Ex Parte Binzel et al

Board of Patent Appeals and Interferences

Dec 18, 2007

10639899 (B.P.A.I. Dec. 18, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CHARLES P. BINZEL and MARCIA J. OTTING
____________________

Appeal 2007-2992
Application 10/639,899
Technology Center 2600
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Decided: December 18, 2007
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Before: JOSEPH F. RUGGIERO, ROBERT E. NAPPI, and
KEVIN F. TURNER, Administrative Patent Judges.

TURNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from final rejections of
claims 1, 2, 4, 6-17, and 19-27. We have jurisdiction under 35 U.S.C.
§ 6(b).
Appellants disclose systems and methods for broadcasting a message
in an emergency situation to a targeted audience through the use of wireless
communication devices. (Specification 1: 7-8). This is accomplished
through an indicator sent to the wireless communication devices which
Appeal 2007-2992
Application 10/639,899

allows for the overriding or bypassing of a message handling setting.
(Specification 4:13-29).
The independent claim 1, which is deemed to be representative, reads
as follows:
1. A method in a wireless communication device for
communicating contents of a broadcast message, the method
comprising:

receiving an emergency status indicator associated with the
broadcast message;

determining whether the emergency status indicator indicates
the broadcast message is an emergency message;

overriding or bypassing a user selected message handling
setting of the wireless communication device in response to
determining that the emergency status indicator indicates the
broadcast message is an emergency message; and

communicating the contents of the broadcast message.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Roche US 2003/0197615 A1 Oct. 23, 2003
Kolrud US 2004/0203562 A1 Oct. 14, 2004
The Examiner rejected claims 1, 2, 4, 6-9, 11-17, 19, 20 and 22-26
under 35 U.S.C. § 102(b) as anticipated by Kolsrud. The Examiner also
rejected claims 10, 21 and 27 under 35 U.S.C. § 103(a) as unpatentable over
Kolsrud and Roche.

Appellants contend that the Examiner erred in indicating that the
claimed subject matter would have been anticipated or obvious. More
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specifically, Appellants have argued that allowing a user to program options
as disclosed in Kolsrud is not the same as the claimed overriding or
bypassing user selected message handling settings. (Br. 6). The Examiner
finds that Kolsrud teaches this functionality. (Answer 13-14 ).
We affirm.

ISSUE
Have Appellants shown that the Examiner erred in finding claims 1, 2,
4, 6-17, and 19-27 anticipated or rendered obvious in view of the cited prior
art references?

FINDINGS OF FACT
1. As disclosed in the instant application, a wireless communication
network that provides communication with a plurality of wireless portable
communication devices and sends a broadcast message in response to an
emergency situation. The communication device evaluates the broadcast
message based on an emergency status indicator. If the broadcast message is
determined to be an emergency message, then the overriding function is
activated and a user selected message handling setting is overridden or
bypassed. (Specification 3:17 – 4:32; Figs. 1-3, elements 100, 104, 106,
108, 204, 206, 302, 306, and 308).
2. The Specification discloses that “[t]he overriding function is
designed to override or bypass any conflicting user selected message
handling setting such that the broadcast message is received, and the
contents of the broadcast message are communicated without delay.”
(Specification 4:26-29, emphasis added).
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3. Kolsrud discloses that an emergency broadcast station generates a
signal representing an emergency broadcast message that contains a
frequency of an accessible main emergency channel at the emergency
broadcast station, and a priority level classifying the emergent or impending
disaster-related situation. The signal is transmitted to base stations, which in
turn send the signal to the users. The users tune to the frequency of the
channel provided to receive the emergency broadcast message. (Abstract).
4. The emergency signal, in Kolsrud, is incorporated into the system,
and can include an interrupt flag. This interrupt flag can be directed to a
particular memory location which would contain a user's programming
choice as to what to do (i.e. cut off conversation, beep, etc.). For mobile
phones not having a low-frequency tuning capability, a 1-800 number could
be displayed on a display screen to allow the user to retrieve the emergency
broadcast message. (¶¶ [0022]-[0023]).
5. The cellular phone may be programmed to handle various priority
levels differently, depending on the severity, thus overriding a setting of the
device before the message was received. For example, when a signal
including higher levels 4 and 5 is received, the cellular phone immediately
interrupts any current or ongoing cellular phone communications. (¶¶
[0024]-[0025]).
6. Roche discloses a virtual roll call and recovery management system
that allows any organization to locate their staff and allocate resources to
their staff in the event of a disaster. The Emergency Broadcast Message can
contain a hypertext link to system, so the user can click on the link in the
email message to access the system’s login page. (Abstract; ¶ [0046]).
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PRINCIPLES OF LAW
It is axiomatic that anticipation of a claim under § 102 can be found if
the prior art reference discloses every element of the claim. See In re King,
801 F.2d 1324, 1326 (Fed. Cir. 1986) and Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir.
1984). In rejecting claims under 35 U.S.C. § 102, a single prior art reference
that discloses, either expressly or inherently, each limitation of a claim
invalidates that claim by anticipation. Perricone v. Medicis Pharmaceutical
Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005), citing Minn. Mining & Mfg.
Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1565 (Fed.
Cir. 1992).
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). If that
burden is met, then the burden shifts to the Appellants to overcome the
prima facie case with argument and/or evidence. In re Mayne, 104 F.3d
1339, 1342 (Fed. Cir. 1997). “Section 103 forbids issuance of a patent when
‘the differences between the subject matter sought to be patented and the
prior art are such that the subject matter as a whole would have been obvious
at the time the invention was made to a person having ordinary skill in the
art to which said subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc.,
127 S.Ct. 1727, 1734 (2007).
The claims on appeal should not be confined to specific embodiments
described in the Specification. Phillips v. AWH Corp., 415 F.3d 1303, 1323
(Fed. Cir. 2005) (en banc). During ex parte prosecution, claims must be
interpreted as broadly as their terms reasonably allow since applicants have
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the power during the administrative process to amend the claims to avoid the
prior art. In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989).

ANALYSIS
Appellants argue that allowing a user to program options as disclosed
in Kolsrud is not the same as the claimed overriding or bypassing user
selected message handling settings. We note that independent claim 1
recites, in part, “overriding or bypassing a user selected message handling
setting,” independent claim 11 recites, in part, “overriding a user selected
message handling setting,” and independent claim 22 recites, in part, “the
message handler override module configured to “override or bypass a user
selected message handling setting.” In each recitation, a single user selected
message handling setting is overridden, but the independent claims do not
specify that one user selected message handling setting cannot be overridden
in favor of another user message handling setting.
In other words, if the phone is in one setting before the broadcast
message and passes into another setting after the emergency indicator is
positively evaluated, then we find that the first setting has been overridden
or bypassed. This is disclosed in Kolsrud, (Findings of Fact 5), where the
cellular phone may be programmed to handle various priority levels
differently. For example, Kolsrud details that any ongoing telephone
conversation may be immediately interrupted based on the received
emergency message. (Findings of Fact 5).
We also agree with the Examiner that the instant Specification
discloses that the overriding occurs with respect to any conflicting user
selected message handling setting. (Findings of Fact 2). Thus, the
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implication is that non-conflicting message handling settings are not
overridden. We find Appellants’ emphasis on the user’s programming
choice as what to do, as detailed in Kolsrud, to be immaterial, because the
instant Specification details that a user can set message handling settings.
(Findings of Fact 1). As long as one message handling setting is bypassed in
response to the emergency message, even if the user can set each setting, we
find that disputed limitations of claims 1, 11, and 22 are met. Since
Appellants have not separately argued the claims dependent on claims 1, 11,
and 22, we affirm the rejection of claims 1, 2, 4, 6-9, 11-17, 19, 20, and 22-
26.
With respect to claims 10, 21, and 27, Appellants argue that the
rejection of those claims should be overturned based on the perceived flaws
in the anticipation rejection. Appellants have not argued that any particular
elements of claims 10, 21, and 27 are not disclosed by the combination of
Kolsrud and Roche. Thus, we affirm the rejection of claims 10, 21, and 27
as we affirm the rejections of claims 1, 2, 4, 6-9, 11-17, 19, 20, and 22-26.

CONCLUSION OF LAW
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 1, 2, 4, 6-17, and 19-27 and we affirm the Examiner’s
rejections of those claims under 35 U.S.C. §§ 102(b) & 103(a).

DECISION
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
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AFFIRMED

eld

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