Ex parte Byrne

Board of Patent Appeals and Interferences

Sep 27, 2001

08359904 (B.P.A.I. Sep. 27, 2001)

On the latest final rejection, Paper No. 25, the1
Examiner objects to claims 7 and 10. Also, in the Examiner’s
answer, Paper No. 28, the Examiner withdraws the 103 rejection
as to claims 7, 10, 16 and 20, see page 3. However, we note
that only claim 16 is free from any kind of rejection either
under 35 U.S.C. § 112 first or second paragraph or under 35
U.S.C. § 103. Therefore, for one reason or another all these
claims are on appeal, except for claim 16 which is indicated
to be allowable.
The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 32
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JOHN D. BYRNE
____________
Appeal No. 1999-1109
Application No. 08/359,904
____________
ON BRIEF
____________
Before RUGGIERO, LALL, and GROSS, Administrative Patent Judges.
LALL, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from
the Examiner's final rejection of claims 1-15 and 17-21.1
Appeal No. 1999-1109
Application No. 08/359,904
2
The disclosed invention is related to a radio telephone
that can be used in at least two radio telephone systems. The
telephone switches between the two radio telephone systems
based upon the velocity of the telephone. Thus, if a user is
moving relatively slowly, such as when walking or standing still
at home or in an office, the telephone will be used with a
first system, such as a cordless based station. However, if a
user is moving relatively fast, such as in a car, the telephone
will switch to a second system, such as a system having a
cellular or satellite based station. A further understanding of
the invention can be obtained by the following claim.
1. A radio telephone operative in at least two
radio telephone systems, the radio telephone comprising
communication means respectively associated with each of the
radio
telephone systems, at least one of the radio telephone systems
being a cellular system and at least one of the radio telephone
systems being a non-cellular system, sensing means for sensing
the velocity of movement of the radio telephone, and selection
means responsive to the sensing means for selecting one of
respective said communication means for the said telephone
systems in dependence, wholly or partially, on the sensed
velocity.
The Examiner relies on the following references:
Benveniste 5,345,499 Sep. 6,
1994
(filed Mar. 23, 1992)
Appeal No. 1999-1109
Application No. 08/359,904
The filing date of the instant application predates the2
filing date of this reference. However, this reference is not
critical to the rejections on appeal as it is only used in the
alternative.
3
Gudmundson et al. (Gudmundson)5,392,453 Feb. 21,
1995
(filed July 19, 1992)
Shiotsuki et al. (Shiotsuki) 5,436,956 July
25,
1995
(filed July 19,1993)
Ivanov et al. (Ivanov) 5,513,380 Apr. 30,
1996
(filed Feb. 14, 1994 )2
Tanaka 61-245639 Oct. 31, 1986
Japanese Patent
Kojima
Japanese Patent 1-73925 Mar. 20, 1989
Ramsdale et al. (Ramsdale)
United Kingdom Patent Application 2,242,805 Oct. 9, 1991
Chia
International Appl. WO 92/12602 July 23,
1992

Yamada
United Kingdom Patent 2,252,699 Aug. 12, 1992
Schellinger et al. (Schellinger)
International Appl. WO 93/16548 Aug. 19, 1993
Mende, W., “On the Hand-Over Rate in Future Cellular Systems”,
IEEE, pgs. 358-362, (1988) (Mende)
Appeal No. 1999-1109
Application No. 08/359,904
4
Claims 17-20 stand rejected under 35 U.S.C. § 112 first
paragraph for lack of written description. Claims 2-10 and 17-
20
stand rejected under 35 U.S.C. § 112, second paragraph. Claims
11-13, 15 and 21 stand rejected under 35 U.S.C. § 102 as
anticipated by Gudmundson. Claims 11-13 and 21 stand rejected
under 35 U.S.C. § 102 as anticipated by Chia. Claims 1, 2, 8
and 9 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Chia in view of Schellinger. Claims 3-5 and 14 stand
rejected over 35 U.S.C. § 103 over Chia, Schellinger and
Shiotsuki. Claims 17-19 stand rejected under 35 U.S.C. § 103
over Chia in view of Tanaka and Benveniste
or Ivanov or Kojima or Ramsdale or Yamada or Mende.
Appeal No. 1999-1109
Application No. 08/359,904
The principal brief was filed as Paper No. 20 on3
September 2, 1997. The Examiner mailed out the last final
rejection as Paper No. 25 on February 19, 1998, after the
principal brief and a prior Examiner’s answer, Paper No. 21, a
prior reply brief, Paper No. 22, and a second prior reply
brief, Paper No. 24. Appellant filed a supplemental appeal
brief, Paper No. 26, in which he referred to the principal
appeal brief, Paper No. 20, and merely supplemented the
arguments given in that brief by this supplemental brief. The
Examiner mailed out the last Examiner’s answer, Paper No. 28,
which forms the basis of our decision. Appellant filed the
last reply brief, Paper No. 29, in response
to the Examiner’s answer. The Examiner noted entry of this
last reply brief, see Paper No. 30, without any further
response.
5
Rather than repeat the arguments of Appellant and the
Examiner, we make reference to the briefs and the answer for3
their respective details thereof.
OPINION
We have considered the rejections advanced by the Examiner
and the supporting arguments. We have, likewise, reviewed the
Appellant's arguments set forth in the briefs.
We affirm.
At the outset, we note that there are a number of grounds
of rejection in this case. We will consider each ground of
rejection separately.
Appeal No. 1999-1109
Application No. 08/359,904
6
35 U.S.C. § 112, first paragraph, written description
On page 4 of the Examiner’s answer, the Examiner rejects
claims 17-20 under this ground of rejection as the claims
contain subject matter which was not described in the
specification in such a way as to reasonably convey to one
skilled in the relevant art that the inventor, at the time the
application was filed, had possession of the claimed invention.
Specifically, the Examiner asserts, id.
at 4, that “[a]lthough it does adequately mention that other
device can be use (sic) to measure ‘user velocity,’ nothing
about ‘absolute velocity,’ and it does not state anywhere it has
no regard to relative velocity of the telephone relative to the
base station.” Appellant argues, brief (Paper No. 20) at page
5, that “[f]or example, page 5, lines 8-11 of the Application
describe use of a car speedometer. A car speedometer senses
absolute velocity without regard to relative velocity of the
telephone relative to the base station.”
The written description requirement serves "to ensure that
the inventor had possession, as of the filing date of the
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Application No. 08/359,904
7
application relied on, of the specific subject matter later
claimed by him;
how the specification accomplishes this is not material." In re
Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976). In
order to meet the written description requirement, the
appellants do not have to utilize any particular form of
disclosure to describe the subject matter claimed, but "the
description must clearly allow persons of ordinary skill in the
art to recognize that [he or she] invented what is claimed." In
re Gosteli, 872 F.2d 1008, 1012,
10 USPQ2d 1614, 1618 (Fed. Cir. 1989). Put another way, "the
applicant must ... convey with reasonable clarity to those
skilled in the art that, as of the filing date sought, he or she
was in possession of the invention." Vasilkov-Cath, Inc. v.
Mahurkar,
935 F.2d 1555, 1563-64, 19 USPQ2d 1111, 1117 (Fed. Cir. 1991).
Finally, "[p]recisely how close the original description must
come to comply with the description requirement of section 112
must
be determined on a case-by-case basis." Eiselstein v. Frank,
52 F.3d 1035, 1039, 34 USPQ2d 1467, 1470 (Fed. Cir. 1995)
Appeal No. 1999-1109
Application No. 08/359,904
8
(quoting Vasilkov-Cath, 935 F.2d at 1561, 19 USPQ2d at 1116).
We have reviewed the specification at page 5 and we agree
with Appellant that a mention is made of a car speedometer as
well as an inertial navigation unit as examples of the types of
device which can be used to measure the velocity. However, the
specification leaves the possibility that the velocity can be of
any type of velocity and not necessarily restricted to absolute
velocity which is shown by the examples. Thus, the
specification states at page 5 that “[t]he network may then
either command the terminal to change to the macro-cellular
system or advise the terminal of its detected velocity, enabling
the terminal to make the decision about system change over.” We
note that this statement does not restrict itself to the
absolute velocity which is to be used in this determination of
the terminal change over. Therefore, we agree with the Examiner
that the specification lacks the support of the written
description which would enable an artisan to appreciate that the
inventor had possession of the invention regarding restricting
the system to the absolute velocity. Therefore, we sustain the
rejection of claims 17-20 under 35 U.S.C. § 112, first paragraph
for lack of written description.
Appeal No. 1999-1109
Application No. 08/359,904
9
Rejection under 35 U.S.C. § 112, second paragraph
The Examiner rejects claims 2-10 and 17-20 under this
ground of rejection on page 5 of the Examiner’s answer. With
respect to claim 17, the Examiner contends, id., that “Claim 17
is confusing since terms ‘absolute velocity’ and ‘relative
velocity’ are undefined in the specification.” Appellant at
page 6 of the principal brief argues that “[t]he specification
describes various ways to sense velocity of the telephone
including use of a car speedometer, inertial navigation unit,
GPS satellite navigation system, etc. Clearly, these do not
measure or sense relative velocity of the telephone relative to
the base station. They are used to sense non-relative or
absolute velocity.”
Regarding claim 2, the Examiner asserts, answer at page 5,
that “[c]laim 2 is confusing since both of the telephone systems
are cellular, while the parent claim state (sic) one must be a
non-cellular.” Appellant argues, principal brief at page 6,
that “claim 2 includes three telephone systems; one non-cellular
and
two cellular.”
Appeal No. 1999-1109
Application No. 08/359,904
10
The second paragraph of 35 U.S.C. § 112 requires claims
to set out and circumscribe a particular area with a reasonable
degree of precision and particularity. In re Johnson, 558 F.2d
1008, 1015, 194 USPQ 187, 193 (CCPA 1977). In making this
determination, the definiteness of the language employed in the
claims must be analyzed, not in a vacuum, but always in light of
the teachings of the prior art and of the particular application
disclosure as it would be interpreted by one possessing the
ordinary level of skill in the pertinent art. id.
The Examiner's focus during examination of claims for
compliance with the requirement for definiteness of 35 U.S.C.
§ 112, second paragraph, is whether the claims meet the
threshold requirements of clarity and precision, not whether
more suitable language or modes of expression are available.
Some latitude in the manner of expression and the aptness of
terms is permitted even though the claim language is not as
precise as the Examiner might desire. If the scope of the
invention sought to be patented cannot be determined from the
language of the claims with a reasonable
degree of certainty, a rejection of the claims under 35 U.S.C.
§ 112, second paragraph, is appropriate.
Appeal No. 1999-1109
Application No. 08/359,904
11
With respect to claim 17, we are of the opinion that the
absolute velocity terms and the relative velocity terms are not
clearly defined in the specification as we have explained above
regarding the written description requirement. Thus, we agree
with the Examiner that claim 17 and dependent claims 18-20 are
indefinite under 35 U.S.C. § 112, second paragraph. Regarding
claim 2, however, we agree with Appellant that claim 1, the
parent claim of claim 2, is not restricted to only two telephone
systems. Appellant is correct in arguing that claim 2 contains
three telephone systems and it is not in conflict with the
language of claim 1. Therefore, we do not sustain the rejection
of claim 2 and its dependent claims 3-10 under 35 U.S.C. § 112,
second paragraph.
Rejections under 35 U.S.C. § 102
There are two sets of rejections under this ground of
rejection using two different references. Before we discuss any
Appeal No. 1999-1109
Application No. 08/359,904
12
rejection we cite below the well established law for this ground
of rejection.
A prior art reference anticipates the subject of a claim
when the reference discloses every feature of the claimed
invention, either explicitly or inherently, See Hazani v. Int'l
Trade Comm'n, 126 F.3d 1473, 1477, 44 USPQ2d 1358, 1361 (Fed.
Cir. 1997) and
RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440,
1444,
221 USPQ 385, 388 (Fed. Cir. 1984).
We now consider each of the references separately.
Gudmundson
Examiner rejects claims 11-13, 15 and 21 as anticipated by
Gudmundson. The Examiner, at pages 5 and 6 of the answer,
explains in detail the rejection of these claims. In
particular, the Examiner, inter alia, makes reference to figure
5 of Gudmundson. Appellant argues, brief at page 8, “Gudmundson
et al. only relates to use of a radio telephone in a single type
of radio telephone system; such as a TDMA system or a CDMA
system. The single radio telephone system is divided up in
different cell layers ....”
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Application No. 08/359,904
13
Further, with respect to claim 11, Appellant argues, brief
at page 9, that this claim “calls for two distinct radio
telephone systems; a micro-cellular telephone system and a
macro-cellular telephone system. However, Gudmundson et al.
merely discloses different size cells in a single radio
telephone system.” We disagree. In our view, claim 11 does not
recite any different types of telephone systems, it merely asks
for a micro cellular telephone system and a macro cellular
telephone system; and Gudmunson clearly shows a telephone system
which utilizes both a macro cellular system and a micro cellular
system, as the Examiner has pointed out in his Examiner’s
answer.
Regarding claims 12 and 21, brief at pages 9 and 10,
Appellant makes the same argument that these claims recite two
different radio telephone systems having different types of base
stations. However, for the same reason as for claim 11, we
uphold the rejection of these claims as explained by the
Examiner at pages 5 and 6 of the Examiner’s answer. Therefore,
we sustain the anticipation rejection of claims 11-13, 15 and 21
by Gudmundson.
Chia
Appeal No. 1999-1109
Application No. 08/359,904
14
The Examiner rejects claims 11-13, and 21 as anticipated
by Chia on page 7 of the Examiner’s answer. Particularly, the
Examiner makes reference to pages 8 and 13 and Figure 1 of Chia.
Appellant again argues, brief at pages 10-12, that claims 11, 12
and 21 call for two distinct radio telephone systems and
handover occurs when the velocity of the telephone exceeds a
threshold velocity. However, we find that in each of these
claims
there is a macro cellular telephone system and a micro cellular
telephone system, and depending upon the threshold velocity, a
handover occurs among one type of cellular system or across the
two different types of cellular systems involving the micro and
macro cells. We agree with the Examiner that Chia shows such a
system in Figure 1 and describes it in more detail on pages 8
and 13 of the disclosure. Chia, for example, states that its
system is arranged to determine, from a look-up table of stored
templates of conditions for handover, whether a handover between
base stations and between macro and microcells is appropriate,
see abstract. The look-up table is based on the velocity of
the telephone unit. Therefore, we agree with the Examiner that
Chia anticipates claims 11-13 and 21.
Appeal No. 1999-1109
Application No. 08/359,904
15
Rejections under 35 U.S.C. § 103
There are three rejections under this ground of rejection.
We first go over the guidelines of a rejection under 35 U.S.C.
§ 103.
In our analysis, we are guided by the general proposition
that in an appeal involving a rejection under 35 U.S.C. § 103,
an examiner is under a burden to make out a prima facie case of
obviousness. If that burden is met, the burden of going forward
then shifts to the applicant to overcome the prima facie case
with argument and/or evidence. Obviousness is then determined
on the basis of the evidence as a whole and the relative
persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Hedges,
783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re
Piasecki,
745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In
re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
We are further guided by the precedent of our reviewing court
that the limitations from the disclosure are not to be imported
into the claims. In re Lundberg, 244 F.2d 543, 113 USPQ 530
(CCPA 1957);
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Application No. 08/359,904
16
In re Queener, 796 F.2d 461, 230 USPQ 438 (Fed. Cir. 1986). We
also note that the arguments not made separately for any
individual claim or claims are considered waived. See 37 CFR §
1.192(a) and (c). In re Baxter Travenol Labs., 952 F.2d 388,
391, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991) (“It is not the
function of this court to examine the claims in greater detail
than argued by an appellant, looking for nonobviousness
distinctions over the prior art.”); In re Wiechert, 370 F.2d
927, 936, 152 USPQ 247, 254 (CCPA 1967)(“This court has
uniformly followed the sound rule that an issue raised below
which is not argued in that court, even if it has been properly
brought here by reason of appeal is regarded as abandoned and
will not be considered. It is our function as a court to decide
disputed issues, not to create them.”).
We now consider each of the three rejections under
different combinations of references individually.
Chia and Schellinger
The Examiner rejects claims 1, 2, 8 and 9 under this
combination at page 8 of the Examiner’s answer. According to
the Examiner, Schellinger teaches the use of the selection of a
radio system under certain conditions, which is a non-cellular
Appeal No. 1999-1109
Application No. 08/359,904
17
system; and it would have been obvious to incorporate the use of
one of the radio telephone systems being a non-cellular system
in Chia. Appellant argues, brief at page 13, that “Claim 1
calls for a radio telephone with respective communication means
associated with two radio telephone systems.” Appellant further
argues, id., that “there is no disclosure or suggestion in
either Chia or Schellinger of a non-cellular system. There is
no disclosure or suggestion in either Chia or Schellinger of a
radio telephone operative in two radio telephone systems; one
cellular and one non-cellular.” We disagree with Appellant’s
position. To the extent claimed, as we discussed before, Chia
shows two telephone systems, one having macrocells in it and the
other having microcells. Schellinger, however, teaches the use
of a cellular system and a non-cellular system in Figure 2, see
also Figures 5 and 6-2. In our view, an artisan having a
knowledge of the communications involving mobile telephone
systems would have found it obvious to combine Chia with
Schellinger’s teachings of using a cellular and non-cellular
system in the communication systems shown by Chia.
With respect to claim 9, Appellant argues, brief at page
14, that “[h]owever, as noted on page 7, lines 10-12 of Chia,
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Application No. 08/359,904
18
‘rate or change’ of signal strength is not used by the speed
estimator. Instead, the speed estimator in Chia uses an
averaged signal.”
We disagree with Appellant’s position. On pages 8 and 9 of
Chia, it is described that the changing of the template is
proportional to the velocity of the mobile unit. Therefore, the
velocity is being used as determinative of the template
selection which is related to the signal strength. As we
discussed before, to the extent claimed, the velocity recited in
the claim is not limited to the absolute velocity, contrary to
the position argued by Appellant.
Therefore, we sustain the obviousness rejection of claims
1, 2, 8 and 9 over Chia in view of Schellinger.
Chia, Schellinger and Shiotsuki
The Examiner rejects claims 3-5 and 14 over this
combination. According to the Examiner, answer at page 9, Chia
in view of Schellinger et al. discloses all the subject matter
claimed except for the velocity of movement being determined by
sensing the rate at which the radio telephone moves across cell
boundaries. The Examiner contends, id. at 10, that “it would
have been obvious ... to incorporate the velocity of movement is
Appeal No. 1999-1109
Application No. 08/359,904
19
(sic) determined by sensing the rate at which the radio
telephone moves across cell boundaries, as taught by Shiotsuki,
et al in the radio telephone and method of Chia in view of
Schellinger, et al in order to effectively control the time
interval of issuing handoff request.” Appellant argues, brief
at page 15, that “[t]here is no velocity sensing means in
Shitsuki [sic, Shiotsuki] et al. Shitsuki [sic, Shiotsuki] et
al. merely uses a level crossing rate to delay a handoff. There
is no disclosure or suggestion in Shitsuki [sic, Shiotsuki] al.
of using a level crossing rate to sense velocity that is
subsequently used to select between two radio telephone
systems.” We disagree with Appellant’s position. Figure 4 of
Shiotsuki shows that a high rate of level crossing would give
rise to a short time interval of handoff requested signals,
which would correspond to the mobile station moving at a faster
speed, because in a fast moving speed, the handoff has to be
given at a fast rate as the contact with the base stations has
to be made from one region to the next. See column 5 lines, 36-
48. Therefore, we sustain the obviousness rejection of claims
3-5 and 14 over Chia, Schellinger and Shiotsuki.
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Application No. 08/359,904
20
Chia, Tanaka and Benveniste, or Ivanov or Kojima or
Ramsdale or Yamada or Mende

Examiner rejects claims 17-19 under this combination at
pages 10-12 of the Examiner’s answer. Examiner asserts, id. at
10, that “Tanaka teaches the well known use, and the Examiner
takes also official notice as such, of means for sensing
absolute velocity of the telephone without regard to relative
velocity of the telephone relative to the base station in a
radio station for the purpose of operating a radio telephone
base on the radio telephone speed.” The Examiner further
states, id. at 10-11, “it would have been obvious ... to
incorporate the well know (sic) use of means for sensing
absolute velocity of the telephone without regard to relative
velocity of the telephone relative to the base station in the
radio telephone of Chia in order to operate a radio telephone
base on the radio telephone speed.” Appellant argues, brief at
page 18, that “Tanaka does not indicate if the ‘traveling speed’
is absolute velocity or relative velocity. Furthermore, even
if Tanaka and Chia were combined, they would only suggest adding
reception of position registration information, based upon a
time interval calculated with speed estimator 64, to the
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telephone in Chia.” However, we are persuaded by the Examiner’s
argument that Tanaka teaches the use of calculating the use of
distance and time of crossing by a mobile unit to calculate the
absolute velocity of
the mobile unit, see pages 3, 5, and 7 of the English
translation
of Tanaka (a copy of the English translation is enclosed with
this decision). Therefore, we agree with the Examiner that it
would have been obvious to use the teachings of Tanaka regarding
the calculation of the absolute velocity of the mobile unit and
to use absolute velocity to change the handover from one type
of cell to another type of cell in Chia.
Regarding claims 18 and 19, the Examiner asserts, answer at
page 11, that “the use of velocity of movement is determined by
sensing the rate at which the radio telephone moves across cell
boundaries in a radio telephone system, is well known, as
evidence (sic) by Benveniste or Ivanov, et al or Kojima or
Ramsdale, et al. or Yamada or Mende and the Examiner takes
Official Notice as such, for the purpose of effectively
controlling the time interval of issuing handoff request.”
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Regarding claims 18 and 19, Appellant makes only conclusory
statements that Chia and Tanaka do not show the recited
limitations of these claims (brief at page 18). Such statements
do not constitute proper arguments based on substantial line of
reasoning or factual evidence. Moreover, we have already
discussed the limitations recited in claims 18 and 19.
Therefore, we sustain the obviousness rejection of claims 17-19
over Chia, Tanaka and Benveniste or Kojima or Ramsdale or Yamada
or Mende.
However, we reverse the obviousness rejection of claims 17-19
over Chia, Tanaka and Ivanov, as Ivanov is not prior art against
these claims, as noted at pages 2 and 3 or this decision.
In summary, we have sustained the rejection of claims
17-20, under 35 U.S.C. § 112, first paragraph, written
description; the rejection of claims 17-20, but not of claims 2-
10, under
35 U.S.C. § 112, second paragraph; claims 11-13, 15, and 21
under 35 U.S.C. § 102 as anticipated by Gudmundson; claims 11-13
and 21 as anticipated by Chia; rejection under 35 U.S.C. § 103
of claims 1, 2, 8 and 9 over Chia and Schellinger; claims 3-5
and 14 over Chia, Schellinger and Shiotsuki; and claims 17-19
Appeal No. 1999-1109
Application No. 08/359,904
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over Chia, Tanaka and Benveniste or Ivanov or Kojima or Ramsdale
or Yamada or Mende.
Accordingly, the decision of the Examiner rejecting claims
1-15 and 17-21 is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
PARSHOTAM S. LALL ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ANITA PELLMAN GROSS )
Administrative Patent Judge )
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PSL/jrg
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