Ex Parte Cannon et al

Board of Patent Appeals and Interferences

Mar 4, 2009

09761774 (B.P.A.I. Mar. 4, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JOSEPH M. CANNON and JAMES A. JOHANSON
____________

Appeal 2009-0851
Application 09/761,774
Technology Center 2600
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Decided:1 March 5, 2009
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Before MAHSHID D. SAADAT, JOHN A. JEFFERY, and KARL D.
EASTHOM, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-0851
Application 09/761,774

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-14 and 16-23. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.

STATEMENT OF THE CASE
“Piconets” are small wireless networks that can provide peer-to-peer
communications over short distances. Appellants invented a piconet device
and method for optimizing the link quality of the piconet device. The device
provides auditory or visual indications of an acceptable quality level in a
piconet connection. Quality level metrics include received signal strength
indication (RSSI), data transfer, bit rate, and error rate. The device and
system provide the user with the ability to adjust the quality level threshold
based on the particular application.2 Independent claim 1 is reproduced
below:
1. A wireless piconet device, comprising:

a piconet front end;

a piconet connection acceptable quality determiner; and

a variable user link acceptable quality indicator to
indicate an amount of quality achieved beyond that of an
acceptable level necessary to establish a presence in a piconet
network, said acceptable level being configurable by a user of
said wireless piconet device;

wherein said piconet connection acceptable quality
determiner determines a condition of an acceptable level at least

2 See generally Spec. 1:12-2:23, 4:10-22, 6:4-7:16, and 9:15-21.
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Application 09/761,774

one aspect relating to a quality of connection achieved through
said piconet front end determined by comparing a determined
link quality through said piconet front end and a minimum link
quality threshold, and activates said variable user link
acceptable quality indicator based on a quality of said condition
above said acceptable level.

The Examiner relies upon the following as evidence in support of the
rejection:
Blasiak US 5,711,004 Jan. 20, 1998
Gendel US 6,127,936 Oct. 3, 2000
Lebensfeld US 6,311,982 B1 Nov. 6, 2001
(filed Feb. 7, 2000)

Croft US 6,490,439 B1 Dec. 3, 2002
(filed Oct. 4, 2000)

1. Claims 1-14 and 16-23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Croft, Gendel, and Blasiak (Ans. 3-7).
2. Claims 1-14 and 16-23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Croft, Gendel, and Lebensfeld (Ans. 3-7).
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Briefs and the Answer3 for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. Arguments, which Appellants could have made but did not
make in the Briefs, have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).

3 Throughout this opinion, we refer to (1) the most recent Appeal Brief filed
October 5, 2007; (2) the Examiner’s Answer mailed January 29, 2008; and
(3) the Reply Brief filed March 27, 2008.
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Application 09/761,774

REJECTION OVER CROFT, GENDEL, AND BLASIAK
Regarding representative independent claim 1,4 the Examiner finds
that the combination of Croft, Gendel, and Blasiak teaches all the recited
elements (Ans. 3-5). Appellant argues: (1) the combination of Croft and
Gendel does not teach: (a) “a variable user link acceptable quality indicator
to indicate an amount of quality beyond that of an acceptable level necessary
to establish a presence in a piconet network, said acceptable level being
configurable by a user” and (b) “wherein the piconet connection acceptable
quality determiner . . . activates said variable user link acceptable quality
indicator based on a quality of said condition above said acceptable level” as
recited in claim 1 and (2) Blasiak is unrelated to piconets and thus modifying
Croft based on Blasiak’s teaching would not make sense (App. Br. 5-8;
Reply Br. 2-4).

ISSUES
The following issues have been raised in the present appeal:
(1) Have the Appellants shown the Examiner erred by finding
Croft, Gendel, and Blasiak collectively teach an acceptable quality indicator
“to indicate an amount of quality achieved beyond that of an acceptable
level necessary to establish a presence in a piconet network, said acceptable
level being configurable by a user” and “the piconet connection acceptable
quality determiner . . . activates said variable user link acceptable quality

4 Appellant argues claims 1-14 and 16-23 as a group (App. Br. 5-9; Reply
Br. 2-5). Accordingly, we select independent claim 1 as representative. 37
C.F.R. § 41.37(c)(1)(vii).
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Application 09/761,774

indicator based on a quality of said condition above said acceptable level” in
rejecting claim 1 under § 103?
(2) Under § 103, have the Appellants shown the Examiner erred by
finding Blasiak to be analogous art such that its combination with Croft and
Gendel teaches the variable user link acceptable quality indicator is
configurable by a user of the piconet device as recited in claim 1?

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
Croft
1. Croft discloses a Bluetooth system or wireless piconet 801 with
piconet devices 810, 820, 830, and 840 (Croft, col. 8, ll. 5-39; Fig. 8).
2. Croft provides an example of a Bluetooth device’s transceiver 908.
The transceiver includes an antenna 905, a RF module 910, and a link
controller 920 that performs quality of service functions. (Croft, col.
8, l. 40 – col. 9, l. 2; Fig. 9).
3. Croft demonstrates various wireless transceiver embodiments that
include a light emitting diode (LED) or light source (e.g., 1030) for
indicating the incoming signal strength or whether a Bluetooth piconet
has been detected. Signal strength can be indicated by light intensity
or the number of lights illuminated. (Croft, col. 9, l. 30 – col. 10, l. 12
and col. 11, ll. 25-34; Figs. 10A-11).

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Gendel
4. Gendel discloses a wireless RF device having a front end 34 and a
microcontroller 40 that measures the quality of the received incoming
signal (Gendel, col. 1, ll. 22-34 and 53-63 and col. 6, ll. 16-40; Fig. 3).
5. Gendel explains that the number of annunciations (e.g., light flashes
or beeps) produced by the wireless device is a function of the
measured signal strength. One flash indicates weak reception, while
seven flashes indicate exceptionally strong reception. (Gendel, col. 5,
ll. 1-3, 12-30 and 47-49; Fig. 1).
6. Gendel teaches that if the signal strength is below a minimum (e.g.,
MIN in Fig. 1) or below the receiver’s sensitivity threshold, no
annunciations are produced. (Gendel, col. 1, ll. 60-63, col. 4, ll. 66-
67, col. 5, ll. 9-11, 22, 23, and 52-54; Fig. 1).
7. Gendel produces: (1) one annunciation when the signal strength is at
or above a minimum, MIN, and less than the designated signal
strength for two annunciations; (2) two annunciations when the signal
strength is above the maximum designated signal strength for one
annunciation and less than the designated signal strength for three
annunciations; (3) three annunciations when the signal strength is
above the maximum designated signal strength for two annunciations
and less than the designated signal strength for four annunciations;
and so on up to seven annunciations. (Gendel, col. 4, l. 54 – col. 5, l.
20; Fig. 1).
8. Gendel teaches that the visual or auditory indicator permits the user to
determine the optimal place for the wireless device. (Gendel, col. 5,
ll. 49-51).
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Blasiak
9. Blasiak teaches a wireless device (e.g., 106 or 107) that includes a
signal quality threshold value that is adjustable by the user. (Blasiak,
col. 2, ll. 30 and 31 and col. 5, ll. 24-25; Fig. 1).
10. Blasiak teaches the threshold can be adjusted based on the
information (e.g., pure data or voice) transmitted and the user’s
tolerances. (Blasiak, col. 5, ll. 16-30).

Specification
11. The Specification discloses producing a light or sound when the
wireless piconet device “is above (or below) an acceptable connection
quality threshold.” (Spec. 6:27-28).
12. The Specification discloses the RSSI threshold can be configured by
the user based on the particular application. (Spec. 9:17-21).

Lebensfeld
13. Lebensfeld discloses a wireless detecting system 10 that includes (1)
game elements 14 that comprise a wireless transmitter 16, and (2) a
detector element 12. (Lebensfeld, col. 4, ll. 33-45; Fig. 1).
14. Lebensfeld teaches the detector element 12 can have a receiver
circuit 94 with a variable resistor. This allows the user to adjust or set
a desired signal strength threshold depending on the environment to
indicate when the receiver and wireless transmitting element 14 are
within range. (Lebensfeld, col. 7, l. 40 – col. 8, l. 2 and col. 10, ll. 46-
65; Fig. 5).

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Application 09/761,774

PRINCIPLES OF LAW
During examination of a patent application, a claim is given its
broadest reasonable construction “in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad. Of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). “[T]he words of a claim ‘are
generally given their ordinary and customary meaning.’” Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations
omitted).
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 550 U.S. 398,
127 S. Ct. 1727 (2007), explains:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. AG
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black
Rock[, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are
illustrative—a court must ask whether the improvement is more
than the predictable use of prior art elements according to their
established functions.
KSR, 127 S. Ct. at 1740.
As stated in In re Kahn, 441 F.3d 977 (Fed. Cir. 2006), “[t]he
analogous-art test requires that the Board show that a reference is
either in the field of the applicant's endeavor or is reasonably pertinent
to the problem with which the inventor was concerned in order to rely
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Application 09/761,774

on that reference as a basis for rejection.” Id. at 986-87 (citing
Oetiker, 977 F.2d at 1447).

ANALYSIS
Because Appellants argue that neither Croft nor Gendel disclose the
limitation “an acceptable level necessary to establish a presence in a piconet
network,” we begin by construing this limitation in light of the Specification.
Am. Acad, 367 F.3d at 1364. The Specification discusses outputting a light
or sound when the wireless device “is above (or below) an acceptable
connection quality threshold” (FF 11), but does not further explain what the
acceptable connection quality level is. Thus, we construe the phrase “an
acceptable level necessary to establish a presence in a piconet network” in
light of its ordinary and customary meaning.
To be sure, an “acceptable level” to establish a presence can be
subjective to a specific user. At a minimum, however, an acceptable level
would be having a strong enough signal at a close enough range to create a
piconet connection. Thus, contrary to Appellants’ contentions (Reply Br. 2-
3), nothing in claim 1 precludes the minimum link quality threshold for valid
reception from also being the acceptable quality level. Giving this phrase its
broadest reasonable interpretation, we find that “an acceptable level
necessary to establish a presence in a piconet network” means the wireless
device’s quality level is high enough or “acceptable” to establish a
connection with a piconet network. With this construction, we turn to the
cited art.
Croft discloses a transceiver 908 (i.e, a wireless piconet device) with
an RF module 910 that fully meets the recited “front end.” See FF 1-2. The
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Application 09/761,774

Croft device can also include a “quality indicator” (LED or light source
1030) that displays incoming signal strength or the existence of piconet
connection (i.e., whether a Bluetooth piconet has been detected) in terms of
light intensity or the number of lights illuminated (FF 3). As the Examiner
acknowledges (Ans. 3-4), Croft does not expressly disclose a “quality
indicator to indicate the amount of quality achieved beyond that of an
acceptable level necessary to establish a presence in a piconet network,” as
recited in claim 1.
Gendel demonstrates a known “quality indicator” (microcontroller 40)
used with wireless RF devices that shows the incoming signal strength above
a designated threshold or level (FF 4-5). Gendel teaches producing a series
of light flashes or beeps to indicate when the signal strength surpasses a
minimum threshold (MIN) and other thresholds above the minimum
threshold (FF 6-7) so that the user can determine the optimal location for the
device (FF 8). To illustrate, Gendel teaches that no flashes or beeps are
produced when the signal strength is below a minimum threshold amount or
MIN (FF 6). By having no flashes or beeps, Gendel indicates the strength or
quality of the signal has not achieved a minimum acceptable level (MIN)
necessary to make a connection or establish a presence in a piconet. Once
the minimum threshold is surpassed or is beyond an acceptable minimum
level to establish a presence in a piconet, Gendel flashes a single light (FF 5-
7).
To explain even further, Figure 1 of Gendel is reproduced below:
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Application 09/761,774

Figure 1 - Showing Different Annunciations versus Signal
Strength

This figure shows steps or signal strength ranges corresponding to a number
of annunciations (e.g., flashes), such as one flash for any signal having a
strength in the range equal to MIN and less than the leftmost threshold
arrow. For any signal strength to the right of the leftmost arrow and to the
left of the next leftmost threshold arrow, the number of flashes will be two
and so on. Gendel, in essence, demonstrates a number of acceptable levels
for the user to choose from (shown by MIN, the five threshold arrows, and
MAX), and each is indicated by a different number of light flashes. Thus, a
person with ordinary skill in the art would have recognized Gendel’s
teaching would predictably improve Croft’s device by not only using the
lights to indicate the signal strength intensity, but also when certain
thresholds have been surpassed so a user can locate the optimal place for the
device (FF 8). See KSR, 127 S. Ct. at 1740. Gendel, therefore, teaches the
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inclusion of a variable link acceptable quality indicator to indicate an
amount of quality achieved beyond that of an acceptable level (e.g., one of
MIN, five threshold arrows, and MAX) necessary to establish a presence in
a piconet network as recited in claim 1.
Arguably, the user of Gendel’s device can choose a preferred number
of light flashes as an acceptable level to establish a presence in a piconet and
the acceptable level is, therefore, configurable by the user. Nonetheless,
Blasiak also teaches a wireless device having an adjustable signal quality
threshold value set by the user (FF 9). Armed with Blasiak’s teaching, one
skilled in the art would have recognized a predictable improvement over the
Croft/Gendel device includes an acceptable quality indicator that a user can
configure depending on the transmitted data (e.g., voice versus pure data)
and the user’s tolerances (FF 10). As such, the combination of Croft,
Gendel, and Blasiak teaches the limitation of “a variable user link acceptable
quality indicator to indicate the amount of quality achieved beyond that of
an acceptance level necessary to establish a presence in a piconet, said
acceptable level being configurable by a user of said wireless piconet device,
wherein said piconet connection acceptable quality determiner determines a
condition of an acceptable level . . . by comparing a determined link quality
through said piconet front end and a minimum link quality threshold, and
activates said variable user link acceptable quality indicator based on a
quality of said condition above said acceptable level,” as recited in claim 1.
Appellants contend that Blasiak relates to hand-off technology and not
piconets and, therefore, is not combinable with Croft and Gendel (App. Br.
7; Reply Br. 3-4). We disagree. First, the Examiner cites Blasiak for its
specific teaching of a known technique used with wireless devices to permit
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the user to select the device’s signal strength threshold level depending on
the kind of data transmitted and user’s tolerances (FF 9). Second, Croft,
Gendel, and Blasiak all are in the same field of endeavor of detecting and
indicating signal strength in wireless technologies. Moreover, Blasiak’s
teaching reasonably relates to the problem with which the inventor was
concerned, which includes permitting the user to configure the signal
strength threshold based on the particular application (FF 12). Therefore, we
find Blasiak is analogous art. See Kahn, 441 F.3d at 986-87.
For the above reasons, Appellants have not shown the Examiner erred
in rejecting claims 1-14 and 16-23 under 35 U.S.C. § 103(a) as being
unpatentable over Croft, Gendel, and Blasiak.

REJECTION OVER CROFT, GENDEL, AND LEBENSFELD

The Examiner has presented an alternative obviousness rejection
based on Croft, Gendel, and Lebensfeld (Ans. 3-7). Regarding
representative independent claim 1,5 Appellants have made the same
arguments with respect to Croft and Gendel for this alternative rejection
(App. Br. 5 and 6). As such, the previous discussion of Croft and Gendel
applies equally to this argument, and we incorporate that discussion by
reference.
Regarding Lebensfeld, Appellants contend that the disclosed
adjustable threshold circuit relates to a game and not a piconet and, therefore
is therefore not combinable with Croft and Gendel (App. Br. 8; Reply Br. 4).

5 Appellant argues claims 1-14 and 16-23 as a group (App. Br. 5-9; Reply
Br. 2-5). Accordingly, we select independent claim 1 as representative. 37
C.F.R. § 41.37(c)(1)(vii).
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The issue before us is whether the Appellants have shown the Examiner
erred by finding Lebensfeld to be analogous art such that its combination
with Croft and Gendel teaches the variable user link acceptable quality
indicator is configurable by a user of the piconet device in rejecting claim 1
under § 103(a).
As we indicated previously, Croft, Gendel, and Blasiak all are in the
same field of endeavor of detecting and indicating signal strength in wireless
technologies. Additionally, the Examiner cites Lebensfeld for its specific
teaching of a known technique used with wireless devices to permit the user
to adjust a preferred signal strength threshold level (FF 13-14) and not for its
teaching regarding a game. Despite Lebensfeld’s amusement application, it
nonetheless utilizes wireless communications among its various
components. See FF 13 and 14. As such, Lebensfeld also reasonably relates
to Appellants’ problem of providing the user with control over an acceptable
signal strength or quality link level for a wireless device depending on the
environment or its application. See FF 12 and 14. Therefore, we find
Lebensfeld is analogous art.
For the above reasons, Appellants have not shown the Examiner erred
in rejecting claims 1-14 and 16-23 under 35 U.S.C. § 103(a) as being
unpatentable over Croft, Gendel, and Lebensfeld.

CONCLUSIONS
For the foregoing reasons:
(1) Appellants have not shown the Examiner erred by finding Croft,
Gendel, and Blasiak collectively teach an acceptable quality indicator “to
indicate an amount of quality achieved beyond that of an acceptable level
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Application 09/761,774

necessary to establish a presence in a piconet network, said acceptable level
being configurable by a user” and “the piconet connection acceptable quality
determiner . . . activates said variable user link acceptable quality indicator
based on a quality of said condition above said acceptable level” in rejecting
claim 1 under § 103.
(2) Appellants have not shown the Examiner erred by finding Blasiak
and Lebensfeld to be analogous art such that their combination with Croft
and Gendel teaches the variable user link acceptable quality indicator is
configurable by a user of the piconet device in rejecting claim 1 under § 103.
Accordingly, we will sustain the Examiner’s rejection of claim 1-14
and 16-23.

DECISION
The decision of the Examiner to reject claims 1-14 and 16-23 is
affirmed.
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No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

ELD

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