Thomas Harvey

Patent Trials and Appeals Board

Jun 2, 2020

2019006946 (P.T.A.B. Jun. 2, 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.
15/997,815 06/05/2018 Thomas Danaher Harvey Pinger_Persuit 4648
123508 7590 06/02/2020
Thomas D.Harvey
4001 Montpelier Road
Rockville, MD 20853
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
06/02/2020 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):
redredroad@yahoo.com
tom@guninsuranceblog.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte THOMAS DANAHER HARVEY
____________

Appeal 2019-006946
Application 15/997,815
Technology Center 3600
____________

Before CHARLES N. GREENHUT, SUSAN L. C. MITCHELL, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant2 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 1–15, 18, 19, and 21–23. We have jurisdiction under 35 U.S.C. §
6(b).
We REVERSE.

1 The Specification states that the present application is a continuation-in-
part of US Application No. 14/469,825 (Spec. ¶ 1), and notably, the Board
rendered a decision in this related application: Appeal No. 2018-001975.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the inventor, Thomas Danaher
Harvey, as the real party in interest. Appeal Br. 4.
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Application 15/997,815
2
THE INVENTION
Appellant’s invention relates to “[the] location and interception of
objects in unknown locations.” Spec. ¶ 1. Claims 1, 8, and 15 are the
independent claims on appeal. Claim 1, reproduced below with disputed
limitations italicized for emphasis, is illustrative of the subject matter on
appeal.
1. A method of tracking a lost object comprising:
placing a first device with an object so that the first device will
remain near the object when the object becomes lost;
transmitting an interrogation signal to the first device;
transmitting a ping signal from the first device to a search second
device wherein a parameter of the ping signal is modified as a function
of at least one of the parameters of the interrogation signal to
substantially increase the distance between the search second device
and first device across which the search second device can detect the
ping signal from the distance between the search second device and the
first device across which the search second device can detect a ping
signal using the parameter without the modification; and, after
receiving the ping signal and after the object has become lost, at least
one of approaching the object, destroying the object and capturing the
object.

THE REJECTIONS3
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Green Recovering Data and Voice Recorders Following At-
Sea Crashes, Dale Green, IEEE 978-1-4244-5222-41
2010

3 The Examiner’s rejections of 1–15, 18, 19, and 21–23 under 35 U.S.C.
§§ 112(a) and 112(b) have been withdrawn. Ans. 3; Final Act. 2–5.
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The following rejections are before us for review:
I. Claims 1–15, 18, 19, and 21–23 stand rejected under the
ground of non-statutory obviousness-type double
patenting.
II. Claims 1–15, 18, 19, and 21–23 stand rejected under
35 U.S.C. § 102(a)(2) as anticipated by Green.
III. Claims 1–15, 18, 19, and 21–23 stand rejected under
35 U.S.C. § 103 as obvious over Green.

OPINION
Rejection I
The Examiner rejects claims 1–15, 18, 19, and 21–23 under the
ground of non-statutory obviousness-type double patenting over claims 1–20
of US Patent 9,995,824; however, the Examiner acknowledges that a timely
flied disclaimer in compliance with 37 C.F.R. §§ 1.321(c) or (d) may be
used to overcome the rejection. Final Act. 5–6 (citations omitted); see also
Ans. 3–4. Appellant argues that the terminal disclaimer entered on March
27, 2019 overcomes the Examiner’s non-statutory obviousness-type double
patenting rejection. See Approval of Terminal Disclaimer entered March 27,
2019 (disclaiming any statutory term beyond the expiration of US Patent
9,995,824). The Examiner does not address the entry of the terminal
disclaimer, and therefore, we are not apprised of any reason why the
terminal disclaimer fails to overcome the Examiner’s rejection. See Ans. 3–
4 (restating the non-statutory obviousness-type double patenting rejection).
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Accordingly, we do not sustain the Examiner’s rejection of claims 1–
15, 18, 19, and 21–23 under the ground of non-statutory obviousness-type
double patenting.
Rejection II
Regarding independent claim 1, the Examiner finds, inter alia, that
Green discloses modifying a parameter of a ping signal, and specifically,
reducing the ping signal’s frequency, as a function of at least one parameter
of an interrogation signal to substantially increase the distance across which
the ping signal can be detected, as claimed. Ans. 5 (citing Green, Abstract,
p. 1, col. 1, par. 2, section III–B); see also Final Act. 7.4 In particular, the
Examiner relies on Green’s Abstract for disclosing that “reducing the
frequency to perhaps 12 kHz will substantially increase range in seawater,”
and the Examiner finds that the broad claim limitation requiring
modification of the ping signal reads on Green’s suggested reduction in
frequency. Ans. 8–9.
Appellant argues, inter alia, that although Green discloses that “the
frequency parameter of a ping affects the range [of the ping signal],” Green
“does not propose varying that parameter but only suggests the choice of a
low frequency,” because, as implied in Green, “the lowest frequency
possible for the size and weight of the ping generation transducer in a device
is best.” Appeal Br. 17 (emphasis added); id. (“Green teaches that a lower
frequency ping would be more detectable but more expensive to

4 The Examiner notes in the Examiner’s Answer that “[i]n light of the
amendments to Claims 1, 8 and 15, the examiner’s rejections under 35 USC
102/103 have been modified to address the amended claim language.”
Ans. 5. Appellant chose not to file a Reply Brief to address these
modifications to the rejections.
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implement,” but not “variation of the frequency”) (citing Green, Section
IIIB). Appellant also argues that “Green teaches that a triggered response
from a pinger would enable estimation of the distance between the search
device and pinger (target device), but assumes that the ping can be received
and does not address use of triggering to help with detecting the pings.” Id.
(citing Green, Section IIIB).
Claim 1 requires, in relevant part, that a parameter of the ping signal
is modified as a function of at least one of the parameters of the
interrogation signal to substantially increase the distance at which the ping
signal can be detected at a device for detecting the ping signal5 relative to an
unmodified ping signal. The Specification provides express definitions for
the parameters of the interrogation and ping signals:
Parameters of the interrogations signal, throughout this
specification and in the claims, are measurements made at the
target device of one or more of (a) arrival time relative to a
known or estimated transmission time or relative arrival time of
different components of the interrogation signal, (b) signal
strength, (c) signal direction or (d) other characteristics of the
interrogation signal to be used to determine one or more
parameters of the ping signal. The fact of receipt of an
interrogation signal in itself is specifically excluded in this
definition from being a parameter of the interrogation signal.
Parameters of a ping signal, throughout this specification
and in the claims, refers to time of transmission; frequency; pulse
timing, length, and shape; embedded data; embedded
identification; direction of emission; amplitude; and other
characteristics of the signal that may affect the probability of
detection, range of detection, or the ease of detection of the ping
signal.

5 See, e.g., Spec. ¶ 43 (defining a search device, in the Specification and
claims, as “a device to detect a ping signal”).
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Spec. ¶¶ 39, 40 (emphasis added).
As relied on by the Examiner supra, Green discloses that “reducing
the frequency [of the ping signal] to perhaps 12 kHz will substantially
increase range in seawater.” Green, Abstract; see also id. at p. 3, col. 1,
Section III B (“[w]ere we to simply reduce the frequency to 10 kHz, . . .
[t]his change alone would greatly increase the detection range”). However,
this passage from Green does not disclose modifying (or reducing) the
frequency of the ping signal as a function of a parameter of the
interrogation signal, as required by claim 1; rather, this passage from Green
teaches modifying the frequency of the ping signal by reducing the
frequency of the ping signal as a function of the type of environment through
which the ping signal must travel (i.e., sea water).
Green also discloses, for example, that “[o]n the (reasonable)
assumption that the now transmit/receive complex at the crash site has a
well-defined time delay during which an interrogation is received and
processed, and the reply is formulated and transmitted, we can estimate
range.” Green, p. 3, col. 1, Section III A. Green explains that “[t]he obvious
use of this acomms capability is to transfer information between or among
modems, . . . [f]or example, should the blackbox system be equipped with a
depth sensor (a low cost and inexpensive item not currently placed on the
box), the search system can query the modem to extract the depth reading”
or “‘snippets’ of the recorded data can be retrieved acoustically.” Id. at p. 3,
col. 2, Section IV. Thus, Green discloses formulating (which implies
modifying) a parameter (i.e., emdedded data, such as a depth reading or
snippets of stored data) of the ping signal as a function of processing (which
implies more than simply the receipt of) a parameter (i.e., other
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characteristics of the interrogation signal to be used to determine a parameter
of the ping signal, for example, embedded data such as a depth query or
query for snippets of information) of an interrogation signal. However,
Green fails to disclose that these parameters, which are processed and
formulated, are used to substantially increase the distance6 at which the ping
signal can be detected by a search device relative to an unformulated or
unmodified ping signal, as claimed—nor does the Examiner find or reason,
pursuant to 35 U.S.C. § 103, that it would have been obvious to do so.
Thus, a preponderance of the evidence fails to support the Examiner’s
finding that Green discloses modifying a parameter of the ping signal (i.e.,
reducing the frequency of the ping signal) as a function of a parameter of the
interrogation signal to substantially increase the distance at which the ping
signal can be detected by a search device relative to an unmodified ping
signal, as claimed.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1, and claims 2–7 and 21 depending therefrom. The
Examiner relies on the same deficient findings from Green with respect to
independent claims 8 and 15, which also require a parameter of the ping
signal to be modified as a function of a parameter of the interrogation signal
to increase the distance at which the ping signal may be detected by a search

6 See Appeal No. 2018-001975 of related US Application 14/469,825,
Decision, pp. 7–8 (finding that the Specification discloses the following
modifications to the ping signal for increasing the distance at which the ping
signal can be detected by a search device as compared to the same ping
signal being unmodified: (i) using signal processing technology to reduce
noise (citing, e.g., Spec. ¶ 52); (ii) increasing the power level of the ping
signal (citing, e.g., Spec. ¶¶ 3, 39, 40, Fig. 2); and (iii) increasing the
intensity of the ping signal (citing, e.g., Spec. ¶ 58).
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device relative to an unmodified ping signal. Final Act. 7–8, Ans. 6–7.
Thus, for the same reasons stated supra, we also do not sustain the
Examiner’s rejection of claims 8 and 15, and claims 9–14, 18, 19, 22, and 23
depending therefrom.
Rejection III
The Examiner does not make any additional findings with respect to
how the subject matter of claims 1–15, 18, 19, and 21–23 would have been
obvious in view of Green, pursuant to 35 U.S.C. § 103, apart from the
findings in support of anticipation as presented in Rejection I, nor does the
Examiner propose any modification (and therefore, reasoning in support of a
modification) to Green’s recovery system to demonstrate the subject matter
of claims 1–15, 18, 19, and 21–23 would have been obvious. Final Act. 7–9;
Ans. 5–10; see also Ans. 5 (stating that “[i]n light of the amendments to
Claims 1, 8 and 15, the examiner’s rejections under 35 USC 102/103 have
been modified to address the amended claim language,” indicating that
Rejection III is not withdrawn by the Examiner); see Appeal Br. 18 (arguing
correctly that the Examiner “does not identify the elements that are to be
combined in finding obviousness and gives no rationale for a person of
ordinary skill in the relevant art to be motivated to combine these
elements”).
Accordingly, we do not sustain the Examiner’s rejection of claims 1–
15, 18, 19, and 21–23 as obvious in view of Green.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15, 18,
19, 21–23
non-statutory
obviousness-type
double patenting
1–15, 18,
19, 21–
23
1–15, 18,
19, 21–23
102(a)(2) 1–15, 18,
19, 21–
23
1–15, 18,
19, 21–23
103 1–15, 18,
19, 21–
23
Overall
Outcome
1–15, 18,
19, 21–
23
REVERSED