Ex Parte Kyösti et al

Patent Trial and Appeal Board

Jun 25, 2018

13121208 (P.T.A.B. Jun. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/121,208 04/22/2011
126149 7590 06/27/2018
Keysight Technologies, Inc.
C/O CPA Global
900 Second A venue South
Suite 600
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Pekka Kyosti
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.
20150154-07 6942
EXAMINER
BROCK, ROBERTS
ART UNIT PAPER NUMBER
2128
NOTIFICATION DATE DELIVERY MODE
06/27/2018 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):
keysightdocketing@cpaglobal.com
notice.legal@keysight.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PEKKA KYOSTI, PETTER! HEINO,
JANNE KOLU, and MARKO FALCK
Appeal 2017-011372
Application 13/121,208
Technology Center 2100
Before LARRY J. HUME, JAMES W. DEJMEK, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1-25, i.e., all pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as Keysight Technologies, Inc.
App. Br. 3.
Appeal 2017-011372
Application 13/121,208
STATEMENT OF THE CASE
The Invention
According to the Specification, "[t]he invention relates to an over-the-
air testing of a device in an anechoic chamber." Spec. i-f 1. 2 The
Specification explains that a testing system comprises: (1) "an emulator
having a simulated radio channel for communicating therethrough with the
electronic device"; and (2) "a plurality of antenna elements coupled to an
emulator which forms a beam of a signal of a path of a simulated radio
channel with at least two antenna elements of the plurality of antenna
elements in an anechoic chamber." Abstract.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows (with formatting added for clarity):
1. A method of communicating with an electronic device
under test through a simulated radio channel of an emulator, the
method comprising:
forming a single beam of a single signal of a single path
of a single simulated radio channel using at least two antenna
elements of a plurality of antenna elements coupled to an
emulator in an anechoic chamber,
the emulator comprising a plurality of delay elements
coupled to a same one of the plurality of antenna elements.
App. Br. 17 (Claims App'x).
2 This decision uses the following abbreviations: "Spec." for the
Specification, filed April 22, 2011; "Final Act." for the Final Office Action,
mailed October 19, 2016; "App. Br." for the Appeal Brief, filed February 28,
2017; "Ans." for the Examiner's Answer, mailed July 7, 2017; and "Reply
Br." for the Reply Brief, filed September 7, 2017.
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Application 13/121,208
The Prior Art Supporting the Rejection on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
Ylitalo US 7,123,943 B2
Foegelle US 2008/0056340 Al
Daniels et al. ("Daniels") US 2008/0123756 Al
The Rejection on Appeal
Oct. 17, 2006
Mar. 6, 2008
May 29, 2008
Claims 1-25 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Foegelle, Daniels, and Ylitalo. Final Act. 3-9.
ANALYSIS
We have reviewed the rejection of claims 1-25 in light of Appellants'
arguments that the Examiner erred. For the reasons explained below, we
disagree with Appellants' assertions regarding Examiner error. We adopt
the Examiner's findings and reasoning in the Final Office Action (Final
Act. 3-12) and Answer (Ans. 2-10). We add the following to address and
emphasize specific findings and arguments.
The§ 103(a) Rejection of Claims 1-25
"SINGLE SIGNAL OF A SINGLE PATH OF
A SINGLE SIMULATED RADIO CHANNEL"
Appellants argue the Examiner erred in rejecting claim 1 because the
cited portions of Foegelle "fail to disclose the 'single beam of a single signal
of a single path of a single simulated radio channel."' App. Br. 8; see Reply
Br. 5---6. More specifically, Appellants assert that "there is no disclosure of a
single anything" in the cited portions of Foegelle "let alone the single beam
of a single signal of a single path of a single simulated radio channel (using
at least two antenna elements of a plurality of antenna elements), as
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Application 13/121,208
specifically recited in claim 1." App. Br. 8-9; Reply Br. 6. In response to
the Examiner's finding that F oegelle' s communication tester 810 may
introduce interference signals into one or more of the paths between variable
path simulator 808 and antennas 806, Appellants "note that the introduction
of interfering signals may affect any number of signals and/or paths, and
thus the mere mention of interfering signals is not evidence of a single beam,
a single signal, a single path or a single simulated radio channel." App.
Br. 9-10.
Appellants' arguments do not persuade us of Examiner error because
the Examiner explains that "it is the teachings of F oegelle in view of Ylitalo
which make obvious these limitations." Ans. 2-3, 6; see Final Act. 3-5, 9.
In particular, the Examiner finds that: (1) Foegelle teaches "forming a single
beam of a single signal of a single path of a single simulated radio channel
using one of a plurality of antenna elements"; and (2) Ylitalo teaches
"forming a single beam using at least two antenna elements." Final
Act. 3, 5; see Ans. 2--4. The Examiner reasons that Foegelle's disclosure of
a testing system parallels the Specification's disclosure of a testing system,
although "Foegelle does not explicitly disclose the use of two antennas to
form the beam." Ans. 3--4 (citing Spec. i-fi-135-36).
For instance, Foegelle discloses a variable path simulator coupled to a
set of antennas surrounding a device under test located within an anechoic
chamber. Foegelle i135, Fig. 8. "Each antenna connects to a different path
of [the] variable path simulator" and receives or transmits "signals to
simulate propagation of reflected energy from a particular angle." Id. i135;
see Ans. 3 (citing Foegelle i135). Thus, the Examiner finds "that 'each'
antenna is responsible for a 'different' path" and "associated with a beam
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Application 13/121,208
(propagation of reflected energy)." Ans. 3; see Final Act. 10. Accordingly,
the Examiner finds that Foegelle "disclos[ es] the transmission of a single
signal []and a single beam and a single path." Ans. 5.
Further, Ylitalo discloses "a method of forming directional antenna
beams" using an antenna array with four or eight antenna elements to direct
power toward a desired object. Ylitalo 2:21-28, 2:48-52, 5:21-27, 5:39-58,
6:3--4, Figs. 2A-2C, 3A-3C; see Final Act. 5. Ylitalo forms directional
antenna beams by "directing at least two antenna beam signals by means of a
beam formation matrix." Ylitalo 2:21-24, 9:4--6, 10:40--42; see Final Act. 5;
Ans. 4.
In addition, the Examiner determines that "interpreting 'forming a
single ... ' to mean forming exclusively one (rather than one among
multiple) is narrower than is warranted or supported by the claim interpreted
in view of the specification." Ans. 6-7 (citing Spec. i-f 22). The Examiner
reasons that the Specification discloses "simulating a multipath environment
by simulating multiple [single] paths through the antenna arrangement" and
lacks "disclosure of using one path and excluding all others to somehow
emulate more than one path of the multipath environment." Id. at 6.
Specification Figure 4, reproduced below, depicts an apparatus that may
simulate multiple single paths.
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Appeal 2017-011372
Application 13/121,208
~400
CH/\N~EL
/\10DEL
418
'----------1 EtvlULATOR
\410 LJ 402 /f" __
~ ~n6 /// /
~~ .. r~14 /;/
I ~=---------_/I FIG, 4
INTERFERENCE
NOISE
Figure 4 illustrates emulator 418 coupled to antenna elements 402 to 416
surrounding device under test 400. Spec. i-fi-131-34, Fig. 4.
Further, consistent with the Examiner's reasoning, claim 1 uses the
transitional term "comprising" and, therefore, "does not exclude unrecited
elements," such as forming another single beam using two additional
antenna elements. See Regeneron Pharm., Inc. v. Merus N. V., 864 F.3d
1343, 1352 (Fed. Cir. 2017) (citing Manual of Patent Examining Procedure
§ 2111.03). In the Reply Brief, Appellants did not address the Examiner's
claim interpretation. See Reply Br. 4--6.
REASONS TO COMBINE THE REFERENCES
Appellants assert that "the basis for combining the applied art fails to
present the requisite articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness." App. Br. 11. Appellants
also assert that the Examiner "presents at best conclusory statements, or
statements lacking rational underpinnings, to support the combinations." Id.
In particular, Appellants contend that Foegelle concerns the "testing a
wireless device with multiple antennas, in an artificial multipath
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Application 13/121,208
environment intended to simulate real world multipath conditions," whereas
Ylitalo concerns the "actual transmission of signals" and the "need for more
accurately directing transmission power towards desired objects." Id.
Appellants' arguments do not persuade us of Examiner error. The
Examiner finds that a person of ordinary skill in the art would have
combined Foegelle and Daniels because: (1) Foegelle explains that
"attenuators and delay lines could be used to generate the same type of
behavior using passive devices"; and (2) "Daniels provides such 'passive
devices,"' e.g., cables with different lengths for different delays together
with means for switching between cables. Final Act. 4--5 (quoting Foegelle
i-f 34); see Foegelle i-fi-134, 39; Daniels i-fi-113-15, 22, Fig. 3. Daniels'
arrangement avoids "the need to shut down and/or manually swap out
different cables" and permits "efficient testing." Daniels i-fi-1 11, 22; see Final
Act. 5.
The Examiner also finds that a person of ordinary skill would have
combined Foegelle and Ylitalo to direct power toward a desired object
according to Ylitalo. Final Act. 5-6; see Ans. 7-8; Ylitalo 2:48-52, 5:21-
27, 6:3--4. The Examiner explains that Foegelle employs the "actual
transmission of signals" to accomplish an emulation, and "the actual signals
created are used to emulate those of another environment." Ans. 7. The
Examiner reasons that the "Foegelle and Ylitalo disclosures are congruous
as regards the actual transmission of signals, i.e. Foegelle's system and
methods use transmission and Ylitalo' s methods provide for a particular
method of doing so." Id. at 7-8.
Thus, the Examiner provides articulated reasoning with a rational
underpinning for why a person of ordinary skill would have combined
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Foegelle, Daniels, and Ylitalo, including identifying advantages achieved
with the combination. Final Act. 4---6; Ans. 7-10. "[T]he law does not
require that the references be combined for the reasons contemplated by the
inventor." In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992); see Outdry
Techs. Corp. v. Geox S.p.A., 859 F.3d 1364, 1371 (Fed. Cir. 2017). "[A]ny
need or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining" references.
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). "[T]he desire to
enhance commercial opportunities by improving a product or process is
universal .... " DyStar Textilfarben GmbH v. CH Patrick Co., 464 F.3d
1356, 1368 (Fed. Cir. 2006); see In re Peterson, 315 F.3d 1325, 1330
(Fed. Cir. 2003). "[A Jn implicit motivation to combine" may result from a
desire to make a product or process "stronger, cheaper, cleaner, faster,
lighter, smaller, more durable, or more efficient." DyStar, 464 F.3d at 1368.
CHANGING FOEGELLE'S PRINCIPLE OF OPERATION
Appellants assert that in Foegelle, "the angles from which signals
(apparently) arrive, as well as other characteristics, such as linear or
elliptical polarizations, are handled by a variable path simulator." App.
Br. 12. Appellants then contend Ylitalo's "concept of generating
intermediate beams would necessarily 'change the principle of operation'
of' Foegelle's simulator. Id.
Appellants' arguments do not persuade us of Examiner error. The
Examiner finds that: ( 1) forming an intermediate beam according to Ylitalo
"requires at least two antennas and equipment for manipulating the phase
and magnitude of signals through the antennas"; and (2) "Foegelle's system
has this capability since it is required for the variable path simulation."
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Application 13/121,208
Ans. 8 (citing Foegelle i-f 35, Ylitalo i-f 43). The Examiner explains that
"Foegelle's system (chamber of antennas and variable path simulator) can be
manipulated according to Ylitalo' s methods ... to produce signals at angles
between the antennas" and "direct such signals more accurately toward"
Foegelle's device under test. Id. at 9--10.
SUMMARY FOR INDEPENDENT CLAIM 1
For the reasons discussed above, on this record and by a
preponderance of the evidence, Appellants' arguments have not persuaded
us that the Examiner erred in rejecting claim 1 for obviousness based on
Foegelle, Daniels, and Ylitalo. Hence, we sustain the§ 103(a) rejection of
claim 1.
INDEPENDENT CLAIMS 9 AND 17 AND
DEPENDENT CLAIMS 2-8, 10-16, AND 18-25
For independent claims 9 and 17, Appellants rely on the patentability
arguments for claim 1 and do not argue patentability separately. App.
Br. 13-14. Also, Appellants do not argue patentability separately for
dependent claims 2-8, 10-16, and 18-25. Id. at 14. Thus, we sustain the
§ 103(a) rejection of claims 2-25 for the same reasons as claim 1. See
37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the Examiner's decision to reject claims 1-25.
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). See
37 C.F.R. § 41.50(±).
AFFIRMED
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