Ex Parte Sato

Patent Trial and Appeal Board

Nov 24, 2014

11718206 (P.T.A.B. Nov. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SHINICHI SATO

Appeal 2012-0081161
Application 11/718,206
Technology Center 2600
____________________

Before JEAN R. HOMERE, CARLA M. KRIVAK, and
CATHERINE SHIANG, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 Appellant identifies Nihon Dempa Kogyo as the real party in interest.
App. Br. 2.
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–5 and 7–14. App. Br. 4. Claim 6 has been
canceled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appellant’s Invention
Appellant invented a spread spectrum communication method and
system for variably generating a spread code in accordance with the detected
distance between wireless devices involved in a communication session.
Spec. 3:8-12, Fig. 1.
Representative Claims
Independent claims 1 and 10 are representative. They read as follows:
1. A spread spectrum communication system, comprising:
a wireless unit comprising
a reception processing section which performs reception
processing on a signal sent from a counterpart wireless unit to
create reception data,
a variable spread code creating section which monitors
the reception processing in the reception processing section to
identify a distance between the wireless unit and the counterpart
wireless unit, and which creates a spread code variably in
accordance with the identified distance, and
a transmission processing section which performs
transmission processing including spreading processing that
uses the spread code created by the variable spread code
creating section,
wherein the variable spread code creating section creates
the spread code variably from one code chosen in accordance
with the distance out of multiple codes having different code
lengths, and from a fixed chip rate clock.

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10. A method for communicating between a remote
controller of a function of a vehicle and a master station
mounted to the vehicle, the method comprising:
the remote controller receiving a first signal from the
master station;
the remote controller producing reception data from the
first signal;
the remote controller calculating a signal level from the
reception data, wherein the signal level is related to a distance
between the remote controller and the master station;
the remote controller selecting, based on the signal level,
a spread code from a plurality of spread codes having different
code lengths; and
the remote controller performing spreading processing,
using the spread code, of a second signal to be transmitted to
the master station.

Prior Art Relied Upon
Baran US 4,455,651 June 19, 1984
King US 2001/0038328 A1 Nov. 8, 2001
Amezawa US 6,459,884 B1 Oct. 1, 2002
Sugaya US 2002/0172262 A1 Nov. 21, 2002
Gopalakrishnan US 6,859,446 B1 Feb. 22, 2005
Toskala US 6,975,615 B1 Dec. 13, 2005

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
1. Claims 1, 2, 4, 5, and 7–9 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Sugaya and King.
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2. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Sugaya, King, and
Amezawa.
3. Claims 10 and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Baran and King.
4. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Baran, King, and Toskala.
5. Claims 13 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Toskala, and
Gopalakrishnan.2

ANALYSIS
We consider Appellant’s arguments seriatim as they are presented in
the Appeal Brief, pages 11–28, and the Reply Brief, pages 1–5.3

Dispositive Issue 1: Under 35 U.S.C. § 103, did the Examiner err in
finding the combination of Sugaya and King teaches or suggests a wireless

2 The rejection of these dependent claims is improper because it fails to
include the base references previously relied upon to reject independent
claim 10 from which claims 13 and 14 depend. We consider this harmless
error by the Examiner.
3 Rather than reiterate the arguments of Appellant and the Examiner, we
refer to the Appeal Brief (filed January 13, 2012), the Reply Brief (filed
April 17, 2012) and the Answer (mailed March 2, 2012) for the respective
details. We have considered in this Decision only those arguments
Appellant actually raised in the Brief. Any other arguments Appellant could
have made but chose not to make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(vii).
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unit for creating a spread code variably in accordance with an identified
distance from another wireless unit which has sent a signal, as recited in
claim 1?
Appellant argues the proffered combination does not teach or suggest
the disputed limitations emphasized above. First, Appellant argues Sugaya’s
wireless reception unit does not perform the functions of Appellant’s
wireless unit. App. Br. 13. This argument is not persuasive because
Appellant’s claim does not require the reception unit to create the spread
code. Rather, Appellant’s claim only requires the wireless reception unit
perform reception processing of a signal received from a wireless
counterpart to create reception data. We agree with the Examiner that
because, as part of the wireless system, Sugaya’s receiver (Fig. 24, 1102)
receives data from other wireless systems, it teaches performing reception
processing of received data. Ans. 20–21. Second, Appellant argues
although Sugaya discloses a transmission unit that selects a spreading factor
based on its distance from receiving unit, Sugaya does not disclose a
reception unit that creates variable spread code. App. Br. 16–17, Reply Br.
1–3. As noted above, this argument is unavailing because it is not
commensurate with the scope of the claim. In particular, the claim does not
require the receiving unit to create the variable spread code. Rather, it
requires a separate transmission variable spread code creating section for
performing such functions. Accordingly, this argument is unpersuasive.
Third, Appellant argues although Sugaya discloses selecting a spreading
factor based on the distance between a sending unit and a receiving unit,
Sugaya never indicates that the distance is calculated. App. Br. 16. Further
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Appellant argues even if Sugaya’s teaching were combined with King’s
disclosure of calculating the distance between two wireless devices, such
combination would not be workable because it would increase the size of the
wireless device. App. Br. 17–18. Accordingly, Appellant argues there is
insufficient for combining King and Sugaya. Id. We do not agree with
Appellant. We find the Examiner’s conclusion that King’s disclosure of
calculating distance between wireless devices would complement Sugaya’s
system by allowing it to ascertain exactly how far away is another wireless
device that has transmitted a signal, is supported by a preponderance of the
evidence. Ans. 22–23.4 Additionally, we echo the Examiner’s finding that
because Sugaya discloses a wireless system containing a transmission unit
(Fig. 3, item 36) and a receiving unit (Fig. 24, item 1102), wherein a unit
within the wireless system creates a spread code in accordance with a
detected distance, it teaches the disputed limitations of claim 1 as argued by
Appellant. Accordingly, we find the proffered combination of Sugaya and
King properly supported by sufficient rationale on this record.
Hence, we find the cumulative weight and the totality of the evidence
on this record reasonably support the Examiner’s finding that the combined
disclosures of Sugaya and King would have taught or suggested the disputed
limitations. For at least the aforementioned reasons, we find Appellant has
not sustained the requisite burden on appeal of providing arguments or
evidence persuasive of error in the Examiner’s rejection of representative

4 Such a combination is an obvious combination of familiar elements
according to known methods that does no more than yield predictable
results, see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) — an
obvious improvement, see id. at 417.
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claim 1. It therefore follows that Appellant has not shown the Examiner
erred in finding that the combination of Sugaya and King renders claim 1
unpatentable.
Regarding the rejection of claim 3, Appellant argues because
Amezawa does not cure the alleged deficiencies of the Sugaya-King
combination, the Examiner’s rejection is in error. App. Br. 19. As discussed
above, we fail to find the alleged deficiencies in the Sugaya-King
combination. Accordingly, Appellant has not shown error in the Examiner’s
rejection of claim 3.
Because Appellant has not presented separate patentability arguments
or have reiterated substantially the same arguments as those previously
discussed for patentability of claim 1 above, claims 2, 4, 5, and 7–9 fall
therewith. See 37 C.F.R. § 41.37(c)(1)(vii).
Dispositive Issue 2: Under 35 U.S.C. § 103, did the Examiner err in
finding the combination of Baran and King teaches or suggests a remote
controller selecting a spread code based on the level of a received signal, as
recited in claim 10?
Appellant argues although Baran discloses a remote controller that
calculates the level of a received signal, Baran never uses the signal level in
selecting the spread code. App. Br. 21–24, Reply Br. 4–5. We do not agree
with Appellant. We find merit in the Examiner’s finding that Baran’s
disclosure of selecting the spreading code is made in accordance with the
identification of the signal level. Ans. 24. In particular, the portion of Baran
upon which the Examiner relies (col. 7, ll. 16–26) indicates that the
processing of spreading codes depends on the level of the signals. We find
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unpersuasive Appellant’s attempt to cast away this teaching as a mere
coincidence as opposed to a suggestion that the selection of the spreading
code is in fact made based on the identified signal level. Consequently, we
find no error in the Examiner’s obviousness rejection of claims 10 and 11 on
the record before us.
Regarding the rejection of claims 12–14, Appellant has presented
separate arguments to rebut the Examiner’s prima facie case of obviousness.
App. Br. 25–27. The Examiner has failed to respond to the separate rebuttal
arguments presented by Appellant for patentability of claims 12–14.
Consequently, we reverse the Examiner’s rejections of claims 12–14.

DECISION
We affirm the Examiner’s rejections of claims 1–5 and 7–11 as set
forth above.
We reverse the Examiner’s rejections of claims 12–14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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