Ex Parte Flynn et alDownload PDFPatent Trial and Appeal BoardMay 26, 201714084505 (P.T.A.B. May. 26, 2017) Copy Citation 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. 2 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 3 Appeal 2017-002348 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. 4 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 5 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 6 Copy with citationCopy as parenthetical citation