Ex Parte Horihan et al

Patent Trial and Appeal Board

Mar 29, 2017

13467073 (P.T.A.B. Mar. 29, 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.
13/467,073 05/09/2012 George M. Horihan BAEP-1487 6417
22500 7590 03/31/2017
RAF SYSTRMS
EXAMINER
PO BOX 868 NGUYEN, SIMON
NHQ1-719
NASHUA, NH 03061-0868 ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
usptomail@baesystems.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEORGE M. HORIHAN and DOMINICK LACCONA
Appeal 2016-006634
Application 13/467,0731
Technology Center 2600
Before LARRY J. HUME, JOHN P. PINKERTON, and
ALEX S. YAP, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—12.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is BAE Systems
Information and Electronic Systems Integration Inc. Br. 3.
2 We note independent claim 12, added by amendment after the Final
Action, is identical in scope to dependent claim 11. Although the status of
the rejection of claim 12 was not explicitly referenced in the Advisory
Action, the Examiner has included independent claim 12 in Rejection Rl.
Ans. 7.
Appeal 2016-006634
Application 13/467,073
STATEMENT OF THE CASE3
The Invention
Appellants' disclosed and claimed inventions "relate[] to software
defined tactical radio systems, and more particularly, to highly compact
software defined tactical radio systems." Spec. 12.
Exemplary Claims
Claims 1 and 12, reproduced below, are representative of the subject
matter on appeal (emphases and formatting added to contested limitations):
1. A compact dual transceiver module for a software
defined tactical radio, comprising:
a Dual Integrated Core Engine Transceiver (DICE-T)
universal transceiver module;
two software defined radio transceivers enclosed within
the DICE-T module;
a core element installed in each of the two software
defined radio transceivers, each of the core elements being
based on a processor having a total dissipated power (TDP)
rating of less than 2 Watts,
wherein each of said transceivers being able to perform
all tasks required of a tactical radio, including security, cosite
Interference mitigation, filtering, and frequency separation', and
wherein said transceivers do not provide graphical
interface thereby increasing the computational power of the
processor.
3 Our decision relies upon Appellants' Appeal Brief ("Br.," filed
May 21, 2015); Examiner's Answer ("Ans.," mailed June 10, 2016); Final
Office Action ("Final Act.," mailed July 29, 2014); and the original
Specification ("Spec.," filed May 9, 2012). We note Appellants did not file
a Reply Brief in response to the factual findings and legal conclusions in the
Examiner's Answer.
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12. A compact dual transceiver module for a software
defined tactical radio, comprising:
a Dual integrated Core Engine Transceiver (DICE-T)
universal transceiver module;
two software defined radio transceivers enclosed within
the DICE-T module; and
a core element installed in each of the two software
defined radio transceivers, each of the core elements being
based on a processor having a total dissipated power (TDP)
rating of less than 2 Watts,
each of said transceivers being able to perform all tasks
required of a tactical radio, including security, cosite
interference mitigation, filtering, and frequency separation;
wherein said transceivers do not provide graphical
interface thereby increasing the computational power of the
processor and
wherein the compact dual transceiver module is
physically and electronically compatible for exchange with a
UT module in the GVA of a GMR.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Williams
Lovinggood et al.
("Lovinggood")
Murotake
Haddick et al.
("Haddick")
Welin
US 2003/0158954 Al
US 6,615,021 B1
US 7,839,169 B2
US 2012/0062445 Al
US 2013/0294441 Al
Aug. 21,2003
Sept. 2, 2003
Nov. 23,2010
Mar. 15,2012
Nov. 7, 2013
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Application 13/467,073
Rejections on Appeal
Rl. Claims 1—3 and 7—12 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Williams, Haddick, and
Murotake. Final Act. 3; Ans. 7.
R2. Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Williams, Haddick, Murotake, and
Welin. Final Act. 5.
R3. Claim 6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Williams, Haddick, Murotake, and
Lovinggood. Id.
CLAIM GROUPING
Based on Appellants' arguments (Br. 5—14), we decide the appeal of
obviousness Rejection Rl of claims 1—3 and 7—10 on the basis of
representative claim 1; and, we decide the appeal of obviousness Rejection
Rl of claims 11 and 12 on the basis of representative claim 12.
Remaining claims 4—6 in rejections R2 and R3, not argued separately,
stand or fall with independent claim 1 from which they depend.4
4 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
In addition, when Appellants do not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986); In re Sernaker,
702 F.2d 989, 991 (Fed. Cir. 1983) ("Since neither of the parties argue
separately the patentability of each of the rejected claims, the dependent
claims will stand or fall with [the] independent claims." In re Burckel, 592
F.2d 1175, 1178-79, (Cust. & Pat. App.1979)."
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ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 1—12,
and we incorporate herein and 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 Examiner's Answer in
response to Appellants' arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments regarding claims 1
and 12 for emphases as follows.
1. $ 103(a) Rejection R1 of Claims 1—3 and 7—10
Issue 1
Appellants argue (Br. 5—11) the Examiner's rejection of claim 1 under
35 U.S.C. § 103(a) as being obvious over the combination of Williams,
Haddick, and Murotake is in error. These contentions present us with the
following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] compact dual transceiver module for a software defined
tactical radio" that includes, inter alia, the limitations of:
a core element installed in each of the two software
defined radio transceivers . . .,
wherein each of said transceivers being able to perform
all tasks required of a tactical radio, including security, cosite
Interference mitigation, filtering, and frequency separation; and
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Application 13/467,073
wherein said transceivers do not provide graphical
interface thereby increasing the computational power of the
processor,
as recited in claim 1? (Formatting added).
Analysis
Appellants first contend the cited reference combination does not
teach or suggest the recited "core element installed in each of the two
software defined radio transceivers," and refer to their Specification at
paragraph 10 in an attempt to distinguish over Murotake, which, among
other things, discloses use of an additional security chipset. Br. 6 (citing
Murotake col. 10,11. 20-28).
We first note the Examiner relied upon Williams, and not Murotake,
as teaching or suggesting the recited "core element." Final Act. 3 (citing
Williams, Abstract, Fig. 1 (element 120), Fig. 2A (elements 202/208)).
Appellants' contention does not persuade us of error on the part of the
Examiner because Appellants are responding to the rejection by attacking
the references separately, even though the rejection is based on the
combined teachings of the references. Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
With respect to the teachings and suggestions of Murotake, Appellants
contend:
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Addition of such a security chipset along with the required
control connects/control bus can increase the space required by
a transceiver described by Murotake which is against the
objective of the present application. Therefore, the Examiner's
allegation is without basis and hereby appealed.
Br. 6.
We give the claim its broadest reasonable interpretation consistent
with the Specification (see In re Morris, 127 F.3d 1048, 1054 (Fed.
Cir. 1997)), and note the presence or use of such a security chipset is not
precluded or expressly disclaimed by claim 1, but is nonetheless argued by
Appellants as distinguishing over claim 1. We further note claim 1 uses the
transitional phrase "comprising," such that Appellants' arguments are not
commensurate with the scope of the claim.
Appellants also argue "both Williams and Haddick mention briefly
that there may be 'military' applications for their inventions, both references
are silent regarding a 'tactical' radio transceiver, and in particular both are
silent regarding a transceiver that can perform security, cosite interference
mitigation, filtering, and frequency separation." Br. 7. "Haddick is silent
regarding any applications that include tactical radios." Id.
We note the Examiner relies upon Murotake, and not Haddick, as
teaching or suggesting a "tactical" radio. Ans. 4—5 (citing Murotake col. 12,
1. 9; col. 14,11. 47-48). We agree with the Examiner's findings, and also
point out that Haddick Figure 45 ("APPLICATIONS 4512 . . . MILITARY")
at least suggests a tactical radio application.
Appellants argue:
The inventors proceeded against the conventional wisdom in
the art and used mobile processors to perform a function for
which they had never been intended. Combination of Williams
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and Haddick therefore could not have been obvious at the time
of the invention, or at least combination of Williams with
Haddick to obtain a tactical radio could not have been obvious.
Br. 7.
We disagree with Appellants' assertions, which amount to
unsupported attorney argument, and not evidence of record, and therefore we
give them little weight. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997); see also In re Huang, 100 F.3d 135, 139—140 (Fed. Cir. 1996).
Further, with regards to the teachings and suggestions of Murotake,
Appellants contend "the architecture of Murotake is completely different
from that of the present application." Br. 7. Again, Appellants are arguing
limitations not present in the claims, and do not present any evidence that the
Examiner erred. We agree with, and adopt as our own, the Examiner's
response to Appellants' specific allegations that Murotake is deficient in its
teachings regarding tactical radio tasks performed. See Ans. 4—5.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitations of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claims 2—3 and 7—10, which fall therewith. See Claim Grouping, supra.
2. $103 Rejection of Claims 11 and 12
Issue 2
Appellants argue (Br. 12—14) the Examiner's rejection of claim 12
under 35 U.S.C. § 103(a) as being obvious over the combination of
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Williams, Haddick, and Murotake is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] compact dual transceiver module for a software defined
tactical radio" wherein, inter alia, "the compact dual transceiver module is
physically and electronically compatible for exchange with a UT module in
the GVA of a GMR," as recited in claim 12?
Analysis
Appellants contend:
Though Williams and Haddick relate to military purposes,
however[,] both Williams and Haddick are silent regarding this
feature. Haddick describes a head-mounted eyepiece that cannot
have a Ground Vehicular Adapter, and Williams does not talk
about any universal transceiver in a vehicle. In making this
rejection, the Examiner cites various elements of Haddick that
teach "interchange/communicate with different devices."
Br. 14.
In response, the Examiner cites to Murotake as teaching "the SDR
module 200 as a software defined radio for global mobile radio (GLOMO),
physically and electronically compatible for exchanging with a UT module
(PCI adapter host 235) used in a mobile ground vehicle or any mobile
ground transportation vehicle." Ans. 7; see also Ans. 6. We agree with the
Examiner that this teaches or at least suggests the contested "physically and
electronically compatible for exchange" limitation of claim 12.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
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disputed limitation of claim 12, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 12, and grouped
claim 11, which falls therewith. See Claim Grouping, supra.
3. $ 103(a) Rejections R2 and R3 of Claims 4—6
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2 and R3 of claims 4—6 under 35 U.S.C. § 103
(see Br. 11—12), we sustain the Examiner's rejection of these claims.
Arguments not made are waived.5
CONCLUSION
The Examiner did not err with respect to obviousness Rejections R1
through R3 of claims 1—12 under 35 U.S.C. § 103(a) over the cited prior art
combinations of record, and we sustain the rejections.
5 Appellants merely argue, "[f]or at least the reason that independent
claim 1 is allowable over the cited references of record, claims 2—11, which
depend from independent claim 1 and hence recite similar limitations are
allowable as a matter of law for at least the reason that dependent claims
contain all the features of independent claims." Br. 11.
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DECISION
We affirm the Examiner's decision rejecting claims 1—12.
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). See 37
C.F.R. §41.50(f).
AFFIRMED
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