Ex Parte 6417801 et al

Board of Patent Appeals and Interferences

Aug 28, 2012

95001377 (B.P.A.I. Aug. 28, 2012)

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.
95/001,377 06/08/2010 6417801 2875.492REX0 2649
26111 7590 08/29/2012
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
08/29/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

GLOBAL LOCATE, INC.
Patent Owner and Appellant

v.
SiRF TECHNOLOGY INC.
Requester
____________

Appeal 2012-000012
Reexamination Control 95/001,377
Patent 6,417,801
Technology Center 3900
____________

Before JAMESON LEE, RAE LYNN P. GUEST, and JOSIAH C. COCKS,
Administrative Patent Judges.

COCKS, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
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Reexamination Control 95/001,377
Patent 6,417,801

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A. SUMMARY
Pursuant to 37 C.F.R.§ 41.79, Global Locate, Inc. (“Global Locate”)
requests rehearing of our decision mailed February 15, 2012 (“Decision”) in
which we affirmed the Examiner’s decision to reject claims 1-27, 33, and
35.1 We have considered Global Locate’s request for rehearing but the relief
sought therein is denied.
B. DISCUSSION
A request for rehearing must state the points believed to have been
misapprehended or overlooked in a Board’s decision. 37 C.F.R.
§ 41.79(b)(1). Global Locate advances three arguments under headings
designated “A,” “B,” and “C,” as to points that we allegedly
misapprehended or overlooked in our Decision. We address the arguments
below.
Global Locate’s Argument A
Global Locate first contends that the Board “overlooked” an argument
that it allegedly advanced in connection with the Examiner’s rejection of
claims 2 and 18 over McBurney. (Rhr’g Req., p. 2.) In particular, Global
Locate urges that (id.) (emphasis in original):
The Appellant pointed out both in its Appeal Brief and Rebuttal Brief
that the Examiner was silent in regard to how McBurney ensures a
consistent common mode error when constructing pseudoranges that
estimate, as required by the inclusion of sub-millisecond
pseudoranges recited in claims 2 and 18.

1 In the Decision we also reversed the Examiner’s decision to reject
claim 34.
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Because of that alleged silence, Global Locate now requests that
“prosecution be reopened under MPEP §2677 so that a complete record on
dependent claims 2 and 18 can be established.” (Id.)
At the outset, we regard Global Locate’s request that “prosecution be
reopened” as effectively asking that the Board remand for the Examiner to
insert additional supportive reasoning into the Examiner’s Answer. Global
Locate, however, never made any such request in its Briefs. It is manifest
that we could not have overlooked or misapprehended a request that was not
previously made.
Furthermore, we do not agree that the Examiner’s Answer was
“silent” with respect to the “sub-millisecond pseudoranges” feature of claims
2 and 18. In rejecting Global Locate’s claims, including claims 2 and 18, as
anticipated by McBurney, the Examiner analyzed the content of that
reference at pages 12-15 of the Examiner’s Answer including discussion of
how pseudoranges are determined in McBurney that are “within a window
of plus and minus one-half millisecond.” (Ans., p. 14). The Examiner’s
Answer also incorporated by reference pages 108-124 of SiRF’s request for
inter partes reexamination. (Id. at p. 15.) Those portions of the request
include claim charts mapping McBurney’s disclosure to Global Locate’s
claims 2 and 18 and their recitation of sub-millisecond pseudoranges.
Accordingly, we reject Global Locate’s position that the Examiner’s
Answer was silent as to the features of claims 2 and 18.
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Global Locate’s Argument B
Global Locate also now argues that McBurney does not disclose
calculation of “absolute position” and “absolute time” as required by the
claims and urges that the rejections based on McBurney be reversed. (Rhr’g
Req., p. 3-7.) Those arguments, however, were not previously raised by
Global Locate in its Briefs. Although Global Locate directs us to pages 26-
27 of its Appeal Brief, we find only the argument that McBurney does not
disclose an algorithm based on a consistent common mode error similar to
that of Global Locate’s described algorithm of Patent 6,417,801 (i.e., the
'801 Patent) (App. Br. 26-27). Global Locate acknowledges in its Request
our determination that the claims require no such algorithm. (Rhr’g Req., p.
6.)
We also observe that Global Locate submits additional material in the
form of an appendix to its rehearing request styled “Technical Analysis
Regarding U.S. Patent 6,191,731 to McBurney et al. (“McBurney”).”
(Rhr’g Req., App’x. A.) However, “[a]rguments not raised in the briefs
before the Board and evidence not previously relied upon in the briefs are
not permitted in the request for rehearing” expect for circumstances which
do not apply here. 37 C.F.R. § 41.79(b)(1). The additional arguments and
technical analysis material now supplied by Global Locate were not
previously before the Board, and are not permitted in the request for
rehearing.
In connection with the McBurney rejections, Global Locate also
contends, as it did in its Briefs, that an implicit feature of the claims
involving a “consistent common mode error” is absent from McBurney.
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(Rhr’g Req., p. 6.) In our prior Decision, we observed that although the
claims do not recite the term “consistent common mode error,” even
assuming that it is an implicit claim feature, we were not persuaded that
Global Locate had adequately explained why McBurney is not reasonably
understood as disclosing that feature. In particular, we concluded that
Global Locate did not meaningfully articulate why McBurney’s description
of a component “bu” described as a “sub-millisecond time error” which is
“common” for the GPS satellites involved in McBurney’s invention, was not
reasonably understood as constituting a “consistent common mode error.”
(Decision, pp. 24-26.) Moreover, that McBurney’s “bu” constituted a
“consistent common mode error” was the testimony of SiRF’s expert
witness, Dr. Peterson, and, based on the reasoning articulated by Dr.
Peterson, we assessed that testimony as credible. (Id.)
Global Locate attempts to remake its case and bolster prior
insufficient argument with additional argument and analysis. That is not a
permitted course of action in a request for rehearing. We are not persuaded
that we misapprehended or overlooked any point in declining to reverse the
Examiner’s decision to reject certain of Global Locate’s claims over
McBurney based on the record that was before us.
Global Locate’s Argument C
Global Locate takes the position that the Examiner was “silent” as to
the argument in its Appeal Brief that the “pseudoranges which estimate” set
forth in claims 1, 17, and 33 must be construed as “measured pseudoranges.”
Global Locate requests that prosecution be “reopened to allow a full and
complete record to be developed.” (Rhr’g Req., p. 7.) Alternatively, Global
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Locate requests that the rejections to claims 1, 17, and 33 based on the
Peterson and Lannelongue articles be reversed. (Id. at p. 8.)
Global Locate’s request to essentially remand the case to Examiner
because of a perceived deficiency in the Examiner’s Answer was not
previously made and is now untimely. Moreover, Global Locate’s position
is simply incorrect. The Examiner was not silent with respect to Global
Locate’s argument. As clearly set forth in the Examiner’s Answer, the
Examiner declined to construe the “pseudoranges” in claims 1, 17, and 33 as
being limited strictly to “measured pseudoranges.” (E.g., Ans., pp. 20 and
23-24.)
As discussed in our Decision, we concluded that the “pseudoranges”
feature in claims 1, 17, and 33 was not limited to “measured pseudoranges.”
(Decision, pp. 5-13.) We were thus unpersuaded that the Examiner had
incorrectly rejected claims 1, 17, and 33 over Peterson and Lannelongue.
Global Locate contends that the Board “misapprehended” a portion of Dr.
Braasch’s testimony in reaching that conclusion. However, the basis for that
contention is simply a general assertion that the Board drew an inference
from that testimony which was not intended by Global Locate. (Rhr’g Req.,
p. 8.) That “inference” arose from Dr. Braasch's testimony that the claim
phrase “pseudoranges that estimate the range of the GPS receiver to a
plurality of GPS” is “define[d]” in the ‘801 Patent at column 6, lines 41-45,
which refers only to expected pseudoranges. (see Decision, p. 12.) Thus,
the '801 Patent reasonably suggests that “pseudoranges which estimate” as
set forth in claims 1, 17, and 33 does not exclude “expected pseudoranges.”
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Specifically, with respect to that “inference” Global Locate urges the
following (Rhr’g Req., p. 8):
The Board misapprehended Dr. Braasch’s citation to col. 6:41-45 that
expected pseudoranges could be the pseudoranges required by claims
1, 17, and 33. Patent Owner intended no such inference, and any such
inference would be, as explained above, inconsistent with both the
other claims of the ‘801 patent (e.g., claims 7 and 20) and the entire
thrust of the ‘801 patent, which requires, as a necessary input,
pseudoranges based on measurements and which proposes a novel
way of calculating those pseudoranges using only fractional
pseudorange measurements (such as sub-millisecond measurements
code-phase offsets).

Our determination that the “pseudoranges” recited in claims 1, 17, and
33 did not require only “measured pseudoranges” was not predicated solely
on the above-noted portions of Dr. Braasch’s testimony. Indeed, as we
observed in our Decision, we regarded the testimony as consistent with the
understanding of the ordinary meaning of the claim term “pseudoranges” as
reasonably encompassing both “expected pseudoranges” and “measured
pseudoranges” rather than as a term which excludes one type of
pseudoranges, i.e., expected pseudoranges. In our Decision, we also
considered and rejected Global Locate’s contention that giving the term
“pseudoranges” its ordinary meaning in the context of claims 1, 17, and 33 is
somehow inconsistent with the content of claims 7 and 20. (Decision, pp. 8-
13.) Accordingly, we are not persuaded that the ‘801 Patent somehow
compels that the term “pseudoranges” as it appears in claims 1, 17, and 33
must take on a special meaning beyond its ordinary meaning.
For the foregoing reasons, we are not persuaded that we
misapprehended or overlooked any point in declining to reverse the decision
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of the Examiner to reject claims 1, 17, and 33 over Peterson and
Lannelongue.
C. CONCLUSION
The relief sought by Global Locate in its Request for Rehearing is
denied.

DENIED

PATENT OWNER:
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005

THIRD-PARTY REQUESTER:
PILLSBURY WINTHROP SHAW PITTMAN LLP
PO BOX 10500
MCLEAN, VA 22102