Ex Parte Zuckerman et al

Patent Trial and Appeal Board

Feb 24, 2016

11602967 (P.T.A.B. Feb. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/602,967 11122/2006
60956 7590 02/26/2016
Professional Patent Solutions
P.O. BOX654
HERZELIYA PITUACH, 46105
ISRAEL
FIRST NAMED INVENTOR
Gal Zuckerman
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.
GNT-PU-011-USl 9598
EXAMINER
SHEN,QUN
ART UNIT PAPER NUMBER
2643
NOTIFICATION DATE DELIVERY MODE
02/26/2016 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):
office@propats.com
vsherman@propats.com
utalmi@propats.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GAL ZUCKERMAN, OZ LEA VE, and ROY KINAMON
Appeal2014-002971
Application 11/602,967
Technology Center 2600
Before JOHNNY A. KUMAR, TERRENCE W. McMILLIN, and
KAMRAN JIVANI, Administrative Patent Judges.
JIVANI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's rejections of claims 21--40, which are the claims pending in the
present patent application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Go Net Systems, Ltd. as the real party in interest.
App. Br. 2.
Appeal2014-002971
Application 11/602,967
STATEMENT OF THE CASE
The present application relates to hybrid wired-wireless and wireless-
wireless, point-to-multipoint communication, featuring a shared channel,
discrete multi-tone modulation, and wireless transmission. Spec. 18-20.
Claim 21 is illustrative:
21. A point to multi-point wireless communication system
compnsmg:
a communication controller to generate a common
downlink signal comprising point to multi-point media-access-
controller (MAC) information, for first and second wireless
clients, for wirelessly communicating in a point to multi-point
fashion using a single channel frequency; and
first and second hybrid converters having an operative
coverage area and positioned relative to one another such that
the operative coverage area of said first hybrid converter
overlaps partially with the operative coverage area of said
second hybrid converter, thereby defining an overlap coverage
area, wherein each of said hybrid converters includes downlink
circuitry to: (1) receive the downlink signal from said
communication controller, (2) frequency shift the downlink
signal to the single channel frequency designated by said
communication controller, and (3) retransmit the downlink
signal to the first and second wireless clients substantially
concurrently via the single channel frequency, wherein the first
wireless client is located in the overlap coverage region; and
wherein said communication controller comprises
transmission and reception (Tx/Rx) modulation circuitry and
(Tx/Rx) control logic adapted to maintain a communication
session with a wireless client located in the overlap coverage
area via both said first and second hybrid converters
substantially concurrently.
2
Appeal2014-002971
Application 11/602,967
The Rejections
Claims 21, 23, 25-27, 30, 32, 36, 38, and 39 stand rejected under
35 U.S.C. § 103(a) over Dolgonos et al. (US 2002/0147978 Al; Oct. 10,
2002) and Stein et al. (US 2003/0008669 Al; Jan. 9, 2003).
Claims 22, 24, 31, and 33 stand rejected under 35 U.S.C. § 103(a)
over Dolgonos, Stein, and Toms et al. (US 2006/0223468 Al; Oct. 5, 2006).
Claims 28, 29, 34, 35, and 37 stand rejected under 35 U.S.C. § 103(a)
over Dolgonos, Stein, and Handforth et al. (US 7 ,466,985 B 1; Dec. 16,
2008).
Claim 40 stands rejected under 35 U.S.C. § 103(a) over Dolgonos,
Stein, and Iverson et al. (US 7,006,471 Bl; Feb. 28, 2006).
ANALYSIS
Appellants argue independent claims 21, 30, and 36 together. App.
Br. 20. As permitted by 37 C.F.R. § 41.37(c)(l)(iv), we select claim 21 as
representative of this group and decide the appeal as to this rejection based
on claim 21 alone.
The Examiner finds the combination of Dolgonos and Stein teaches or
suggests the elements of independent claim 21. Final Act. 3-5.
Specifically, the Examiner finds Dolgonos teaches or suggests the claimed
communication controller, hybrid converters, and wireless clients, but lacks
the claimed transmission and reception (Tx/Rx) modulation circuitry located
within the communication controller. Final Act. 3--4. As to that limitation
missing in Dolgonos, the Examiner finds, and we agree, Stein teaches,
the functionality of modulation is located in the communication
controller (paragraph [ 46], BS) that forward the modulated
signal to the hybrid converter via a coaxial or fiber (paragraph
3
Appeal2014-002971
Application 11/602,967
[57], repeater (hybrid converter)). Further [Stein] teaches that
the hybrid converter retains frequency shifting functionality
(see at least paragraph [59]).
Final. Act. 4--5. Thus, the Examiner finds the combination of Dolgonos and
Stein teaches the elements of independent claim 21. Id. The Examiner
makes similar findings for independent claims 30 and 36. Id. at 7-9.
Appellants contend "the Dolgonos reference neither teaches nor
suggests the hybrid converters recited in the pending claims .... " App. Br.
12. More particularly, Appellants contend Dolgonos "actually specifically
teaches away from" modulating a download signal at a central controller and
"directly contradicts the discussed limitations by clearly teaching
demodulating and remodulating the signals at the Antenna Nodes." Id.;
Reply Br. 5-7. Appellants further contend, "the Dolgonos reference neither
teaches nor suggests generating media-access-control (MAC) information
and performing Tx/Rx control for multiple access points at a central
controller'' and assert Dolgonos teaches away from the corresponding claim
limitations. Id. at 13-14.
Regarding the Stein reference, Appellants contend Stein "neither
teaches nor suggests the recited hybrid converters and actually also teaches
away from the recited limitations by clearly teaching demodulation and
remodulation of signals at the discussed repeater component." Id. at 15.
Appellants further contend, "the repeaters taught by Stein are designed to
function in a CDMA spread spectrum signal environment (see par. 0025,
0071 & 149 of Stein). These types of transmissions are not practically
compatible with SFN overlapping transmissions .... " Id. at 16; Reply Br.
13-17. Thus, Appellants contend, the Examiner combines Dolgonos and
4
Appeal2014-002971
Application 11/602,967
Stein using "hindsight, trying to use the pending claims as a template .... "
App. Br. 17; Reply Br. 16.
Finally, Appellants contend the Examiner errs in combining Dolgonos
and Stein because "the combination is simply technically implausible and
would render the system ofDolgonos completely inoperable." App. Br. 17.
Specifically, Appellants contend,
[ s ]hould the system of Dolgonos be modified according to the
Examiner's suggested modification, namely replacing the AP 's
with the repeaters of Stein, the only wireless signals sensed by
wireless clients in communication range of the repeaters would
only include MAC information of the AP's and would not be
remotely recognizable to the wireless clients.
App. Br. 18 (emphasis added).
We have considered the Examiner's rejections in light of Appellants'
arguments in the Appeal Brief and Reply Brief, as well as the Examiner's
Answer thereto. We agree with, and adopt as our own, the Examiner's
findings and reasons. We further emphasize the following.
First, Appellants argue the applied references individually. See, e.g.,
App. Br. 12-17. Where, as here, a rejection is based on a combination of
references, one cannot show non-obviousness by attacking references
individually. In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Thus, we are not persuaded
by Appellants' argument that Dolgonos fails to teach or suggest modulating
a download signal at a central controller (App. Br. 12) because the Examiner
relies on Stein-not Dolgonos-as meeting this limitation. Final Act. 4--5.
Nor are we persuaded by Appellants' argument that Stein fails to teach or
suggest retransmitting the same signal from the hybrid converters to the
5
Appeal2014-002971
Application 11/602,967
clients because the Examiner relies on Dolgonos -not Stein-as meeting
this limitation. Id. at 3--4.
Second, "[ t ]he test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the
primary reference . . . . Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art."
Keller, 642 F.2d at 425. Contrary to Appellants' argument, the Examiner
finds, and we agree, one of ordinary skill in the art would find relocating
these functions from Dolgonos' antenna nodes (i.e., hybrid converters) to
Dolgonos' headend/hub (i.e., central controller) to be obvious in light of
Stein's teaching of performing these functions at Stein's base station (i.e.,
central controller) rather than Stein's repeaters (i.e., hybrid converters),
particularly in light of Dolgonos' explicit suggestion of moving function
performance. Final Act. 3-5; Ans. 18-20
We disagree with Appellants that an artisan of ordinary skill would
not so relocate modulation because Dolgonos' teaching is limited to moving
management functions between the headend and the hub. Reply Br. 3, 6-9.
The Examiner's citation of Dolgonos' suggestion to move functions is
merely cumulative to the findings of specific teachings in Stein, which one
of ordinary skill in the art would combine with Dolgonos:
Examiner further notes that Stein clearly teaches functionalities
deemed by Dolgonos to be performed in one location, as being
performed in another location (paragraphs [57], modulated
signal from the serving base station i.e. functionality of
modulation located in communication controller) and hybrid
converter retaining frequency shifting functionality (paragraph
[59], see particularly paragraph [60], where Stein teaches the
actual frequency shifting "The signal conditioning may include
amplification, frequency downconversion [shifting] of the
6
Appeal2014-002971
Application 11/602,967
forward modulated signal to intermediate frequency"
(emphasis added)).
Ans. 19. As our reviewing Court has held, the skilled artisan is "a person of
ordinary creativity, not an automaton." KSR Int 'l Co. v. Teleflex, Inc., 550
U.S. 398, 421 (2007).
Similarly, we are not persuaded by Appellants' argument that Stein's
repeaters, designed for a CDMA environment "are not practically
compatible with [Dolgonos'] SFN overlapping transmissions .... " App. Br.
16. The test for obviousness is not bodily incorporation. Keller, 642 F .2d at
426.
Third, Appellants fail to persuade us that the Examiner uses improper
hindsight because "the combination [of Dolgonos and Stein] is simply
technically implausible and would render the system of Dolgonos
completely inoperable." App. Br. 17; Reply Br. 3--4. Appellants' argument
is predicated upon a mischaracterization of the Examiner's findings.
Appellants erroneously contend the "Examiner's suggested modification" is
"replacing the AP's with the repeaters of Stein .... " App. Br. 18. The
Examiner does not attempt to bodily incorporate the repeaters of Stein into
the system of Dolgonos. Rather, as discussed above, the Examiner makes
particular findings of moving specific functions in light of the teaching of
Stein. Thus, the Examiner has articulated reasoning with rational
underpinning and not improperly applied hindsight.
Fourth, Appellants' allegations of teachings away in Dolgonos and
Stein are misguided. A reference may be said to teach away from the
invention if it criticizes, discredits, or otherwise discourages modifying a
reference to arrive at the claimed invention. In re Fulton, 391 F.3d 1195,
7
Appeal2014-002971
Application 11/602,967
1201 (Fed. Cir. 2004). Appellants fail to direct us to any statement
Dolgonos criticizing, discrediting, or otherwise discouraging moving
modulation functions to the claimed controller. The teaching of an
alternative configuration (i.e., modulation at the Antenna Nodes) does not
sufficiently criticizing, discrediting, or otherwise discourage to constitute a
teaching away. Id. Nor does Stein teach away by "teaching demodulation
and remodulation of signals at the discussed repeater component." App Br.
15. Stein's teaching that the repeaters (i.e., hybrid controllers) may add an
identifier to the signal by additional modulation does not negate its teaching
that the repeaters "receive, amplify, and retransmit modulated signals" and
retain frequency shifting capabilities. Stein i-fi-157, 59; Ans. 19.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of independent claims 21, 30, and 36. Appellants present no further
arguments on dependent claims 22-29, 31-35, and 37--40 beyond those
discussed above in the context of independent claim 21. App. Br. 20.
Accordingly, we sustain the Examiner's rejections of these claims for the
same reasons discussed above.
DECISION
We affirm the Examiner's decision rejecting claims 21--40.
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
8