Ex Parte Sun et al

Patent Trial and Appeal Board

Oct 3, 2016

13453549 (P.T.A.B. Oct. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/453,549 04/23/2012
74365 7590 10/05/2016
Slater Matsil, LLP
17950 Preston Road, Suite 1000
Dallas, TX 75252
FIRST NAMED INVENTOR
Sheng Sun
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.
HW 83413126US02 6582
EXAMINER
BANTHRONGSACK, JEFF
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
10/05/2016 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):
uspatent@huawei.com
docketing@slatermatsil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHENG SUN, JUNGHOON SUH,
OSAMA ABOUL-MAGD, and KWOK SHUM AU
Appeal2015-006326
Application 13/453,549
Technology Center 2400
Before JAMES R. HUGHES, LARRY J. HUME, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOW ARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-23, which constitute all of the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 Appellants identify Futurewei Technologies, Inc. as the real party in
interest. App. Br. 4. We take Official Notice of Huawei Technologies Co.
Ltd. recording on December 11, 2015 at reel 037274, frame 0611, an
assignment dated January 1, 2009-prior to the filing of the Appeal Brief.
Appellants are reminded of the requirement to "identify by name the real
party in interest at the time the appeal brief is filed." 3 7 C.F .R.
§ 41.37(c)(l)(i).
Appeal2015-006326
Application 13/453,549
THE INVENTION
The disclosed and claimed invention is directed to wireless
communication systems and methods "for generating hashed SSID/BSSID
information for use in a wireless network for fast recovery, such as one
specified in the IEEE 802.11 standards or specifications." Spec. i-f 2.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for generating a unique identifier for a wireless
access point within a wireless network, the method comprising:
combining, using a combining function, an ID of the
wireless access point with channel information of a
predetermined channel to generate combined ID/channel
information, the combined ID/channel information having a first
number of data bits;
applying a hashing function H to the combined ID/channel
information to generate a hashed ID, the hashed ID comprising a
second number of data bits and less than the first number of data
bits; and
transmitting the hashed ID \virelessly \vithin a physical
layer frame.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Belmonte
Mathews
Abraham
US 2010/0097935 Al Apr. 22, 2010
US 2010/0165910 Al July 1, 2010
US 2013/0223422 Al Aug. 29, 2013
(claiming benefit of a
provisional patent
application filed
Sept. 2, 2011)
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Application 13/453,549
REJECTIONS
Claims 1, 2, 5-8, 11-15, and 18-21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mathews and Belmonte. Final Act. 6-
14.
Claims 3, 4, 9, 10, 16, 17, 22, and 23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mathews, Belmonte, and Abraham.
Final Act. 14--18.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
arguments the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We disagree with Appellants' arguments with respect to claims 1-5, 7-11,
13-18, and 20, and we incorporate herein and adopt as our own: (1) the
findings and reasons relating to those claims set forth by the Examiner in the
action from which this appeal is taken (Final Act. 6-18), and (2) the reasons
and rebuttals set forth in the Examiner's Answer in response to Appellants'
arguments (Ans. 15-17). We incorporate such findings, reasons, and
rebuttals herein by reference unless otherwise noted. However, we are
persuaded by Appellants' arguments that the Examiner erred in rejecting
claims 6, 12, 19, and 21-23. We highlight and address specific findings,
arguments, and legal conclusions for emphasis as follows.
Claims 1-5 and 7-11
Appellants argue the Examiner erred in finding Mathews teaches
"combining, using a combining function, an ID of the wireless access point
with channel information of a predetermined channel to generate combined
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Application 13/453,549
ID/channel information," as recited in claims 1 and 7. App. Br. 13-16;
Reply Br. 2-3. Although Appellants concede Mathews teaches a signal
containing both the ID information of a wireless access point and channel
information, Appellants argue, because the information is not part of a single
expression and the information is not combined using a combining function
such as an exclusive-or function, Mathews does not teach "combining, using
a combining function, an ID of the wireless access point with channel
information of a predetermined channel to generate combined ID/channel
information," as recited in the claims. Reply Br. 2-3; accord App. Br. 14--
16.
The Examiner finds Mathews teaches "configuring to demodulate
signal to obtain a first identifier and the first channel associated with the
AP." Final Act. 6 (citing Mathews i-f 9) (emphasis omitted). The Examiner
finds this teaches "combining, using a combining function, an ID of the
wireless access point with channel information of a predetermined channel
to generate combined ID/channel information," as recited in claims 1 and 7.
Id.
During examination of a patent application, a claim is given its
broadest reasonable construction "in light of the specification, as it would be
interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations and quotations
omitted). There is a presumption that a claim term carries its ordinary and
customary meaning. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007). An applicant may rebut this presumption, however, by acting as
his own lexicographer, providing a definition of the term in the specification
with "reasonable clarity, deliberateness, and precision." See In re Paulsen,
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Application 13/453,549
30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of such a definition,
limitations are not to be read from the specification into the claims. In re
Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). "[A]lthough the
specification often describes very specific embodiments of the invention, we
have repeatedly warned against confining the claims to those
embodiments .... [C]laims may embrace 'different subject matter than is
illustrated in the specific embodiments in the specification.'" Phillips v.
AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en bane) (citations
omitted).
We agree with the Examiner's findings that Mathews describes a
combined access point identifier and channel information. The protocol
signal containing this information is demodulated and the identifier and
channel information are extracted therefrom. Ans. 15; Mathews i-f 9. We
further agree that Mathews at least suggests combining the access point
identifier and the channel information, in that Mathews describes the
protocol signal containing the combined information. Id.
We are not persuaded by Appellants' arguments the Examiner erred.
We conclude the broadest reasonable interpretation of "combining, using a
combining function" is broad enough to encompass combining the ID
information and channel into a single signal regardless of whether or not it is
a single expression. Furthermore, although the Specification discloses using
an exclusive-or function to obtain a single expression, the language of the
claim is not so limited. Appellants have not shown the Applicant acted as
his own lexicographer and we decline to read limitations from the
Specification into the claims. See Van Geuns, 988 F.2d at 1184. Instead, we
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Application 13/453,549
agree with the Examiner that a combining function is broad enough to
encompass creating the combined signal in Mathews.
Appellants further argue Mathews "fails to expressly describe that
(a) 'the AP' is specifically the AP's BSSID/SSID, (b) 'the channel' is
specific channel information, or ( c) the AP and the first channel are
combined in a manner to form a combined data structure - to which the hash
function His applied." App. Br. 16. However, claims 1 and 7 do not recite
using BSSID/SSIDs, specific channel information or a combined data
structure. Although those features are discussed in the Specification, we
decline to read limitations them into the claims. See Van Geuns, 988 F.2d at
1184. Because Appellants' arguments are not commensurate with the scope
of the claims, they are unpersuasive. See In re Self, 671 F.2d 1344, 1348
(CCP A 1982).
Appellants also argue in the Reply Brief the Examiner erred in finding
Belmonte teaches the "applying a hashing function" limitation of claims 1
and 7. Reply Br. 2--4. Because Appellants did not raise that argument in the
opening brief and good cause has not been shown why it should be
considered, we will not consider this argument. 37 C.F.R. §41.41(b )(2); Ex
parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative) ("[T]he
reply brief [is not] an opportunity to make arguments that could have been
made in the principal brief on appeal to rebut the Examiner's rejections, but
were not.").
Even assuming, arguendo, our reviewing court may consider the new
argument to have been timely made, Appellants are arguing the references
separately, when the rejection is for obviousness under§ 103. We note the
test for obviousness is what the combined teachings of the references would
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have suggested to one of ordinary skill in the art. See Jn re Kahn, 441 F.3d
977, 987-88 (Fed. Cir. 2006); In re Young, 927 F.2d 588, 591 (Fed. Cir.
1991); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Accordingly, we sustain the Examiner's rejections of claims 1 and 7,
along with dependent claims 2-5 and 8-11, which variously depend
therefrom and are not argued separately.
Claims 13-18 and 20
Appellants argue the Examiner erred in rejecting claim 13 for the
same reasons previously discussed for claims 1 and 7. App. Br. 16. For the
same reasons discussed above, we are not persuaded the Examiner erred.
In the Reply Brief, Appellants also argue Mathews does not teach or
suggest a "hashed ID uniquely identifying a remote access point device and
a channel of the remote access point device," as recited in claim 13 or the
additional limitations of claim 14. Reply Br. 6. Because Appellants did not
timely raise those arguments in the opening brief, and because good cause
has not been shown as to why it should now be considered, we will not
consider this argument. 37 C.F.R. § 41.41(b)(2); Borden, 93 USPQ2d at
1474.2
2 Although not dispositive to our Decision, and even assuming, arguendo,
our reviewing court would find the new argument to be timely submitted, as
a matter of claim interpretation, we conclude apparatus claims 13 and 14
include statements of intended use of the recited transceiver, i.e., "a
transceiver ... for receiving a hashed ID wirelessly within a physical layer
frame received at the antenna." "An intended use or purpose usually will
not limit the scope of the claim because such statements usually do no more
than define a context in which the invention operates." Boehringer
Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345
(Fed. Cir. 2003). Although "[s]uch statements often ... appear in the
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Application 13/453,549
Claims 6, 12, 19, and 21-23
Appellants argue the Examiner erred finding Mathews teaches "using
an exclusive-OR function to generate combined BSSID/channel data," as
recited in claim 21. Although Appellants agree with the Examiner that
Mathews teaches "'performing a cross channel repeating function at the
baseband level,"' (App. Br. 17 (quoting Mathews i-f 26); accord Reply Br. 3-
5), Appellants argue that it is not the same as combining an ID and channel
information with an exclusive-OR function as recited in claim 21.
We have reviewed Mathews at paragraph 26. See Final Act. 13
(mapping Mathews i-f 26 to disputed claim limitation); Ans. 9 (same). We
conclude the Examiner's finding is not supported by Mathews for the
reasons set forth by Appellants in the briefs. See App. Br. 17; Reply Br. 3-
5.
Because we agree with at least one of the dispositive arguments
advanced by Appellants regarding Examiner error in rejecting claim 21, we
need not reach the merits of Appellants' other arguments.
Accordingly, we are constrained on this record to reverse the
Examiner's rejection of claim 21, along with the rejections of claims 6, 12,
and 19, which recite a limitation commensurate in scope to the disputed
limitation discussed above, and dependent claims 22 and 23, which depend
from claim 21.
claim's preamble ... ," In re Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987), a
statement of intended use or purpose can appear elsewhere in a claim. Id.
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DECISION
For the above reasons, we affirm the Examiner's decisions rejecting
claims 1-5, 7-11, 13-18, and 20.
For the above reasons, we reverse the Examiner's decisions rejecting
claims 6, 12, 19, and 21-23.
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).
AFFIRMED-IN-PART
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