Ex Parte Ramkumar et al

Patent Trial and Appeal Board

Sep 26, 2017

13783091 (P.T.A.B. Sep. 26, 2017)

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.
13/783,091 03/01/2013 Vasanth Kumar Ramkumar QLXX.P0137US/11211505 6373
15757 7590 09/28/2017
Qualcomm /Norton Rose Fulbright US LLP
2200 Ross Avenue
Suite 3600
Dallas, TX 75201-7932
EXAMINER
GEE, ALEXANDER
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
ocpat_uspto@qualcomm.com
doipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VASANTH KUMAR RAMKUMAR,
SRINIVASAN RAJAGOPALAN, PRAVEEN N. KONA,
PRATIK KOTKAR, and ASHISH S. IYER
Appeal 2017-001330
Application 13/783,091
Technology Center 2400
Before ELENI MANTIS MERCADER, CATHERINE SHIANG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1—9 and 11—47, 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 Qualcomm Incorporated.
App. Br. 2.
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Application 13/783,091
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention relates “generally to
wireless communication systems, and more particularly, to concurrent
communication services during other active wireless communication
sessions.” Spec. 11.2 The Specification explains that a mobile device may
receive and present streaming communication content and simultaneously
receive “a concurrent service indication . . . and the concurrent service (or
notification thereof).” Abstract. The Specification further explains that the
concurrent service may, for example, involve a commercial mobile alert
system (CMAS) or an Earthquake and Tsunami warning system (ETWS).
Spec. 1 6.
Exemplary Claims
Independent claims 1 and 12 exemplify the claims at issue and read as
follows:
1. A method for wireless communication, comprising:
receiving streaming communication content at a mobile
device during an active communication session;
presenting the streaming communication content on a
display of the mobile device;
receiving an indication, at the mobile device during the
active communication session, that a concurrent wireless
communication service is available;
2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed March 1, 2013; “Final Act.” for the Final Office Action,
mailed February 19, 2016; “App. Br.” for the Appeal Brief, filed June 20,
2016; “Ans.” for the Examiner’s Answer, mailed September 1, 2016; and
“Reply Br.” for the Reply Brief, filed November 1, 2016.
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identifying a category of the available concurrent
wireless communication service at the mobile device while
concurrently streaming the streaming communication content;
and
presenting notification of the available concurrent
wireless communication service without presenting the
concurrent wireless communication service itself on the display
of the mobile device while concurrently streaming the
streaming communication content,
wherein a presentation manner used in the presenting of
the notification is based on the identified category and
presentation manners corresponding to various categories of
concurrent wireless communication services stored at the
mobile device.
12. A method for wireless communication, including:
streaming communication content, by a user equipment
(UE);
receiving, from a network service, concurrent wireless
content, wherein the receiving is concurrent with the streaming;
identifying, by the UE, while concurrently streaming the
streaming communication content, a category of the concurrent
wireless content;
based on the identifying and manners of handling various
categories of concurrent wireless content established at the UE,
determining, by the UE, how to present the concurrent wireless
content on a display of the UE, wherein the identifying is
concurrent with streaming the streaming communication
content; and
based on the determining, presenting the concurrent
wireless content on the display of the UE.
App. Br. 13, 15 (Claims App.).
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The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
Howarter et al.
(“Howarter”)
Goodman et al.
(“Goodman”)
Reddy et al.
(“Reddy”)
Edwards et al.
(“Edwards”)
US 2010/0211970 Al
US 2011/0103770 Al
US 2012/0159533 Al
US 2014/0128047 Al
Aug. 19, 2010
May 5, 2011
June 21, 2012
May 8, 2014
(filed Dec. 4, 2012)
The Rejections on Appeal
Claims 1—9 and 11—20 stand rejected under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter. Final Act. 3; Ans. 3.
Claims 1, 2, 4, 7, 12, 13, 15, 18, 21, 22, 24, 27, 30, 31, 33, 36, 39, 40,
42, and 45 stand rejected under 35 U.S.C. § 103(a) as unpatentable over
Reddy, Goodman, and Edwards. Final Act. 4—9; Ans. 4—9.
Claims 3, 5, 6, 8, 9, 11, 14, 16, 17, 19, 20, 23, 25, 26, 28, 29, 32, 34,
35, 37, 38, 41, 43, 44, 46, and 47 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Reddy, Goodman, Edwards, and Howarter. Final
Act. 9-15; Ans. 9-15.
ANALYSIS
We have reviewed the rejections of claims 1—9 and 11—47 in light of
Appellants’ arguments that the Examiner erred. For the reasons explained
below, we disagree with Appellants’ assertions regarding Examiner error.
We concur with the Examiner’s conclusions concerning unpatentability
under § 101 and § 103(a). We adopt the Examiner’s findings and reasoning
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in the Final Office Action (Final Act. 2—15) and Answer (Ans. 3—17). We
add the following to address and emphasize specific findings and arguments.
The §101 Rejection of Claims 1—9 and 11—20
Introduction
The Patent Act defines patent-eligible subject matter broadly:
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. In Mayo Collaborative
Services v. Prometheus Laboratories, Inc., 566 U.S. 66, 70 (2012), and Alice
Corp. v. CLS Bank International, 134 S. Ct. 2347, 2354 (2014), the Supreme
Court explained that § 101 “contains an important implicit exception” for
laws of nature, natural phenomena, and abstract ideas. See Diamond v.
Diehr, 450 U.S. 175, 185 (1981). In Mayo and Alice, the Court set forth a
two-step analytical framework for evaluating patent-eligible subject matter:
First, “determine whether the claims at issue are directed to” a patent-
ineligible concept, such as an abstract idea. Alice, 134 S. Ct. at 2355. If so,
“consider the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements” add enough to
transform the “nature of the claim” into “significantly more” than a patent-
ineligible concept. Id. at 2355, 2357 (quoting Mayo, 566 U.S. at 79); see
Affinity Labs of Tex., LLCv. DIRECTV, LLC, 838 F.3d 1253, 1257
(Fed. Cir. 2016).
Step one in the Mayo!Alice framework involves looking at the “focus”
of the claims at issue and their “character as a whole.” Elec. Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Step two
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involves the search for an “inventive concept.” Alice, 134 S. Ct. at 2355;
Elec. Power Grp., 830 F.3d at 1353. An “inventive concept” requires more
than “well-understood, routine, conventional activity already engaged in” by
the relevant community. RapidLitig. Mgmt. Ltd. v. CellzDirect, Inc.,
827 F.3d 1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79-80).
Mayo!Alice Step One
Appellants assert that the Examiner erred in rejecting claim 1 because
it requires “physical and concrete actions” in handling “radio frequency
streams that overlap concurrently,” and the “operations related to those
streaming communications are, in fact, physical steps and are not an abstract
idea.” App. Br. 8; see Reply Br. 4—5. Appellants also assert that “a human
is incapable of perceiving concurrently overlapping radio frequency signals
in such a manner as the human would be able to even decode information
embedded in the modulation of the radio frequency signal,. . . discern the
embedded information and render that information in the visible spectrum.”
App. Br. 8; Reply Br. 4—5.
Appellants’ assertions do not persuade us of Examiner error because
claim 1 does not require “radio frequency streams.” As the Examiner
explains, claim 1 encompasses “a process that may involve a person simply
observing a presentation of some sort and receiving a ‘wireless’ notification
informing the person of an emergency.” Final Act. 2. For example,
semaphore communications, e.g., with signal flags, constitute “wireless”
communications. Further, signal lamps operated by humans, e.g., employing
Morse code, produce “wireless” communications. Cf. RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1326 (Fed. Cir. 2017) (discussing “Paul
Revere’s ‘one if by land, two if by sea’ signaling system”). Thus, the
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Examiner properly determines that claim 1 is directed to the abstract idea of
“receiving a notification/communication of a concurrent content while
presenting another piece of content to the user.” Final Act. 2, 3; Ans. 3,
15-16.
Even if claim 1 required “radio frequency streams,” that would not
alter its character as a whole. The inability of a human to accomplish each
limitation “does not alone confer patentability.” See FairWarning, IP, LLC
v. Iatric Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). “[N]ot every claim
that recites concrete, tangible components escapes the reach of the abstract-
idea inquiry.” In re TLI Commc ’ns LLC Patent Litig., 823 F.3d 607, 611
(Fed. Cir. 2016). Simply implementing an abstract idea using a “physical
machine” does not impart patent eligibility. See Mayo, 566 U.S. at 84. In
Alice, for example, “[a]ll of the claims [we]re implemented using a
computer.” 134 S. Ct. at 2353, 2360.
Appellants contend that “the Examiner incorrectly and improperly
describes the claims at a high level of abstraction” divorced from the claim
language. Reply Br. 4. We disagree. Claim 1 concerns the concept of
receiving content and a notification of additional content where the
notification’s display format depends on the category of additional content.
See Final Act. 2, 3; Ans. 3, 15—16.
Mayo!Alice Step Two
Appellants assert that the Examiner erred in rejecting claim 1 because
it includes “additional elements that amount to significantly more than the
alleged abstract idea” when “viewed individually or as an ordered
combination.” Reply Br. 5. In particular, Appellants contend that claim 1
parallels the “claims at issue in DDR Holdings” because it “provide [s] a
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solution necessarily rooted in computer technology in order to overcome a
problem specifically arising in the realm of computer networks.” Reply
Br. 6 (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014)); see App. Br. 8—9.
Appellants’ arguments do not persuade us of Examiner error because
the Examiner determines that claim 1 simply requires the “use of a mobile
device” as “a generic computing device to perform generic computer
functions.” Ans. 3,16; see Final Act. 3. Those generic computer functions
entail data receipt (“receiving . . . media content”), data display (“presenting
different types of [media] content”), and data manipulation (“identifying a
category of available alternate content”). Ans. 3, 16; see Final Act. 3. The
Examiner additionally determines that those generic computer functions “are
well-understood, routine and conventional activities previously known to the
industry.” Ans. 16.
Consistent with the Examiner’s determinations, the Federal Circuit
has ruled that claims covering data receipt, data display, and data
manipulation failed to satisfy § 101. See, e.g., Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1047, 1054—56 & n.6 (Fed. Cir. 2017);
RecogniCorp, 855 F.3d at 1324—25, 1327—28; Intellectual Ventures I LLC v.
Capital One Fin. Corp., 850 F.3d 1332, 1339-40 (Fed. Cir. 2017); Elec.
Power Grp., 830 F.3d at 1351—54.
The Federal Circuit’s decision in DDR Holdings does not help
Appellants. There, the court determined that certain claims satisfied
Mayo!Alice step two because “the claimed solution amounted] to an
inventive concept for resolving [a] particular Internet-centric problem.”
773 F.3d at 1257, 1259. The court explained that those claims specified
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“how interactions with the Internet are manipulated to yield a desired result
. . . that overrides the routine and conventional sequence of events ordinarily
triggered by the click of a hyperlink.” Id. at 1258. According to the court,
those claims recited a technological solution that overcame a particular
challenge unique to the Internet. Id. at 1257—59.
In contrast, claim 1 contains no similar inventive concept.
Implementing an abstract idea using conventional machines or devices
“add[s] nothing of substance” and, therefore, does not transform the nature
of the claim into a patent-eligible invention. See Alice, 134 S. Ct. at 2360;
Mayo, 566 U.S. at 84—85 (citing Gottschalkv. Benson, 409 U.S. 63, 64—65,
71 (1972)). As the Examiner properly reasons, claim 1 “implements] the
concept of receiving a notification during the presentation of media content
and presenting the notification based on the identified category of the
notification using a mobile device/computer specified at a high level of
generality with mere instructions to implement the abstract idea.” Ans. 16.
Hence, nothing transforms the nature of claim 1 into “significantly more”
than a patent-ineligible concept. See Final Act. 3; Ans. 3, 15—16.
To support their contention concerning DDR Holdings, Appellants
quote the “computer processor” limitation in ’572 patent claim 13 and call
claim 13 “representative” of the claims at issue there. Reply Br. 6 n.l; see
DDR Holdings, 773 F.3d at 1249-50 (quoting ’572 patent claim 13 and
’399 patent claim 19). But Appellants misplace their reliance on the
’572 patent. Because the Federal Circuit decided that the prior art
anticipated the ’572 patent under § 102(a), it did not consider § 101
eligibility issues for the ’572 patent. 773 F.3d at 1254—55.
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Appellants additionally argue that “the Examiner’s high level of
abstraction of the claims overlooks the benefit of’ the claimed invention, in
particular, “a new and elegant manner to begin concurrent communication
service or a notification thereof, which was not offered by prior art.” Reply
Br. 4, 6. Even if claim 1 covered an allegedly novel and advantageous
communication method, that would not suffice to confer patent eligibility.
“[U]nder the Mayo!Alice framework, a claim directed to a newly discovered
law of nature (or natural phenomenon or abstract idea) cannot rely on the
novelty of that discovery for the inventive concept necessary for patent
eligibility.” Genetic Techs. Ltd. v. MerialL.L.C., 818 F.3d 1369, 1376
(Fed. Cir. 2016). “[A] claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016). Similarly, a claim for a beneficial abstract idea is still an abstract
idea. SeeAriosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379-80 (Fed. Cir. 2015).
Summary for Independent Claim 1
For the reasons discussed above, Appellants’ arguments have not
persuaded us that the Examiner erred in rejecting claim 1 under § 101.
Hence, we sustain the rejection of claim 1.
Independent Claim 12 and
Dependent Claims 2-9,11, and 13-20
Appellants do not argue patentability separately for independent
claim 12 or dependent claims 2—9, 11, and 13—20. App. Br. 7—9; Reply
Br. 3—7. Because Appellants do not argue the claims separately, we sustain
the § 101 rejection of claims 2—9 and 11—20 for the same reasons as claim 1.
See 37 C.F.R. § 41.37(c)(l)(iv).
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The § 103(a) Rejection of Claims 1, 2, 4, 7, 12, 13,
15, 18, 21, 22, 24, 27, 30, 31, 33, 36, 39, 40, 42, and45
Independent Claim 1
Appellants argue that the Examiner erred in rejecting claim 1 because
Reddy does not disclose the following limitations in claim 1: “identifying a
category of the available concurrent wireless communication service at the
mobile device,” “presenting notification of the available concurrent wireless
communication service,” and “wherein a presentation manner used in the
presenting of the notification is based on the identified category.” App.
Br. 9-10; Reply Br. 7—8. Appellants assert that in Reddy an emergency alert
system (“EAS”) notification server—not a mobile device—identifies a
category of concurrent content and determines how to present the concurrent
content for display. See App. Br. 9; Reply Br. 7. In particular, Appellants
contend that in Reddy the EAS notification server “determine[s] whether the
[mobile] device is exempt from [or subject to] the EAS broadcast,” and the
EAS notification server makes that determination based on “the content
currently being played by the [mobile] device.” App. Br. 9 (quoting Reddy
11 80, 84) (emphasis omitted); see Reply Br. 7.
Appellants’ arguments do not persuade us of Examiner error because
Reddy discloses that either the EAS notification server or a mobile device
may determine whether an EAS notification applies to the content currently
played by the mobile device. See Final Act. 5—6 (citing Reddy H 46, 48, 75,
81-82, 84, 87, Fig. 9); Ans. 5-6, 16-17 (citing Reddy H 46, 48, 75, 81-82,
84, 86—87, Fig. 9). In particular, Reddy discloses different categories of
EAS notifications, such as AMBER alerts, weather-related alerts, and
“emergency broadcasts by the president.” Reddy H 3, 39, 41, 86—87. For
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an alert pertaining to a particular geographic region, e.g., a hurricane
warning, Reddy explains that in one embodiment the EAS notification server
determines whether to send an EAS notification to a mobile device based on
the device’s geographic location. Id. 29, 48, 78—81, Fig. 9. When a
mobile device in a targeted geographic region receives an EAS notification,
a playback application in the mobile device determines “whether the EAS
notification applies to” the content currently played by the mobile device.
Id. 11 13, 50, 82, 84, Fig. 10. The mobile device makes that determination
because “[s]ome video content, such as video content corresponding to live
television broadcasts, may be subject to interruption for EAS broadcasts,”
whereas “[ojther video content,. . . such as a pay-per view [sic] program,
may not be subject to interruption for EAS broadcasts.” Id. H 16, 48, 80,
84.
If the mobile device determines that an EAS notification applies to the
content currently played by the mobile device, the mobile device presents
the corresponding EAS content in different ways depending on the category
of EAS notification. Reddy H 29, 81, 86—87. For example, depending on
the category of EAS notification, the mobile device may (1) completely
interrupt the current content and present only the EAS content, (2) present
the EAS content alongside the current content in separate windows, or
(3) overlay the EAS content as text-based information while continuing to
play the current content. Id. H 81, 86—87. Hence, Reddy discloses a mobile
device identifying a category of concurrent content and determining how to
present the concurrent content for display based on the category of
concurrent content.
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Appellants contend that “determining whether to present a weather
alert at the bottom” or to completely interrupt current content for a
“President’s emergency broadcast cannot be equated to ‘presenting a
notification of the available concurrent wireless communication service,
wherein a presentation manner used in the presenting of the notification is
based on the identified category’” because “either the weather alert or [the]
President’s emergency broadcast is not a notification to notify that
concurrent communication wireless communication service is now available,
but is [the] broadcast itself.” Reply Br. 8 (emphasis omitted).
Appellants’ contention does not persuade us of Examiner error
because the Examiner relies on Goodman for presenting a notification of
concurrent content instead of the concurrent content itself. Final Act. 6—7;
Ans. 7. More specifically, Goodman discloses displaying a notification of
incoming content, e.g., a news feed, SMS message, or video call, while
simultaneously displaying the current video program. Goodman | 59,
Fig. 7A; see Final Act. 6—7; Ans. 7. As discussed above, Reddy teaches or
suggests identifying a category of concurrent content, i.e., an EAS
notification category, and presenting the concurrent content in different
ways based on the category of concurrent content. See Reddy ^fl[ 29, 81,
86-87.
“[T]he test for combining references is not what the individual
references themselves suggest but rather what the combination of disclosures
taken as a whole would suggest to one of ordinary skill in the art.” In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971); see In re Keller, 642 F.2d
413, 425 (CCPA 1981). Appellants do not address what the combination of
references “taken as a whole would suggest to one of ordinary skill in the
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art” and, therefore, have not established Examiner error. App. Br. 9—10;
Reply Br. 7—8.
For the reasons discussed above, Appellants’ arguments have not
persuaded us that the Examiner erred in rejecting claim 1 for obviousness
based on Reddy, Goodman, and Edwards. Hence, we sustain the § 103(a)
rejection of claim 1.
Independent Claims 12,21,30, and 39
Appellants assert that independent “[cjlaims 12, 21, 30, and 39
include similar feature[s] to those discussed” for claim 1 and “are allowable
for at least the reasons set forth” for claim 1. App. Br. 10; Reply Br. 8. As
discussed above, Appellants’ arguments regarding claim 1 are unpersuasive.
Further, unlike claim 1, claims 12, 21, 30, and 39 do not require presenting a
notification of concurrent content instead of the concurrent content itself.
App. Br. 15, 17—18, 20, 22 (Claims App.). Therefore, Appellants’
arguments have not persuaded us that the Examiner erred in rejecting
claims 12, 21, 30, and 39 for obviousness based on Reddy, Goodman, and
Edwards. See App. Br. 9—10; Reply Br. 7—8. Hence, we sustain the § 103(a)
rejection of claims 12, 21, 30, and 39.
Dependent Claims 2,4,7,13,15,
18,22,24,27,31, 33, 36,40,42, and 45
Appellants do not argue patentability separately for dependent
claims 2, 4, 7, 13, 15, 18, 22, 24, 27, 31, 33, 36, 40, 42, and 45. App. Br. 10;
Reply Br. 4—8. Because Appellants do not argue the claims separately, we
sustain the § 103(a) rejection of claims 2, 4, 7, 13, 15, 18, 22, 24, 27, 31, 33,
36, 40, 42, and 45 for the same reasons as the related independent claim.
See 37 C.F.R. § 41.37(c)(l)(iv).
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The § 103(a) Rejection of Claims 3, 5, 6, 8, 9, 11, 14, 16, 17,
19, 20, 23, 25, 26, 28, 29, 32, 34, 35, 37, 38, 41, 43, 44, 46, and47
Appellants contend that “the combination of Reddy, Goodman,
Edwards and Howarter does not teach or suggest each and every feature” in
dependent claims 3, 5, 6, 8, 9, 11, 14, 16, 17, 19, 20, 23, 25, 26, 28, 29, 32,
34, 35, 37, 38, 41, 43, 44, 46, and 47. App. Br. 11; Reply Br. 9. But
Appellants do not make substantive arguments for these dependent claims.
App. Br. 11; Reply Br. 9; see In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (explaining that the applicable rules “require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art”). Because Appellants do not argue the claims separately, we
sustain the § 103(a) rejection of claims 3, 5, 6, 8, 9, 11, 14, 16, 17, 19, 20,
23, 25, 26, 28, 29, 32, 34, 35, 37, 38, 41, 43, 44, 46, and 47 for the same
reasons as the related independent claim. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the Examiner’s decision rejecting claims 1—9 and 11—47.
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(f).
AFFIRMED
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