Ex Parte SchroderusDownload PDFPatent Trial and Appeal BoardJun 24, 201310160272 (P.T.A.B. Jun. 24, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte OSMO SCHRODERUS Appeal 2011-000,889 1 Application 10/160,272 Technology Center 2400 ____________________ Before JEAN R. HOMERE, MARC S. HOFF, and JUSTIN BUSCH, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is Nokia Corp. (App. Br. 1.) Appeal 2011-000889 Application 10/160,272 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3, 5-8, 11, 13-19, 21, 26, 28-31, 33, 34, 36-38, 40, 41, 45, and 47-56. Claims 2, 4, 12, 20, 22-25, 27, 32, 35, 39, 42, and 43 have been canceled. Claims 44 and 46 have been allowed. Claims 9 and10 have been indicated as being directed to allowable subject matter. (App. Br. 1-2.) We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellant’s Invention Appellant invented a method and system establishing real-time audio communication between private mobile radio (PMR) users, each PMR being equipped with a push-to-talk feature. (Spec. [0001], [0006].) In particular, upon receiving from a sender real-time audio data along with an acknowledgment report request, each receiving unit provides an individual acknowledgment report after having received the end of the real time audio packet. (Spec. [0010].) Illustrative Claim Independent claim 1 further illustrates the invention. It reads as follows: 1. A method comprising: sending, by utilizing internet protocol communication, a real-time audio data item from a terminal of a sending party to a terminal of at least one receiving party over a communication system, said real-time audio data item comprising a plurality of real-time audio data packets; Appeal 2011-000889 Application 10/160,272 3 sending, in association with the sending of the real-time audio data item, to the least one receiving party, a request to send an acknowledgment report; and sending, responsive to the request, by utilizing internet protocol communication, an item acknowledgement report from the terminal of each of the at least one receiving party after the end of the real-time audio data item. Prior Art Relied Upon Bushmitch US 6,275,471 B1 Aug. 14, 2001 Maurille US 6,484,196 B1 Nov. 19, 2002 Raphaeli US 2003/0103521 A1 Jun. 5, 2003 Rejections on Appeal The Examiner rejects the claims on appeal as follows: 1. Claims 1, 3, 5-8, 14, 15, 18, 19, 21, 26, 28-31, 33, 34, 36-38, 40, 41, 45-55 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Bushmitch and Raphaeli. 2. Claims 11, 13, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Bushmitch, Raphaeli, and Maurille. ANALYSIS We consider Appellant’s arguments seriatim as they are presented in the Appeal Brief, pages 11-16, and the Reply Brief, pages 2-5. Appeal 2011-000889 Application 10/160,272 4 Dispositive Issue: Under 35 U.S.C. § 103, did the Examiner err in finding that the combination of Bushmitch and Raphaeli teaches or suggests responsive to a request from a sending party, each receiving party sending an acknowledgment report after the end of the real time audio data item, as recited in claim 1? Appellant argues that the proffered combination does not teach or suggest the disputed limitations emphasized above. (App. Br. 12-16, Reply Br. 2-5.) In particular, Appellant argues that while Bushmitch discloses sending a NAK message for a missing packet after reception of the last packet, Bushmitch’s disclosure teaches away from the invention because the NAK message is responsive to a data packet not being successfully received as opposed to a report acknowledging receipt of an audio item. (Reply Br. 4-5.) Further, Appellant argues that Raphaeli does not cure the noted deficiencies of Bushmitch. (App. Br. 13-15.) In response, the Examiner finds that Bushmitch’s disclosure of a receiver sending a NAK message to a sender (after some time has elapsed) that only 499 out of 500 packets have been received teaches the disputed limitation. (Ans. 37-39.) Based upon our review of the record before us, we find no error with the Examiner’s conclusion of obviousness regarding claim 1. We note at the outset that albeit in the corpus of the final rejection, reproduced at page 6 of the Answer, the Examiner initially relied upon Raphaeli’s disclosure to teach the disputed claim limitations, in the response to arguments section of the Answer, the Examiner made a new finding that Bushmitch teaches the limitation in question. (Ans. 37-39.) We further note that Appellant has Appeal 2011-000889 Application 10/160,272 5 failed to seasonably object to this new finding, and has availed himself of the opportunity to fully address the Examiner’s new finding in the Reply Brief. (Reply Br. 4-5). Consequently, Appellant has waived the issue of whether the Examiner’s new finding constitutes a new ground of rejection. 2 Accordingly, the pivotal issue before us turns on whether the cited disclosure of Bushmitch teaches the disputed limitation. We answer this inquiry in the affirmative. We note that while Appellant’s Specification has not provided a definition for “item acknowledgment report,” the Specification nonetheless instructs that the report can serve to indicate both successful receipt and unsuccessful receipt of the audio item. ([0010], [0072].) Thus, upon giving “item acknowledgment report” its broadest reasonable interpretation consistent with Appellant’s Specification, we construe the cited expression as being a report that encompasses both successful and unsuccessful receipt of an audio item. Therefore, Appellant’s argument that “item 2 See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a ground of rejection to the Board, section 1.192(c)(7) [(now section 41.37(c)(1)(vii))] imposes no burden on the Board to consider the merits of that ground of rejection. . . . [T]he Board may treat any argument with respect to that ground of rejection as waived.”). See also In re Guess, 2009 WL 1598475 at *1 (Fed. Cir. June 9, 2009) (“Appellants failed to argue that any limitations unique to [the claims] survive [the rejection]. Appellants have therefore waived any such arguments on appeal.”) (citing In re Watts, 354 F.3d 1362, 1367 (Fed. Cir. 2004)). We deem such failure to be tantamount to a waiver of any arguments that Appellant could have raised in this appeal to traverse this rejection. See 37 C.F.R. § 41.37(c)(1)(vii). In re Watts, 354 F.3d 1362, 1367 (Fed. Cir. 2004). Appeal 2011-000889 Application 10/160,272 6 acknowledgment report” is limited to the successful receipt of the data item (Reply Br. 4) is not commensurate in scope with the disputed claim limitations. Bushmitch discloses, after receiving the 499 th out of 500 audio packets, and a predetermined amount of time has elapsed, a receiving party dispatches to a sending party a NAK message indicating that the audio message was not successfully received in its entirety. (Col. 6, ll. 2-3.) Consistent with our claim construction above, we find the disclosed NAK message indicating an unsuccessful receipt of the audio item teaches the item acknowledgment report. Therefore, we find unavailing Appellant’s argument that Bushmitch’s NAK message teaches away from the claimed invention. We are therefore satisfied that Bushmitch’s disclosure of the receiving party sending such a report to the sending party after the end of the 499 th audio packet data has been received and a predetermined time has elapsed teaches the disputed limitations. It follows that Appellant has not shown error in the Examiner’s rejection of claim 1. Because Appellant has not presented separate patentability arguments for claims 3, 5-8, 11, 13-19, 21, 26, 28-31, 33, 34, 36- 38, 40, 41, 45, and 47-56,they fall together with claim 1. See 37 C.F.R. § 1.37(c)(1)(vii). Appeal 2011-000889 Application 10/160,272 7 DECISION We affirm the Examiner’s rejections of claims 1, 3, 5-8, 11, 13-19, 21, 26, 28-31, 33, 34, 36- 38, 40, 41, 45, and 47-56, as set forth above. 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). AFFIRMED ELD Copy with citationCopy as parenthetical citation