Ex Parte Everson et al

Patent Trial and Appeal Board

Oct 26, 2016

13609547 (P.T.A.B. Oct. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/609,547 09/11/2012
28004 7590 10/28/2016
SPRINT
6391 SPRINT PARKWAY
KSOPHT0101-Z2100
OVERLAND PARK, KS 66251-2100
FIRST NAMED INVENTOR
John Michael Everson
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.
6992a 5306
EXAMINER
SALTARELLI, DOMINIC D
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
10/28/2016 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):
6450patdocs@sprint.com
steven.j.funk@sprint.com
sprint@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN MICHAEL EVERSON, JARROD A. NICHOLS,
JASON R. DELKER, and BRADLEY ALLEN KROPF 1
Appeal2015-005168
Application 13/609,547
Technology Center 2400
Before MICHAEL J. STRAUSS, JOHN R. KENNY, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection rejecting claims 1-20. We have jurisdiction over this appeal
under 35 U.S.C. § 6(b ).
We AFFIRM.2
1 According to Appellants, the real party in interest is Sprint
Communications Company L.P. See Appeal Br. 2.
2 Throughout this Opinion, we refer to: (1) Appellants' Specification filed
Sept. 11, 2012 ("Spec."); (2) the Final Office Action ("Final Act.") mailed
Apr. 7, 2014; (3) the Appeal Brief ("Appeal Br.") filed Nov. 26, 2014;
(4) the Examiner's Answer ("Ans.") mailed Feb. 12, 2015; and (5) the Reply
Brief ("Reply Br.") filed Apr. 9, 2015.
Appeal2015-005168
Application 13/609,547
BACKGROUND
Appellants' application relates to a wireless video device that operates
in a video uplink system having a plurality of wireless access systems.
Spec. 2. Claims 1 and 11 are independent claims.
Claim 1 is representative and is reproduced below with disputed
limitations emphasized:
1. A method of operating a wireless video device in a
video uplink system having a plurality of wireless access
systems, the method comprising:
in the wireless video device, displaying a geographic map
and receiving user inputs indicating a geographic location and a
time period;
in the wireless video device, transferring a video uplink
request that indicates a wireless video device identifier, the
geographic location, and the time period;
in the wireless video device, optically receiving video and
generating corresponding video data; and
in the wireless video device, wirelessly transferring the
video data to one of the wireless access systems serving the
geographic location during the time period.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Ikeda et al. ("Ikeda")
Glaser et al. ("Glaser")
Y oshimine et al.
("Y oshimine")
US 2002/0166128 Al
US 6,985,932 B 1
US 7 ,856,468 B2
2
Nov. 7, 2002
Jan. 10,2006
Dec. 21, 2010
Appeal2015-005168
Application 13/609,547
REJECTION
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Y oshimine, Glaser, and Ikeda. Final
Act. 3-6.
Our review in this appeal is limited to the above rejection and issues
raised by Appellants. We have not considered other possible issues that
have not been raised by Appellants and which are, therefore, not before us.
See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
1. Did the Examiner err in finding that the combination of
Y oshimine, Glaser, and Ikeda teaches or suggests "in the wireless video
device, wirelessly transferring the video data to one of the wireless access
systems serving the geographic location during the time period," as recited
in claim 1?
2. Was the Examiner's rationale for modifying Yoshimine based
on Glaser and Ikeda erroneous?
DISCUSSION
After review of Appellants' arguments and the Examiner's findings
and reasoning, Appellants have not persuaded us of error in the Examiner's
rejection of claims 1-20. Accordingly, we sustain the rejection for reasons
set forth by the Examiner in the Final Office Action and the Answer. See
Final Act. 3---6; Ans. 2-3. We add the following for emphasis and
completeness.
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Appeal2015-005168
Application 13/609,547
Issue 1
The Examiner relies on Yoshimine, Glaser, and Ikeda to teach or
suggest "in the wireless video device, wirelessly transferring the video data
to one of the wireless access systems serving the geographic location during
the time period," as recited in claim 1. Final Act. 5. Specifically, the
Examiner primarily relies on Ikeda' s discussion of a broadcaster operating
broadcasting stations and selecting in advance whether to broadcast
programs in one or more adjacent service areas and at what times. Final
Act. 5; Ans. 2 (citing Ikeda i138).
In response, Appellants argue "although the broadcasting station may
identify a location and time for broadcasting, a user of a wireless video
device does not define this location and time." Appeal Br. 6. Appellants,
thus, concede that Ikeda's broadcasting station wirelessly transfers data
according to a selected location and time but contend that Ikeda fails to
suggest the broadcaster is a user of a wireless video device. Appeal Br. 6.
Appellants' contention is unpersuasive because the Examiner finds
Y oshimine rather than Ikeda suggests that the broadcaster is a user of a
wireless device. Ans. 2 (citing Yoshimine col. 43, 11. 40-60). Appellants
fail to respond to the Examiner's express finding and thus Appellants'
arguments are not responsive to the rejection before us.
Moreover, we note in passing and without reliance in sustaining the
rejection, Ikeda's broadcasting station 10 includes a transmitter 50 having a
video encoder 52 and transmission antenna 60 for wirelessly transferring
video data. See, e.g., Ikeda Figs. 1 and 2. Ikeda's broadcasting station 10,
consequently, also teaches or suggests a "wireless video device," as claimed.
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Appeal2015-005168
Application 13/609,547
Accordingly, we agree with the Examiner's finding that the
combination of Y oshimine, Glaser, and Ikeda teaches or suggests "in the
wireless video device, wirelessly transferring the video data to one of the
wireless access systems serving the geographic location during the time
period," as recited in claim 1. Final Act. 5.
Issue 2
The Examiner relies on the combination of Y oshimine, Glaser, and
Ikeda to teach or suggest all of the limitations of claim 1. Final Act. 4. The
Examiner finds it would have been obvious to modify the method of
Yoshimine and Glaser according to Ikeda so as provide the benefit of
manually specifying the geographic locations from which content is
provided. Final Act. 5 (citing Ikeda i-f 3 8). Appellants contend that "[ n] o
suggestion or motivation exists to compare a broadcaster that can broadcast
from multiple broadcasting stations, as described in Ikeda, to a wireless
video device that wirelessly uploads video data as described in Y oshimine."
Appeal Br. 7. Appellants contend "it would not make sense to combine
Yoshimine with Ikeda" because Yoshimine is concerned with wirelessly
uploading video data from a wireless device to a server system, whereas
Ikeda is concerned with the delivery process from a broadcaster to broadcast
stations prior to a wireless transmission. Appeal Br. 6-7.
We are unpersuaded by the argument because we agree with the
Examiner's finding that "Yoshimine is not limited to disclosing video
uploads to a server, but further covers the steps necessary to broadcast video
content once it has been uploaded." Ans. 3 (citing Y oshimine, col. 16 11. 3 8-
67). Moreover, Appellants' argument improperly focuses on whether
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Appeal2015-005168
Application 13/609,547
Ikeda' s broadcast station can be bodily incorporated into Y oshimine' s
wireless device. See In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983)
("[I]t is not necessary that the inventions of the references be physically
combinable to render obvious the invention under review."). The relevant
inquiry is whether the claimed subject matter would have been obvious to
those of ordinary skill in the art in light of the combined teachings of those
references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). "Combining
the teachings of references does not involve an ability to combine their
specific structures." In re Nievelt, 482 F.2d 965, 968 (CCPA 1973). Rather
than express obviousness as the physical incorporation of a structure from
one reference into the structure of another reference, the prior art should be
viewed as a combination of teachings from different sources, and the use of
those teachings by one of ordinary skill in the art. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417--418 (2007) ("ifa 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.")
In the rejection rationale, the Examiner indicates that Yoshimine,
Glaser, and Ikeda are analogous art and proposes "modify[ing] the method
of Y oshimine and Glaser to include transferring the data to one of the
wireless access systems serving the geographic location during the time
period, as taught by Ikeda." Final Act. 5---6; Ans. 2-3. Thus, the Examiner
proposes improving similar devices in the same way by improving
Y oshimine and Glaser with the data transferring technique of Ikeda. KSR at
417. Appellants' arguments do not specifically address the Examiner's
stated rationale and thus fail to persuade us the Examiner's articulated
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reasoning lacks some rational underpinning. KSR at 418 citing In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness").
Appellants further argue the combination of Y oshimine and Glaser is
improper because the geographic locations in Glaser are used to select
servers for downloading audio content rather than for uploading video
content as described in Y oshimine and because "servers are not equivalent
or related to wireless access systems." Appeal Br. 7; Reply Br. 2.
Appellants' argument is unpersuasive because it is again based on
bodily incorporation of Glaser's servers into Y oshimine' s wireless device.
See In re Sneed, 710 F .2d at 1550. Instead, we are mindful the skilled
artisan would "be able to fit the teachings of multiple patents together like
pieces of a puzzle'; because the skilled artisan is "a person of ordinary
creativity, not an automaton." KSR, 550 U.S. at 421. Thus, Appellants fail
to persuasively rebut the Examiner's finding that a person of ordinary skill
would have had a reason to "modify the method of Y oshimine to include
displaying a geographic map and receiving user inputs indicating a
geographic location, as taught by Glaser." See Final Act. 5.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a)
rejection of claim 1. Claim 11, which Appellants do not argue separately,
recites a device with requirements analogous to those of claim 1 and stands
rejected on the same basis. Thus, for the reasons discussed above in
connection with claim 1, we also sustain the rejection of claim 11.
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Application 13/609,547
Appellants do not make any other substantive argument regarding the
rejection of dependent claims 2-10 and 12-20 and, accordingly, we further
sustain the rejection of these claims. See App. Br. 7-8.
DECISION
We affirm the Examiner's decision rejecting claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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