Ex Parte Johnson et alDownload PDFPatent Trial and Appeal BoardFeb 9, 201511465772 (P.T.A.B. Feb. 9, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MICHAEL D. JOHNSON, NOEL SOBELMAN, and COREY TERRELL ____________________ Appeal 2012-011849 Application 11/465,772 Technology Center 2600 ____________________ Before CAROLYN D. THOMAS, JOHN A. EVANS, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-011849 Application 11/465,772 2 Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1–20. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Introduction Appellants’ invention is directed to a cellular mobile gateway within a wireless communication system. Spec. ¶ 1. “The cellular mobile gateway includes a local area network (LAN) interface that exchanges data with at least one user device and a cellular transceiver that exchanges the data over a cellular communication link.” Abstract. In relevant part, the Appellants’ cellular mobile gateway includes an output device that provides an indication of the received cellular downlink signal quality. Id. Representative claim 1 on appeal is reproduced below with the disputed limitation emphasized in italics: 1. A cellular mobile gateway comprising: a local area network (LAN) interface configured to exchange data with at least one user device; a cellular transceiver configured to exchange the data over a cellular communication link and comprising a receiver configured to receive a cellular downlink signal from a cellular communication system, the cellular downlink signal transmitted wirelessly from the cellular communication system to the receiver; and an output device configured to indicate in a human- perceptible manner a signal quality of the cellular downlink signal, wherein the cellular mobile gateway is configured to facilitate wireless cellular communication at least between the cellular communication system and the cellular mobile gateway. Appeal 2012-011849 Application 11/465,772 3 References The prior art relied upon by the Examiner in rejecting the claims on appeal is: Bryson US 2004/0185777 A1 Sept. 23, 2004 Luo et al. (“Luo”) US 2005/0030905 A1 Feb. 10, 2005 Karaoguz et al. (“Karaoguz”) US 2006/0098627 A1 May 11, 2006 Rada et al. (“Rada”) US 2007/0002846 A1 Jan. 4, 2007 The Examiner’s Rejections Claims 1, 2, 4–8, 17, 18, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bryson in view of Rada. Ans. 2–7. Claims 3 and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bryson in view of Rada, and further in view of Karaoguz. Ans. 7. Claims 9, 10, and 12–16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bryson in view of Rada, and further in view of Luo. Ans. 7–9. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Bryson, Rada, Luo, and Karaoguz. Ans. 9–10. Issue on Appeal Did the Examiner err in finding the combination of Bryson and Rada teaches or suggests “an output device configured to indicate in a human- Appeal 2012-011849 Application 11/465,772 4 perceptible manner a signal quality of the cellular downlink signal,” as recited in claim 1? ANALYSIS1 Appellants present their arguments to the rejections of the claims at issue over three sections.2 App. Br. 11–15. In Sections I and II, Appellants separately provide their arguments for the independent claims in that section (i.e., claims 1 and 17 in Section I, and claim 9 in Section II). Separate patentability is not argued for claims 2–8, 10–16, and 18–20.3 For each of the independent claims, Appellants present essentially the same argument: the combination of references fails to teach or suggest “an output device configured to indicate in a human-perceptible manner a signal quality of the cellular downlink signal.” Id. at 12–15. “A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” 37 C.F.R. § 41.37(c)(1)(vii) (2010). Further, merely restating with respect to a second claim an argument, previously presented with respect to a first claim, is not an argument for separate patentability of the two claims. Therefore, based on Appellants’ arguments, we decide the appeal of claims 1–20 based on claim 1 alone. See id. 1 Throughout this opinion we refer to the Appeal Brief dated March 26, 2012, the Reply Brief dated August 21, 2012, and the Examiner’s Answer mailed on June 25, 2012. 2 Section I is directed to claims 1, 2, 4–8, 17, 18, and 20; Section II addresses claims 9, 10, and 12–16; and Section III purports to address all the dependent claims 1–8 [sic], 10–16, and 18–20. App. Br. 11–15. 3 Appellants contend the dependent claims are allowable “at least for the reason that they depend from an allowable base claim.” App. Br. 15. Appeal 2012-011849 Application 11/465,772 5 We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions. We adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. See Ans. 11–16. However, we highlight and address specific findings and arguments for emphasis as follows. The Examiner finds although Bryson teaches a portable wireless gateway receiving signals from a cellular network, Bryson does not specifically disclose an output device configured to indicate in a human- perceptible manner a signal quality of the cellular downlink signal. Ans. 3. For this limitation, the Examiner relies on paragraphs 94 and 95 of Rada and concludes it would have been obvious to one of ordinary skill in the art to incorporate the teaching of Rada with that of Bryson to indicate the received signal quality in a human-perceptible manner. Id. at 3–4. Appellants contend the visual indicators of signal quality taught by Rada do not relate to a cellular downlink signal, but rather a Bluetooth uplink signal. App. Br. 12–13; Reply Br. 2–3. Appellants argue MPEP 2143(A) prohibits modifications to the respective functions of elements found in the prior art and that the visual indicators of Rada would need to be modified to represent the signal quality of the download signal. App. Br. 13–14. Accordingly, Appellants conclude the proposed combination is not permitted. Id. at 14. The MPEP is merely guidance and is not substantive law. See MPEP Foreword (2014) (“The [MPEP] does not have the force of law or the force of the rules in Title 37 of the Code of Federal Regulations.”). A patent claim is unpatentable under 35 U.S.C. § 103(a) if the differences between the Appeal 2012-011849 Application 11/465,772 6 claimed subject matter and the prior art are such that the subject matter, as a whole, would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations including: (1) the scope and content of the prior art; (2) any differences between the claimed subject matter and the prior art; (3) the level of ordinary skill in the art; and (4) objective evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We agree with the Examiner that Bryson teaches a portable wireless gateway device receiving cellular downlink signals. Ans. 3, 11–12; see also Bryson ¶¶ 11–12, 17, 110–113. Bryson further teaches detecting received signal strength. See, e.g., Bryson ¶¶ 75, 103, 106, 111. We also agree with the Examiner that Rada teaches and suggests the use of visual indicators representative of signal strength and/or signal quality. Ans. 3, 11–16; see also Rada ¶¶ 94–98. Here, Appellants’ arguments do not take into account what the collective teachings of the prior art would have suggested to one of ordinary skill in the art and is therefore ineffective to rebut the Examiner’s prima facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)(“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”) (citations omitted, emphasis added). This reasoning is applicable here. Appeal 2012-011849 Application 11/465,772 7 We find it would have been obvious to one of ordinary skill in the art at the time the invention was made to combine the teachings of Rada with Bryson to indicate the received signal quality of the cellular downlink signal in a human-perceptible manner. We find Appellants’ argument that the visual indicators of Rada would need to be modified to read upon the claims at issue to be unpersuasive. “[A] person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. For the reasons supra, we are unpersuaded of Examiner error. Accordingly, we sustain the rejections of claims 1–20. CONCLUSION We are not persuaded the Examiner erred in rejecting claims 1–20 by concluding the combination of Bryson and Rada teaches or suggests the disputed limitation of an output device configured to indicate in a human- perceptible manner a signal quality of the cellular downlink signal, as recited in those claims. Claims 1–20 are not patentable. DECISION The rejection of claims 1–20 under 35 U.S.C. § 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED msc Copy with citationCopy as parenthetical citation