Ex Parte Levy et al

Patent Trials and Appeals Board

Apr 30, 2019

15194095 - (D) (P.T.A.B. Apr. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/194,095 06/27/2016
21884 7590 05/01/2019
WELSH FLAXMAN & GITLER LLC
2000 DUKE STREET, SUITE 100
ALEXANDRIA, VA 22314
FIRST NAMED INVENTOR
Frank Levy
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.
LEVY-003 3841
EXAMINER
SOBUTKA, PHILIP
ART UNIT PAPER NUMBER
2648
MAIL DATE DELIVERY MODE
05/01/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK LEVY and KIMBERLEY LEVY
Appeal2018-004739
Application 15/194,095
Technology Center 2600
Before JUSTIN BUSCH, JOYCE CRAIG, and JASON J. CHUNG,
Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 1, 2, 5-8, and 12, which constitute all
claims pending in this application. We have jurisdiction over the pending
claims under 35 U.S.C. § 6(b). We affirm.
CLAIMED SUBJECT MATTER
Appellants' invention generally relates to "a mobile communication
system providing access amongst various users within a limited geographic
area, for example, travelers aboard a cruise line, convention events, or any
group communications within a specified area." Spec. 2. The claims
include a central server (including a gateway node), texting devices, and
Appeal2018-004739
Application 15/194,095
mesh routers ( connected to the gateway node) that are "separate and distinct
from the plurality [ofJ mobile communication texting devices." Appeal
Br. 16 (Claims App'x). Claim 1 is the only independent claim and is
reproduced below:
1. A mobile communication system allows for
communication in a limited geographic area without the need for
additional communication infrastructure, comprising:
a plurality a mobile communication texting devices
including no mechanism for voice communication and operated
by users of the mobile communication system, each of the
plurality of mobile communication texting devices includes a
housing with a battery, a microprocessor, a memory, an antenna,
a radio transmitter/receiver connected with the antenna, a display
device, and a wireless communication module composed of a
radio transmitter/receiver connected with an antenna, all
interconnected to provide for communication with other
communication texting devices;
a central server operated by a host of the mobile
communication system; and
a plurality of mesh routers wirelessly coupled to a gateway
node and the central server, the plurality of mesh routers being
separate and distinct from the plurality a mobile communication
texting devices;
wherein the plurality of mobile communication texting
devices interact and communicate amongst themselves by
utilizing the mesh routers, the gateway node and the central
server.
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Application 15/194,095
REJECTIONS
Claims 1 and 5-7 stand rejected under 35 U.S.C. § 103 as obvious in
view of Wang (US 2011/0235627 Al; Sept. 29, 2011), Hamalainen (US
2013/0295954 Al; Nov. 7, 2013), and Lee (US 2007/0192026 Al; Aug. 16,
2007). Final Act. 3-5. 1
Claims 2, 8, and 12 stand rejected under 35 U.S.C. § 103 as obvious
in view of Wang, Hamalainen, Lee, and Binder (US 2013/0201316 Al;
Aug. 8, 2013). Final Act. 7-8. 2
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellants made.
Arguments Appellants could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 4I.37(c)(l)(iv). Appellants argue
claims 1 and 5-7 as a group. Appeal Br. 8-14; Reply Br. 1--4. We select
claim 1 as representative of the group. See 37 C.F.R. § 4I.37(c)(l)(iv).
Appellants do not argue claims 2, 8, and 12 separately with particularity.
Appeal Br. 14--15.
1 The Examiner's statement of rejection incorrectly identifies 35 U.S.C.
§ 102 as the statutory basis, but the Examiner clearly included multiple
references and a rationale for combining the cited references in the body of
the rejection. Appellants responded to the apparent obviousness rejection.
Therefore, we treat the Examiner's reference to 35 U.S.C. § 102 as a
harmless typographical error.
2 The Examiner omitted Binder and included Lee twice in the statement of
rejection of claim 12. Claim 2 stands rejected in view of Wang,
Hamalainen, Lee, and Binder. We treat the Examiner's misstatement in the
header of the rejection as a harmless typographical error.
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Application 15/194,095
The Examiner finds Wang teaches or suggests the majority of the
limitations recited in independent claim 1. Final Act. 3--4 ( citing Wang
,r,r 36, 41, 51, 52, 112, 170, 178, Fig. 1 (items 25, 27)). The Examiner finds
Hamalainen teaches or suggests the particular physical elements of a mobile
communication texting device (i.e., a housing with a battery,
microprocessor, memory, antenna, display device, and wireless
communication module) and provides a rationale for combining
Hamalainen's teachings with Wang's teachings. Final Act. 4 (citing
Hamalainen ,r 7 6, Fig. 9). The Examiner relies on Lee as teaching or
suggesting text-only (as opposed to text and voice) devices, and provides a
rationale for combining this teaching with Wang's teachings. Final Act. 5
( citing Lee ,r 30).
Of particular relevance, the Examiner finds Wang teaches or suggests
mesh routers that are separate and distinct from mobile communication
texting devices. Final Act. 3--4; Ans. 7-8. The Examiner explains that, even
to the extent Wang teaches some of the mesh network devices may serve as
both a communications device and a router, the claim does not preclude the
communication device from also serving as a router. Ans. 8. Rather, the
claim merely requires "a plurality of mesh routers" that are separate and
distinct from the "mobile communication texting devices." Ans. 8.
Therefore, the Examiner finds certain of Wang's taught mesh devices (e.g.,
items 14, 18, and 22 in Figure 1) teach or suggest the claimed mesh routers
and other devices ( e.g., item 16 in Figure 1) teach or suggest the claimed
texting devices. Ans. 8.
Alternatively, the Examiner finds Wang discloses embodiments using
a USB device that is an external removable device that may be attached to
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electronic devices. Ans. 7 (citing Wang ,r,r 123-128, Figs. 3A, 3B). The
Examiner finds the USB routing device teaches or suggest the claimed mesh
routers and the devices to which the USB devices may be attached teach or
suggest the claimed texting devices, which are separate and distinct from the
USB routing device. Ans. 7-8.
Appellants primarily argue Wang's devices are integral to the mesh
network and, therefore, Wang's devices cannot teach or suggest "a plurality
of mesh routers ... being separate and distinct from the plurality [ ofJ mobile
communication texting devices." See Appeal Br. 9-12; Reply Br. 1-3.
More specifically, Appellants argue the Examiner's finding that certain of
Wang's devices teach or suggest the communication devices and other
devices teach or suggest the mesh routers is a "strained view" that requires
picking and choosing various of Wang's elements to read on the claimed
invention. Reply Br. 2-3. Appellants further argue Wang's USB
embodiment does not teach or suggest mesh routers separate and distinct
from communication devices because Wang's USB mesh routers are
"intended to be attached to the mesh network devices." Reply Br. 1-2.
We are not persuaded by Appellants' arguments that the Examiner
erred. During examination, claims are given their broadest reasonable
interpretation consistent with the specification. See In re Am. A cad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). "Construing claims
broadly during prosecution is not unfair to the applicant. .. because the
applicant has the opportunity to amend the claims to obtain more precise
claim coverage." Am. Acad of Sci., 367 F.3d at 1364. We agree with the
Examiner's construction that Appellants' claims require neither that the
communication devices are incapable of routing messages in the mesh
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Application 15/194,095
network nor that the mesh routers are incapable of functioning as
communication devices. Rather, Appellants' claims require only that "a
plurality of mobile communication texting devices" are "separate and
distinct from" "a plurality of mesh routers." Thus, we disagree that the
Examiner's mapping of some of Wang's devices to the recited mesh routers
and other devices to the recited communication devices requires a "strained
view." Instead, because Wang's various devices may provide both text
communication and routing functions, we agree that a subset of Wang's
devices teaches or suggests the recited "mobile communication texting
devices" and a different subset of Wang's devices teaches or suggests the
recited "mesh routers." See Ans. 8. 3
Moreover, we agree with the Examiner's alternate finding that
Wang's USB embodiment teaches or suggests mesh routers separate and
distinct from mobile communication texting devices. See Ans. 7-8 ( citing
Wang ,r,r 123-128, Figs. 3A, 3B). Specifically, we agree with the Examiner
that Wang's USB devices teach or suggest the recited mesh routers and
Wang's devices to which the USB devices may be attached teach or suggest
the mobile communication texting devices." See Ans. 7-8. Appellants'
3 To the extent this matter undergoes further prosecution and Appellants
identify evidence supporting a narrower construction, we note the
Specification appears to admit that mesh routers that do not serve as
communication devices were well-known in the art and, thus, may constitute
admitted prior art. Spec. 10. In fact, the Specification discloses that a
preferred embodiment of the invention uses routers that presumably are a
commercial, off-the-shelf product. Spec. 10 ("In accordance with a
preferred embodiment, the present mobile communication system 100 ...
employs a wireless mesh network, for example, a cloud-based wireless mesh
network as provided by OPEN-MESH®, for the networking of the mobile
communication texting devices").
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argument that this mapping fails to consider that Wang's USB devices are
"not intended to function separately and distinctly from the mesh network
devices 14, 16, 18, 22" because Wang intends for the USB mesh network
devices to be attached to communication devices, Reply Br. 1-2, is not
persuasive. As discussed above, we construe Appellants' claims according
the claims their broadest reasonable interpretation. Appellants' claims do
not recite restrictions on the intended use of the recited mesh routers and
mobile communication texting devices. In fact, claim 1 explicitly recites
that the "mobile communication texting devices interact and communicate
amongst themselves by utilizing the mesh routers." Wang discloses
embodiments in which the various devices communicate with each other
using the USB mesh routers. Wang ,r,r 123-128.
Appellants further argue the Examiner's rationale for modifying
Wang in view of Hamalainen is unsupported because Hamalainen's
disclosed devices are not disclosed "in an environment similar to that of the
claimed invention or in the environment of Wang," and Hamalainen's
devices do not disclose a device "which includes no mechanism for voice
communication." Appeal Br. 13; Reply Br. 3. Finally, Appellants argue
Lee's text-only device is disclosed in a particular environment, Lee's
teachings should be limited to devices in that environment, and neither Lee
nor Wang suggests a plurality of text-only devices interacting with each
other in a mesh network using routers separate from the devices. Appeal
Br. 13-14; Reply Br. 3--4. Appellants also state, without further
explanation, that they disagree with the Examiner's determination that
reducing the cost of a device is a sufficient rationale for modifying Wang in
view of Lee. Reply Br. 3.
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The Examiner responds that Appellants' argument that Hamalainen' s
smart phone does not use the claimed environment is an improper argument
against Hamalainen's individual teachings because the rejection is based on
a combination of the teachings from Wang, Hamalainen, and Lee. Ans. 8
(citing In re Keller, 642 F.2d 413 (CCPA 1981); In re Merck & Co., 800
F.2d 1091 (Fed. Cir. 1986)). The Examiner also explains that Lee was cited
to demonstrate it was known to change an audio and text device to a text
only device and the provided motivation for combining Lee's teaching of a
texting only device with Wang's system (i.e., reducing device cost) was a
sufficient rationale, as demonstrated by Lee. Ans. 8-9.
We are not persuaded by Appellants' arguments against Hamalainen
and Lee. Appellants' argument against Hamalainen does not consider the
combined teachings of Wang and Hamalainen. Specifically, as the
Examiner pointed out, the Examiner relies on Hamalainen merely to teach
the internal contents of a smart phone. See Ans. 8. The Examiner relies on
Wang to teach the claimed mesh environment. Final Act. 3--4. Appellants
do not contend, let alone support such a contention, that Hamalainen' s
disclosed elements of a smart phone would not be present in Wang's
disclosed smart phones. Therefore, the fact that Hamalainen does not
disclose a smart phone in a mesh network environment similar to the
environment recited is not fatal to the Examiner's findings and conclusions.
We disagree with Appellants that "Wang does not disclose a text only
mesh network device," Reply Br. 4, at least because Wang explicitly
discloses its mesh network devices may include two-way pagers, Wang ,r 41.
As the Examiner notes, Ans. 9, Lee was used for a very limited purpose to
demonstrate that it was known to use text only devices instead of voice and
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text devices in certain circumstances. Moreover, a general statement that
Appellants disagree with the Examiner's rationale is insufficient to
demonstrate error in the reason provided for combining Lee's teachings with
Wang's teachings. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997)
( noting that attorney argument without supporting evidence has little
probative value). Because the Examiner provided a rationale for combining
the cited teachings and, furthermore, because Wang explicitly discloses that
its communication devices may include two-way pagers, we find no error in
the Examiner's determination that the combination of Wang and Lee teaches
or suggests the recited "mobile communication texting devices including no
mechanism for voice communication."
As mentioned above, Appellants argue claims 1 and 5-7 as a group.
Accordingly, for the above reasons, we are not persuaded the Examiner
erred in rejecting claims 1 and 5-7 as obvious in view of Wang,
Hamalainen, and Lee.
CLAIMS 2, 8, AND 12
Appellants do not argue claims 2, 8, and 12 separately with
particularity. Therefore, we are not persuaded the Examiner erred in
rejecting claims 2, 8, and 12 for the reasons discussed above.
DECISION
We affirm the Examiner's decision to reject claims 1, 2, 5-8, and 12
under 35 U.S.C. § 103 as obvious.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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