10891867 (B.P.A.I. Jul. 10, 2012)

Ex Parte Seligmann et al

Board of Patent Appeals and InterferencesJul 10, 2012

10891867 (B.P.A.I. Jul. 10, 2012)

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. 10/891,867 07/15/2004 Doree Duncan Seligmann 501034-N-US-NP(AG) 2661 95158 7590 07/10/2012 Novak Druce + Quigg LLP - Avaya Inc. Laurian Building 2810 Laurian Lane, Suite 200 Dunkirk, MD 20754 EXAMINER EDOUARD, PATRICK NESTOR ART UNIT PAPER NUMBER 2617 MAIL DATE DELIVERY MODE 07/10/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DOREE DUNCAN SELIGMANN, MICHAEL J. SAMMON, and LYNNE SHAPIRO BROTMAN ____________ Appeal 2010-004331 Application 10/891,867 Technology Center 2600 ____________ Before ST. JOHN COURTENAY, III, GREGORY J. GONSALVES, and ANDREW J. DILLON, Administrative Patent Judges. GONSALVES, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004331 Application 10/891,867 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the rejection of claims 15, 17-18, 32, 33, and 36 (App. Br. 6). Claims 1-14, 16, 19-31, and 34-35 were cancelled (Id.). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The Invention Exemplary Claim 15 follows: 15. A method comprising: (a) receiving at a first wireless terminal a local command for said first wireless terminal that is submitted to said first wireless terminal by a first user; and (b) when there is a second wireless terminal that belongs to a second user and is within a distance D of said first wireless terminal, refusing to execute said local command; and otherwise, executing said local command at said first wireless terminal; wherein D is a positive number. The Examiner rejected claims 15, 17, and 32 under 35 U.S.C. § 103(a) as being unpatentable over Grube (U.S. 5,778,304) in view of Yoshikawa (U.S. 2002/0186121 A1) and Parvulescu (U.S. 6,687,497 B1) (Ans. 11-13). The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as being unpatentable over Grube in view of Yoshikawa, Parvulescu, and Walter (U.S. 2006/0014547 A1) (Ans. 13). The Examiner rejected claim 33 under 35 U.S.C. § 103(a) as being unpatentable over Bostrom (U.S. 2005/0009511 A1) in view of Yoshikawa and Parvulescu (Ans. 13-14). Appeal 2010-004331 Application 10/891,867 3 The Examiner rejected claim 36 under 35 U.S.C. § 103(a) as being unpatentable over Bostrom in view of Yoshikawa, Parvulescu, and Bellemore (U.S. 5,944,825) (Ans. 13-14). FACTUAL FINDINGS We adopt the Examiner’s factual findings as set forth in the Answer (Ans. 3, et seq.). ISSUE Appellants’ responses to the Examiner’s positions present the following issue: Did the Examiner err in ruling that the combination of Grube, Yoshikawa, and Parvulescu teaches or suggests executing a local command at a first wireless terminal only when there is no second wireless terminal nearby that belongs to a second user, as required by claim 15? ANALYSIS We disagree with Appellants’ conclusion regarding the Examiner’s rejection of the claims. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Answer (Ans. 3-22) in response to arguments made in Appellants’ Appeal Brief. We concur with the conclusion reached by the Examiner. We highlight and address certain findings and arguments below. Appellants contend that the Examiner erred in rejecting independent claim 15 because neither Grube, Yoshikawa, or Parvulescu teaches or Appeal 2010-004331 Application 10/891,867 4 suggests “executing a local command at a first wireless terminal when and only when there is no second wireless terminal nearby that belongs to another user” (App. Br. 11). Appellants argue that Grube “mentions absolutely nothing about a second wireless terminal” (Id.). Appellants further argue that Yoshikawa discloses a system in which a wireless terminal transmits a signal to gain access to a service device and “the service device decides whether to grant or deny access based on whether there are other terminals in the vicinity of the service device” (Id. (emphasis omitted)). Appellants also argue that Parvulescu operates in a manner that contradicts the portion of claim 15 that “states that a local command is always refused when there is a second nearby terminal belonging to another user” (Id. (emphasis omitted)). But Appellants cannot show nonobviousness by attacking each reference individually where the rejection is based on a combination of references. In re Keller, 642 F.2d 413 (CCPA 1981). And as explained by the Examiner, the claim limitation at issue is rendered obvious by a combination of elements from Grube, Yoshikawa, and Parvulescu (Ans. 16- 20). In particular, Grube teaches “the use of local commands at a first wireless terminal” (Id., citing Grube col. 3, ll. 46-50). In addition, Yoshikawa teaches “determining whether or not to execute the command based on the presence of a second wireless terminal that is associated with a second user, and within a distance D of said first wireless terminal” (Id. at 17, citing Yoshikawa, ¶¶ [0072]-[0075]), and “Parvulescu teaches refusing a local command at a mobile device that is within range of a second mobile device” (Id. at 19; Parvulescu col. 1, l. 66 – col. 2, l. 14 and col. 4, ll. 9-43). In other words, the claim limitation of executing a local command at a first Appeal 2010-004331 Application 10/891,867 5 wireless terminal only when there is no second wireless terminal nearby that belongs to another user is a combination of familiar elements from Grube, Yoshikawa, and Parvulescu that yields predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Accordingly, we find no error in the Examiner’s obviousness rejection of claim 15. We also find no error in the Examiner’s obviousness rejection of the other claims on appeal because Appellants either did not set forth any separate patentability arguments for them or set forth arguments that attempt to show nonobviousness by attacking the references individually, as they did for claim 1 (See App. Br. 13-14). DECISION We affirm the Examiner’s decision rejecting claims 15, 17, 18, 32, 33, and 36 as obvious. 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 peb