2019002860 (P.T.A.B. Jul. 31, 2020)

The Procter & Gamble Company

Patent Trials and Appeals BoardJul 31, 2020

2019002860 (P.T.A.B. Jul. 31, 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. 13/943,821 07/17/2013 Raj B. Apte 12710R 7245 27752 7590 07/31/2020 THE PROCTER & GAMBLE COMPANY GLOBAL IP SERVICES CENTRAL BUILDING, C9 ONE PROCTER AND GAMBLE PLAZA CINCINNATI, OH 45202 EXAMINER PASCUAL PEGUERO, NATALI ART UNIT PAPER NUMBER 2463 NOTIFICATION DATE DELIVERY MODE 07/31/2020 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): centraldocket.im@pg.com mayer.jk@pg.com pair_pg@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RAJ B. APTE, SHANE PATRICK AHERN, ELLEN ISAACS, CHRISTOPHER PAULSON, and ERIK JOHN HASENOEHRL ____________________ Appeal 2019-002860 Application 13/943,821 Technology Center 2400 ____________________ Before ALLEN R. MacDONALD, KARA L. SZPONDOWSKI, and PHILLIP A. BENNETT, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–21. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant identifies the real party in interest is The Procter & Gamble Company of Cincinnati, Ohio. Appeal Br. 1. Appeal 2019-002860 Application 13/943,821 2 CLAIMED SUBJECT MATTER Claims 1–3 are is illustrative of the claimed subject matter (emphasis, formatting, and bracketed material added): 1. A method for enrolling nodes into an ad hoc network associated with a multi-roomed structure, each node comprising a communication module configured to communicate with the ad hoc network using at least one of room-limited communications and room-transparent communications, the method comprising: [A.] providing, at a computing device associated with a user, an instruction for the user to cause the transmission of a room-limited communication from a first node; [B.] determine at a second node the receipt of the room- limited communication; and [C.] subsequent to determining that the room-limited communication was received at the second node, segmenting the first and second nodes into a single room in a room list stored in memory. 2. The method of claim 1, wherein the first node is associated with a lighting product. 3. The method of claim 2, wherein the room-limited communication is an optical signal generated by the lighting product. Appeal 2019-002860 Application 13/943,821 3 REFERENCES2 The Examiner relies on the following references: Name Reference Date Suomela US 2005/0169214 A1 Aug. 4, 2005 Wang US 2006/0044152 A1 Mar. 2, 2006 Smith US 7,324,824 B2 Jan. 29, 2008 Park US 2008/0069008 A1 Mar. 20, 2008 Sibert US 2008/0265799 A1 Oct. 30, 2008 van der Wateren US 2010/0226645 A1 Sept. 9, 2010 Van Der Stok US 2012/0165959 A1 Jun. 28, 2012 Weiskopf US 2007/0168513 A1 July 19, 2007 Henig EP 2 362 714 A1 Aug. 8, 2011 REJECTIONS3 A. § 102 The Examiner rejects claims 1–6 under 35 U.S.C. § 102(a)(1) as being anticipated by Sibert. Final Act. 9–11. We select claim 1 as the representative claim for this rejection. Appellant does not present separate arguments for claims 2–6. Except for our ultimate decision, we do not address the merits of the § 102(a)(1) rejection of claims 2–6 further herein. 2 All citations herein to patent and pre-grant publication references are by reference to the first named inventor only. 3 “The 35 U.S.C. § 101 rejection of claims 1–21 has been withdrawn.” Ans. 3. Appeal 2019-002860 Application 13/943,821 4 B. § 103 B.1. The Examiner rejects claims 7–9, 12, and 15, under 35 U.S.C. § 103 as being unpatentable over the combination of Sibert and Henig. Final Act. 11–14. We select claim 7 as the representative claim for this rejection. To the extent that Appellant discusses claims 7–9, 12, and 15, Appellant merely repeats the arguments directed to claim 1. Appeal Br. 7–9. Such a repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 1 (from which claim 7 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 7–9, 12, and 15 further herein. B.2. The Examiner rejects claims 10 and 11 under 35 U.S.C. § 103 as being unpatentable over the combination of Sibert and Suomela. Final Act. 14–15. We select claim 10 as the representative claim for this rejection. To the extent that Appellant discusses claims 10 and 11, Appellant merely repeats the arguments directed to claim 1. Appeal Br. 9–10. Such a repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 1 (from which claim 10 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 10 and 11 further herein. Appeal 2019-002860 Application 13/943,821 5 B.3. The Examiner rejects claim 13 under 35 U.S.C. § 103 as being unpatentable over the combination of Sibert and Smith. Final Act. 15–16. To the extent that Appellant discusses claim 13, Appellant merely references the arguments directed to claim 1. Appeal Br. 10–11. Such a repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 1 (from which claim 13 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 13 further herein. B.4. The Examiner rejects claim 14 under 35 U.S.C. § 103 as being unpatentable over the combination of Sibert, Smith, and Van Der Stok. Final Act. 16. To the extent that Appellant discusses claim 14, Appellant merely references the arguments directed to claim 1. Appeal Br. 12–13. Such a repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 1 (from which claim 14 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 14 further herein. B.5. The Examiner rejects claim 16 under 35 U.S.C. § 103 as being unpatentable over the combination of Sibert and Park. Final Act. 16–18. Appeal 2019-002860 Application 13/943,821 6 B.6. The Examiner rejects claim 17 under 35 U.S.C. § 103 as being unpatentable over the combination of Sibert, Park, and Suomela. Final Act. 15–16. To the extent that Appellant discusses claim 17, Appellant merely references the arguments directed to claim 16. Appeal Br. 15–16. Such a repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 16 (from which claim 17 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 17 further herein. B.7. The Examiner rejects claims 18 and 21 under 35 U.S.C. § 103 as being unpatentable over the combination of Henig, Wang, and van der Wateren. Final Act. 19–23. We select claim 18 as the representative claim for this rejection. Appellant does not present separate arguments for claim 21. Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 21 further herein. B.8. The Examiner rejects claim 19 under 35 U.S.C. § 103 as being unpatentable over the combination of Henig, Wang, van der Wateren, and Park. Final Act. 23. To the extent that Appellant discusses claim 19, Appellant merely references the arguments directed to claim 18. Appeal Br. 18–20. Such a Appeal 2019-002860 Application 13/943,821 7 repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 18 (from which claim 19 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 19 further herein. B.9. The Examiner rejects claim 20 under 35 U.S.C. § 103 as being unpatentable over the combination of Henig, Wang, van der Wateren, Park, and Suomela. Final Act. 23–24. To the extent that Appellant discusses claim 20, Appellant merely references the arguments directed to claim 18. Appeal Br. 20–22. Such a repeated argument (or referenced argument) is not an argument for “separate patentability.” Thus, the rejection of this claim turns on our decision as to claim 18 (from which claim 20 depends). Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 20 further herein. C. Double Patenting The Examiner provisionally rejects claims 1–4, 8, and 19 on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6–8, 10, 13, 14, 18, 19, 21, and 22 of co-pending U.S. Patent Application No. 13/943,824. Final Act. 5. On February 25, 2019, Appellant abandoned co-pending U.S. Patent Application No. 13/943,824. As a result, the 13/943,824 application is no longer co-pending. Therefore, we reverse pro forma the Examiner’s provisional nonstatutory double patenting rejection. Appeal 2019-002860 Application 13/943,821 8 OPINION We have reviewed the Examiner’s rejections in light of Appellant’s Appeal Brief and Reply Brief arguments. A. Claim 1 A.1. Appellant raises the following argument in contending that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 102(a)(1). With regard to claim 1, the Sibert reference fails to disclose each of: providing, at a computing device associated with a user, an instruction for the user to cause the transmission of a room-limited communication from a first node; determine at a second node the receipt of the room-limited communication; and subsequent to determining that the room- limited communication was received at the second node, segmenting the first and second nodes into a single room in a room list stored in memory. The . . . reference relates the provisioning of a user interface but not the provisioning of an explicit instruction to a user to cause the transmission of a room limited communication from a first node. The cited portion of the reference fails to disclose the receipt of a room limited transmission by a second node. The cited portion of the reference fails to disclose the segmentation of the first and second nodes into a single room in a stored room list subsequent to the receipt of a room limited communication. Appeal Br. 6–7. Appeal 2019-002860 Application 13/943,821 9 We are unpersuaded by Appellant’s argument. We agree with the Examiner’s determination that Sibert anticipates claim 1. We particularly note that Sibert discloses: Configurator 141 is a software application, running on some hardware platform, that is used to design behaviors. It provides a rich, user-focused graphical interface that allows the user to describe the desired behavior of a set of controllers 301 (e.g., those contained in illuminators 111). Sibert ¶ 80 (emphasis added). Preferably, illuminators 111 can associate into groups autonomously, based on the ability to communicate with each other, using conventional distributed processing algorithms. Since the preferred mechanisms (e.g., infrared, ultrasound) for communication interface 501 are generally localized to a single open (that is, they are blocked by walls and doors), the illuminators in such an area can identify themselves to each other and form a group based on reachability. Illuminator 111 can adjust the intensity or strength of its communication transmissions, and/or the sensitivity of its communication receiver, to dynamically adjust the distance over which group detection takes place. For example, a newly- installed illuminator could start at low communication power/sensitivity to locate nearby neighbors, and incrementally increase its communication range to larger areas to obtain a more complete picture of its neighbors. Autonomous group membership determination will typically take place when a set of illuminators is installed and powered on for the first time. To ensure that group membership is determined in an orderly manner, the illuminators can implement group membership and quorum protocols of the sort commonly used in distributed computing systems. Sibert ¶¶ 99–101 (emphasis added). Appeal 2019-002860 Application 13/943,821 10 B. Claim 16 B.1. Appellant substantially repeats the argument for claim 1 in contending that the Examiner erred in rejecting claim 16 under 35 U.S.C. § 103. We are unpersuaded by the repeated portion of Appellant’s argument for the reasons already discussed above as to claim 1. B.2. Also, in contending that the Examiner erred in rejecting claim 16 under 35 U.S.C. § 103, Appellant points out that claim 16 requires: determining a spatial distance between the first and second node based on a time of flight of a communication transmitted by the first node and received by the second node. Appellant then argues: The cited references fail to teach or suggest each limitation of the invention as set forth in the claims. Appeal Br. 15. We are unpersuaded by Appellant’s argument. Contrary to Appellant’s argument, we determine that Sibert does disclose “determining spatial distance between [a] first and second node” as required by claim 1. We note that Sibert states: Ultrasound has somewhat different propagation characteristics than infrared, although typically not enough to matter, and in some cases (e.g., through doorways and archways) may be desirably better. It has the advantage that it can easily be used for distance measurement and therefore location determination among a group of illuminators or other devices. Sibert ¶ 207 (emphasis added). Appeal 2019-002860 Application 13/943,821 11 C. Claim 18 C.1. Appellant raises the following argument in contending that the Examiner erred in rejecting claim 18 under 35 U.S.C. § 103. Among other things, claim 18 requires the step of: providing, at a computing device associated with a user, an instruction for the user to operate a plurality of nodes; The Office Action acknowledges that the Henig reference fails to teach this limitation and adds the Wang reference to Henig. The cited portion of the Wang reference provides a description of a user interface for remote control of operative units but the cited portion is silent with regard to the claimed steps of providing instructions to a user to operate a plurality of nodes or instructions to cause the transmission of room limited communications - particularly as the Office Action notes that the remote control of Wang operates using radio frequency (room- transparent communications). Appeal Br. 17 (emphasis added). We are unpersuaded by Appellant’s argument. Appellant argues Wang lacks an instruction “to a user.” However, the argument is not commensurate with the scope of the claim language. We do not find a “to a user” requirement in claim 18. Rather, claim 18 requires “an instruction for a user to operate a plurality of nodes,” i.e., an instruction a user can use to operate a plurality of nodes. See Spec. 15:11–15. We agree with the Examiner (Final Act. 21) that Wang teaches such a limitation: The user interface provides a means for a user to input commands for controlling the lighting units. Wang ¶ 34. Appeal 2019-002860 Application 13/943,821 12 C.2. Also, Appellant raises the following argument in contending that the Examiner erred in rejecting claim 18 under 35 U.S.C. § 103. Claim 18 also requires: based on the operation of the plurality of nodes, determine the plurality of nodes are a grouping; segment[ing] the grouping into a room of a room list stored in memory; and determining a room function of the room based on an identity received from at least one of the plurality of nodes; The Office Action posits that paragraph 53 of the added van der Wateren reference provides this teaching. Van der Wateren provides that nodes may self-organize into regions based upon optical signal receipt, this however, fails to teach or suggest the segmentation of nodes into rooms in a room list stored in memory as the disclosure of any enabling details for the self-organization is lacking. The cited paragraph provides that the system may create regions of fixtures. It does not provide that the fixtures may be segmented into a single room in a room list stored in memory. That is extra meaning provided by the Office Action and originating solely from Applicant’s claims. The reference is silent with regard to the actual claimed limitation. Appeal Br. 17–18 (emphasis added). We are unpersuaded by Appellant’s argument. Appellant does not address the actual reasoning of the Examiner’s rejection. Instead, Appellant attacks the van der Wateren reference singly for lacking a teaching that the Examiner relied on a combination of Henig and van der Wateren (and Wang) to show. In particular, the rejection does not rely on van der Wateren for teaching the “room list stored in memory” or “determining a room function of the room based on an identity received from at least one of the Appeal 2019-002860 Application 13/943,821 13 plurality of nodes” aspects disputed by Appellant. Rather, the Examiner relied on Henig to show these limitations (Final Act. 20), and relied solely on van der Wateren to show it was known “determine the plurality of nodes are a grouping” and “segment the grouping into a room” (Final Act. 21–22). The Examiner then reasoned that it would have been obvious to “modify the teachings as in Henig and Wang to use optical signals as taught by [van der] Wateren in order to determine whether or not nodes are in the same room so that the nodes can self-organize into regions.” Final Act. 22. One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981) (explaining the relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references). CONCLUSION The Examiner has not erred in rejecting claims 1–6 as being anticipated under 35 U.S.C. § 102(a)(1). The Examiner has not erred in rejecting claims 7–21 as being unpatentable under 35 U.S.C. § 103. The Examiner’s provisional rejection of claims 1–4, 8, and 19 as being unpatentable on the ground of nonstatutory double patenting is reversed. Appeal 2019-002860 Application 13/943,821 14 The Examiner’s rejection of claims 1–6 as being anticipated under 35 U.S.C. § 102(a)(1) is affirmed. The Examiner’s rejections of claims 7–21 as being unpatentable under 35 U.S.C. § 103 are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 8, 19 Provisional Non- statutory Double Patenting 1–4, 8, 19 1–6 102(a)(1) Sibert 1–6 7–9, 12, 15 103 Sibert, Henig 7–9, 12, 15 10, 11 103 Sibert, Suomela 10, 11 13 103 Sibert, Smith 13 14 103 Sibert, Smith, Van Der Stok 14 16 103 Sibert, Park 16 17 103 Sibert, Park, Suomela 17 18, 21 103 Henig, Wang, van der Wateren 18, 21 19 103 Henig, Wang, van der Wateren, Park 19 20 103 Henig, Wang, van der Wateren, Park, Suomela 20 Overall Outcome 1–21 Appeal 2019-002860 Application 13/943,821 15 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED