Ex Parte Frankland

Patent Trial and Appeal Board

Jan 30, 2017

13022270 (P.T.A.B. Jan. 30, 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.
13/022,270 02/07/2011 Stephen Frankland 100453 6370
23696 7590 02/01/2017
OTTAT mMM TNmRPORATFD
EXAMINER
5775 MOREHOUSE DR.
SAN DIEGO, CA 92121
CHANG, KAI J
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
us-docketing@qualcomm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN FRANKLAND1
Appeal 2016-002260
Application 13/022,270
Technology Center 2400
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
FISHMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1—34. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant identifies Qualcomm Incorporated as the real party in interest.
App. Br. 2.
Appeal 2016-002260
Application 13/022,270
THE INVENTION
Appellant’s invention is directed to “allowing] coexistence between
two wireless communication systems” in a wireless communication system.
Spec. 11.
Independent claim 1, reproduced below, is representative:
1. A method for implementing a system solution for co­
existence between a first service and a second service
comprising:
accepting a first service selection for a first wireless
cellular system on a mobile terminal;
performing a data transport using the first service
selection on the mobile terminal;
accepting a second service selection for a second wireless
cellular system on the mobile terminal, wherein a channel of the
second wireless cellular system used by the second service
interferes with a channel of the first wireless cellular system
used by the first service;
implementing a suspension of the data transport using the
first service selection on the mobile terminal;
redirecting the data transport using a different wireless
cellular system that permits the first service to coexist with the
second service;
and clearing said suspension, wherein said clearing is
conditioned on completion of the redirected data transport.
THE REJECTIONS
Claims 1—4, 6—14, 16—24, and 26—34 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Jaakkola et al. (US 2008/0151845 Al;
June 26, 2008) (“Jaakkola”), Sebire (US 2009/0268690 Al; Oct. 29, 2009),
Xhafa et al. (US 2009/0040937 Al; Feb. 12, 2009) (“Xhafa”), and
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Ling et al. (US 2012/0069817 Al; Mar. 22, 2012; Mar. 22, 2012 (claiming
priority to a provisional application filing Sept. 20, 2010)) (“Ling”).
Final Act. 3—14.
Claims 5, 15, and 25 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jaakkola, Sebire, Xhafa, Ling, and Sawyer
(US 2007/0123258 Al; May 31, 2007). Id. at 1^U15.
ANALYSIS
Only those arguments actually made by Appellant have been
considered in this Decision. Arguments that Appellant did not make in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(l)(iv). We are not persuaded
by Appellant’s contentions of Examiner error (App. Br. 6—12; Reply Br. 2).
We adopt as our own the findings and reasons set forth by the Examiner in
the action from which this appeal is taken (Final Act. 2—18) and as set forth
by the Examiner in the Answer (Ans. 2—8). However, we highlight and
address specific arguments and findings for emphasis as follows.
Accepting Different Service Selections
Independent claim 1 recites, in pertinent part, “accepting a first
service selection for a first wireless cellular system on a mobile terminal;
accepting a second service selection for a second wireless cellular system on
the mobile terminal. . . ; [and] redirecting the [first wireless cellular
system’s] data transport using a different wireless cellular system.” The
Examiner finds Jaakkola’s vertical handover teaches or suggests these
disputed limitations. Final Act. 3^4 (citing Jaakkola H 49—52); see also
Ans. 3—5. Appellant argues Jaakkola’s vertical handover, involving only an
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unlicensed module access (“UMA”) connection active in a wireless local
area network (“WLAN”), does not teach different service selections
associated with the disputed limitation. App. Br. 9.
Appellant’s contentions are unpersuasive of Examiner error.
Paragraph 52 of Jaakkola recites “[w]hen a user makes a Bluetooth® Inquiry
with a wireless device (STA) while in an active UMA connection (either in a
call or transferring other data), the STA should make a vertical handover
(HO) from the WLAN to another UMA compatible system such as GSM or
UMTS.” The Examiner finds, and we agree, Jaakkola’s WLAN-based and
GSM/UMTS-based service sessions each provide a service selection for a
mobile terminal to operate. Ans. 3^4. We further agree with the Examiner’s
conclusion that, “[t]he WLAN[-]based service and the compatible GSM or
UMTS are two different wireless systems that provide different types [of]
wireless services.” Id. at 4. Therefore, Jaakkola’s disclosure of a vertical
handover teaches or suggests accepting a first service selection for a WLAN-
based service session (the claimed “first wireless cellular system”) on a
mobile terminal, accepting a second service selection for a GSM/UMTS-
based service session (the claimed “second wireless cellular system”) on the
mobile terminal, and redirecting a call or data transfer (the claimed “data
transport”) using the GSM/UMTS-based service session (the claimed
“different wireless cellular system”).
Interfering Channels
Independent claim 1 further recites, in pertinent part, “wherein a
channel of the second wireless cellular system used by the second service
interferes with a channel of the first wireless cellular system used by the first
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service.” The Examiner finds Jaakkola discloses a second wireless system
interfering with a first wireless system (Final Act. 4) and finds Sebire, in
combination with Jaakkola, discloses the first and second wireless systems
each having a respective channel {id. at 5). Appellant asserts Jaakkola
teaches WLAN and Bluetooth® interfere with each other because they
operate on a same frequency band. App. Br. 10 (citing Jaakkola 110).
Appellant argues GSM/UMTS do not interfere with either WLAN or
Bluetooth® because the purpose of Jaakkola’s handover from WLAN to
GSM/UMTS is to ensure the continuity of the WLAN session during a
Bluetooth® Inquiry. Id. at 10 (citing Jaakkola 27, 52). Appellant
concludes the Examiner erred in finding Jaakkola teaches that WLAN and
GSM/UMTA interfere with each other. Id.
We are not persuaded the Examiner erred because Appellant’s
arguments are not responsive to the Examiner’s rejection. Specifically, the
Examiner finds, and we agree, Jaakkola teaches, in paragraphs 43 and 64,
inter alia, “concurrent communication of two or more interfering radio
subsystems” wherein “the operation of the first wireless subsystem is
interrupted/interfered when the second wireless subsystem is handed over to
service the mobile terminal.” Ans. 4.
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Figure 2b of Jaakkola is illustrative and is reproduced below:
9~
Figure 2b illustrates a flowchart “for implementing the inventive
method according to some embodiments.” Jaakkola 143. As shown in
Figure 2b, item 9A is directed to “[facilitating concurrent communication of
two or more interfering radio subsystems in a terminal device.”
Paragraph 64 of Jaakkola teaches radio subsystem modules including a BT
radio subsystem module, a WLAN radio subsystem module, and a
GSM/UMTS radio subsystem module. Appellant’s arguments are directed
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to “interference” as it relates only to overlapping radio-frequency bands of
each wireless system. Broadly but reasonably interpreted, the claimed
“interference” is not so narrowly restricted. Thus, we agree with the
Examiner that Jaakkola teaches or suggests interference between a
GSM/UMTS-based service session (the claimed “second wireless cellular
system used by the second service”) and a WLAN-based service session (the
claimed “first wireless cellular system used by the first service”).
Appellant further argues the Examiner’s reliance on Sebire is
misplaced because Sebire is not directed to any problem involving an
interference between two active sessions, much less using a handoff to avoid
the interference. App. Br. 10 (citing Sebire 128). Appellant concludes
Sebire “has nothing to add to Jaakkola’s use of a vertical handoff to avoid
interference between two active sessions.” Id. We remain unpersuaded of
Examiner error because Appellant’s contentions are not responsive to the
rejection as articulated by the Examiner. The Examiner relies on the
combination of Jaakkola and Sebire for the teaching or suggestion of the
limitation at issue. Final Act. 3—6; Ans. 5—6. Specifically, as discussed
supra, the Examiner finds Jaakkola, not Sebire, teaches accepting a first and
second service selection for a first and second wireless system on a mobile
terminal, wherein the second wireless system used by the second service
interferes with the first wireless system used by the first service. Final Act.
3^4 (citing Jaakkola Tflf 43, 49—52; Figure 2B); see also Ans. 3^4 (citing
Jaakkola | 64). The Examiner further relies on Sebire for teaching a channel
for first and second wireless cellular systems. Final Act. 5 (citing Sebire
10, 60, 61). Thus, the Examiner finds, and we agree, the combination of
Jaakkola and Sebire teaches accepting a first and second service selection for
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a first and second wireless cellular system on a mobile terminal, wherein a
channel of the second wireless cellular system used by the second service
interferences with a channel of the first wireless cellular system used by the
first service. By contrast, Appellant’s arguments improperly attack the
references individually rather than addressing what the proposed
combination teaches or suggests. See In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
Permitting First and Second Services to Coexist
Independent claim 1 further recites, in pertinent part, redirecting the
data transport to a different system “that permits the first service to coexist
with the second service.” As discussed supra, the Examiner finds Jaakkola
discloses the step of redirecting (Final Act. 4) but relies on Xhafa, in
combination with Jaakkola, for disclosing the coexistence of multiple
wireless systems (id. at 6). Appellant contends the Examiner erred in
finding Xhafa teaches avoiding interference between first and second
services associated with first and second cellular systems by using a
different cellular system that permits coexistence of the first and second
services. App. Br. 10—11. In particular, Appellant argues Xhafa’s
scheduling, which avoids interference between two conflicting links,
explicitly leads one of ordinary skill in the art away from interference. Id.
(citing Xhafa 55—58). Appellant further argues Xhafa does not teach
redirecting an ongoing voice call to a different wireless system because
Xhafa solves the mutual interference issue without redirecting any
connection. Id. at 11.
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We are unpersuaded of Examiner error. The Examiner finds, and we
agree, the combination of Jaakkola and Xhafa teaches or suggests this
disputed limitation. Final Act. 2-4; Ans. 2—6. Specifically, the Examiner
relies on Jaakkola, not Xhafa, to teach redirecting the data transport using a
different wireless system. Final Act. 4 (citing Jaakkola 49, 52). The
Examiner further relies on Xhafa, in combination with Jaakkola, to teach the
coexistence of different wireless systems using a scheduler. Id. at 6 (citing
Xhafa 55—57). Thus, the Examiner finds, and we agree, the combination
of Jaakkola and Xhafa teaches redirecting the data transport using a different
wireless system that permits the first service to coexist with the second
service. As above, Appellant’s arguments improperly attack the references
individually rather than addressing the combined teachings. Furthermore, a
prior art reference does not teach away from the claimed subject matter
unless the prior art reference criticizes, discredits, or otherwise discourages
the solution claimed. DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
567 F.3d 1314, 1327 (Fed. Cir. 2009). Appellant has not persuaded us
Xhafa sufficiently discourages, discredits, or criticizes interference between
two conflicting links to thereby teach away from the proposed combination.
Independent claim 1 further recites, in pertinent part, “clearing said
suspension, wherein said clearing is conditioned on completion of the
redirected data transport.” The Examiner finds Ling, in the proposed
combination, teaches or suggests this disputed limitation. Final Act. 7.
Appellant argues the Examiner erred in finding Ling teaches this limitation
asserting Ling teaches suspending a packet switched service while user
equipment (UE) is in circuit switched fallback (CSFB). App. Br. 11 (citing
Ling, Fig. 3). Appellant further asserts, if packet switched connections were
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handed over from 3GPP to an available non-3GPP, the packet switched
connections are handed back to 3 GPP upon completion of the circuit
switched session. Id. at 11 (citing Ling 176, Fig. 3). Appellant argues the
“resumption of suspended packet switched service is thus conditioned on
completion of the circuit switched session, not completion of the packet
switched transport that was handed over from 3GPP to non-3GPP.” Id.
We are unpersuaded of Examiner error. The Examiner finds, and we
agree, the combination of Jaakkola and Ling teaches or suggests this
disputed limitation. Final Act. 2-4; Ans. 2—6. As above, Appellant’s
argument improperly attacks the teachings of the references individually
rather than the combined teachings. Specifically, the Examiner relies on
Jaakkola’s vertical handover “that suspends the first wireless cellular system
[and] redirects] the data transport from the first wireless cellular system to
another wireless cellular system.” Ans. 7; see also Final Act. 4 (citing
Jaakkola 147). The Examiner further relies on Ling to teach clearing an E-
UTRAN suspension upon a UE deciding to return to E-UTRAN, wherein the
clearing is conditioned upon the completion of a CS service. Final Act. 7
(citing Ling 11 61, 62, 76); see also Ans. 7—8. Thus, the Examiner finds the
combination of Jaakkola and Ling teaches clearing Jaakkola’s first wireless
system suspension that is conditioned on completion of Jaakkola’s data
transport from the first wireless system to another wireless system.
Lastly, Appellant generally argues the Examiner’s combination of
Jaakkola, Sebire, Xhafa, and Ling merely represents several imaginary
factual findings “manifestly not 35 USC [§] 103 ‘prior art’” (App. Br. 7) that
allegedly arrive at the claimed invention. App. Br. 7—9; Reply Br. 2.
Specifically, Appellant refers to the Examiner’s proposed combination as
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“imaginary constructs.” Reply Br. 2. Appellant concludes the Examiner’s
combination of Jaakkola, Sebire, Xhafa, and Ling “does not comport with
the statutory requirement to show that the differences between the prior art
and the claimed invention are such that the claimed invention would have
been obvious.” App. Br. 8 (emphases omitted).
We are unpersuaded of Examiner error. The test for obviousness is
what the combined teachings of the references would have suggested to one
of ordinary skill in the art. See In re Young, 927 F.2d 588, 591
(Fed. Cir. 1991); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981).
“A claim can be obvious even where all of the claimed features are not
found in specific prior art references, where ‘there is a showing of a
suggestion or motivation to modify the teachings of [the prior art] to the
claimed invention.’” Ormco Corp. v. Align Technology, Inc., 463 F.3d
1299, 1307 (Fed. Cir. 2006) (quoting SIBIA Neurosciences, Inc. v. Cadus
Pharm. Corp., 225 F.3d 1349, 1356 (Fed. Cir. 2000)).
Appellant has not presented sufficient evidence or reasoning in
support of their contention that the Examiner’s combination of references
fails to comport with requirements of 35 U.S.C. § 103(a). Thus, we agree
with the Examiner that the skilled artisan would have been “able to fit the
teachings of multiple patents together like pieces of a puzzle” because the
skilled artisan is “a person of ordinary creativity, not an automaton.” KSR
Inti Co. v. Teleflex, Inc., 550 U.S. 398, 420-21 (2007). Therefore, we find
unpersuasive of error Appellant’s contention that the combination of
Jaakkola, Sebire, Xhafa, and Ling is improper.
In view of the above discussion, we are not persuaded the Examiner
erred by finding the combination of Jaakkola, Sebire, Xhafa, and Ling
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teaches or suggests the limitations of claim 1. Appellant presents similar
arguments regarding independent claims 11,21, and 31 (App. Br. 7—12) and,
for the same reasons as claim 1, we are not persuaded of Examiner error.
Thus, we sustain the rejection of independent claim 1 and, for the same
reasons, we sustain the rejection of independent claims 11,21, and 31
together with the rejection of dependent claims 2—10, 12—20, 22—30, and 32—
34, not separately argued with particularity. App. Br. 12.
DECISION
We affirm the Examiner’s decision to reject claims 1—34.
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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