Ex Parte Burger

Board of Patent Appeals and Interferences

Mar 3, 2010

10290023 (B.P.A.I. Mar. 3, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
___________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
___________ 6
7
Ex parte MICHEL C. BURGER 8
___________ 9
10
Appeal 2008-005934 11
Application 10/290,023 12
Technology Center 3600 13
___________ 14
15
Decided: March 3, 2010 16
___________ 17
18
Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and BIBHU R. 19
MOHANTY, Administrative Patent Judges. 20
FETTING, Administrative Patent Judge. 21
DECISION ON APPEAL22
Appeal 2008-005934
Application 10/290,023

2
STATEMENT OF THE CASE 1
Michel C. Burger (Appellant) seeks review under 35 U.S.C. § 134 2
(2002) of a non-final rejection of claims 1-106, the only claims pending in 3
the application on appeal. 4
We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b) 5
(2002). 6
7
We AFFIRM. 8
The Appellant invented a way for third party control of a device or a 9
group of devices. Specification ¶ 0001. 10
An understanding of the invention can be derived from a reading of 11
exemplary claim 1, which is reproduced below [bracketed matter and some 12
paragraphing added]. 13
1. A method comprising: 14
receiving a first communication from a first device on a second 15
device; and 16
sending a second communication from the second device to a 17
third device to control the first device 18
19
This appeal arises from the Examiner’s Non-Final Rejection, mailed 20
September 6, 2006. The Appellant filed an Appeal Brief in support of the 21
appeal on January 3, 2008. An Examiner’s Answer to the Appeal Brief was 22
mailed on April 17, 2008. 23
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PRIOR ART 1
The Examiner relies upon the following prior art: 2
Vatanen US 2002/0172190 A1 Nov. 21, 2002
Rosenhaft US 2006/0106679 A1 May 18, 2006
3
REJECTIONS 4
Claims 1-13, 15-21, 23-26, 28-33, 35-50, 52-56, 57-65, 66-79, 80-88, 5
and 89-106 stand rejected under 35 U.S.C. § 102(e) as anticipated by 6
Rosenhaft. 7
Claims 14, 22, 27, 34, 51, and 56 stand rejected under 35 U.S.C. 8
§ 103(a) as unpatentable over Rosenhaft and Vatanen. 9
10
ISSUES 11
The issues pertinent to this appeal are 12
• Whether the Appellant has sustained its burden of showing that the 13
Examiner erred in rejecting claims 1-13, 15-21, 23-26, 28-33, 35-50, 14
52-56, 57-65, 66-79, 80-88, and 89-106 under 35 U.S.C. § 102(e) as 15
anticipated by Rosenhaft. 16
• Whether the Appellant has sustained its burden of showing that the 17
Examiner erred in rejecting claims 14, 22, 27, 34, 51, and 56 under 35 18
U.S.C. § 103(a) as unpatentable over Rosenhaft and Vatanen. 19
The pertinent issues turns on the breadth of the limitations claimed. 20
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FACTS PERTINENT TO THE ISSUES 1
The following enumerated Findings of Fact (FF) are believed to be 2
supported by a preponderance of the evidence. 3
Rosenhaft 4
01. Rosenhaft is directed to a telecommunications initiated data 5
fulfillment system in which a telecommunications input sequence 6
including a multi-function code sequence, such as a "star-pound" 7
(i.e., *#) sequence, initiates an automatic data fulfillment service. 8
Rosenhaft’s system can be used for mobile vending, mobile data 9
delivery, mobile Internet access, mobile WAP communications, 10
and on-demand delivery of promotional information. Rosenhaft ¶ 11
0002. 12
02. The multi-function code is followed by an input data string to 13
complete the multi-function code service request, which the user 14
typically enters into the telecommunications device just like a 15
conventional telephone call, except that the input string begins 16
with the multi-function code (e.g., *#). Rosenhaft ¶ 0004. 17
03. The data fulfillment center responds to the message by 18
implementing a response action indicated by the multi-function 19
code service request. For example, the data fulfillment center may 20
respond by transmitting a message over a wireless data network or 21
the Internet to implement a service, such as activation of a 22
vending machine, remote control of device, delivery of a message 23
over the Internet, delivery of a message over a wireless data 24
network, initiation of an interactive Internet session with the 25
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originating device, or a wide range of other services. Rosenhaft ¶ 1
0006 & 0029. 2
04. A telecommunications switch receives the communication from 3
the telecommunication device, recognizes the multifunction key 4
sequence as a trigger code and identifies an identification code 5
associated with the telecommunication device. In response to the 6
detected trigger event, the telecommunications switch looks up a 7
pre-defined data address associated with the input sequence, the 8
identification code, or a combination of the input sequence and the 9
identification code. The telecommunications switch then 10
assembles a data message associated with the input sequence, the 11
identification code, or a combination of these items, and transmits 12
the data message to the data address, which is also associated with 13
a data fulfillment platform. The data fulfillment platform 14
associated with the data address then implements an appropriate 15
response action in response to the data message. Rosenhaft ¶ 0007 16
& 0026. 17
05. In one example, a restaurant may display an advertising code, 18
and the data fulfillment center may respond to receipt of a multi-19
function code service request containing the restaurant's 20
advertising code by e-mailing the restaurant's menu to an e-mail 21
address associated with the directory number assigned to the 22
originating telecommunications device. Rosenhaft ¶ 0031. 23
06. The originating telecommunications device may also receive 24
the response action for implementing a delivery system for 25
electronic information, such as news, music, multimedia, 26
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literature, and so forth. The system may be used to deliver 1
virtually any type of data associated with a displayed advertising 2
code, such as product information, driving directions, coupons, 3
financial prospectus, inventory listing, safety guidelines, repair 4
instructions, schematic diagram, event tickets and access 5
credentials, photograph, weather forecast, music file, and the like. 6
Rosenhaft ¶ 0047. 7
07. FIG. 1 illustrates the steps implemented to complete the mobile 8
vending transaction. In step one, the customer enters the 9
appropriate input string, namely the multi-function code service 10
request into his or her telecommunications device. The input 11
string is received at a trigger-enabled telecommunications switch. 12
The mobile vending instruction set instructs the switch to look up 13
a data address, assemble a data message, and send the data 14
message to the data address. For example, the data address may 15
identify a data fulfillment platform operated by the proprietor of 16
the mobile vending system. The data message typically includes 17
the identifying information for the originating telecommunications 18
device, such as the directory number assigned to that device, and 19
the multi-function code service request, which is the input 20
sequence entered into the telecommunications device to initiate 21
the service. Rosenhaft ¶ 0037-38. 22
08. In step two, the switch delivers the data message to the data 23
fulfillment platform. For example, the information needed to 24
create the data message may be obtained from a conventional 25
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CDR1 created by the switch, since virtually all 1
telecommunications switches create CDRs as part of their normal 2
operations. These CDRs include the input sequence and the 3
originating directory number for all telecommunications calls 4
originated by the switch, and for MTSO2 systems include location 5
information regarding the originating location of the call, and 6
therefore contain the information necessary to assemble the data 7
message. Accordingly, a proprietary device may read the 8
information necessary to assemble the data message from a 9
completed CDR, and the proprietary device may, in turn, assemble 10
the data message. This may be advantageous to shift the 11
processing burden associated with assembling the data message 12
from the switch to the proprietary device. Rosenhaft ¶ 0040-41. 13
09. The data fulfillment platform receives the data message, and 14
readily identifies the originating telecommunications device from 15
the directory number assigned to that device, which is included as 16
part of the data message. The data fulfillment platform also 17
identifies the product code and the customer's PIN from the input 18
sequence, which is also part of the data message. The data 19
fulfillment platform also identifies the location of the originating 20
telecommunications device, which corresponds to the location of 21
the vending machine, from the location data included in the data 22
message. From the information, the data fulfillment platform 23

1 CDR - call detail record
2 MTSO – Mobile Telephone Switching Office
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processes the multi-function code service request to complete the 1
transaction. Rosenhaft ¶ 0042. 2
10. In implementation, the data fulfillment platform maintains a 3
client data base containing customer profile data indexed to the 4
directory number assigned to each customer's telecommunications 5
device. This customer profile record typically includes the 6
directory number assigned to the corresponding customer's 7
telecommunications device (or other indexing parameter), the 8
customer's PIN, payment authority (e.g., credit account, debit 9
account, wire transfer, or other payment authority), and may 10
include other customer profile data to implement security or other 11
types of purchasing limits. Additional security measures, such as 12
encryption keys and other types of electronic identification (e.g., 13
storage and receipt of "mother's maiden name" and other 14
techniques familiar to those skilled in the art), may be 15
implemented at the data fulfillment platform to prevent 16
unauthorized access and alteration of customer profile data. 17
Rosenhaft ¶ 0043. 18
11. In step 3, the data fulfillment platform validates the received 19
multi-function code service request, typically verifying that the 20
correct PIN is included in the input sequence. The data fulfillment 21
platform also determines whether to execute the purchase based 22
on the customer profile data, and by checking whether payment 23
authority is presently valid for the amount of the requested 24
purchase. If the request is valid and authorized, the data 25
fulfillment platform charges the cost of the purchase to the 26
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customer's account. In step 4, the data fulfillment platform credits 1
the vendor's account for the amount of the purchase, which is 2
typically entered into a customer database maintained or contacted 3
by the data fulfillment platform. That is, the data fulfillment 4
platform completes the financial portion of the transaction by 5
charging the customer's account, and crediting the vendor's 6
account, for the amount of the purchase. Rosenhaft ¶ 0044. 7
12. In step 5, the data fulfillment platform implements the response 8
action, namely, remote activation of the vending machine to 9
deliver the purchased product to the customer. This is typically 10
implemented by sending a wireless data message from the data 11
fulfillment platform to the vending machine over a wireless data 12
network. Alternatively, a paging system, short messaging system 13
associated with a mobile telephone system, or other type of 14
wireless data message may be used. In addition, if the vending 15
machine has some type of land-line connection, a land-line 16
telephone, Internet or similar type of message may be used to 17
activate the vending machine. The only requirement is that the 18
data fulfillment platform be capable of remotely activating the 19
vending machine, either directly or indirectly, after it has verified 20
the multi-function code service request and validated the payment 21
authorization, and in connection with completing the financial 22
portion of the transaction. Rosenhaft ¶ 0045. 23
Vatanen 24
13. Vatanen is directed to the secure routing of information in a 25
telecommunication system. Vatanen ¶ 0002. 26
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14. Vatanen describes using Bluetooth or infrared communications 1
from the originating device. Vatanen ¶ 0015. 2
Facts Related to Claim Construction 3
15. The disclosure contains no lexicographic definition of “session 4
key.” 5
16. The ordinary and customary meaning of “session key” is that of 6
a key related in some manner to a session. A key is a string of 7
data. Therefore a session key is a string of data related in some 8
manner to the computer session in which is used. 9
Facts Related To The Level Of Skill In The Art 10
17. Neither the Examiner nor the Appellant has addressed the level 11
of ordinary skill in the pertinent arts of systems analysis and 12
programming, embedded system design, automated device 13
control, data communications, and device communications 14
protocol design. We will therefore consider the cited prior art as 15
representative of the level of ordinary skill in the art. See Okajima 16
v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he 17
absence of specific findings on the level of skill in the art does not 18
give rise to reversible error ‘where the prior art itself reflects an 19
appropriate level and a need for testimony is not shown’”) 20
(quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 21
F.2d 158, 163 (Fed. Cir. 1985). 22
Facts Related To Secondary Considerations 23
18. There is no evidence on record of secondary considerations of 24
non-obviousness for our consideration. 25
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PRINCIPLES OF LAW 1
Anticipation 2
"A claim is anticipated only if each and every element as set forth in 3
the claim is found, either expressly or inherently described, in a single prior 4
art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 5
628, 631 (Fed. Cir. 1987). "When a claim covers several structures or 6
compositions, either generically or as alternatives, the claim is deemed 7
anticipated if any of the structures or compositions within the scope of the 8
claim is known in the prior art." Brown v. 3M, 265 F.3d 1349, 1351 (Fed. 9
Cir. 2001). "The identical invention must be shown in as complete detail as 10
is contained in the ... claim." Richardson v. Suzuki Motor Co., 868 F.2d 11
1226, 1236 (Fed. Cir. 1989). The elements must be arranged as required by 12
the claim, but this is not an ipsissimis verbis test, i.e., identity of terminology 13
is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). 14
Obviousness 15
A claimed invention is unpatentable if the differences between it and 16
the prior art are “such that the subject matter as a whole would have been 17
obvious at the time the invention was made to a person having ordinary skill 18
in the art.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007); Graham 19
v. John Deere Co., 383 U.S. 1, 13-14 (1966). 20
In Graham, the Court held that that the obviousness analysis is 21
bottomed on several basic factual inquiries: “[(1)] the scope and content of 22
the prior art are to be determined; [(2)] differences between the prior art and 23
the claims at issue are to be ascertained; and [(3)] the level of ordinary skill 24
in the pertinent art resolved.” Graham, 383 U.S. at 17. See also KSR, 550 25
U.S. at 406. “The combination of familiar elements according to known 26
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methods is likely to be obvious when it does no more than yield predictable 1
results.” KSR, 550 U.S. at 416. 2
ANALYSIS 3
Claims 1-13, 15-21, 23-26, 28-33, 35-50, 52-56, 57-65, 66-79, 80-88, and 4
89-106 rejected under 35 U.S.C. § 102(e) as anticipated by Rosenhaft. 5
The Appellant argues each of these claims individually. There is a high 6
degree of repetition among these claims, and only a subset of the limitations 7
is argued by the Appellant. Accordingly, we will analyze the issues 8
presented by the various limitations that are argued, rather than analyze each 9
claim individually. 10
Issue – Communicating with and controlling a device by another device via 11
a third device 12
Claims 1-13, 15-21, 23-26, 28-33, 35-50, 52-56, 57-64 13
These claims recite various combinations of having one device control 14
another device by way of yet another device. Thus, the claims recite three 15
devices, each exhibiting some form of communication with and control over 16
a succeeding device, with a final communication and control from the third 17
device back to the first device. The Examiner found that Rosenhaft does so 18
by having an originating device communicate with and control a switch, 19
which in turn communicates with and controls a wireless data network. This 20
wireless data network finally communicates with and controls the 21
originating device. Ans. 12. 22
The Appellant argues that Rosenhaft’s third device is a data fulfillment 23
platform because the only communication arrow in Rosenhaft’s Fig. 1 24
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emanating from Rosenhaft’s ISP points to a data fulfillment platform. App. 1
Br. 71. The Appellant further argues that Rosenhaft’s operator device is not 2
controlled by this data fulfillment platform negating any description of the 3
third device controlling the first device as claimed. App. Br. 72. This 4
argument is essentially copied verbatim for each of the claims in this group. 5
As to this issue, the Examiner is correct. Rosenhaft is directed to a 6
telecommunications initiated data fulfillment system used for mobile 7
vending or data delivery. FF 01. This is implemented by an originating 8
device that communicates with and controls a data fulfillment center by way 9
of coded input strings FF 02 & 03. This center in turn communicates with 10
and controls the wireless data network to deliver a message back to the 11
originating device. FF 03. The data fulfillment center operates by way of 12
the telecommunication switch as the Examiner found. FF 04. For example, 13
the circuit of three devices in Rosenhaft results in each of the devices 14
communicating with and controlling the succeeding device until an email 15
containing the desired information is finally sent back to the originating 16
device. FF 05. 17
The Appellant’s arguments present an overly narrow view of Rosenhaft, 18
assuming that each device is necessarily limited to that portrayed as the 19
immediate successor in Rosenhaft’s flow diagrams. Nothing in the claims 20
narrows the scope of each of the devices, nor do they narrow the scope of 21
the communication channels. Thus, each device may be any one or group of 22
device that succeeds the preceding devices. Similarly, the communication 23
channel may pass through one or more of the blocks in Rosenhaft’s diagram, 24
so long as each communication channel succeeds all of its predecessor 25
channels. 26
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Issue – Communicating a payment or a credit 1
Claims 4, 6, 12, 20, 25, 30, 36, 73, 80, 88, and 93 2
These claims recite communicating a payment or credit. The Examiner 3
found that Rosenhaft does so. Ans. 3. The Appellant does not contend 4
otherwise. We agree that Rosenhaft recited this. FF 10. The Appellant 5
relied on the arguments in support of the first issue to support these claims. 6
(Appeal Br. 209). We found this argument unpersuasive supra. 7
Issue – Receiving a request to validate a session key building operation 8
Claims 65, 71, 72, 81, and 87 9
These claims recite receiving a request on a user operable device to 10
validate a session key building operation. The Examiner found that 11
Rosenhaft does so. Ans. 5. The Appellant contends that Rosenhaft’s 12
verifying of a PIN is not requesting validation of a session key. Appeal Br. 13
288. This argument is repeated for each of the claims. We agree that 14
Rosenhaft recited verifying a PIN. FF 11. So the issue is whether this 15
describes receiving a request to validate a session key building operation. 16
The Specification contains no lexicographic definition of a session key. 17
A session key is generally a string of data related in some manner to the 18
computer session in which is used. FF 15-16. A PIN is a string of data 19
entered during a session. Thus, a PIN is a string of data related in some 20
manner to the computer session in which is used. The data string in which a 21
PIN is entered builds that string up. Verification is a form of validation. 22
Accordingly, Rosenhaft’s routing for PIN verification describes receiving a 23
request for validating a session key building operation. 24
25
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Claims 66 and 70 1
These claims recite generating a session key. The Examiner found that 2
Rosenhaft does so. Ans. 6. We agree that Rosenhaft recites this feature. 3
FF 11. The Appellant repeated the arguments regarding receiving a request 4
to validate a session key building operation to support these claims. Appeal 5
Br. 297. We found this argument unpersuasive supra. 6
Claims 67, 83, and 103 7
These claims recite receiving the communication based on the user 8
input; and generating a session key. The Examiner found that Rosenhaft 9
does so. Ans. 6. We agree that Rosenhaft recites this feature. FF 11. The 10
Appellant repeated the arguments regarding receiving a request to validate a 11
session key building operation to support these claims. Appeal Br. 305. We 12
found this argument unpersuasive supra. 13
Claims 68, 84, and 104 14
These claims recite generating the session key being done on other than 15
the user operable device. The Examiner found that Rosenhaft does so. Ans. 16
6. We agree that Rosenhaft recites this feature. FF 11. The Appellant 17
repeated the arguments regarding receiving a request to validate a session 18
key building operation to support these claims. Appeal Br. 322. We found 19
this argument unpersuasive supra. 20
Claims 69, 85, and 105 21
These claims recite the user input validating the session key building 22
operation which is then performed on the user operable device generating a 23
session key. The Examiner found that Rosenhaft does so. Ans. 6. We agree 24
that Rosenhaft recites this feature. FF 11. The Appellant repeated the 25
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arguments regarding receiving a request to validate a session key building 1
operation to support these claims. Appeal Br. 332. We found this argument 2
unpersuasive supra. 3
Claims 74, 78, 79, 89, and 92 4
These claims recite requesting, validating, and generating a session key. 5
The Examiner found that Rosenhaft does so. Ans. 6. We agree that 6
Rosenhaft recites this feature. FF 11. The Appellant repeated the arguments 7
regarding receiving a request to validate a session key building operation to 8
support these claims. Appeal Br. 343. We found this argument 9
unpersuasive supra. 10
Claims 75, 90, and 98 11
These claims recite receiving on the first device the generated session 12
key, and requesting, validating, and generating a session key. The Examiner 13
found that Rosenhaft does so. Ans. 7. We agree that Rosenhaft recited this. 14
FF 11. The Appellant relied on the arguments in support of patentability of 15
the parent claims as to claims 78 and 90, and repeated the arguments 16
regarding receiving a request to validate a session key building operation to 17
support claim 98. Appeal Br. 353-359. We found this argument 18
unpersuasive supra. 19
Claims 76 and 91 20
These claims recite the first device being a user operable device. The 21
Examiner found that Rosenhaft does so. Ans. 7. We agree that Rosenhaft 22
recited this. FF 11. The Appellant relied on the arguments in support of 23
patentability of the parent claims. Ans. 360-362. We found this argument 24
unpersuasive supra. 25
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Claim 77 1
This claim recites being performed in response to receiving a 2
communication on the third device. The Examiner found that Rosenhaft 3
does so. Ans. 7. We agree that Rosenhaft recited this. FF 12. The 4
Appellant relied on the arguments in support of patentability of the parent 5
claims. Appeal Br. 364-365. We found this argument unpersuasive supra. 6
Claims 80, 88, 93 7
These claims recite communicating a payment or credit. The Examiner 8
found that Rosenhaft does so. Ans. 7. We agree that Rosenhaft recited this. 9
FF 10. The Appellant relied on the arguments in support of patentability of 10
the parent claims. Appeal Br. 367-369. We found this argument 11
unpersuasive supra. 12
Claims 82 and 102 13
These claims recite the user input validating the session key building 14
operation request and the communication based on the user input indicating 15
such. The Examiner found that Rosenhaft does so. Ans. 7. We agree that 16
Rosenhaft recites this feature. FF 11. The Appellant relied on the 17
arguments in support of patentability of the parent claims. Appeal Br. 370-18
372. We found this argument unpersuasive supra. 19
Claims 86 and 106 20
These claims recite the communication based on the user input including 21
the session key. The Examiner found that Rosenhaft does so. Ans. 7. We 22
agree that Rosenhaft recites this feature. FF 11. The Appellant relied on the 23
arguments in support of patentability of the parent claims. Appeal Br. 373-24
375. We found this argument unpersuasive supra. 25
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Claims 94 and 96 1
These claims recite requesting and validating a session key. The 2
Examiner found that Rosenhaft does so. Ans. 8. We agree that Rosenhaft 3
recites this feature. FF 11. The Appellant relied on and repeated the 4
arguments regarding receiving a request to validate a session key building 5
operation. Appeal Br. 379-381. We found this argument unpersuasive 6
supra. 7
Claim 95 8
This claim recites the signal being based upon an input selected from the 9
group consisting of the request to validate the session key building 10
operation, the user input, a combination of the request to validate the session 11
key building operation and the user input, a user based identification, and a 12
user entry. The Examiner found that Rosenhaft does so. Ans. 8. We agree 13
that Rosenhaft recites this feature. FF 11. The Appellant relied on the 14
arguments in support of patentability of the parent claim. Appeal Br. 383. 15
We found this argument unpersuasive supra. 16
Claims 97 and 100 17
These claims recite transmitting and receiving a session key request, 18
validation request, validation, and actual key. The Examiner found that 19
Rosenhaft does so. Ans. 8-9. We agree that Rosenhaft recites this feature. 20
FF 11. The Appellant repeated the arguments regarding receiving a request 21
to validate a session key building operation. Appeal Br. 389. The 22
Appellant again argued that operations upon a PIN are not operations upon a 23
session key. We found this argument unpersuasive supra. 24
25
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1
Claim 99 2
This claim recites transmitting an identification. The Examiner found 3
that Rosenhaft does so. Ans. 9. We agree that Rosenhaft recites this feature. 4
FF 11. The Appellant repeated the arguments regarding receiving a request 5
to validate a session key building operation. Appeal Br. 394-395. The 6
Appellant again argued that operations upon a PIN are not operations upon a 7
session key. We found this argument unpersuasive supra. 8
Claim 101 9
This claim recites receiving a request to validate a session key. The 10
Examiner found that Rosenhaft does so. Ans. 9. We agree that Rosenhaft 11
recites this feature. FF 11. The Appellant repeated the arguments regarding 12
receiving a request to validate a session key building operation. Appeal Br. 13
399. The Appellant again argued that operations upon a PIN are not 14
operations upon a session key. We found this argument unpersuasive supra. 15
Claims 14, 22, 27, 34, 51, and 56 rejected under 35 U.S.C. § 103(a) as 16
unpatentable over Rosenhaft and Vatanen. 17
These claims recite that the first communication link is unidirectional 18
from the first device to the second device. The Appellant argues each of 19
these claims individually. However, the Appellant presents the same four 20
arguments in support of each claim. Appeal Br. 402-413. 21
The first argument is that the claims are patentable based on the 22
patentability of their parent claims. We found the parent claims to be 23
anticipated supra. 24
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The second argument is that Vatanen teaches away from the claimed 1
invention. The Appellant argues that Vatanen fails to describe the claimed 2
communication from the third to the first device. App. Br. 402-403. 3
However, Rosenhaft describes this, as we found in the anticipation rejection 4
supra. Nonobviousness cannot be established by attacking the references 5
individually when the rejection is predicated upon a combination of prior art 6
disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 7
1986). Nothing in Vatanen suggests that such a communication would 8
detract from a successful implementation. 9
The third argument is that Rosenhaft does not allow a communication 10
from the third device to the first. This is a repetition of one of the 11
anticipation rejection arguments and we found that Rosenhaft does actually 12
provide this communication in one of its embodiments supra. 13
The fourth argument is that the rationale for the combination makes no 14
sense. The Examiner found that one of ordinary skill would have applied 15
Vatanen’s unidirectional communications, such as via Bluetooth or infrared 16
communication (FF 14) to avoid the complexity of two way communication. 17
Ans. 10. We agree that such simplicity is among the advantages of 18
Bluetooth and infrared communication as know to those of ordinary skill at 19
the time of the invention. 20
CONCLUSIONS OF LAW 21
The Appellant has not sustained its burden of showing that the Examiner 22
erred in rejecting claims 1-13, 15-21, 23-26, 28-33, 35-50, 52-56, 57-65, 66-23
79, 80-88, and 89-106 under 35 U.S.C. § 102(e) as anticipated by Rosenhaft. 24
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The Appellant has not sustained its burden of showing that the Examiner 1
erred in rejecting claims 14, 22, 27, 34, 51, and 56 under 35 U.S.C. § 103(a) 2
as unpatentable over Rosenhaft and Vatanen. 3
DECISION 4
To summarize, our decision is as follows: 5
• The rejection of claims 1-13, 15-21, 23-26, 28-33, 35-50, 52-56, 57-6
65, 66-79, 80-88, and 89-106 under 35 U.S.C. § 102(e) as anticipated 7
by Rosenhaft is sustained. 8
• The rejection of claims 14, 22, 27, 34, 51, and 56 under 35 U.S.C. 9
§ 103(a) as unpatentable over Rosenhaft and Vatanen is sustained. 10
No time period for taking any subsequent action in connection with this 11
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). 12
13
AFFIRMED 14
15
mev 16
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Address 18
HEIMLICH LAW 19
5952 DIAL WAY 20
SAN JOSE CA 95129 21