Ex Parte SugayaDownload PDFPatent Trial and Appeal BoardMay 31, 201612539439 (P.T.A.B. May. 31, 2016) Copy Citation 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 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/539,439 08/11/2009 Shigeru SUGAYA 1946-0217 9312 60803 7590 06/01/2016 Paratus Law Group, PLLC 620 Herndon Parkway Suite 320 Herndon, VA 20170 EXAMINER RANDHAWA, MANDISH K ART UNIT PAPER NUMBER 2475 MAIL DATE DELIVERY MODE 06/01/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SHIGERU SUGAYA ____________ Appeal 2015-000670 Application 12/539,439 Technology Center 2400 ____________ Before JOHN A. EVANS, MELISSA A. HAAPALA, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1 and 3–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention relates to an improved wireless communication system that permits data such as voice or text information to be transmitted together with management information (beacon). See Spec. 1–2. Claims 1, 1 Appellant identifies Sony Corporation as the real party in interest. App. Br. 3. Appeal 2015-000670 Application 12/539,439 2 10, 11, and 12 are independent. Exemplary claim 1 is reproduced below, with the disputed limitations in italics: 1. A wireless communication device, comprising: a communication portion that periodically broadcasts a management information beacon for forming a wireless network with at least one other wireless communication device; a determination portion that determines, based on one of an attribute of transfer data information and a supply speed of the transfer data information supplied from a given device of the at least one other wireless device, whether to add a transfer data information element to the management information beacon, wherein the attribute of transfer data information is one of text information, voice information, or audio information to be added to the management information beacon; and a generation portion that adds the transfer data information element to the management information beacon and records a target device address which indicates an address of the given device to the management information beacon, according to a determination result of the determination portion. App. Br. 14 (emphasis added). PRIOR ART The Examiner relies upon the following prior art in rejecting the claims: Chaum US 5,485,520 Jan. 16, 1996 Sugaya US 2005/0096031 A1 May 5, 2005 Sugaya US 2007/0053315 A1 Mar. 8, 2007 Celentano US 2009/0323697 A1 Dec. 31, 2009 Appeal 2015-000670 Application 12/539,439 3 THE REJECTIONS ON APPEAL Claims 1, 3, 6, 9–13, 16, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Celentano. Final Act. 2–7. Claims 4 and 14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Celentano and Sugaya ’031. Final Act. 7–8. Claims 5 and 15 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Celentano, Sugaya ’031, and Chaum. Final Act. 8–9. Claims 7, 8, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Celentano and Sugaya ’315. Final Act. 9–11. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments presented in this appeal. Any other arguments which Appellant could have made but chose not to make in the Brief are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). On this record, we are not persuaded the Examiner erred, and we adopt as our own the findings and reasons set forth in the rejections from which this appeal is taken and in the Examiner’s Answer. We provide the following to highlight and address specific arguments. Claims 1, 3, 6, 9–13, 16, 19 and 20 Appellant argues the Examiner erred in finding Celentano teaches the limitation “wherein the attribute of transfer data information is one of text information, voice information, or audio information to be added to the management information beacon,” recited in each of the claims. App. Br. 13–16. The Examiner responds that the disputed limitation (the “wherein Appeal 2015-000670 Application 12/539,439 4 clause”) is optional in each claim, and thus entitled to no patentable weight, because the “wherein clause” modifies only one of the two alternatives recited in each claim (“an attribute” of transfer data information or “a supply speed” of the transfer data information). Ans. 4; see also In re Johnston, 435 F.3d. 1381, 1384 (Fed. Cir. 2006) (“[O]ptional elements do not narrow the claim because they can always be omitted.”). The Examiner further finds that, even if the disputed limitation is required, Celentano teaches the limitation to one of ordinary skill in the art for the reasons described in the Final Action. Ans. 4–5; Final Act. 2–3. We need not reach the issue of whether the limitation is optional because we agree with the Examiner’s finding that it is taught in Celentano. Celentano is directed to a wireless communication system in which, like Appellant’s invention, data transmission is expedited under certain conditions by routing the data to the control plane for “transmission in a beacon signal,” instead of in the “data plane” as typically would be standard for a wireless protocol. Celentano ¶¶ 2, 8, 9; Abstract. The Examiner finds the “determination portion” element of Appellant’s claim is taught in Celentano paragraph 9 (among others), which states “a determination may be made as to whether it would be more appropriate to transmit data at an upper level (e.g., a control plane) rather than . . . a [standard] data plane.” Final Act. 3 (emphasis added). According to Celentano, that determination “may depend on” (be “based on”) a number of factors, including “timing requirements pertaining to the data,” Celentano ¶¶ 9, or the “data type and/or data traffic characteristics (rate, buffered traffic, etc.),” id. at ¶¶ 55, 56 (emphasis added). The record thus supports the Examiner’s finding in Celentano a “determination portion” that makes its determination “based on” Appeal 2015-000670 Application 12/539,439 5 a “supply speed [i.e., rate] of the transfer data information” or “an attribute [i.e., data type] of transfer data information.” See id. Appellant argues Celentano does not expressly disclose the “attribute of transfer data information” is “text information, voice information, or audio information,” as recited in the “wherein” clause of the claims. App. Br. 14–16. The Examiner’s obviousness analysis, however, need not rely solely on “the precise teachings directed to the specific subject matter of the challenged claim” but also may “take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Here, the Examiner finds one of ordinary skill in the art, upon reviewing Celentano, would understand “data type” in wireless communications to include (among other things) text, voice, and audio data. Ans. 5; Final Act. 3. In particular, the Examiner explains that one of ordinary skill would recognize, from Celentano’s statement “the MAC . . . has some knowledge of the data type and/or characteristics of the data traffic,” that the MAC would have been able to determine whether the data traffic can be attributed to being voice, audio, or text. Ans. 5. Appellant does not persuade us of error in the foregoing findings by the Examiner. Appellant neither contests the Examiner’s explanation of what one of ordinary skill in the art would understand, nor addresses the Examiner’s finding in any particular way. Rather, Appellant simply alleges Celentano does not disclose the disputed limitation, an argument we find unpersuasive in light of the Examiner’s findings and explanations. Appellant also asserts the Examiner “admitted” that the disputed limitation is not found in Celentano, App. Br. 13; however, the Examiner simply states Appeal 2015-000670 Application 12/539,439 6 that Celentano did not “explicitly” state certain elements of the claim. See, e.g., Final Act. 3. The Examiner follows that statement by explaining why Celentano teaches or suggests the claim elements to one of ordinary skill in the art. Id. For the foregoing reasons, we sustain the rejection of claims 1, 3, 6, 9–13, 16, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over Celentano. Remaining Claims Appellant argues the remaining dependent claims 4, 5, 7, 8, 14, 15, 17, and 18 are allowable because they include the same disputed limitation as the base claims, see supra, and the additional references cited by the Examiner do not remedy the alleged deficiencies of Celentano with respect to the base claims. Because Appellant’s contentions do not persuade us of error in the Examiner’s rejection of the base claims, we sustain the 35 U.S.C. § 103(a) rejections of the remaining claims. DECISION We affirm the Examiner’s decision rejecting claims 1 and 3–20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv) (2013). AFFIRMED em Copy with citationCopy as parenthetical citation