Ex Parte MANSOUR

Patent Trial and Appeal Board

Aug 21, 2018

13932503 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/932,503 07/01/2013
23494 7590 08/23/2018
TEXAS INSTRUMENTS IN CORPORA TED
PO BOX 655474, MIS 3999
DALLAS, TX 75265
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Mohamed Farouk MANSOUR
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.
TI-72259 4447
EXAMINER
BAIG,ADNAN
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
uspto@ti.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MOHAMED F AROUK MANSOUR 1
Appeal2018-001618
Application 13/932,503
Technology Center 2400
Before ERIC S. FRAHM, JAMES W. DEJMEK, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellant, the real party in interest is Texas Instruments, Inc.
App. Br. 2.
Appeal2010-0032301618
Application 11/045,514
STATEMENT OF THE CASE
Introduction
Appellants appeal under 35 U.S.C. § I34(a) from the Examiner's
Final Rejection of claims 1, 3, 4, 6, 7, 9, and 11-19, which constitute all the
claims pending in this application. Claims 2, 5, 8, and 10 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Exemplary Claims
Claims 1, 7, 14, and 19 are independent and pertain to a method (see
e.g., claim 1 ), wireless device (see e.g., claim 7), indoor positioning system
(see e.g., claim 14), and mobile wireless device (see e.g., claim 19) that use
a priori probability information to predict the location of a wireless device
using a wireless local area network (WLAN) instead of a global positioning
system (GPS) when the wireless device is indoors (Spec. ,r,r 2-8; Figs. I- 3;
Abs.; Title). An understanding of the invention can be derived from a
reading of exemplary claims 1 and 14, which are reproduced below with
emphases added:
1. A method to improve position estimates, comprising:
computing, by a wireless device, a predicted future
position of the wireless device from a current location estimate;
computing, by the wireless device, a priori probability
associated with future position candidates based on the
predicted future position;
updating, by the wireless device, the future position
candidates with the associated a priori probability; and
generating, by the wireless device, a grid of the future
position candidates centered on the predicted future position,
wherein the a priori probability is computed by calculating a
logarithm of a probability density function (PDF) associated
with each of the future position candidates.
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14. An indoor positioning system, comprising:
a Kalman filter to predict a future position estimate and a
corresponding covariance based on an initial position estimate;
and
a position estimator coupled to the Kalman filter to
generate a grid of future position candidates centered on the
future position estimate and update the future position
candidates with a priori probability information computed
using the future position estimate and the corresponding
covariance, wherein the a priori probability is computed by
calculating a logarithm of a probability density function
(PDF) associated with each of the future position candidates.
Remaining independent claims 7 and 19 recite similar limitations as
recited in the method and system of claims 1 and 14, respectively, and
correspond to a wireless device that creates a grid of future position
candidates ( claim 7), and a mobile wireless device using covariance to
update a grid of position candidates ( claim 19).
The Examiner's Rejection
The Examiner rejected claims 1, 3, 4, 6, 7, 9, and 11-19 under
35 U.S.C. § I03as being unpatentable over the combination of Das (US
2014/0128093 Al; published May 8, 2014), Chen (US 2014/0236477 Al;
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published Aug. 21, 2014), and Wilson (US 2003/0068097 Al; published
Apr. 10, 2002). Final Act. 5-29.
Principal Issues on Appeal
Based on Appellant's arguments in the briefs (App. Br. 5-12; Reply
Br. 2-3) in response to the Examiner's rejection (Final Act. 5-29), the
following principal issues are presented on appeal:
(1) Did the Examiner err in rejecting claims 1, 3, 4, 6, 7, 9, and 11-19
over the combination of Das, Chen, and Wilson because the combination
fails to teach or suggest the disputed limitations of:
(a) generating a grid of future position candidates centered on a
future position estimate, as recited in independent claims 1, 7, and 14;
and/or
(b) using a covariance to generate a probability and update
future position candidates, as recited in independent claims 14 and
19?
(2) Did the Examiner err in rejecting claims 1, 3, 4, 6, 11, and 14--19
over the combination of Das, Chen, and Wilson because Chen is non-
analogous art with the subject matter of independent claims 1, 14, and 19?
ANALYSIS
We have reviewed the Examiner's rejections (Final Act. 5-29) in light
of Appellant's contentions in the Appeal Brief (App. Br. 5-12) and the
Reply Brief (Reply Br. 2-3) that the Examiner has erred, as well as the
Examiner's response to Appellant's arguments in the Appeal Brief (Ans. 2-
10).
We disagree with Appellant's arguments as to independent claims 1,
7, 14, and 19. Because we analyze the arguments presented as to claims 1,
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7, 14, and 19 for the patentability of the corresponding dependent claims
(see App. Br. 7, 8, and 15-18), we select claim 1 as representative of claims
1, 3, 4, and 6; claim 7 as representative of claims 7, 9, 12, and 13; and claim
14 as representative of claims 14--18. With regard to representative
independent claims 1, 7, 14, and 19, we adopt as our own (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 5-29) as well as amplified in the Answer (Ans. 2-3, 5),
and (2) the reasons set forth by the Examiner in the Examiner's Answer in
response to the Appellant's Appeal Brief (Ans. 2-10). We provide the
following for emphasis.
Issue (1): Does the Combination of Das, Chen, and Wilson Teach or
Suggestthe Disputed Limitations of Claims 1, 7, 14, and 19?
At the outset, we note Appellant does not dispute the Examiner's
findings that Das discloses using received strength signal indicator (RSSI)
signal-based positioning system to compute a priori probabilities, or that
Wilson discloses calculating a logarithm of a probability density function
(PDF). See e.g., Final Act. 6, 9-10. Likewise, Appellant does not dispute
the Examiner's finding that Chen discloses a Kalman filter as claimed. See
e.g., Final Act. 7-9; Ans. 5---6.
Next, we note that each reference cited by the Examiner must be read,
not in isolation, but for what it fairly teaches in combination with the prior
art as a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(finding one cannot show non-obviousness by attacking references
individually where the rejections are based on combinations of references).
In this light, Appellant's arguments presented as to Das and Chen (see App.
Br. 7-9) are not persuasive inasmuch as the Examiner relies on a properly
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made combination of Das, Chen, and Wilson to support the conclusion of
obviousness of the subject matter of independent claims 1, 7, and 14. For
example, Appellant disputes Das's failure to teach (i) updating future
position candidates (App. Br. 7), when the Examiner relies upon Chen as
teaching or suggesting this limitation (see Ans. 5-6); and (ii) a Kalman filter
(App. Br. 9), when the Examiner relies upon Chen (Final Act. 8, 14, 20-21,
27; Ans. 5---6) as teaching a Kalman filter (see Chen ,r 30). Appellant has not
rebutted or otherwise shown the Examiner's explanation of the combination
of the collective teachings and suggestions of the applied references (see
Ans. 2-10) made in response to the Appellant's arguments in the Appeal
Brief (regarding the references individually) to be in error. Appellant's
Reply Brief does not convince us otherwise.
With regard to Appellant's primary argument (App. Br. 6-7; Reply
Br. 3), that Das fails to teach, suggest, or show generating a grid of future
position candidates centered on a predicted future position ( claims 1 and 14)
and/or using the coordinate of a future position estimate as a center of the
grid of position candidates (claim 7), we agree with the Examiner (Ans. 2-3,
5) that Das, in paragraphs 54 and 135, teaches or suggests the disputed
limitations. Specifically, paragraph 54 describes "identify[ing] a subset of
grid points within a plurality of grid points" and paragraph 135 describes
predicting a location of a wireless mobile device to "focus a threshold area
on more centralized grid points." Although Appellant contends (Reply
Br. 3) there is no evidence Das's paragraph 135 relates to future positions,
the fact that Das discloses "predicting whether a mobile device may be
transitioning from one region to another" (i.e., determines a likelihood)
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weighs against Appellant's unsupported contention (notably, Appellant
provides no evidence as support). 2
We are not persuaded by Appellant's contention (Reply Br. 2) that the
Examiner's rejection (see Ans. 2-3, 5) citing paragraph 135 of Das as
disclosing grid points as future position candidates constitutes a new ground
of rejection. And, even if the rejection citing paragraph 135 of Das (Ans. 2-
3, 5) were a new ground of rejection in the Examiner's Answer, Appellant's
proper recourse would have been to petition the Director of Technology
Center 2400. 3 No such petition has been filed in the instant case.
2 Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974); Icon Health & Fitness, Inc. v. Srava, 2017 WL 744548, at *5
(Fed. Cir. Feb. 27, 2017). Nor can it take the place of evidence lacking in
the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977).
Furthermore, arguments of counsel cannot take the place of evidence lacking
in the record (Estee Lauder, Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed.
Cir. 1997) ), and the mere assertion that elements of the claim are missing
from the reference, without any explanation, is not sufficient to show error
in the Examiner's rejection. Ex parte Belinne, 2009 WL 2477843, at *4
(BP AI 2009) ("Informative") ("Appellants' argument ... repeatedly restates
elements of the claim language and simply argues that the elements are
missing from the reference. However, Appellants do not present any
arguments to explain why the Examiner's explicit fact finding is in error.").
3 See, e.g., MPEP 1207.03(b); 37 C.F.R. § 41.40; 37 C.F.R. § 1.181. As
MPEP 1207 .03 states, the appropriate venue for Appellant to object to any
new grounds of rejection of claim 19 under§ 103(a) was by petition to the
Director:
37 CPR 41.40 sets forth the exclusive procedure for an
appellant to request review of the primary examiner's failure to
designate a rejection as a new ground of rejection via a petition
to the Director under 3 7 CPR 1.181. This procedure should be
used if an appellant feels an answer includes a new ground of
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Therefore, the obviousness rejection of representative claims 1, 7, 14, and 19
under 35 U.S.C. § 103 as being unpatentable over Das, Chen, and Wilson,
and specifically relying on paragraph 135 of Das, is properly before us on
appeal.
With regard to claims 14 and 19, Appellant's arguments (App. Br. 10-
11) that Das fails to teach, suggest, or show using a covariance to generate a
probability and update future position candidates are unpersuasive. Because
we agree with the Examiner's interpretation that a "covariance" is a
"correlation indicating whether variables are positively related" (Ans. 9), we
also agree with the Examiner's findings (Ans. 8-10) that paragraph 57 of
rejection that has not been designated as such and wishes to
reopen prosecution so that new amendments or evidence may
be submitted in response to the rejection. However, if appellant
wishes to submit only arguments, the filing of a petition under
37 CPR 1.181 would not be necessary because appellant may
submit the arguments in a reply brief. Any such petition under
37 CPR 1.181 must be filed within two months from the entry
of the examiner's answer and prior to the filing of a reply brief.
MPEP 1207.03(b) (Rev. 11, 2013). And 37 C.F.R. § 41.40 states:
Any request to seek review of the primary examiner's failure to
designate a rejection as a new ground of rejection in an
examiner's answer must be by way of a petition to the Director
under § 1.181 of this title filed within two months from the
entry of the examiner's answer and before the filing of any
reply brief. Failure of appellant to timely file such a petition
will constitute a waiver of any arguments that a rejection must
be designated as a new ground of rejection.
37 C.F.R. § 41.40(a) (2012).
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Das discloses using a covariance as recited in claims 14 and 19. More
specifically, we agree with the Examiner that "[t]he calculation of the
likelihood which is determined in (Para's [0057] & [0081]) as to whether the
mobile device will transition from the first region to the second region with
respect to the threshold area of the portal is interpreted as a calculation of
covariance because it provides a measure of degree using variables such as
the determined likelihood and information about the applicable portals using
threshold variables which are positively related in order to predict the future
position estimate of the user" (Ans. 9) (emphasis added). Although
Appellant directs us to paragraphs 28-30 of Appellant's Specification for "a
detailed explanation of covariance" (App. Br. 11 ), our review of these three
paragraphs reveals only a discussion of the operation of Kalman filter 206
using covariance matrices to compute an a priori probability from past and
future predicted positions, and does not convince us that the Examiner erred
in finding Das teaches or suggests using a covariance as claimed.
Issue (2): Is Chen Non-Analogous Art with Claims 1, 14, and 19?
A reference qualifies as prior art for an obviousness determination
under § 103 only when it is analogous to the claimed invention. In re Klein,
647 F.3d 1343, 1348 (Fed. Cir. 2011); Innovention Toys, LLC v. MGA
Entm 't, Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011); In re Bigio, 381 F.3d
1320, 1325 (Fed. Cir. 2004); In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992).
A reference is considered analogous prior art: ( 1) if the reference is from the
same field of endeavor as the claimed subjected matter, regardless of the
problem addressed, or (2) if "the reference still is reasonably pertinent to the
particular problem with which the inventor is involved," even though the
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reference is not within the field of the inventor's endeavor. Bigio, 381 F.3d
at 1325.
The "field of endeavor" test asks if the structure and function of the
prior art is such that it would be considered by a person of ordinary skill in
the art, because of the similarity to the structure and function of the claimed
invention as disclosed in the application. Id. at 1325-27. It is necessary to
apply "common sense" in "deciding in which fields a person of ordinary skill
would reasonably be expected to look for a solution to the problem facing
the inventor." Id. at 1326 (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed.
Cir. 1992)). In the instant case on appeal, both Chen and the claimed
invention pertain to the same field of endeavor, namely, positioning
methods/ systems.
As to the "reasonably pertinent" test: A reference is reasonably
pertinent if, even though it may be in a different field from that of the
inventor's endeavor, it is one which, because of the matter with which it
deals, logically would have commended itself to an inventor's attention in
considering his problem. In the instant case on appeal, both Chen and the
claimed invention are concerned with the same problem of "increasing the
accuracy of a position estimator using a priori probability information" (Ans.
6). Thus, the purposes of both the invention and the prior art are important
in determining whether the reference is reasonably pertinent to the problem
the invention attempts to solve. If a reference disclosure has the same
purpose as the claimed invention, the reference relates to the same problem,
and that fact supports use of that reference in an obviousness rejection, an
inventor may well have been motivated to consider the reference when
making his invention. If it is directed to a different purpose, however, the
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inventor would accordingly have had less motivation or occasion to consider
it. Clay, 966 F.2d at 659. In the instant case on appeal, both Chen (i130)
and the claimed invention use a Kalman filter to predict a future position
estimate and updating estimated future predictions with a priori probability
information. Ans. 6.
In this light, Appellant's contentions (App. Br. 7, 10-12) that Chen is
not analogous to the subject matter of claims 1, 14, and 19, are unpersuasive.
Appellant contends (see e.g., App. Br. 7) Chen is directed to determining the
position of a machine at a worksite, and not estimating a position more
accurately in an indoor WLAN (using, for example, a priori probability
information based on position history). At the outset, we note that claims 1,
14, and 19 do not recite a WLAN. Although claim 14 recites an "indoor
positioning system" in the preamble, the body of claim 14 does not limit the
subject matter to "indoor" systems ( or even wireless systems) in any way.
We agree with the Examiner (Ans. 5---6) that Chen is analogous art to
Appellant's claimed invention. First, we note that both Chen and the subject
matter of claims 1, 14, and 19 pertain to the same field of endeavor, namely,
positioning methods/systems. Second, we agree with the Examiner (Ans. 5-
6) that both (i) Appellant's invention recited in claims 1, 14, and 19-
position estimation method, system, and mobile wireless device with a
positioning system all relying on a priori probability information and a
predicted future position ( using a Kalman filter as in claims 14 and 19); and
(ii) Chen (see ,r 30), are concerned with the same problem of "increasing the
accuracy of a position estimator using a priori probability information" (Ans.
6). We also agree with the Examiner (Ans. 6) that both Chen (see ,r 30) and
claims 14 and 19 solve the problem of position estimation in the same way-
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using a Kalman filter to predict a future position estimate and updating
estimated future predictions with a priori probability information.
Despite Appellant's contentions to the contrary, Chen is analogous art
with the subject matter of claims 1, 14, and 19, and one of ordinary skill in
the art would indeed consider Chen's future position prediction
method/system for wireless devices when desiring to improve a wireless
positioning method/system as claimed.
Summary
In view of the foregoing, we sustain the Examiner's obviousness
rejection of independent claims 1, 7, 14, and 19, as well as the remaining
claims on appeal grouped therewith.
CONCLUSIONS
(1) The Examiner did not err in rejecting claims 1, 3, 4, 6, 7, 9, and
11-19 over the combination of Das, Chen, and Wilson because the base
combination teaches or suggests the disputed limitations of:
(a) generating a grid of future position candidates centered on a
future position estimate, as recited in independent claims 1, 7, and 14;
and/or
(b) using a covariance to generate a probability and update
future position candidates, as recited in independent claims 14 and 19.
(2) The Examiner did not err in rejecting claims 1, 3, 4, 6, 11, and 14--
19 over the combination of Das, Chen, and Wilson because Chen is
analogous art with the subject matter of independent claims 1, 14, and 19.
DECISION
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The Examiner's rejection of claims 1, 3, 4, 6, 7, 9, and 11-19 under
35 U.S.C. § 103 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)(l)(iv) (2016).
AFFIRMED
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