Kurt Rudahl et al.

Patent Trials and Appeals Board

Sep 21, 2020

14467069 - (D) (P.T.A.B. Sep. 21, 2020)

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.
14/467,069 08/25/2014 Kurt Rudahl GR/1 7494
122474 7590 09/21/2020
Danielson Legal LLC
ATTN: Patent Administrator
503 7th St. N, Ste 107
Fargo, ND 58102
EXAMINER
DICKINSON, DUSTIN R
ART UNIT PAPER NUMBER
2867
NOTIFICATION DATE DELIVERY MODE
09/21/2020 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):
USPTO@dockettrak.com
patentadmin@danielsonlegal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KURT RUDAHL and SALLY GOLDIN
Appeal 2019-006272
Application 14/467,069
Technology Center 2800
Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s November 20, 2018 decision to finally reject claims 1, 3, 5, 8, 9,
13–16, and 18–24 (“Final Act”). We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 We use the word Appellant to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Heurika
Geographics Ltd. (Appeal Br. 4).
Appeal 2019-006272
Application 14/467,069

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CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed to a method of detecting faults
beneath a construction supported by earth, which can serve as part of an
early warning system for road, runway, and railway failures (Abstract). The
method comprises detecting the conditions of fabric built into the
construction supported by earth, where the detected condition is associated
with the location of the fabric that was built into the construction. The
detected condition of the fabric is reported (id.). The fabric contains an array
of electronic circuits such that stretching or tearing said fabric will damage
electrical characteristics of the fabric, in particular the ability of embedded
RFID tags to respond to a radio frequency signal (id.; Spec. ¶76). Details of
the claimed invention are set forth in representative claim 1, which is
reproduced below from the Claims Appendix:
1. A method of detecting faults beneath a construction
supported by earth, the method comprising:
detecting, via a sensor assembly, one of a plurality of
electrical conditions of a fabric built into the construction
supported by earth, the fabric including a plurality of radio
frequency identification (RFID) tags, each RFID tag having a
head comprising electronics and a tail comprising an antenna
configured to break in the event of a fault below the surface of
the construction supported by earth, wherein the plurality of
electrical conditions of the fabric includes a first electrical
condition in which at least one of the antennas is damaged
indicating damage to the fabric corresponding to a fault below
the surface of the construction supported by earth, wherein said
damage to the at least one antenna prevents the at least one
RFID tag associated with the at least one damaged antenna
from responding to a radio-frequency signal from the sensor
assembly and a second electrical condition in which at least one
of the plurality of antennas respond to the radio-frequency
signal from the sensor assembly,
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Application 14/467,069

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associating the detected electrical condition with a
location of the fabric built into the construction, and
reporting the detected electrical condition of the fabric at
the associated location.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Woodard et al. US 2006/0070450 A1 April 6, 2006
Dorfner et al. US 2007/0138304 A1 June 21, 2007
Girvin et al. US 2006/0202829 A1 September 14, 2006
Nagarajan et al. US 2012/0273263 A1 November 1, 2012
Cacace US 2009/0020212 A1 January 22, 2009

REJECTIONS
1. Claims 1, 3, 5, 8, 13–16, and 19–24 are rejected under
35 U.S.C. § 103 as unpatentable over Woodard in view of Dorfner and
Girvin.
2. Claim 9 is rejected under 35 U.S.C. § 103 as unpatentable over
Nagarajan in view of Girvin.
3. Claim 18 is rejected under 35 U.S.C. §103 as unpatentable over
Woodard in view of Dorfner and Girvin and further in view of Cacace.

Claim 18 was rejected under 35 U.S.C. § 112(a), but that rejection
was withdrawn by the Examiner (Ans. 3) and is not before us on appeal.
DISCUSSION
Rejections 1 and 3. The Examiner’s findings are set forth at pages 4–
6 and 10 of the Final Action. The Examiner finds that Woodard discloses
each of the limitations of claim 1, except that Woodard “does not explicitly
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Application 14/467,069

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teach wherein the faults are detected beneath a construction supported by
earth and the fabric is built into the construction supported by earth” and
also does not disclose RFID tags with a head comprising electronics and a
tail comprising an antenna configured to break in the event of a fault (Final
Act. 5–6).
In particular, the Examiner finds that Woodard discloses that damage
to an antenna on one of its tags prevents that tag “from responding to a
radio-frequency signal” (Final Act. 5, citing Woodard, ¶ 26).
Appellant argues that Woodard does not disclose a system in which
damage to an RFID tag prevents the tag from responding to a radio-
frequency signal (Appeal Br. 12–13). According to Appellant, Woodard
teaches that strain in its system is reflected in a change in the resonance
frequency of the circuitry, as described below:
The circuit 500 has a unique resonant frequency indicative of
no damage/tampering. The resonant frequency is measured
using a magnetic field response recorder 20 once the circuit 500
and substrate 400 are affixed on or in a package. Should
tampering occur, the substrate 400 will be broken, thus
breaking the circuit 500 resulting in one or more new
resonant frequencies. The new resonant frequencies are
indicative of package tampering.

(Woodard, ¶ 26, emphasis added.)
In response, the Examiner finds that Appellant’s Specification
explicitly states that “damage to the fabric also breaks one or more of the
wires or wire segments thereby changing the resonant frequency of the
damaged region of said fabric which includes the broken wire or segment”
(Ans. 4, citing Spec. ¶ 68). However, as explained by Appellant (Reply Br.
4–5), the portion of the Specification relied on by the Examiner relates to a
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different embodiment of Appellant’s disclosure, one which is not the
claimed invention on appeal. That Woodard might disclose teachings
pertinent to other, non-claimed aspects of Appellant’s disclosure does not
mean that Woodard discloses the claimed feature outlined above.
Thus, the Examiner’s finding that Woodard discloses a system in
which a damaged RFID tag does not respond to a radio-frequency signal is
not supported by a preponderance of the evidence of record. The Examiner
has the initial burden of establishing a prima facie case of obviousness based
on an inherent or explicit disclosure of the claimed subject matter under
35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)
(“[T]he examiner bears the initial burden, on review of the prior art or on
any other ground, of presenting a prima facie case of unpatentability.”). To
establish a prima facie case of obviousness, the Examiner must show that
each and every limitation of the claim is described or suggested by the prior
art or would have been obvious based on the knowledge of those of ordinary
skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). Because
the Examiner has not shown that the limitation regarding damage to an
RFID tag preventing the tag from responding to a radio-frequency signal
would have been obvious in view of the cited art, we reverse both Rejections
1 and 3, as they both rely on that erroneous finding.
Rejection 2. The Examiner rejects claim 9 as unpatentable over a
different primary reference, namely Nagarajan, in view of Girvin. The
rejection relies, in part, on the Examiner’s finding that Nagarajan discloses
that “damage to at least one of the antennas prevents said RFID tag
associated with the damaged antenna from responding to a radio-frequency
signal (Fig 6 where the cracked sensor prevents the response of the normal
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sensor)” (Final Act. 10). However, as argued by Appellant, Nagarajan’s
FIG. 6 shows that its damaged RFID tag has a different response to the
radio-frequency signal, not no response to said signal. Nagarajan’s Figure 6
is reproduced below:

Nagarajan’s FIG. 6 shows a resonance frequency response of a normal
working sensor and a cracked sensor interrogated with a network analyzer.

The Examiner does not fundamentally dispute Appellant’s
characterization of Nagarajan’s disclosure, but states that:
“Nagarajan teaches when the sensor is cracked the detected
frequency response changes. The same effect may be described
as providing a different frequency response or it may be
described as failing to provide a response indicative of an
unbroken sensor. Examiner believes this is sufficient to teach
the claimed invention as there is a failure to respond at the
original frequency.”

(Ans. 9, emphasis added). However, claim 9 does not recite “failure to
respond at the original frequency,” but instead recites that damage to the
RFID tags prevents a response. Thus, the Examiner’s finding that Nagarajan
renders this limitation obvious is not supported by a preponderance of the
evidence of record, necessitating reversal of the rejection.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 5, 8, 13–16,
19–24
103 Woodard, Dorfner,
Girvin
1, 3, 5, 8, 13–16,
19–24
9 103 Nagarajan, Girvin 9
18 103 Woodard, Dorfner,
Girvin, Cacace
18
Overall
Outcome
1, 3, 5, 8, 9,
13–16, 18–24

REVERSED