Ex Parte HONG et al

Patent Trial and Appeal Board

Aug 29, 2018

13961412 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/961,412 08/07/2013
7055 7590 08/31/2018
GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
FIRST NAMED INVENTOR
Un Pyo HONG
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P44209 7638
EXAMINER
CHU,CHRIS H
ART UNIT PAPER NUMBER
2874
NOTIFICATION DATE DELIVERY MODE
08/31/2018 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):
gbpatent@gbpatent.com
greenblum.bernsteinplc@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte UN PYO HONG, ERNST SOMMER, and
MICHAEL SCHNEIDER
Appeal2017-005638
Application 13/961,412
Technology Center 2800
Before TERRY J. OWENS, AVEL YN M. ROSS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 In our Decision we refer to the Specification filed August 7, 2013
("Spec."), the Final Office Action appealed from dated October 28, 2015
("Final Act."), the Appeal Brief filed July 1, 2016 ("Appeal Br."), the
Examiner's Answer dated December 16, 2016 ("Ans.") and the Reply Brief
filed February 16, 2017 ("Reply Br.").
2 Appellant is the Applicant, Astrium GmbH, which, according to the
Appeal Brief, is the real party in interest. Appeal Br. 2.
Appeal2017-005638
Application 13/961,412
STATEMENT OF THE CASE
The subject matter on appeal "relates to a hollow waveguide
termination device that utilizes a waveguide termination housing and an
inner attenuation element arranged therein and [is] made of material which
absorbs electromagnetic oscillations." Spec. ,r 2. According to the
Specification, the claimed features allow for "an improvement of the
attenuation properties [which] is achieved at a reduced overall length." Id.
at ,r 7. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A hollow waveguide termination device comprising:
a hollow waveguide termination housing;
a cup shaped inner attenuation element arranged in the
housing and being made of material which absorbs
electromagnetic oscillations; and
the inner attenuation element comprising a tubular section
and a front wall section closing off the tubular section,
wherein a free end of the tubular section opposite the front
wall section forms a step arranged to reflect a part of an incident
electromagnetic oscillation.
Appeal Br. 33 (Claims App'x).
REJECTION
The Examiner maintains the rejection of claims 1-14 under 35 U.S.C.
§ I03(a) as unpatentable over Blatt3 in view of Sorensen. 4 Final Act. 2.
Appellant seeks our review of the Examiner's final rejection. See
generally Appeal Br. Appellant separately argues claims 1, 11, and 12 but
do not present any argument in support of claims 11 and 12 that is distinct
3 Blatt et al., US 2,908,875, issued October 13, 1959 ("Blatt").
4 Sorensen et al., US 7,868,714 Bl, issued January 11, 2011 ("Sorensen").
2
Appeal2017-005638
Application 13/961,412
from those advanced for claim 1. Further, Appellant does not separately
argue dependent claims 2-10, 13, and 14 but instead rest on arguments
advanced for the independent claims. We, therefore, limit our discussion to
claim 1. Claims 2-14 stand or fall with that claim. 37 C.F.R.
§ 4I.37(c)(l)(iv) (2013).
OPINION
The Examiner rejects claim 1 as obvious over Blatt in view of
Sorensen. Final Act. 2. The Examiner finds that Blatt teaches all aspects of
the claimed hollow waveguide termination device (id. at 2-3) except that
Blatt fails to describe "a free end of the tubular section opposite the front
wall section forms a step arranged to reflect a part of an incident
electromagnetic oscillation," as claimed. Id. at 3. However, the Examiner
finds that Sorensen "discloses the open end of a tubular attenuation element
(112 in Figs. 1-3) forming a step (116) ... which is used to reflect part of an
incident electromagnetic oscillation in column 3, lines 42---60." Id. The
Examiner reasons that the ordinarily skilled artisan would have been
motivated to modify the device of Blatt to include form a step as taught by
Sorensen "for the purpose of cancelling any residual energy while reducing
the length of the device." Id.
Appellant first argues that "there is no arguable suggestion in BLATT
for modifying the dummy load to intentionally form a step to reflect a part
of an incident electromagnetic oscillation ... because [] such [] modification
would be expressly contrary to BLATT's unambiguous disclosure." Appeal
Br. 14. Appellant explains that Blatt requires the transition between the
waveguide to the dummy load to be smooth to avoid reflections. Id. at 13.
3
Appeal2017-005638
Application 13/961,412
As a result, Appellant urges including a step----to reflect part of an incident
electromagnetic oscillation-would be inconsistent with Blatt. Id. at 13-14.
This argument is not persuasive of reversible error. As the Examiner
finds, Blatt describes "the 'end wall 30 of the hollow body [as] ... smooth
and flat so that it will come into perfect intimate contact with the adjacent
wall of the flange 16, "' and, as a result, "does not pertain to the
incorporation of the step of Sorensen." Ans. 4 ( quoting Blatt, col. 3, 11. 54--
57). Appellant does not address the Examiner's additional findings. See
generally Reply Br. We adopt these findings as fact. Cf In re Kunzmann,
326 F.2d 424,425 n.3 (CCPA 1964) (a finding not shown by the Appellant
to be erroneous may be accepted as fact). Because the requirement that the
end wall 30 be smooth so that it intimately contacts with flange 16 does not
relate to the Examiner's incorporation of the step of Sorensen, Appellant
fails to identify a reversible error in the Examiner's rejection.
Next, Appellant contends that neither Blatt nor Sorensen describe a
"cup shaped inner attenuation element" as claimed. Appeal Br. 15-16. In
particular, Appellant urges that the converging inside walls 22 and 24 of
Blatt would not be understood by a person ordinarily skilled in the art to
"form a front wall section closing off the tubular section of a cup shaped
attenuation element." Id. at 15; see also id. at 13 (describing the "hollow
portion defined by walls 22, 24, and 26 [as] resembl[ing] a flat-head
screwdriver."). And, Sorensen describes its load "as tubiform in structure,
thus having an opening at each end." Id. at 15. Because the tubiform of
Sorensen does not have a front wall section, it cannot have a cup shape
attenuation element. Id. at 15-16.
4
Appeal2017-005638
Application 13/961,412
On this record, we determine the preponderance of the evidence
supports the Examiner's rejection. As the Examiner finds, "the absorbing
material 12 is a cup shaped inner attenuation element since the definition of
a cup is an open vessel or container and the absorbing material 12 fits that
description by virtue of its open end as seen in Figs. 1-3." Ans. 5.
Appellant does not dispute the Examiner's definition or offer-through
argument or reference to the Specification-an alternative construction of
"cup shaped." We observe that the claims broadly describe "a cup shaped
inner attenuation element ... comprising a tubular section and a front wall
section closing off the tubular section." Appeal Br. 33 (Claims App'x). The
claims are not limited to a single wall or a wall that is positioned
perpendicularly to the tubular section of the inner attenuation element.
Thus, the claims do not exclude walls that converge, i.e., walls 24, to close
off one end of the tubular section of the inner attenuation element. See
Ans. 5 ("Portions 22 constitute a tubular section since they form a long
narrow portion open at both ends and are closed off by portions 24 which
constitute a front wall since they close off portions 22."). Appellant further
argues that Sorensen fails to suggest a cup-shaped attenuation element. The
Examiner does not rely on Sorensen to supply this teaching. Therefore,
Appellant's argument fails to identify a reversible error by the Examiner.
Appellant further asserts because of the very different manners in
which Blatt and Sorensen operate, the person of ordinary skill in the art
would not have modified Blatt to include the step of Sorensen. Appeal
Br. 16-17. Specifically, Appellant argues that "BLATT is specially
designed to avoid reflections and ... SORENSEN is specially designed to
5
Appeal2017-005638
Application 13/961,412
create reflections" and, as a result, the proposed modification would be
contrary to the teachings of Blatt. Id. at 17; see also id. at 13-14 (same).
Appellant's arguments are not persuasive of reversible error by the
Examiner. Here, the Examiner explains that Blatt's waveguide termination
device is intended to absorb electromagnetic waves and prevent reflection of
the waves back to the source. Ans. 2. But, Blatt also teaches that "unwanted
reflections" often occur albeit at acceptable levels. Id. Similarly, the
Examiner states that Sorensen seeks to reduce reflections back to the source
but, instead of absorbing the electromagnetic waves, Sorensen forms a step
"to create a specialized type of reflection which interacts with and
effectively cancels any unabsorbed waves which reflect back towards the
source." Id. at 3. Thus, the Examiner reasons that the goal of Sorensen and
Blatt is similar, i.e., to reduce reflections propagating back to the source and
the proposed modification of Blatt to include the step of Sorensen would act
to cancel out the unabsorbed waves, albeit at low levels, of Blatt. We
discern no reversible error in the Examiner's findings and conclusions.
Further, Appellant's argument that because the Examiner's rejection relies
on an erroneous characterization of the reflected waves as unwanted, the
rejection should be reversed (Reply Br. 5), appears to be merely semantics.
Whether characterized as "unwanted" or not, the residual energy reflected
from the closed end of Blatt and Sorensen and the reflection caused by the
step, act in concert to create an impedance match so that the electromagnetic
energy is not reflected back toward the source.
In addition, Appellant argues that the Examiner's proposed
combination would not have operated as intended. Appeal Br. 17.
Appellant contends that including the step of Sorensen in Blatt
6
Appeal2017-005638
Application 13/961,412
would introduce a reflection at the waveguide end/dummy load
junction ... [and] because there is no reflected radiation from the
lossy material of BLATT to form the standing wave utilized by
SORENSEN, Appellants submit that the asserted modification
. . . [ would] introduce[] an uncompensated signal into the
waveguide and, therefore, prevents both waveguide termination
devices of the applied art from operating in their intended
manners.
Id. at 18.
Appellant does not persuade us of reversible error. The Examiner
finds that "Blatt concedes that there will inevitably be some unwanted
reflections." Ans. 5---6. In particular, Blatt explains that
[t]he shortened dummy loads have slightly greater reflection than
is sought by the textbook specification, but the reflection is kept
well within commercially acceptable specifications.
Blatt, col. 2, 11. 29-32. Therefore, contrary to Appellant's contention that
"there is no reflected radiation from the lossy material of BLATT" ( Appeal
Br. 18), there is some reflection, however minimal, to form the standing
wave to be utilized by Sorensen.
Lastly, Appellant for the first time in reply, asserts that: (1) "it cannot
be discerned from the applied art as to whether this minimal unwanted
reflection in BLATT would be high enough to be matched by incorporating
SORENSEN' s waveguide load" (Reply Br. 7); (2) "it is not apparent that
incorporating SORENSEN's waveguide load into BLATT would provide
any advantage over BLATT alone" (id. at 8); (3) the free or open end of the
cup-shaped attenuation element forms the step as claimed, "not a waveguide
load, as taught by SORENSEN, inserted into an attenuation element" (id. at
10); and (4) because Sorensen describes the step is located in the waveguide
and Blatt describes attaching the dummy load to the end of the wave guide,
7
Appeal2017-005638
Application 13/961,412
no ordinarily skilled person would have understood the claimed step formed
from the free end or open end of the cup-shaped inner attenuation element to
be taught or suggested by Blatt or Sorensen (id. at 10-11 ). Appellant has
not explained, nor is it apparent, that these arguments were necessitated by
the Examiner's Answer or could not have been presented in the principal
brief. Therefore, these arguments are untimely and we will not reach
arguments presented for the first time in a reply brief in the absence of good
cause. 37 C.F.R. § 4I.41(b)(2).
CONCLUSION
Appellant failed to identify a reversible error in the Examiner's
rejection of claims claims 1-14, under 35 U.S.C. § 103(a), as unpatentable
over Blatt in view of Sorensen.
DECISION
For the above reasons, the Examiner's rejection of claims 1-14 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
8