Ex Parte Noecker et al

Patent Trial and Appeal Board

Apr 24, 2017

13413645 (P.T.A.B. Apr. 24, 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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/413,645 03/06/2012 NICHOLAS J. NOECKER SR. AUS920090061US2 2540
75916 7590
IBM AUS IPLAW (GLF)
c/o Garg Law Firm, PLLC
4521 Copper Mountain Lane
Richardson, TX 75082
04/26/2017 EXAMINER
LAMARDO, VIKER ALEJANDRO
ART UNIT PAPER NUMBER
2122
NOTIFICATION DATE DELIVERY MODE
04/26/2017 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):
dpandy a @ garglaw. com
uspto@garglaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS J. NOECKER SR., JULIO E. RUANO,
JAVIER R. TORRES, and PAUL S. WILLIAMSON
Appeal 2017-000599
Application 13/413,645
Technology Center 2100
Before ERIC S. FRAHM, JOHN D. HAMANN, and
MATTHEW J. McNEILL, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-000599
Application 13/413,645
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1—7 mailed on February 11, 2016. Claims 8—20 were canceled by
amendment on March 6, 2012.1 This application claims priority to, and is
the child of, U.S. Patent Application No. 12/538,916 (App. Br. 3).2 On
February 24, 2017, this same panel reversed the Examiner’s written
description and obviousness rejections of claims 8—22. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
Disclosed Invention
Appellants’ disclosed invention relates to a computer implemented
method for managing a local environment (e.g., home 132 in Fig. 1) by
monitoring data traffic on a data network of devices (e.g., printer, light
fixture, computer, etc.) controllable within the local environment and
sending commands to a device based on a user’s location and information
concerning the topology of the local environment (Spec. 1—2, 4, 47; claim
1 Appellants’ statement in the Appeal Brief that no claims have been
canceled is incorrect (see App. Br. 4) (“Claims canceled: None”).
2 U.S. Application No. 12/538,916 is assigned to the same assignee
(International Business Machines Corporation of Armonk, New York) and
has the same inventive entity (Nicholas J. Noecker Jr. (incorrectly listed as
Nicholas J. Noecker Sr. on the filing receipt filed on April 2, 2012), Julio E.
Ruano, Javier R. Torres, and Paul S. Williamson) as the instant application
on appeal, and the Appeal Brief and Reply Brief in U.S. Application No.
12/538,916 (Appeal No. 2016-007137) were signed by the same
representative (Rakesh Garg of Garg Law Firm, PLLC; Registration No.
57,434). Compare App. Br. 21; Reply Br. 8 of Appeal No. 2016-007137 of
U.S. Application No. 12/538,916 with App. Br. 14; Reply Br. 3 of the instant
Appeal No. 2017-000599 of U.S. Application No. 13/413,645.
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Application 13/413,645
1). The disclosed method reduces wasted electricity/energy in the local
environment (Spec. 13).
Exemplary Claim
Exemplary and sole independent claim 1 under appeal, with emphases
added, reads as follows:
1. A computer implemented method for managing a local
environment using data traffic information stored in a computer
memory, the computer implemented method comprising:
monitoring at a networking device, a data traffic on a data
network associated with the local environment, the local environment
comprising a set of devices, a device in the set of devices being
controllable using the data network;
inferring a condition in the local environment from the data
traffic;
determining an action to cause a change in the local
environment;
determinins a topology of the local environment;
using the topology to compute distances between a subset of
devices',
determining a user’s location relative to the subset of devices
using the topology',
estimating, based on the user’s location, a time period before
the action', and
sending a command corresponding to the action to a first
device in the local environment such that the action is performed after
the time period.
The Examiner’s Rejections and Findings
(1) The Examiner rejected claims 1—3 and 5—7 based on the judicially
created doctrine of non-statutory obviousness-type double patenting, over
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Application 13/413,645
claims 8—10 and 12—14 ofU.S. Application Serial No. 12/538,916.3 Non-
Final Rej. 2—6; Ans. 2—6.
(2) The Examiner rejected claims 1—5 and 7 as being unpatentable
under 35 U.S.C. § 103(a) over the combination of Kouropoulos et al. (US
2006/0129863 Al; published June 15, 2006) (“Kouropoulos”), Haines (US
7,421,466 B2; issued Sept. 2, 2008), and Alberth et al. (US 2008/0103686
Al; published May 1, 2008) (“Alberth”). Non-Final Act. 6—13; Ans. 6—13.
The Examiner determined that (i) Kouropoulos flflf 27, 67) teaches a
computer implemented method for monitoring computer traffic and activity
level (Non-Final Act. 7; Ans. 7), (ii) Haines (col. 2,1. 51—col. 3,1. 3; col. 4,
11. 35—55; col. 8,11. 25—52) teaches determining the topology of a local
environment as well as a user’s location in relation to devices within the
topology (Non-Final Act. 7—8; Ans. 7—8); and (iii) Alberth (121) teaches
sending commands relative to a time period and based on a user’s location
(Non-Final Act. 8; Ans. 8), as recited in claim 1.
(3) The Examiner rejected claim 6 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Kouropoulos, Haines, Alberth,
3 Although Appellants purport to traverse the provisional obviousness-type
double patenting rejection of claims 1—3 and 5—7 (see App. Br. 8), no
arguments on the merits have been provided in the Appeal Brief, and
Appellants simply maintain the previous request that the rejection be held in
abeyance). Appellants have therefore not rebutted the Examiner’s prima
facie case in regards to the provisional obviousness-type double patenting
rejection of claims 1—3 and 5—7 (see App. Br. 8). Because Appellants do not
contest the merits of the provisional obviousness-type double patenting
rejection of claims 1—3 and 5—7, no issue is presented by Appellants as to
this rejection. Therefore, we sustain the obviousness-type double patenting
rejection of claims 1—3 and 5—7 pro forma. See 37 C.F.R.
§ 41.37(c)(l)(vii)(2011).
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Application 13/413,645
and Scott et al. (US 2010/0100716 Al; published Apr. 22, 2010) (“Scott”).4
Non-Final Rej. 13—14; Ans. 13—14.
Principal Issue On Appeal
Based on Appellants’ arguments in the Appeal Brief (App. Br. 8—14)
and the Reply Brief (Reply Br. 2), the following principal issue is presented:
Did the Examiner err in rejecting claims 1—7 as being obvious because
Haines, and thus the base combination of Kouropoulos, Haines, and Alberth,
fails to teach or suggest “determining a topology of the local environment”
and then “using the topology,” as recited in sole independent claim 1, and as
similarly recited in remaining dependent claims 2—7?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions in the Appeal Brief (App. Br. 8—14) and Reply Brief (Reply Br.
2) that the Examiner has erred, as well as the Examiner’s response to
Appellants’ arguments in the Appeal Brief (Ans. 14—19). With regard to
independent claim 1, we disagree with Appellants’ arguments as to the
obviousness rejection, and we concur with the conclusions reached by the
Examiner, and we adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Non-Final Rej.
4 Appellants make similar arguments for claim 6 as presented for claim 1,
namely that the combination of references “fails to teach or suggest using
the topology and determining the user’s location” as recited in claim 1 (App.
Br. 12). Claim 6 depends directly from claim 1. Accordingly, the outcome
of our decision with regard to the rejection of claim 6 will stand/fall with the
outcome as to claim 1.
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Application 13/413,645
6—9; Ans. 6—9), and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to the Appellants’ Appeal Brief (Ans. 14—
19).
At the outset, we note our agreement with the Examiner’s
understanding that paragraphs 65 and 96 of Appellants’ Specification
support an interpretation of “topology” as representing a map of location
data within a geographical area such as in a network, local environment
(e.g., a home), or combination thereof, and therefore the disputed limitations
of claim 1 encompass the teachings and suggestions of Haines (see Ans. 15—
19).
We agree with the Examiner’s findings that Haines (col. 2,1. 51—col.
3,1. 3; col. 4,11. 35—55; col. 8,11. 25—52) teaches determining the topology of
a local environment as well as a user’s location in relation to devices within
the topology (Non-Final Act. 7—8; Ans. 7—8), as recited in claim 1.
Specifically, Haines determines expected locations of network devices in a
local computing environment (col. 2,11. 51—54), maps the logical
connectivity of the network (col. 2,11. 58—59), maps the physical location of
network devices in the form of a “floor plan” (col. 2,1. 64—col. 3,1. 1), and
dynamically updates/revises the maps “when network devices are added,
removed, moved or upgraded” (col. 3,11. 3^4). Haines also discloses
determining distances between a network device 220 and a wireless gateway
210 (col. 4,11. 35—55), and determining “expected locations for the network
devices relative to the mobile user” (col. 8,11. 26—27) in order to “[b]uild[] a
database, a table or some other data structure based on this relative location
data” (col. 8,11. 31—32). Thus, the Examiner (Non-Final Act. 7—8; Ans. 7—8)
is correct in finding that Haines teaches determining (i) a topology of a local
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environment; (ii) distances between a subset of devices; and (iii) a user’s
location relative to the subset of devices using the topology.
Therefore, we agree with the Examiner (Non-Final Act. 6—9; Ans. 6—
9, 14—19) that the combination of Kouropoulos, Haines, and Alberth teaches
or suggests the computer implemented method as recited in independent
claim 1. Accordingly, we conclude the Examiner has not erred in rejecting
claim 1, and we sustain the Examiner’s obviousness rejection of claims 1—5
and 7 over the combination of Kouropoulos, Haines, and Alberth. For
similar reasons, and because Appellants rely on the arguments presented as
to claim 1 for the patentability of claim 6 which depends from claim 1 (see
App. Br. 12—13), we also sustain the Examiner’s obviousness rejection of
claim 6 over the combination of Kouropoulos, Haines, Alberth, and Scott.
CONCLUSIONS
(1) Appellants have not shown that the Examiner erred in rejecting
claims 1—3 and 5—7 based on the judicially created doctrine of non-statutory
obviousness-type double patenting.
(2) The Examiner has not erred in rejecting claims 1—7 as being
obvious, because Haines, and thus the base combination of Kouropoulos,
Haines, and Alberth, teaches or suggests a computer implemented method
for managing a local environment using data traffic information including
“determining a topology of the local environment” and then “using the
topology,” as recited in sole independent claim 1, and as similarly recited in
remaining dependent claims 2—7.
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Application 13/413,645
DECISION
(1) The Examiner’s rejection of claims 1—3 and 5—7 based on the
judicially created doctrine of non-statutory obviousness-type double
patenting, over (a) claims 8—10 and 12—14 of U.S. Application Serial No.
12/538,916 is affirmed pro forma.
(2) The Examiner’s rejections of (a) claims 1—5 and 7 under 35 U.S.C.
§ 103(a) over Kouropoulos, Haines, and Alberth; and (b) claim 6 under
35 U.S.C. § 103(a) over Kouropoulos, Haines, Alberth, and Scott, are
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
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