KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Jan 13, 2022

2021003049 (P.T.A.B. Jan. 13, 2022)

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. 14/911,877 02/12/2016 GEORGE PAUL GUMBRELL 2013P01557WOUS 3182 24737 7590 01/13/2022 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 1600 Summer Street 5th Floor Stamford, CT 06905 EXAMINER YEUNG LOPEZ, FEIFEI ART UNIT PAPER NUMBER 2899 NOTIFICATION DATE DELIVERY MODE 01/13/2022 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GEORGE PAUL GUMBRELL ____________ Appeal 2021-003049 Application 14/911,877 Technology Center 2800 ____________ Before TERRY J. OWENS, KAREN M. HASTINGS, and JANE INGLESE, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1-20. See Final Act. 1. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Koninklijke Philips N.V. as the real party in interest (Appeal Br. 3). Appeal 2021-003049 Application 14/911,877 2 CLAIMED SUBJECT MATTER Claim 1 illustrates the subject matter on appeal (emphasis added to highlight key disputed limitation): 1. A battery, comprising: a display on the battery displaying an exact amount of time or an estimate of the exact amount of time the battery can be used before needing to be at least one of recharged or replaced. Independent claim 9 is directed to system including a battery as recited in claim 1, while independent claim 20 is directed to a method which includes displaying time remaining as recited in claim 1 (Appeal Br. Claims App.). REFERENCES The Examiner relied upon the following prior art: Name Reference Date Suzuki et al. (“Suzuki”) US 2007/0164707 A1 July 19, 2007 Ludtke US 2009/0033277 A1 Feb. 5, 2009 Centen US 2010/0022904 A1 Jan. 28, 2010 Recker et al. (“Recker”) US 2010/0327766 A1 Dec. 30, 2010 Neumeyer US 2012/0130660 A1 May 24, 2012 Gaines et al. (“Gaines”) US 2012/0182143 A1 July 19, 2012 Olsson et al. (“Olsson”) US 2013/0164567 A1 June 27, 2013 Appeal 2021-003049 Application 14/911,877 3 REJECTIONS ON APPEAL Claims 1, 2, 3, 5, 7-102, 13-18, and 20 are rejected under 35 U.S.C. § 103 as unpatentable over Olsson in view of Neumeyer (Final Act. 2). Claim 5 is rejected under 35 U.S.C. § 103 as unpatentable over Olsson, Neumeyer, and Ludtke (Final Act. 8). Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over Olsson, Neumeyer, and Gaines (Final Act. 9). Claims 4 and 11 are rejected under 35 U.S.C. § 103 as unpatentable over Olsson, Neumeyer, and Recker (Final Act. 9). Claim 12 is rejected under 35 U.S.C. § 103 as unpatentable over Olsson, Neumeyer, and Suzuki (Final Act. 11). Claim 19 is rejected under 35 U.S.C. § 103 as unpatentable over Olsson, Neumeyer, and Centen (Final Act. 12). OPINION Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions as set forth in the Appeal Brief and the Reply Brief,3 we determine that Appellant has not identified reversible error in the Examiner’s rejections (See generally Ans.). In re Jung, 637 F.3d 1356, 1365-66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of requiring Appellant(s) to identify the alleged error in the Examiner’s rejection). We sustain the rejections for the reasons expressed by the Examiner in the Final Office Action and the Answer. 2 We consider it harmless error that claim 10 is missing from the statement of the rejection, as it is included in the body of the rejection (Final Act. 5). 3 To the extent Appellant makes new arguments in the Reply Brief, they are not considered, as untimely. 37 C.F.R. § 41.41(b)(2). Appeal 2021-003049 Application 14/911,877 4 We add the following primarily for emphasis. It has been established that “the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264- 65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom). Appellant’s main argument with respect to the rejection of each independent claim focuses on the assertion that Olsson does not describe, teach or suggest how to modulate its LEDs to display an exact amount of time as recited in each independent claim (Appeal Br. 14), and that Neumeyer only teaches displaying such information on a device 108 that is remote from a battery, or on an alert interface that is not a component of the battery (Appeal Br. 15-16). Appellant’s arguments are not persuasive of reversible error as they fail to consider the applied prior art as a whole and the inferences that one of ordinary skill would have made, as aptly explained by the Examiner (Ans. 4-6). One of ordinary skill in the art would have readily appreciated that there are numerous ways to display information useful to a consumer about the battery life (such as the hours/minutes exemplified in Neumeyer ¶ 28) for a battery as exemplified in Olsson.4 Cf. In re Susi, 440 F.2d 442, 446 n.3 4 Appellant is de facto arguing that Olsson teaches away from the use of any other display for its LEDs on the battery. However, whether the prior art Appeal 2021-003049 Application 14/911,877 5 (CCPA 1971) (disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments.); Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1379- 80 (Fed. Cir. 2005) (even “[a] statement that a particular combination is not a preferred embodiment does not teach away absent clear discouragement of that combination.”). One of ordinary skill would have expected the known display of hours and minutes as taught in Neumeyer to be a useful alternative or addition for Olsson’s battery display of information so as to result in the claimed display of each independent claim (e.g., Ans. 5). Appellant has not explained sufficiently why the claimed subject matter is any more than the predictable use of a known way to display the remaining battery lifetime. Cf. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (“The Supreme Court’s decision in KSR . . . directs us to construe the scope of analogous art broadly, stating that ‘familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle.’” (quoting KSR, 550 U.S. at 420)). Under the flexible inquiry set forth by the Supreme Court, the PTO must take account of the “inferences and creative steps,” or even routine steps, that an ordinary artisan would employ. Ball Aerosol & Specialty teaches away from the claimed invention is a question of fact. In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005). It is well established that a prior art reference must be considered in its entirety, i.e., as a whole, when determining if it would have led one of ordinary skill in the art away from the claimed invention. W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983). Appeal 2021-003049 Application 14/911,877 6 Container, Inc. v. Limited. Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009). One of ordinary skill would have readily inferred and appreciated from the applied prior art as a whole that known displays of battery information included hours and minutes of remaining battery life as exemplified in Neumeyer such that the use of this information on the battery of Olsson would have been within the skill and creativity of one of ordinary skill in the art. Appellant does not present any additional arguments for any of the dependent claims, including those separately rejected. Note that merely stating what various dependent claims recite is not an argument (Appeal Br. 17-18). As such, Appellant’s statements are considered to be nothing more than general allegations of patentability and are not considered separate patentability arguments. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Accordingly, we sustain all of the Examiner’s rejections on appeal. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 3, 5, 7- 10, 13-18, 20 103 Olsson, Neumeyer 1, 2, 3, 5, 7- 10, 13-18, 20 5 103 Olsson, Neumeyer, Ludtke 5 Appeal 2021-003049 Application 14/911,877 7 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 6 103 Olsson, Neumeyer, Gaines 6 4, 11 103 Olsson, Neumeyer, Recker 4, 11 12 103 Olsson, Neumeyer, Suzuki 12 19 103 Olsson, Neumeyer, Centen 19 Overall Outcome 1-20 TIME PERIOD FOR RESPONSE 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)(iv). AFFIRMED