Ex Parte StaytonDownload PDFPatent Trial and Appeal BoardJul 29, 201612105248 (P.T.A.B. Jul. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/105,248 04/17/2008 Gregory T. Stayton 23619 7590 08/02/2016 Squire Patton Boggs (US) LLP 1 E. Washington Street Suite 2700 Phoenix, AZ 85004 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. 050847.00251 5386 EXAMINER BARKER, MATTHEW M ART UNIT PAPER NUMBER 3646 NOTIFICATION DATE DELIVERY MODE 08/02/2016 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): phxip@ squirepb. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD ExparteGREGORYT. STAYTON Appeal2014-007530 Application 12/105,248 Technology Center 3600 Before EDWARD A. BROWN, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Gregory Stayton ("Appellant") appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 3, 5-32, 34--48, 50-60, and 62- 71.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant submits the real party in interest is Aviation Communication & Surveillance Systems LLC. Appeal Br. 2. Appeal2014-007530 Application 12/105,248 THE CLAIMED SUBJECT MATTER Independent claims 1, 19, 34, 50, and 66 are pending. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A method for encoding an overlaid message onto a provided modulated air traffic control (ATC) signal, the method comprising: selecting an overlay modulation protocol; and modulating the provided modulated ATC signal with an overlay message using the selected overlay modulation protocol, wherein the provided modulated ATC signal is modulated with pulse position modulation protocol, wherein: the ATC signal is independently demodulatable from the overlay message; and the ATC signal modulated with the overlay message 1s recognizable as an ATC signal by legacy ATC equipment. REJECTIONS 1) Claims 1, 3, 5-32, 34--48, 50-60, and 62-71 are rejected under 35 U.S.C. § 112, second paragraph, as indefinite. 2) Claims 1, 3, 5-12, 14--24, 26-32, 34--48, 50---60, and 62-71 are rejected under 35 U.S.C. § 103(a) as unpatentable over Rich (US 5,636,123, iss. June 3, 1997). 3) Claims 13 and 25 are rejected under 35 U.S.C. § 103(a) as unpatentable over Rich and King (US 7 ,006,032 B2, iss. Feb. 28, 2006). DISCUSSION Rejection 1: All Claims-Indefiniteness The Examiner rejects all pending claims as indefinite under 35 U.S.C. § 112, second paragraph, due to the limitation appearing in independent claims 1, 19, 34, 50 , and 66 "that the ATC signal modulated with the 2 Appeal2014-007530 Application 12/105,248 overlay message is recognizable by or compatible with 'legacy ATC equipment."' Final Act. 2. The Examiner asserts the limitation '"legacy A TC equipment' is not and cannot be defined." Id. Appellant contends that specific signal frequency requirements for legacy ATC equipment are described in the Specification at paragraph 45, and an industry standard for legacy A TC equipment is incorporated by reference in paragraph 5 of the Specification. Appeal Br. 14. Appellant contends that the claims are not indefinite because "those of ordinary skill in the art would clearly understand the numerous descriptions in the specification that the legacy systems are in fact defined." Id. The Examiner responds that "[p ]aragraph [0045] ... leaves the term open ended and merely indicates an example of what is considered legacy" and the reference to the industry standard does not cure the indefiniteness "because standards may be changed over time, just as what is considered "legacy" ATC equipment will change." Ans. 3. For the following reasons, we find Appellant's argument persuasive. The Specification states "[i]n legacy ATC systems, the frequency of the signal being transmitted are [sic] in the range of 1090 MHz plus or minus 1 MHz." Spec. i-f45. This paragraph does not indicate that this is merely an example of possible signal frequencies in legacy ATC systems. Further, the Specification states the "signal envelopes within predetermined timing intervals is within established ranges, such as those set forth in R TCA standard D0-181 C. "2 Id. This standard is incorporated in the Specification 2 Appellant submits the "C" in D0-181C refers to "version 'C' of the specification, and RCT A promulgates changes to the specification in a new version (currently version "E")." Reply Br. 4. 3 Appeal2014-007530 Application 12/105,248 in its entirety. Id. at il 5. The temporal reference point for determining "legacy ATC equipment" is the filing date of the present application with reference to the version of the industry standard incorporated by reference in the Specification. Any subsequent changes to the standard do not affect the definition of "legacy ATC equipment." Therefore, we determine that one of ordinary skill in the art would understand the meaning of "legacy ATC equipment" in light of the disclosure in the Specification. Consequently, we do not sustain the rejection of claims 1, 3, 5-32, 34--48, 50-60, and 62-71 as indefinite under 35 U.S.C. § 112, second paragraph. Rejection 2: Claims 1, 3, 5-12, 14-24, 26-32, 34-48, 50-60, and 62-71 Obviousness over Rich Appellant argues these claims as a group. Appeal Br. 15. Pursuant to 37 C.F.R. § 41.37 (c)(iv), we select claim 1 and all remaining claims in this group stand or fall with claim 1. 3 The Examiner finds that Rich discloses the limitations of these claims including "phase shift keying modulation for the overlay modulation protocol but does not disclose pulse position modulation." Final Act. 3. The Examiner also finds Rich discloses that those skilled in the art will recognize that other types of modulation may be used. Pulse position modulation is a common and well known modulation, and it would have been obvious to one of ordinary skill in the art to select PPM from a finite group of available modulation schemes and substitute as suggested by Rich with no new or unexpected results. Id. at 3-4. 3 Appellant interposes arguments based upon issues raised by the Examiner in a prior, non-final office action. See Appeal Br. 16-17. Appellant did not dispute the Examiner's assertion that those arguments are moot in light of claim amendments. See Ans. 5; Reply Br. 6-7. 4 Appeal2014-007530 Application 12/105,248 Appellant contends that Rich "cannot demodulate a TCAS signal until it first demodulates the signal to determine a PN code," "filtering out messages means any message without a PN code will not allow the other message to be demodulated," and thereby "creates a contingent order in the disclosed modulation/demodulation scheme." Appeal Br. 16. Relying on a dictionary definition of independent as "not contingent," Appellant contends that Rich does not disclose "'independent' modulation/demodulation" because the demodulation of the TCAS signal is contingent upon the result of demodulation of the PN code. Id. The Examiner responds "the first demodulation to retrieve the PN code is performed first; this demodulation is clearly completed independently from a second." Ans. 5. The demodulation of the navigation signal is next performed. Id. The Examiner notes that "the navigation message itself only needs the capability of being independently demodulated." Id. at 4. The Examiner then asserts that"[ w ]hether or not the second demodulation is performed at all is contingent and "depends" on the first, however the act itself of demodulating the navigation signal is nonetheless an independent process from the act of demodulating the signal to retrieve the PN code." Id. at 5. For the following reasons, we sustain the rejection. We first construe the recited phrase "independently demodulatable." We give claim terms their broadest reasonable interpretation consistent with the Specification as it would be interpreted by one of ordinary skill in the art. See In re Suitco Surface, Inc., 603 F.3d 1255, 1259--60 (Fed. Cir. 2010); In re Morris, 127 F. 3d 1048, 1054--55 (Fed. Cir. 1997). Although the claims are interpreted in light of the Specification, limitations from the 5 Appeal2014-007530 Application 12/105,248 Specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). The Specification discloses: Since varying the phase of the carrier signal within each defined time frame in an ATC-encoded reply signal does not impact the ability of legacy hardware to decode the original ATC data message, the PSK modulation is nondestructive and may be independently demodulated. Put another way, the twice-modulated signal 117 carries the ATC data 103 that is modulated and directly decodable by conventional PPM techniques, in addition to additional data 104 that has been overlaid on the modulated signal in a non-destructive manner, such as by PSK modulation. Therefore, the twice-modulated signal 117 may be demodulated with multiple techniques independently and each data stream ( 103, 104) respectively independently recovered. Spec. iii! 38, 40. Based on the foregoing description in the Specification, we conclude that one of ordinary skill in the art would reasonably understand that "independently demodulatable" means that the ATC signal is capable of being demodulated independently from the overlaid message so that the data in both the ATC signal and the overlaid message is recoverable. Rich discloses a system for "coding and transmitting traffic alert and collision avoidance data between vehicles." Rich, Abstract. In Rich, the "airspace is divided into a grid of volume elements ... each of which is assigned a unique pseudonoise (PN) code." Id. The "PN code and the navigation message modulate a high frequency RF carrier signal." Id. at col. 11, 11. 35-37. "After the carrier signal has been modulated by the pseudonoise code, the signal is input into a second modulator 55 where the composite signal is modulated by the navigation message." Id. at col. 12, 11. 6 Appeal2014-007530 Application 12/105,248 34--37. Rich discloses first demodulating the combined signal to determine the PN code, and if the two vehicles are in the same volume element represented by the PN code, then demodulating the navigation message. Id. at Abstract; see Appeal Br. 16; Ans. 5. When the second vehicle is located within the same airspace volume element, the two demodulations occur independently of each other and both data streams are recovered, i.e., the PN code and the navigation message. Thus, Rich discloses a navigation message that is "independently demodulatable" from the PN code as we have construed that phrase. The fact that the second demodulation may not occur if the two vehicles are not in the same airspace volume element represented by the PN code is of no import as that possible contingency does not impact the fact that Rich's navigation message is independently demodulatable from the PN code, as required by the claims. Therefore, we sustain the rejection of claims 1, 3, 5-12, 14--24, 26-32, 34--48, 50-60, and 62-71 under 35 U.S.C. § 103(a). Rejection 3: Claims 13 and 25 Obviousness over Rich and King Dependent claim 13 recites "encrypting the overlay message" and dependent claim 25 recites "decrypting the overlay message." Appeal Br. 24, 29 (Claims App.). The Examiner finds that "King discloses a related method for encoding data on an avionics signal including encrypting the data for decryption." Final Act. 5. The Examiner concludes it would have been obvious "to encrypt and decrypt the data of Rich in order to prevent unauthorized access to the data." Id. Appellant first contends that King does not cure the alleged deficiency in Rich concerning whether the signals are "independently demodulatable." 7 Appeal2014-007530 Application 12/105,248 Appeal Br. 18. As noted above, the argument regarding Rich's alleged deficiency is not persuasive. Appellant next contends that the Examiner's combination of Rich and King is "nonsensical" because "encrypting the position and thereby preventing users from seeing the aircraft location is in direct contravention to the ... purposes of an ATC system." Appeal Br. 18. Appellant contends that King "discloses only the ability 'to encrypt the 56-bit message field of the 112-bit Mode-S squitter"' and "if the Rich reference were combined with the King reference, the only result that could occur would be encryption of the primary message and not an overlay message." Id. at 19. The Examiner responds that encrypting the aircraft position data is not "nonsensical" because encryption would not prevent authorized users of the system from having the "ability to decrypt the information." Ans. 6. The Examiner also observes that one of ordinary skill in the art "would have been motivated to encrypt the overlay, or navigation message of Rich and not the PN code because ... the sensitive information in the transmission of Rich is contained in the navigation message and further, the King reference teaches encrypting the message fields containing aircraft position data." Id. We note Appellant admits that King discloses the encrypting and decrypting of data signals in an air traffic control system. See Appeal Br. 19. Appellant's argument that King discloses encrypting the primary message not the overlay message amounts to an attack on King individually while the rejection is based on the combined teachings of Rich and King. In re Keller, 642 F.2d 413, 425 (CCPA 1981)(0ne cannot show nonobviousenss by attacking references individually when the rejection is based on a combination of references.) Appellant, thus, fails to persuasively 8 Appeal2014-007530 Application 12/105,248 apprise us of error in the Examiner's factual findings or rationale, quoted above, for the combination of Rich and King, which we determine to be reasonable and supported by the disclosure in the cited references. See KSR Intern. Co. v Teleflex Inc., 550 US 398, 416 (2007) ("[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). We thus sustain the rejection of claims 13 and 25. DECISION The Examiner's decision rejecting claims 1, 3, 5-32, 34--48, 50-60, and 62-71 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). See 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation