Ex Parte Hartman et al

Patent Trial and Appeal Board

Nov 6, 2013

11166540 (P.T.A.B. Nov. 6, 2013)

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.
11/166,540 06/23/2005 David Hartman 2875.0050002 7905
26111 7590 11/06/2013
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
TRAN, KHANH C
ART UNIT PAPER NUMBER
2631
MAIL DATE DELIVERY MODE
11/06/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte DAVID HARTMAN and MARK DALE
_____________

Appeal 2011-007978
Application 11/166,540
Technology Center 2600
______________

Before ERIC S. FRAHM, JOHNNY A. KUMAR, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Introduction
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1, 2, 4, 7-12, 14, and 20-32, which are all of the claims
remaining for appeal. Claims 6 and 15-19 are canceled (Final Rej. 2), and
claims 3, 5, and 13 are objected to as being dependent upon a rejected base
claim, but would be allowable if rewritten in independent form to include all
of the limitations of the base claim(2) and any intervening claim(2) (Final
Rej. 6).
Claims 1, 2, 4, 7-12, 14, and 20-32 have been finally rejected (see
Final Rej. 2-5; Ans. 2-8). The Notice of Appeal is silent regarding which
claims are appealed (see Notice of Appeal of September 20, 2010, appealing
from the “last decision of the Examiner”), and the Appeal Brief states that
appeal is made from the “final rejection of claims 1 and 3-35” (Br. 1). 1
However, the Appeal Brief filed October 21, 2010 also states that only the
rejection of claims 1, 2, 7-9, 11, 12, and 15-18 is appealed (Br. 10, “Grounds
of Rejection to be Reviewed on Appeal”).2 Appellants (i) present arguments
as to claims 1, 2, 7-9, 11, 12, and 20-32 in the Appeal Brief (see Br. 10-14),

1 Because only claims 1, 2, 4, 7-12, 14, and 20-32 stand rejected (claims 3,
5, and 13 are objected to and claims 6 and 15-19 are canceled, as stated
supra), and no more than 32 claims have been presented during the entire
prosecution history (see e.g., Appellants’ Reply to Office Action of
November 23, 2009, mailed February 16, 2010 at 2-10, presenting the most
recent amendment to the claims), we consider Appellants are only appealing
claims 1, 2, 4, 7-12, 14, and 20-32, and not claims 3, 5, 6, 13, 15-19, and
non-existent claims 33-35.
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principally discussing the merits of independent claims 1, 11, and 28 (see Br.
10-13). Appellants do not present separate arguments on the merits (see
generally Br. 10-14) as to the rejection of dependent claims 4, 10, and 14
which are rejected under different grounds than claims 1, 2, 7-9, 11, 12, and
20-32 (rejected over AAPA alone),3 other than the assertion in the
conclusion section of the Appeal Brief that “[t]he subject matter of claims 1-
5, 7-14, and 20-32 is patentable over the cited art because the Examiner has
failed to show that the AAPA teaches or suggests each and every feature of
independent claims 1, 11, and 28” (Br. 14).
Appellants argue claims 4, 10, and 14 in the conclusion of the Appeal
Brief (Br. 14); and Appellants have not clearly stated in the Appeal Brief
that some of the finally rejected claims (e.g., claims 4, 10, and 14) are not
being pursued in the appeal. See Ex parte Ghuman, 88 USPQ2d 1478
(BPAI 2008) (precedential) (holding that when appellants are silent in the
notice of appeal as to the specific claims being appealed, and then clearly
state in the appeal brief that some of the finally rejected claims are not being
pursued in the appeal, appellants should cancel those claims not pursued).
As such, the facts of the instant case are not congruent with the facts of Ex
parte Ghuman, and we consider Appellants to appeal under 35 U.S.C.
§ 134(a) from the Examiner’s rejection of claims 1, 2, 4, 7-12, 14, and 20-
32. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was
conducted on October 22, 2013.

2 Because claims 15-18 have been canceled, Appellants’ statement that these
claims are appealed (Br. 10) is in error.
3 Claims 4, 10, and 14 stand rejected under 35 U.S.C. § 103(a) over AAPA
and Osaki (US 6,147,694) (Ans. 7-8; Final Rej. 5).
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We reverse.
Invention
Claims 1, 11, and 28 are independent. Independent claim 1 and
remaining independent claims 11 and 28 contain similarly recited features,
namely adjusting the duration of a data frame, as set forth in claim 1 (step
(e), the “adjusting” step, which is at issue in claim 1).
The invention is directed to a method and system for transmitting
voice data over a wireless network by generating frames for packet voice
transmission over a wireless network on average every 10ms (Spec. 3:28-31;
Abs.). The method and system achieve this transmission of voice data by
controlling and adjusting a data frame duration of a plurality of transmission
data frames that have been scheduled with a predetermined average data
frame duration (Spec. 3:28 to 5:12; Abs.; claim 1). By adjusting the data
frame duration of each transmission data frame, the predetermined average
data frame duration can be maintained even when an integer number of the
voice data does not fit within the predetermined average data frame duration,
such as in the instance of isochronous voice data (Spec. 3:11-25; claim 1).
Claim 1 is representative of the invention and is reproduced below with
emphasis added:
1. A method for transmitting voice data over a wireless network,
comprising:
(a) scheduling a number of transmission data frames with a
predetermined average data frame duration;
(b) receiving a time stamp signal, the time stamp signal indicating a
fixed frequency of a global reference clock;
(c) locking a first clock to the time stamp signal;
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(d) sampling the voice data at a frequency of the first clock;
(e) adjusting the data frame duration of each transmission data frame
to maintain the predetermined average frame duration to accommodate
voice data samples, wherein an integer number of the voice samples does
not fit within the predetermined average frame duration; and
(f) placing the voice data samples into the transmission data frames
for transmission over the wireless network.

Examiner’s Rejections
(1) The Examiner has rejected claims 1, 2, 7-9, 11, 12, and 20-32
under 35 U.S.C. § 103(a) as being unpatentable over Appellants’ Admitted
Prior Art found at page 1, line 19 through page 3, line 21 of the Specification
(hereinafter, “AAPA”). Ans. 4-7.
(2) The Examiner has also rejected dependent claims 4, 10, and 14
under 35 U.S.C. § 103(a) as being unpatentable over AAPA and Osaki (US
6,147,694). Ans. 7-8.
Appellants’ Contentions
(1) With regard to claims 1, 2, 7-9, 11, 12, and 20-32, Appellants
contend that the Examiner erred because AAPA fails to teach or suggest step
(e) as recited in independent claim 1,4 and as similarly recited in remaining
independent claims 11 and 28 (see Br. 10-14).
(2) With regard to claims 4, 10, and 14, Appellants contend that the
subject matter of these claims “is patentable over the cited art because the

4 Step (e) of claim 1 recites, “adjusting the data frame duration of each
transmission data frame to maintain the predetermined average frame
duration to accommodate voice data samples, wherein an integer number of
Footnote continued on next page.
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Examiner has failed to show that the AAPA teaches or suggests each and
every feature of independent claims 1, 11, and 28” (App. Br. 14).

ISSUES
Based on Appellants’ arguments in the Appeal Brief and at Oral
Hearing, the following issues are presented on appeal:
(1) Did the Examiner err in rejecting claims 1, 2, 7-9, 11, 12, and 20-
32 under 35 U.S.C. § 103(a) as being unpatentable over AAPA because
AAPA fails to teach or suggest step (e), as set forth in claim 1, and as
similarly recited in claims 11 and 28?
(2) Did the Examiner err in rejecting claims 4, 10, and 14 under
35 U.S.C. § 103(a) as being unpatentable over AAPA and Osaki because
AAPA fails to teach or suggest step (e) as set forth in claim 1, and similarly
recited in claim 11?

ANALYSIS
We have reviewed Appellants’ arguments in the Appeal Brief and we
concur with Appellants’ conclusion that the Examiner erred in finding that
AAPA teaches or suggests step (e) as recited in claims 1, 11, and 28. We
also concur with Appellants’ conclusion that the Examiner erred in finding
that the combination of references teaches or suggests recorded metadata, as
recited in claims 4, 10, and 14 which depend from respective ones of claims
1 and 11.

the voice samples does not fit within the predetermined average frame
duration.”
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The Examiner’s rejection is based on AAPA disclosing that all of the
frames are slightly longer than 10ms or slightly less than 10ms, while claims
1, 11, and 28 on appeal recite adjusting each data frame of a number of
transmission data frames using a predetermined average data frame
duration. We agree with Appellants (Br. 12) that the passage at page 3, lines
17-19 of the Specification (“[t]he frame size ends up being slightly shorter
or slightly longer than 10 ms”), when taken in context of the Specification as
a whole, refers to the frame size of all of the frames and not to some of the
frames as proffered by the Examiner (see Ans. 5 and 9-10). We also agree
with Appellants that the passage referred to above describes the frame size
of all of the frames as being slightly shorter than 10 ms, or the frame size of
all of the frames as being slightly longer than 10 ms.
Because AAPA discloses all of the frames being either slightly longer
or shorter than 10 ms, we agree with Appellants (see Br. 12-13) that AAPA
therefore describes (i) the average frame duration for all of these frames is
equal to the duration of these frames, (ii) an integer number of samples fit
within the duration of each of these frames, and (iii) an integer number of
voice samples fits within the average frame duration. Thus, AAPA fails to
meet the condition “wherein an integer number of the voice samples does
not fit within the predetermined average frame duration” as set forth in claim
1, as similarly recited in claims 11 and 28.
As a result, (i) the Examiner’s positions in the Answer (id.) are
flawed, and (ii) Appellants’ arguments in the Appeal Brief that step (e),
(“adjusting the data frame duration of each transmission data frame to
maintain the predetermined average frame duration to accommodate voice
data samples, wherein an integer number of the voice samples does not fit
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within the predetermined average frame duration”) is not met by AAPA (Br.
10-14), are persuasive.

CONCLUSIONS
Appellants have established that the Examiner erred in rejecting the
claims on appeal, because AAPA fails to teach or suggest step (e) as
required by claim 1, and as similarly recited in claims 11 and 28 on appeal.
Accordingly, we will not sustain the Examiner’s rejections of (i) claims 1, 2,
7-9, 11, 12, and 20-32 over AAPA, and (ii) claims 4, 10, and 14 over AAPA
and Osaki.

ORDER
The decision of the Examiner to reject claims 1, 2, 4, 7-12, 14, and
20-32 is reversed.

REVERSED

Vsh