Jonathan Lenchner et al.

Patent Trials and Appeals Board

Jan 30, 2020

14750219 - (D) (P.T.A.B. Jan. 30, 2020)

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.
14/750,219 06/25/2015 Jonathan Lenchner YOR920140547US2 4673
48062 7590 01/30/2020
RYAN, MASON & LEWIS, LLP
2425 Post Road
Suite 204
Southport, CT 06890
EXAMINER
BARAKAT, MOHAMED
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
01/30/2020 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):
ctoffice@rml-law.com
kmm@rml-law.com
mjc@rml-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN LENCHNER, JOHN C. NELSON, and
TIMO JUHANI SANTALA
Appeal 2018-008733
Application 14/750,219
Technology Center 2600
Before ALLEN R. MacDONALD, SCOTT RAEVSKY, and
IFTIKHAR AHMED, Administrative Patent Judges.
RAEVSKY, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6, 8, and 9.2 We have jurisdiction
under 35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as
International Business Machines Corporation. Appeal Br. 1.
2 We note that the Appeal Brief asserted there are no related appeals or
interferences (Appeal Br. 1), but the same counsel for the same assignee
filed substantially the same appeal brief in parent Application No.
14/668,215 on the same day. Not only that, but each application stands
provisionally rejected for double patenting over the other. We remind
Appellant and Appellant’s counsel that they have a duty to disclose prior and
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Application 14/750,219

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We affirm.
CLAIMED SUBJECT MATTER
The claims relate to methods and apparatus for localizing a source of a
set of radio signals. See Spec., Abstr. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method for localizing a source of a set of radio signals,
the method comprising the steps of:
obtaining a plurality of radio signals in said set by
moving a signal reader to a plurality of locations in an
environment, wherein each of said plurality of radio signals is
transmitted by said source;
determining one or more signal strengths of said radio
signals, a location at which said plurality of radio signals are
obtained, and an identifier of said source;
determining a directional vector for each of said plurality
of radio signals by comparing said one or more signal strengths
to signal strengths of other radio signals in said set;
projecting said determined directional vectors; and
determining a location of said source of said set of radio
signals using an intersection selection criterion that evaluates a
number of said projected determined directional vectors that
intersect for each of said plurality of radio signals, wherein at
least one of said steps are performed by at least one hardware
device.

pending appeals that involve an application or patent owned by Appellant or
the application’s assignee, are known to Appellant, Appellant’s legal
representative, or assignee, “and may be related to, directly affect or be
directly affected by or have a bearing on the Board’s decision in the pending
appeal.” 37 C.F.R. § 41.37(c)(ii).
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Application 14/750,219

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REJECTIONS
Claims 1–6, 8, and 9 stand provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 10–13, 15–
19, and 21–25 of copending Application No. 14/668,215. Final Act. 2–3.
Claims 1–3, 5, and 6 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Liu (US 2012/0062381 A1, Mar. 15, 2012), Wild (US
2009/0212921 A1, Aug. 27, 2009), and John (US 2003/0122666 A1, July 3,
2003). Id. at 4.
Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Liu, Wild, John, and Shoarinejad (US 2008/0143482 A1, June 19,
2008). Id. at 9.
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Liu, Wild, John, and Breed (US 2008/0250869 A1, Oct. 16, 2008). Id.
at 10.
Claim 9 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Liu, Wild, John, Breed, and Sternowski (US 9,316,719 B1, Apr. 19,
2016). Id.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See id.
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Application 14/750,219

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Rejections under § 103
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
Appellant[] respectfully submit[s] that Liu et al. do not teach
“determining a directional vector for each of said plurality of
radio signals.” Rather, Liu et al. teach a vector that describes
the motion of the tag. See, e.g., par. 0042, relied upon by the
Examiner (“Motion-related information for the tag is then
determined . . . For example, the vector V determined for the
motion of RFID tag 110 from point A to point D may be used
along with the reference information to estimate a path of
motion of tag 110 and the direction of motion along the
path.”)[.]
Appeal Br. 5 (emphasis omitted).
We agree with Appellant’s argument. We are persuaded there is
insufficient articulated reasoning to support the Examiner’s determination
that Liu, Wild, and John render obvious “determining a directional vector for
each of said plurality of radio signals” as required by claim 1. The Examiner
determines that Liu discloses “determin[ing] a directional vector for each of
said plurality of radio signals.” Final Act. 5. However, in the overall
context of claim 1, the directional vectors are from the signal source to the
signal reader. Otherwise, it would not be possible to perform the function of
“determining a location of said source of said set of radio signals using an
intersection selection criterion” as required by the final operation of claim 1.
As Appellant points out, Liu does not teach a directional vector (from the
signal source to the signal reader), instead Liu teaches “a vector that
describes the motion of the tag.” Appeal Br. 5 (emphasis omitted). We find
nothing in the Examiner’s reasoning that explains why an artisan would
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Application 14/750,219

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modify Liu to generate the type of directional vectors required by the overall
operation of claim 1.
Therefore, we conclude that there is insufficient articulated reasoning
to support the Examiner’s final conclusion that claim 1 would have been
obvious to one of ordinary skill in the art at the time of Appellant’s
invention in view of Liu, Wild, and John.
We note the Examiner has not relied on any of the other cited
references to teach this element. Accordingly, we do not sustain the
Examiner’s rejection of claim 1 and its corresponding dependent claims.
We do not reach Appellant’s further allegations of error because we find the
issue discussed above to be dispositive of the rejection of all the pending
claims.

Provisional Double Patenting Rejection
Appellant does not present arguments for the provisional nonstatutory
double patenting rejection of claim 1. Rather, “Appellant[] propose[s] to
defer resolution of the provisional double patenting rejection until there is an
indication of allowable subject matter in at least one of the applications.” Id.
at 4.
The Federal Circuit has stated,
When the appellant fails to contest a ground of rejection to the
Board, [there is] no burden on the Board to consider the merits
of that ground of rejection on the basis of a representative
claim. Rather, the Board may treat any argument with respect
to that ground of rejection as waived. In the event of such a
waiver, the PTO may affirm the rejection of the group of claims
that the examiner rejected on that ground without considering
the merits of those rejections.
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Application 14/750,219

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Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (addressing
predecessor rule to 37 C.F.R. § 41.37(c)(1)(iv)); see also 37 C.F.R.
§ 41.37(c)(1)(iv) (“Except as provided for in §§41.41, 41.47 and 41.52, any
arguments or authorities not included in the appeal brief will be refused
consideration by the Board for purposes of the present appeal.”).
In light of Appellant’s failure to present arguments as to the
provisional rejection, we affirm pro forma the provisional rejection of
claim 1 and its corresponding dependent claims.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–6, 8, 9 Provisional Non-
statutory Double
Patenting
1–6, 8, 9
1–3, 5, 6 103 Liu, Wild, John 1–3, 5, 6
4 103 Liu, Wild, John,
Shoarinejad
4
8 103 Liu, Wild, John, Breed 8
9 103 Liu, Wild, John, Breed,
Sternowski
9
Overall
Outcome
1–6, 8, 9
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)(1)(iv).
AFFIRMED