Ex Parte LassallyDownload PDFPatent Trial and Appeal BoardDec 17, 201311344062 (P.T.A.B. Dec. 17, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TEODORO LASSALLY ____________ Appeal 2011-006424 Application 11/344,062 Technology Center 2600 ____________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006424 Application 11/344,062 2 STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final decision rejecting claims 1 and 3-21. Claim 2 has been canceled. (App. Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appellant’s Invention The invention at issue on appeal concerns two-way radios and corresponding methods for transmitting two signals over two separate channels in a single radio network utilizing two distinct push-to-talk buttons, one for each signal, on a single radio. (Spec. 3; Abstract.) Representative Claim Independent claim 1, reproduced below with the key disputed limitations emphasized, further illustrates the invention: 1. A two way radio comprising: a radio transmitter that transmits a first signal over a first channel and a second signal over a second channel, wherein the first and second channels are in a single radio network; a first push to talk button configured to cause transmission of the first signal by the radio transmitter; and a second push to talk button configured to cause transmission of the second signal by the radio transmitter. Rejections on Appeal 1. The Examiner rejects claims 1, 3-8, 10-14, 16, and 17 under 35 U.S.C. § 103(a) as being unpatentable over U.S. Patent App. Pub. No. 2005/0054375 A1, published Mar. 10, 2005 (“Patel”). Appeal 2011-006424 Application 11/344,062 3 2. The Examiner rejects claims 9, 15, and 18-20 under 35 U.S.C. § 103(a) as being unpatentable over Patel and U.S. Patent No. 4,775,999, issued Oct. 4, 1988 (“Williams”). 3. The Examiner rejects claim 21 under 35 U.S.C. § 103(a) as being unpatentable over Patel and U.S. Patent App. Pub. No. 2004/0242178 A1, published Dec. 2, 2004 (“Kim”). ISSUE Based upon our review of the administrative record, Appellant’s contentions, and the Examiner’s findings and conclusions, the pivotal issue before us follows: Does the Examiner err in concluding that Patel teaches or would have suggested a radio including “a radio transmitter that transmits a first signal over a first channel and a second signal over a second channel, wherein the first and second channels are in a single radio network” with a “a first push to talk button configured to cause transmission of the first signal by the radio transmitter” and “a second push to talk button configured to cause transmission of the second signal by the radio transmitter” within the meaning of Appellant’s claim 1 and the commensurate limitations of claims 12 and 16? ANALYSIS The Examiner rejects independent claims 1, 12, and 16 under 35 U.S.C. § 103(a) as being unpatentable over Patel. (Ans. 3-12.) Appellant contends that Patel does not render the claims obvious. (App. Br. 6-15; Reply Br. 4-10.) Appeal 2011-006424 Application 11/344,062 4 We agree with Appellant that the portions of Patel identified by the Examiner do not teach or suggest the disputed features of independent claim 1 (and independent claims 12 and 16). (Id.) Specifically, we agree with Appellant that the Examiner fails to appreciate the recited scope of the claims. (App. Br. 7-10.) While Patel (¶¶ [0038],[0049], [0065]; Fig. 4), cited by the Examiner as describing a radio transmitter transmitting over multiple channels and a “single radio network” (Ans. 3-4, 7-10), does broadly describe these features, the claim recites a “two way radio” that includes a radio transmitter that transmits a first signal over a first channel and a second signal over a second channel, . . .a first push to talk button configured to cause transmission of the first signal by the radio transmitter; and a second push to talk button configured to cause transmission of the second signal by the radio transmitter (claim 1). The claim requires a single two-way radio with a single transmitter that transmits over two separate frequencies in response to the activation of two separate push-to-talk (PTT) buttons – the radio must have a single transmitter and two PTT buttons. As pointed out by Appellant, at most Patel suggests two transmitters operating over a single network utilizing two PTT buttons. Patel does not suggest a single transmitter or the two PTT buttons incorporated into a single radio. (App. Br. 6-10; Reply Br. 4-7.) Consequently, we are constrained by the record before us to conclude that the combination of Patel fails to teach or suggest the recited features of Appellant’s claim 1, and the rejection of claim 1 fails to establish a prima facie case of obviousness. Appellant’s independent claims 12 and 16 include limitations of commensurate scope. Appellant’s dependent claims Appeal 2011-006424 Application 11/344,062 5 3-11, 13-15, and 17-21 depend on and stand with their respective base claims. Accordingly, we reverse the Examiner’s obviousness rejections of claims 1 and 3-21. CONCLUSION OF LAW Appellant has shown that the Examiner erred in rejecting claims 1 and 3-21 under 35 U.S.C. § 103(a). DECISION We reverse the Examiner’s rejections of claims 1 and 3-21. REVERSED tj Copy with citationCopy as parenthetical citation