Ex Parte Brodersen et al

Patent Trial and Appeal Board

Aug 3, 2018

12401350 (P.T.A.B. Aug. 3, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/401,350 03/10/2009
81310 7590 08/07/2018
Meyertons, Hood, Kivlin, Kowert & G (Apple)
P.O. BOX 398
Austin, TX 78767-0398
FIRST NAMED INVENTOR
Rainer Brodersen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
7888-08403 5668
EXAMINER
HUNNINGS, TRAVIS R
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
08/07/2018 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):
patent_docketing@intprop.com
ptomhkkg@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANIER BRODERSEN, STEPHANIE CINERESKI,
and JACKI-CHIER FU 1
Appeal 2018-000134
Application 12/401,350
Technology Center 2600
Before CARL W. WHITEHEAD JR., BRADLEY W. BAUMEISTER,
and AMBER L. HAGY, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-33. Br. 2. 2 We have jurisdiction under
35 U.S.C. § 6(b). We reverse.
1 Appellants list Apple Inc. as the real party in interest. Appeal Brief 2, filed
February 8, 2013 ("Br.").
2 Rather than repeat the Examiner's positions and Appellants' arguments in
their entirety, we refer to the above-mentioned Appeal Brief, as well as the
following documents, for their respective details: the Final Action mailed
September 13, 2012 ("Final Act.") and the Examiner's Answer mailed
March 13, 2013 ("Ans.").
Appeal 2018-000134
Application 12/401,350
STATEMENT OF THE CASE
Appellants describe the present invention as follows:
Methods, systems, and apparatus for identifying protocols.
In one aspect, a method includes comparing characteristics of a
wireless signal received from a remote control to characteristics
associated with a set of protocols. The method also includes
assigning a score, based upon the comparison, to each protocol
included in the plurality of protocols. The method also includes
identifying a protocol from the set of protocols based upon the
assigned scores. The identified protocol is substantially similar
to a protocol associated with the wireless signal.
Abstract.
Independent claim 1, reproduced below, illustrates the claimed
invention:
1. A method comprising:
comparing characteristics of a wireless signal received
from a remote control to characteristics associated with a
plurality of protocols;
based upon the comparison, assigning a score to each
protocol included in the plurality of protocols; and
identifying a protocol from the plurality of protocols
based upon the assigned scores, wherein the identified protocol
is substantially similar to a protocol associated with the wireless
signal.
Claims 1-9, 11-20, 22-31, and 33 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Harvey (US 6,130,625; issued Oct. 10, 2000),
Spilo (US 2006/0152401 Al; published July 13, 2006), and Apfel
(US 7,453,868 B2; issued Nov. 18, 2008). 3 Final Act. 2-22.
3 The heading of the rejection additionally lists claim 32 as being rejected
(Final Act. 2), but the body of the rejection does not address claim 32 (see
id. at 22).
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Appeal 2018-000134
Application 12/401,350
Claims 10, 21, and 32 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Harvey, Spilo, Apfel, and Hulten (US 2006/0112190 Al;
published May 25, 2006). Final Act. 22-25.
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
FINDINGS AND CONTENTIONS
The Examiner finds that Harvey teaches "comparing characteristics of
a wireless signal received from a remote control to characteristics associated
with a plurality of protocols." Final Act. 2-3. The Examiner further finds
that Harvey teaches "based upon the comparison, assigning a score to each
protocol included in the plurality of protocols." Id. at 3. The Examiner also
finds, in the Examiner's Answer, that "Harvey teaches assigning scores
based on scores of plurality of protocol." Ans. 31. The Examiner finds that
Harvey teaches the condition "wherein the identified protocol is
substantially similar to a protocol associated with the wireless signal." Id.
at 3--4.
The Examiner also finds the opposite-that "Harvey does not
explicitly teach identifying a protocol from the plurality of protocols based
upon the assigned scores," but that Spilo teaches this limitation. Id. at 4
( emphasis added). The Examiner determines that it would have been
obvious "to modify Harvey with Spilo to incorporate code assigned as
claimed for the purpose of creating an efficient remote control system." Id.
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Appeal 2018-000134
Application 12/401,350
The Examiner further finds that "Harvey with Spilo do not explicitly
show assigning," but that Apfel teaches this limitation. Id. The Examiner
determines that it would have been obvious "to modify Harvey and Spilo
with Apfel to incorporate assigned [sic] as claimed for the purpose of
creating an efficient remote control system." Id. at 5.
Appellants point out that the Examiner takes inconsistent positions,
first stating "that Harvey teaches 'based upon the comparison, assigning a
score to each protocol included in the plurality of protocols"' (App. Br. 6
(citing Final Act. 3)), but alternatively "acknowledg[ing] that 'Harvey with
Spilo do not explicitly show assigning" (id. (citing Final Act. 4)).
Appellants assert that "Harvey does not teach or suggest 'based upon
the comparison, assigning a score to each protocol included in the plurality
of protocols,' as recited by claim 1." Br. 6 ( emphasis omitted).
Appellants argue that "because Spilo does not teach assigning a score
to each protocol in the plurality of protocols, as acknowledged by the Office
Action at page 4, it follows that Spilo cannot not teach identifying a protocol
from the plurality of protocols based upon the assigned scores." Br. 8.
Appellants then present additional arguments for why "Spilo does not teach
identifying a protocol based upon a score." Id. at 8-9.
Appellants additionally argue that "Apfel does not teach or suggest
assigning a score 'based upon the comparison' of the characteristics of a
received signal to the characteristics associated with a plurality of protocols,
as recited in claim 1." Id. at 7.
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Appeal 2018-000134
Application 12/401,350
ANALYSIS
Appellants' arguments are persuasive. None of Harvey, Spilo, or
Apfel, either alone or in combination, appears to reasonably teach the
disputed limitation of assigning a score to each of a plurality of protocols
based upon a comparison of characteristics of a received wireless signal and
characteristics associated with the plurality of protocols.
We agree with Appellants:
Harvey teaches "identifying a protocol" through a series of
narrowing steps, first "[ u ]sing the detected frequency and cycle
count" to identify a protocol family, and then using an "analysis
of the pause and data bit information, enables the microprocessor
to identify a specific Protocol." Harvey then teaches applying
the identified protocol "to detect or strip the data of the native
remote control as '1 'sand 'O's for identifying a code pattern."
Br. 6 ( citing Harvey, 4, 1. 51 - col. 5, 1. 9).
Spilo teaches selecting a protocol by matching the payload data
encoded in the signal with the expected payload data associated
with the protocol for the specified identification key. . . .
[I]dentifying a protocol based on a pre-assigned "code"
embedded in the payload data, as taught by Spilo, does not
constitute "identifying a protocol from the plurality of protocols
based upon the assigned scores," as recited by claim 1.
Br. 8-9.
"Apfel is concerned with content forwarding between electronic
devices." Br. 7 (citing Apfel, col. 1, 11. 39--43). "Apfel teaches assigning
preference scores to protocols for [content] delivery, and has nothing to do
with assigning a score based on characteristics of a received wireless
signal." Br. 7 ( emphasis omitted).
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Appeal 2018-000134
Application 12/401,350
The rejection appears to be based upon knowledge gleaned only from
Appellants' disclosure. Such a reconstruction constitutes impermissible
hindsight. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Accordingly, we do not sustain the obviousness rejection of claim 1 or
of independent claims 12 and 23, which recite similar language. We
likewise do not sustain the obviousness rejection of claims 2-9, 11, 13-20,
22, 24--31, and 33, which depend from claims 1, 12, and 23.
With respect to the remaining rejection of dependent claims 10, 21,
and 32, the Examiner does not rely upon Hulten to cure the deficiency of the
obviousness rejection explained above. See Final Act. 22-25. Accordingly,
we do not sustain the obviousness rejection of these claims for the reasons
set forth above in relation to the independent claims.
DECISION
The Examiner's decision rejecting claims 1-33 is reversed.
REVERSED
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