Ex parte Kare, Appeal 2013-006481

• Decision Date: 18 August 2015
• Docket Number: Appeal 2013-006481
• Parties: Ex parte JORDIN T. KARE Application No. 12/074, 248 Technology Center 2800
• Court: Patent Trial and Appeal Board

Ex parte JORDIN T. KARE Application No. 12/074, 248 Technology Center 2800

Appeal No. 2013-006481

United States Patent and Trademark Office, Patent Trial and Appeal Board

August 18, 2015

FILING DATE 02/29/2008

Before BRADLEY R. GARRIS, CHARLES F. WARREN, and TERRY J. OWENS Administrative Patent Judges.

DECISION ON APPEAL

WARREN, Administrative Patent Judge.

Applicant appeals to the Board under 35 U.S.C. § 134(a) from the decision of the Primary Examiner finally rejecting claims 46-74. App. Br., ^[1]e.g., 9, 24, 34; Final Act. I.^[2] We have jurisdiction. 35 U.S.C. § 6(b).

An oral hearing was held July 9, 2015.

We affirm the decision of the Primary Examiner.

Claim 46 illustrates Appellant's invention of an apparatus comprising at least one steerable electromagnetic transducer having a field of view that includes an obstruction and an electromagnetic cloaking structure operable to divert electromagnetic radiation around the obstruction (claims 46 56), and a method of operating the apparatus (claims 64, 67) (Spec. 8-11, 19-20, Figs. 1, 2, 12, 13). Claim 46 is representative of the claims on appeal and is reproduced from the Claims Appendix to the Appeal Brief:

46. An apparatus, comprising:

a steerable electromagnetic transducer having a field of view that is adjustable to include an obstruction; and

an electromagnetic cloaking structure operable to at least partially divert electromagnetic radiation around the obstruction.

App. Br. 61 (V. Claims App'x).

Appellant requests review of the following grounds of rejections advanced on appeal by the Examiner (App. Br. 10, 26, 35, 44 48):

claims 46-74 under 35 U.S.C. § 101 as being drawn to unpatentable subject matter (Final Act. 3);

claims 46-74 under 35 U.S.C. § 112, first paragraph written description requirement (Final Act. 6);

claims 46-74 under 35 U.S.C. § 112, first paragraph, enablement requirement (Final Act. 10);

claim 46 under 35 U.S.C. § 102(e) over Cai (US 2008/0165442 A1) (Final Act. 12); and

claims 46-66 under 35 U.S.C. § 103(a) over Fullerton (US 2006/0028374 Al) and Cai (Final Act. 13).

Appellant relies on Pendry, ^[3] Schurig, ^[4] Shalaev, ^[5] all incorporated by reference, Smith, ^[6] cited in the Response filed April 1, 2010, and the Zhang^[7]Declaration under 37 C.F.R. § 1.132 directed to this Application.

Appellant also relies on the Smith Declaration under 37 C.F.R. § 1.132. We have considered the Smith Declaration (undated) filed on April 1, 2010 in this Application, ^[8] and not the Smith Declaration (undated) filed on April 2, 2010 in Application 12/074, 247 and submitted with the Evidence Appendix to the Appeal Brief filed in this Application.

Appellant further relies on the Patent Application Publication U.S. 2006/0125681 Al of Application 10/525, 191 to Smith and Schurig (Smith et al), incorporated by reference. App. Br. 15; see Spec. 6:18-19; Zhang Decl. ¶¶ 15-16.

Appellant argues the first three grounds of rejection based on the claims as a whole. App. Br. 9-12. Thus, we decide the appeal with respect to the first four grounds of rejection on claim 46, with the remaining claims standing or falling therewith, and also decide the fifth ground on claim 46 along with consideration of additional claims to the extent argued in the Appeal Brief. 37 C.F.R. § 41.37(c)(1)(iv) (2012).

OPINION

I. Claim Construction

The issues in this appeal entail the interpretation of the language of representative claim 46. We give the claim terms the broadest reasonable interpretation in context in light of the disclosure in the Specification as it would be interpreted by one of ordinary skill in the art. See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1259-60 (Fed. Cir. 2010); In re Translogic Tech., Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007); In re Baker Hughes, Inc., 215 F.3d 1297, 1303 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989).

We determine the plain language of representative claim 46, in light of the Specification, specifies any "apparatus" comprising at least three parts: (1) any steerable "electromagnetic transducer" capable of having at least one "field of view" that can be adjusted to include any manner of "an obstruction;" (2) the "obstruction;" and (3) any manner of "electromagnetic cloaking structure" that is "operable, " that is, capable of, at least "partially diverting]" to any extent the "electromagnetic radiation" "around" "the obstruction" in any manner. In this respect, we determine the "obstruction" in the field of view of the "steerable electromagnetic transducer" is a part of the apparatus such that the "electromagnetic cloaking structure, " which is also part of the apparatus, is associated with the "obstruction" in a manner to divert the "electromagnetic radiation" from the "electromagnetic transducer" "around" the "obstruction" to any extent.

We base our determinations on our findings from Appellant's disclosure in the Specification. We find Appellant discloses that the "electromagnetic transducer" can be any device, including, among other things, antennas, lasers, and cavity resonators, capable of being "steerable, " and operable to transmit "electromagnetic radiation, " including, among other things, microwave frequencies and optical frequencies such as "visible." Spec. 9:10-30; 10:10-15. The "obstruction" includes any enclosure or support element of the steerable electromagnetic transducer, such as, among other things, a radome or antenna mast, as well as any enclosure or support element of another steerable electromagnetic transducer which can be a part of the apparatus. Spec. 19:13-21, 20:8-25, 21:6-15; dependent claim 54 ("radome"), independent claim 56 ("aperture antenna having an aperture-blocking element") (App. Br. 61-62 (V. Claims App'x)).

We further find in the Specification this disclosure with respect to the "electromagnetic cloaking structure:"

For the electromagnetic cloak, the curved coordinate space is a transformation of a flat space that has been punctured and stretched to create a hole (the cloaked region), and this transformation corresponds to a set of constitutive parameters (electric permittivity and magnetic permeability) for a transformation medium wherein electromagnetic waves are refracted around the hole in imitation of the curved coordinate space.

Spec. 2:24-29. "In general, for a selected coordinate transformation, a transformation medium can be identified wherein electromagnetic waves refract as if propagating in a curved coordinate space corresponding to the selected coordinate transformation, " wherein "[constitutive parameters of the transformation medium can be obtained from [disclosed] equations." Spec. 3:13-1:30. "In general, constitutive parameters (such as permittivity and permeability) of a medium responsive to an electromagnetic wave can vary with respect to a frequency of the electromagnetic magnetic wave (or equivalently, with respect to a wavelength of the electromagnetic wave in vacuum or in a reference medium)." Spec. 5:1-6:10.

"Constitutive parameters such as those of equations (1) and (2) (or reduced parameters derived therefrom) can be realized using metamaterials. Generally speaking, electromagnetic properties of metamaterials derive from the metamaterial structures, rather than or in addition to their material composition." Spec. 6:11-14; dependent claims 55, 63 ("electromagnetic cloaking structure includes a metamaterial"). According to Appellant,

[m]etamaterials generally feature subwavelength elements, i.e. structural elements having a length scale smaller than an operating wavelength of the metamaterial, and the subwavelength elements have a collective response to electromagnetic radiation that corresponds to an effective continuous medium response, characterized by an effective permittivity, an effective permeability, an effective magnetoelectric coefficient or any combination thereof.

Spec. 6:20-25; see also 6:25-7:6. Further, according to Appellant,

Metamaterials can be designated and fabricated to exhibit selected permittivities, permeabilities, and/or magnetoelectric coefficients that depend upon materials properties of the constituent materials as well as shapes, chiralities, configurations, positions, orientations, and couplings between the subwavelength elements.

Spec. 7:15-19; see also 7:19-28. Appellant also discloses,

While many exemplary metamaterials are described as including discrete elements, some implementations of metamaterials may include non-discrete elements; for example, a metamaterial may include elements comprised of sub-elements, where sub-elements are discrete structures (such as split-ring resonators, etc.), or the metamaterials may include elements that are inclusions, exclusions, layers, or other variations along some continuous structure (e.g., etchings on a substrate).

Spec. 7:28-8:3.

We determine the "electromagnetic cloaking structure" in light of the Specification constitutes a genus of structures formed from any manner of "metamaterials" to exhibit selected calculated permittivities, permeabilities, and/or magnetoelectric coefficients, which has the function of diverting "electromagnetic radiation" from a "electromagnetic transducer" "around" an "obstruction" to any extent.

We fail to find in the Specification any disclosure of an embodiment of an "electromagnetic cloaking structure" or guidance to form an "electromagnetic cloaking structure" embodiment invented by Appellant, which is based on specific metamaterial(s) and structure(s) formed therewith determined from a calculated permittivity permeability, and/or magnetoelectric coefficient for the "obstruction" of an apparatus, that functions to divert to any extent the "electromagnetic...