Ex Parte Flynn et al

Patent Trial and Appeal Board

May 26, 2017

14084505 (P.T.A.B. May. 26, 2017)

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.
14/084,505 11/19/2013 David Flynn 31AE-190712 4848
69849 7590 05/31/2017
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
379 Lytton Avenue
Palo Alto, CA 94301
EXAMINER
COOK, BRIAN S
ART UNIT PAPER NUMBER
2123
NOTIFICATION DATE DELIVERY MODE
05/31/2017 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):
svpatents @ sheppardmullin.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte Aerohive Networks, Inc.
Appeal 2017-002348
Application 14/084,505
Technology Center 2100
Before CARL W. WHITEHEAD JR., KEVIN C. TROCK, and
AARON W. MOORE, Administrative Patent Judges.
MOORE, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-002348
Application 14/084,505
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—4, 6—15, and 17—22, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The application is directed to “systems and methods for generating a
radio frequency floor plan.” (Abstract.) Claim 1, reproduced below,
exemplifies the subject matter on appeal:
1. A method comprising:
receiving map data for a map image that is an aerial or satellite
view, the map data including a zoom level of the map image;
providing a user with functionalities for generating a trace
outline in the map image;
receiving a trace outline of a floor of a building in the map
image, the trace outline generated by the user;
determining floor dimensions of the floor of the building from
the trace outline of the floor of the building in the map image and
the zoom level of the map image;
generating a blank floor plan using the floor dimensions
generated based on the map image that is an aerial or satellite
view, the blank floor plan used in planning positioning of access
points in the building.
1 The named inventors are David Flynn and Chris Scheers.
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Appeal 2017-002348
Application 14/084,505
THE REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Michael Schmandt, CIS Commons: A Free eText about Geographic
Information Systems (June 12, 2012), printed from
on June 22, 2015 (“Schmandt”)
Paul Levasseur, Aerohive Free Wi-Fi Planning Tool Demo, YouTube
(uploaded on Oct. 4, 2011), presently available at
(“Levasseur”)
Alexis C. Madrigal, How Google Builds Its Maps—and What it
Means for the Future of Everything, The Atlantic (Sept. 6, 2012)
(“Madrigal”)
THE REJECTIONS
1. Claims 1—4 and 12—15 stand rejected under 35 U.S.C. § 103 as
unpatentable over Schmandt and Levassar. (See Final Act. 14—48.)
2. Claims 6—11 and 17—21 stand rejected under 35 U.S.C. § 103 as
unpatentable over Schmandt, Levassar, and Madrigal. (See Final Act. 48—
95.)
APPELLANT’S CONTENTIONS
Appellant argues the Examiner’s rejections are in error for the
following reasons:
1. Because “Schmandt discloses photogrammetric techniques, and
not zoom data, to identify information related to buildings of interest,” “the
Examiner has not shown . . . ‘determining floor dimensions of the floor of
the building from the trace outline of the floor of the building in the map
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Application 14/084,505
image and the zoom level of the map image map data,’ recited in claim 1 or
similar language recited in claims 9, 12, and 18.” (App. Br. 9.)
2. “The Examiner has merely restated the language of the claim,
and has not provided any specific guidance about the portion of Levassar (or
other reference) that allegedly teaches, ‘generating a RF floor plan based on
the floor plan, the access point position data and the access point type data.’”
(App. Br. 11.)
3. “[T]he Examiner has improperly taken official notice of the
zoom levels of the map image map data available in Schmandt.” (App. Br.
12.)
ANALYSIS
Schmandt teaches the use of aerial or satellite images with an
associated zoom level and Levasseur teaches a system for Wi-Fi planning in
which a user draws building walls on an image of a floorplan and then uses
the drawn walls to lay out a Wi—Fi network. Appellant’s independent claims
are directed to a system like Levasseur,2 except that the building walls are
traced by a user on an aerial or satellite image, like those of Schmandt,
instead of on an image of a traditional floorplan.
We agree with the Examiner that the subject matter of the independent
claims would have been obvious in light of Schmandt and Levasseur, as one
of skill in the art would have been motivated to substitute Schmandt’s
aerial/satellite images for the floorplan images of Aerohive.
2 Levasseur appears to describe an earlier version of the system described in
this application.
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Appeal 2017-002348
Application 14/084,505
Appellant’s first argument, that the Examiner has not shown
“determining floor dimensions of the floor of the building from the trace
outline of the floor of the building in the map image and the zoom level of
the map image map data” is unpersuasive. Levasseur describes determining
dimensions from a trace outline and the scale of an image (see, e.g.,
Levasseur at -5:15) and Schmandt teaches providing a satellite image with a
zoom level (see Schmandt at 15). Schmandt’s satellite images would have
provided an additional source of available images and one of skill in art
would have appreciated that satellite images, with their associated zoom
levels, could have been substituted for Levasseur’s background images, with
scales that are either known or determined from points. The scale/zoom of
the underlying image is needed because, as noted in Levasseur, “it
determines how many access points you need.” (Levasseur at -5:06.)
Appellant’s arguments (App. Br. 9) are insufficient to show error because, as
the Examiner observes (Ans. 6—9), they are directed at Schmandt alone,
instead of the combination, and the claims do not require that a zoom level
be “dynamically varied as a user zooms in on a map.”
We are also unpersuaded by Appellant’s second argument, that the
Examiner has not identified teachings corresponding to “generating a RE
floor plan based on the floor plan, the access point position data and the
access point type data.” The Examiner correctly observes that “the whole
purpose of Levassar is to demonstrate how to use [Aerohive’s] Wi-Fi
Planner Tool to ‘generat[e] a RF floor plan based on the floor plan, the
access point position data and the access point type data’” and “the online
video tutorial culminates in a finalized planning report that includes a
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Appeal 2017-002348
Application 14/084,505
generated RF floor plan based on the floor plan, the access point position
data and the access point type data (see 14:20).” (Ans. 12.)
Finally, we do not agree with Appellant that “the Examiner has
improperly taken official notice of the zoom levels of the map image map
data available in Schmandt.” (App. Br. 13.) The Examiner found zoom
levels taught or suggested in the reference, not by Official Notice. (See
Final Act. 15 (“The last paragraph on page 15 states that ‘GIS allows one to
zoom in at increasingly larger scale’”).)
In the reply brief, Appellant offers new contentions regarding claims
7 and 18. (See Reply Br. 5—9.) These arguments were waived by their
omission from the Appeal Brief and subsequent failure to show good cause
for their belated presentation. See Ex parte Borden, 93 USPQ2d 1473, 1474
(BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity to
make arguments that could have been made in the principal brief on appeal
to rebut the Examiner’s rejections, but were not.”); 37 C.F.R.
§§41.37(c)(l)(iv)& 41.41(b)(2).
DECISION
The rejections of claims 1—4, 6—15, 17—22 are affirmed.
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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