Otmar Rengert

Patent Trials and Appeals Board

Feb 11, 2021

2019006309 (P.T.A.B. Feb. 11, 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.
13/985,292 10/24/2013 Otmar Rengert 8457-US 9279
69054 7590 02/11/2021
RECHES PATENTS
HaArba''a Towers
North Tower
TEL AVIV, 6473925
ISRAEL
EXAMINER
LAM, DUNG LE
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
02/11/2021 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):
OREN@I-P.CO.IL
eofficeaction@appcoll.com
patents@geraghtyipservices.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OTMAR RENGERT
Appeal 2019-006309
Application 13/985,292
Technology Center 2600
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP A. BENNETT, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–25, which are all claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as DSP Group Ltd.
Appeal Br. 3.
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STATEMENT OF THE CASE2
The claims relate to “operation of a base station of [a] cordless
telephone.” See Spec. ¶ 1. Specifically, the embodiments of the invention
relate to a method for “reducing power consumption in a base station of a
cordless handset supporting a subset of a plurality of carrier frequencies
supported by the base station, the method comprising disconnecting power
to a receiver of the base station for carrier frequencies that are not supported
by the cordless handset, thereby reducing power consumption by the base
station.” Spec. p. 3, ll. 3–8.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
Appeal:
1. A method for reducing power consumption in a base
station, the method comprising:
periodically selecting a next carrier frequency out of a
plurality of carrier frequencies that are supported by a receiver
of the base station; wherein the plurality of carrier frequencies
comprises one or more carrier frequencies that are supported by
a cordless handset and one or more carrier frequencies that are
not supported by the cordless handset;
supplying power to the receiver of the base station when
the next carrier frequency is supported by the cordless handset;
and

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
May 10, 2018); Appellant’s Reply Brief (“Reply Br.,” filed Aug. 6, 2019);
Examiner’s Answer (“Ans.,” mailed Aug. 29, 2018); Final Office Action
(“Final Act.,” mailed Nov. 17, 2017); and the original Specification
(“Spec.,” filed Aug. 14, 2013).
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not supplying power to the receiver of the base station
when the next carrier frequency is not supported by the cordless
handset.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Miller, II et al. (“Miller”) US 5,574,775 Nov. 12, 1996
Zicker US 5,774,805 June 30, 1998
Nagashima US 6,463,050 B1 Oct. 8, 2002
Monte et al. (“Monte”) US 2007/0281611 A1 Dec. 6, 2007
Karls et al. (“Karls”) US 2009/0104913 A1 Apr. 23, 2009
Rofougaran US 2010/0159864 Al June 24, 2010
REJECTIONS
R1. Claims 1–11, 13–17, 20, and 21 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over the combination of Zicker, Nagashima, and
Miller. Final Act. 2.
R2. Claims 12 and 22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Zicker, Nagashima, Miller, and Monte.
Final Act. 8.
R3. Claims 18 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Zicker, Nagashima, Miller, and Karls.
Final Act. 10.
R4. Claims 23–25 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Zicker, Nagashima, Miller, and
Rofougaran. Final Act. 10.
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CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 10–17) and our
discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of
obviousness Rejection R1 of claims 1, 5–11, 13, 15–17, 20, and 21 on the
basis of representative claim 1; we decide the appeal of obviousness
Rejection R1 of dependent claims 2, 3, and 14 on the basis of claim 2; we
decide the appeal of obviousness Rejection R1 of dependent claims 4, 10,
and 17 on the basis of claim 4; and we decide the appeal of obviousness
Rejection R2 of dependent claims 12 and 22 on the basis of claim 12.
Remaining claims 18, 19, and 23–25 in Rejections R3 and R4, not
substantively or separately argued, stand or fall with the respective
independent claim from which they depend.3
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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We disagree with Appellant’s arguments with respect to claims 1, 2,
4, and 12 and, unless otherwise noted, we incorporate by reference herein
and adopt as our own: (1) the findings and reasons set forth by the Examiner
in the action from which this appeal is taken, and (2) the reasons and
rebuttals set forth in the Examiner’s Answer in response to Appellant’s
arguments. We highlight and address specific findings and arguments
regarding claim 1, 2, 4, and 12 for emphasis as follows.
1. § 103 Rejection R1 of Claims 1, 5–11, 13, 15–17, 20, and 21
Issue 1
Appellant argues (Appeal Br. 10–14; Reply Br. 2–5) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103 as being obvious over the
combination of Zicker, Nagashima, and Miller is in error. These contentions
present us with the following issues:
(a) Did the Examiner err in combining Zicker, Nagashima, and Miller
because Miller allegedly teaches away from the claimed invention?
(b) Did the Examiner err in finding the cited prior art combination
teaches or suggests “[a] method for reducing power consumption in a base
station” that includes, inter alia, the limitations of:
periodically selecting a next carrier frequency out of a
plurality of carrier frequencies that are supported by a receiver of
the base station; wherein the plurality of carrier frequencies
comprises one or more carrier frequencies that are supported by
a cordless handset and one or more carrier frequencies that are
not supported by the cordless handset;
supplying power to the receiver of the base station when
the next carrier frequency is supported by the cordless handset;
and
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not supplying power to the receiver of the base station
when the next carrier frequency is not supported by the cordless
handset,
as recited in claim 1?
(c) Did the Examiner err in combining Zicker, Nagashima, and
Miller because Nagashima allegedly teaches away from the claimed
invention?
Principles of Law
During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using “the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant’s specification.” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The 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 those references would have
suggested to those of ordinary skill in the art.” Id. at 425.
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In KSR, the Court stated “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
Analysis
(a) Miller does not Teach Away from the Claimed Invention
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” Ricoh Co., Ltd. v. Quanta
Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations omitted). A
reference does not teach away if it merely expresses a general preference for
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an alternative invention from amongst options available to the ordinarily
skilled artisan, and the reference does not discredit or discourage
investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004).
In alleging that Miller teaches away from the claimed invention,
Appellant argues Miller’s surveying all available channels “requires
powering the receiver during the reception of all channels available — and
thus Miller teaches away from not supplying power to the receiver of the
base station when the next carrier frequency is not supported by the cordless
handset.” Appeal Br. 11 (emphasis omitted). Appellant further argues “the
office can not just cite certain parts of Miller that may (according to the
office) support the 35 USC 103 rejection — and ignore other parts of Miller
(as cited above) that do not support the 35 USC 103 rejection.” Id.
In response, the Examiner finds:
Miller is only used to show that the carrier frequencies could be
from those not supported by the handset when the claim is
directed to the base station. Miller does not explicitly
discourage supplying power to the receiver and in fact is
discussing switching between different receivers.
Ans. 2.
We agree with the Examiner’s findings and legal conclusions of
obviousness because we find a person of ordinary skill in the art, upon
reading Miller, would not have been discouraged from selecting a carrier
frequency from those frequencies supported by a receiver of the base station.
We note claim 1 recites the term “selecting” which does not preclude
surveying frequencies that are not supported by the cordless handset, prior to
selecting a carrier frequency.
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(b) Disputed Limitations are Taught or Suggested by Zicker and Nagashima
The Examiner relies upon the combination of Zicker, Nagashima, and
Miller as teaching or suggesting the contested limitations. Final Act. 2–5
(citations omitted). The Examiner specifically finds Zicker’s Figure 8
teaches or at least suggests “periodically selecting a next carrier frequency
out of a plurality of carrier frequencies that are supported by a receiver of
the base station,” “supplying power to the receiver of the base station when
the next carrier frequency is supported by the cordless handset,” and “not
suppling power to the receiver of the base station when the next carrier
frequency is not supported by the cordless handset.” Final Act. 2–3.
Appellant argues “[t]he selection of Zicker does not include selecting
frequencies that are not supported by the cordless handset.” Appeal Br. 12.
Appellant specifically argues “Zicker does not discuss power saving and
does not teach or suggest supplying power to the receiver of the base station
when the next carrier frequency is supported by the cordless handset; and
not supplying power to the receiver of the base station when the next carrier
frequency is not supported by the cordless handset.” Id. Although
Appellant concedes “tuning to a carrier will require supplying power to the
receiver,” Appellant argues “Zicker does not teach or suggest that not tuning
to a selected unsupported carrier would result in not supplying power.”
Appeal Br. 13.
We are not persuaded by Appellant’s argument because we find
Zicker’s depiction in Figure 8 of selecting a channel from “Available
Channel List 62,” and not selecting a channel from “Dormant Channel list
70” teaches or at least suggests the claim 1 disputed limitation “not
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supplying power to the receiver of the base station when the next carrier
frequency is not supported by the cordless handset.” See Zicker, Fig. 8.
We are also not persuaded by Appellant’s argument because
Appellant is arguing the references separately. Although the Examiner cites
Zicker for the disputed limitation, the Examiner specifically cites
Nagashima, for the teaching of not supplying power to the receiver of the
base station. See Final Act. 3, citing Nagashima.
Appellant also argues Nagashima does not teach or suggest the same
disputed limitations:
Periodically selecting a next carrier frequency out of a plurality
of carrier frequencies that are supported by a receiver of the
base station; wherein the plurality of carrier frequencies
comprises one or more carrier frequencies that are supported by
a cordless handset and one or more carrier frequencies that are
not supported by the cordless handset; supplying power to the
receiver of the base station when the next carrier frequency is
supported by the cordless handset; and not supplying power to
the receiver of the base station when the next carrier frequency
is not supported by the cordless handset.
Appeal Br. 13.
Appellant argues this is because Nagashima’s receivers and
transmitters use the same frequencies (in a TDMA scheme), and so “most of
the time each receiver of the radio system is closed even [if] a carrier
frequency is supported by the transmitter associated to the receiver.” Id.
Notwithstanding Nagashima’s use of TDMA, we are not persuaded by
Appellant’s argument because we find Nagashima’s description of the
receiver of radio system 101 switching on and off in certain time slots in
order to save power teaches or at least suggests the disputed claim 1
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limitation of “not supplying power to the receiver of the base station.” See
Nagashima Fig. 2, col. 2, ll. 48–50. Nagashima’s power is supplied to the
receiver when the output of the logic circuit 108 changes to a logical high
resulting in reduced power consumption of the base station. Id. at col. 4,
ll. 53–59.
Therefore, on this record, we are not convinced the Examiner erred
because we find both Zicker and Nagashima at least suggest not supplying
power to the receiver of the base station when the next carrier frequency is
not supported by the cordless handset. We do not conclude the Examiner’s
claim interpretation is overly broad or unreasonable, because Appellant does
not point to any limiting definition, in the claim, or in the Specification, that
would preclude the Examiner’s broad but reasonable construction of the
disputed limitations.
(c) Nagashima does not Teach Away from the Claimed Invention
In alleging that Nagashima teaches away from the claimed invention,
Appellant argues Nagashima teaches away from using multiple frequencies
and thus teaches away from the subject matter of claim 1. Appeal Br. 13.
We are not persuaded by Appellant’s arguments because while
Nagashima describes a TDMA scheme and its advantages under certain
conditions, it does not discredit or discourage the solution claimed by
Appellant. See Fulton, 391 F.3d at 1201. Accordingly, we are not
persuaded that Nagashima “teaches away.”
We agree with the Examiner’s underlying factual findings and legal
conclusions of obviousness because we find a person of ordinary skill in the
art, upon reading Miller, would not have been discouraged from selecting a
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carrier frequency from those frequencies supported by a receiver of the base
station. We note claim 1 recites the term “selecting” which does not
preclude first surveying frequencies that are not supported by the cordless
handset.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 1, and grouped claims 5–11, 13, 15–17, 20, and 21, which
fall therewith. See Claim Grouping, supra.
2. § 103 Rejection R1 of Dependent Claims 2, 3, and 14
Dependent claim 2 recites:
2. The method according to claim 1, wherein the
periodically selecting comprises repeating the selecting of the
next carrier frequency after a predefined time.
The Examiner finds Zicker’s cycle of going between steps 116 and
118 occurring after a predefined time teaches or at least suggests the
disputed limitation “repeating the selecting of the next carrier frequency
after a predefined time.” Final Act. 5, citing Zicker, Fig. 8.
Appellant argues “Zicker fails to teach or suggest repeating the
selecting of the next carrier frequency after a predefined time - and the
argument of the office is not supported by Zicker and is a forbidden
hindsight.” Appeal Br. 15.
We are not persuaded by Appellant’s arguments that the Examiner
erred. We agree with the Examiner’s finding, because we find Zicker’s
description of program looping between tasks 116 and 118, until an unused
channel is found, at least suggests “repeating the selecting of the next carrier
frequency after a predefined time.” See Zicker, Fig. 8, col. 13, ll. 13–24.
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We note Appellant has not cited to a definition of “predefined time” in the
Specification that would preclude the Examiner’s broader reading.4
Accordingly, we sustain the Examiner’s obviousness rejection of
dependent claim 2, and grouped claims 3 and 14 which fall therewith. See
Claim Grouping, supra.
3. § 103 Rejection R1 of Dependent Claims 4, 10, and 17
Dependent claim 4 recites:
4. The method according to claim 1 comprising informing
the cordless handset that the base station uses carrier
frequencies supported by the cordless handset in addition to
carrier frequencies that are not supported by the cordless
handset.
The Examiner finds Zicker’s single active channel list 62 serves the
cordless handsets. Final Act. 5–6. However, the Examiner points out this
single active channel list is a result of merging multiple dormant channel
lists 70 obtained from multiple handsets 18. Id.
Appellant argues:
All the channels of the pool are supplied by all handsets
— even the generation of a shared available list of channels for
multiple handsets includes only channels that are supported by
all handsets — as any available list is generated based on
dormant channel lists — which include supported by
(temporarily) unused channels.
The various channels lists exchanged between various
entities are all included in the pool of channels. Accordingly —

4 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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each list only includes only channels that may be supported by
each one of the handset 18, cellular land station 20, and
cordless base station 22 — and Zicker does not teach or suggest
informing the cordless handset that the base station uses carrier
frequencies supported by the cordless handset in addition to
carrier frequencies that are not supported by the cordless
handset - as recited in claim 4.
Appeal Br. 16.
We are not persuaded by Appellant’s arguments that the Examiner
erred. We agree with the Examiner’s finding, because we find Zicker’s
description of merging dormant channel lists teaches, or at least suggests, the
disputed limitation of: “in addition to carrier frequencies that are not
supported by the cordless handset.” See Zicker, Fig. 8, col. 8, ll. 64 – col. 9,
ll. 18. We note Appellant has not cited to an explicit definition of the
disputed terms found in the Specification that would preclude the
Examiner’s broader reading.
Accordingly, we sustain the Examiner’s obviousness rejection of
dependent claim 4, and grouped claims 10 and 17 which fall therewith. See
Claim Grouping, supra.
4. § 103 Rejections R2 of Claims 12 and 22
Dependent claim 12 recites:
12. The base station according to claim 6 wherein the
controller is configured to apply a random algorithm when
periodically selecting the next carrier frequency.
Claim 22 similarly recites “applying a random algorithm.”
The Examiner cites to Monte for teaching or suggesting the concept of
applying a random algorithm when a selecting a frequency. Final Act. 9.
The Examiner also finds Monte to be analogous art. Id.
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Appellant argues Monte “teaches away” because “the satellite receiver
is powered when traffic is transmitted in F1 — which teaches away from not
supplying power to the receiver of the base station when the next carrier
frequency is not supported by the cordless handset.” Appeal Br. 17–18
(emphasis omitted).
We are not persuaded by Appellant’s argument because the Examiner
cites to Monte merely for teaching applying a random algorithm. Final
Act. 9. We agree with the Examiner’s finding because we find Monte’s
description of a method of allocation, including random assignments or
using an algorithm for selecting frequencies sequentially based on a
determination of which ones have least interference, teaches, or at least
suggests, the disputed limitations of claims 12 and 22. See Monte ¶ 49.
In construing the scope of analogous art our reviewing court guides:
“The Supreme Court's decision in KSR . . . directs us to construe the scope of
analogous art broadly.” Wyers v. Master Lock Co., 616 F.3d 1231, 1238
(Fed. Cir. 2010). “The field of endeavor of a patent is not limited to the
specific point of novelty, the narrowest possible conception of the field, or
the particular focus within a given field.” Unwired Planet, LLC v. Google
Inc., 841 F.3d 995, 1001 (Fed. Cir. 2016).
Here, we agree with the Examiner that Monte is analogous art because
we find Monte also is in the field of base stations and telephones (Monte ¶¶
2, 3, 35) and, furthermore, an object of the Monte disclosure is to provide a
system that minimizes interferences by reusing or sharing frequency
spectrum of a system. Monte ¶¶ 20–28. Thus, in construing the scope of
analogous art broadly, we agree with the Examiner’s finding that Monte is
analogous art particularly because we find Monte is reasonably pertinent to
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the problem of minimizing-interferences, a problem with which the inventor
is involved. We are not persuaded by Appellant’s “teaching away” argument
because we find Monte does not discredit or discourage the solution claimed
by Appellant. Accordingly, we are not persuaded that Monte “teaches
away.” See Fulton, 391 F.3d at 1201.
Accordingly, we sustain the Examiner’s obviousness rejection of
dependent claims 12 and 22.
5. § 103 Rejections R3 and R4 of Dependent Claims 18, 19, and 23–25
In view of the lack of any arguments directed to obviousness
Rejections R3 and R4 of claims 18, 19, and 23–25 under § 103, we sustain
the Examiner’s rejection of these claims. Arguments not made are forfeited.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–5) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
CONCLUSION
The Examiner did not err with respect to obviousness Rejections R1
through R4 of claims 1–25 under 35 U.S.C. § 103 over the cited prior art
combinations of record, and we sustain the rejections.

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DECISION SUMMARY
Claims
Rejected
35
U.S.C.
§
Basis /
References Affirmed Reversed
1–11, 13–17,
20, 21 103
Obviousness
Zicker, Nagashima,
Miller
1–11, 13–17,
20, 21
12, 22 103
Obviousness
Zicker, Nagashima,
Miller, Monte
12, 22
18, 19 103
Obviousness
Zicker, Nagashima,
Miller, Karls
18, 19
23–25 103
Obviousness
Zicker, Nagashima,
Miller, Rofougaran
23–25
Overall
Outcome 1–25
FINALITY AND 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).
AFFIRMED