KING, Brian Michael. et al.

Patent Trials and Appeals Board

Dec 9, 2019

13794383 - (D) (P.T.A.B. Dec. 9, 2019)

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.
13/794,383 03/11/2013 Brian Michael KING 122202-5026 (P18193US1) 7341
142248 7590 12/09/2019
Morgan, Lewis & Bockius LLP (Apple)
600 Anton Boulevard
Suite 1800
Costa Mesa, CA 92626
EXAMINER
HULKA, JAMES R
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
12/09/2019 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):
OCIPDocketing@morganlewis.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN MICHAEL KING, DAVID AMM, SCOTT P. PORTER,
and STEVEN P. HOTELLING
Appeal 2018-002430
Application 13/794,383
Technology Center 3600
Before LARRY J. HUME, JOHN P. PINKERTON, and
NORMAN H. BEAMER, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant,1 Apple Inc., appeals from
the Examiner’s decision rejecting claims 1, 5–8, 10–19, and 26–30, which
are all claims pending in the application. Appellant has canceled claims 2–
4, 9, and 20–25. See generally Appeal Br. 5. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Apple, Inc.
Appeal Br. 3.
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STATEMENT OF THE CASE2
The claims are directed to an ultrasound ranging for mobile devices.
See Spec. (Title). In particular, Appellant’s disclosed embodiments and
claimed invention “relate[] generally to ultrasound ranging and more
specifically to ultrasound ranging for use in mobile devices.” Spec. ¶ 2.
Claims 1, 10, 12, 13, 15, and 29, reproduced below, are representative
of the subject matter on appeal (emphases added to contested prior-art
limitations):
Exemplary Claims
1. A mobile device comprising:
an ultrasound transmitter configured to emit a first
ultrasound signal to a proximate device;
an RF transmitter configured to transmit an RF signal to
the proximate device;
one or more ultrasound receivers configured to receive a
second ultrasound signal from the proximate device subsequent
to transmitting the first ultrasound signal; and
a processor configured to:
determine a range of the proximate device based on a
time lapse associated with the second ultrasound signal and
independent of the first ultrasound signal; and
determine an orientation of the mobile device relative to
the proximate device.

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Sept. 7, 2017); Reply Brief (“Reply Br.,” filed Jan. 3, 2018); Examiner’s
Answer (“Ans.,” mailed Nov. 3, 2017); Final Office Action (“Final Act.,”
mailed Mar. 15, 2017); and the original Specification (“Spec.,” filed
Mar. 11, 2013) (claiming benefit of US 61/735,521, filed Dec. 10, 2012).
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10. A method comprising:
receiving an ultrasound signal at a mobile device from a
proximate device;
calculating a range of the proximate device at the mobile
device based on the received ultrasound signal;
sharing the calculated range with a plurality of other
proximate devices; and
mapping at least one of a three-dimensional orientation
and location of the proximate device and the plurality of other
proximate devices.
12. The method of claim 11, further comprising:
detecting occupancy in a frequency band or channel;
in accordance with a determination that the detected
occupancy in the frequency band or channel exceeds a
threshold occupancy, switching to a new frequency band or
channel from a current frequency band or channel; and
in accordance with a determination that the detected
occupancy in the frequency band or channel does not exceed
the threshold occupancy, transmitting the second ultrasound
signal over the current frequency band or channel.
13. The method of claim 10, further comprising:
recording a time of receipt of the ultrasound signal from
the proximate device at the mobile device;
receiving an RF signal at the mobile device from the
proximate device; and
recording a time of receipt of the RF signal from the
proximate device at the mobile device,
wherein calculating the range comprises calculating the
range based on a time lapse between the time of receipt of the
ultrasound signal and the time of receipt of the RF signal.
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15. A mobile device comprising:
an ultrasound receiver configured to detect a first signal
having a first frequency within a first frequency band;
an audio receiver configured to detect a second signal
having a second frequency within a second frequency band; and
a filter coupled to the audio receiver such that an output
of the filter is coupled to an input of the audio receiver, the
filter configured to mitigate interference at the audio receiver
by filtering out the first signal from the input to the audio
receiver.
29. The method of claim 12, further comprising;
in accordance with a determination that the detected
occupancy in the frequency band or channel exceeds the
threshold occupancy, transmitting the RF signal to
communicate the new frequency band or channel to the
proximate device; and
transmitting the second ultrasound signal over the new
frequency band or channel.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Rudish US 6,198,436 B1 Mar. 6, 2001
Mason et al. (“Mason”) US 2004/0192353 A1 Sept. 30, 2004
Croft, III (“Croft”) US 2007/0189548 A1 Aug. 16, 2007
Oswald et al. (“Oswald”) US 2008/0204322 A1 Aug. 28, 2008
Zhao et al. (“Zhao”) US 2009/0295639 A1 Dec. 3, 2009
Boyle et al. (“Boyle”) US 2010/0002777 A1 Jan. 7, 2010
Langereis et al. (“Langereis”) US 2011/0003614 A1 Jan. 6, 2011
Nam et al. (“Nam”) US 2011/0007650 A1 Jan. 13, 2011
Megdal et al. (“Megdal”) US 2011/0141853 A1 June 16, 2011
Li et al. (“Li”) US 2012/0001875 A1 Jan. 5, 2012
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Rejections on Appeal3
R1. Claims 15, 17–19, and 26 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over the combination of Langereis
and Oswald. Final Act. 2.
R2. Claim 16 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Oswald, and Croft.
Final Act. 4.
R3. Claims 1, 5, and 6 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Langereis, Megdal,
and Boyle. Id.
R4. Claim 7 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Megdal, Boyle, and
Nam. Final Act. 6.
R5. Claim 8 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Megdal, Boyle, and
Li. Id.
R6. Claim 27 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Megdal, Boyle, and
Rudish. Final Act. 7.
R7. Claim 28 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Megdal, Boyle,
Rudish, and Zhao. Final Act. 8.

3 In the event of further prosecution, we invite the Examiner’s attention to
claim 6, reciting “the other proximate device,” and claim 29, reciting
“transmitting the RF signal,” to ensure compliance with the definiteness
requirement of 35 U.S.C. § 112, second paragraph, due to an apparent lack
of antecedent basis for the italicized portions quoted above.
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R8. Claim 10 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis and Mason. Final
Act. 9.
R9. Claim 11 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Mason, and Boyle.
Id.
R10. Claim 12 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Mason, Boyle, and
Rudish. Final Act. 10.
R11. Claim 29 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Mason, Rudish,
Boyle, and Zhao. Final Act. 11.
R12. Claim 13 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over the combination of Langereis, Boyle, and Nam.
Final Act. 12.
R13. Claims 14 and 30 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Langereis, Boyle,
and Li. Final Act. 13.
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 10–24) and our
discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of
Rejection R1 of claims 15, 17–19, and 26 on the basis of representative
claim 15; and we decide the appeal of Rejection R3 of claims 1, 5, and 6 on
the basis of representative claim 1. We decide the appeal of each of
separately argued Rejections R8, R10, R11, and R12 of claims 10, 12, 13,
and 20, infra.
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Remaining claims 7, 8, 11, 14, 16, 27, 28, and 30 in Rejections R2,
R4–R7, R9, and R13, not argued separately, stand or fall with the respective
independent claim from which they depend.4
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
As discussed herein, we agree with particular arguments set forth by
Appellant with respect to Rejection R3 of claim 1, and claims 5–8, 27,
and 28 depending therefrom, in Rejections R3 through R7. We also agree
with Appellant’s arguments concerning Rejections R10, R11, and R12 of
claims 12, 29, and 13, respectively.
However, we disagree with Appellant’s arguments with respect to
Rejections R1, R2, R8, R9, and R13 of claims 10, 11, 14–19, 26, 29, and 30
and, unless otherwise noted, we incorporate by reference herein and adopt as
our own: (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Examiner’s Answer in response to Appellant’s arguments.

4 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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We highlight and address specific findings and arguments regarding
claims 1, 10, 12, 13, 15, and 29 for emphasis as follows.
1. § 103(a) Rejection R1 of Claims 15, 17–19, and 26
Issue 1
Appellant argues (Appeal Br. 20–23; see generally Reply Br.) the
Examiner’s rejection of claim 15 under 35 U.S.C. 103(a) as being obvious
over the combination of Langereis and Oswald is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a mobile device that includes, inter alia, “a filter coupled to the
audio receiver such that an output of the filter is coupled to an input of the
audio receiver, the filter configured to mitigate interference at the audio
receiver by filtering out the first signal from the input to the audio receiver,”
as recited in claim 15?
Analysis
The Examiner originally determined “Langereis does not explicitly
teach a filter coupled to the audio receiver such that an output of the filter is
coupled to an input” in the manner recited in claim 15, and generally cited
Oswald as teaching the contested filter limitation. Final Act. 3 (citing
Oswald ¶¶ 173, 263, 379, 423, 424; Fig. 10).
Appellant contends, “[w]ith reference to Fig. 10 (reproduced below),
Oswald discloses that ‘the receiver component 210, transceiver unit 232 and
timebase unit 234 comprises an antenna 212 which is connected in series
with a radio-frequency (RF) band-pass filter (BPF) 242.’” Appeal Br. 21
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(citing Oswald ¶ 263 and Fig. 10). Figure 10 of Oswald is reproduced
below.

“FIG. 10 is a schematic of one of the four receiver channels in the
receiving unit of FIG. 9.” Oswald ¶ 226.
The Examiner further explained the reliance upon Oswald in the
Answer by stating:
[T]he examiner notes in Paragraph 6 of the Final Rejection that
Langereis is capable of performing functions to mitigate
interference using a diplexer, or a time delay. The explicit
recitation of a filter connected to an audio/ultrasound receiver is
what is referenced in Oswald, as [0263] of Oswald includes
several filters attached to a receiver channel. Langereis suggests
that additional structure is well-known to mitigate interference,
but Oswald is brought in to explicitly show what Langereis’
own disclosure suggests.
Ans. 8.
We are not persuaded by Appellant’s argument quoted above that
focuses exclusively on Oswald’s RF antenna 212 and RF BPF 242, and
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which ignores audio BPF 252 whose output feeds the input of audio
amplifier 254 in Figure 10. In agreement with the Examiner, we also find
Langereis’ teaching that “high-pass filtering means 36 and low-pass filtering
means 37” (see Langereis Fig. 2; ¶ 59) are arranged in the input to
processor 30, which, under the broadest reasonable interpretation, suggests
the disputed limitation, potentially without need for further reliance upon
Oswald.5
Moreover, as found by the Examiner (Final Act. 3), we do not find it
beyond the level of skill in the art to filter an unwanted signal, e.g., an
ultrasonic signal, from the input to an amplifier, e.g., an audio amplifier.
Appellant has not demonstrated that the Examiner’s proffered combination
of references would have been “uniquely challenging or difficult for one of
ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007)). Nor has Appellant provided objective evidence
of secondary considerations which our reviewing court guides “operates as a
beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese and
Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).

5 During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using “the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant’s specification.” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
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Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 15, nor do
we find error in the Examiner’s resulting legal conclusion of obviousness.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 15, and grouped claims 17–19 and 26, which fall
therewith. See Claim Grouping, supra.
2. § 103(a) Rejection R3 of Claims 1, 5, and 6
Issue 2
Appellant argues (Appeal Br. 10–15; Reply Br. 6–7) the Examiner’s
rejection of claim 1 under 35 U.S.C. 103(a) as being obvious over the
combination of Langereis, Megdal, and Boyle is in error. These contentions
present us with the following dispositive issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a mobile device that includes, inter alia, “an RF transmitter
configured to transmit an RF signal to the proximate device,” as recited in
claim 1?
Analysis
Appellant contends:
Megdal discloses that the acoustic transmitter unit 102 can
receive GPS signals to determine its location and can transmit
acoustic signals to the underwater receivers 104. Megdal, ¶ 25.
However, Megdal does not disclose or suggest the claimed “RF
transmitter configured to transmit an RF signal to the proximate
device.” No RF transmitter is disclosed.
. . . .
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Accordingly, the Office Action makes a material error in
fact in concluding that Megdal’s disclosure of a “standard GPS
receiver” discloses or suggests “an RF transmitter configured to
transmit an RF signal to the proximate device,” as recited in
independent claim 1.
Appeal Br. 11–12 (emphasis omitted).
In response to Appellant’s argument, the Examiner states:
Figure 1 of Megdal shows a mobile device that uses both RF
and ultrasound transmitters for multi-directional
communication. All that claim 1 requires is that the mobile
device has an RF transmitter – as no further details are
explicitly included in Claim 1. A GPS receiver is in the shown
mobile device – and this RF signal must be transmitted from a
device with an RF transmitter (usually a satellite orbiting above
the earth – which is a mobile device). The information could
also be relayed from another mobile device that includes a GPS
receiver and transmitter (such as a repeater).
Ans. 7.
We do not agree with the Examiner’s finding that a satellite orbiting
above the earth, not illustrated or explicitly discussed, but inferred by the
Examiner from Megdal, is a reasonable teaching or suggestion of “an RF
transmitter configured to transmit an RF signal to the proximate device,” in
the context of mobile device claim 1.
Therefore, based upon the findings above, on this record, we are
persuaded of error in the Examiner’s reliance on the cited prior art to teach
or suggest the disputed limitation of claim 1, and we find error in the
Examiner’s resulting legal conclusion of obviousness. 6

6 Because we agree with at least one of the dispositive arguments advanced
by Appellant, we need not reach the merits of Appellant’s other arguments.
See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984)
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Accordingly, we do not sustain the Examiner’s obviousness rejection
of independent claim 1, and grouped claims 5 and 6, which stand therewith.
See Claim Grouping, supra.
3. § 103(a) Rejection R8 of Claim 10
Issue 3
Appellant argues (Appeal Br. 16–17) the Examiner’s rejection of
claim 10 under 35 U.S.C. 103(a) as being obvious over the combination of
Langereis and Mason is in error. These contentions present us with the
following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method that includes, inter alia, the step of “receiving an
ultrasound signal at a mobile device from a proximate device,” as recited in
claim 10? (emphasis added).
Analysis
Appellant contends ultrasound signal 7 reflected from reflective
surface 9 and received by acoustic transducer 4 in Figure 2 of Langereis
does not teach or suggest the disputed limitation. Appeal Br. 16–17.
We are not persuaded by Appellant’s argument because, under the
broadest reasonable interpretation, there is nothing in the claim that
precludes a reflected ultrasound signal from being received at the mobile
device. Further, there is nothing in the claim that requires an active
ultrasound emission from the claimed “proximate device,” as Appellant’s

(finding an administrative agency is at liberty to reach a decision based on “a
single dispositive issue”).
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arguments appear to suggest, or which precludes an ultrasonic transmission
originating as a reflection from the proximate device.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 10, nor do
we find error in the Examiner’s resulting legal conclusion of obviousness.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 10.
4. § 103(a) Rejection R10 of Claim 12
Issue 4
Appellant argues (Appeal Br. 18–19) the Examiner’s rejection of
claim 12 under 35 U.S.C. 103(a) as being obvious over the combination of
Langereis, Mason, Boyle, and Rudish is in error. These contentions present
us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 11 that includes, inter alia, the limitations of
“detecting occupancy in a frequency band or channel; [and] in accordance
with a determination that the detected occupancy in the frequency band or
channel exceeds a threshold occupancy, switching to a new frequency band
or channel from a current frequency band or channel,” as recited in
claim 12?
Analysis
The Examiner found Langereis does not explicitly teach the disputed
limitation, and further finds, using wording that is somewhat confusing,
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“Rudish teaches does not explicitly teach [the disputed limitation].” Final
Act. 11 (citing Rudish col. 3, ll. 40–65) (emphasis added).
The Examiner further finds:
It would have been obvious to further modify the method of
Langereis to switch frequency bands to reduce interference
amongst audio and ultrasound bands traveling in different
directions, and to ensure sufficient signal-to-noise ratio at the
time and place of receipt of the transmitted signals. This
limitation is merely stating that if the noise in a first band
exceeds a threshold, switch to another band, otherwise - stay
and use the current band. This is common in several forms of
wireless signal (and wired signal) transmission. The entire
premise of a wireless internet router and switch is to perform
the same basic function.
Id.
Appellant contends “[t]he proposed combination of Langereis, Mason,
Boyle, and Rudish does not disclose or suggest these features of dependent
claim 12, and the rejection of dependent claim 12 is clearly improper and
materially deficient.” Appeal Br. 18. Appellant further argues:
The teaching of Rudish stands in stark contrast to the claimed
“in accordance with a determination that the detected
occupancy in the frequency band or channel exceeds a
threshold occupancy, switching to a new frequency band or
channel from a current frequency band or channel,” or
“detecting occupancy in a frequency band or channel,” as
recited in dependent claim 12. Indeed, Rudish teaches
switching to bands that are expected to be occupied.
Appeal Br. 19.
In response to Appellant’s arguments, the Examiner states:
[T]he Rudish reference is only introduced to teach the specific
limitation for checking for occupancy in a given frequency. One
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having ordinary skill in the art would check to see if a given
frequency is being used. If the frequency is not used, the
communication signal can be sent without having to deal with
interference. If the band is occupied, another frequency band is
checked for occupancy. If that second band is unoccupied, the
band is used for signal transmission.
Ans. 7–8.
We are persuaded by Appellant’s arguments and disagree with the
Examiner’s finding that Rudish teaches or suggests the disputed limitation of
claim 12. We disagree with the Examiner because the portion of Rudish
relied upon by the Examiner merely discloses “[t]he local oscillator 24
includes a plurality of fixed or tunable local oscillators, which are switched
through frequency bands of interest that the received RF signals are expected
to occupy.” Rudish col. 3, ll. 58–61. We determine this disclosure does not
adequately teach or suggest the contested limitation, and thus is insufficient
to sustain the Examiner’s rejection.
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner’s reliance on the cited prior
art combination to teach or suggest the disputed limitation of claim 12, such
that we find error in the Examiner’s resulting legal conclusion of
obviousness.
Accordingly, we do not sustain the Examiner’s obviousness Rejection
R10 of dependent claim 12.
5. § 103(a) Rejection R11 of Claim 29
Issue 5
Appellant argues (Appeal Br. 23–24) the Examiner’s rejection of
claim 29 under 35 U.S.C. 103(a) as being obvious over the combination of
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Langereis, Mason, Rudish, Boyle, and Zhao is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 12 wherein, inter alia, “in accordance with a
determination that the detected occupancy in the frequency band or channel
exceeds the threshold occupancy, transmitting the RF signal to communicate
the new frequency band or channel to the proximate device; and transmitting
the second ultrasound signal over the new frequency band or channel,” as
recited in claim 29?
Analysis
In light of our reversal of claim 12 from which claim 29 depends, we
also reverse Rejection R11 of claim 29. On this record, the Examiner has
not shown how the additionally cited Zhao reference overcomes the
aforementioned deficiencies with the combination of Langereis, Mason,
Boyle, and Rudish, as discussed above regarding claim 12. Accordingly, we
do not sustain the Examiner’s obviousness Rejection R11 of dependent
claim 29.
6. § 103(a) Rejection R12 of Claim 13
Issue 6
Appellant argues (Appeal Br. 19–20) the Examiner’s rejection of
claim 13 under 35 U.S.C. 103(a) as being obvious over the combination of
Langereis, Mason, and Nam is in error. These contentions present us with
the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 10 that includes, inter alia, the limitation of
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“recording a time of receipt of the RF signal from the proximate device at
the mobile device, wherein calculating the range comprises calculating the
range based on a time lapse between the time of receipt of the ultrasound
signal and the time of receipt of the RF signal,” as recited in claim 13?
Analysis
The Examiner found Langereis in combination with Mason does not
explicitly teach or suggest the contested limitation of claim 13, but instead
relies upon Nam in paragraph 7 as making up for these deficiencies.
With respect to the teachings of Nam, Appellant contends:
Nam does not disclose or suggest “calculating the range
comprises calculating the range based on a time lapse between
the time of receipt of the ultrasound signal and the time of
receipt of the RF signal,” as recited in dependent claim 13.
Instead, Nam unambiguously discloses that only “ultrasonic
signals . . . are used to calculate TOF.”
Appeal Br. 20 (emphasis added, some emphasis omitted).
The portion of Nam relied upon by the Examiner discloses:
[R]adio signals with a high propagation speed (about 3x108
m/s) are used for synchronization, and ultrasonic signals with a
low propagation speed (about 340 m/s) are used to calculate
TOF.
Nam ¶ 7.
Thus, contrary to the Examiner’s findings, we see no teaching or
suggestion in Nam of using the time of receipt of an RF signal to calculate
the range to the proximate device, as required in clam 13.
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner’s reliance on the cited prior
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art combination to teach or suggest the disputed limitation of claim 13, such
that we find error in the Examiner’s resulting legal conclusion of
obviousness. Accordingly, we do not sustain the Examiner’s obviousness
Rejection R12 of dependent claim 13.
7. Rejections R2, R4–R7, R9, R13: Claims 7, 8, 11, 14, 16, 27, 28, 30
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2, R9, and R13 of claims 11, 14, 16, and 30
under § 103 (see generally Appeal Br.), we sustain the Examiner’s rejection
of these claims. Arguments not made are waived.
However, in light of our reversal of Rejection R3 of independent
claim 1, supra, we also reverse obviousness Rejections R4 through R7 under
§ 103 of claims 7, 8, 27, and 28, which variously and ultimately depend
from claim 1. On this record, the Examiner has not shown how the
additionally cited secondary references overcome the aforementioned
deficiencies with Langereis, Megdal, and Boyle, as discussed above
regarding claim 1.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 3–7) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
We further note Appellant makes generalized allegations of
impropriety (Reply Br. 3–6) regarding prosecution of this application by the
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Examiner and a Supervisory Patent Examiner, including “potential
criminality and/or civil liability incurred by impersonating a federal official
on an official federal document.” Reply Br. 4. We note such matters
regarding prosecution are petitionable to the Director, and are not appealable
or properly considered by the Board.
CONCLUSIONS
(1) The Examiner did not err with respect to obviousness
Rejections R1, R2, R8, R9, and R13 of claims 10, 11, 14–19, 26, and 30
under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and
we sustain the rejections.
(2) The Examiner erred with respect to obviousness Rejections R3
through R7 and R10 through R12 of claims 1, 5–8, 12, 13, and 27–29 under
35 U.S.C. § 103(a) over the cited prior art combinations of record, and we
do not sustain the rejections.

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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Basis /
References
Affirmed Reversed
15, 17–19,
26
103(a) Obviousness
Langereis,
Oswald
15, 17–19,
26

16 103(a) Obviousness
Langereis,
Oswald, Croft
16
1, 5, 6 103(a) Obviousness
Langereis,
Megdal, Boyle
1, 5, 6
7 103(a) Obviousness
Langereis,
Megdal, Boyle,
Nam
7
8 103(a) Obviousness
Langereis,
Megdal, Boyle,
Li
8
27 103(a) Obviousness
Langereis,
Megdal, Boyle,
Rudish
27
28 103(a) Obviousness
Langereis,
Megdal, Boyle,
Rudish, Zhao
28
10 103(a) Obviousness
Langereis,
Mason
10
11 103(a) Obviousness
Langereis,
Mason, Boyle
11
12 103(a) Obviousness
Langereis,
12
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Claims
Rejected
35 U.S.C.
§
Basis /
References
Affirmed Reversed
Mason, Boyle,
Rudish
29 103(a) Obviousness
Langereis,
Mason, Rudish,
Boyle, Zhao
29
13 103(a) Obviousness
Langereis,
Boyle, Nam
13
14, 30 103(a) Obviousness
Langereis,
Boyle, Li
14, 30
Overall
Outcome
10, 11, 14–
19, 26, 30
1, 5–8, 12,
13, 27–29
FINALITY AND RESPONSE
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). See 37
C.F.R. § 41.50(f).
AFFIRMED IN PART