Ex Parte Budampati et al

Patent Trial and Appeal Board

Dec 31, 2013

11163544 (P.T.A.B. Dec. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RAMAKRISHNA S. BUDAMPATI,
PATRICK S. GONIA, and SOUMITRI N. KOLAVENNU1
____________________

Appeal 2011-001263
Application 11/163,544
Technology Center 2400
____________________

Before JASON V. MORGAN, JOHNNY A. KUMAR, and
LARRY J. HUME, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-24, all pending claims in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The Real Party in Interest is Honeywell International, Inc. App. Br. 4.
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STATEMENT OF THE CASE2
The Invention
Appellants’ invention relates to spread spectrum communication
methods and systems, including Frequency Hopping Spread Spectrum and
Direct Sequence Spread Spectrum approaches using transmitter initiated
communications methods. Spec. ¶ [0002] and Abst.
Exemplary Claims
Claims 1, 18, and 19, reproduced below, are representative of the
subject matter on appeal (some paragraphing and emphases added):
1. A transmitter initiated wireless communication
system comprising a plurality of peer communication devices
configured for sending and receiving signals wirelessly
wherein:
the peer communication devices follow a first channel
succession defining a number of communications channels to
which the communication devices are tuned at particular times;
a first peer communication device generates a request to
send data to a second peer communication device using a first
channel in the first channel succession, wherein the first peer
communication device generates the request to send data when
the first peer communication device is ready to send data;
the second peer communication device receives the
request to send data from the first peer communication device

2 Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed
June 4, 2010); Reply Brief (“Reply Br.,” filed Oct. 18, 2010); Examiner’s
Answer (“Ans.,” mailed Aug.16, 2010); Final Office Action (“FOA,” mailed
Nov. 17, 2009); and the original Specification (“Spec.,” filed Oct. 21, 2005).
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and generates a clear to send data message to the first peer
communication device using the first channel succession;
the first and second peer communication devices follow a
second channel succession to perform data transfer between the
first peer communication device and the second peer
communication device, wherein the second channel succession
is different from the first channel succession; and
after the data transfer between the first peer
communication device and the second peer communication
device is completed, the first and second peer communication
devices return to following the first channel succession.

18. A transmitter initiated wireless communication
system comprising a number of peer devices configured to
generate requests to send data when data is ready to send,
the devices in the system configured to follow a first
channel succession when not transmitting data,
wherein, when a first device is prepared to send data, the
first device addresses a request to send data to a second device
using the first channel succession;
the second device sends a clear to send data message
using the first channel succession to the first device in response
to the request to send data,
the clear to send data message including a second
channel succession determined by the second device for
transmitting data; and
the first and second devices follow the second channel
succession when transmitting data, the second channel
succession being different from the first channel succession.

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19. A wireless communication system comprising a
number of peer devices that follow a first channel succession in
common for communicating with one another, wherein new
devices can be added to an existing system of peer devices,
wherein, when a new device is added to the existing
system of peer devices, the new device defaults to a discovery
process,
the discovery process comprising listening on only a
single channel chosen from a number of channels included in a
first channel succession until either the new device times out, or
until a message is generated by one of the existing peer devices
in the single channel,
wherein, once the message is generated on the single
channel, the new device time synchronizes with the other peer
devices.
Prior Art
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Spratt US 2002/0113735 A1 Aug. 22, 2002
Garcia-Luna-Aceves US 2002/0141479 A1 Oct. 3, 2002
Miklos US 2002/0181435 A1 Dec. 5, 2002
Lee US 2004/0185857 A1 Sep. 23, 2004
Mayor US 6,859,463 Feb. 22, 2005
Ganley US 2005/0280546 A1 Dec. 22, 2005
Donner US 7,031,945 Apr. 18, 2006
Bluetooth, Overview of Operations, Bluetooth SIG, Inc., retrieved from
Internet August 10, 2010 (http://www.bluetooth.com/English/
Technology/Works/Pages/Overview_of_Operation.aspx) (hereinafter
“Bluetooth”).
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Rejections on Appeal
1. Claims 1-24 are provisionally rejected as being unpatentable
under the doctrine of obviousness-type double patenting over claims 1-24 of
copending Appl. Ser. No. 11/163,545 (the “’545 application”). Ans. 4.
2. Claim 18 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Miklos. Ans. 4.
3. Claims 1, 5, 7, 8, 11, 12, and 14-17 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination of Miklos
and Garcia-Luna-Aceves (hereinafter “Garcia”). Ans. 5.
4. Claims 2, 4, 9, and 24 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Miklos, Garcia, and Lee.
Ans. 7.
5. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Miklos, Garcia, Lee, and Donner.
Ans. 9.
6. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Miklos, Garcia, and Mayor. Ans. 10.
7. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Miklos, Garcia, Lee, and Spratt.
Ans. 10.
8. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Miklos, Garcia, and Ganley. Ans. 11.
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9. Claims 19-22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Miklos and Lee. Ans. 11.
10. Claim 23 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Miklos, Lee, and Ganley. Ans. 13.
ISSUES AND ANALYSIS
We only consider those arguments actually made by Appellants in
reaching this decision, and we do not consider arguments which Appellants
could have made but chose not to make in the Briefs so that any such
arguments are deemed to be waived. 37 C.F.R. § 41.37(c)(1)(vii).
We have reviewed the Examiner’s unpatentability rejections in light
of Appellants’ arguments that the Examiner has erred. We disagree with
Appellants’ conclusions with respect to claims 19-23, and we adopt as our
own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken and (2) the reasons and rebuttals set forth by
the Examiner in the Examiner’s Answer in response to Appellants’
Arguments. We also agree with the Examiner with respect to the
obviousness-type double patenting rejection of claims 1-24.
However, we agree with Appellants’ arguments and disagree with the
Examiner’s findings with respect to the prior art rejections of claims 1-18
and 24. We highlight and address specific findings and arguments regarding
claims 1, 18, and 20 for emphasis as follows.
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1. Obviousness Type Double Patenting Rejection of Claims 1-24
Issue 1
Did the Examiner err in provisionally rejecting claims 1-24 under the
doctrine of obviousness type double patenting rejection over claims 1-24 of
the copending ’545 application?
Analysis
Appellants state they will file a Terminal Disclaimer “when the claims
are otherwise indicated as being in condition for allowance.” App. Br. 4.
Appellants do not contest the rejection, but merely state that they intend to
file a Terminal Disclaimer to overcome this rejection. We note that
arguments not made are considered waived.3 See 37 C.F.R.
§ 41.37(c)(1)(iv). Therefore, we pro forma sustain the Examiner’s
provisional obviousness type double patenting rejection of claims 1-24.4

3 See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the
appellant fails to contest a ground of rejection to the Board, section
1.192(c)(7) [(now section 41.37(c)(1)(vii))] imposes no burden on the Board
to consider the merits of that ground of rejection . . . . [T]he Board may treat
any argument with respect to that ground of rejection as waived.”).
4 We note certain claims of copending Appl. Serial No. 11/163,545 have
been allowed by a Notice of Allowability mailed Sep. 25, 2013. We leave it
to the Examiner to address whether this rejection should be made “non-
provisional” in the event Appl. Serial No. 11/163,545 issues as a patent.
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2. Anticipation Rejection of Claim 18
Issue 2
Appellants argue (App. Br. 12-18; Reply Br. 2-3) that the Examiner’s
anticipation rejection of claim 1 under 35 U.S.C. § 102(b) over Miklos is in
error. These contentions present us with the following issue:
Did the Examiner err in finding that Miklos discloses the limitation in
dispute, i.e., “the devices in the system configured to follow a first channel
succession when not transmitting data, . . . the first and second devices
follow the second channel succession when transmitting data, the second
channel succession being different from the first channel succession,” as
recited in claim 18?
Analysis
Appellants contend Miklos fails to disclose the disputed limitation
because Miklos sends the RTS (ready to send) and CTS (clear to send)
messages and data all on the same channel succession. App. Br. 14-16;
Reply Br. 2-3. We agree with Appellants.
While we agree with the Examiner (Ans. 15) that Miklos discloses a
system wherein an RTS message and a CTS message are both sent on a first
channel succession and data is sent on a subsequent channel succession, we
do not agree that Miklos discloses the disputed limitation. In Miklos, when
the RTS and CTS messages sent on the first channel are not successful
Miklos does not, as a result of that RTS and CTS communication, transfer
data on a second channel succession. Instead, another RTS and CTS
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communication takes place on a second channel succession and, when
successful, Miklos transmits data on the same second channel succession as
the successful RTS and CTS communication. See Miklos, ¶ [0066]. Thus,
Miklos does not disclose that “the first and second devices follow the second
channel succession when transmitting data,” i.e., data is not transferred on a
different channel succession that is communicated by the RTS and CTS
messages, as required by claim 18.
Accordingly, Appellants have provided sufficient evidence and
argument to persuade us of at least one error in the Examiner’s reading of
the claim limitation in dispute onto the cited prior art. Therefore, we cannot
sustain the Examiner’s anticipation rejection of independent claim 18.
3. Unpatentability Rejections of Claims 1-17 and 24
Issue 3
Appellants argue (App. Br. 18-20; Reply Br. 3-5) that the Examiner’s
unpatentability rejection of claims 1, 5, 7, 8, 11, 12, and 14-17 under
35 U.S.C. § 103(a) over the combination of Miklos and Garcia is in error.
These contentions present us with essentially the same issue discussed above
with respect to the anticipation rejection of claim 18, i.e., Issue 2:
Did the Examiner err in finding that the reference combination teaches
or suggests the limitation in dispute, i.e.,
the second peer communication device receives the
request to send data from the first peer communication device
and generates a clear to send data message to the first peer
communication device using the first channel succession;
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the first and second peer communication devices follow a
second channel succession to perform data transfer between the
first peer communication device and the second peer
communication device
as recited in claim 1?
Analysis
Appellants make similar arguments with respect to the unpatentability
rejection of independent claim 1 as for the anticipation rejection of claim 18.
App. Br. 18-20; Reply Br. 3-6.
For essentially the same reasons argued by Appellants (Id.), and
similar to the reasons for reversal of the anticipation rejection of claim 18,
we agree with Appellants and reverse the Examiner’s rejection of
independent claim 1. For the same reasons, we also reverse the rejections of
claims 2-17 and 24 that depend therefrom.
4. Unpatentability Rejections of Claims 19-23
Issue 4
Appellants argue (App. Br. 31-36; Reply Br. 10-11) that the
Examiner’s unpatentability rejection of claims 19-22 under 35 U.S.C.
§ 103(a) over the combination of Miklos and Lee is in error. These
contentions present us with the following issue:
Did the Examiner err in finding that the reference combination teaches
or suggests the limitation in dispute, i.e., “when a new device is added to the
existing system of peer devices, the new device defaults to a discovery
process,” as recited in claim 19?
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Analysis
We find claim 20 is similar in scope to claim 19, and contains the
same portion of the limitation that we find defines the dispositive issue, such
that claims 20-23 stand or fall with independent claim 19.
Appellants contend that the combination of Miklos and Lee fails to
teach a new device defaulting to a discovery process when added to an
existing system, the discovery process comprising listening on only a single
channel chosen from a number of channels, as required by independent
claim 19. App. Br. 31-34; Reply Br. 10-11. Appellants specifically argue
that Lee’s “wakeup process” does not include adding a new device to the
existing system because the device implementing the “wakeup process” in
Lee is a device that was in an inactive state in a network that the device is
already registered in. App. Br. 33; Reply Br. 11. In other words, Appellants
argue that the device, although sleeping and inactive, is already a registered
device of the existing system. We disagree.
The Examiner finds that Lee's “wakeup process” adds a new device
into the existing network because the device goes from an inactive state to a
subsequent wakeup state in order to enter the existing network. Ans. 25
(citing Lee, ¶¶ [0029]-[0031]). Appellants’ Specification does not preclude
a “new device” from being a device that goes from an inactive to active
state. Thus, we agree with the Examiner’s interpretation and find it to be
consistent with the Specification such that we agree with the Examiner’s
finding.
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Additionally, Appellants argue that Lee’s “wakeup process” scans
multiple channels instead of listening on only a single channel of multiple
channels, as claimed. App. Br. 33; Reply Br. 11. The Examiner finds that
Lee teaches that the device in the wakeup state enters a scan mode where a
single frequency is scanned at a time. Ans. 26 (citing Lee, ¶ [0031]). We
agree with the Examiner (Ans. 26), because the claim only requires
“listening on only a single channel chosen from a number of channels,” but
does not preclude switching channels when no connection is made after a
particular period of time, as taught by Lee. Lee, ¶ [0031].
Appellants make similar arguments with respect to claim 20. App.
Br. 34-35. For the reasons stated supra, we agree with the Examiner.
Appellants additionally contend that the combination of Miklos and Lee fails
to teach the limitations of claims 21-22. App. Br. 35-36. The Examiner has
fully responded to these arguments. Ans. 27 and 28. We agree with and
accordingly adopt the Examiner’s findings of fact in that response.
Thus, for the reasons stated supra, we sustain the Examiner’s rejection
of claims 19-22.
§ 103(a) Rejection of Claim 23 over Miklos, Lee, and Ganley
Regarding claim 23, Appellants recite portions of the claim limitation
and contend that the references do not teach the limitation. App. Br. 36.
Such statements are not considered to be arguments. 37 C.F.R.
§ 41.37(c)(1)(vii) (“A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that
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the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”). Thus, we do not find Appellants’ arguments, such as they are
(App. Br. 36), to be persuasive, and we also agree with the Examiner’s
response to Appellants’ arguments regarding claim 23 in the Answer.
Ans. 28 and 29. Therefore, we affirm the Examiner’s rejection of claim 23.
CONCLUSIONS
(1) On the record before us, the Examiner did not err with respect
to the Provisional Obviousness Type Double Patenting Rejection of claims
1-24 over copending Application Serial No. 11/163,545, and we sustain the
rejection.
(2) The Examiner erred with respect to the anticipation rejection of
claim 18 under 35 U.S.C. § 102(b) over Miklos, and we do not sustain the
rejection.
(3) The Examiner erred with respect to the various unpatentability
rejections of claims 1-17 and 24 under 35 U.S.C. § 103(a) over the prior art
combinations of record, and we do not sustain the rejections.
(4) The Examiner did not err with respect to the various
unpatentability rejections of claims 19-23 under 35 U.S.C. § 103(a) over the
prior art combinations of record, and we sustain the rejections.
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DECISION
On the record before us, we:
(1) Affirm the Examiner’s Provisional Obviousness-Type Double
Patenting rejection of claims 1-24;
(2) Reverse the Examiner’s prior art rejections of claims 1-18 and
24; and
(3) Affirm the Examiner’s prior art rejections of claims 19-23.
Therefore, in summary, we affirm the decision of the Examiner to
reject claims 1-24.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See
37 C.F.R. § 41.50(a)(1).
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)(iv) (2011).
AFFIRMED

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