Ex Parte CampDownload PDFBoard of Patent Appeals and InterferencesDec 4, 200810278511 (B.P.A.I. Dec. 4, 2008) Copy Citation 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 Appeal 2008-0605 Application 10/278,511 2 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 Appeal 2008-0605 Application 10/278,511 3 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 Appeal 2008-0605 Application 10/278,511 4 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 Appeal 2008-0605 Application 10/278,511 5 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 Appeal 2008-0605 Application 10/278,511 6 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 Appeal 2008-0605 Application 10/278,511 7 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 Appeal 2008-0605 Application 10/278,511 8 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’â€) 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 Appeal 2008-0605 Application 10/278,511 9 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 Appeal 2008-0605 Application 10/278,511 10 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 Appeal 2008-0605 Application 10/278,511 11 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 Appeal 2008-0605 Application 10/278,511 12 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 Appeal 2008-0605 Application 10/278,511 13 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 Appeal 2008-0605 Application 10/278,511 14 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 Appeal 2008-0605 Application 10/278,511 15 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 Appeal 2008-0605 Application 10/278,511 16 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 Appeal 2008-0605 Application 10/278,511 17 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 Appeal 2008-0605 Application 10/278,511 18 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 Appeal 2008-0605 Application 10/278,511 19 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 Appeal 2008-0605 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 Appeal 2008-0605 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 Appeal 2008-0605 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 5 6 7 8 9 10 11 12 13 14 hh 15 16 MYERS BIGEL SIBLEY & SAJOVEC, P.A. 17 P.O. BOX 37428 18 RALEIGH, NC 27627 19 20 Copy with citationCopy as parenthetical citation