David M. Masarik et al.

Patent Trials and Appeals Board

Apr 9, 2020

15345678 - (D) (P.T.A.B. Apr. 9, 2020)

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.
15/345,678 11/08/2016 David M. Masarik N2SYS.008D1 4610
20995 7590 04/09/2020
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
EXAMINER
JIA, XIN
ART UNIT PAPER NUMBER
2667
NOTIFICATION DATE DELIVERY MODE
04/09/2020 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):
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jayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID M. MASARIK and MICHAEL J. MASARIK
Appeal 2019-000692
Application 15/345,678
Technology Center 2600
Before DENISE M. POTHIER, JOHN A. EVANS, and SCOTT E. BAIN,
Administrative Patent Judges.

BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–13, which constitute all claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

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 N2 Imaging
Systems, LLC. Appeal Br. 1.
Appeal 2019-000692
Application 15/345,678

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BACKGROUND
The Claimed Invention
The invention relates to managing data flow between external wireless
systems and an intrapersonal data communication system (such as a
headgear system having data links). Spec. ¶¶ 2–4, Fig. 1B. Claim 1, the
sole independent claim, is representative of the invention and the subject
matter in dispute, and reads as follows:
1. A personal equipment system arrangement comprising:
a long-range radio electrically coupled to a personal
equipment system and configured to communicate voice and
data over distances greater than 100 m;
a low-power, short-range wireless communication system
electrically coupled to the personal equipment system; and
a higher-power, short-range ultra wideband wireless
system electrically coupled to the personal equipment system,
wherein the personal equipment system receives
information wirelessly from an external system through the
higher-power, short-range ultra-wideband wireless system for
information transmitted at a rate greater than or equal to about
500 kbps and through the low-power, short-range wireless
communication system for information transmitted at a rate
less than 500 kbps.
Appeal Br. (Claims Appendix)2 (emphases added).
References
The references relied upon by the Examiner are:

2 The Appeal Brief is not paginated. Thus, citations will refer to sections of
the brief.
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Name Reference Date
Jannard et al. (“Jannard”) US 2005/0201585 A1 Sept. 15, 2005
Chheda et al. (“Chheda”) US 2002/0085502 A1 July 4, 2002
Bienas et al. (“Bienas”) US 2012/0238208 A1 Sept. 20, 2012
Shen US 2014/0065967 A1 Mar. 6, 2014

The Rejections on Appeal
Claims 1–5, 7–11, and 13 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Jannard and Chheda. Final Act. 2–9.
Claim 6 stands rejected under 35 U.S.C. § 103 as unpatentable over
Jannard, Chheda, and Bienas. Final Act. 9–10.
Claim 12 stands rejected under 35 U.S.C. § 103 as unpatentable over
Jannard, Chheda, and Shen. Final Act. 10–11.
DISCUSSION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments presented in this appeal. Arguments which Appellant could have
made but did not make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2017). For the following reasons, we are persuaded of
error on the record before us.
Claims 1–5, 7–11, and 13
Appellant argues the Examiner erred in finding the combination of
Jannard and Chheda teaches or suggests equipment that receives information
from an external system through a “higher-power, short-range ultra-
wideband” system for information transmitted at “greater than or equal to
about 500 kbps,” and through a “low-power, short-range wireless” system
for information transmitted at “less than 500 kbps,” as recited in claim 1.
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Appeal Br. (Sect. VII). In the brief, Appellant refers to 500 kbps as the
“cutoff rate.” Id. Appellant argues that the cited prior art does not teach or
suggest any cutoff rate, let alone 500 kbps. Id. Although we do not adopt
the term “cutoff rate” (because it appears nowhere in the Specification or
claims), we are persuaded by Appellant’s argument that the Examiner erred
in finding the prior art teaches or suggests the claim limitations quoted
above.
The Examiner finds Jannard teaches, “in one embodiment,” data
transfer at a variety of speeds, including “12 Mbps, 100 Mbps, 200 Mbps,
400 Mbps, 480 Mbps or the like.” Ans. 5 (citing Jannard Figs. 20, 22,
¶¶ 282, 286). The Examiner further finds Jannard teaches that the “data
transfer rate will generally vary depending upon several factors, including
the data port selected [], the content source [], and the communications link.”
Jannard ¶ 286; see also Ans. 5.
Each of the foregoing data rates is, of course, “greater than . . . about
500 kbps,” as claim 1 recites. Claim 1, however, also requires that a
different “wireless [communication] system” within the same “personal
equipment system” receives information transmitted at a rate “less than 500
kbps.” Appeal Br. (Claims Appendix). The Examiner cites Jannard
paragraph 257 (and its corresponding Figures 8, 17, and 18) as teaching this
limitation. Paragraph 257, however, only describes that Jannard’s wearable
MP3 player “outputs” and “transmits” a 128 kbps signal. Jannard ¶ 257.
Moreover, the Examiner does not explain, and we cannot discern on this
record, how both the 12 Mbps signal (or alternatively, 100 Mbps, 200 Mbps,
400 Mbps, 480 Mbps, as noted above) and the 128 kbps signal separately
taught in Jannard are from “an external system” and the foregoing signals
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are received through different “wireless [communications] system[s]” within
the same “personal equipment system,” as recited in claim 1.
The Examiner only relies on Chheda as teaching that “higher data rate
needs higher power.” Appeal Br. (Sect. VII); Ans. 6. This teaching, and its
combination with Jannard, does not address the claim limitations discussed
above. Moreover, as a rationale for combining the references, the Examiner
states:
It would have been obvious to one of ordinary skill in the art at
time of the invention to modify Jannard by Chheda for
providing a full rate is equal to 9600 bps, a half rate is equal to
4800 bps, a quarter rate is 2400 bps, and an eight rate is 1200
bps via higher or lower transmission power and the basic nature
of digital communications in which a reduced transmission rate
results in multiple transmissions of a bit of data in a non-
interleaved manner, it is possible to reduce power rates
proportionately to the transmission rate, as transmission rate
greater than or equal to about 500 kbps via higher-power and at
less than 500 kbps via lower-power. Therefore, the combination
would provide the technology related to the relationship
between the transmission rate and transmission power.

Final Act. 4.
We do not discern, from the foregoing, a sufficient rationale for
combining the references. See, e.g., KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (“[R]ejections on obviousness grounds cannot be sustained
by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.”); Appeal Br. (Sect. VII). Rather, the Examiner’s above-
quoted statement in the Final Action repeats the elements of Appellant’s
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claim 1, and the Answer does not address any rationale for combining the
references.
For each of the foregoing reasons, we are persuaded of error regarding
the rejection of claim 1 as unpatentable over Jannard and Chheda. For the
same reasons, we are persuaded of error regarding the same rejection of
dependent claims 2–5, 7–11, and 13. Accordingly, we do not sustain the
obviousness rejection of claims 1–5, 7–11, and 13.
Claims 6 and 12
Claims 6 and 12 depend indirectly from clam 1, and thus include the
same disputed limitations discussed above. The Examiner does not find that
the additional references cited in the rejection of claim 6 (Bienas) and the
rejection of claim 12 (Shen) cure the deficiencies regarding claim 1,
discussed above. Accordingly, we are persuaded of error regarding claims 6
and 12, and we do not sustain the obviousness rejections of claims 6 and 12.
SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Ba
sis
Affirmed Reversed
1–5, 7–11,
13
103 Jannard, Chheda 1–5, 7–11,
13
6 103 Jannard,
Chheda, Bienas
6
12 103 Jannard,
Chheda, Shen
12
Overall
Outcome
1–13
DECISION
We reverse the Examiner’s decision rejecting claims 1–13.
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REVERSED