12542223 (P.T.A.B. Aug. 25, 2016)

Ex Parte Zhang et al

Patent Trial and Appeal BoardAug 25, 2016

12542223 (P.T.A.B. Aug. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/542,223 08/17/2009 81310 7590 08/29/2016 Meyertons, Hood, Kivlin, Kowert & G (Apple) P.O. BOX 398 Austin, TX 78767-0398 FIRST NAMED INVENTOR Hang Zhang 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. 6888-35201 5074 EXAMINER KAO,JUTAI ART UNIT PAPER NUMBER 2473 NOTIFICATION DATE DELIVERY MODE 08/29/2016 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): patent_docketing@intprop.com ptomhkkg@gmail.com PTOL-90A (Rev. 04/07) U-NITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HANG ZHANG and SHALINI PERIY AL WAR Appeal2013-000024 Application 12/542,223 Technology Center 2400 Before JOHNNY A. KUMAR, JOHN A. EV ANS, and SCOTT B. HOWARD, Administrative Patent Judges. EV ANS, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of Claims 1-10. App. Br. 1. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. 2 1 The Appeal Brief identifies Rockstar Bidco LP, as the real party in interest. App. Br. 1. 2 Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed Apr. 6, 2012, "App. Br."), the Examiner's Answer (mailed June 19, 2012, "Ans."), the Final Action (mailed Oct. 19, 2011, "Final Act."), and the Specification (filed Aug. 17, 2009, "Spec.") for their respective details. Appeal2013-000024 Application 12/542,223 STATEMENT OF THE CASE3 The claims relate to a relay transceiver for multi-hop wireless communications. See Abstract. Invention Claims 1, 6, and 10 are independent. The claims have not been argued separately and, therefore, stand or fall together. 37 C.F.R. Â§ 41.37(c)(l)(iv). An understanding of the invention can be derived from a reading of exemplary Claim 1, which is reproduced below with some formatting and emphasis added: 1. A mobile terminal adapted to receive packets directly from a first transceiver and to receive packets indirectly from the first transceiver via a relay transceiver, the mobile terminal being further adapted to: detect a gap in a received packet flow; and upon detecting a gap in the received packet flow, wait a period of time for the gap to be filled before transmitting a control message indicating occurrence of the gap. 3 Because we write for the Real Party, familiarity with the background of this case is assumed and presented herein only to the extent necessary to provide context for the analysis that follows. See US. Ethernet Innovations, LLCv. Acer, Inc., 2015-1640, 2015-1641, 2016 WL 1622309, at *1 n.1 (Fed. Cir. April 25, 2016). 2 Appeal2013-000024 Application 12/542,223 References and Rejections The Examiner relies upon the prior art as follows: Minagawa US 6,023,774 Yamaguchi, et al. US 2003/0135784 Al Casaccia, et al. US 2003/0156599 Al Burke US 6,952,407 B2 The claims stand rejected as follows: Feb 8, 2000 July 1 7, 2003 Aug. 21, 2003 Oct. 4, 2005 1. Claim 14 stands rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Yamaguchi and Burke. Final Act. 3-9. 2. Claims 2 and 7 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Yamaguchi, Burke, and Minagawa. Final Act. 10- 11. 3. Claims 3 and 8 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Yamaguchi, Burke, and Casaccia. Final Act. 11. ANALYSIS We have reviewed the rejections of Claims 1-10 in light of Appellants' arguments that the Examiner erred. We consider Appellants' arguments seriatim, as they are presented in the Appeal Brief, pages 4--9. 4 The header of the rejection recites only Claim 1, but the rejection narrative refers to Claims 4--6, 9, and 10. Because Appellants traverse all claims in this group (see Br. 4) we find omission of the non-recited claims to be harmless error. 3 Appeal2013-000024 Application 12/542,223 CLAIMS 1, 4---6, 9, AND 10: OBVIOUSNESS OVERY AMAGUCHI AND BURKE Appellants argues these claims as a group and contend they are each patentable in view of the limitations of Claim 1. Br. 7. Motivation to combine references. The Examiner finds the claims are taught by the combination of Yamaguchi and Burke. Final Act. 7. Appellants contend that Yamaguchi teaches a method for preventing the dropping of packets. Br. 6. Whereas, in contrast, Burke teaches that when a packet is determined to be missing, the packet is dropped. Br. 7. Appellants argue that when a receiver terminal determines a data packet is missing, Yamaguchi teaches a NACK timer is set and when the timer expires, the receiver multicasts a NACK message. Yamaguchi teaches that upon the expiry of a second NACK timer, a second terminal multicasts the missing packet. Id. at 6-7. Thus, Yamaguchi teaches a method ensuring no packets are lost. Id. Appellants argue, in contrast, Burke teaches a gateway that monitors sequence numbers of received packets. The gateway maintains a "waiting time" table denoting the time the gateway must wait prior to declaring a late packet to be missing. Appellants argue Burke teaches that when the gateway determines the "waiting time" for that packet has elapsed, the late packet is declared missing and is "dropped." Id. The Examiner finds Claim 1 recites "detect a gap in a received packet flow ... " Ans. 14. The Examiner finds thus, whether or not packets are lost is irrelevant to the claimed invention. Id. at 15 (emphasis added). The Examiner finds Yamaguchi and Burke each teach a waiting period following detection of a missing packet and that any subsequent action is irrelevant to the claims. Id. 4 Appeal2013-000024 Application 12/542,223 Appellants do not reply. The Examiner finds "whether or not packets are lost is irrelevant to the claimed invention. Id. (emphasis added). However, that is not the legal standard. "1 f proposed modification vvould render the prior art invention being modified unsatisfactory for its intended purpose, then there is no suggestion or motivation to make the proposed rnodification. IvfPEP ;;;; 1 14.' ()1. ' 1 ( , , J. (__, Â·d 'I"'-~ .f, 'ld 900- .f, d t""'" 1Â· 9Â· 84'. Â· h . ~- t... Â· ~J, , v ,c1hng n re rcw on, Jj~, . ....., _ ( e . <.__,ff. Â· )(emp .as1s added)). l\1odifying [reference 1] to accommodate the spray nozzle of [reference 2] would render [reference 1] "inoperable for its intended purpose," and a person of ordinary skill would thus not have been motivated to pursue the combination. Plas-Pak Indust. v. Sulzer Mixpac AG, 600 Fed. App'x 755, 759--60 (Fed. Cir. 2015) (citing Gordon, 733 F.3d at 900; In re ICON Health & Fitness, Inc., 496 F.3d 1374 (Fed. Cir. 2007)). 'The legal test is not whether keeping or dropping packets is relevant to the claimed invention. The test is \.vhether the person of skill in the art would determine the teachings of Burke are compatible with the teachings of Yamaguchi. "If the proposed modification or combination of the prior art would change the principle of operation of the prior art invention being mod~fied, then the teachings of the references are not sufficient to render the claims prima facie obvious." l\1PEP Â§ 2143.01. Vl (citing In re Ratti, 270 F.2d 810, 813 (CCPA. 1959) (emphasis added). '"Such a change in a reference's 'principle of operation' is unlikely to motivate a person of ordinary skill to pursue a combination with that reference." Plas-Pak, 600 Fed. App'x at 759 (emphasis added). In the instant appeal, the principle of prior art Yamaguchii ensuring 1ate packets are not to be dropped, would be changed by the addition of Burke, which teaches that late packets are to be 5 Appeal2013-000024 Application 12/542,223 dropped. CLAIMS 2 AND 7: OBVIOUSNESS OVERY AMAGUCHI, BURKE, AND MINAGA WA Appellants contend that Minagawa fails to cure the deficiencies of Yamaguchi and Burke. Br. 8. The Examiner's Answer does not respond to this argument. See Ans. 16. CLAIMS 3 AND 8: OBVIOUSNESS OVERY AMAGUCHI, BURKE, AND CASACCIA Appellants contend that Casaccia fails to cure the deficiencies of Yamaguchi and Burke. Id. The Examiner's Answer does not respond to this argument. See Ans. 16. DECISION The rejection of Claims 1-10 under 35 U.S.C. Â§ 103 is REVERSED. REVERSED 6