SYMBOL TECHNOLOGIES, INC.

Patent Trials and Appeals Board

May 27, 2020

14487194 - (D) (P.T.A.B. May. 27, 2020)

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.
14/487,194 09/16/2014 Russell E. Calvarese 102454US01 4204
126568 7590 05/27/2020
Zebra Technologies Corporation
3 Overlook Point
Lincolnshire, IL 60069
EXAMINER
ARMSTRONG, JONATHAN D
ART UNIT PAPER NUMBER
3645
NOTIFICATION DATE DELIVERY MODE
05/27/2020 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):
docketing@zebra.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RUSSELL E. CALVARESE, SEAN A. CONNOLLY,
JANINE E. DUBOIS, RICHARD J. LAVERY, and SEAN D. MARVEL
____________

Appeal 2019-003739
Application 14/487,1941
Technology Center 3600
____________

Before ANTON W. FETTING, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 21–40. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Symbol
Technologies, LLC, a wholly indirectly owned company of Zebra
Technologies Corporation. (Appeal Br. 2.)
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CLAIMED SUBJECT MATTER
Appellant’s invention relates to “provid[ing] an ultrasonic locationing
system co-existing with alternative audio functions without requiring
modifications to existing hardware in the ultrasonic locationing system or
mobile devices.” (Spec. ¶ 9.)
Claims 21 and 37 are the independent claims on appeal. Claim 21 is
illustrative. It recites (emphasis added):
21. A system for ultrasonic locationing, comprising:
a plurality of transmitters, each of the plurality of
transmitters operable to emit a first audio signal and a second
audio signal, the first audio signal being an ultrasonic burst
emitted at a first frequency, the second signal being emitted at a
second frequency that is different from the first frequency;
a controller communicatively coupled to each of the
plurality of transmitters, the controller operable to:
instruct each of the plurality of transmitters to emit
the first audio signal pursuant to a predefined scheduling
sequence;
determine an interference effect of the second audio
signal on the first audio signal;
based on the interference effect, determine an
interference parameter for the second audio signal, the
interference parameter causing an avoidance of an
interference between the first audio signal and the second
audio signal; and
instruct at least some of the plurality of transmitters
to emit the second audio signal pursuant to the
interference parameter; and
a mobile device communicatively coupled to the
controller, the mobile device being operable to receive the first
audio signal and communicate a receipt of the first audio signal
to the controller.

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REJECTIONS
Claims 21–40 are rejected under 35 U.S.C. § 112(b) as indefinite for
failing to particularly point out and distinctly claim the subject matter which
the joint inventors regard as the invention.
Claims 21–25 and 36–40 are rejected under 35 U.S.C. § 103 as
unpatentable over Zeitzew (US 2003/0142587 A1, pub. July 31, 2003) and
Viacheslav Filonenko, et al., Investigating Ultrasonic Positioning on Mobile
Phones, International Conference on Indoor Positioning and Indoor
Navigation (IPIN) (2010), http://arrow.dit.ie/dmccon (hereinafter
“Filonenko”).
Claim 34 is rejected under 35 U.S.C. § 103 as unpatentable over
Zeitzew, Filonenko, and William R. Hendee & E. Russell Ritenour, Medical
Imaging Physics 303–53 (4th ed. 2002) (hereinafter “Hendee”).
Claims 26–28 and 31–33 are rejected under 35 U.S.C. § 103 as
unpatentable over Zeitzew, Filonenko, and Breed (US 2005/0046584 A1,
pub. Mar. 3, 2005).
Claims 29 and 30 are rejected under 35 U.S.C. § 103 as unpatentable
over Zeitzew, Filonenko, and Hanson (US 2012/0173351 A1, pub.
July 5, 2012).
Claim 35 is rejected under 35 U.S.C. § 103 as unpatentable over
Zeitzew, Filonenko, and Cogan (US 2011/0060225 A1, pub. Mar. 10, 2011).

ANALYSIS
The § 112(b) rejection
The Examiner determines that there is insufficient antecedent basis for
the claim term “backend controller,” and, therefore, rejects claims 21–40
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under § 112(b). (Final Action 2.) After the Final Action, claim amendments
were filed and entered. (See Reply to Final Office Action entered
March 26, 2018, Advisory Action mailed May, 4, 2018.) The claim
amendments appear to address the rejection, at least in part, and perhaps in
full. But the Examiner did not withdraw the rejection in either the Advisory
Action or the Answer. The only reference to the rejection appears to be the
Examiner’s statement in the Advisory Action that “[t]he request for
reconsideration has been considered but does NOT place the application in
condition for allowance because: Regarding rejections other than minor
issues under 35 USC 112, at present the claims are directed toward a generic
trilateration/triangulation positioning system using ultrasonic and audio
signals.” (Advisory Action mailed May, 4, 2018.) In the Answer, the
Examiner states that “[n]o rejections are withdrawn at this time.”
(Answer 3.) Neither Appellant nor the Examiner refers to the § 112(b)
rejection in the Appeal Brief, Answer, or Reply Brief. Because the rejection
has not been withdrawn, and Appellant does not address the rejection, we
summarily affirm the § 112(b) rejection.

The § 103 rejection
Obviousness is a legal conclusion involving a determination of
underlying facts.
Under § 103, the scope and content of the prior art are to be
determined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill in the
pertinent art resolved. Against this background, the obviousness
or nonobviousness of the subject matter is determined. Such
secondary considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to give
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light to the circumstances surrounding the origin of the subject
matter sought to be patented.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
With regard to the scope and content of the prior art, the Examiner
finds that the limitation in claim 21 of “the first audio signal being an
ultrasonic burst emitted at a first frequency, the second signal being emitted
at a second frequency that is different from the first frequency,” is taught in
paragraph 46 of Zeitzew. (Final Action 3.) Appellant disagrees. (See
Appeal Br. 8–9, Reply Br. 1–2.)
Zeitzew discloses “[a] two-way ultrasonic positioning and navigation
system and method involv[ing] a plurality of objects each capable of
transmitting and receiving ultrasonic signals.” (Zeitzew, Abstract.) Zeitzew
further discloses that “[t]he system 100 includes a mobile platform P, and a
number of beacons B0, B1, . . . , and BN-1, where N is any integer larger than
one.” (Id. ¶ 22.) The Zeitzew system “performs two-way ultrasonic time-
of-flight measurements to position or track the mobile platform P within a
predetermined geographical range or service volume,” e.g., an area bounded
by the beacons. (Id.; see also id. at Fig. 1.)
Paragraph 46 of Zeitzew, relied on by the Examiner, discloses in
relevant part:
In one embodiment of the present invention, the
system 100 includes multiple beacons, and each ultrasonic signal
has only one intended recipient. In order to facilitate this mode
of operation, the ultrasonic signals are coded using, for example,
signal modulation. At least one unique code is associated with
each beacon and, in some cases, with the platform itself. Well-
known modulation techniques include frequency shift keying,
phase shift keying or pulse positioning (on-off keying). The
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ultrasonic transducers/transceivers and associated tuning
circuitry are configured to provide adequate bandwidth to
support the signal design. In a preferred embodiment, the
ultrasonic signal is coded with information using binary phase
shift keying (BPSK).

(Id. ¶ 46; see also Final Action 3, Answer 3–4.) The Examiner explains:
In other words, Zietzew’s [sic] intent is to code transmitted
signals so that they may be recognized only by each intended
recipient/receiver. This coding is achieved by using signal
modulation, and more specifically frequency shift keying.
Clearly a frequency shift involves different frequencies (e.g., 24
KHz might represent a binary 0, while 25 KHz represents a 1).

(Answer 4.)
Appellant argues that the Examiner’s
approach unreasonably broadly associates the claimed first audio
signal and second audio signal with elements of a single
modulated signal. In other words, the Answer argues that a
binary 0, transmitted at 24 KHz, may represent a first signal and
a binary 1, transmitted at 25 KHz, may represent a second signal.
This would be contrary to the approach taken by one of ordinary
skill in the art as a signal transmitted pursuant to FSK still
remains a signal and such a signal does not turn into two separate
signals.

(Reply Br. 1–2.)
We agree with the Examiner that in frequency shift keying (FSK), a
signal may be transmitted with more than one frequency, e.g., with one
frequency representing a binary 0 and another frequency representing a
binary 1. (See Answer 4.) However, claim 21 requires emitting a first audio
signal, determining an interference parameter, and emitting a second audio
signal pursuant to the interference parameter, where the frequency of the
second audio signal is different from the frequency of the first audio signal.
The Specification discloses that “the interference parameters define sound
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pressure level, frequency, reverberation time and timing requirements of
each alternate audio function.” (Spec ¶ 20.)
The Examiner finds that Zeitzew discloses “determin[ing] an
interference effect of the second audio signal on the first audio signal.”
(Final Action 4–5.) Specifically, the Examiner quotes the disclosure in
Zeitzew that “[w]hen multiple distinguishable ultrasonic signals are received
by the same beacon at approximately the same time, the beacon internally
computes a figure-of-merit for each received signal, determines which
received signal has the largest figure of merit, and responds only to the
received signal with the largest internally calculated figure-of-merit.” (Id.
(quoting Zeitzew ¶ 31).)
In other words, under the Examiner’s analysis, the first and second
audio signals would be included in the FSK encoded signal received by the
beacon. And the determining step would be performed on the received FSK
encoded signal, i.e., on a signal including both the first and second audio
signals. But in claim 21, the determining step precedes the emission of the
second audio signal (“based on the interference effect, determine an
interference parameter for the second audio signal, . . . and instruct at least
some of the plurality of transmitters to emit the second audio signal pursuant
to the interference parameter”). (See Claim 21.) The Examiner does not
sufficiently explain where Zeitzew teaches emitting the second audio signal,
i.e., a part of the FSK encoded signal, pursuant to the interference parameter.
Nor does the Examiner otherwise explain why it would have been obvious to
emit a first audio signal at a first frequency and a second audio signal at a
second frequency, where the second audio signal is emitted pursuant to the
interference parameter, in accordance with claim 21.
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The Examiner finds that “Filonenko (2010) teaches that conventional
mobile phone speakers may be used for ultrasound positioning using
frequencies in a range between 20 and 22 KHz (Abstract).” (Answer 4.)
But this merely teaches that the speakers have an output frequency range in
the ultrasonic (20–22 KHz). It does not cure the deficiency discussed above.
Therefore, we will reverse the § 103 rejection of claim 21.
Independent claim 37 contains similar language and for the same
reason we will reverse the § 103 rejection of claim 37 and dependent claims
22–25, 36, and 38–40. The additional references cited in rejecting the
remaining dependent claims do not cure the deficiency discussed above.
Therefore, we will reverse the § 103 rejections of dependent claims 26–35.

CONCLUSION
The Examiner’s rejection of claims 21–40 under 35 U.S.C. § 112(b) is
summarily affirmed.
The Examiner’s rejections of claims 21–40 under 35 U.S.C. § 103 are
reversed.
Specifically:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21–40 112(b) Indefiniteness 21–40
21–25, 36–40 103 Zeitzew, Filonenko 21–25, 36–
40
34 103 Zeitzew,
Filonenko, Hendee
34
26–28, 31–33 103 Zeitzew,
Filonenko, Breed
26–28, 31–
33
29, 30 103 Zeitzew,
Filonenko, Hanson
29, 30
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
35 103 Zeitzew,
Filonenko, Cogan
35
Overall Outcome 21–40

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED