Ex Parte Yoder et al

Patent Trial and Appeal Board

May 26, 2016

13957935 (P.T.A.B. May. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/957,935 08/02/2013
28997 7590 05/31/2016
HARNESS, DICKEY, & PIERCE, P.L.C
7700 Bonhomme, Suite 400
ST. LOUIS, MO 63105
FIRST NAMED INVENTOR
R. CRAIG YODER
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.
17313-000006-US-DVC 9931
EXAMINER
GUNBERG, EDWIN C
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
05/31/2016 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):
stldocket@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte R. CRAIG YODER, YOSHIKAZU TATSUMI, TSE-MIN LO,
MARKS. AKSELROD
Appeal2015---000489
Application 13/957,935
Technology Center 2800
Before PETER F. KRATZ, KAREN M. HASTINGS, and
WESLEY B. DERRICK, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134 of the Examiner's
final decision rejecting claims 1-10 and 15-17 as being unpatentable under
35 U.S.C. § 103(a).2 Independent claim 1, as well as dependent claims 2,
16, and 17 (claims 2 and 16 depend from claim 15, claim 17 depends from
claim 16), are rejected as being obvious over the combination of Tetzlaff et
al. (US 5,041,734, issued Aug. 20, 1991) in view of Matsumoto (JP 2006-
1 The Real Party in Interest is stated to be Landauer, Inc. (App. Br. 3).
2 The Examiner withdrew an obviousness-type double patenting rejection
against claims 11-14, so there are no pending rejections for claims 11-14
(Ans. 3; Reply Br. 3).
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Application 13/957,935
58220 A, published March 2, 2006), and independent claim 15 is rejected as
being obvious over Tetzlaff alone. 3
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claims 1 and 15 are illustrative of the subject matter on appeal
(emphasis added):
1. A device comprising:
an optically stimulated luminescence (OSL) reader for reading
one or more OSL sensors of a dosimeter sled;
a sled slider for pulling and pushing the dosimeter sled; and
an RFID tag reader for communicating with an RFID tag
mounted on the dosimeter sled,
wherein the sled slider moves the dosimeter sled within a
dosimeter reading region to a respective reading position for each of
the respective one or more OSL sensors,
wherein each OSL sensor is read by the OSL reader at the
respective reading position for the OSL sensor.
15. A device comprising:
an optically stimulated luminescence (OSL) reader for reading
at least two or more OSL sensors of a dosimeter sled; and
a sled slider for pulling and pushing the dosimeter sled;
wherein the sled slider moves the dosimeter sled within a
dosimeter reading region to a respective reading position for each of
the respective at least two or more OSL sensors,
wherein each OSL sensor is read by the OSL reader at the
respective reading position for the OSL sensor.
Appellants' arguments focus on limitations of independent claims 1
and 15 (see App. Br., generally). Appellants also argue that limitations in
3 The Examiner applied further prior art to various other dependent claims
(see Final Action). Appellants only present arguments to the rejections over
either Tetzlaff alone or in combination with Matsumoto (see App. Br.,
generally).
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claims 2 and 17 are not taught by Tetzlaff in view of Matsumoto and that the
remaining dependent claims are allowable as depending from otherwise
allowable claims (App. Br. 11-19).
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence on this
record supports the Examiner's conclusion that the subject matter of
Appellants' claims is unpatentable over the applied prior art. We sustain the
Examiner's§ 103(a) rejections essentially for the reasons set out by the
Examiner in the Answer.
We add the following primarily for emphasis.
We shall limit our discussion to Tetzlaff and Matsumoto, as it is not
necessary to discuss the remaining references to resolve the dispositive issue
on appeal.
It is proper in evaluating references to take into account not only the
specific teachings of the references but also the inferences which one skilled
in the art would reasonably be expected to draw therefrom. In re Preda, 401
F.2d 825, 826 (CCPA 1968); see also In re Keller, 642 F.2d 413, 425-26
( CCP A 19 81) ("The test for obviousness ... is what the combined teachings
of the references would have suggested to those of ordinary skill in the
art."); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.").
Appellants argue that Tetzlaff does not disclose the claimed dosimeter
sled and sled slider (App. Br. 7; Reply Br. 4--5). Because the Examiner
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pointed to the dosimeter infeed mechanism in Figure 6 as being the
dosimeter sled, Appellants maintain the reference cannot disclose "a sled
slider for pulling and pushing the dosimeter sled" as claimed (App. Br. 7-8;
Reply Br. 5---6) [emphasis omitted]. Instead, Tetzlaff, according to
Appellants, only shows a dosimeter badge receptacle without a sled that can
be slid in an out of the dosimeter (App. Br. 7-8; Reply Br. 5-7).
Furthermore, Appellants assert that Matsumoto does not disclose "an RFID
tag reader communicating with an RFID tag mounted on the dosimeter sled"
because Matsumoto's RFID memory is a separate device and the
communication device reads data from the dosimeter rather than the RFID
memory (App. Br. 8-9; Reply Br. 9-10). According to Appellants, the
Examiner's interpretation of Matsumoto requiring the RFID memory to be a
part of the dosimeter runs contrary to Matsumoto's Figure 1, where the
elements are separate (App. Br. 9-10).
For independent claim 15, Appellants contend that Tetzlaff alone
cannot render the claim obvious because Tetzlaff does not disclose the OSL
reader reading at least two or more OSL sensors of the dosimeter sled nor
does it disclose a sled slider for pulling a pushing the dosimeter sled (App.
Br. 15-16; Reply Br. 11-12). Appellants also state that Tetzlaff does not
disclose the OSL reader reading two or more OSL sensors because the
Examiner erroneously asserted that merely duplicating parts would render
the claim obvious (App. B. 16-17; Reply Br. 11-12).
In addition, Appellants assert that the references do not render claims
2 and 17 obvious because the combination of Tetzlaff and Matsumoto for
claim 2 and Tetzlaff alone for claim 17 does not disclose that "the RFID tag
reader communicates with the RFID tag when the dosimeter sled is in a
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Application 13/957,935
reading position for one of the OSL sensors" (App. Br. 11; Reply Br. 12).
Lastly, Appellants state that the remaining dependent claims are allowable
for the same rationale as claims 1 and 15 because the additional references
do not cure the deficiencies of either the combination of Tetzlaff and
Matsumoto or Tetzlaff alone (App. Br. 12-14, 18-19).
In evaluating references in a rejection, it is proper to take into account
not only the specific teachings of the references but also the inferences
which one skilled in the art would reasonably be expected to draw
therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed. Cir. 1192); In re
Preda, 401 F.2d at 826 (see also In re Boe, 355 F.2d 961, 965 (CCPA 1966)
(All of the disclosures in a reference must be evaluated for what they would
have fairly suggested to one having ordinary skill in the art)). Moreover, a
reference may be relied upon for all that it would have reasonably suggested
to one having ordinary skill in the art, including non-preferred
embodiments. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807
(Fed. Cir. 1989). It is also well established that ordinary creativity is
presumed on the part of one of ordinary skill in the art. See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007) ("[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton.").
We determine that Appellants have not presented sufficient evidence
or argument to overcome the Examiner's rejection, and that a preponderance
of the evidence supports the rejections set forth in the Examiner's final
rejection. First, we note that Appellants mischaracterize the disclosure of
Tetzlaff because the infeed mechanism includes a sliding dosimeter badge
holder, which includes a slide framework mounted by slide tracks inside the
cover to form a slide way (col. 11, 11. 30-51 ). The dosimeter element is
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placed in the opening and is slid by the sliding dosimeter badge holder to be
read, and so it follows that the dosimeter badge holder corresponds to the
claimed sled and also has a handle that corresponds to the sled slider (Ans.
3; Final Rej. 3, 7-8). As such, Appellants' remarks concerning the physical
structure and sliding of the dosimeter element in the device are not
convmcmg.
Next, regarding the RFID reader, Matsumoto's figures disclose a
dosimeter badge equipped with an RFID tag communicating with an RFID
reader in the form of its RFID memory, in addition to the badge
communicating with another monitoring system (Ans. 3; Final Rej. 3--4, 10-
11 ). Based on the disclosure of the references and reasonable inferences
taken therefrom, it would have been obvious to add RFID communication to
the dosimeter badge and to have an RFID reader in a monitoring or
measuring device in order to communicate between the elements and
correlate the measured variables with a specific badge (Ans. 3; Final Rej. 3,
10-11). Moreover, with respect to claims 2 and 17, it would have been
obvious to have the device read the RFID tag when the dosimeter sensor is
being read in order to reliably ensure that the measured sensor corresponds
to the specific tag (see Ans. 3; Final Rej. 3--4, 10-11).
With respect to independent claim 15, Appellants' arguments are
similarly unpersuasive based on the broadest reasonable interpretation of the
claims and the disclosure of Tetzlaff and inferences drawn therefrom. It
would have been obvious to one having ordinary skill in the art to modify
the device of Tetzlaff to have more than one sensor on the badge in order to,
e.g., read information from the sensors more quickly, which is a predictable
result, and/ or also to allow more accurate measurements by averaging
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different sensors' measurements, or to provide a reliable measurement if one
sensor is faulty (Ans. 3--4; Final Rej. 7-8), see also KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. at 417--418 (The predictable use of prior art elements or steps
according to their established function is ordinarily obvious; further, the
"inferences and creative steps that a person of ordinary skill in the art would
employ" can be taken into account).
Thus, Appellants' arguments that the applied prior art fails to render
obvious the claimed invention are unavailing, and a preponderance of the
evidence supports the Examiner's position that the claimed subject matter
would have been prima facie obvious.
For the foregoing reasons and for those reasons set forth in the
Answer, we determine that the preponderance of evidence weighs in favor of
obviousness, giving due weight to Appellants' arguments. Accordingly, all
of the Examiner's rejections under 35 U.S.C. § 103(a) are affirmed.
DECISION
The decision of the Examiner 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).
AFFIRMED
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