Ex Parte Camp

Board of Patent Appeals and Interferences

Dec 4, 2008

10278511 (B.P.A.I. Dec. 4, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
___________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
___________ 6
7
Ex parte WILLIAM O. CAMP, JR. 8
___________ 9
10
Appeal 2008-0605 11
Application 10/278,511 12
Technology Center 3600 13
___________ 14
15
Decided: December 4, 2008 16
___________ 17
18
Before WILLIAM F. PATE, III, LINDA E. HORNER, and 19
ANTON W. FETTING, Administrative Patent Judges. 20
21
FETTING, Administrative Patent Judge. 22
23
24
DECISION ON APPEAL 25
STATEMENT OF THE CASE 26
William O. Camp, Jr. (Appellant) seeks review under 35 U.S.C. § 134 27
of a final rejection of claims 1-41, the only claims pending in the application 28
on appeal. 29
We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b) 30
(2002).31
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We AFFIRM. 1
The Appellant invented a way of determining the position of a mobile 2
terminal. The position of the mobile terminal is estimated based on range 3
estimates derived from digital television signals from a digital television 4
transmitter and range estimates derived from signals from at least one other 5
type of transmitter. (Specification 4:30 – 5:1). 6
An understanding of the invention can be derived from a reading of 7
exemplary claim 1, which is reproduced below [bracketed matter and some 8
paragraphing added]. 9
1. A method for determining the position of a mobile terminal 10
comprising: 11
estimating the position of the mobile terminal 12
[1] based on range estimates 13
derived from digital television signals 14
received at the mobile terminal from at least one 15
digital television transmitter and 16
[2] based on range estimates 17
derived from signals 18
received at the mobile terminal from a mobile 19
telecommunication network transmitter, 20
[3] wherein the estimated position of the mobile terminal 21
is determined based on 22
[3.a] at least one range estimate derived from the 23
digital television signals and 24
[3.b] at least one range estimate derived from the 25
signals received at the mobile terminal from a 26
mobile telecommunication network transmitter. 27
28
This appeal arises from the Examiner’s final Rejection, mailed March 29
30, 2006. The Appellant filed an Appeal Brief in support of the appeal on 30
March 1, 2007. An Examiner’s Answer to the Appeal Brief was mailed on 31
July 12, 2007. A Reply Brief was filed on August 7, 2007. 32
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PRIOR ART 1
The Examiner relies upon the following prior art: 2
Rother DE 3,242,997 A1 May 24, 1984 3
Engelbrecht US 5,510,801 Apr. 23, 1996 4
Loomis US 5,936,572 Aug. 10, 1999 5
Camp WO 99/61934 Dec. 2, 1999 6
Counselman US 6,492,945 B2 Dec. 10, 2002 7
Oh US 2003/0128161 A1 Jul. 10, 2003 8
9
S. Rooney et al., Accurate Vehicular Positioning using a DAB-GSM 10
Hybrid System, Department of Communication Systems, IEEE 97-101 11
(May, 2000). 12
13
REJECTIONS 14
Claims 1-24 and 26-41 stand rejected under 35 U.S.C. § 103(a) as 15
unpatentable over Oh, Counselman, and Engelbrecht. 16
Claims 1-41 stand rejected under 35 U.S.C. § 103(a) as unpatentable 17
over Loomis, Rooney, and Rother. 18
19
ISSUES 20
The issues pertinent to this appeal are 21
• Whether the Appellant has sustained its burden of showing that the 22
Examiner erred in rejecting claims 1-24 and 26-41 under 35 U.S.C. § 23
103(a) as unpatentable over Oh, Counselman, and Engelbrecht. 24
• Whether the Appellant has sustained its burden of showing that the 25
Examiner erred in rejecting claims 1-41 under 35 U.S.C. § 103(a) as 26
unpatentable over Loomis, Rooney, and Rother. 27
The pertinent issues turn on whether the use of television signals with 28
other radio signals would have been predictable to one of ordinary skill in 29
the art of automated geographic positioning. 30
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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
Engelbrecht 4
01. Engelbrecht is directed to a position or location determination 5
system using conventional commercial television broadcast 6
signals (Engelbrecht 1:17-20). 7
02. Television broadcast stations use a signal transmission format 8
that permits the extraction of timing information from the signals 9
and, using the velocity of radio wave propagation, convert this 10
timing information into distance information (Engelbrecht 1:21-11
25). 12
03. Television signals have the advantages of very high power that 13
operate over a wide area with substantial building penetration; 14
uniformity of format that makes extraction of timing signals low 15
cost, and being highly stable and accurate (Engelbrecht 1:29-67). 16
04. Engelbrecht uses a logic circuit to select the most reliable of the 17
different location signals for use (Engelbrecht 1:44-45). 18
05. Engelbrecht teaches that more than 3 stations can be used to 1) 19
provide solutions where one or more signals may be unacceptable 20
due to blockage, multipath, etc., and 2) provide improved 21
accuracy because of the multiplicity of signals contributing to the 22
solution (Engelbrecht 2:47-51). 23
Oh 24
06. Oh is directed to locating a mobile device by noting times of 25
arrival of signals that travel between the mobile device and a 26
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plural transmitters or receivers located at known positions, and 1
computing a location based on the noted times of arrival (Oh ¶ 2
0001). 3
07. Oh describes improving accuracy by using smart subsetting to 4
select which of the available time measurements should be used as 5
the basis for forming the location estimate (Oh ¶ 0032). 6
08. Oh ranks the signals in terms of quality according to one or 7
more criteria and forms subsets of the signals based on those ranks 8
(Oh ¶’s 0033-37). 9
09. Among the criteria that may be used to rank the time 10
measurements are the signal to noise ratio (SNR) or carrier to 11
interference ratio (CIR) (Oh ¶ 0034). 12
Counselman 13
10. Counselman is directed to techniques for determining position 14
by radio, from carrier-wave phases of radio signals received from 15
transmitters having different carrier-wave frequencies 16
(Counselman 1:10-14). 17
11. Counselman describes that it is known in the art of determining 18
position by radio, to utilize signals of opportunity, by which 19
Counselman means signals emitted by uncooperative transmitters 20
(Counselman 3:7-16). 21
12. Counselman describes its locating system as applicable to a 22
wide variety of frequencies and types of signals, and different 23
ones will be preferable in different situations. Counselman 24
describes using both AM and FM-broadcast-band signals 25
(Counselman 18:51-61). One of ordinary skill in the radio 26
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transmission arts knew that television is and was broadcast using 1
FM. 2
Loomis 3
13. Loomis is directed to use of two or more location determination 4
systems, where one of these systems may use radio carrier or 5
subcarrier waves, to determine the location of a mobile user of the 6
systems (Loomis 1:10-14). 7
14. Loomis determines the location with three or more spaced apart 8
transmitters of radiowaves operating with different radio carrier 9
frequencies, with each radio transmitter being positioned at fixed, 10
known locations, such as nearby radio stations (Loomis 4:39-51). 11
15. Loomis describes two distinct positioning systems, referred to 12
as the indoor system and the outdoor system, each capable of 13
operating independently from each other. The indoor and outdoor 14
systems use different types of radio signals operating at different 15
frequencies from each other (Loomis 4:39-5:13). 16
16. Loomis describes that determination of the location of a mobile 17
user by employing signals from two or more systems offers the 18
advantage that each of these systems can be utilized in situations 19
where that system is most likely to provide an accurate estimate of 20
the location (Loomis 5:23-28). 21
17. Loomis portrays the full FM signal spectrum and the useful 22
portion of the signal that remains after frequency filtering (Loomis 23
Fig. 2). Loomis describes how FM subcarrier signals can be used 24
for all monitoring of the present location of a user, which has the 25
advantage of simplicity: only one set of radiowaves is used for 26
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location determination. FM signals are less subject to noise and 1
other interference than are other signals, such as AM signals 2
(Loomis 6:59-7:8). 3
18. One of ordinary skill in the radio broadcasting arts knew that 4
the FM subcarrier signals referred to in (FF 17) were a carrier 5
within the transmitted signal carrier. Thus, Loomis’ reference to a 6
single set of radiowaves in FF 17 referred to the constant 19 kHz 7
radio spectrum present in all broadcast FM signals, and not to a 8
single broadcast signal. 9
19. These two systems may be operated in a single hybrid 10
integrated mode as well to improve accuracy (Loomis 4:39-46). 11
20. Loomis describes choosing between location estimates based on 12
accuracy (Loomis 12:50-53). 13
21. Loomis describes criteria for determining relative accuracy as 14
including signal strength (Loomis 13:5-6) and signal to noise ratio 15
(Looms 13:64-67). 16
Rother 17
22. Rother is directed to geographic positioning with television and 18
satellite signals (Rother:Abstract). 19
23. Rother describes that in order to be able to perform one way 20
distance measurements to all transmitters whose signals are 21
received, it is necessary with Rother’s technique, that all clocks be 22
synchronized with the system time (Rother 11:Bottom ¶). 23
Rooney 24
24. Rooney is directed to geographic positioning with digital audio 25
broadcast signals (Rooney:Abstract). 26
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25. Rooney uses a technique requiring synchronization among 1
signals for its positioning technique (Rooney 97:Left col., Bottom 2
¶). 3
Facts Related To The Level Of Skill In The Art 4
26. Neither the Examiner nor the Appellant has addressed the level 5
of ordinary skill in the pertinent arts of programming, geographic 6
positioning, radio telecommunications, signal analysis, 7
comparative communications systems analysis, and systems 8
design. We will therefore consider the cited prior art as 9
representative of the level of ordinary skill in the art. See Okajima 10
v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he 11
absence of specific findings on the level of skill in the art does not 12
give rise to reversible error ‘where the prior art itself reflects an 13
appropriate level and a need for testimony is not shown’”) 14
(quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 15
F.2d 158, 163 (Fed. Cir. 1985). 16
Facts Related To Secondary Considerations 17
27. There is no evidence on record of secondary considerations of 18
non-obviousness for our consideration. 19
20
PRINCIPLES OF LAW 21
Claim Construction 22
During examination of a patent application, pending claims are 23
given their broadest reasonable construction consistent with the 24
specification. In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In 25
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). 26
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Limitations appearing in the specification but not recited in the claim 1
are not read into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 2
1364, 1369 (Fed. Cir. 2003) (claims must be interpreted “in view of the 3
specification” without importing limitations from the specification into the 4
claims unnecessarily). 5
Although a patent applicant is entitled to be his or her own lexicographer 6
of patent claim terms, in ex parte prosecution it must be within limits. In re 7
Corr, 347 F.2d 578, 580 (CCPA 1965). The applicant must do so by placing 8
such definitions in the Specification with sufficient clarity to provide a 9
person of ordinary skill in the art with clear and precise notice of the 10
meaning that is to be construed. See also In re Paulsen, 30 F.3d 1475, 1480 11
(Fed. Cir. 1994) (although an inventor is free to define the specific terms 12
used to describe the invention, this must be done with reasonable clarity, 13
deliberateness, and precision; where an inventor chooses to give terms 14
uncommon meanings, the inventor must set out any uncommon definition in 15
some manner within the patent disclosure so as to give one of ordinary skill 16
in the art notice of the change). 17
Obviousness 18
A claimed invention is unpatentable if the differences between it and 19
the prior art are “such that the subject matter as a whole would have been 20
obvious at the time the invention was made to a person having ordinary skill 21
in the art.” 35 U.S.C. § 103(a) (2000); KSR Int’l v. Teleflex Inc., 127 S. Ct. 22
1727, 1729-30 (2007); Graham v. John Deere Co., 383 U.S. 1, 13-14 23
(1966). 24
In Graham, the Court held that the obviousness analysis is bottomed 25
on several basic factual inquiries: “[(1)] the scope and content of the prior 26
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art are to be determined; [(2)] differences between the prior art and the 1
claims at issue are to be ascertained; and [(3)] the level of ordinary skill in 2
the pertinent art resolved.” 383 U.S. at 17. See also KSR Int’l v. Teleflex 3
Inc., 127 S. Ct. at 1734. “The combination of familiar elements according to 4
known methods is likely to be obvious when it does no more than yield 5
predictable results.” KSR, at 1739. 6
“When a work is available in one field of endeavor, design incentives 7
and other market forces can prompt variations of it, either in the same field 8
or a different one. If a person of ordinary skill can implement a predictable 9
variation, § 103 likely bars its patentability.” Id. at 1740. 10
“For the same reason, if a technique has been used to improve one 11
device, and a person of ordinary skill in the art would recognize that it would 12
improve similar devices in the same way, using the technique is obvious 13
unless its actual application is beyond his or her skill.” Id. 14
“Under the correct analysis, any need or problem known in the field 15
of endeavor at the time of invention and addressed by the patent can provide 16
a reason for combining the elements in the manner claimed.” Id. at 1742. 17
18
ANALYSIS 19
Claims 1-24 and 26-41 rejected under 35 U.S.C. § 103(a) as unpatentable 20
over Oh, Counselman, and Engelbrecht. 21
Claims 1-5, 7, 8, 11-15, 17, 18, 21-24, 26-34, 36, 37, 40, and 41 22
The Appellant argues claims 1-5, 7, 8, 11-15, 17, 18, 21-24, 26-34, 23
36, 37, 40, and 41 as a group. The Appellant explicitly relies upon the 24
arguments in favor of claim 1 to support independent claims 4, 14, 23, and 25
26-28 (Appeal Br. 8-9), and does not make any separate arguments 26
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regarding dependent claims 2, 3, 5, 7, 8, 11-13, 15, 17, 18, 21, 22, 24, 29-34, 1
36, 37, 40, or 41. 2
Accordingly, we select claim 1 as representative of the group. 3
37 C.F.R. § 41.37(c)(1)(vii) (2007). 4
The Examiner found that Oh describes geographic positioning of 5
portable devices by triangulation of radio waves in general, Counselman 6
describes the use of different radio frequencies for such geographic 7
positioning to take advantage of whatever radio signals are available, and 8
Engelbrecht describes using television signals for such geographic 9
positioning to take advantage of the ubiquity and strength of such signals. 10
The Examiner also found that one of ordinary skill would have seen that the 11
reasons for using Counselman and Engelbrecht would apply to the 12
triangulation technology of Oh and concluded it would have been obvious to 13
combine their descriptions to achieve the steps in claim 1 (Answer 3-5). 14
The Appellant contends that neither Counselman nor Engelbrecht 15
teaches or suggests mixing different types of radio sources as required by 16
claim 1 (Appeal Br. 8:Bottom ¶). The Appellant argues that Counselman 17
merely describes using signals not intended for position location and at most 18
suggests using a particular type of broadcast signal, not a mixed selection of 19
transmitter types (Appeal Br. 8:First full ¶). The Appellant further argues 20
that Rooney describes the pitfalls of mixing use of signals that are not time 21
coordinated (Appeal Br. 9:Top ¶). 22
Thus the issue before us is whether the combined references would 23
have made the use of several different radio signals, at least one being digital 24
television and another being a mobile telecommunication network 25
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transmitter, predictable in geographic positioning. We find that this would 1
have been predictable to one of ordinary skill from the prior art. 2
We begin by finding that whether Oh describes using range estimates 3
derived from each of three or more mobile telecommunication network 4
transmitter radio signals to estimate the position of a mobile terminal, and 5
whether Engelbrecht describes the use of television signals to estimate the 6
position of a mobile terminal are not in dispute. We also find that Oh and 7
Engelbrecht describe these limitations of claim 1 (FF 01 & 06). Thus, Oh 8
and Engelbrecht clearly describe how to estimate a position based on range 9
estimates from three or more radio wave transmissions, where the radio 10
wave transmissions may be television signals. 11
The Appellant’s argument is then that the claim to using a television 12
and non-television signal among those selected is an unobvious species 13
among the genus of using radio wave signals for position estimation. Since 14
only signals emanating from known positions are useful for such positioning 15
(FF 06), implying the antennas are at fixed known positions, there are 16
necessarily only a limited number of such signals available for positioning at 17
any given location. This itself would imply that one of ordinary skill would 18
understand the genus of all such available signals to be limited and therefore 19
would see all of the individual species of combinations of available signals 20
as useful for such positioning. 21
When there is a design need or market pressure to 22
solve a problem and there are a finite number of 23
identified, predictable solutions, a person of 24
ordinary skill has good reason to pursue the known 25
options within his or her technical grasp. If this 26
leads to the anticipated success, it is likely the 27
product not of innovation but of ordinary skill and 28
common sense. In that instance the fact that a 29
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combination was obvious to try might show that it 1
was obvious under § 103. 2
3
KSR, 127 S. Ct. at 1742. 4
5
This, in fact, is what Counselman describes. Counselman is directed 6
to techniques for determining position by radio, from carrier-wave phases of 7
radio signals received from transmitters having different carrier-wave 8
frequencies (FF 10). Counselman describes that it is known in the art of 9
determining position by radio, to utilize signals of opportunity, by which 10
Counselman means signals emitted by uncooperative transmitters (FF 11). 11
Counselman describes a positioning technique that is applicable to a wide 12
variety of frequencies and types of signals, using both AM and FM-13
broadcast-band signals (FF 12). One of ordinary skill in the radio 14
transmission arts knew that television is and was broadcast with FM (FF 12). 15
Thus Engelbrecht’s television signals would have been within the scope of 16
Counselman’s description. 17
We cannot find anything in Counselman that supports the Appellant’s 18
argument that Counselman describes only using similar types of signals. 19
Counselman’s reference to using available signals of opportunity emitted 20
from uncooperative transmitters would have suggested to one of ordinary 21
skill that signals from any antennas at known locations were to be used. The 22
more signals used, the greater the accuracy. 23
Similarly, Counselman’s use of uncooperative signals is sufficient 24
evidence that one of ordinary skill would have known that signals that were 25
not time coordinated could be used for positioning. Thus, Appellant’s 26
reliance on Rooney, a reference not within the scope of this rejection, and 27
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that relies on a specific technique that, unlike Counselman, happens to 1
require synchronization, is misplaced. 2
Since Engelbrecht describes the advantages of television signals for 3
geographic positioning, and digital television was a known embodiment of 4
television signals at the time of the invention, Counselman’s description of 5
taking advantage of whatever signals are available would necessarily have 6
led to incorporating digital television signals in those areas where such 7
signals were present. Similarly, in locations within range of 8
telecommunication networks, such signals would have also been sufficiently 9
strong to present a signal of opportunity. 10
Claims 6, 16, and 35 11
Claims 6, 16, and 35 further require identifying a plurality of received 12
signals having a best signal quality among the received signals, at least one 13
of the plurality of received signals being a digital television signal; and 14
measuring a time of flight for only the identified plurality of received 15
signals. 16
The Examiner found that this limitation was met by Oh’s use of signals 17
having best quality (Answer 9). The Appellant contends that these 18
limitations are not disclosed by the applied references. 19
We agree with the Examiner that Oh’s use of signals having best 20
quality would have at least made the limitations of these claims predictable. 21
Oh describes improving accuracy by using smart subsetting to select which 22
of the available time measurements should be used as the basis for forming 23
the location estimate (FF 07). Oh ranks the signals in terms of quality 24
according to one or more criteria and forms subsets of the signals based on 25
those ranks (FF 08). Therefore, Oh explicitly identifies a plurality of 26
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received signals having a best signal quality among the received signals, and 1
we found supra that Engelbrecht and Counselman suggested that a digital 2
television signal would be predictably among those signals in many 3
instances. 4
Among the criteria that may be used to rank the time measurements 5
are signal to noise ratio (SNR) or carrier to interference ratio (CIR) (FF 09). 6
These criteria are determined from the signal itself and do not require 7
computing the time of flight. One of ordinary skill would have inferred 8
from these criteria, that having ranked signals according to such criteria, 9
computing statistics such as time of flight for low ranked signals would have 10
been pointless. “[T]he analysis need not seek out precise teachings directed 11
to the specific subject matter of the challenged claim, for a court can take 12
account of the inferences and creative steps that a person of ordinary skill in 13
the art would employ.” KSR. 127 S. Ct. at 1741. 14
Thus, one of ordinary skill, knowing that unnecessary computations 15
are unnecessarily expensive, would have known that when using these as 16
criteria, measuring a time of flight would be needed for only those received 17
signals identified by Oh’s ranking. 18
Claims 9, 10, 19, 20, 38, and 39 19
Claims 9, 10, 19, 20, 38, and 39 further require receiving at least one 20
third type of signal, different from a digital television signal and the second 21
type of signal, at the mobile terminal and estimating the position of the 22
mobile terminal using the range values derived from each of the signals. 23
The Examiner found that Counselman suggested multiple different 24
sources, which implied that a third different source would have been 25
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predictable (Answer 9). The Appellant contends that this limitation is not 1
described by the applied references. 2
We agree the Examiner that Counselman’s suggested multiple 3
different sources implied that a third different source would have been 4
predictable. Again, Counselman advises using a wide variety of frequencies 5
and types of signals, and that different ones will be preferable in different 6
situations. Counselman also describes using both AM and FM-broadcast-7
band signals. Since a minimum of three signals are needed to locate a 8
receiver, Counselman at least suggested using three different types of 9
signals. 10
We note that the Appellant also argued that claim 25 is patentable 11
over the applied references (Appeal Br. 10), but claim 25 is not within the 12
scope of this rejection, and so this argument is moot. 13
The Appellant has not sustained its burden of showing that the 14
Examiner erred in rejecting claims 1-24 and 26-41 under 35 U.S.C. § 103(a) 15
as unpatentable over Oh, Counselman, and Engelbrecht. 16
Claims 1-41 rejected under 35 U.S.C. § 103(a) as unpatentable over 17
Loomis, Rooney, and Rother. 18
Claims 1-5, 7, 8, 11-15, 17, 18, 21-24, 26-34, 36, 37, 40, and 41 19
The Appellant argues claims 1-5, 7, 8, 11-15, 17, 18, 21-24, 26-34, 20
36, 37, 40, and 41 as a group. The Appellant explicitly relies upon the 21
arguments in favor of claim 1 to support independent claims 4, 14, 23, and 22
26-28 (Appeal Br. 12:Top ¶), and does not make any separate arguments 23
regarding dependent claims 2, 3, 5, 7, 8, 11-13, 15, 17, 18, 21, 22, 24, 29-34, 24
36, 37, 40, or 41. 25
Accordingly, we select claim 1 as representative of the group. 26
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The Examiner found that Loomis describes geographic positioning of 1
portable devices by triangulation of radio waves in general and the use of 2
different types of signals, Rother describes using television signals for such 3
geographic positioning, and Rooney describes using digital signals for 4
geographic positioning. The Examiner also found that one of ordinary skill 5
would have seen that the reasons for applying Rooney’s digital signals to 6
Rother’s television signals as improving accuracy as taught by Rooney, and 7
Rother would apply to the triangulation technology of Loomis and 8
concluded it would have been obvious to combine their descriptions to 9
achieve the steps in claim 1 (Answer 5-7). 10
The Appellant contends that there would have been no motivation to 11
combine Rooney with Loomis because the problem of providing a sufficient 12
number of range estimates is solved by Loomis alone and that Rooney’s 13
problem of indoor versus outdoor signals is unrelated to Loomis (Appeal Br. 14
11:First full ¶). The Appellant further argues that the failure of Loomis to 15
list cellular signals as among the potential source of signals teaches away 16
from the claim (Appeal Br. 11:Second full ¶). 17
Thus the issue before us is whether one of ordinary skill would have 18
combined the applied references in the manner claimed. We find that such a 19
combination would have been predictable to one of ordinary skill from the 20
prior art. 21
We begin by finding that whether Loomis describes using range 22
estimates derived from each of three or more mobile telecommunication 23
network transmitter radio signals using multiple types of signals to estimate 24
the position of a mobile terminal, and whether Rother describes the use of 25
television signals to estimate the position of a mobile terminal are not in 26
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dispute. We also find that Loomis and Rother describe these limitations of 1
claim 1 (FF 14 & 22). Thus, Loomis and Rother clearly describe how to 2
estimate a position based on range estimates from three or more radio wave 3
transmissions of multiple types, where the radio wave transmissions may be 4
television signals. 5
The Appellant’s argument is then that one of ordinary skill would not 6
have applied the digital television signals implied by the combination of 7
Rooney and Rother to Loomis. As we found supra, the nature of the 8
problem itself would imply that one of ordinary skill would understand the 9
genus of all signals available for positioning to be limited and therefore 10
would see all of the individual species of combinations of available signals 11
as useful for such positioning. This alone would suggest applying digital 12
television signals to Loomis where they are available. But Loomis’ teaching 13
to use of multiple sets of different types of signals, such as FM and satellite, 14
to improve accuracy would have suggested other such hybrid location 15
systems, such as the television and satellite signal system of Rother. Since 16
all that is necessary for operation of Loomis’ system is that the transmitters 17
operate with different radio carrier frequencies, with each radio transmitter 18
being positioned at fixed, known locations, clearly any radio signal, 19
including television signals, are usable. Thus, we find that the improved 20
accuracy of using digital television signals, where available, would have 21
provided sufficient motivation for one of ordinary skill to apply Rother and 22
Rooney to Loomis. 23
We further find that the absence of an explicit reference to cellular 24
signals in Loomis does not reduce the availability of such signals in actual 25
practice at the time of the invention. Such signals would have emanated 26
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from cellular antennas with known fixed locations, which is the essential 1
requirement in Loomis. 2
We finally note that the Appellant argued, after the Examiner’s 3
Answer, that Loomis teaches away from using other sources by referring to 4
using one set of radiowaves (Reply Br. 3:First full ¶). However, this portion 5
of Loomis describes how FM subcarrier signals can be used for all 6
monitoring of the present location of a user, which has the advantage of 7
simplicity: only one set of radiowaves is used for location determination 8
(FF 17). One of ordinary skill in the radio broadcasting arts knew that the 9
FM subcarrier signals referred to in Loomis were a carrier within the 10
transmitted signal carrier. Thus, Loomis’ reference to a single set of 11
radiowaves refers to the constant 19 kHz radio spectrum present in all 12
broadcast FM signals, and not to a single broadcast signal (FF 18). 13
Therefore, this was not a teaching away from using multiple broadcast 14
signals. 15
Claims 6, 16, and 35 16
The Appellants argued claims 6, 16, and 35 as a group. As such, we 17
select claim 6 as the representative claim. (App. Br. 12). The requirements 18
of claim 6 is discussed, supra. The Examiner found that this limitation was 19
met by Loomis’ use of signals having best quality (Answer 11). The 20
Appellant contends that these limitations are not disclosed by the applied 21
references. 22
We agree with the Examiner that Loomis’ use of signals having best 23
quality would have at least made the limitations of these claims predictable. 24
Loomis describes improving accuracy by choosing between location 25
estimates based on accuracy (FF 20). Loomis ranks the signals in terms of 26
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Application 10/278,511

20
quality according to criteria such as signal strength and signal to noise ration 1
(FF 21). Therefore, Loomis explicitly identifies a plurality of received 2
signals having a best signal quality among the received signals, and we 3
found supra that Rooney and Rother suggested that a digital television signal 4
would be predictably among those signals in many instances for improved 5
accuracy. 6
The signal to noise ratio or signal strength are characteristics of the 7
signal itself and do not require computing the time of flight. One of ordinary 8
skill would have inferred from these criteria, that having ranked signals 9
according to such criteria, computing statistics such as time of flight for low 10
ranked signals would have been pointless. Thus, one of ordinary skill, 11
knowing that unnecessary computations are unnecessarily expensive, would 12
have known that when using these as criteria, measuring a time of flight 13
would be needed for only those received signals identified by Loomis’ 14
ranking. 15
Claims 9, 10, 19, 20, 38, and 39 16
The requirements of these claims are discussed, supra. The Examiner 17
found that Loomis described using two or more systems (Answer 11). The 18
Appellant contends that this limitation is not described by the applied 19
references. 20
We agree with the Examiner that Loomis’ suggested two or more 21
different systems for improved accuracy (FF 16) implied that a third 22
different source would have been predictable. 23
Claim 25 24
Claim 25 further requires synchronizing clocks among base stations 25
and with the digital television transmitter. 26
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Application 10/278,511

21
The Examiner found that Rother described this limitation (Answer 1
11). The Appellant contends that this limitation is not described by the 2
applied references. 3
We agree with the Examiner that Rother described that all of its 4
clocks were to be synchronized, which would have included base stations 5
and television transmitters (FF 23). 6
The Appellant has not sustained its burden of showing that the 7
Examiner erred in rejecting claims 1-41 under 35 U.S.C. § 103(a) as 8
unpatentable over Loomis, Rooney, and Rother. 9
10
CONCLUSIONS OF LAW 11
The Appellant has not sustained its burden of showing that the 12
Examiner erred in rejecting claims 1-41 under 35 U.S.C. § 103(a) as 13
unpatentable over the prior art. 14
On this record, the Appellant is not entitled to a patent containing 15
claims 1-41. 16
17
DECISION 18
To summarize, our decision is as follows: 19
• The rejection of claims 1-24 and 26-41 under 35 U.S.C. § 103(a) as 20
unpatentable over Oh, Counselman, and Engelbrecht is sustained. 21
• The rejection of claims 1-41 under 35 U.S.C. § 103(a) as unpatentable 22
over Loomis, Rooney, and Rother is sustained. 23
24
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Application 10/278,511

22
No time period for taking any subsequent action in connection with 1
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007). 2
3
AFFIRMED 4
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14
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MYERS BIGEL SIBLEY & SAJOVEC, P.A. 17
P.O. BOX 37428 18
RALEIGH, NC 27627 19
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