Harman International Industries, Inc.

Patent Trials and Appeals Board

Apr 30, 2021

2019006126 (P.T.A.B. Apr. 30, 2021)

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.
15/506,908 02/27/2017 Daniel Timothy PYE Jr. HARM0386PUSA 2025
109676 7590 04/30/2021
Brooks Kushman P.C./Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
EXAMINER
YU, NORMAN
ART UNIT PAPER NUMBER
2652
NOTIFICATION DATE DELIVERY MODE
04/30/2021 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte DANIEL TIMOTHY PYE, JR., SATISH PUTTA,
RICHARD METCALFE, and LING YANG

Appeal 2019-006126
Application 15/506,908
Technology Center 2600

Before CATHERINE SHIANG, JASON J. CHUNG, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
STATEMENT OF THE CASE
Appellant filed a Request for Rehearing under 37 C.F.R. § 41.52 on
April 16, 2021 (hereinafter “Request” or “Req. Reh’g”). In the Request,
Appellant requests that we reconsider our Decision on Appeal of February
16, 2021 (hereinafter “Decision” or “Dec.”) affirming the Examiner’s
obviousness rejection under 35 U.S.C. § 103 of claims 1–14. We
reconsidered our Decision in light of Appellant’s Request for Rehearing.
For the reasons explained below, Appellant’s arguments do not persuade us
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that we misapprehended or overlooked any point of fact or law in rendering
our Decision. Hence, we deny Appellant’s request.

CLAIMED SUBJECT MATTER
The claimed invention relates to a wireless speaker system. Spec. ¶ 2.
Independent claim 1 is illustrative, with the limitations at issue emphasized
in italics:
1. A first audio playback device comprising:
a speaker configured to play media content;
at least one pushbutton;
a transceiver configured to one of transmit the media content to
first audio playback device and receive the media content from
a second audio playback device; and
a controller configured to, upon depression of the at least one
pushbutton for a predefined time duration, transmit the media
content to the second audio playback device via the transceiver
for playback of the media content at the second audio playback
device.
Appeal Br. (Claims App. 1).
Independent claim 8 recites a similar invention:
8. A media content playback system, comprising:
a first playback device and a second playback device, each
playback device having at least one pushbutton and each
configured to transmit or receive media content via a wireless
transceiver, wherein upon depression of the pushbutton at the
first playback device for a predefined time duration, media
content is transmitted therefrom to the second playback device
to be played back at the second playback device in response to
the depression of the pushbutton.
Id. at Claims App. 2. Dependent claims 2–7 and 9–14 each incorporate the
limitations of their respective independent claims. Id. at Claims App. 1–3.
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ANALYSIS
A rehearing request “must state with particularity the points believed
to have been misapprehended or overlooked by the Board.” 37 C.F.R.
§ 41.52(a)(1) (2019); see Ex parte Quist, 95 USPQ2d 1140, 1141 (BPAI
2010) (precedential). An appellant should not use a rehearing request as a
vehicle to express disagreement with a Board decision or rehash arguments
previously presented. See 37 C.F.R. § 41.52(a)(1). An appellant dissatisfied
with a Board decision should seek judicial review, not file a rehearing
request to reargue already decided issues. See 35 U.S.C. §§ 141, 145.
Here, Appellant argues that we misapprehended or overlooked
Appellant’s arguments for the patentability of dependent claims 2–6 and 9–
11 in rendering our Decision. Req. Reh’g 2.

OPINION
Appellant “maintains” that the rejections of the independent claims
use impermissible hindsight, but does not set forth any point of fact or law
that was allegedly misapprehended or overlooked in the Decision. Req.
Reh’g 2. Appellant had made an argument based upon hindsight
reconstruction in its Appeal Brief, and we addressed this argument in our
Decision. See Dec. 5. A request for rehearing “must state with particularity
the points believed to have been misapprehended or overlooked by the
Board.” 37 C.F.R. § 41.52. Appellant does not alleged that we overlooked
or misapprehended its hindsight argument, in the sense that we did not
address it or that we treated it as a different argument; nor would such
argument be persuasive in view of our clear reference to, and treatment of,
Appellant’s hindsight argument in our Decision. Dec. 5. Nor does
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Appellant point to any alleged errors in our treatment of its hindsight
argument in our Decision, instead providing only the statement, “Appellant
maintains that the rejections of the independent claims use impermissible
hindsight to combine the two references.” Req. Reh’g 2. Because Appellant
does not “state with particularity” what points regarding its hindsight
reconstruction argument in its briefs that Appellant believes that the Board
misapprehended or overlooked, Appellant has not satisfied the strict
requirements of 37 C.F.R. § 41.52, and we may not consider such argument.
Furthermore, even were we permitted by our rules to consider such
argument, Appellant has not explained why our discussion in the Decision
would be incorrect. Thus, having no particular allegation of error to
consider, our consideration upon rehearing would merely repeat the
discussion of the Decision. Because a Decision on rehearing “is deemed to
incorporate the earlier opinion reflecting its decision for appeal, except for
those portions specifically withdrawn on rehearing,” such repetition of
discussion from our Decision would merely be superfluous.
Appellant argued, in its Reply Brief, “with respect to claims 2–6 and
9–11, . . . neither of the references disclose transmitting or receiving media
content each based on varying depressions of a button as recited in the
claims.” Reply Br. 2.
In our Decision, we stated
Appellant argues, “neither of the references disclose
transmitting or receiving media content each based on varying
depressions of a button.” Reply Br. 2. Appellant states that the
Examiner admits that Kallai does not explicitly teach that the
user interface is a pushbutton and that upon depression of the at
least one pushbutton for a predefined time during to initiate a
task. Appeal Br. 2. Appellant further states, “Khaira has
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nothing to do with controlling ‘playback of the media content at
the second audio playback device’ by input received at ‘the first
audio playback device.’” Id. at 3.
The test for obviousness is “what the combined teachings
of the references would have suggested to those of ordinary
skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Here, the Examiner relies upon a combination of the references
to teach or suggest the limitations. Appellant argues that Kallai
does not teach a pushbutton having the claimed duration
function, and that Khaira does not teach controlling media
content playback in the claimed manner. However, Appellant
does not explain how the Examiner’s combination of Kallai and
Khaira fails to teach both limitations. Consequently, we are
not persuaded that the Examiner errs in finding the claimed
combination to teach or suggest every limitation of claim 1.
Dec. 4.
Accordingly, we specifically addressed Appellant’s arguments against
dependent claims 2–6 and 9–11 in the Decision. Appellant presented no
further arguments against those claims in the Reply Brief. We next look to
Appellant’s arguments against the rejection of these claims in its Appeal
Brief.
In its Appeal Brief, Appellant argued against the rejection of claim 2,
specifically, its additional limitation of “wherein the controller is further
configured to transmit the media content to the second audio playback
device in the event the predefined time duration is equal to a first time
threshold.” Appeal Br. 4. Appellant argued that Kallai does not teach this
limitation, and that Khaira discloses a certain “duration of holding down the
button,” but not “transmitting media content to the second playback device
in response to a certain input.” Id.
However, Appellant’s argument against the rejection of claim 2 is the
same as its argument against the rejection of claim 1. For claim 1, Appellant
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argued, “Khaira has nothing to do with controlling ‘playback of the media
content at the second audio playback device’ by input received at ‘the first
audio playback device.’” Appeal Br. 3. In our Decision, we disagreed with
that argument, agreeing that the Examiner found Kallai to teach “a user
interface that provides input causing a controller to transmit media content to
a second audio playback device,” and finding Appellant’s argument not
persuasive because it failed to explain how the Examiner’s combination of
Kallai and Khaira fails to teach both limitations. Dec. 3–4. Consequently,
we are not persuaded we overlooked or misapprehended any point of fact or
law in affirming the Examiner’s rejection of claim 2.
With respect to claim 3, Appellant argued in its Appeal Brief that
“nothing in Khaira has to do with receiving media content, let alone in
response to a depression of a button.” Appeal Br. 4. We note that Appellant
admitted that “Khaira discloses certain ‘duration of holding down the
button.’” Id. However, we addressed this argument with respect to claim 1,
finding Appellant’s argument not persuasive because it failed to explain how
the Examiner’s combination of Kallai and Khaira fails to teach both
limitations. Dec. 3–4. Consequently, we are not persuaded we overlooked
or misapprehended any point of fact or law in affirming the Examiner’s
rejection of claim 3.
With respect to claim 4, Appellant provides the same argument as in
the Reply Brief, i.e., “Neither reference[] disclose[s] transmitting or
receiving media content each based on varying depressions of a button.”
Appeal Br. 4. We have addressed this argument, supra at 3–4, and in our
Decision at 3–4, and found it not persuasive. Consequently, we are not
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persuaded we overlooked or misapprehended any point of fact or law in
affirming the Examiner’s rejection of claim 4.
With respect to claims 5, 6, 9, 10, and 11, Appellant in its Appeal
Brief provided an excerpt or summary of the additional limitations, and
argued patentability because of “at least the reasons set forth above.”
Appeal Br. 5. Appellant does not set forth any point of fact or law not
already addressed. Consequently, we are not persuaded we overlooked or
misapprehended any point of fact or law in affirming the Examiner’s
rejection of claims 5, 6, 9, 10, and 11.

CONCLUSION
Based on the analysis above, we have granted Appellant’s request
to the extent that we have reconsidered our Decision. Appellants have not
shown that we misapprehended or overlooked any issue of law or fact in
reaching that decision. Accordingly, we deny Appellants’ Request for
Rehearing.

Outcome of Decision on Rehearing:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted
2–6, 9–11 103 Kallai, Khaira 2–6, 9–11
Final Outcome of Appeal After Rehearing:
Claims
Rejected
35 U.S.C. § Reference(s) Affirmed Reversed
1–11, 13,
14
103 Kallai, Khaira 1–11, 13,
14

12 103 Kallai, Khaira, Tan 12
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TIME PERIOD FOR RESPONSE
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)(iv). See
37 C.F.R. § 41.50(f).
DENIED

Overall
Outcome
1–14