as taught by Bank. See
id.
Fourth Argument
Appellants contend the combination of Leflet and Bank fails to teach
or suggest maintaining the status of the evacuation indicators in closed or
open states during non-emergency or emergency evacuation, respectively,
recited in claim 11. App. Br. 13. According to Appellant, "Leflet discloses
a two-position signal device to be attached to a primary object such as an
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office file ... , an item of manufacture ... , a pill bottle ... ; or like items"
whereas "Bank et al teaches temporarily attaching placards to a message
board" and "is totally silent as to emergency evacuations." See App. Br. 15-
16.
In response, the Examiner explains that the type of the situation
indicated by the visual stimulus would have been obvious to the ordinarily
skilled artisan as taught by Bank's disclosure of a message board mounted
on a wall outside a patient's room for indicating different types of
information related to the status of the patient and/or room. Ans. 4. We
agree with the Examiner's findings with respect to Bank and further observe
the proposed combination would have suggested to one of ordinary skill in
the art to modify the visual stimulus of Leflet to convey information related
to a variety of instructions or alerts about the patient's room including the
status of emergency evacuation. See Non-final Act. 4, Ans. 4; see also Bank
Figs 2, 4 and ,r,r 28, 29.
Fifth Argument
Appellants further contend the Examiner relies on impermissible
hindsight to combine Leflet with Bank because neither reference "discloses
or reasonably suggests that that single indicia would indicate that the room
has been evacuated in an emergency situation" and Appellants' disclosure
"is the only evidence of record that even mentions that evacuation indicia
should be hidden at all times until a room has been evacuated during an
emergency." App. Br. 17. Appellants however have not provided sufficient
evidence that the Examiner's rejection is based on knowledge gleaned only
from Appellants' disclosure, or based on knowledge which was beyond the
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level of ordinary skill in the art at the time. See In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971).
We also agree with the Examiner's explanation that Leflet teaches
using the signal device in various environments and situations, such as
emergency and evacuation indicators, which, as taught by Bank per the
discussion supra, would have been obvious to be mounted on the wall near
the patient rooms. Ans. 4. We observe that the proposed combination is a
combination of familiar elements according to known methods with
predicable results. See KSR, 550 U.S. at 416. Further, we find the Examiner
has provided a rational underpinning to support the conclusion of
obviousness based on knowledge within the level of ordinary skill in the art,
specifically to provide a user with the additional functionality of sharing
their reaction to video content with others via social media (Ans. 4--5). See
also id. at 417-18.
Dependent Claim 12
Appellants contend the Examiner's citation of Leflet's disclosure of
alphanumeric characters in column 4 is not sufficient to show "how this
reasonably suggests having two separate components cooperating to form a
single alphanumeric character." App. Br. 19. As the Examiner finds, Leflet,
with respect to Figures 1 and 5, teaches first and second areas 71 and 73 on
panel surfaces 32 and 34 that "have different contrasting colors such as red
and green respectively, and/or may carry other contrasting signalling [sic]
media, such as different letters, numbers or symbols, to indicate two
different conditions or statuses." See Non-final Act. 5 (citing Leflet 4:54--
60). We therefore agree with the Examiner's finding that the combination of
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Leflet and Bank teaches or suggests the claimed "visible stimulus consists of
a single alphanumeric character and the first and second components each
form a portion of the single alphanumeric character" because the
arrangement or the type of information placed on the visual stimulus or
signal panel would have been obvious. See Ans. 5---6.
Independent Claim 20 and Dependent claim 22
Claims 20 and 22 recite features that are similar to those recited in
claims 11 and 12, respectively. Appellants contend the rejections of these
claims are in error based on reasons similar to those presented for claims 11
and 12. See App. Br. 20-29. Based on the analysis above and for similar
reasons stated for claims 11 and 12, we are not persuaded of Examiner error
and agree with the Examiner's findings and analysis with respect to the
teachings of Leflet and Bank. See Non-final Act. 5-7.
CONCLUSION
As discussed herein, Appellants' arguments have not persuaded us
that the Examiner erred in finding the combination of Leflet and Bank
teaches or suggests the disputed limitations of claims 11, 12, 20, and 22.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejections of independent
claims 11 and 20, dependent claims 12 and 22, as well as the remaining
claims which are not argued separately.
DECISION
We affirm the Examiner's rejection of claims 11-29 under
35 U.S.C. § 103(a).
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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)(l )(iv).
AFFIRMED
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