EmbedTek-RFT, LLC

Patent Trials and Appeals Board

Mar 2, 2022

2021000127 (P.T.A.B. Mar. 2, 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. 15/202,198 07/05/2016 Kent Tabor 028425-9003-01 2966 23409 7590 03/02/2022 MICHAEL BEST & FRIEDRICH LLP (Mke) 790 N WATER ST SUITE 2500 MILWAUKEE, WI 53202 EXAMINER VON BUHR, MARIA N ART UNIT PAPER NUMBER 2117 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KENT TABOR and KIET PHAM Appeal 2021-000127 Application 15/202,198 Technology Center 2100 Before JAMES R. HUGHES, BETH Z. SHAW, and JAMES W. DEJMEK, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Claims 1-16 are pending, stand rejected, are appealed by Appellant, and are the subject of our decision under 35 U.S.C. § 134(a).1 See Final Act. 1-2.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies the real party in interest as Embedtek- RFT, LLC. Appeal Br. 2. 2 We refer to Appellant’s Specification (“Spec.”), filed July 5, 2016 (claiming benefit of US 61/322,591, filed Apr. 9, 2010); and Appeal Brief (“Appeal Br.”), filed Jan. 27, 2020. We also refer to the Examiner’s Final Office Action (“Final Act.”), mailed May 31, 2019; and Answer (“Ans.”) mailed July 2, 2020. Appeal 2021-000127 Application 15/202,198 2 CLAIMED SUBJECT MATTER The claimed subject matter, according to Appellant, generally “relates to motion controlled systems, and more particularly to motion controlled systems enhanced by a radio frequency control.” Spec. ¶ 2. More specifically, Appellant’s claims are directed to methods and systems for controlling the state of electrical components (e.g., light assemblies) including transceivers and motion sensors arranged in an array to cover a system area, wherein each transceiver is operable to receive and transmit a signal from other transceivers, and the motion sensors detect motion within respective device areas (a subset of the system area). Each transceiver has a predetermined and limited transmission range such that only a portion of the other transceivers within the predetermined and limited transmission range receive the signal transmitted (by the transmitting transceiver). When one of the motion detectors detects motion within its device area, it transitions the state of its corresponding electrical component (e.g., turns the light assembly on) and the corresponding transceiver sends the signal to the other transceivers within its range such that the other transceivers (within the signal range) receive the signal and transition the state of their corresponding electrical components. Accordingly, for example, the system illuminates the path of a person by detecting motion and illuminating lights in only the vicinity of the person. Spec. ¶¶ 4-8, 17-21, 24; Abstr. Claim 1 (directed to a system) and claim 10 (directed to a method) are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system comprising: a plurality of electrical components arranged in an array to cover a system area, each of the electrical components spaced apart from each of the remaining electrical components and operable in a first state and a second state; Appeal 2021-000127 Application 15/202,198 3 a plurality of motion sensors operable to detect motion within respective device areas, each motion sensor positioned adjacent one of the electrical components, the device areas cooperating to cover at least the system area; and a plurality of transceivers, each transceiver positioned adjacent one of the electrical components and operable to receive a signal from a first portion of the plurality of transceivers and to transmit the signal to a second portion of the plurality of transceivers, each transceiver having a predetermined and limited transmission range to define the second portion of the plurality of transceivers as those transceivers within the predetermined and limited transmission range to assure that the second portion of transceivers includes less than all of the plurality of transceivers and each and every one of those transceivers within the predetermined and limited transmission range, and wherein each motion sensor transitions its corresponding electrical component to the second state and activates its corresponding transceiver to transmit the signal in response to the detection of motion within its device area, and wherein each transceiver of the second portion of the plurality of transceivers transitions its corresponding electrical component to the second state in response to the receipt of the signal, wherein each of the transceivers transmit the signal only in response to the detection of motion from the corresponding motion sensor. Appeal Br. 13 (Claims App.) (emphasis added). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Verfuerth et al. (“Verfuerth”) US 2009/0315485 A1 Dec. 24, 2009 Recker et al. (“Recker”) US 2010/0141153 A1 June 10, 2010 (filed Nov. 26, 2009) Appeal 2021-000127 Application 15/202,198 4 REJECTION3 The Examiner rejects claims 1-16 under 35 U.S.C. § 103(a) as being unpatentable over Recker and Verfuerth. See Final Act. 2-5. ANALYSIS Appellant argues independent claim 1 and dependent claims 2-9 together as a group. See Appeal Br. 7-11. Appellant provides nominal separate arguments with respect to independent claim 10, but those arguments are substantially identical to the arguments made with respect to claim 1. See Appeal Br. 11. Appellant argues independent claim 10 and dependent claims 11-16 together as a group. See Appeal Br. 11. Accordingly, we select independent claim 1 as representative of Appellant’s arguments with respect to claims 1-16. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). Obviousness Rejection of Claims 1-16 The Examiner rejects independent claim 1 (as well as independent claim 10, and dependent 2-9 and 11-16) as obvious in view of Recker and Verfuerth. See Final Act. 2-5; Ans. 5-7. Specifically, the Examiner finds that Recker discloses each of the recited features of claim 1 with the exception of explicitly disclosing transceivers having a predetermined and limited transmission range. See Final Act. 2-5 (citing Recker ¶¶ 109, 118, 125, 137, 154, 159, 173, 174, 205, 210, 212-216, 387, 398, 399, 414); Ans. 5-7. The Examiner finds that Verfuerth also discloses motion 3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125 Stat. 284 (2011), amended 35 U.S.C. § 103. Because the present application has an effective filing prior to the AIA’s effective date (March 16, 2013), this decision refers to 35 U.S.C. § 103(a). Appeal 2021-000127 Application 15/202,198 5 detection, lighting fixtures, and transceivers. See Final Act. 3. The Examiner also finds that Verfuerth a limited transceiver broadcast range and broadcasting a signal to devices within the limited range. See Final Act. 3-5 (citing Verfuerth ¶ 51; Fig. 6); Ans. 6-7. In the Answer, the Examiner further explains that both Recker and Verfuerth refer to limited broadcast ranges for transceivers and that it is well known in the art that transceivers have a limited broadcast range. See Ans. 5-7 (citing Recker ¶¶ 212, 387; Verfuerth ¶ 51). Additionally, the Examiner explains why Recker and Verfuerth are properly combinable in that: Recker teaches that it was known in the art for electrical components (lighting units), having associated motion sensors and transceivers, to switch states in response to sensed motion and to send an RF signal (necessarily having a predetermined and limited range) to other electrical components within range, such electrical components also switching state in response to receipt of the RF signal. Ans. 7. And, “Verfuerth teaches that it was known in the art to configure lighting systems such that some or none of the controllers in the electrical components perform retransmission.” Ans. 7. Appellant contends that Recker and Verfuerth do not render claim 1 (or the other pending claims) obvious. See Appeal Br. 7-11. Specifically, Appellant contends that “Recker does not teach a transmitted signal that has a limited range. Rather, Recker teaches a signal that, if it cannot reach all bulbs for some reason, is retransmitted so all bulbs can be reached. Recker’s system does not desire a limited range.” Appeal Br. 8. Appellant also contends “Verfuerth’s system relies on zone control-corralling specific components so only those components receive a signal-not a signal that has limited transmission range. In other words, ‘zone control’ taught by Verfuerth does not rely on limiting the range of a signal.” Appeal Br. 9. Appeal 2021-000127 Application 15/202,198 6 Appellant further contends one would not combine Recker and Verfuerth because “Verfuerth teaches that the system leverages all controllers to act as relays, which is no different from what Recker teaches,” and “one of ordinary skill would not make the suggested modification because doing so would improperly change the principle of operation of Recker”-“mak[ing] sure the signal reaches all of the bulbs, even if retransmission (i.e.[,] a repeater) is needed.” Appeal Br. 9. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2-5) and (2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 5- 7) in response to Appellant’s Appeal Brief. We concur with the findings and conclusions reached by the Examiner, and we provide the following analysis for emphasis. Appellant’s arguments do not persuade us that the Examiner erred. We disagree with Appellant’s arguments, and find the Examiner has provided a sufficient rationale for combining the references. With respect to Appellant’s contentions that Recker requires a signal (transitioning the state of lighting devices) reach all lighting devices (see Appeal Br. 8-10 (citing Recker ¶¶ 212, 387, 400)), we disagree. As pointed out by the Examiner, Recker discloses multiple embodiments, including controlling only a portion of the lighting devices (rather than controlling all the lighting devices as argued by Appellant). See Ans. 5-7 (citing Recker ¶¶ 174, 212). As further pointed out by the Examiner, Recker refers to transceiver range being limited, necessitating retransmission by additional transceivers to reach all lighting devices, and transceivers having a limited range was well known. See Ans. 6-7 (citing Recker ¶¶ 212, 387). Appeal 2021-000127 Application 15/202,198 7 We agree with the Examiner and find that Recker at least would have suggested to one of ordinary skill in the art a transceiver having a limited range transmitting a signal to a group (less than all) of lighting devices to transition the state of lighting devices (i.e., switch on the lighting devices) responsive to motion detection. Recker discloses “a combination of RF transceiver and motion sensor” that “detects motion” and “sends out a message to” other units (i.e., lighting devices combined with transceivers and motion detectors) “to turn . . . the units on.” Recker ¶ 387. Recker also discloses “[u]nits can also receive a message via its RF receiver and retransmit it via its RF transmitter to extend the range of lights beyond what is within the range of the initial unit that detected motion. Recker ¶ 387. See also Recker ¶ 212. Recker further discloses that the message or signal can be sent to only a subset of all the lighting devices: “operation of the wireless light bulbs . . . or a subset thereof can be coordinated,” such that “at least a subset of the wireless light bulbs . . . can concurrently switch from an on state to an off state, or vice versa, when the respective transceivers . . . obtain . . . an input signal from the . . . sensor(s). Recker ¶ 174. See Recker ¶ 212 (the message “may also be propagated through the network of bulbs via the RF transceiver in each bulb to control a portion of . . . the . . . network of wireless light bulbs.”). With respect to Appellant’s contentions that Verfuerth only teaches “zone control” and does not teach “limiting the range of a signal” (Appeal Br. 8), we also disagree. As pointed out by the Examiner, Verfuerth explicitly discloses a transceiver with a limited broadcast range and relaying a broadcast signal to devices within a zone (group) within that range. See Ans. 6-7 (citing Verfuerth ¶ 51). Verfuerth’s paragraph 51 discloses: Appeal 2021-000127 Application 15/202,198 8 When controller . . . receives [a] broadcast . . . indicating motion from [the] controller 300, controller 604 relays [the] broadcast . . . to other zone devices . . . . This way, an event such as motion can be propagated to each of the lighting fixtures in a zone . . . . This activity may be configurable . . . so that no controllers are relays and only devices within range of the detecting controller act on its broadcasts. Verfuerth ¶ 51 (emphasis added and omitted). Appellant’s contentions regarding Recker and Verfuerth are unavailing of Examiner error. Appellant misconstrues the Examiner’s rejection and the cited teachings of both Recker and Verfuerth, as delineated supra. Appellant interprets both Recker and Verfuerth improperly and too narrowly, and does not address what the combination both Recker and Verfuerth would have at least suggested to one of ordinary skill in the relevant art in view of the prior art including Recker and Verfuerth (and the knowledge of such a skilled artisan). Appellant fails to appreciate that the combination of Recker and Verfuerth at least broadly suggests motion sensors combined with transceivers and lighting devices (i.e., electrical components) where the transceiver, having a limited range, broadcasts a signal to switch on lighting devices to other electrical components within range of the broadcasting transceiver. Accordingly, the combination of Recker and Verfuerth teaches Appellant’s disputed limitation: a plurality of transceivers . . . operable to receive a signal from a first portion of the plurality of transceivers and to transmit the signal to a second portion of the plurality of transceivers, each transceiver having a predetermined and limited transmission range to define the second portion of the plurality of transceivers as those transceivers within the predetermined and limited transmission range to assure that the second portion of transceivers includes less than all of the plurality of transceivers and each and every one of those transceivers within the predetermined and limited transmission range. Appeal 2021-000127 Application 15/202,198 9 Appeal Br. 13 (Claims App.) (Claim 1). With respect to the combinability of Recker and Verfuerth, we disagree with Appellant that Recker requires transmission to all lighting devices in a particular area (supra) and Verfuerth is not properly combinable, inter alia, because it would change Recker’s principle of operation. The combination of Recker and Verfuerth need not be a physical combination (incorporation). The Supreme Court has rejected such a narrow inquiry in determining obviousness. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (“The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents.”). Rather, “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claims, for a court can take account of the interferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. It is well settled that “a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for obviousness whether a secondary reference’s features can be bodily incorporated into the structure of the primary reference. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). To the extent Appellant argues the sufficiency of the Examiner’s rationale for the combinations, a rejection based on obviousness need only be supported by “some articulated reasoning with some rational underpinning” to combine known elements in the manner required by the claim. KSR, 550 U.S. at 418. Appeal 2021-000127 Application 15/202,198 10 Here the Examiner finds that Recker and Verfuerth both describe motion control of lighting devices using a transceiver broadcast signal. See Final Act. 2-5; Ans. 5-7; supra. The Examiner determines that a transceiver having a limited broadcast range is well-known in the art (as taught by both Recker and Verfuerth), and that one of ordinary skill in the art could have used the limited transmission range transceiver and motion control technique taught by Verfuerth, with Recker’s system to provide the recited functionality recited in claim 1-a “transceiver having a predetermined and limited transmission range” such that a second portion (set) of transceivers “within the predetermined and limited transmission range” “receive a signal from a” first transceiver (having a predetermined and limited transmission range) “to assure that the second portion of transceivers includes less than all of the plurality of transceivers and each and every one of those transceivers within the predetermined and limited transmission range.” Appeal Br. 13 (Claim App.) (Claim 1). We agree with the Examiner that it would have been within the skill of one of ordinary skill in the art to combine such known techniques (relaying control signals within only a limited range), as taught by Verfuerth, in the motion control lighting system of Recker. See KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill”). Appellant has not presented evidence sufficient to persuade us that combining the respective familiar elements of the cited references in the manner proffered by the Examiner would have been “uniquely challenging or difficult for one of ordinary skill in the art” at the time of Appellant’s invention. Leapfrog Enters., Inc. v. Appeal 2021-000127 Application 15/202,198 11 Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Thus, we are not persuaded that the Examiner erred in combining the cited teachings of Verfuerth with those of Recker. The Examiner provided “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Appellant has not identified any knowledge relied upon by the Examiner that was gleaned only from Appellant’s disclosure and that was not otherwise within the level of ordinary skill in the art at the time of invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Nor has Appellant provided objective evidence of secondary considerations, which “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Additionally, although a Reply Brief is not required, Appellant did not file a Reply Brief and therefore did not address or otherwise rebut the Examiner’s clarified findings and additional discussion of Recker and Verfuerth, as well as the disputed combinability of Recker and Verfuerth, or the findings and responsive arguments made by the Examiner in the Answer. See Ans. 5-7. Accordingly, based on a preponderance of the evidence, Appellant’s contentions do not persuade us that the Examiner erred in concluding that the combination of Recker and Verfuerth renders obvious Appellant’s independent claim 1. Accordingly, we sustain the Examiner’s obviousness rejection of independent claim 1, as well as independent claim 10, and dependent claims 2-9 and 11-16 not separately argued with particularity. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-000127 Application 15/202,198 12 CONCLUSION Appellant has not shown that the Examiner erred in rejecting claims 1-16 under 35 U.S.C. § 103(a) as obvious in view of Recker and Verfuerth. We, therefore, affirm the Examiner’s rejection of claims 1-16. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-16 103(a) Recker, Verfuerth 1-16 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). See 37 C.F.R. § 41.50(f). AFFIRMED