Ex Parte KRISHNASWAMY et al

Patent Trial and Appeal Board

Jul 30, 2018

13443448 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/443,448 04/10/2012 Jyotsna KRISHNASW AMY
12371 7590 08/01/2018
Muncy, Geissler, Olds & Lowe, P.C./QUALCOMM
4000 Legato Road, Suite 310
Fairfax, VA 22033
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
QC113110 3327
EXAMINER
TORRES, MARCOS L
ART UNIT PAPER NUMBER
2645
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
meo.docket@mg-ip.com
meo@mg-ip.com
ocpat_uspto@qualcomm.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JYOTSNAKRISHNASW AMY
and OLUFUNMILOLA 0. AWONIYI
Appeal2018-002471
Application 13/443,448
Technology Center 2600
Before CARL W. WHITEHEAD JR., IRVINE. BRANCH, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 3 5 U.S. C. § 134( a) from a final rejection of
pending claims 34--36, 38, 39, 46, 48-53, 60, 62, 63, 65, and 67. 2 We have
jurisdiction under35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify QUALCOMM Incorporated as the real party in
interest. App. Br. 3.
2 Claims 1-33 have been allowed. See Final Act. 1, 8. Claims 37, 40-45,
47, 54--59, 61, 64, 66, and 68 have been withdrawn from consideration. See
Final Act. 1 and App. Br. 17-22 (Claims App'x). Our decision addresses
only the pending claims that stand rejected.
Appeal 2018-0024 71
Application 13/443,448
Introduction
Appellants' invention relates to "handing over communications
between cellular and non-cellular communications protocols." Spec. ,r 1. In
one aspect, a serving access point of a non-cellular communication protocol
provides an instruction to deactivate a cellular modem on "user equipment"
(UE (e.g., a smartphone)). Spec. ,r 4; see also Spec ,r,r 41--47, Figs. 5-7.
Claim 34 is representative of the claims on appeal, shown here with a
disputed requirement in italics:
34. A method for managing communications at a user
equipment (UE) comprising a cellular modem, a non-cellular
modem, a communications component and a handover
management component, comprising:
receiving an instruction, by the communications
component, via a cellular access point (AP), to trigger
activation of the non-cellular modem;
establishing a non-cellular communication, by the
handover management component, with a server via a frrst non-
cellular AP, the frrst non-cellular AP being one of one or more
non-cellular APs and having an overlapping coverage area with
the cellular AP;
receiving/ram the server, by the handover management
component, an instruction to deactivate the cellular modem;
deactivating, by the handover management component,
the cellular modem; and
communicating with the server via the non-cellular
modem.
App. Br. 16 (Claims App'x).
Rejecti ans and References
Claims 34--36, 38, 39, 46, 48-53, and 60 stand rejected underpre-AIA
35 U.S.C. § 103(a) as unpatentable over Lim et al. (US 2010/0234017 Al,
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Application 13/443,448
pub. Sept. 16, 2010), Ko et al. (US 2006/0154699 Al, pub. July 13, 2006),
and Bergqvist et al. (US 2011/0090790 Al, pub. Apr. 21, 2011 ). Final Act.
4--7.
Claims 62, 63, 65, and 67 stand rejected under§ 103(a) as
unpatentable over Lim, Ko, and Abogendia (US 2012/0309373 Al, pub.
Dec. 6, 2012). Final Act. 7-8.
ANALYSIS
In rejecting claim 34, the Examiner finds Ko teaches a handover
management component for receiving "an instruction to deactivate the
cellular modem," Bergqvist teaches a UE that receives activate/ deactivate
instructions from the network (i.e., "from the server"), and the combination
of Ko and Bergqvist teaches the disputed requirement of "receiving from the
server, by the handover management component, an instruction to deactivate
the cellular modem." FinalAct. 4--5 (citing Ko ,r,r 27-33, Abstract;
Bergqvist ,r 6). Appellants contend the Examiner errs because "there is no
evidence in Ko of an 'instruction to deactivate the cellular modem'." App.
Br. 6. Appellants specifically argue that paragraph 53 ofKo's description of
its preferred embodiments, which states that while the UE is turned on, the
cellular modem "maintains a constant 'on' state," teaches away from
deactivating a cellular modem. Id. at 7; see also Reply Br. 2-3
(characterizing Ko ,r 53 as an explicit disclaimer of turning off a cellular
modem). Appellants further contend the Examiner errs in combining the
teachings of Bergqvist with Lim and Ko to fmd a teaching "that the
handover command should be received 'from [a] server', as recited." App.
Br. 7-8 (brackets in original); see also Reply Br. 4.
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Application 13/443,448
Appellants' arguments are unpersuasive. While certainly paragraph
5 3 of Ko describes an embodiment that does not tum off its cellular modem,
Ko neither disclaims the approach of turning off a cellular modem nor
teaches away from alternative embodiments that may tum off a cellular
modem. A teaching away requires a reference to actually criticize, discredit,
or otherwise discourage the claimed solution. See In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004) ("The prior art's mere disclosure of more than
one alternative does not constitute teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed.").
A principal objective of Ko is to reduce power consumption, which it
does "by enabling the multiple modems to cooperate in a complementary
manner." Ko ,r 15; see also ,r,r 16-18. Ko specifically explains that its
"power saving method is not limited to the mobile communication network
and the WLAN" of the preferred embodiment. Ko ,r 76. Rather, in general,
Ko's teachings "can be adopted to the case wherein at least two different
communication networks interoperate by turning on one of a plurality of
different network-based modems." Id.
The ordinarily skilled artisan is "a person of ordinary creativity, not an
automaton," KSRint'lCo. v. Teleflex Inc., 550U.S. 398,421 (2007)). We
agree with the Examiner that such artisans would have understood Ko' s
general disclosure of selectively turning off modems to teach or suggest
turning off a cellular modem. Final Act. 2-3, 4--5; Ans. 2--4. Specifically,
as the Examiner finds, and we agree, "Ko discloses the teaching and
instructions to save battery power, that only one modem is needed for
communication" and, accordingly, "one [ of ordinary] skill in the art would
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Application 13/443,448
[have] recognize[ d] Ko teaches to provide an instruction to operate only one
of the multiple modems during call waiting times." Ans. 2 ( citing Ko ,r,r 17,
27-33, Abstract).
Further, by teaching to a UE that interoperates on "at least two
different communication networks" and controls "a plurality of different
network-based modems" (Ko ,r 76), Ko contemplates a UE that operates on
more than two different networks using more than two modems. Ordinarily
skilled artisans would have been notoriously aware of the well-known
existence of UEs that include multiple cellular modems. 3 Thus, even
assuming arguendo that Ko requires keeping a cellular modem turned on,
Ko certainly does not disclaim or teach away from turning off a UE' s second
cellular modem.
Regarding Bergqvist, Appellants argue "the instruction allegedly
disclosed by Bergqvist is an instruction to deactivate measurements or the
reporting thereof, and is not, under any reasonable interpretation, a
'handover command' analogous to the handover commands disclosed by
Lim." App. Br. 8; Reply Br. 4. This argument is unpersuasive. Each
reference cited by the Examiner must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole. See In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The relevant inquiry is
whether the claimed subject matter would have been obvious to those of
ordinary skill in the art in light of the combined teachings of those
references. In re Keller, 642 F.2d413, 425 (CCPA 1981).
3 See, e.g., U.S. 8,676,251 B2 (separate modems forCDMAand LTE).
(Also, while Bergqvist does not explicitly say so, its "methods and
arrangements allowing ... for handling interworking between different radio
access technologies" (if 1) teaches UEs with multiple cellular modems.)
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The Examiner relies on Lim for teaching the "server via a first non-
cellular AP" with which the UE establishes non-cellular communication, as
recited in claim 34. Final Act. 4 ( citing Lim ,r,r 29-31, 36-45). This fmding
is not in dispute. As discussed supra, we agree that Ko teaches a handover
management component that receives an instruction to deactivate a cellular
modem. In other words, Lim teaches "a server" and Ko teaches "an
instruction," as recited in claim 34. The crux is whether the Examiner errs
in fmding Bergqvist, in view of Lim and Ko, teaches "receiving from the
server," as recited.
Bergqvist discloses sending an "activate/deactivate command ...
from the network to the user equipment in the ... HANDOVER
COMMAND messages." Bergqvist ,r 6. Thus, Bergqvist teaches that a
handover command sent to a UE can include instructions for activating or
deactivating functionality. In view of (a) Lim' s teaching of a non-cellular
AP server that communicates with the handover management component of
a UE, (b) Ko' s teaching of a UE handover management component that
receives an instruction to deactivate a cellular modem, and ( c) given
Bergvist' s teaching of a server that includes related command functionality
in a handover command message, Appellants do not persuade us the
Examiner errs in fmding the combined teachings of Lim, Ko, and Bergqvist
render obvious the disputed limitation of"receiving from the server, by the
handover management component, an instruction to deactivate the cellular
modem," as recited. See Ans. 4--5.
Accordingly, we sustain the rejection of claim 34under 35 U.S.C.
§ 103. Appellants present no separate arguments of Examiner error for the
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remaining claims and, therefore, we also sustain the rejections of claims 3 5,
36,38,39,46,48-53,60,62,63,65,and67.
DECISION
We affrrm the 35 U.S.C. § 103 rejection of claims 34--36, 38, 39, 46,
48-53, 60, 62, 63, 65, and 67.
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
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