Ex Parte ÅKERBERG et al

Patent Trial and Appeal Board

Jul 28, 2017

14650246 (P.T.A.B. Jul. 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.
14/650,246 06/05/2015 Johan AKERBERG 6046-0241 PUS 1 9055
2292 7590 08/01/2017
BIRCH STEWART KOLASCH & BIRCH, LLP
8110 Gatehouse Road
Suite 100 East
FALLS CHURCH, VA 22042-1248
EXAMINER
CLAWSON, STEPHEN J
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
08/01/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mailroom @ bskb. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHAN AKERBERG and MIKAEL GIDLUND
Appeal 2017-007171
Application 14/650,246
Technology Center 2400
Before THU A. DANG, LINZY T. McCARTNEY and
SCOTT B. HOWARD, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
20, 22, 23, 25—30 and 32—36. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2017-007171
Application 14/650,246
STATEMENT OF THE CASE
The present patent application concerns “a method of wireless
transmission [that] provides a greater or a lesser measure of transmission
quality; and a wireless node with hardware and/or software for carrying out
the method.” Specification 1:13—17, mailed June 5, 2015. Claim 20
illustrates the claimed subject matter:
20. A method for providing reliable wireless communication
in a wireless sensor network (WSN) connected to an industrial
control system by determining a method of radio transmission
with a greater or a lesser measure of transmission quality, said
method comprising the steps of:
measuring at a wireless transmitter node a transmission
quality metric of at least one data packet received from two or
more different polarised switching branches with different
polarization characteristics;
identifying which of the two or more polarised switching
branches has a greater transmission quality metric;
distributing data packets with a first priority to the
polarised switching branch with the greater transmission quality
metric and distributing data packets with a second priority to the
polarised switching branch with a lesser transmission quality
metric;
transmitting data packets with the first priority on the
polarised switching branch with the greater transmission quality
metric; and
transmitting the second or lower priority data on the
polarised switching branch with the lesser transmission quality
metric.
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Application 14/650,246
REJECTIONS
Claims 20, 22, 23, 25—30 and 32—36 stand rejected under 35 U.S.C.
§ 103 over various combinations of Cain (US 6,982,987 B2; Jan. 3, 2006),
Marko (US 2002/0003813 Al; Jan. 10, 2002), Tsutsumi et al. (US
2003/0185186 Al; Oct. 2, 2003), and Kwak et al. (US 2009/0052408 Al;
Feb. 26, 2009).1
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments, and we disagree with Appellants that the Examiner erred. To the
extent consistent with the analysis below, we adopt the Examiner’s
reasoning, findings, and conclusions as set forth in the appealed action and
the Answer. Appellants have waived arguments they failed to timely raise
or adequately present. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2).
Claim 20
Appellants contend the Examiner’s combination of Cain and Marko
fails to teach or suggest the following limitations recited in claim 20:
distributing data packets with a first priority to the
polarised switching branch with the greater transmission quality
metric and distributing data packets with a second priority to the
polarised switching branch with a lesser transmission quality
metric;
transmitting data packets with the first priority on the
polarised switching branch with the greater transmission quality
metric; and
1 The Examiner has withdrawn the indefmiteness rejection of claims 28—30
and 32—35. Answer 2, mailed February 8, 2017.
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Application 14/650,246
transmitting the second or lower priority data on the
polarised switching branch with the lesser transmission quality
metric.
Appeal Brief 8—11, mailed November 18, 2016 (“App. Br.”). According to
Appellants, Cain teaches assigning data to different time slots of the same
channel, not different polarized switching branches as required by claim 20.
See id. at 9. Appellants argue Marko does not remedy this deficiency
because Marko simply “discloses that separate channels may have different
polarizations.” Id. at 10. In Appellants’ view, combining Cain’s and
Marko’s teaching would result in a system that “assign[s] the data to
different time slots in the same communication link . . . not. . . different
time slots in the different communication links based on the different quality
values in the different communication links because Cain only considers the
different quality values in the same communication link.” Id. (emphases
omitted).
We disagree. The Examiner found Cain teaches assigning data to a
communication channel’s time slots based on a quality value associated with
each time slot. See Final Office Action 6—7, mailed July 11, 2016 (citing
Cain 43:66-44:7, Fig. 17) (“Final Act.”). In particular, the Examiner found
Cain teaches assigning high priority data to time slots with high quality
values and assigning low priority data to time slots with low priority values.
See id. The Examiner found Cain does not teach the recited “different
polarised switching branches” but Marko does. See id. at 7. The Examiner
concluded it would have been obvious to modify Cain’s and Marko’s
teachings to arrive at the claimed invention because doing so would
“increase throughput while not causing interference among the channels . . .
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Application 14/650,246
using known methods . . . [that] yield[] predictable results ...[,] which
ultimately increases end user satisfaction.” Id.
Although Appellants contend the Examiner’s combination would
result in a system that assigns data to different time slots on the same
communication link, Appellants have not provided persuasive evidence or
reasoning that indicates this would be the case. See App. Br. 8—11. To the
extent Appellants assume one of skill in the art would slavishly apply Cain’s
and Marko’s teachings, the Supreme Court has explained that “[a] person of
ordinary skill is also a person of ordinary creativity, not an automaton.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). Accordingly, one
of ordinary skill in the art is not assumed to blindly “adopt every single
aspect of [a prior art reference’s] teaching without the exercise of
independent judgment.” Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881,
889 (Fed. Cir. 1984). Moreover, Appellants have not shown the proposed
combination would have been “uniquely challenging or difficult for one of
ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007). In light of Appellants’ failure to provide
persuasive reasoning or evidence to support this contention, we find it
unpersuasive.
In the Reply Brief, Appellants argue for the first time “that the
Examiner’s alleged modification would not increase the throughput, because
the data would be allocated onto different time slots and will not be
transmitted at the same time.” Reply Brief 16—17, mailed March 29, 2017
(“Reply Br.”). According to Appellants, Marko “actually points towards
decreasing throughput” because “Marko focuses on interleaving techniques,
which [are] generally known to increase the total delay.” Id. 16, 17
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(emphasis omitted). “Therefore, Appellants] . . . submit[] there is no
apparent reason for one skill in the art to apply the different polarized
switching branches to the different channels/time slots in Cain.” Id. at 17
(emphasis omitted)
We disagree. As an initial matter, Appellants waived this argument
by failing to raise it in the Appeal Brief. See 37 C.F.R. §§ 41.37(c)(l)(iv),
41.41(b)(2). Even if Appellants had not waived this argument, we would not
find it persuasive. The Examiner did not incorporate Marko’s interleaving
techniques into the proposed combination of Marko and Cain; the Examiner
incorporated only Marko’s different polarised switching branches. See Final
Act. 6—7. As noted above, one of ordinary skill in the art is not assumed to
blindly “adopt every single aspect of [a prior art reference’s] teaching
without the exercise of independent judgment.” Lear Siegler, 733 F.2d at
889. Accordingly, Appellants have not persuaded us the Examiner failed to
articulate a sufficient reason to combine Marko and Cain.
For the above reasons, we sustain the Examiner’s rejection of claim
20. Because Appellants either rely on dependency or raise similar
arguments for claims 21, 22, 25—30, 32—36, and 39, we also sustain the
Examiner’s rejections of these claims.
Claim 23
Claim 23 depends from claim 20 and recites “further comprising the
step of selecting a polarised switching branch by selecting one or more
polarised switch branch elements from a plurality of polarised switching
branch elements.” Appellants argue Marko fails to teach or suggest this
limitation. See App. Br. 11—12.
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We disagree. The Examiner found a combination of Marko and Cain
teach or suggest this limitation. See Final Act. 8—9; Answer 4, 5, mailed
February 8, 2017. Yet Appellants argue against Marko alone. See App. Br.
11—12. We find these arguments unpersuasive because “one cannot show
non-obviousness by attacking references individually where, as here, the
rejections are based on combinations of references.” In re Keller, 642 F.2d
413, 426 (CCPA 1981). We therefore sustain the Examiner’s rejection of
claim 23.
DECISION
We affirm the Examiner’s rejections of claims 20, 22, 23, 25—30 and
32-36.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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