Ex Parte 7149549 et al

Patent Trial and Appeal Board

Nov 17, 2017

95001565 (P.T.A.B. Nov. 17, 2017)

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.
95/001,565 03/04/2011 7149549 206182-14000-101 3758
16579 7590 11/17/2017
Foster Pepper PLLC
1111 3rd Avenue Suite 3000
Seattle, WA 98101-3296
EXAMINER
NASSER, ROBERT L
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/17/2017 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
____________

FRONT ROW TECHNOLOGIES
Patent Owner and Appellant

v.

MLB ADVANCED MEDIA, L.P.
Requester and Respondent
____________

Appeal 2017-008424
Inter partes Reexamination Control 95/001,565
United States Patent 7,149,549
Technology Center 3900
____________

Before JOHN A. JEFFERY, RAE LYNN P. GUEST, and DAVID M.
KOHUT, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

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DECISION ON APPEAL
Patent Owner appeals under 35 U.S.C. §§ 134 and 315 the Examiner’s
decision to reject claims 26 and 44–46 which are a subset of claims 1–100,
102, and 103 that stand rejected. See App. Br. i; Resp. Br. 5; Reb. Br. 2.1
We have jurisdiction under 35 U.S.C. §§ 134 and 315, and we heard
the appeal on October 31, 2017. We affirm.

STATEMENT OF THE CASE
This proceeding arose from a request for inter partes reexamination
filed on behalf of Requester, on March 4, 2011, of United States Patent
7,149,549 B1 (“the ‘’549 patent”), issued to Ortiz et al. on December 12,
2006.
The ’549 patent describes providing multiple perspectives for a venue
activity through an electronic handheld device. To this end, data transmitted
from one or more venue-based data sources is received by a handheld device
within a venue, such as a sports stadium. The received data is then
processed and displayed on the device. See generally Abstract. Claim 44 is
illustrative and reproduced below with our emphasis:
44. A method for receiving venue-based data at a hand held
device, said method comprising the steps of:
wirelessly receiving, via a bidirectional packet based data
network, said packet based data network selectable by the user

1 Throughout this opinion, we refer to (1) the Right of Appeal Notice mailed
April 11, 2016 (“RAN”); (2) Patent Owner’s Appeal Brief filed December
16, 2016 (“App. Br.”); (3) Requester’s Respondent Brief filed January 17,
2017 (“Resp. Br.”); (4) the Examiner’s Answer mailed February 27, 2017
(“Ans.”) (incorporating the RAN by reference); and (5) Patent Owner’s
Rebuttal Brief filed March 27, 2017 (“Reb. Br.”).
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from the group of a wireless LAN and at least one cellular
communications network, digital data at the hand held device
wherein said digital data includes video streaming
simultaneously from more than one visual perspective within an
entertainment venue and wherein said digital data in transmitted
from at least one venue-based data source at the entertainment
venue;
processing said digital data for display on a display
screen associated with said hand held device; and
displaying video of only one visual perspective within
said entertainment venue selected from more than one visual
perspective simultaneously streaming as video on said display
screen in response to a user selection of said only one visual
perspective from the more than one visual perspective a user
input at a user interface associated with said hand held device;
wherein
the streaming of video on said display screen in response
to a user selection further comprises accessing a digital data
stream currently transmitting over a packet-switch based
network form a first location to at least two hand held devices,
wherein the hand held device receives the digital data stream
that is concurrently receivable by at least another hand held
device.

RELATED PROCEEDINGS
This appeal is said to be related to various pending proceedings. App.
Br. v–vi; Resp. Br. 4. First, the District Court of New Mexico held that
eleven related patents (U.S. Patent Nos. 7,376,388, 7,782,363, 7,796,162,
7,812,856, 7,884,855, 8,086,184, 8,184,169, 8,270895, 8,401,460,
8,090,321, and 8,583,027) were invalid for lack of eligible subject matter
under 35 U.S.C. § 101. Front Row Technologies LLC v. MLB Advanced
Media, L.P., 204 F.Supp.3d 1190 (D.N.M. 2016). This decision was
affirmed by the Federal Circuit. Front Row Technologies LLC v. MLB
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Advanced Media, L.P., 697 Fed.Appx. 701 (Fed. Cir. Sept. 18, 2017). At the
time of this decision, the period to appeal the Federal Circuit decision has
not expired. Patent Owner notes additional related patents (U.S. Patent Nos.
8,319,845, 8,610,786, and 8,750,784) have issued that share a common
priority claim with the ’549 patent. App. Br. vi, xxxv. Also, two patent
applications (U.S. Application Nos. 14/186,480 and 14/032,683) are
currently pending that share a common priority claim with the ’549 patent.
Id.
Requester cites four inter partes reexaminations (95/001,566;
95/001,567; 95/001,568; and 95/002,393) involving U.S. Patents 7,620,426;
7,376,388; 7,826,877; and 8,090,321 that claim the benefit of the application
from which the ’549 patent issued, namely Application No. 09/708,776. Id.
According to Requester, all claims in the ’426, ’388, and ’877 patents were
cancelled in the ’1566, ’1567, and ’1568 reexaminations, and all claims of
the ’321 patent are currently rejected in the ’2393 reexamination. Id.
Additionally, we rendered decisions in an appeal to this Board in the
’1567 reexamination involving the ’388 patent (subject to a § 101
invalidation by the District of New Mexico) further finding the pending
claims invalid based on other grounds. See MLB Adv. Media, L.P. v. Front
Row Techs., No. 2013-008104 (Jan. 8, 2014) (“MLB I”) (reversing the
Examiner’s decision to not reject claims as obvious over various prior art
references); see also MLB Adv. Media, L.P. v. Front Row Techs., No. 2015-
007599 (Sept. 16, 2015) (“MLB II”) (affirming Examiner’s written
description, indefiniteness, and obviousness rejections after prosecution
reopened following the MLB I decision).
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Finally, inter partes review of the ’027 patent (subject to a § 101
invalidation by the District of New Mexico) was instituted on October 3,
2017, on prior art grounds under 35 U.S.C. § 103 in IPR2017-01127.

THE APPEALED REJECTION
The Examiner rejected claims 1, 2, 5–86, 88, 92–96, 98, 100, 102, and
103 under 35 U.S.C. § 112, first paragraph for failing to comply with the
written description requirement. RAN 31–35.2

PROCEDURAL MATTER
At the outset, we address a procedural matter. As noted previously,
Patent Owner limited the appeal solely to the Examiner’s written description
rejection of claims 26 and 44–46 and, in particular, two issues in connection
with that rejection corresponding to Issues 3G and 3H on page 34 of the
RAN. See Notice of Appeal filed May 10, 2016, at 2. Accord App. Br. i, 7,
16; Resp. Br. 5; Reb. Br. 2.
Because the scope of the appeal is limited to these two contested
aspects of the Examiner’s written description rejection, the Examiner’s other
rejections summarized on pages 5 to 14 of the RAN are uncontested and,
therefore, summarily sustained.

2 Although Patent Owner appeals only the Examiner’s written description
rejection of claims 26 and 44–46 corresponding to Issues 3G and 3H on page
34 of the RAN (App. Br. i, 7, 16), we nonetheless summarize all claims
rejected under § 112’s written description requirement on pages 31–35 of the
RAN for clarity and brevity.
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Requester, however, proposes additional grounds of rejection based
on enablement and obviousness (Resp. Br. 15–21) that were not raised in the
Appeal Brief, and were not considered by the Examiner in connection with
this appeal. Ans. 2 (citing 37 C.F.R. § 41.68(a)(3)). To be sure, this rule
limits Respondent Briefs to issues raised in the Appeal Brief as the
Examiner and Patent Owner indicate. Ans. 2; Reb. Br. 11. But as an
appellee, Requester has a right to defend the correctness of the Examiner’s
unpatentability decision on any ground that is supported by the record,
regardless of whether Patent Owner raised the argument. See Tempo
Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973, 979 (Fed. Cir. 2014) (citing
Rexnord Industries, LLC v. Kappos, 705 F.3d 1347, 1356 (Fed. Cir. 2013)
(“On judicial review, the correctness of the decision appealed from can be
defended by the appellee on any ground that is supported by the record,
whether or not the appellant raised the argument.”)).3
Nevertheless, because we find no error in the Examiner’s written
description rejection for the reasons indicated below, we need not reach the
merits of the alternative enablement and obviousness grounds proposed by
Requester (Resp. Br. 15–21), for they are merely cumulative to the

3 Patent Owner’s reliance on a non-precedential Board decision, Superior
Comm’ns Inc. v. Volstar Techs., Inc., No. 2014-007294 (PTAB July 23,
2015), to support the alleged impropriety of the additional proposed grounds
of rejection (Reb. Br. 11–12) is unavailing. Not only is that non-
precedential opinion not binding on this panel, it is inapposite because that
case involved the impropriety of submitting new evidence in a rehearing of
a Board decision which is not the case here.

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Examiner’s unpatentability decision based on other grounds. See In re
Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009) (holding that obviousness
rejections need not be reached upon affirming a rejection of all claims as
anticipated); Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.
1984) (approving ITC’s determination based on a single dispositive issue,
and not reaching other issues not decided by the lower tribunal).

THE APPEALED WRITTEN DESCRIPTION REJECTION
As noted previously, the Examiner rejects claims 1, 2, 5–86, 88, 92–
96, 98, 100, 102, and 103 under 35 U.S.C. § 112, first paragraph for failing
to comply with the written description requirement. RAN 31–35. In so
rejecting claims 26 and 44–46 (which is the sole basis for this appeal), the
Examiner incorporates pages 13 to 15 of Requester’s comments filed
October 8, 2015 (“TPR Oct. 2015 Comments”) by reference. RAN 34.
In those incorporated comments, the Examiner finds that there is no
support for the recited packet-based data network being selectable by the
user from the group of (1) a wireless LAN (WLAN), and (2) at least one
cellular communications network. TPR Oct. 2015 Comments 13–15. In
particular, the Examiner finds that there is no support for the recited
combination of a WLAN and cellular network, let alone that these networks
are selectable by a user as claimed. Id. Requester concurs with these
findings. Resp. Br. 7–15.
Patent Owner argues that claims 26 and 44–46 have ample written
description support in the Specification for a WLAN and cellular network.
App. Br. 7–16; Reb. Br. 4–8. Patent Owner adds that the Specification also
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amply supports the recited user-selectable network. App. Br. 16–24; Reb.
Br. 8–11.

ISSUE
Has the Examiner erred in rejecting claims 26 and 44–46 under § 112,
first paragraph by finding that these claims fail to comply with the written
description requirement? This issue turns on whether Patent Owner’s
original disclosure conveys with reasonable clarity that Patent Owner
possessed the recited packet-based data network being selectable by the user
from the group of (1) a WLAN, and (2) at least one cellular communications
network (the “user-selectability limitation”).

ANALYSIS
We begin by noting that the written description requirement under
§ 112, first paragraph requires that Patent Owner’s original disclosure
reasonably conveys possession of the claimed invention. See Ariad
Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
banc). This original disclosure, however, is not necessarily reflected in an
issued patent whose content is subject to change during prosecution of its
corresponding application. Therefore, Patent Owner’s reliance on the ’549
patent disclosure to show written description support for the disputed
limitations (App. Br. 8–24; Reb. Br. 6–11), while relevant, is nevertheless
not dispositive because these citations do not necessarily reflect the ’549
patent original disclosure, namely that of its underlying application, Serial
No. 09/708,776 filed November 8, 2000 (“the ’776 application”). We,
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therefore, refer to the ’776 application in connection with the written
description rejection unless otherwise indicated.
As noted above, representative independent claim 44 recites, in
pertinent part, a packet-based data network selectable by the user from the
group of (1) a WLAN, and (2) at least one cellular communications network.
Although claim 44 does not require that either network in this particular
group actually be selected by the user, both networks must nevertheless be
selectable by that user (i.e., capable of selection).
Unlike at least one other term,4 the Specification does not define the
term “selectable.” Accordingly, we construe the term with its plain
meaning. The term “select” is defined, in pertinent part, as “chosen from a
number or group by fitness or preference.” MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 1058 (10th ed. 1993).
Given this plain meaning, then, both the WLAN and cellular network
in claim 44 must be selectable by the user, that is, capable of being chosen
by the user from the recited group of those networks by fitness or
preference. Patent Owner proposed a consistent meaning previously in the
record. See Patent Owner’s Amendment and Remarks, filed March 30,
2015, at 1–2 (“Support for allowing the user to select between a wireless
LAN and cellular network: . . . “) (emphasis added) and (“Allowing the use
to control “how” the user receives data necessitates the user selecting
between the disclosed wireless network types.”) (second emphasis added).
In light of this construction, we agree with the Examiner and
Requester that the original disclosure does reasonably convey to ordinarily

4 See, e.g., Spec. 25 (defining the term “module”).
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skilled artisans that Patent Owner possessed claim 44’s user-selectability
limitation as of the filing date. See Ariad, 598 F.3d at 1351. According to
Patent Owner, claim 44 does not recite a combination of a WLAN and
cellular network, but rather a group of networks that include a WLAN and
cellular network, both of which are selectable by the user. Reb. Br. 5.
Notably, Patent Owner acknowledges that the phrase “group of a wireless
LAN and at least one cellular communications network” is not found
verbatim in the Specification, but nonetheless contends that the limitation is
described in sufficient detail in various places in the Specification. Reb. Br.
5–7.
A key aspect of Patent Owner’s position is that wireless gateway 124
in Figure 8 is a WLAN, and wireless network 152 in Figure 9 is a cellular
network. Reb. Br. 9. Accord App. Br. 9–10 (arguing that an ordinarily
skilled artisan would understand that a wireless network can be a cellular
network, and that a wireless gateway can be a WLAN).
Wireless gateway 124 is shown in Patent Owner’s original Figure 8
reproduced below:
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Original Figure 8 showing wireless gateway 124

Notably, wireless gateway 124 may be configured as an access point
for a WLAN. Spec. 35.5
Wireless network 152 is shown in Patent Owner’s original Figure 9
reproduced below:

5 As noted previously, we refer to the Specification of the ’776 application
(“Spec.”) in connection with the written description rejection.
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Original Figure 9 showing wireless network 152

Wireless network 152, may be, for example, implemented according
to a variety of wireless protocols, including, cellular, Bluetooth, and radio-
frequency (RF) or direct infrared (IR) communications. Spec. 40. In
addition, wireless network 152 may be implemented as a single network
type (e.g., Bluetooth) or a network based on a combination of network types
that are shown in Figure 10 reproduced below. Spec. 40–41. Wireless
network 152 alternatively “may be configured as a proprietary wireless
Intranet/Internet providing other data accessible by patrons through their
hand held devices.” Spec. 62.

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Original Figure 10 showing types of networks associated with wireless
network 152

As the Specification explains, some types of networks are cellular,
namely Cellular Digital Packet Data Network (CDPD) 154 and Time
Division Multiple Access (TDMA) 166. See Spec. 41, 45–46 (“A digital
cellular communications system that utilizes TDMA typically assigns 10
timeslots for each frequency channel.”) (emphasis added).
The clear import of Figures 8 through 10 and its corresponding
discussion is that digital data can be received wirelessly via either (1) a
WLAN (the wireless gateway 124 of Figure 8), or (2) a cellular network (the
wireless network 152 of Figure 9). Moreover, not only does Figure 10 show
two cellular networks used in connection with wireless network 152 as noted
above, it also shows a Bluetooth Personal Area Network 156 that can also be
used either alone or combined with other networks—including the cellular
networks. See Spec. 40–41 (“Wireless network 152 can be implemented as
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a single network type (e.g., Bluetooth) or a network based on a combination
of network types (e.g., GSM, CDMA, etc.).”) (emphases added).
Our emphasis on “Personal Area Network” underscores that it could
also be considered a WLAN despite its limited range. See Spec. 42 (noting
that Bluetooth is a wireless technology whose range can be 100 “M”
(meters)). Therefore, given the teachings on pages 40 and 41 of the original
Specification, ordinarily skilled artisans would understand that wireless
network 152 in Figure 9 can be a WLAN, a cellular network, or a
combination of a WLAN and a cellular network.
But even assuming, without deciding, that these networks are
selectable, that does not mean that they are necessarily selectable by the user
as claimed. In fact, the original disclosure says nothing about this particular
user network selection capability recited in the claim. Although the written
description requirement under § 112 does not demand any particular form of
disclosure or require a verbatim recitation, a description that merely renders
the invention obvious does not satisfy the requirement. Ariad, 598 F.3d at
1352.
As Dr. Min explains, the selection of wireless network in the ’549
patent is not done by the user, but rather is determined at the transmitter
side. Second Declaration of Paul S. Min, Ph.D., dated Apr. 29, 2015 (“Min
Decl. II”) ¶¶ 13–14.6 This testimony is not persuasively rebutted apart from

6 Patent Owner’s contention that reliance on Dr. Min’s testimony is
improper because the Examiner allegedly did not base the appealed
rejections on that testimony (Reb. Br. 10) is unavailing. As noted
previously, the Examiner’s written description rejection of claims 26 and
44–46 incorporates pages 13 to 15 of Requester’s comments filed October 8,
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attorney argument that has little probative value. See In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997); see also Enzo Biochem, Inc. v. Gen-Probe, Inc.,
424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no substitute
for evidence.”). That Dr. Min explains that the user-selectable network
limitation would require a detailed teaching for ordinarily skilled artisans to
practice this limitation—a teaching that the ’549 patent lacks (Min Decl. II ¶
11)—only further underscores the lack of written description for this
limitation.
Nevertheless, even assuming, without deciding, that the recited user
selection would have been obvious from the originally-disclosed
functionality associated with Figures 8 through 10, obviousness does not
satisfy the written description requirement. Ariad, 598 F.3d at 1352.
Accord Resp. Br. 13 (noting this point). Therefore, to the extent that Patent
Owner contends that the recited user selection capability would have been
obvious from the relied-upon passages from the original disclosure, such a
position is unavailing in light of Ariad.
That the Background of the Invention on page 7 of the original
Specification notes, quite generally, that, unlike analog technology, digital
technology allows the user to control what, when, and how the user receives
and manipulates certain information does not change our conclusion. This
distinguishing of conventional analog and digital technologies appears in the
Background section—not in the detailed description of the invention, as

2015 by reference. RAN 34. Those incorporated comments refer explicitly
to paragraphs 10 to 16 of the second Min Declaration. See TPR Oct. 2015
Comments 14–15. Moreover, the Examiner considered all declarations in
this proceeding in their entirety, including those from Dr. Min. RAN 14.
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Requester indicates. Resp. Br. 12. Nevertheless, even assuming, without
deciding, that (1) this statement in the Background section somehow applies
to the functionality disclosed in the detailed description of the invention, and
(2) a user’s controlling how information is received involves some form of
user input as Patent Owner contends (App. Br. 17–18; Reb. Br. 8), the
language is insufficient to reasonably convey possession of the idea that a
user can necessarily select a particular network to receive this information,
let alone select between a WLAN or cellular bidirectional packet-based
network as claimed. Accord Min Decl. II ¶ 10 (“I disagree that the use of
‘digital technology’ alone somehow indicates that the ’549 patent discloses a
user-selectable network.”).
And even assuming, without deciding, that a particular network was
necessarily selected to deliver information to the user responsive to user
input (a finding that has not been substantiated on this record), the language
is insufficient to convey possession of the idea that the user—rather than the
system—performs that selection. Accord Min Decl. II ¶ 13 (“[T]he ’549
patent is clear that the selection of wireless network is not done by the
user.”); id. ¶ 14 (“[A] particular wireless network to be used [in the ’549
patent] depends only on which network the transmitter sends the video data
to. In other words, the particular network on which video data is carried is
determined at the transmitter side.”) (emphases added). In short, the
Specification does not reasonably convey that the user is aware—or even
capable of knowing—that a particular image selection necessarily changes a
network.
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To be sure, the handheld device 11 in original Figure 1 can be, among
other things, a combination cellular telephone/Personal Digital Assistant
(PDA) device that receives and processes data to display moving images as
Patent Owner indicates (App. Br. 19–20; Reb. Br. 6). See Spec. 23–24. But
to say that user input, such as manipulating images on a display, necessarily
selects a data transmission through either a cellular network or WLAN, or
where the user necessarily selects one of those particular networks via that
input as Patent Owner contends (App. Br. 21–24; Reb. Br. 8–11), at best,
requires ordinarily skilled artisans to infer such a user selection based on this
input. Not only is such an inference speculative and unsubstantiated, it runs
counter to Dr. Min’s testimony explaining that (1) the disclosed system—not
the user—selects the network on the transmitter side, and (2) the ’549 patent
does not teach the user-selectable network limitation. See Min Decl. II
¶¶ 10–14.
Nevertheless, even assuming, without deciding, that ordinarily skilled
artisans could somehow infer from the original disclosure that the user
selects either a WLAN or cellular network based on user input as Patent
Owner contends, such an inference would have, at best, been obvious from
the original disclosure. But even assuming, without deciding, that this is the
case, obviousness still does not satisfy the written description requirement.
See Ariad, 598 F.3d at 1352.
We reach this conclusion despite the user’s ability to order products or
services offered by venue operators during events by merely pressing a
button as Patent Owner indicates. App. Br. 22–24; Reb. Br. 10–11. This
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functionality is described in connection with an embodiment involving a
Venue Positioning System (VPS). See Spec. 58–59.
In the embodiment of Figure 18, a handheld device 703 is located near
VPS devices 702–708 in a stadium. Id. If the user of the handheld device
wants to order a product (e.g., a hot dog) or service offered by venue
operators during the event, the user merely presses an associated button
displayed on the handheld device’s touch screen user interface. Id. 59–60.
A signal is then transmitted to/through the (1) VPS device, (2) wireless
network, or (3) wireless gateway. Id. 60.
Although this signal transmission via one of these three networks is
triggered by user input, namely by the user pressing a button on the
handheld device, the particular network used for that transmission is not
necessarily selectable by the user, let alone selectable from the group of a
WLAN and at least one cellular network as claimed. Accord Resp. Br. 15
(noting this point). Patent Owner contends that because the system selects,
activates, or implements the VPS network instead of a cellular network
responsive to user input, namely by ordering a hot dog, the network is said
to be selected responsive to user input and, therefore, selectable by the user.
App. Br. 23–24; Reb. Br. 11.
This contention strains reasonable limits on this record. This
particular portion of the Specification does not convey that VPS, a wireless
network, or a wireless gateway are simultaneous options that might be
separately selectable, as opposed to merely three different alternative
networks that the venue may provide. Notably, Patent Owner acknowledges
that, even if selectable, it is the system—not the user—that selects a
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particular network in this embodiment. See App. Br. 23–24 (“[T]he user
input is the ordering of the hot dog, and in response to that user input, the
claimed system selects, activates, or implements the VPS network, instead of
the cellular network.”); see also Reb. Br. 11 (“The user presses the button.
The button causes the handheld device to select one of many networks to
connect on.”).
To suggest that this functionality provides the ability for a user to
select a particular network, at best, requires ordinarily skilled artisans to
infer such a network selection capability. Such an inference, however,
would have, at best, been obvious from the original disclosure. Even
assuming, without deciding, that this is the case, obviousness still does not
satisfy the written description requirement. See Ariad, 598 F.3d at 1352.
We reach this conclusion despite the fact that users may own the
handheld devices used in this embodiment. See Spec. 62–63. In this case,
the user is provided with a temporary code permitting the user to access the
wireless network associated with the venue, such as wireless network 152,
which may be a proprietary wireless Intranet/Internet providing other data
accessible via users’ handheld devices. Id.
Although this functionality provides the ability for a user to access a
wireless network, to suggest that this functionality provides the ability to
select a particular network from the group of a WLAN and at least one
cellular network as Patent Owner contends (App. Br. 20–21), at best,
requires ordinarily skilled artisans to infer such a network selection
capability. Such an inference, however, would have, at best, been obvious
from the original disclosure. Even assuming, without deciding, that this is
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the case, obviousness still does not satisfy the written description
requirement. See Ariad, 598 F.3d at 1352.
Lastly, we find unavailing Patent Owner’s reliance on the
functionality of Figure 20 to show possession of the user-selectability
limitation. See App. Br. 21–22; Reb. Br. 10–11. As shown in Figure 4, this
functionality enables users to select a particular tuner via touch screen icons
or areas 63, 65, 67, 69, where each tuner has a frequency corresponding to
that of a particular camera’s transmitter to enable viewing images from that
camera. See Spec. 29–30, 63–64; Figs. 4, 20. Notably, the tuners may be
linked to a particular cameras focusing on a venue activity, or to a wireless
gateway or wireless network transmission. Spec. 63.
Although this functionality provides the ability for a user to select a
particular tuner, and that the tuners can be linked to a wireless gateway or
network transmission, to suggest that this functionality provides the ability
to select a particular network from the group of a WLAN and at least one
cellular network as Patent Owner contends (App. Br. 21–22; Reb. Br. 10–
11), at best, requires ordinarily skilled artisans to infer such a network
selection capability. Such an inference, however, would have, at best, been
obvious from the original disclosure. Even assuming, without deciding, that
this is the case, obviousness still does not satisfy the written description
requirement. See Ariad, 598 F.3d at 1352. Accord Resp. Br. 14 (“There is
no suggestion that the [’549 patent’s] tuner is used to select between
different network types.”).
To be sure, the functionality of this embodiment is not limited to
tuners in the handheld device as Patent Owner indicates (Reb. Br. 11). See
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21
Spec. 63. Rather, the handheld device could have some other undisclosed
“simultaneous signal receiving capability” to support other previously-
described embodiments. Id. But that general and unspecific capability falls
short of necessarily providing the ability for the user to select a particular
network, let alone from the group of a WLAN and at least one cellular
network as claimed. At best, this functionality requires ordinarily skilled
artisans to infer such a network selection capability. Such an inference,
however, would have, at best, been obvious from the original disclosure.
Even assuming, without deciding, that this is the case, obviousness still does
not satisfy the written description requirement. See Ariad, 598 F.3d at 1352.
Therefore, we are not persuaded of error in the Examiner’s written
description rejection of claim 44, as well as the Examiner’s written
description rejection of claims 1, 2, 5–43, 45–86, 88, 92–96, 98, 100, 102,
and 103 not argued separately with particularity.

CONCLUSION
The Examiner did not err in rejecting 1, 2, 5–86, 88, 92–96, 98, 100,
102, and 103 under 35 U.S.C. § 112, first paragraph.
We summarily sustain the Examiner’s other uncontested rejections
summarized on pages 5 to 14 of the RAN.
We do not reach the additional enablement and obviousness grounds
of rejection proposed by Requester (Resp. Br. 15–21).

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DECISION
The Examiner’s decision rejecting claims 1–100, 102, and 103 is
affirmed.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED

Foster Pepper PLLC
1111 3rd Avenue
Suite 3000
Seattle, WA 98101-3296

Third Party Requester:

George C. Beck
Foley & Lardner, LLP
3000 K Street, NW
Suite 500
Washington, DC 20007