Ex Parte Caudill et alDownload PDFPatent Trial and Appeal BoardMay 17, 201714068367 (P.T.A.B. May. 17, 2017) Copy Citation 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. 2 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 3 Appeal 2016-003397 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 4 Appeal 2016-003397 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- 5 Appeal 2016-003397 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. 6 Appeal 2016-003397 Application 14/068,367 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 7 Appeal 2016-003397 Application 14/068,367 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 8 Copy with citationCopy as parenthetical citation