Ex Parte McHenry et alDownload PDFPatent Trial and Appeal BoardMay 23, 201612541616 (P.T.A.B. May. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/541,616 08/14/2009 12075 7590 Morris & Kamlay LLP 1150 18th Street, N.W. Suite 575 Washington, DC 20036 05/25/2016 FIRST NAMED INVENTOR Mark Allen McHenry 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. 027484-001210US 3764 EXAMINER BILODEAU, DAVID ART UNIT PAPER NUMBER 2648 NOTIFICATION DATE DELIVERY MODE 05/25/2016 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): pto@morriskamlay.com docket@morriskamlay.com aaron@morriskamlay.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK ALLEN McHENRY, IGOR BAZAROV, JEVGENIJS LIVSICS, FILIP PERICH, OLGA K. RITTERBUSH, and KARL N. STEADMAN Appeal2014-008852 Application 12/541,616 Technology Center 2600 Before ALLEN R. MacDONALD, JOHN F. HORVATH, and AMBER L. HAGY, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-008852 Application 12/541,616 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 21-29 and 62-73. Claims 1-20 and 30-61 have been cancelled. App. Br. 11 and 13. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claims Exemplary claims 21 and 73 under appeal read as follows (emphasis and formatting added): 21. A device comprising: an environmental sensing module to detect spectrum availability on a first channel; a module to coordinate dynamic spectrum access by the device and at least one other cooperative device based on the spectrum availability detected by said environmental sensing module; and a transceiver to communicate, during a first time period, with the at least one other cooperative device on a second channel identified as available for use by the device based on the spectrum availability detected by said environmental sensing module, the second channel being different from the first channel; said environmental sensing module configured to detect spectrum availability on the first channel concurrently with said transceiver communicating with the at least one other cooperative device on the second channel. 73. The device of claim 21, further comprising a scheduler configured to schedule a time period during which each of the device and the cooperative device refrain from transmitting. 2 Appeal2014-008852 Application 12/541,616 Rejections on Appeal The Examiner rejected claims 21-29 and 62-73 under 35 U.S.C. § 102(b) as being anticipated by Rao et al. (US 6,990,087 B2). 1 Appellants ' Contentions 1. Appellants contend that the Examiner erred in rejecting claim 21under35 U.S.C. § 102(b) as being anticipated by Rao because: To demonstrate that Rao discloses "each and every element" of the "identical invention" of claim 21, as is required to support a rejection under§ 102, the Final Rejection would need to identify two separate components - an "environmental sensing module" and a "transceiver" - as explicitly required by claim 21. Because the Final Rejection does not identify any component in Rao that discloses each and every one of these features, it fails to support a rejection under § 102. For at least this reason, the rejection should be reversed. App. Br. 4. 2. Also Appellants contend that the Examiner erred in rejecting claim 21under35 U.S.C. § 102(b) as being anticipated because: [B]ased on the explicit disclosure in Rao, it appears that Rao's system would not be capable of concurrent sensing and communication as recited. Rao relies upon switching between sensing and communication functions, because Rao' s system lacks any configuration that would allow for these operations to be performed concurrently. Thus, instead of identifying separate components that perform each of the recited functions, the Final Rejection is forced merely to presume that the functions 1 Separate patentability is argued for claims 21, 25, 62, and 73. Separate patentability is not argued for claims 22-24, 26-29, and 63-72. We group claims 22-24, 28, 29, and 63-72 with claim 21; we group claims 26 and 27 with claim 25. Except for our ultimate decision, claims 22-24, 26-29, and 63-72 are not discussed further herein. 3 Appeal2014-008852 Application 12/541,616 disclosed in Rao are performed concurrently. This is not supported by any disclosure in Rao, and is insufficient to support a rejection under §102. App. Br. 5. 3. Appellants contend that the Examiner erred in rejecting claim 25 under 35 U.S.C. § 102(b) because: Because the Final Rejection does not identify any portion of Rao that discloses a "first detector configured to detect within a first region of spectrum . . . and a second detector configured to detect within a second region of spectrum," it cannot support the rejection of claim 25 under § 102 and the rejection should be reversed. App. Br. 7. 4. Appellants contend that the Examiner erred in rejecting claim 62 under 35 U.S.C. § 102(b) because: [N]one of the "scheduling" disclosed in Rao relates to a scheduler that directs detection of spectrum availability by an environmental sensing module as recited in claim 62. The "scheduling" relied upon by the Office is scheduling of messages, not scheduling of transmission detection or any other component of spectrum availability. App. Br. 8. 5. Appellants contend that the Examiner erred in rejecting claim 73 under 35 U.S.C. § 102(b) because: There is simply no disclosure or suggestion in this portion of Rao of two devices that refrain from transmitting during a set time period. Even if the Office's statement that this discloses "a time period can be provided before activating a node" is correct, this portion of Rao does not suggest that any other device refrains from transmitting in the "time period before activating a node." App. Br. 9. 4 Appeal2014-008852 Application 12/541,616 Issue on Appeal Did the Examiner err in rejecting claims 21, 25, 62, and 73 as being anticipated under 35 U.S.C. § 102(b) because Rao fails to describe the argued limitations? ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred. As to Appellants' above contention 5, we agree. As to Appellants' above contentions 1--4, we disagree with Appellants' conclusions. Except as noted below, we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellants' Appeal Brief. We concur with the conclusions reached by the Examiner. We highlight the following additional points. As to Appellants' above contentions 1 and 2, we disagree. In response to Appellants' arguments, the Examiner presents additional analysis supporting the rejection of claim 21. Ans. 2--4. Appellants do not dispute this new analysis. We concur with the Examiner's additional analysis. As to Appellants' above contention 3, we disagree. In response to Appellants' arguments, the Examiner presents additional analysis supporting the rejection of claim 25. Ans. 4. Appellants do not dispute this new analysis. We concur with the Examiner's additional analysis. Additionally, 5 Appeal2014-008852 Application 12/541,616 Rao's sensor 34 ("sensor-characterizer") referenced by Examiner is described by Rao as plural "elements" (col. 7, line 61) and as plural "functions" (col. 10, line 11 ). Further, Rao operates on the same television and cellular portions of the spectrum (col. 10, lines 13-16) as disclosed by Appellants (Spec. [O 117]). As to Appellants' above contention 4, we disagree. In response to Appellants' arguments, the Examiner presents additional analysis supporting the rejection of claim 62. Ans. 4--5. Appellants do not dispute this new analysis. We concur with the Examiner's additional analysis. Further, Appellants are arguing the Rao fails to disclose the functionality of "scheduling detection," which is not recited in claim 62. Rather, claim 62 requires the broader functionality of directing detection. Appellants' argument is not commensurate with the scope of the claim. CONCLUSIONS (1) Appellants have established that the Examiner erred in rejecting claim 73 as being anticipated by Rao under 35 U.S.C. § 102(b). (2) The Examiner did not err in rejecting claims 21-29 and 62-72 as being anticipated by Rao under 35 U.S.C. § 102(b). (3) On this record, claim 73 has not been shown to be unpatentable. (4) Claims 21-29 and 62-72 are not patentable. DECISION The Examiner's rejection of claim 73 as being anticipated under 35 U.S.C. § 102(b) is reversed. 6 Appeal2014-008852 Application 12/541,616 The Examiner's rejection of claim 21-29 and 62-72 as being anticipated under 35 U.S.C. § 102(b) 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). AFFIRMED-IN-PART 7 Copy with citationCopy as parenthetical citation