Ex Parte JOHNSON et al

Patent Trials and Appeals Board

Jun 27, 2019

15594134 - (D) (P.T.A.B. Jun. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/594,134 05/12/2017 Jesse A. JOHNSON
4372 7590 07/01/2019
ARENT FOX LLP
1717 K Street, NW
WASHINGTON, DC 20006-5344
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.
032200.00010 4676
EXAMINER
LINDENBAUM, ALAN LOUIS
ART UNIT PAPER NUMBER
2466
NOTIFICATION DATE DELIVERY MODE
07/01/2019 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):
patentdocket@arentfox.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JESSE A. JOHNSON, JOSE FERNANDEZ,
STEPHEN VOWELL, and KEVIN MA YER
Appeal 2018-007977
Application 15/594, 1341
Technology Center 2400
Before JAMES R. HUGHES, JOHN D. HAMANN, and
MATTHEW J. McNEILL, Administrative Patent Judges.
McNEILL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-23, which are all the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify the Applicant, Orbit-Matrix, LLC, as the real party in
interest. App. Br. 1.
Appeal 2018-007977
Application 15/594,134
STATEMENT OF THE CASE
Introduction
Appellants' application relates to a system that provides for the
dynamic assignment and management of frequency bands of a
communications spectrum for Information Technology (IT) data
transmissions between digital computing data and analog devices over a
common telecommunications network. Spec. ,-J 2. In particular, a hybrid
communications machine enables interoperable and low-latency networking
among service devices. Spec. ,-J 12. Claim 1 is illustrative of the claimed
subject matter:
1. A hybrid communications device enabling networking
among analog and digital service devices, the device comprising:
a memory; and
at least one processor coupled to the memory and
configured to:
receive a plurality of incoming data transmissions, the
incoming data transmissions including a plurality of analog data
transmissions comprising VUTP media from at least one analog
service device and a plurality of digital data transmissions
comprising Ethernet transmission media from at least one digital
service device, wherein the analog service device and the digital
service device each implement a unique device protocol;
match, at a central control authority, each of the incoming
data transmissions to first protocols for the at least one analog
service device to determine instructions and transmission media
to command and control the at least one analog service device or
to second protocols for the at least one digital service device to
determine instructions and transmission media to command and
control the at least one digital service device, according to the
corresponding incoming data transmission;
determine an outgoing transmission media for the
incoming data transmission; and
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Application 15/594,134
construct outgoing data transmissions to command and
control the at least one analog service device or tile at least one
digital service device based on the matching of the corresponding
incoming data transmission to the first protocol or the second
protocol.
The Examiner's Rejections
Claims 1, 3, 5-12, 14-18, and 20-23 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Fernandez (US 2007/0245393 Al; Oct.
18, 2007) in view of Howarter (US 2008/0129498 Al; June 5, 2008). Final
Act. 2-8.
Claims 2, 4, 13, and 19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fernandez, Howarter, and further in view of the
Background Section of Applicant's Specification (AAPA). Final Act. 9.
RELATED APPEAL
The instant case on appeal (Application No. 15/594,134 and Appeal
No. 2018-007977) is a continuation of Application No. 12/771,358, which
involved an appeal to the Board in Appeal No. 2016-001833. The '358
Application ultimately issued as U.S. Patent No. 9,686,097.
ANALYSIS
Claim 1
Appellants argue the Examiner erred in finding the combination of
Fernandez and Howarter teaches or suggests "construct[ing] outgoing data
transmissions to command and control the at least one analog service device
or the at least one digital service," as recited in claim 1. See App. Br. 9-1 O;
Reply Br. 1-2.
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Application 15/594,134
In particular, Appellants argue "the audio and video signals in
Fernandez are not instructions to 'command and control' a service device, as
in independent claim[s] 1, 12, and 18." See App. Br. 11-13; Reply Br. 3-5.
Appellants argue "the Board reversed the rejection in the parent application
finding that transmitting audio/video signals to the device in Fernandez does
not 'command and control' the device." See App. Br. 10; Reply Br. 3.
Appellants also argue the "'security content' in Howarter is different
than the 'audio/video signals' in Fernandez." See App. Br. 14; Reply Br.
5-6. Appellants argue "Howarter does not disclose or suggest such
matching to protocols and the construction of outgoing data transmissions to
command and control a service device based on the match whatsoever." See
App. Br. 14; Reply Br. 5-6.
Appellants have not persuaded us of Examiner error. Appellants'
arguments focus on the individual teachings of Howarter and Fernandez
instead of considering the combined teachings of the references. One cannot
show nonobviousness by attacking references individually when the
rejection is based on a combination of references. In re Merck & Co. Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Thus, the relevant inquiry is whether
the claimed subject matter would have been obvious to those of ordinary
skill in the art in light of the combined teachings of those references. In re
Keller, 642 F.2d 413,425 (CCPA 1981).
More specifically, Appellants' argument that Howarter does not teach
the claimed "matching of protocols" is unpersuasive because the Examiner
relies on Fernandez for this teaching. See Final Act. 3-5; Ans. 4-5, 16-17,
19-20 (citing Fernandez ,-J,-J 19, 21, 43, 69, 71, 72). The Examiner finds, and
we agree, Fernandez teaches FMM 300 dynamically allocates and
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Application 15/594,134
reallocates frequency spectra for received signals according to the protocol
of the received signal. Final Act. 3 (citing Fernandez ,i 21). Thus, we agree
with the Examiner that Fernandez teaches "match[ing], at a central control
authority, each of the incoming data transmissions to first protocols," as
recited in claim 1.
Appellants' argument that Fernandez does not teach "command and
control" as claimed is unpersuasive because the Examiner relies on
Howarter for this teaching. See Ans. 18; Final Act. 2-5; Ans. 2-6, 19 (citing
Howarter,i 22, lines 13-16). The Examiner finds, and we agree, Howarter
teaches changing a channel and engaging picture-in-picture mode when the
set top box receives a signal, which teaches the "command and control"
language. Ans. 20-21 ( citing Howarter ,i 22). Thus, Appellants' argument
that Fernandez does not teach this limitation is not responsive to the
Examiner's reliance on the combined teachings of Fernandez and Howarter.
For these reasons, we sustain the rejection of independent claim 1 as
unpatentable over Fernandez and Howarter. We also sustain the rejection of
independent claims 12, and 18, for which Appellants rely on the same
arguments. See App. Br. 6. We also sustain the rejections of dependent
claims 2-8, 11, 13-15, 17, 19-21, and 23, for which Appellants rely on the
same arguments. See id.
Claim 9
Claim 9 recites "[t]he device of claim 1, wherein the command and
control comprises configuring at least one selected from a group consisting
of a timer, an on/off schedule, and an alert parameter for the at least one
analog service device or the digital service device."
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Appellants argue that the Examiner failed to show that the cited
references disclose or suggest that "the command and control comprises
configuring at least one selected from a group consisting of a timer, an
on/off schedule, and an alert parameter for the at least one analog service
device or the digital service device." See App. Br. 15; Reply Br. 6. We
agree.
As noted above, the Examiner relies on Howarter for teaching the
"command and control" limitation in independent claim 1, from which claim
9 depends. See Final Act. 2-5; Ans. 2-6, 19. However, the Examiner finds
Fernandez teaches the disputed limitation in claim 9. Final Act. 7 (citing
Fernandez ,-J,-J 68, 74). Although Fernandez teaches providing news,
weather, and national security alerts on an emergency information channel,
we agree with Appellants that the potential content of Fernandez does not
teach the claimed, "command and control comprises configuring" limitation
because content does not configure a service device as required for the
"command and control" limitation. App. Br. 15-16; Reply Br. 7. We,
therefore, do not sustain the Examiner's obviousness rejection of claim 9.
Claim 10
Claim 10 recites "[t]he device of claim 1, wherein the transmission
media, the first protocols for the at least one analog device, and the second
protocols for the at least one digital device are stored in device libraries
based on at least two of device name, device type, manufacturer, interface
media type, and scheduling information."
Appellants argue that the Examiner has failed to show that the cited
references disclose or suggest the transmission media, and the first and
second protocols for the analog and digital devices "are stored in device
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libraries based on at least two of device name, device type, manufacturer,
interface media type, and scheduling information," as recited in dependent
claim 10. See App. Br. 16-17; Reply Br. 7-9.
The Examiner cites to Fernandez for teaching the limitations of claim
10 and contends that it would have been an obvious matter of design choice
to an ordinarily skilled artisan to use device libraries defining the device
type, manufacturer, interface media type, and scheduling information
because Appellants' Specification does not disclose that the specific
properties provide an advantage, are used for a particular purpose, or solve a
stated problem. See Final Act. 7-8; Ans. 22 (citing Fernandez ,i 21).
Fernandez teaches a protocol manager in FMM 300 may store and
selectively retrieve rules associated with transmission requirements and
communication protocols when allocating new spectrum. Fernandez ,i 21.
The Examiner has not explained how or why an ordinarily skilled artisan
would have modified the protocol manager taught by Fernandez to use
device libraries defining at least two of the device name, device type,
manufacturer, interface media type, and scheduling information. Merely
asserting that the change is an obvious design choice is insufficient. See
Cutsforth, Inc. v. MotivePower, Inc., 636 Fed. Appx. 575, 578 (Fed. Cir.
2016) (unpublished) (stating that a particular placement of an element is a
design choice does not make it obvious; a reason must be offered as to why a
skilled artisan would have made the specific design choice). Thus, we agree
with Appellants that the Examiner has not made a proper showing that it
would have been an obvious matter of design choice to a person of ordinary
skill in the art to use device libraries defining at least two of the device
name, device type, manufacturer, interface media type, and scheduling
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information. See App. Br. 17; Reply Br. 9.
We, therefore, do not sustain the Examiner's obviousness rejection of
claim 10. We also do not sustain the obviousness rejection of claims 16 and
22, which recite commensurate limitations.
DECISION
We affirm the Examiner's decision rejecting claims 1-8, 11-15, 17-
21, and 23.
We reverse the Examiner's decision rejecting claims 9, 10, 16, and 22.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l)(iv). See
37 C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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