Ex Parte Melanson

Patent Trial and Appeal Board

Mar 29, 2018

13728347 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
131728,347 12/27/2012 John L. Melanson
67942 7590 03/29/2018
JACKSON WALKER L.L.P.
INTELLECTUAL PROPERTY PRACTICE GROUP
100 CONGRESS A VENUE
SUITE 1100
AUSTIN, TX 78701
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.
141841.00003 9390
EXAMINER
FRUNZI, VICTORIA E.
ART UNIT PAPER NUMBER
3688
MAILDATE DELIVERY MODE
03/29/2018 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 JOHN L. MELANSON
Appeal2017-000917
Application 13/728,347
Technology Center 3600
Before JEREMY J. CURCURI, BARBARA A. BENOIT, and
MICHAEL M. BARRY, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 2-11, 13-22, 24--33, and 46-72. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b ).
Claims 2, 6-11, 13, 17-22, 24, 28-33, and 46-72 are rejected under
pre-AIA 35 U.S.C. § 103(a) as obvious over Jones (EP 2288121 A2; Feb.
1 Appellant identifies the real party in interest as the Applicant, Cirrus Logic,
Inc. App. Br. 2.
Appeal2017-000917
Application 13/728,347
23, 2011) and Shatsky (US 2012/0083285 Al; Apr. 5, 2012). Final Act. 2-
19.2
Claims 3-5, 14--16, and 25-27 are rejected under pre-AIA 35 U.S.C. §
103(a) as obvious over Jones, Shatsky, and Amjadi (US 2007 /0174259 Al;
July 26, 2007). Final Act. 19-28.
We affirm.
STATEMENT OF THE CASE
Appellant's invention relates to "determining a geographical location
of a mobile device based on a delay between transmission of the audio signal
from the audio signal source to receipt of the audio signal by a microphone
of the mobile device." Spec. 1:11-13. Claim 9 is illustrative and
reproduced below:
9. A mobile device comprising:
an enclosure readily transported on a person of a user of the mobile
device;
a display within the enclosure;
a microphone within the enclosure for receiving an audio signal from
an audio signal source, wherein the audio signal comprises at least one of: (i)
audio broadcast at a volume and frequency within the range of human
hearing, and (ii) a signal at a frequency range above that of human hearing;
at least one sensor other than the microphone; and
2 The formal statement of rejection omits claims 31, 32, and 47--49;
however, these claims are addressed in the Examiner's findings and
conclusions. Final Act. 7 (claim 31), 10 (claim 32), 13-14 (claims 47--49).
Accordingly, we treat these claims as rejected.
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Application 13/728,347
a controller within the enclosure, coupled to the microphone and the
display, and configured to:
based at least on information included in the audio signal,
determine a delay between a transmission of the audio signal from the audio
signal source to receipt of the audio signal by the microphone;
based at least on the delay and sensor information received by
the at least one sensor, determine a geographical location of the mobile
device; and
based on the geographical location of the mobile device, display
geographical information to the display indicative of the geographical
location.
ANALYSIS
THE OBVIOUSNESS REJECTION OF CLAIMS 2, 6-11, 13, 17-22, 24, 28-33, AND
46-72 OVER JONES AND SHATSKY
Contentions
The Examiner finds Jones and Shatsky teach all limitations of claim 9.
Final Act. 2--4. In particular, the Examiner finds Shatsky teaches various
recitations that are not expressly disclosed in Jones, including "at least one
sensor other than the microphone" as recited in claim 9. Final Act. 3--4.
The Examiner reasons "it would have been obvious to one of ordinary skill
in the art at the time the invention was made to modify the system of Jones
to include at least one sensor other than the microphone ... in order to
provide enhanced location data to a user of a mobile device." Final Act. 4.
Appellant contends there would have been no motivation to modify
Jones to achieve the claimed invention, and further, Jones teaches away from
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the claimed invention. See Appeal Br. 5-8; see also Reply Br. 2-3. In
support of these contentions, Appellant argues, for example:
1.
[T]here exists no motivation to make such modification to
Jones, other than in the present application itself, and[] if Jones
was modified as so suggested by the Examiner, such
modification would completely change the principle of
operation of Jones so as to render the system less suitable for its
intended purpose.
Appeal Br. 5 (citing Jones i-f 114). "The acoustic position detection system
disclosed in Jones is used entirely in the alternative to GPS and other
position-detection systems, rather than in addition to or in connection with
such position-detection systems." Appeal Br. 6.
11. "Jones explicitly teaches away from the modification being
suggested by the Examiner." Appeal Br. 6. "Jones does not teach GPS as
an alternative sensor to the sound-based position location taught in Jones,
but rather teaches the sound-based position location taught in Jones as an
improvement to higher-power consuming and more expensive, and thus less
desirable (from the perspective of Jones), GPS approaches." Appeal Br. 7.
"Jones' explicit statement that GPS approaches are 'relatively expensive'
can only be reasonably construed as discouraging the use of GPS." Appeal
Br. 8; see also Reply Br. 2-3. "[T]he main reference cited by the Examiner,
Jones, goes even further than suggesting that the combination of sound-
based positioning with GPS is undesirable, suggesting that GPS itself is
undesirable." Appeal Br. 8.
In response, the Examiner explains "Jones teaching the use of GPS as
'relatively expensive' does not go so far as to criticize, discredit, or
otherwise discourage the solution of GPS and further teaches the use of
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cellular phones which can determine their position are known." Ans. 3. The
Examiner further explains
The Examiner asserts that the cellular phone recited in the prior
art has the functional and structural capability to use GPS as a
means for location detection. The reference is merely pointing
out that from a business decision perspective (i.e. cost analysis)
this implementation may be more expensive; however this is
disclosed as "relatively expensive" and this could be any
amount and even a nominal amount to a company producing
the cellular phone or the user using the phone. The prior art
says nothing to the cellular phone not being able to use GPS.
Ans. 3.
Our Review
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
First, we address Appellant's argument (ii) that Jones teaches away
from the claimed invention.
While an alternative may be inferior to or less desirable than another,
that alone is insufficient to teach away from the inferior alternative unless
the disclosure criticizes, discredits, or otherwise discourages that alternative.
In re Fulton, 391F.3d1195, 1200--01 (Fed. Cir. 2004).
Here, Jones discloses "[a]lternatively, the cellular phone could use a
Global Positioning Systems (GPS) or other satellite-based systems to
determine its position to within about ten metres by analysing RF signals
received from satellites. However, the receiver circuitry for such satellite-
based position detection systems is relatively expensive." Jones i-f 114.
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Jones discloses GPS as an alternative. See Jones i-f 114 (emphasis
added) ("Alternatively, the cellular phone could use a Global Positioning
Systems (GPS)." That said, Jones discloses GPS as an alternative that is
relatively expensive. See Jones i-f 114 ("[T]he receiver circuitry for such
satellite-based position detection systems is relatively expensive.).
However, between two alternatives one generally will be more expensive
than the other. On this record, more expense may make GPS at most less
desirable than a cheaper alternative, but being less desirable is not sufficient
to criticize, discredit, or otherwise discourage the use of an alternative. This
is precisely the holding in Fulton.
Second, we address Appellant's argument (i) that there was no
motivation to modify Jones to achieve the claimed invention. Shatsky
discloses
obtaining enhanced location information for a mobile device.
The mobile device is configured to allow a determination of its
location, for example via GPS. Location data for the mobile
device, exemplarily obtained via GPS, may be further specified
using context information for the mobile device. Additional data
is obtained and processed to obtain context information for the
mobile device. Enhanced location information is determined for
the mobile device at least in part based on processing the
location data in association with the context information.
Additional data may comprise, for example, ambient noise,
speech, images or text.
Shatsky Abstract (emphasis added). Thus, Shatsky teaches enhanced
location information based on GPS and additional data used to determine
context. To the extent Jones teaches GPS as an alternative to acoustic
position detection, Shatsky teaches position detection based on GPS and
additional data. Thus, collectively, the prior art teaches the use of GPS and
acoustic systems together. See Shatsky Abstract, Jones i-f 114.
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The Examiner articulated a reason to combine the teachings of the
references that is rational on its face and supported by evidence drawn from
the record. See Final Act. 4 ("to provide enhanced location data to a user of
a mobile device."); see also Shatsky Abstract ("Location data for the mobile
device, exemplarily obtained via GPS, may be further specified using
context information for the mobile device."). Thus, given the collective
teachings of the references and the Examiner's reasoning, we conclude one
of ordinary skill in the art at the time of the invention would have been
motivated to modify Jones as proposed by the Examiner.
In conclusion, weighing the Examiner's findings and reasons against
Appellant's arguments, in light of the evidence on the record, the Examiner
persuades us that the claimed invention would have been obvious.
We, therefore, sustain the Examiner's rejection of claim 9. We also
sustain the Examiner's rejection of claims 2, 6-8, 10, 11, 13, 17-22, 24, 28-
33, and 46-72, which are not separately argued with particularity. See
Appeal Br. 9; see also Reply Br. 3.
THE OBVIOUSNESS REJECTION OF CLAIMS 3-5, 14--16, AND 25-27 OVER
JONES, SHATSKY, AND AMJADI
Appellant does not present separate arguments for claims 3-5, 14--16,
and 25-27. See Appeal Br. 9; see also Reply Br. 3. We, therefore, sustain
the Examiner's rejection of claims 3-5, 14--16, and 25-27.
ORDER
The Examiner's decision rejecting claims 2-11, 13-22, 24--33, and
46-72 is affirmed.
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No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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