10606153 (B.P.A.I. Jun. 29, 2012)

Ex Parte Tortola

Board of Patent Appeals and InterferencesJun 29, 2012

10606153 (B.P.A.I. Jun. 29, 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. 10/606,153 06/25/2003 Angelo Tortola TKC 3553 32835 7590 06/29/2012 JOSEPH STECEWYCZ P.O. BOX 1309 GROTON, MA 01450 EXAMINER PERVAN, MICHAEL ART UNIT PAPER NUMBER 2629 MAIL DATE DELIVERY MODE 06/29/2012 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 ANGELO TORTOLA ____________ Appeal 2010-002823 Application 10/606,153 Technology Center 2600 ____________ Before JOSEPH F. RUGGIERO, THOMAS S. HAHN, and JEFFREY S. SMITH, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002823 Application 10/606,153 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-12 and 14-20, which are all the claims remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Invention Appellant’s invention relates to a system and method for remote display. Title. Representative Claim 1. A remote display system suitable for transmitting a data output signal for providing a display at a remote location, said remote display system comprising: a base station, said base station including a computer for providing the data output signal, a control processor for converting the data output signal into a control and data interface radio frequency (RF) signal, an RF transmitter for broadcasting said control and data interface RF signal; and at least one display device, each said display device including an RF receiver for receiving said control and data interface RF signal into the data output signal, a display controller for converting said control and data interface RF signal into the data output signal, a display unit for providing a display corresponding to the data output signal; and a power supply for providing power only to said RF receiver, to said display controller, and to said display unit. Appeal 2010-002823 Application 10/606,153 3 Prior Art Axler US 5,305,197 Apr. 19, 1994 Want US 5,818,425 Oct. 6, 1998 Nahi US 6,084,584 Jul. 4, 2000 Briechle US 6,130,603 Oct. 10, 2000 Examiner’s Rejections Claims 1-4, 6-8, 14, 15, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nahi, and Want. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Nahi, Want, and Axler. Claims 9-12 and 16-19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nahi, Briechle, and Axler. Claim Groupings Based on Appellant’s arguments in the Appeal Brief (Br. 6-11), we will decide the appeal on the basis of claims 1, 5, and 9. ISSUES Did the Examiner err in finding that the combination of Nahi and Want teaches a receiver within the meaning of claim 1? Did the Examiner err in finding that the combination of Nahi, Want, and Axler teaches a receiver within the meaning of claim 5? Did the Examiner err in finding that the combination of Nahi, Briechle, and Axler teaches a unitary RFOS TM operating software module within the meaning of claim 9? Appeal 2010-002823 Application 10/606,153 4 ANALYSIS Section 103 rejections of claims 1-4, 6-8, 14, 15, and 20 Appellant contends that the system taught by Nahi includes a display device having both a transmitter and a receiver. According to Appellant, Nahi does not teach a display device having a power supply providing power only to a receiver, a display controller, and to the display unit. Br. 7. However, the Examiner relies on Want to teach this limitation. Ans. 5. Appellant contends that the system of Want taught in column 3 teaches a transceiver, not a receiver. Appellant concludes that the combination of Nahi and Want does not teach “a power supply for providing power only to said RF receiver, to said display controller, and to said display unit” as recited in claim 1. Br. 8. However, the Examiner relies on col. 1, l. 65 to col. 2, l. 6 of Want to teach a system that has a receiver rather than a transceiver. Appellant has not provided persuasive evidence or argument to rebut the Examiner’s findings. Further, paragraph 12 of Appellant’s Specification states that the receiver transmits a signal. The term “receiver,” when read in light of Appellant’s Specification, encompasses a transceiver as taught by the combination of Nahi and Want. We sustain the rejection of claim 1 under 35 U.S.C. § 103(a). Appellant does not present arguments for separate patentability of claims 2- 4, 6-8, 14, 15, and 20 which fall with claim 1. Section 103 rejection of claim 5 Appellant contends that Axler teaches a device having two-way communication capability. Appellant concludes that the combination of Appeal 2010-002823 Application 10/606,153 5 Nahi, Want, and Axler does not teach “an RF receiver for receiving said control and data interface RF signal” for the purpose of receiving only. Br. 9-10. We find this argument unpersuasive for the reasons discussed in the analysis of claim 1. We sustain the rejection of claim 5 under 35 U.S.C. § 103. Section 103 rejection of claims 9-12 and 16-19 Appellant merely contends without persuasive evidence that Briechle is non-enabling with respect to a controller. Br. 10-11. When a relied on reference makes obvious (or anticipates) claimed elements, the reference is presumed to be operable, and the burden is on Appellant to provide facts rebutting the presumption of operability as to the element. See In re Sasse, 629 F.2d 675, 681 (CCPA 1980). Appellant has not submitted persuasive evidence using the Wands factors to show that Briechle is non-enabling. See In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). Appellant’s argument of non-enablement is unavailing. To support the contention that the unitary RFOS TM operating software module is different than the controller taught by Briechle, Appellant submits technical specification for the RFOS TM operating software module on page 12 of the Brief, and contends that a unitary RFOS TM operating software module allows for placement of a display device in unique locations, as illustrated on page 13 of the Brief. Br. 10-11. However, Appellant is referring to extrinsic evidence that we have not considered. Identification of extrinsic evidence in an appeal from an Examiner’s rejection is required in an Evidence Appendix of the Appeal Appeal 2010-002823 Application 10/606,153 6 Brief. An Evidence Appendix is directed to include, inter alia, a statement setting forth where in the record the evidence was properly presented to, and entered in the record by, the Examiner. See 37 C.F.R. § 41.37(c)(1)(ix) (“Reference to unentered evidence is not permitted in the brief.”). Moreover, Appellant has not established, or even alleged, that the asserted technical specification and illustration were publically available on or prior to the filing date of Appellant’s Specification. We have thus not considered Appellant’s asserted extrinsic evidence. We sustain the rejection of claim 9 under 35 U.S.C. § 103(a). Appellant does not present arguments for separate patentability of claims 10- 12, and 16-19 which fall with claim 9. CONCLUSIONS OF LAW The Examiner did not err in finding that the combination of Nahi, and Want teaches a receiver within the meaning of claim 1. The Examiner did not err in finding that the combination of Nahi, Want, and Axler teaches a receiver within the meaning of claim 5. The Examiner did not err in finding that the combination of Nahi, Briechle, and Axler teaches a unitary RFOS TM operating software module within the meaning of claim 9. DECISION The rejection of claims 1-4, 6-8, 14, 15, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Nahi, and Want is affirmed. The rejection of claim 5 under 35 U.S.C. § 103(a) as being unpatentable over Nahi, Want, and Axler is affirmed. Appeal 2010-002823 Application 10/606,153 7 The rejection of claims 9-12 and 16-19 under 35 U.S.C. § 103(a) as being unpatentable over Nahi, Briechle, and Axler 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). See 37 C.F.R. § 41.50(f). AFFIRMED gvw