Ex Parte Vare et al

Patent Trial and Appeal Board

Oct 31, 2016

12262996 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/262,996 10/31/2008
72165 7590 11/02/2016
BANNER & WITCOFF, LTD
ATTORNEYS FOR CLIENT 004770
1100 13TH STREET
SUITE 1200
WASHINGTON, DC 20005-4051
FIRST NAMED INVENTOR
Jani Petteri V are
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.
004770.02076 7291
EXAMINER
NGUYEN, DINH
ART UNIT PAPER NUMBER
2645
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
PTO-72165@bannerwitcoff.com
Nokia.IPR@nokia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANI PETTER! V ARE and PEKKA T ALM OLA
Appeal2015-006339
Application 12/262,996
Technology Center 2600
Before ALLEN R. MacDONALD, HUNG H. BUI, and SHARON PENICK,
Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-006339
Application 12/262,996
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 28, 30, and 32. Final Act. 1. The remaining claims have been
deemed allowable. Id. We have jurisdiction under 35 U.S.C. § 6(b).
Exemplary Claim
Exemplary claim 32 under appeal reads as follows (emphasis and
brackets added):
32. A method comprising:
[(A)] sending.first reference coordinates for a first reference
cell and second reference coordinates for a second reference cell of a
broadcast system over a wireless channel;
[(B)] sending an indicator that indicates a selected reference
cell from among the first reference cell and the second reference cell
and
[(C)] sending current displacement coordinates of a current
cell and first neighbor displacement coordinates for a first neighbor
cell of the broadcast system over the wireless channel, wherein the
current displacement coordinates include a latitudinal and longitudinal
coordinate difference, or a distance and angle, between the current cell
and the selected reference cell, and wherein the first neighbor
displacement coordinates indicate a latitudinal and longitudinal
coordinate difference, or a distance and angle, between the first
neighbor cell and the selected reference cell.
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Appeal2015-006339
Application 12/262,996
Rejection
The Examiner rejected claims 28, 30, and 32 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Dent (US 5,404,376; issued
Apr. 4, 1995), Fujiwara et al. (US 2007/0217379 Al; published Sept. 20,
2007), and Komeluk et al. (US 2004/0224696 Al; published Nov. 11,
2004). 1
Appellants' Contentions2
1. Appellants contend that the Examiner erred in rejecting claim 32
under 35 U.S.C. § 103(a) because:
Dent does not disclose BO transmitting over the wireless channel
distance and bearing from alleged reference cells B 1, B2, or B3
to one of the other neighboring cells B4, B5, or B6 as [Appellants
contend] would be required under the Office's construction to
disclose the admittedly missing claim feature.
App. Br. 6.
2. Appellants contend that the Examiner erred in rejecting claim 32
under 35 U.S.C. § 103(a) because:
A person of ordinary skill in the art would not modify Dent to
include the Fujiwara reference station because the Fujiwara
reference station, which is specifically selected to perform the
retransmission function, would have no applicability to the Dent
system.
App. Br. 10.
1 Separate patentability is not argued for claims 28 and 32. Except for our
ultimate decision, these claims are not discussed further herein.
2 We reproduce only those contentions highlighted in the analysis below.
Appellants' remaining contentions are found at pages 4--15 of the Appeal
Brief and pages 2-9 of the Reply Brief.
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Appeal2015-006339
Application 12/262,996
3. Appellants also contend that the Examiner erred in rejecting claim
32 under 35 U.S.C. § 103(a) because:
[T]he claimed "selected reference cell" must be one of cells B 1,
B2, and B3 of Dent under the Office's construction. The Office
then changes this assertion in the Advisory Action to contend that
the "selected reference cell" is cell BO of Dent rather than one of
cells B 1, B2, and B3 as previously asserted. See Advisory Action
at p. 2, 11. 5-6.
As in initial matter, the Office, in the Advisory Action, did
not show what cells of the cited references are being interpreted
as the claim 28, 30, and 32 feature of "a second reference cell,"
"a current cell," and "a first neighbor cell" for the Office's new
interpretation of Dent as discussed above. As a result, Applicant
is left guessing which cells described in the cited references are
being used to teach these other claimed cells.
App. Br. 11.
Issues on Appeal
Did the Examiner err in rejecting claim 32 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments (Appeal Brief and Reply Brief) that the Examiner has erred. We
disagree with Appellants' conclusions. Except as noted below, 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 Examiner's Answer in response to Appellants' Appeal Brief. We
concur with the conclusions reached by the Examiner. We highlight the
following additional points.
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Appeal2015-006339
Application 12/262,996
As to Appellants' above contention 1, we disagree. Claim 32 is
directed to sending information in the form of "first reference coordinates,"
"second reference coordinates," "an indicator," "current displacement
coordinates," and "first neighbor displacement coordinates." Contrary to
Appellants' argument, the claim does not specify any particular cell
performs the sending. Rather, claim 32 merely recites the each piece of
information represents particular data:
"first reference coordinates" for a first reference cell;
"second reference coordinates" for a second reference cell;
"an indicator" that indicates a selected reference cell;
"current displacement coordinates" of a current cell include a
latitudinal and longitudinal coordinate difference, or a distance and angle,
between the current cell and the selected reference cell; and
"first neighbor displacement coordinates" for a first neighbor cell
indicating a latitudinal and longitudinal coordinate difference, or a distance
and angle, between the first neighbor cell and the selected reference cell. As
the Examiner finds, the combination of prior art discloses the transmission
of data corresponding to these pieces of information. Final Act. 3-5.
As to Appellants' above contention 2, we disagree. Appellants'
argument is not commensurate with the claim language as claim 32 only
sends the information and recites no applicability of the information.
As to Appellants' above contention 3, we disagree. Although
unstated, it is clear that the foundation of Appellants' contention is an
argument that the Examiner erred because the claimed "selected reference
cell," "a second reference cell," "a current cell," and "a first neighbor cell"
are functionally different than the prior art cells relied on by the Examiner.
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Appeal2015-006339
Application 12/262,996
Even if we accept Appellants' argument, we are not persuaded the Examiner
erred. As noted above, claim 3 2 is directed to sending information, and that
information being largely position and distance related characteristics
(known in the art as shown by the Examiner) that are independent of the
function of the object in question. As to the remaining data ("indicator"
information), the Examiner correctly points out that the prior art also teaches
it is known in the art (Fujiwara) to select a reference. In contrast to
Appellants' allowable claim 1 (Final Act. 1 ), claim 28 does not recite using
its claimed information to perform claim functions which are novel and
unobvious over the prior art. Rather, claim 28 merely sends known or
obvious information (without the information being received or used).
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 28, 30, and 32 as
being unpatentable under 35 U.S.C. § 103(a).
(2) Claims 28, 30, and 32 are not patentable.
DECISION
The Examiner's rejection of claims 28, 30, and 32 is affirmed.
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
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