Ex Parte Larsen

Patent Trial and Appeal Board

Sep 19, 2016

12066745 (P.T.A.B. Sep. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/066,745 03/13/2008
42717 7590 09/21/2016
HA YNES AND BOONE, LLP
IP Section
2323 Victory A venue
Suite 700
Dallas, TX 75219
FIRST NAMED INVENTOR
James David Larsen
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.
05410-US-NPE 3418
EXAMINER
SCHWARTZ, JOSHUA L
ART UNIT PAPER NUMBER
2642
NOTIFICATION DATE DELIVERY MODE
09/21/2016 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):
ipdocketing@haynesboone.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES DAVID LARSEN
Appeal2013-009050
Application 12/066,745
Technology Center 2600
Before ALLEN R. MacDONALD, KEVIN C. TROCK, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
.6. .... ,1 .. • .. ,....,-TTr'1.r-"\ l\-1,....AI/'\. £',"1 Appeuant' seeKs our review unaer j) u.~.L. s U4~aJ or me
Examiner's final rejection of claims 47---69 and 71-92. Claims 1--46 have
been canceled. See App. Br. 29 (Claims App'x). Although the Examiner
indicates that claim 70 has been rejected (Final Act. 2), we note that claim
70 is omitted from the rejections detailed in the Final Action (see Final
Act. 4--16). Because there is no outstanding rejection against claim 70, this
claim is not on appeal before us. We have jurisdiction over the remaining
claims, claims 47-69 and 71-92, under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is MOSAID Technologies
Incorporated. App. Br. 3.
Appeal2013-009050
Application 12/066,745
STATEMENT OF THE CASE
Appellant's Invention
Appellant's invention generally relates to locating and determining the
position of wireless mobile stations in a communication network. Spec. 1.
Claim 47, which is illustrative, reads as follows:
4 7. A method of operating a network comprising a plurality of
stations each able to transmit and receive data so that the network
can transmit data between stations via at least one selected
intermediate station, the method comprising:
monitoring at each station, the activity of other stations on
the network to establish the availability of neighbor stations
having connectivity with the monitoring station;
transmitting probe signals from each station other stations
which receive the probe signals from a probing station
responding directly or indirectly via another station, to the
probing station to thereby indicate their availability as neighbor
stations able to receive or relay data which probing signals begin
at low power then increase in power until a predetermined
number of other stations have replied;
transmitting position data and/or position determining data
in at least some of the probe signals and/or in responses to probe
signals, the position data including data indicative of the absolute
or relative position of a station transmitting a probe signal or a
response signal, and the position determining data including data
usable by a station receiving a probe signal or a response signal
to determine the absolute or relative position of the station and/or
other stations;
maintaining, at stations which receive probe signals from
one or more probing stations and/or response signals from one or
more responding stations, position data and/ or position
determining data received from selected ones of the probing
and/ or responding stations; and
at one or more of said stations maintaining said position
data and/ or position determining data, utilizing the position data
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Appeal2013-009050
Application 12/066,745
and/or position determining data to determine the absolute or
relative position of said each station and/or other stations,
thereby enabling any station to determine its own position or the
position of another station in the network either as an absolute
position or relative to other stations.
Rejections
RI Claims 47-50, 52, 58, 59, 66-69, 74, 81, 82, 85, 87, 90, and 92 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Whitehill et al. (US 2002/0191573 Al; published Dec. 19,
2002) ("Whitehill") and Belcea (US 2003/0185166 Al; published Oct. 2,
2003). Final Act. 4--10.
R2 Claims 51, 53-57, 60, 61, 63---65, 71-73, 75, 77-80, 83, 84, 86, 89,
and 92 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
the combination of Whitehill, Belcea, and King et al. (US 2003/0011511 Al;
published Jan. 16, 2003) ("King"). Final Act. 10-16.
R3 Claims 62 and 88 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Whitehill, Belcea, and MacDonald et
al. (US 2004/0152471 Al; published Aug. 5, 2004) ("MacDonald"). Final
Act. 16.
ANALYSIS
We consider Appellant's arguments seriatim as they are presented in
the Appeal Brief, pages 17-27, and the Reply Brief, pages 2-5. We have
considered in this Decision only those arguments Appellant actually raised
in the Briefs. Any other arguments that Appellant could have made but
chose not to make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv).
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Application 12/066,745
Claims 47-50, 52, 58, 59, 66--69, 74, 81, 82, 85, 87, 90, and 92
Appellant relies on the same arguments to argue patentability of
claims 47-50, 52, 58, 59, 66-69, 74, 81, 82, 85, 87, 90, and 92. App.
Br. 17-23; Reply Br. 2-5. We select claim 47 as representative of this
group, and claims 48-50, 52, 58, 59, 66-69, 74, 81, 82, 85, 87, 90, and 92
stand or fall with claim 47. 37 C.F.R. § 41.37(c)(l)(iv).
Issue 1: Did the Examiner err by finding the combination of Whitehill and
Belcea teaches or suggests the limitations recited in claim 4 7?
Contention 1
Appellant contends "the cited combination does not teach or suggest a
method or network for locating or tracking stations in a network." App.
Br. 20. Appellant contends:
Whitehill describes a number of software subroutines
usable in a pre-existing ad-hoc network. Whitehill does not
describe a network or a method of locating mobile stations in a
network. Whitehill is simply a wish list of desired functions and
a listing of mathematical algorithms in the form of computer
instructions. The necessary application program interfaces to
connect the program with an 802.11 network are not provided.
The sections cited by the Final Rejection (i-f [0003], [0008] and
[0017]) are only the pre-existing IETF-MANET mobile
networking group as specified in IEEE 802.11 wireless standard.
Such a network is entirely different in operation and application
than the Opportunity Driven Multiple Access (ODMA) network
of the claimed invention. 802.11 networks are local with a single
hub and multiple stations which interact with the hub. In contrast
an ODMA system is multi-level with no centrally defined hub.
There are both fixed and mobile stations which can communicate
with each other directly and serve as relay points.
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Application 12/066,745
App. Br. 20.
We do not find Appellant's contentions persuasive. Initially, we note
that Appellant's contentions fail to identify any particular limitation and,
therefore, are unpersuasive to show how the cited references fail to teach or
suggest the recited limitations. See In re Baxter Travenol Labs., 952 F .2d
3 8 8, 3 91 (Fed. Cir. 19 91) ("It is not the function of this court to examine the
claims in greater detail than argued by an [A ]ppellant, looking for
nonobvious distinctions over the prior art."). Further, Appellant's
contentions are not commensurate with the scope of the claim. Claim 4 7
does not recite "a method or network for locating or tracking stations in a
network." Instead, claim 47 recites "[a] method of operating a network
comprising a plurality of stations each able to transmit and receive data so
that the network can transmit data between stations via at least one selected
intermediate station." Additionally, claim 47 does not require locating
mobile stations in a network. Nor does claim 47 recite an ODMA network.
Instead, claim 47 recites "a plurality of stations," "at least one selected
intermediate station," "each station," "a station," and "a network."
Appellant's contention (Reply Br. 3) that "[w]hen one reads claim 47 as a
whole one can see terms and phrases such as "relay data", "probing station
responding directly or indirectly via another station" and "neighbor stations"
and that "[t ]hese terms and phrases form parts of limitations that do
differentiate (as explained in the arguments of the Appeal Brief) from
802.11 network operation and application" are unpersuasive because these
contentions still to identify any particular limitation recited in claim 4 7.
We note for emphasis that Whitehill is directed to "a system and
method for controlling a node in a wireless ad-hoc communication network
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Appeal2013-009050
Application 12/066,745
to identify the presence of other nodes in the network." Whitehill if 15.
Whitehill teaches that "the term node refers to a communication device
operating in a network of communication devices" and that "[t]he node may
be a mobile communication device, such as a radio or wireless telephone, or
the node may be stationary or fixed in a particular location." Whitehill if 30.
Whitehill teaches that the nodes use a Neighbor Discovery (NBR) algorithm
for rapid discovery of infrastructure and neighborhood size maintenance.
Whitehill if 65. Whitehill teaches that the NBR algorithm (i.e., the node)
transmits beacons and solicitation messages to discover pieces of
infrastructure and probe the neighborhood. Id. As such, Whitehill teaches
or suggests "a method or network for locating or tracking stations in a
network" as well as "[a] method of operating a network comprising a
plurality of stations each able to transmit and receive data so that the
network can transmit data between stations via at least one selected
intermediate station." Accordingly, we are not persuaded the Examiner
erred.
Contention 2
Appellant further contends the Examiner erred in finding the
combination of Whitehill and Belcea teaches or suggests "transmitting probe
signals from each station other stations which receive the probe signals from
a probing station responding directly or indirectly via another station, to the
probing station to thereby indicate their availability as neighbor stations able
to receive or relay data which probing signals begin at low power then
increase in power until a predetermined number of other stations have
replied," as recited in claim 47. App. Br. 20-21. Appellant contends the
references fail to teach or suggest the claimed "transmitting probe signals"
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Application 12/066,745
because "the cited combination does not teach or suggest any method to
combine probing signals and location signals." App. Br. 20. Appellant
contends Belcea's status messages "are entirely different from the probing
signals of the claimed invention" because "[t]he probing signals of the
claimed invention contain navigational information and organize the
network" while "the status signals of Belcia [sic] only indicate that a station
is available." App. Br. 21.
We do not find Appellant's contentions persuasive. The Examiner
finds, and we agree, Whitehill teaches or suggests "transmitting probe
signals from each station other stations which receive the probe signals from
a probing station responding directly or indirectly via another station, to the
probing station to thereby indicate their availability as neighbor stations able
to receive or relay data." Final Act. 5---6 (citing Whitehill i-f 66---68). The
Examiner finds Belcea teaches or suggests sending out probing signals
beginning at low power then increasing in power until a predetermined
number of other stations have replied. Final Act. 6-7 (citing Belcea i-f 151 ).
As such, the Examiner finds the combined teachings of Whitehill and Belcea
teach or suggest the disputed limitation. Appellant's contention fails to
address the combination of teachings relied upon by the Examiner and,
therefore, are unpersuasive of error. See In re Merck & Co. Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
We note for emphasis that Whitehill teaches "if the previous ACKs or
NACKs have not been received, the process proceeds to step 1090 where the
power level of the transmitter in the source node is increased by one step if
possible." Whitehill i-f 55. Whitehill further discloses that the NBR
(Neighbor Discovery algorithm) attempts to maintain a neighborhood
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Application 12/066,745
consisting of less than twenty nodes. Whitehill if 65. Whitehill, therefore,
teaches, or at least suggests, sending out "probing signals begin[ ning] at low
power then increasing in power until a predetermined number of other
stations have replied," as required by claim 4 7.
For the foregoing reasons, we are unpersuaded the Examiner erred in
finding the combination of Whitehill and Belcea teaches or suggests the
limitations recited in claim 4 7.
Issue 2: Did the Examiner err by combining the teachings of Whitehill and
Belcea to reject claim 47?
Appellant contends the combination of Whitehill and Belcea is
improper. App. Br. 22-23; Reply Br. 4--5. Appellant contends:
1. "The Final Rejection used the claims of the subject
application as a guide to select which software modules
resembled given clauses the teaching of the Whitehill as a
whole was totally ignored. Portions of Whitehill which teach
away from the claimed invention or support different
functions were totally ignored." App. Br. 20.
2. "The cited combination cannot be functional without recourse
to the claimed invention or redesign tantamount to
reinvention." App. Br. 22.
3. "The cited combination does not recognize the problem." Id.
Regarding the first contention, Appellant fails to identify any
particular portion of Whitehill that teaches away from the claimed invention
or explain how Whitehill' s teachings, taken as a whole, were "totally
ignored." As such, we find this contention unpersuasive.
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Application 12/066,745
Regarding the second contention, Appellant contends:
Whitehill discloses a series of software modules. The
cited language of Beluca [sic] describes a method of determining
if an isolated terminal is connectable to the network, no code or
protocol stack is disclosed. The references do not suggest such
a combination and the substitution is not obvious to a person of
ordinary skill in the art. To make the addition would not only
require rewriting the code of Whitehill but adding additional
functions to the 802. hardware.
App. Br. 22.
We do not find Appellant's contentions persuasive. As discussed
supra, Whitehill teaches, or at least suggests, sending out "probing signals
begin[ ning] at low power then increasing in power until a predetermined
number of other stations have replied." App. Br. 29. Further, Appellant's
contention that "[t]he references do not suggest such a combination" relies
on a teaching, suggestion, or motivation standard, which is not required. Id.
at 22; KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). We are also
not persuaded by Appellant's contention that the combination would require
rewriting code and adding additional functions to Whitehill' s hardware
because Appellant has not persuasively shown that this would be "uniquely
challenging or difficult for one of ordinary skill in the art" or "represented an
unobvious step over the prior art." See Leapfrog Enters., Inc. v. Fisher-
Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at
418-19).
Regarding the third contention, although Appellant contends the cited
references do not "recognize the problem addressed by the invention" (App.
Br. 22), Appellant fails to identify or otherwise explain the problem
addressed by the invention. In discussing the rejection of claims 51, 5 3-5 7,
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Application 12/066,745
60, 61, 63---65, 71-73, 75, 77-80, 83-86, and 89, Appellant does identify the
problem as "finding mobile stations." App. Br. 27. However, Appellant
acknowledges that "[t]he problem sought to be solved by the invention ... is
present in Whitehill." Id. Appellant's contention that the problem is not
recognized by Belcea is not persuasive because there is no requirement that
the problem solved by the secondary reference be discussed by the primary
reference to apply the teachings of the secondary reference in a rejection
under 35 U.S.C. § 103. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Accordingly, we are not persuaded the Examiner erred in combining
the teachings of Whitehill and Belcea.
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claim 47 and claims 48-50, 52, 58, 59, 66---69, 74, 81, 82, 85, 87,
90, and 92, which fall with claim 4 7.
Claims 51, 53-57, 60, 61, 63-65, 71-73, 75, 77--80, 83--86, and 89
Appellant contends the Examiner erred in rejecting claims 51, 5 3-5 7,
60, 61, 63---65, 71-73, 75, 77-80, 83-86, and 89 because the combination of
Whitehill, Belcea, and King is improper. Appellant presents arguments
similar to the arguments discussed supra which we find unpersuasive for
similar reasons. Regarding Appellant's remaining arguments, we agree
with, and adopt as our own, the findings and reasoning of the Examiner in
the Final Office Action from which this appeal is taken and the Examiner's
Answer. See Final Act. 2-16; Ans. 4---6.
According! y, we sustain the Examiner's rejection of claims 51, 5 3-5 7,
60, 61, 63---65, 71-73, 75, 77-80, 83-86, and 89.
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Application 12/066,745
DECISION
We affirm the Examiner's rejection of claims 47---69 and 71-92.
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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