Ex Parte 7167503 et al

Patent Trial and Appeal Board

Feb 28, 2017

90013627 (P.T.A.B. Feb. 28, 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.
31AE-220012 9358
EXAMINER
GE, YUZHEN
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
90/013,627 11/12/2015 7167503
36139 7590
EPSTEIN & GERKEN
14006 Glen Mill Road
ROCKVILLE, MD 20850
03/01/2017 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
Ex parte LINEX TECHNOLOGIES, INC.
Patent Owner and Appellant
Appeal 2017-001495
Reexamination Control 90/013,627
United States Patent 7,167,503 B2
Technology Center 3900
Before JAMES T. MOORE, JOHN A. JEFFERY, and JENNIFER L.
McKEOWN, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
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DECISION ON APPEAL
Appellant appeals under 35 U.S.C. §§ 134 and 306 the Examiner’s
decision to reject claims 1—40. We have jurisdiction under 35 U.S.C. §§ 134
and 306. We affirm, but designate our affirmance as a new ground of
rejection.
STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
on November 12, 2015 of United States Patent 7,167,503 B2 (“the ’503
patent”), issued to Schilling et al. on January 23, 2007.
The ’503 patent describes a wireless distributed network for reducing
power and power variations when transmitting packets having spread-
spectrum modulation. Specifically, the system includes remote stations and
nodes, where a node’s spread-spectrum transceiver communicates with the
remote stations over radio waves. See generally ’503 patent, Abstract; col.
2,1. 20 — col. 3,1. 29. Claim 1 is illustrative of the invention and is
reproduced below:
1. A distributed network, spread-spectrum system, comprising:
a plurality of remote stations;
a plurality of fixed nodes forming the distributed network for covering
a particular geographic area, each node in the plurality of fixed nodes
including a plurality of transmitters and receivers for communicating, with
one or more remote stations of the plurality of remote stations, using packets
having a destination address and modulated with spread-spectrum
modulation, with each packet transmitted using radio waves, each
fixed, node covering a micro-cell having a radius less than one mile and
including a store-and-forward subsystem and a flow-control sub-system and
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being capable of communicating with two or more other nodes of the
plurality of fixed nodes in the distributed network;
the plurality of remote stations being capable of accessing using radio
waves, a first node in the distributed network, employing traffic information
transmitted by the plurality of fixed nodes, and transmitting packets only to
the first node thereby using minimum power; and
the first node within the plurality of fixed nodes for receiving the
plurality of packets from the remote station, with the first node capable of
communicating a packet to a second node within the plurality of nodes, with
the second node selected from two or more nodes capable of communicating
with the first node.
RELATED PROCEEDINGS
This appeal is said to be related to various pending proceedings. On
page 3 of the Appeal Brief, Appellant informs us of two civil proceedings
and an ex parte reexamination proceeding (Control No. 90/013,418) for U.S.
Patent 6,493,377 B2 (“the ’377 patent”), the application of which is a parent
to that of the ’503 patent.
In an appeal in the related reexamination proceeding, we affirmed the
Examiner’s obviousness rejection of the ’377 patent claims over prior art
references that are also at issue here, namely Ricochet, Young, Kahn, and
Pursley 2 that are cited in full below. See Ex parte Linex Technologies, Inc.,
No. 2016-007605 (PTAB Sept. 21, 2016) (“’377 Bd. Dec.”), rehg denied
(PTAB Jan. 27, 2017) (“’377 Bd. Reh’g Dec.”).
THE REJECTIONS
The Examiner rejected claims 1, 3, 5, 7, 9, 11, 13, 33, and 35 under 35
U.S.C. § 103(a) as unpatentable over Metricom, Inc., Description of
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Ricochet Technology, available at web.archive.org (1999) (“Ricochet”),
Young (US 5,719,868; Feb. 17, 1998), and Robert E. Kahn et al., Advances
in Packet Radio Technology, 66 IEEE Proc. 1468—96 (1978) (“Kahn”).
Final Act. 5—12.1
The Examiner rejected claims 2, 4, 6, 8, 10, 12, 14—32, 34, and 36-40
under 35 U.S.C. § 103(a) as unpatentable over Ricochet, Young, Kahn, and
Michael B. Pursley et al., Routing for Multimedia Traffic in Wireless
Frequency-Hop Communication Networks, 17 IEEE J. Sel. Areas in Comm.
784—92 (1999) (“Pursley 2”). Final Act. 12-23.
The Examiner rejected claims 33 and 35 under 35 U.S.C. § 103(a) as
unpatentable over Ricochet, Young, Kahn, and Meier (US 5,394,436; Feb.
28, 1995). Final Act. 23-24.
SUBSTANTIAL NEW QUESTION OF PATENTABILITY (SNQ)
Appellant argues that an SNQ was not raised in this proceeding
because, among other things, Ricochet was cited as a primary reference in a
previous ex parte reexamination proceeding involving the ’503 patent
(90/013,400). App. Br. 6—8; Reply Br. 17—27.2 According to Appellant,
using Ricochet again as a primary reference in this proceeding should be
1 Throughout this opinion, we refer to (1) the Final Rejection mailed March
30, 2016 (“Final Act.”); (2) the Appeal Brief filed July 29, 2016 (“App.
Br.”); (3) the Examiner’s Answer mailed August 22, 2016 (“Ans.”); and (4)
the Reply Brief filed October 24, 2016 (“Reply Br.”).
2 The Examiner notes that Appellant requested reconsideration of the SNQ
issue on May 30, 2016 responsive to the Examiner’s Final Rejection, and the
Examiner responded to this request in an Advisory Action mailed June 7,
2016 (“Adv. Act.”). Ans. 6 (citing MPEP § 2274(VI)).
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considered “old art” and, therefore, precluded from being considered in this
matter. App. Br. 8; Reply Br. 17—27. Appellant adds that no new light was
shed by Kahn, Young, or Meier on selecting the first node, particularly given
the Examiner’s allegedly erroneous construction of the recited “traffic
information.” App. Br. 9; Reply Br. 20—21.
Although the Examiner acknowledges that Ricochet was applied in
earlier proceedings, Ricochet is nevertheless said to be interpreted in a new
light or a different way in this proceeding when considered with the other
cited references, thus justifying the SNQ determination. Ans. 5—6 (citing
MPEP § 2216). Accord Adv. Act. 4.
On this record, we see no error in the Examiner’s SNQ determination.
Although there is some overlap in the references cited in the above-noted
reexamination proceedings identified in the Reply Brief that are said to
preclude an SNQ (see App. Br. 8; Reply Br. 22), the rejections are not the
same, for they involve different claims, and rely on different evidence,
findings, and conclusions. Moreover, these rejections are based on different
combinations of prior art references—a distinction that further establishes
that these rejections constitute different grounds of rejection despite citing
identical references. See In re McDaniel, 293 F.3d 1379, 1384 (Fed. Cir.
2002) (noting that an obviousness rejection that added a prior art reference
(Grot) to a combination of other prior art references did not share a common
ground of rejection with claims rejected as obvious over those other
references).
As the Examiner explained during prosecution, the Ricochet reference
is presented or viewed in a new light or different way in this proceeding,
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namely with respect to, among other things, (1) a Ricochet modem being
viewed as part of a remote station; (2) whether “traffic information” includes
information regarding routing and whether the next nearest radio is busy or
inoperative; and (3) whether packets are transmitted only to the first node
using minimum power. See Office Action Ordering Reexamination mailed
Dec. 8, 2015, at 13—15. Because of these new and non-cumulative
teachings, as well as those in various other cited prior art references, an SNQ
was deemed to be raised and, therefore, reexamination was ordered. Id. at
13—17. On this record, we see no error in these findings and conclusions.
Accordingly, we are unpersuaded of error in the Examiner’s SNQ
determination.
THE REJECTION OVER RICOCHET, YOUNG, AND KAHN
The Examiner finds that Ricochet discloses many recited elements of
claim 1 except for (1) each fixed node including plural transceivers, and (2)
each fixed node using packets having a destination address, but cites Young
and Kahn, respectively, for teaching these features in concluding that the
claim would have been obvious. Final Act. 9-10.
Appellant argues, among other things, that the cited prior art does not
disclose using plural transceivers at each fixed node as claimed. App. Br.
17—31, 42^43; Reply Br. 30-48, 106-08. Appellant also contends that the
cited prior art does not disclose a remote station that selects and accesses a
first node using traffic information transmitted by plural fixed nodes. App.
Br. 31—44; Reply Br. 13—15, 49-71, 108—09. Appellant adds that the cited
prior art does not disclose each node that desires to forward a packet selects
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a next node from multiple nodes transmitting traffic information. App. Br.
31—44; Reply Br. 15—17, 71—82, 109—11. Lastly, Appellant contends that
skilled artisans would not have combined the cited references as the
Examiner proposes because (1) Young, Ricochet, and Meier are non-
analogous art, and (2) the proposed combination requires redesigning
Ricochet’s system, thus impacting Ricochet’s principle of operation.
App. Br. 10-17; Reply Br. 27—29.
ISSUES
I. Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Ricochet, Young, and Kahn collectively would have taught or suggested
a distributed network, spread-spectrum system where (1) each fixed node
includes plural transceivers; (2) plural remote stations are capable of
accessing, using radio waves, a first node employing traffic information
transmitted by plural fixed nodes, where packets are transmitted only to the
first node; and (3) the first node can communicate a packet to a second fixed
node with the second node selected from plural nodes capable of
communicating with the first node?
II. Is the Examiner’s proposed combination of these references
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion? This issue turns on whether
the proposed combination would destroy Ricochet’s principle of operation,
and whether the cited references constitute analogous art.
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ANALYSIS
As noted previously, the Examiner acknowledges that Ricochet’s
distributed network spread-spectrum system includes a single transceiver at
each fixed node, but lacks plural transceivers at each fixed node. Final Act.
6, 9; Ans. 16. To cure this deficiency, the Examiner cites Young’s teaching
of using radios with multiple transmitters and receivers, including
transceivers. Final Act. 9 (citing Young, col. 2,11. 22—25); Ans. 16. In light
of this teaching, the Examiner concludes that providing plural transceivers in
lieu of a single transceiver at a fixed node in Ricochet would have been
obvious to enable a fixed node to transmit to, or receive from, more than one
node at a time. Final Act. 9; Ans. 16.
Notably, we held on this very issue in the related ex parte
reexamination proceeding for the ’377 patent that it would have been
obvious to combine Ricochet and Young as the Examiner in the related
proceeding proposed to, among other things, increase the number of
communications channels. ’377 Bd. Dec. 10—11. That holding applies here
as well.
As we indicated in our decision in the related proceeding, Ricochet’s
spread-spectrum, packet-switching system uses a mesh architecture where
radio transceivers, called “Microcell Radios,” are typically mounted on
street lights or utility poles, and placed every quarter to half mile in a
checkerboard pattern. Ricochet, at E4, E25.3 Notably, each radio employs
3 Although the Ricochet reference consists of various exhibits labeled
“B5.1” to “B5.9,” the reference is paginated consecutively from pages “El”
to “E27.” For clarity, we refer to Ricochet’s pages consistent with this
numbering scheme.
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162 channels—each of which is 160 kHz wide—over which transmissions
are “spread.” Id.
Given this limited number of channels for a particular transceiver, we
see no reason why additional transceivers could not be provided in Ricochet
as the Examiner proposes to, among other things, expand the number of
channels, particularly given Young’s teaching in column 2, lines 25 and 26
that radios containing multiple transmitters and receivers were known in the
art. Even assuming, without deciding, that Young does not mention these
multi-transceiver radios again either in the cited reference or in later patents
as Appellant contends (Reply Br. 30-31, 34), such silence does not obviate
the fact that the reference nevertheless teaches that multi-transceiver radios
are known in the art, even if this teaching appears only once in the reference.
And even assuming, without deciding, that Young does not enable any
disclosed embodiment using multiple transmitters as Appellant contends
despite its presumption of enablement in that regard (see Reply Br. 30-48,
106-08), that alone is not dispositive. It is well settled that published subject
matter is prior art for all that it teaches in obviousness determinations—even
if the reference itself is not enabling. See In re Antor Media Corp., 689 F.3d
1282, 1292 (Fed. Cir. 2012) (citing Symbol Techs. Inc. v. Opticon Inc., 935
F.2d 1569, 1578 (Fed. Cir. 1991)).
We emphasize obviousness determinations here, for although non-
enabled references cannot anticipate a claimed invention, they nevertheless
may be considered in obviousness determinations, as is the case here. See
Symbol Techs., 935 F.2d at 1578 (“While a reference must enable someone
to practice the invention in order to anticipate under § 102(b), a non-
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enabling reference may quality as prior art for the purpose of determining
obviousness under § 103.”). Therefore, Appellant’s arguments regarding the
cited references’ alleged non-enablement (App. Br. 20-31; Reply Br. 30-48,
106-08) are more germane to anticipation—not obviousness.
In any event, a reference’s teachings are not considered in a vacuum,
but rather considered together with the knowledge of ordinarily skilled
artisans. See In re Paulsen, 30 F.3d 1475, 1480—81 (Fed. Cir. 1994). Cited
references, then, do not have to explain every detail to render a claimed
invention obvious since the reference speaks to those skilled in the art. Id. at
1480.
Here, we see no error in the Examiner’s reliance on Young for the
limited purpose for which it was cited, namely that radios containing
multiple transceivers were known in the art, and that providing multiple
transceivers in lieu of a single transceiver in each of Ricochet’s fixed nodes
would have been obvious to, among other things, increase the number of
channels—a predictable result. See ’377 Bd. Dec 12.
Although the Examiner did not articulate this channel-based rationale
expressly, it was nevertheless articulated by the Examiner in the related
reexamination proceeding which we found persuasive. See id. As we noted
in that proceeding, providing multiple node-based transceivers in Ricochet
as the Examiner proposes would not only realize advantages with respect to
additional channels, but also transceiver diversity and potential backup
capabilities. See ’377 Bd. Reh’g Dec. 7. Because we rely on the
Examiner’s channel-based comb inability rationale here consistent with our
earlier decision, we designate our affirmance as a new ground of rejection.
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Appellant’s arguments regarding Young’s individual shortcomings
(see App. Br. 20-26) do not show nonobviousness where, as here, the
rejection is based on the cited references’ collective teachings. See In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). That Young may
not pertain to spread-spectrum systems as Appellant contends (Reply Br. 26)
is of no consequence here given the limited purpose for which Young was
cited, namely to show that radios containing multiple transceivers were
known in the art, and that providing known multi-transceiver radios in lieu
of single-transceiver radios in Ricochet’s spread-spectrum system would
have been obvious. Final Act. 9; Ans. 16—18.
Nor are we persuaded that the proposed combination results from
impermissible hindsight as Appellant contends. App. Br. 10—13. Appellant
contends that because Ricochet uses a central controller, namely the “Name
Server,” to plan the path of transmitted packets from source to destination,
using multiple transceivers at each node would require altering the use of the
Name Server, thus requiring redesigning the system—a redesign that is said
to be based on impermissible hindsight. App. Br. 12—13.
This argument is unavailing. Ricochet’s Name Server is a database
that monitors all radios and modems on the network, ensuring that they are
authorized for specific areas of access. Ricochet, E7. To this end, the Name
Server validates connections and provides path information to modems,
namely by receiving requests to find radios by name, and returning the
destination network address needed to route packets to them. Ricochet, E4—
E7, E17.
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Despite this involvement of the Name Server for authorization and
path information, Ricochet’s radios and modems nonetheless have key
packet transmission functions independent of the Name Server. For
example, upon receiving an acquisition packet, a radio learns the location of
its neighboring radios and modems. Ricochet, El9—20. When a modem
receives data from a radio, the modem (1) uses the radio’s routing
information to decide which radio to send a packet; (2) polls the radio; and
(3) sends a data packet to the radio upon receiving an “Acknowledge”
(ACK) packet from that radio. Ricochet, E20. Because radios provide their
neighbors with their addresses during acquisition, each radio knows where
every other radio is located. Id. Therefore, packets are routed to radios
progressively closer to their final destination. Id. Notably, each radio can
(1) originate messages; (2) send and receive information; and (3) select
alternate routing paths when other radios are busy or out of service.
Ricochet, E25. So while Ricochet’s modems do not route packets, the radios
do. See Ricochet, El6.
Given this radio-based routing functionality, we are not persuaded that
providing multiple transceivers at a radio-based node in Ricochet would
destroy the principle of Ricochet’s packet routing operation or somehow
render it unsuitable for its intended purpose even assuming, without
deciding, that some system redesign would be needed in light of additional
node-based transceivers as Appellant seems to suggest. App. Br. 12—13.
Not only has Appellant failed to provide persuasive evidence to substantiate
such a theory on this record, Appellant has not shown persuasively that such
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a redesign—if required—would be beyond the level of ordinarily skilled
artisans.
Nevertheless, as the Examiner indicates, the Examiner does not
propose to physically combine Ricochet’s nodes with those of Young, but
rather merely relies on Young for a limited purpose, namely to show that
radios containing multiple transceivers were known in the art, and that
providing known multi-transceiver radios in Ricochet’s spread-spectrum
system would have been obvious. See Ans. 17—18.
It is well settled that “a determination of obviousness based on
teachings from multiple references does not require an actual, physical
substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
2012) (citations omitted). Nor is the test for obviousness whether a
secondary reference’s features can be bodily incorporated into the structure
of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art. Id. And here, the Examiner’s
proposed combination is not based on impermissible hindsight, but rather
predictably uses prior art elements according to their established functions to
yield a predictable result. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
417 (2007).
To the extent that Appellant contends that using multiple transceivers
at each node in Ricochet would somehow yield an unpredictable result,
there is no persuasive evidence on this record to substantiate such a theory.
Accord Ans. 15 (finding that there is no evidence of unpredictability
associated with using multiple transceivers).
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Nor are we persuaded of error in the Examiner’s findings that the
cited references constitute analogous art. Prior art is analogous if it is (1)
from the same field of endeavor as that of Appellant’s invention regardless
of the problem addressed, or (2) reasonably pertinent to the particular
problem with which the inventor is involved. In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004). Here, the Examiner finds that Ricochet and Young4
are not only from the same field of endeavor as the claimed invention, but
also reasonably pertinent to at least some of the inventor’s problems. Ans.
8-12.
In this regard, the Examiner finds that not only is Young classified in
a common communication-based class as that of the ’503 patent, but Young
also manages communication channel resources between nodes in a
distributed network, and, therefore, is in the same field of endeavor as the
claimed invention. Ans. 8—10. The Examiner adds that Young is also
reasonably pertinent to the inventor’s problem of increasing transmitted data
capacity. Ans. 10.
Despite Appellant’s arguments to the contrary (App. Br. 13—17; Reply
Br. 27—29), we see no error in the Examiner’s findings in this regard.
Notably, we held in our earlier decision in the related reexamination
proceeding that the cited references are analogous art—a holding that is
likewise applicable here, for the same references are applied similarly in
4 Although the Examiner also finds that Meier is analogous art, Meier is not
cited in the rejection of claim 1. Therefore, we confine our discussion to
Ricochet and Young with respect to the analogous art issue raised in
connection with the rejection of claim 1, and address Meier’s analogousness
in connection with the rejection of claims 33 and 35.
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obviousness rejections in both proceedings. See ’377 Bd. Dec. 13—14. As
we indicated in our earlier decision, the cited references are in the same field
of endeavor because each cited reference relates to (1) wireless
communication in a distributed network of nodes, and (2) transmission of
packets over the network. Id. (citing Ans. 5—7 in the related proceeding).
We also held that the cited references are reasonably pertinent to Appellant’s
problems pertaining to (1) reducing power levels; (2) increasing network
capacity; and (3) creating a flexible and dynamically adaptable network.
’377 Bd. Dec. 14 (citing Ans. 7—10 in the related proceeding). Because we
rely on those additional findings here consistent with our earlier decision, we
designate our affirmance as a new ground of rejection.
We also see no error in the Examiner’s finding that Ricochet discloses
remote stations, namely Ricochet’s computers and modems, that are capable
of accessing using radio waves, a first node, employing traffic information
transmitted by the fixed nodes, and transmitting packets only to the first
node as claimed. Final Act. 5, 7—8; Ans. 22—27. As emphasized above, a
key aspect of this limitation is the employment of “traffic information”: a
term that Appellant indicates was construed in a related District Court
proceeding as “[information communicated between nodes in routing
packets that indicates the capacity of a node to handle additional packets in
view of, at least, but not limited to, the traffic density at that node.” App.
Br. 9; Reply Br. 52 (quoting the District Court).
Although the Examiner acknowledges this interpretation, the
Examiner nonetheless interprets “traffic information” more broadly as
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“information including ‘node or node memory availability, ’ traffic density,
and signal strength, etc.” Ans. 3—4, 23—24.
On this record, we see no error in the Examiner’s interpretation, at
least to the extent that traffic information can include information regarding
a node’s availability as explained below. Although this limitation was more
narrowly construed by a district court in connection with litigation involving
the ’503 patent, we nevertheless use a different claim construction standard
than that used by the court, namely by giving the terms their broadest
reasonable interpretation in light of the Specification. See In re Am. Acad.
OfSci. Tech. Ctr., 367 F.3d 1359, 1369 (2004). While the court’s
construction informs our understanding of the recited limitations, we
nonetheless find no error in the Examiner’s broader—yet reasonable—
interpretation. See Power Integrations, Inc. v. Lee, 797 F.3d 1318, 1326—27
(Fed. Cir. 2015); see also Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed.
Cir. 2005) (en banc) (citations omitted).
First, despite Appellant’s arguments to the contrary (Reply Br. 50),
we agree with the Examiner that the ’503 patent does not define the term
“traffic information” to so limit its interpretation, unlike the term “local call”
in column 3, lines 10 and 11 whose explicit definition leaves no doubt as to
its meaning. Although the ’503 patent in column six, lines 17 to 19 explains
that “traffic information typically includes traffic density at each of the
nodes and memory availability” (emphasis added), our emphasis on the
qualifier “typically” underscores that while traffic information typically has
these elements, it does not always have them. See Chambers Paperback
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Dictionary 2003 (2003) (defining “typical” as “having or showing the
usual characteristics”) (emphasis added).
Therefore, we see no error in the Examiner’s interpreting the term
“traffic information” as not limited to traffic density and memory
availability, but can also include node availability information, particularly
in view of the ’503 patent’s describing sending packets to particular nodes
based on their availability for routing purposes. Ans. 3—4, 23—25 (citing the
’503 patent, col. 6,11. 45—48).
With this interpretation, we see no error in the Examiner’s finding
that Ricochet’s acknowledge (“ACK”) packet sent from a radio to a modem
upon polling on page E20 teaches at least one form of “traffic information”
given the scope and breadth of the term, particularly since this information
indicates node availability and is used as a basis for routing as the Examiner
indicates. See Ans. 23—25 (interpreting that the “ACK” packets received by
Ricochet’s modem as containing traffic or routing information).
Although the “ACK” packet itself does not specify the nature or
extent of a radio’s traffic, this information can nonetheless be
instantaneously derived from this packet, at least to the extent that a radio’s
availability indicated by the “ACK” packet means that the radio is not
communicating with another modem (i.e., there is no current traffic between
that radio and another modem). See Ricochet, E20 (“If [the modem] does
not receive the ‘ACK’ because another Ricochet modem already is
communicating with the radio, the Ricochet modem simply tries another
radio.”) (emphasis added). Therefore, the absence of traffic indicated by the
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received “ACK” packet reasonably constitutes “traffic information” under
the term’s broadest reasonable interpretation.
Appellant’s contention that Ricochet’s “ACK” packet is not traffic
information because, among other things, it does not convey a node’s
congestion, lower latency, etc. (Reply Br. 49-51) is unavailing and not
commensurate with the scope of the claim. Claim differentiation principles
further underscore this point. Because traffic congestion is recited in
dependent claim 34 further limiting the recited traffic information of claim
1, the traffic information in claim 1 must, therefore, cover something other
than traffic congestion; otherwise, claim 34 would be superfluous. See Free
Motion Fitness, Inc. v. CybexInt’l, Inc., 423 F.3d 1343, 1351 (Fed. Cir.
2005). Similar considerations apply for dependent claims 33 and 35 which
also further limit the traffic information recited in claim 1.
Nor are we persuaded of error in the Examiner’s finding that
Ricochet’s remote stations (modems) are at least capable of accessing, using
radio waves, a first node (radio) in the network, employing traffic
information transmitted by the fixed nodes, and transmitting packets only to
the first node, as claimed. Ans. 26—27. As emphasized above and as the
Examiner indicates (Ans. 26), claim 1 does not recite that the remote station
is capable of selecting a first node, but rather is merely capable of accessing
a first node. Therefore, Appellant’s arguments regarding Ricochet’s
modems’ alleged inability to select a first node from multiple nodes (see
App. Br. 31, 34, 43; Reply Br. 14, 49, 61, 71) are unavailing and not
commensurate with the scope of the claim.
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As noted previously and by the Examiner (Ans. 26—27), when a
Ricochet modem receives data from a radio, the modem (1) uses the radio’s
routing information to decide which radio to send a packet; (2) polls the
radio; and (3) sends a data packet to the radio upon receiving an “ACK”
packet from that radio. Ricochet, E20. This functionality at least suggests
that the remote stations (modems) are capable of accessing—and even
selecting—a first node employing traffic information, and also can transmit
packets only to that node as claimed. Accord Ans. 26—27 (noting that
Ricochet modem accesses and selects a non-busy or available node).
To be sure, Ricochet’s modems do not route packets, unlike the
radios. See Ricochet, El 6. Nevertheless, despite this lack of routing
capability, and the Name Server’s involvement for authorization and path
information (see Ricochet, E4—E7, El7), Ricochet’s modems nonetheless
have key packet transmission functions that fully meet the recited capability
to (1) access a first radio-based node, and (2) transmit packets only to that
node. Appellant’s arguments to the contrary (App. Br. 31—44; Reply Br. 13—
15, 49-71, 108-09) are unavailing and not commensurate with the scope of
the claim.
We also see no error in the Examiner’s reliance on Ricochet for at
least suggesting that the first node that receives the packets from the remote
station is capable of communicating a packet to a second node that is
selected from two or more nodes. Final Act. 8; Ans. 27—30. As the
Examiner indicates, claim 1 does not specify what selects the second node,
let alone that any information is used as a basis for that selection. Ans. 28—
29. Therefore, to the extent that Appellant contends that Ricochet’s radio-
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based nodes fail to select other nodes (see App. Br. 43, 71—74, 80—81), such
arguments are not commensurate with the scope of the claim. And even
assuming, without deciding, that a path is predetermined by a central
controller, such as Ricochet’s Name Server, as Appellants contends (App.
Br. 43), a second node would still be selected from two or more nodes in this
scenario, albeit preselected.
In any event, we see no error in the Examiner’s reliance on Ricochet’s
radio-based nodes’ ability to route packets to other such nodes as noted
previously. As the Examiner indicates (Ans. 28), each radio provides its
neighbors with its address during acquisition, so that each radio knows
where every other radio is located such that packets are routed to radios
progressively closer to their final destination. Ricochet, E20. That each
radio can (1) originate messages; (2) send and receive information; and (3)
select alternate routing paths when other radios are busy or out of service
(Ricochet, E25) only bolsters Ricochet’s node-to-node packet routing
capability which at least suggests the recited functionality in claim 1 ’s last
clause.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 3, 5, 7, 9, 11, 13, 33, and 35 not argued separately with
particularity.
THE REJECTION OVER RICOCHET, YOUNG, KAHN,
AND PURSLEY 2
We also sustain the Examiner’s rejection of claims 2, 4, 6, 8, 10, 12,
14—32, 34, and 36-40 over Ricochet, Young, Kahn, and Pursley 2. Final
Act. 12—23. First, Appellant’s arguments regarding the alleged
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shortcomings of Ricochet and Young, and their comb inability, are
unavailing for the reasons previously discussed.
Nor are we persuaded of error in the Examiner’s additional reliance
on Pursley 2 for at least suggesting a node selecting another node by
employing traffic information as claimed. Ans. 29—30. As the Examiner
explains, each node communicates traffic-based route resistance information
to neighboring nodes. Id. (citing Pursley 2, 785—86). Despite Appellant’s
arguments to the contrary (Reply Br. 85—105), Pursley 2 on pages 785 and
787 at least suggests a node-based selection, particularly in view of the
forwarding procedure involving a radio (node) sending a packet to a
neighbor radio (node) that has reported the smallest route resistance to the
specified destination for that packet.
Given this node-based selection, as well as Ricochet’s radios ’ ability
to select alternate routing paths when other radios are busy or out of service
(Ricochet, E25), we see no error in the Examiner’s position at least to the
extent that a first node’s ability to select another node based on traffic
information available at the first node would have been at least an obvious
variation. Appellant’s arguments regarding Pursley 2’s alleged
shortcomings regarding (1) mobile nodes; (2) lacking a remote station; and
(3) using a predetermined source-to-destination routing procedure (App. Br.
33, 42; Reply Br. 85—92, 98—104, 109-10) do not show nonobviousness
where, as here, the rejection is based on the cited references’ collective
teachings. See Merck, 800 F.2d at 1097.
So even assuming, without deciding, that the paths taken by packets in
Pursley 2 are predetermined as Appellant contends (Reply Br. 89-90, 98—
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104, 109—10), the Examiner’s rejection is not based on Pursley 2 alone, but
also Ricochet that teaches that nodes can select alternate routing paths when
other radios are busy or out of service as noted previously. See Ricochet,
E25. Appellant’s arguments, then, do not persuasively rebut the Examiner’s
reliance on the cited references’ collective teachings which at least suggest
the recited node-based selection.
Lastly, Appellant’s newly-raised arguments regarding Pursley 2’s and
Young’s comb inability, including changing their principle of operation
(Reply Br. 93—95), are raised for the first time in the Reply Brief and are,
therefore, waived as untimely. See 37 C.F.R. § 41.41(b)(2) (“Any argument
raised in the reply brief which was not raised in the appeal brief, or is not
responsive to an argument raised in the examiner’s answer, including any
designated new ground of rejection, will not be considered by the Board for
purposes of the present appeal, unless good cause is shown.”). But even if
these arguments were timely raised (which they are not), they are unavailing
and not germane to the limited purposes for which these references were
cited.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 2, 4, 6, 8, 10, 12, 14—32, 34, and 36-40.
THE REJECTION OVER RICOCHET, YOUNG, KAHN,
AND MEIER
We also sustain the Examiner’s rejection of claims 33 and 35 over
Ricochet, Young, Kahn, and Meier. Final Act. 23—24. Notably, these
claims were also rejected over Ricochet, Young, and Kahn (Final Act. 11—
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12)—a rejection that was not contested in the Appeal Brief, thus rendering
the teachings of Meier technically cumulative to those of Ricochet, Young,
and Kahn with respect to claims 33 and 35.
Nevertheless, despite Appellant’s arguments to the contrary (App. Br.
16—17, 28—30, 39-41), we see no error in the Examiner’s additional reliance
on Meier for the limited purpose for which it was cited, namely to show that
biasing connections towards links with the best signal strength is known in
the art, and that, based on this teaching, including relative signal strength in
traffic information would have been at least an obvious variation and yield a
predictable result. See Final Act. 23—24; Ans. 12. See also KSR , 550 U.S.
at 417.
Appellant’s arguments regarding Meier’s alleged shortcomings
regarding (1) lacking plural transceivers, and (2) using a central controller
(App. Br. 28—30, 39-41) are not only not germane to the limited purpose for
which Meier was cited, but also do not show nonobviousness where, as here,
the rejection is based on the cited references’ collective teachings. See
Merck, 800 F.2d at 1097. We likewise see no error in the Examiner’s
finding that Meier is analogous art for the reasons indicated by the
Examiner. Ans. 11—12.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 33 and 35.
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CONCLUSION
The Examiner did not err in rejecting claims 1—40 under § 103.5 We
designate our affirmance as a new ground of rejection under 37 C.F.R.
§ 41.50(b).
DECISION
The Examiner’s decision rejecting claims 1—40 is affirmed.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the Appellant,
within two months from the date of the decision, must exercise one of the
following two options with respect to the new ground of rejection to avoid
termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new Evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the examiner, in which event the
prosecution will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new Evidence not
previously of Record is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the decision. Should
the examiner reject the claims, appellant may again appeal to the Board
pursuant to this subpart.
5 To the extent that the rejection of claims 34, 35, and 37-40 is separately
argued on page 113 of the Reply Brief, such arguments were not raised in
the Appeal Brief and are, therefore, waived as untimely under 37 C.F.R.
§ 41.41(b)(2).
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(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same Record. The request for rehearing must
address any new ground of rejection and state with particularity the points
believed to have been misapprehended or overlooked in entering the new
ground of rejection and also state all other grounds upon which rehearing is
sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
AFFIRMED
37 C.F.R, $ 41.50(b)
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