Ex Parte Caudill et al

Patent Trial and Appeal Board

May 17, 2017

14068367 (P.T.A.B. May. 17, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/068,367 10/31/2013 Danny Caudill Locus/17 DIV 1157
27316 7590 05/17/2017
MAYBACK & HOFFMAN, P.A.
5846 S. FLAMINGO ROAD #232
FORT LAUDERDALE, EL 33330
EXAMINER
CHEN, JUNPENG
ART UNIT PAPER NUMBER
2649
MAIL DATE DELIVERY MODE
05/17/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANNY CAUDILL, MICHAEL KEEFE, CHARNA PARKEY,
ROBERT MITCHELL, MURAD QAHWASH, and JOHN McCARTHY
Appeal 2016-003397
Application 14/068,3671
Technology Center 2600
Before KRISTEN L. DROESCH, CATHERINE SHIANG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
DROESCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek review under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 3—23, all of the pending claims in the application.2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants indicate the real party-in-interest is Locus Location Systems,
LLC. App. Br. 2.
2 Claims 1 and 2 have been cancelled.
Appeal 2016-003397
Application 14/068,367
BACKGROUND
The disclosed invention relates to determining health of radio-
frequency transmitters. Spec. Abstract, || 7—8.
CLAIMED SUBJECT MATTER
Representative claim 3, reproduced from the Claims Appendix of the
Appeal Brief, reads as follows (disputed limitations in italics)'.
3. A radio-frequency transmitter health-determining apparatus
for determining health of mobile radio-frequency transmitters
based upon a signal transmitted from respective ones of the
mobile transmitters, each signal transmitted including an
identifier of the one mobile transmitter that transmitted the
signal, the apparatus comprising:
a radio-frequency receiver receiving respective signals
transmitted from the mobile radio-frequency transmitters
during normal operation thereof
a signal-parameter-determining element associated with the
receiver and determining signal parameters from each of the
signals received, the signal parameters being a characteristic of
an operating condition of the respective mobile transmitter that
transmitted one of the signals;
a transmitter-authorization element associated with the signal-
parameter determining element and applying the identifier to
link the signal parameters determined by the signal-parameter­
determining element with a respective one of the mobile
transmitters that transmitted the signal; and
a health-determining element associated with the transmitter-
authorization element and determining a health of each mobile
transmitter that transmitted the signal, the health being based
upon a relationship between:
one or more of the signal parameters; and
a selected value or a range of selected values for each of the
one or more signal parameters.
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Appeal 2016-003397
Application 14/068,367
REJECTIONS ON APPEAL AND APPLIED PRIOR ART
Claims 3, 6—10, 12—17, 19 and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Jollota et al. (US 2004/0142699 Al; July 22,
2004) (“Jollota”), and Maida et al. (US 2011/0039520 Al; Feb. 17, 2011)
(“Maida”).
Claims 4, 5, 11, and 21—23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jollota, Maida, and Frederick (US 6,157,825; Dec. 5,
2000).
Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Jollota, Maida, and Nagy et al. (US 2009/0082009 Al; Mar. 26, 2009)
(“Nagy”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments in the Appeal Brief, the Examiner’s Answer, and Appellants’
arguments in the Reply Brief presented in response to the Answer.
Appellants’ arguments are not persuasive of Examiner error. We agree with,
and adopt as our own, the Examiner’s factual findings and conclusions of
law. We highlight and address specific findings and arguments below for
emphasis.
The Examiner finds that Jollota teaches or suggests nearly all of the
limitations of claim 3, based on Jollota’s descriptions of determining the link
quality between base station units (BSUs) in a wireless network. Final Act.
4—5 (citing Jollota 19, 22, 29, 30, 41, Fig. 3, Fig. 4F, Table 1); Ans. 3—5
(citing Jollota H 5, 6, 21-26, 29, 30, 39-A3, Figs. 1, 4E, 4F, Table 1). The
Examiner finds that Jollota does not teach or suggest that each signal
transmitted includes the identifier of the one mobile transmitter that
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Application 14/068,367
transmitted the signal, and that the BSUs are mobile, but relies on Maida for
teaching these limitations, including finding that Maida’s femtocell access
points “are moveable for relocation (i.e., having mobility).” Ans. 5—6 (citing
Maida 24, 25, 29, 40, 50); see Final Act. 5—6 (citing Maida Tflf 24, 25,
Abstract, Fig. 2). The Examiner determined “it would have been obvious for
a person with ordinary skill in the art at the time the invention was made to
incorporate the teachings of Maida into the teachings of Jollota for the
purpose of utilizing identifiable and moveable femtocell access points to
form a network that ensure[s] successful and reliable handover.” Ans. 6; see
Final Act. 6.
Appellants argue that “[a] mobile transmitter is moved by a person
and/or conveyance while in operation, whereas a BSU is . . . intended to
remain stationary when in use.” App. Br. 18 (citing Ex. A). Appellants
assert that Jollota relates only to BSUs and not mobile transmitters. See id.
at 19, 21—25. Appellants’ arguments addressing the teachings of Jollota
alone are not persuasive because the Examiner relies on the teachings of
Jollota and modified by the teachings of Maida. See Final Act. 4—6; Ans. 3—
6. One cannot show non-obviousness by analyzing a reference individually,
as Appellants have done here, where the rejection is based on a combination
of references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
Appellants further contend that Jollota teaches BSUs, which are not
comparable to the mobile radios of claim 3; they are two completely
different technical structures. See Reply Br. 2. Appellants also contend that
a femtocell access point, as taught by Maida, has nothing to do with the
health of a mobile radio, as femtocells are not mobile. App. Br. 25—26
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Application 14/068,367
(citing Ex. B). Appellants argue that “[f]emtocells can be moved to the
user’s location when not operating but, when they are in use, they are
fixed and immovable with respect to the network.” Id. at 26 (citing Ex. C,
Ex. D); see also id. at 27—29 (arguing that Maida does not describe that the
femtocell access points move during use or circulate around user devices),
Reply Br. 9 (arguing Maid teaches fixed femtocell access points, not mobile
radios). Appellants also argue that when “such femtocells are moved, they
are not within ‘normal operation thereof’ as required in claim 3, “because
they are turned off. Reply Br. 12; see also id. at 11 (arguing that when a
radio is turned off and placed on a desk it is not in “normal operation”).
Appellants’ arguments are not persuasive because they are not
commensurate in scope with the limitations of independent claim 3.
Although Appellants point out that claim 3 recites “receiving respective
signals transmitted from the mobile radio-frequency transmitters during
normal operation thereof’ (see Reply Br. 3, 5, 11—12), we agree with the
Examiner’s finding that claim 3 does not require that the mobile radio-
frequency transmitter must be in use when relocating (see Ans. 19). Based
on the plain language of claim 3, the term “mobile” describes a general
characteristics of the radio-frequency transmitter, and does not require the
radio-frequency transmitter to be both moving and transmitting signals
“during normal operation thereof.” Appellants’ Specification does not
provide an explicit definition for “mobile” or “mobile radio-frequency
transmitter.” See Spec. 120. The ordinary and customary meaning of
“mobile” is “capable of moving or being moved: movable.” Merriam
Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/mobile (based on the print edition of the Merriam-
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Application 14/068,367
Webster’s Collegiate Dictionary, Eleventh ed. (2003)); last accessed May 9,
2017). The plain language of claim 3 requires a radio-frequency transmitter
that is capable of moving or being moved, and requires receiving signals
transmitted from the radio-frequency transmitter during normal operation of
the radio frequency transmitter. Accordingly, we agree with the Examiner’s
findings that Maida’s femtocells teach the claimed mobile radio-frequency
transmitters because Maida’s femtocells are mobile (i.e., capable of
moving), and transmit signals during normal operation thereof.
Appellants contend that Jollota’s disclosure is related to the quality of
links between two BSUs. App. Br. 20, 22—24 (citing Jollota 6, 19, 22, 29,
41, Table 1, Figs. 3, 4F); Reply Br. 4 (citing Jollota 21—26), 5—7.
Appellants contend that “the claimed invention determines the health of an
individual mobile radio — not a BSU — and does so without regard to
the link quality between the mobile radio and the receiver.” App. Br. 20; see
App. Br. 21; Reply Br. 4—7, 9-10. Appellants further argue that neither
Jollota nor Maida teach or suggest mobile transmitter health in the same
manner as the term “health is used and defined by Appellants (acting as
lexicographers to have a very specific meaning)” in the Specification. App.
Br. 20. Appellants assert that the intended meaning of “health,” and what it
does not mean is clearly and thorough discussed in the Specification. See id.
(citing Spec. Tflf 21—30, 34, 35, 57); Reply Br. 11. Appellants direct attention
to the following Specification disclosure:
the term radio “health” refers to performance in accordance
with applicable performance and signal specifications and radio
specifications, as determined by the radio manufacturer, the
user or the network operator. That is, the network operator may
require tighter tolerances for certain signal parameters due to
the characteristics of its network.
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App. Br. 20-21 (quoting Spec. 125). Appellants contend that the term
“health” “does not refer to a condition dependent on distance or link quality—
—rather, it is dependent upon characteristics of the mobile transmitters (i.e.,
the radios).” Id. at 21.
Under the broadest reasonable interpretation standard, claim terms are
given their ordinary and customary meaning as would be understood by one
of ordinary skill in the art in the context of the entire disclosure. In re
Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special
definitions for claim terms must be set forth with reasonable clarity,
deliberateness, and precision. See In re Paulsen, 30 F.3d 1475, 1480 (Fed.
Cir. 1994). In this case, Appellants set forth the following special definition
for “health”: “performance in accordance with applicable performance and
signal specifications and radio specifications, as determined by the radio
manufacturer, the user or the network operator.” Spec. 125. We decline
Appellants’ suggestion to import additional limitations into the claims from
paragraphs 21—30, 34, 35, and 57 of the Specification, as it is improper. See
In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). We agree with the
Examiner’s findings that the Appellants’ special definition is open-ended.
See Ans. 20-21. Appellants do not persuasively explain why the special
definition of “health” precludes link quality or a condition dependent on
distance or link quality. See App. Br. 20—22; Reply Br. 7, 10-11. We
further agree with the Examiner’s finding that the Specification describes at
least one example that uses Relative Signal Strength Indicator (RSSI) as a
signal parameter to determine “health,” which also is an exemplary
parameter used in Jollota to determine whether link quality is acceptable.
See Ans. 21 (citing Spec. 1 32; Jollota 124). Therefore, we agree with the
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Examiner that Jollota’s description of determining link quality, including
measurement of RSSI, teaches or suggests determining a health of each
transmitter, as modified by Maida’s teaching of a mobile femtocell
transmitter.
Lastly, we are not persuaded by Appellants’ conclusory argument that
the combined teachings of Maida with Jollota “cannot function in the way
that the Examiner suggests and, in fact, would destroy the entire
functionality of the BSUs in Jollota if such modifications could ever be
made, which they cannot.” App. Br. 19. Argument of counsel cannot take
the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d
775, 782 (CCPA 1977); see In re Pearson, 494 F.2d 1399, 1405 (CCPA
1974).
For all of the foregoing reasons, Appellants do not persuade us of
error in the rejection of independent claim 3, and claims 6—10, 12—17, 19,
and 20 dependent therefrom and not substantively argued (see App. Br. 29).
Appellants do not present separate substantive arguments addressing the
rejections of independent claims 21 and 22 and dependent claims 4, 5, 11,
18, and 23. See App. Br. 30-31. Accordingly, for the same reasons as those
addressing independent claim 3, Appellants do not persuade us of error in
the rejections of independent claims 21 and 22 and dependent claims 4, 5,
11, 18, and 23.
DECISION
We AFFIRM the rejections of claims 3—23.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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