Ex Parte Dore et al

Patent Trial and Appeal Board

Jun 3, 2016

13138517 (P.T.A.B. Jun. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/138,517 09/23/2011
72109 7590 06/07/2016
MYERS WOLIN, LLC
100 HEADQUARTERS PLAZA
NORTH TOWER, 6TH FLOOR
MORRISTOWN, NJ 07960-6834
FIRST NAMED INVENTOR
Renaud Dore
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
THOM 5008 (PF090025) 5704
EXAMINER
0 CONNOR, BRIANT
ART UNIT PAPER NUMBER
2475
NOTIFICATION DATE DELIVERY MODE
06/07/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patent@myerswolin.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RENAUD DORE, GILLES STRAUB, FRANCOIS BARON,
AND PATRICK FONTAINE
Appeal2015-001366
Application 13/138,517
Technology Center 2400
Before ST. JOHN COURTENAY III, TERRENCE W. McMILLIN, and
MATTHEW J. McNEILL, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection, mailed December 20, 2013, of claims 1-14. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
Invention
The claimed invention on appeal is directed to: "the management and
the configuration of a wireless network." (Spec. i-f 1.)
Appeal2015-001366
Application 13/138,517
Representative Claim
1. A method for configuration of a first wireless network
including at least one access point, wherein the method comprises
configuring, by a computer processor, at least one parameter of said at
least one access point of the first wireless network according to at
least a part of a link budget of a second wireless network including at
least two nodes, said nodes being positioned in a determined physical
space, said first and second wireless networks being physically
different.
(Emphasis added regarding the contested limitations.)
Rejections
A. Claims 1-8, 13 and 14 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Rappaport et al. (US 7,295,960 B2; issued
November 13, 2007) ("Rappaport '960").
B. Claims 9, 11 and 12 are rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Rappaport
'960, and Rappaport et al. (US 7,933,605 B2; issued April 26,
2011) ("Rappaport '60 5 ").
C. Claim 10 is rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions of Rappaport '960
and Barak et al. (US 7,969,910 B2; issued June 28, 2011)
("Barak").
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Application 13/138,517
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of all claims
rejected under rejection A on the basis of representative claim 1. See 37
C.F.R. § 41.37(c)(l)(iv). We address rejection B of claims 9, 11and12, and
rejection C of claim 10, infra.
Contentions
Appellants contend, inter alia:
Rappaport does not teach or suggest the presence of two physically
different networks. The USPTO relies on the two access points shown
in Figures 14 and 15A of Rappaport ['960]. But, according to the
express teachings of Rappaport ['960], these two access points
belong to the same network. The USPTO must abide by the express
teachings of Rappaport ['960] when interpreting this reference.
Rappaport ['960] is focused on a single network made up of a number
of different access points ....
Figure 3 shows a single network. Rappaport ['960] clearly states that,
"an example communications net,vork has been defined in FIG. 3"
See Rappaport ['960] at col. 24, lines 41-42. That is, transceivers
301a and 302a are defined by Rappaport ['960] to be the "example
communications network". See Rappaport ['960] at col. 24, lines 39-
56 and col. 26, lines 17-18. Rappaport ['960] expressly states that,
"the network shown in FIG. 3 consists of two types of wireless LAN
access points 301, 302". See Rappaport ['960] at col. 26, lines 17-18.
In other words, Rappaport ['960] defines and realizes a single
communications network with his transceivers (access points)
ACMEOl and ACME02.
(App. Br. 7-8).
The Examiner disagrees, and further explains the basis for the
rejection. (Ans. 4):
Rappaport (US 7 ,295,960) discloses two physically separate
wireless networks in FIGURE 14 and FIGURE 15A. The first
wireless network is on the left-side (indicated by Figure numbers
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1401a and 1505a); and the second wireless network is on the right-
side (indicated by Figure numbers 1402a and the line around Figure
number 1504a.
These two wireless networks are separated by office walls and
room spaces, also these two wireless networks have distinct and
separated access points (see the two ACME transceivers).
Additionally, [] claim 1 recite[ s] that the first network and
second network are wireless and physically different. The claim does
not required (sic) that the networks be logical different or completely
disconnected (being unable to share data or user access);
Rappaport ['960] discloses two different networks that are separated
by physical location and separated by operating frequency.
(emphasis added).
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. We disagree with Appellants' arguments, and we adopt as our
own: ( 1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Answer in response to Appellants' arguments. However, we highlight
and address specific findings and arguments for emphasis in our analysis
below.
Independent Claim 1
Issue: Under § 102, did the Examiner err by finding Rappaport '960
anticipates the contested limitations (emphasized below),
A method for configuration of a first wireless network including at
least one access point, wherein the method comprises configuring, by
a computer processor, at least one parameter of said at least one
access point of the first wireless network according to at least a part of
a link budget of a second wireless network including at least two
nodes, said nodes being positioned in a determined physical space,
said first and second wireless networks being physically different[,]
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within the meaning of representative claim 1?
In reviewing the contested claim language, we find this appeal turns
on claim construction. More specifically, the meaning of the first and
second wireless networks being "physically different" is the principal issue
on appeal ("said first and second wireless networks being physically
different." (Claim 1 ). 1
We tum to Appellants' Specification ( 4--5) for context, and find a
general description of physically different networks, along with several non-
limiting, exemplary embodiments, which refer generally to Appellants'
Figure 1, depicting access points APl, AP2:
The first wireless network is advantageously physically different from
the second wireless network. Generally, a network is characterized by
the access points or the nodes that comprise it, by the use of a band
of frequencies, by the standard implemented, by a temporal period of
activity. The first and second networks are different for example in
that the access points (or the nodes) that comprise them are distinct
and/or in that they use different bands of frequencies and/or in that
they implement different standards (for example respectively Wi-Fi®
and Zigbee) and/or in that the activity periods (that is to say periods of
data transmission/reception) are different from one network to the
other. According to a variant, the access points AP 1, AP2 of the first
network are different to the nodes 101 to 108 of the second network
from a hardware perspective. According to a variant, the access points
AP 1, AP2 are different to the nodes 101 to 108 from a software
perspective.
1 "During prosecution ... the PTO gives claims their 'broadest reasonable
interpretation."' In re Bigio, 381F.3d1320, 1324 (Fed. Cir. 2004) (quoting
In re Hyatt, 211F.3d1367, 1372 (Fed. Cir. 2000)).
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According to a variant, the second network forms a Wi-Fi network
using for example one or more channel frequencies belonging to the
2.4 GHz band of frequencies. The first network and the second
network advantageously use different bands of frequencies, for
example 5 GHz for the first network and 2.4 GHz of the second
network or the inverse. (Emphasis added).
As noted by the Examiner (Ans. 5), Rappaport '960 "discloses two
different networks that are separated by physical location and separated by
operatingfrequency." (emphasis added). The Examiner cites figures 14
and 15A of Rappaport '960, as evidence in support. (Final Act. 3). We
additionally note Rappaport '960, at column 33, lines 4--16, provides a
description of figure 14, and, in particular, transceivers ACMEO 1 ( 1401) and
CSCOOl (1402) which "have been recomputed and reconfigured by the
invention such that they no longer share the same channel or frequency."
(emphasis added).
We find the description (id.) of the two distinct transceivers (wireless
network access points) in Rappaport '960, operating at two different
frequencies, is fully consistent with the description in Appellants
Specification (5) of different networks, as noted above: "The first and second
networks are different for example in that the access points (or the nodes)
that comprise them are distinct and/or in that they use different bands of
frequencies."). 2
2 We note the scope of the claims on appeal, at a minimum, at least
covers the corresponding supporting embodiment( s) described in the
Specification. We emphasize, however, that under a broad but reasonable
interpretation (or the more narrow construction applied by the federal
courts), the scope of the claims is not limited to the preferred embodiments
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Therefore, on this record, we are not persuaded the Examiner's claim
interpretation is overly broad, unreasonable, or inconsistent with the
Specification (5, 11. 1--4). 3 For these reasons, we find Rappaport '960
discloses two "physically different" first and second wireless networks,
when the claim term "physically different" is construed under a broad but
reasonable interpretation, consistent with Appellants' Specification (5, 11. 1-
4).
Accordingly, we find a preponderance of the evidence supports the
Examiner's finding of anticipation regarding representative claim 1.
Because no separate, substantive arguments were advanced for claims 2-8,
13, and 14 (for the specific reasons discussed, infra), these claims fall with
claim 1.
described in the Specification: "[A ]lthough the specification often describes
very specific embodiments of the invention, we have repeatedly warned
against confining the claims to those embodiments .... [C]laims may
embrace 'different subject matter than is illustrated in the specific
embodiments in the specification."' Phillips v. AWH Corp., 415 F.3d 1303,
1323 (Fed. Cir. 2005) (en bane) (citations and internal quotation marks
omitted); Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1346-47 (Fed.
Cir. 2015). Even in cases where the specification describes only a single
embodiment, the claims are not necessarily limited to that embodiment.
Thorner v. Sony Computer Entm 't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
2012) (It is not enough that the only embodiment, or all of the embodiments,
contain a particular limitation to limit a claim to that particular limitation.).
3 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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Dependent Claims 2--8, 13 and 14, rejected under §102(b)
Appellants' arguments for claims 2-8, 13, and 14 appear to be entirely
unrelated to the instant application, and the rejected claims on appeal.
(App. Br. 10-11). Appellants specifically refer to dependent claims 2 and
16, along with subject matter, such as packets, message data segments,
packet length, etc. - none of which are disclosed, or claimed in the instant
appeal. Appellants additionally refer to the "Tarighi" reference, which was
not cited by the Examiner in the rejections before us on appeal. Finally,
there is no claim 16 in the instant application - as noted above, only claims
1-14 are before us on appeal.
Because Appellants' arguments appear to be directed to another
application, we dismiss as moot Appellants' arguments for claims 2-8, 13,
and 14. Further, arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Therefore, we sustain the§ 102(b) rejection of dependent
claims 2-8, 13 and 14, which were rejected under rejection A.
Dependent Claims 9-12, rejected under §103 (a)
Appellants advance no separate arguments for claims 9-12, which are
rejected under rejections Band C. Arguments not made are considered
waived. See 37 C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain the
Examiner's rejections Band C of dependent claims 9-12.
Conclusion
For at least the aforementioned reasons, on this record, and by a
preponderance of the evidence, we are not persuaded the Examiner erred.
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DECISION
We affirm the Examiner's rejection of claims 1-8, 13, and 14, under
§ 102 (b).
We affirm the Examiner's rejections of claims 9-12 under§ 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a) (1). See 37 C.F.R. § 41.50(±).
AFFIRMED
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