2019003819 (P.T.A.B. Dec. 29, 2020)

AGENCY FOR SCIENCE, TECHNOLOGY AND RESEARCH

Patent Trials and Appeals BoardDec 29, 2020

2019003819 (P.T.A.B. Dec. 29, 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. 15/109,048 06/29/2016 Shoukang ZHENG 213/929US 6126 23371 7590 12/29/2020 CROCKETT & CROCKETT, PC 6B Liberty Suite 145 Aliso Viejo, CA 92656 EXAMINER DETSE, KOKOU R ART UNIT PAPER NUMBER 2463 MAIL DATE DELIVERY MODE 12/29/2020 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHOUKANG ZHENG, ZHONGDING LEI, and YUAN ZHOU Appeal 2019-003819 Application 15/109,048 Technology Center 2400 Before JAMES R. HUGHES, LARRY J. HUME, and JAMES W. DEJMEK, Administrative Patent Judges. HUME,Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision rejecting claims 1–12, and 14–22, which are all claims pending in the application. Appellant has canceled claims 13 and 23. See Br. (Claims App.). 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. Appellant identifies the real party in interest as Agency for Science, Technology, Research of Singapore. Br. 2. Appeal 2019-003819 Application 15/109,048 2 STATEMENT OF THE CASE2 The claims are directed to a mobile radio communication devices and methods for controlling a mobile radio communication device. See Spec. ¶ 2. Exemplary Claims Claim 1, reproduced below, is representative of the subject matter on Appeal (emphases added to contested limitations): 1. A mobile radio communication device comprising: a receiver configured to receive data; an access point identification circuit configured to determine whether the received data is received from or sent to an access point corresponding to the mobile radio communication device; and a response indication deferral setting circuit configured to set a response indication deferral parameter based on the determination of the access point identification circuit. 2 Our decision relies upon Appellant’s Appeal Brief (“Br.,” filed Jan. 17, 2019); Examiner’s Answer (“Ans.,” mailed Feb. 13, 2019); Final Office Action (“Final Act.,” mailed July 23, 2018); and the original Specification (“Spec.,” filed June 29, 2016) (claiming benefit of PCT/SG2014/000631, filed Dec. 31, 2014). Appellant did not file a Reply Brief in response to the factual findings and legal conclusions in the Examiner’s Answer. Appeal 2019-003819 Application 15/109,048 3 REFERENCES The prior art relied upon by the Examiner as evidence is: Name Reference Date Julian US 2007/0197246 A1 Aug. 23, 2007 Wentink et al. (“Wentink”) US 2014/0233478 A1 Aug. 21, 2014 Xing et al. (“Xing”) US 2016/0174262 A1 June 16, 2016 REJECTIONS R1. Claims 1, 2, and 14 are rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Julian and Xing. Final Act. 5. R2. Claims 3–12, and 15–22 are rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Julian, Xing and Wentink. Final Act. 7. CLAIM GROUPING Based on Appellant’s arguments (Br. 6–13) and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness Rejection R1 of claims 1, 2, and 14 on the basis of representative claim 1. Remaining claims 3–12, and 15–22 in Rejection R2, not argued separately, stand or fall with the respective independent claim from which they depend.3 3 “Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv). In addition, when Appellant does not separately argue the patentability of Appeal 2019-003819 Application 15/109,048 4 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellant. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant’s arguments with respect to claims 1–12, and 14–22 and, unless otherwise noted, we incorporate by reference herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer in response to Appellant’s arguments. We highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. 1. § 103 Rejection R1 of Claims 1, 2, and 14 Issue 1 Appellant argues (Br. 6–13) the Examiner’s rejection of claim 1 under 35 U.S.C. § 103 as being obvious over the combination of Julian and Xing is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests “[a] mobile radio communication device” that includes the limitations of “an access point identification circuit configured to determine whether the received data is received from or sent to an access point corresponding to the mobile radio communication device;” and “a response dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). Appeal 2019-003819 Application 15/109,048 5 indication deferral setting circuit configured to set a response indication deferral parameter based on the determination of the access point identification circuit,” as recited in claim 1? Principles of Law “[O]ne cannot show non-obviousness by attacking references individually where . . . the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” Id. at 425. The test for obviousness is what the combined teachings of the prior art would have suggested to the hypothetical person of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). In KSR, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, if 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 . . . . [A] court must ask whether the improvement is more than the predictable Appeal 2019-003819 Application 15/109,048 6 use of prior art elements according to their established functions. Id. at 417. Further, the relevant inquiry is whether the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR, 550 U.S. at 418). During prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using “the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Analysis The Examiner finds Julian teaches the recited “access point identification circuit configured to determine whether the received data is received from or sent to an access point corresponding to the mobile radio communication device” in paragraphs 10, 71, and Figure 8. Final Act. 5. For example, Julian discloses: According to another aspect, a method for facilitating identification of suitable access points can comprise transmitting a signal request, receiving at least one signal in Appeal 2019-003819 Application 15/109,048 7 response to the signal request and selecting an access point based upon the received signal. Selection of the access point can be based at least in part upon received signal strength of the at least one signal or on the time at which the at least one signal was received. Julian ¶ 10. Further, “[t]he techniques described herein may be implemented by various means. For example, these techniques may be implemented in hardware, software, or a combination thereof. For a hardware implementation, the processing units used for access point identification may be implemented within one or more application specific integrated circuits (ASICs). . . .” Julian ¶ 71. In response to the Examiner’s findings, Appellant contends: [I]t is clear to a person of ordinary skill in the art that the access point identification techniques disclosed in Julian is not configured to determine “whether the received data is received from or sent to an access point corresponding to the mobile radio communication device” as required by claims 1 and 14, but instead identifies a suitable access point to assign to a mobile device from which the mobile device will receive the strongest signal. Br. 8. The Examiner further finds that it is known in the art for processors to receive and decode data, i.e., a packet, message, or frame that includes IP addresses, including source and destination addresses, as evidenced at least by the cited portions of Julian. Ans. 15. We agree with the Examiner’s findings and claim construction and, under the broadest reasonable interpretation standard (see Morris, 127 F.3d at 1054), we conclude Appellant’s claim 1 recites broad subject matter that does not preclude the claimed determination as to whether the received data Appeal 2019-003819 Application 15/109,048 8 is received from or sent to a particular access point from representing a suitable access point to assign to a mobile device from which the mobile device will receive the strongest signal, contrary to Appellant’s argument. See Br. 8. Nor does the claim define the exact nature of the correspondence between the access point and the mobile radio communication device, i.e., the claimed correspondence between devices does not preclude the access point corresponding to the mobile device on the basis of received signal strength. With respect to the second contested limitation, i.e., “a response indication deferral setting circuit configured to set a response indication deferral parameter based on the determination of the access point identification circuit subject matter of the instant claim such as identify an access point by simply having a processors checking the message IP addresses, source or destination address,” the Examiner relies upon Xing for this disclosure. Final Act. 6 (citing Xing ¶ 24). Xing discloses, in pertinent part, “[t]he embodiment of the present invention further provides a station, configured to update a local network allocation vector and/or a response indication deferral [(RID)]when detecting a first radio signal of a third party station.” Xing ¶ 24. Appellant argues: [A]though Xing’s station may be configured to update a RID based on the duration indicated in a first radio signal of a third party station, Xing’s station is clearly not configured to set a RID parameter based on the determination (determination of whether the received data is received from or sent to an access point corresponding to the station) of an access point identification circuit as required by claims 1 and 14. Appeal 2019-003819 Application 15/109,048 9 Br. 10. We are not persuaded by Appellant’s argument which argues the Julian and Xing references separately, when the rejection is for obviousness in light of what the combination would have suggested to a person with skill in the art. The Examiner provides a rationale for combining Julian and Xing in the manner suggested, i.e., “it would have been obvious to one ordinary skill in the art before the effective filing date of the claimed invention was made to incorporate Xing’s accessing channel scheme into Julian’s delayed response to an access probe scheme. The method can be implemented in a mobile communications. The motivation of doing this is to achieve a spatial reuse thus ensuring the effectiveness of data transmission of the stations.” Ans. 16 (citing Julian ¶ 8). We note Appellant has not filed a Reply Brief to rebut the Examiner’s additional findings and legal conclusions in the Answer. Based upon the findings above, on this record, Appellant has not persuaded us of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitation of claim 1, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of independent claim 1, and grouped claims 2 and 14 which fall therewith. See Claim Grouping, supra. 2. § 103 Rejection R2 of Claims 3–12, and 15–22 In view of the lack of any substantive or separate arguments directed to obviousness Rejection R2 of claims 3–12, and 15–22 under § 103 (see Appeal 2019-003819 Application 15/109,048 10 Br. 14), we sustain the Examiner’s rejection of these claims. Arguments not made are forfeited.4 CONCLUSIONS The Examiner did not err with respect to obviousness Rejections R1 and R2 of claims 1–12 and 14–22 under 35 U.S.C. § 103 over the cited prior art combinations of record, and we sustain the rejections. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis / References Affirmed Reversed 1, 2, 14 103 Obviousness Julian, Xing 1, 2, 14 3–12, 15–22 103 Obviousness Julian, Xing, Wentink 3–12, 15–22 Overall Outcome 1–12, 14–22 FINALITY AND 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)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED 4 Appellant merely argues, “[t]he rejection of the dependent claims is traversed on the same basis as the rejection of the independent claims.” Br. 14.