Ex Parte Eiger et al

Board of Patent Appeals and Interferences

Jul 14, 2009

09796270 (B.P.A.I. Jul. 14, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte TUVIA EIGER and URIEL BERCHIN
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Appeal 2007-002860
Application 09/796,270
Technology Center 2400
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Decided:1 July 15, 2009
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Before JOSEPH F. RUGGIERO, ROBERT E. NAPPI, and THOMAS S.
HAHN Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 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 2007-002860
Application 09/796,270
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1 through 43.
We reverse.
INVENTION
The invention is directed towards a wireless distribution of
multimedia in a home or business. The multimedia signals are received
from several sources and rebroadcast throughout the site via low power
digital transmissions. See page 1 of Appellants’ Specification. Claim 1 is
reproduced below:
1. A customer premises system including a wireless multimedia
center (WMC) for reception on said premises from one or more signal
sources and for distribution of segments of signals from signal sources
through the wireless multimedia center to a plurality of end units, in
which:
the signals include video or audio signals and broadband
communication data;
the wireless multimedia center receives all the signals and
distributes segments of said signals via a transmitter;
the video signals are transmitted by orthogonal frequency
division multiplexing (OFDM) in which all signals are added together
and summed as an orthogonal array having dimensions of time,
frequency and amplitude, to transmit spread spectrum multiplexed
signals, in which each pulse including said signals has sufficiently
long individual pulse widths to defeat multi-path, reflection and
absorption phase induced losses;
the video signals are broadcast via one or more separate and
dedicated RF channels to one or more end units;
the end units communicate with the wireless multimedia center,
controlling which segments of which signals are distributed to each
end unit, via a separate bi-directional wideband data pipe (WDP)
which provides, as demanded, control for the video channels, data
transfer, or plain old telephone service.

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REFERENCES
Williams US 5,371,548 Dec. 6, 1994
Lee US 5,398,070 Mar. 14, 1995
Adams US 6,124,878 Sep. 26, 2000
Collins US 6,173,326 B1 Jan. 9, 2001
Houston US 6,353,929 B1 Mar. 5 2002
Ben-Michael US 6,560,234 B1 May 6, 2003

REJECTIONS AT ISSUE
The Examiner has rejected claims 1 through 5, 7, 8, 12 through 15, 17
through 21, 25 through 30, 32 through 35, and 37 through 422 under 35
U.S.C. § 103(a) as being unpatentable over Ben-Michael in view of
Williams. The Examiner’s rejection is on pages 4 through 11 of the
Answer.3
The Examiner has rejected claims 6, 9, 10, 11, and 31 under 35 U.S.C.
§ 103(a) as being unpatentable over Ben-Michael in view of Williams and
Adams. The Examiner’s rejection is on pages 11 and 12 of the Answer.
The Examiner has rejected claim 16 under 35 U.S.C. § 103(a) as
being unpatentable over Ben-Michael in view of Williams and Collins. The
Examiner’s rejection is on page 13 of the Answer.
The Examiner has rejected claims 22 through 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Ben-Michael in view of Williams and
Houston. The Examiner’s rejection is on page 13 of the Answer.

2 We note that the Examiner’s statement of the rejection does not identify
claim 40. However, the reasoning supporting the rejection identifies claim
40 as rejected. Therefore we consider claim 40 to be included in the
rejection.
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The Examiner has rejected claim 36 under 35 U.S.C. § 103(a) as
being unpatentable over Ben-Michael in view of Williams and Lee. The
Examiner’s rejection is on page 14 of the Answer.
The Examiner has rejected claim 43 under 35 U.S.C. § 103(a) as
being unpatentable over Ben-Michael in view of Williams, Adams, Collins,
Houston, and Lee. The Examiner’s rejection is on page 14 of the Answer.
ISSUES
Appellants argue on pages 12 through 22 of the Brief4 that the
Examiner’s rejection of claims 1 through 5, 7, 8, 12 through 15, 17 through
21, 25 through 30, 32 through 35, and 37 through 42 under 35 U.S.C.
§ 103(a) as being unpatentable over Ben-Michael in view of Williams is in
error. Appellants argue that the claims recite that the video signals are
broadcasted, which requires a one way communication and that Ben-
Michael does not teach a one way communication of video signals. Brief
12. Appellants also argue that Ben-Michael in combination with Williams
does not teach transmitting video signals using OFDM signals as claimed.
Brief 16 and 19, Reply Brief 12 through 17.5
Thus, Appellants’ contentions present us with the following issues:
a) Have Appellants shown that the Examiner erred in finding that
Ben-Michael teaches broadcasting video signals as recited in claim 1 ?

3 Throughout the opinion we refer to the Answer mailed March 7, 2007.
4 Throughout the opinion we refer to the Brief dated September 11, 2006,
and Reply Brief dated January 30, 2007.
5 Appellants present additional arguments. However, as the issues raised by
these arguments are dispositive of the case we only address the issues raised
by these arguments.
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b) Have Appellants shown that the Examiner erred in finding that the
combination of Ben-Michael and Williams teaches transmitting video
signals using OFDM as claimed?

PRINCIPLES OF LAW
In analyzing the scope of the claim, Office personnel must rely on
Appellant’s disclosure to properly determine the meaning of the terms used
in the claims. Markman v. Westview Instruments, Inc., 52 F.3d 967, 980
(Fed. Cir. 1995). “[I]nterpreting what is meant by a word in a claim is not to
be confused with adding an extraneous limitation appearing in the
specification, which is improper.” In re Cruciferous Sprout Litig., 301 F.3d
1343, 1348 (Fed. Cir. 2002) (citation omitted) (internal quotation marks
omitted).
A rejection based on § 103 must rest upon a factual basis rather than
conjecture or speculation. “Where the legal conclusion [of obviousness] is
not supported by the facts it cannot stand.” In re Warner, 379 F.2d 1011,
1017 (CCPA 1967). See also In re Kahn, 441 F.3d 977, 988.

FINDINGS OF FACT
1. Ben-Michael teaches a communication distribution platform for
a customer presence where a single system is used with
multiple types of media. Abstract.
2. The distribution platform in Ben-Michael makes use of a
premises adaptive gateway (PAG) which connects to a global
communication network via different technologies (e.g. coaxial
cable and cable modem, digital subscriber line (DSL), fiber
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optic, etc). Col. 4, ll. 24-46, see also Figure 1 (items 105, 101-
N, 103), and Figure 2 (items 105, 263, 265, 267, 269).
3. The PAG is connected to an in premise communication node
(ICN) which is connected to an in home local area network
(LAN). The PAG in conjunction with the LAN is connected to
customer equipment such as telephones, fax machines,
computers and televisions. Ben-Michael, col. 4, ll. 46-59, see
also Figure 2 (items 223, 225, and 227).
4. Ben-Michael identifies that the communication between the
ICN and communications devices such as telephones, Fax
machines and modems can be achieved via the power wires in
the house. When using the power lines for the communications
link the signal is coded using orthogonal frequency division
multiplexing (OFDM). See Figures 2 and 3, items 225 and 227,
col. 5, ll. 1-25, 45-51.
5. Ben-Michael does not depict or describe the connection
between the ICN and the customer televisions.
6. Williams is directed to a system to enhance data transmitted
over a channel. Williams teaches using OFDM for data that is
inserted into the vertical blanking interval of a normal
television signal. Col. 3, ll. 40-51, col. 12, ll. 42-51.

ANALYSIS
First issue.
Appellants’ arguments have not persuaded us that the Examiner erred
in finding that Ben Michael teaches broadcasting of video signals as recited
in claim 1. Appellants’ arguments assert that the claimed invention is
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directed to “one-way” broadcast. As the Examiner states on page 16 of the
Brief, the claims do not recite one-way. The Examiner has interpreted the
claim limitation directed to broadcasting as being:
broad enough to read on the channel being dedicated to the video
broadcast during a broadcast, but when there is no broadcast, the
channel may have a different use. So that even if all of the channels
are two-way as asserted by appellant in the last paragraph of page 22
[of the Brief], as long as at least one of the RF channels is dedicated to
video transmission, at least while its transmitting the video, the
subject matter is met.

Answer 16 and 17.
In response, Appellants state “the industry defines ‘Broadcast’ as one
way” and that Broadcast “means sending data (in our case video or audio)
from transmitter, regardless of, and independent from any receiving side.”
Reply Brief 9. Appellants have not identified any definitions in their
originally filed Specification or extrinsic evidence to support the assertion
that the term “Broadcast” should be interpreted as one way communication
and thus we decline to import such a limitation into the claim. As we do not
hold independent claim 1 is limited to one way communication, Appellants’
arguments directed to Ben-Michael not teaching one-way communication
are not persuasive as they are not commensurate in scope with the claims.
Second issue.
Appellants’ arguments have persuaded us that the Examiner erred in
finding that the combination of Ben-Michael and Williams teaches
transmitting video signals using OFDM as claimed. Independent claim 1
recites that “the video signals are transmitted by orthogonal frequency
division multiplexing.” The Examiner finds that Ben-Michael teaches this
feature. Answer, 5, 6, and 18. We disagree with the Examiner’s finding.
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Ben-Michael discusses using OFDM in conjunction with transmitting
telephony signals on power lines. Fact 4. However, we find no discussion
of using OFDM for transmission of video signals. Further, while Williams
does discuss using OFDM with television signals, Williams’ teaching is
directed to using OFDM for data that is encoded in the television signal and
not the video content of the signal. Fact 6. We note that on page 18 of the
Answer the Examiner states that Matsuda U.S. Patent 5,794,116 teaches
OFDM technology for transmission of video in a local area network. We
have not considered this teaching as this reference was not applied in the
rejection and is not of record in the instant application. Thus, we do not find
that the Examiner has shown that the combination of Ben-Michael and
Williams teach all of the limitations of independent claim 1. Claims 2
through 5, 7, 8, 12 through 15, 17, through 21, 25 through 30, 32 through 35,
and 37 through 42 depend upon claim 1. Accordingly, we will not sustain
the Examiner’s rejection of claims 1 through 5, 7, 8, 12 through 15, 17,
through 21, 25 through 30, 32 through 35, and 37 through 42 under 35
U.S.C. § 103(a) as being unpatentable over Ben-Michael in view of
Williams.
The Examiner’s rejections of claims 6, 9, 10, 11, 16, 22 through 24,
31, and 36 all rely upon the disclosure of Ben-Michael and Williams to teach
the limitations of independent claim 1. The Examiner has not found that the
additional references cited in these rejections teach using OFDM to transmit
video signals. Accordingly, we will not sustain the Examiner’s rejections of
claims 6, 9, 10, 11, 16, 22 through 24, 31, and 36 for the same reasons
discussed above with respect to claim 1.
The Examiner’s rejection of claim 43 similarly relies upon the
combination of Ben-Michael and Williams to teach transmission of video
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using OFDM. Claim 43 is an independent claim and similar to claim 1,
recites that video signals are transmitted using OFDM. The Examiner has
not found that the additional references cited in the rejection of claim 43
teach using OFDM to transmit video signals. Accordingly we will not
sustain the Examiner’s rejection of claim 43 for the same reasons discussed
above with respect to claim 1.

ORDER
The decision of the Examiner to reject claims 1 through 43 is
reversed.

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REVERSED

ELD

NOLTE, NOLTE, & HUNTER
CHRISTOPHER B GARVEY
1077 NORTHERN BLVD
ROSLYN, NY 11701
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