Ex Parte Klatt

Patent Trial and Appeal Board

Sep 29, 2017

12521990 (P.T.A.B. Sep. 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.
12/521,990 07/01/2009 Axel Klatt 30574 4902
535 7590
KF ROSS PC
311 E York St
Savannah, GA 31401-3814
EXAMINER
LU, WILLIAM
ART UNIT PAPER NUMBER
2624
NOTIFICATION DATE DELIVERY MODE
10/03/2017 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):
savannah@kfrpc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AXEL KLATT
Appeal 2017-005168
Application 12/521,99c1
Technology Center 2600
Before JOHN A. JEFFERY, DENISE M. POTHIER, and JOHN A. EVANS,
Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 28-46. Claims 1—27 were cancelled. Br. 2.2 We
have jurisdiction under 35 U.S.C. § 6(b), and we affirm.
STATEMENT OF THE CASE
Appellant’s invention uses a mobile radio terminal device to acquire
current characteristic data of a mobile radio system. The acquired data is
1 The Appellant states Deutsche Telekom AG GmbH is the real party in
interest. Br. 1.
2 Throughout this opinion, we refer to the Appeal Brief filed March 24, 2016
(“Br.”) and the Examiner’s Answer mailed October 20, 2016 (“Ans.”).
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Application 12/521,990
then transferred to an acquisition, analysis, and processing unit. See
generally Spec., Abstract; id. 3, 78—79, Fig. 4. Claim 28 is illustrative:
28. A process for acquiring parameters reflecting the supply
quality of a cellular mobile radio network, the process
comprising the steps of:
automatically determining the parameters by means of
the mobile radio terminal device at the current position of the
mobile radio terminal device when a break in a communication
connection occurs, the mobile radio terminal device being a
conventional subscriber terminal device of a user of the mobile
radio network without additional external devices for
determining position,
storing the determined parameters in at least one storage
device of the mobile radio terminal device,
establishing a new connection to the mobile radio
network,
sending the stored parameters via a signaling channel of
the mobile radio network through the new connection to a base
station, and
forwarding the parameters from the base station to an
acquisition, analysis, and processing unit in the mobile radio
network.
THE REJECTIONS
The Examiner rejected claims 28—30, 32—35, 39, and 42-45 under 35
U.S.C. § 102(b) as anticipated by Csapo (US 2005/0136911 Al, published
June 23, 2005). Ans. 3—7.
The Examiner rejected claims 31,36, 37, 40, and 46 under 35 U.S.C.
§ 103(a) as unpatentable over Csapo and Chu (US 7,392,017 B2, issued June
24,2008). Id. at 8-10.
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The Examiner rejected claim 38 under 35 U.S.C. § 103(a) as
unpatentable over Csapo and Casaccia (US 2005/0129058 Al, published
June 16, 2005). Ans. 10.
The Examiner rejected claim 41 under 35 U.S.C. § 103(a) as
unpatentable over Csapo and Adler (US 7,069,427 B2, issued June 27,
2006). Ans. 11.
THE ANTICIPATION REJECTION
Regarding independent claim 28, the Examiner finds that Csapo
automatically determines and stores parameters reflecting supply quality of a
cellular network when a communication connection break occurs, namely by
collecting call drop data in a file, and storing the associated parameters in a
mobile station’s memory when the service dropped. Ans. 3^4. According to
the Examiner, these stored parameters are then (1) sent to a base station via a
short messaging service (SMS) signaling channel, and (2) forwarded from
the base station to an “acquisition, analysis, and processing unit,” namely
radio frequency (RF) coverage server 195. Id. at 4.
Appellant argues that the recited signaling channel, which is said to
terminate in a radio access network (RAN), differs from Csapo’s SMS-
carrying channels that are said to terminate in a core network. Br. 9—13.
According to Appellant, the recited sending step implies that the mobile
station addresses the base station directly—not the core network—so that the
base station can (1) access and extract the transmitted data from the channel,
and (2) forward this data to the acquisition, analysis, and processing unit. Id.
at 12.
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ISSUE
Under section 102, has the Examiner erred in rejecting claim 28 by
finding that Csapo (1) sends the recited stored parameters via a mobile radio
network signaling channel through a new connection to a base station, and
(2) forwards the parameters from the base station to an acquisition, analysis,
and processing unit?
ANALYSIS
As noted above, a key aspect of the claimed invention is that
parameters stored in a mobile device are sent to a base station via a signaling
channel, and then forwarded from the base station to an acquisition, analysis,
and processing unit. This use of a base station as an intermediary between
the mobile device and acquisition, analysis, and processing unit is shown in
Appellant’s Figure 4, where a measurement report is sent from mobile radio
terminal device (UE) 202 to base station system (BTS) 201 in step 306. The
BTS then sends a Self-Optimizing Network (SON) report to the acquisition,
analysis, and processing unit (“EAV”) 200 in step 308. See Spec. Tflf 78—79.
We further note that claim 28’s recitation that parameters are
automatically determined when a break in a communication connection
occurs. Our emphasis underscores that the term “when” is a conditional
limitation that need not be satisfied to meet the claim as noted previously.
See Ex parte Schulhauser, No. 2013-007847, slip op. at 9—10 (PTAB April
28,2016),
https://www.uspto.gov/sites/default/files/documents/Ex%20parte%20Schulh
auser%202016_04_28.pdf. Although the limitations at issue in Schulhauser
were rendered conditional by the recitation of “if ’ (see Schulhauser. No.
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2013-007847, slip op. at 6—8), we discern no meaningful distinction between
the recitations of “if’ and “when.” One dictionary definition of “when” is
“in the event that: on condition that: IF.” Merriam-Webster’s Third New
Int’l Dictionary of the English Language 2602 ((unabridged) 2002).
Because the recited “when” condition need not be satisfied to meet the
claim (e.g., when there is no communication connection break), the recited
parameters need not be automatically determined, let alone (1) stored; (2)
sent to a base station; and (3) forwarded to an acquisition, analysis, and
processing unit to satisfy the claim. Therefore, Appellants’ arguments
regarding Csapo’s alleged shortcomings in this regard (Br. 9-13) are
unavailing and not commensurate with the scope of the claim for that reason
alone.
Nevertheless, we are unpersuaded of error in the Examiner’s rejection
of claim 28 even if the recited condition had to be satisfied to meet the claim
(which it does not). Turning to the rejection, Csapo’s Figure 1 shows,
among other things, a mobile station (MS) 111 that communicates wirelessly
with base station (BS) 101 that is connected to RF coverage server 195 via
communication line 131. A partial detail view of Csapo’s Figure 1 showing
an MS, BS, and RF coverage server is reproduced below.
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Partial detail view of Csapo’s Figure 1 showing MS, BS, and RF
coverage server
Csapo’s MS 111 stores the location, time, and RF signal parameters
when service or a call is dropped. Csapo 148, Fig. 2. The MS then
transfers its exact location and various other data associated with the failure
to RF coverage server 195 via an access program 284 that uses, among other
things, SMS. Csapo 49, 55—57; Fig. 2.
Notably, the Examiner finds that Csapo’s mobile station transmits this
data to the RF coverage server via the base station. See Ans. 13 (“Csapo
addresses the RF signal measurement data to the RF coverage serverf,] and
sends the data through the base station as shown in Figure 1 of Csapo.”
(emphasis added)). Given this finding, Csapo’s base station effectively
functions as an intermediary that relays data received from the mobile
station to the RF coverage server via communication line 131.
Appellant does not squarely address this finding, let alone
persuasively rebut it. Even assuming, without deciding, that Csapo uses a
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different kind of signaling channel than the present invention as Appellant
contends (Br. 13), nothing in the claim requires a particular type of signaling
channel as the Examiner indicates. Ans. 12—13. And even assuming,
without deciding, that Csapo’s base station cannot access and extract the
data it receives from the channel as Appellant asserts (Br. 12—13), nothing in
the claim requires such an extraction. Nor does the claim preclude the base
station simply relaying the data it receives from the mobile station to the RF
coverage server because this data—including the associated determined
parameters—is effectively forwarded from the base station to an
“acquisition, analysis, and processing unit” as claimed. Appellant’s
arguments (Br. 9-12) are unavailing and not commensurate with the scope
of the claim.
Appellant’s contention that Csapo refers to a different problem than
Chu and the present invention (Br. 13) is likewise unavailing. First, the Chu
reference is irrelevant to the Examiner’s anticipation rejection that is based
solely on Csapo. Second, even if we were to accept Appellant’s assertion
that Csapo is directed to a different problem than the claimed invention
(which we do not), that, too, is irrelevant where, as here, the reference
discloses every recited limitation. See In re Schreiber, 128 F.3d 1473, 1478
(Fed. Cir. 1997) (“A reference . . . may be directed to an entirely different
problem from the one addressed by the inventor, yet the reference will still
anticipate if it explicitly or inherently discloses every limitation recited in
the claims.”).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 28, and claims 29, 30, 32—35, 39, and 42 45 not argued separately
with particularity.
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THE OBVIOUSNESS REJECTION OVER CSAPO AND CHU
We also sustain the Examiner’s obviousness rejection of claim 31
over Csapo and Chu. Ans. 8—10. First, Appellant’s contention that neither
Csapo nor Chu discloses independent claim 28’s sending and forwarding
steps (Br. 14—18) does not persuasively rebut the Examiner’s reliance on
Csapo—not Chu—for teaching that feature for the reasons previously
discussed.
Second, Appellant’s contention that Chu allegedly refers to a different
problem than Csapo and the present invention (Br. 18) is also unavailing.
Chu is in the same field of endeavor as Appellant’s invention, namely,
wireless networks, and more specifically, assessing wireless network quality
as noted in Chu’s title. Nor do Appellants persuasively rebut the Examiner’s
reliance on Chu for the limited purpose for which it was cited, namely,
merely to show that requesting location information at a specific location is
known in the art, and that providing such a feature in Csapo would have
been obvious. See Ans. 8, 14. Such an enhancement uses prior art elements
predictably according to their established functions—an obvious
improvement. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 31, and claims 36, 37, 40, and 46 not argued separately with
particularity.
THE OBVIOUSNESS REJECTION OVER CSAPO AND CASACCIA
We also sustain the Examiner’s obviousness rejection of claim 38
over Csapo and Casaccia. Ans. 10. First, Appellant’s contention that
neither Csapo nor Casaccia discloses independent claim 28’s sending and
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forwarding steps (Br. 19-24) does not persuasively rebut the Examiner’s
reliance on Csapo—not Casaccia—for teaching that feature for the reasons
previously discussed.
Second, Appellant’s contention that Chu allegedly refers to a different
problem than Csapo and the present invention (Br. 23) is inapposite because
Chu was not cited in this rejection. See Ans. 10. Nevertheless, to the extent
that this argument also applies to Casaccia, we are unpersuaded of error in
the Examiner’s reliance on Casaccia for the reasons indicated by the
Examiner. See Ans. 10.
Lastly, Appellant’s contention that Casaccia does not anticipate claim
38’s triggering limitation (Br. 24) is not only not germane to the Examiner’s
obviousness rejection, Appellant does not squarely address—let alone
persuasively rebut—the Examiner’s reliance on Csapo’s paragraph 57 for
teaching that feature. See Ans. 10, 15.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 38.
THE OBVIOUSNESS REJECTION OVER CSAPO AND ADLER
We also sustain the Examiner’s obviousness rejection of claim 41
over Csapo and Adler. Ans. 11. First, Appellant’s contentions regarding
Csapo’s alleged shortcomings with respect to independent claim 28’s
sending and forwarding steps (Br. 24—29) are unavailing for the reasons
previously discussed.
Second, Appellant’s contention that Chu allegedly refers to a different
problem than Csapo and the present invention (Br. 28) is inapposite because
Chu was not cited in this rejection. See Ans. 11. Nevertheless, to the extent
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that this argument also applies to Adler, we are unpersuaded of error in the
Examiner’s reliance on Adler for the reasons indicated by the Examiner. See
Ans. 11.
Lastly, Appellant’s contention that Adler’s anonymized data allegedly
has nothing to do with position (Br. 29) does not persuasively rebut the
Examiner’s finding that Adler at least suggests anonymizing location data
among other types of data. See Ans. 16—17. Such an enhancement uses
prior art elements predictably according to their established functions—an
obvious improvement. See KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 41.
CONCLUSION
The Examiner did not err in rejecting (1) claims 28—30, 32—35, 39,
and 42^45 under § 102, and (2) claims 31, 36—38, 40, 41, and 46 under
§103.
DECISION
We affirm the Examiner’s decision to reject claims 28-46.
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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