APPLE INC.

Patent Trials and Appeals Board

Jan 31, 2022

2020004833 (P.T.A.B. Jan. 31, 2022)

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. 14/871,913 09/30/2015 Chia Yiaw Chong P27617US1 / APPL:0609 6076 73576 7590 01/31/2022 APPLE INC. - Fletcher c/o Fletcher Yoder, PC P.O. Box 692289 Houston, TX 77269-2289 EXAMINER JAIN, RAJ K ART UNIT PAPER NUMBER 2411 NOTIFICATION DATE DELIVERY MODE 01/31/2022 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): docket@fyiplaw.com hill@fyiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHIA YIAW CHONG, HSIN-YUO LIU, MOHIT NARANG, PETER M. AGBOH, and SATHISH SHANBHAG KOTA Appeal 2020-004833 Application 14/871,913 Technology Center 2400 Before JEAN R. HOMERE, JAMES B. ARPIN, and PHILLIP A. BENNETT, Administrative Patent Judges. ARPIN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Pursuant to 37 C.F.R. § 41.52 (2011), Appellant1 files a Request for Rehearing (“Req. Reh’g”), dated January 10, 2022, seeking reconsideration of our Decision on Appeal, mailed November 12, 2021 (“Dec.”), in which we affirmed the Examiner’s rejections of claims 1, 11, and 21 under 35 U.S.C. § 103 as obvious over the combined teachings of Zicker and Sherman, alone or in combination with Landmark.2 Dec. 8-14. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party-in-interest as Apple Inc. Appeal Br. 2; see Dec. 1 n.2 (identifying the cited appeal documents). 2 Our Decision includes a table identifying the references upon which the Examiner relies. Dec. 3. Appeal 2020-004833 Application 14/871,913 2 For the reasons below, we deny Appellant’s request for rehearing. I. STATEMENT OF THE CASE The claimed methods and devices “relate[] generally to techniques for facilitating communication between two electronic devices and, more particularly to, techniques for reducing interference in communications that utilize a conducted radio frequency (RF) link to facilitate communication between electronic devices.” Spec. ¶ 1. Claims 1-4 and 6-21 are pending. Claims 1 and 11 are independent. Appeal Br. 15 (claim 1), 17 (claim 11) (Claims App.). Claim 21 depends directly from claim 1. Id. at 18. Claim 1, reproduced below with the disputed limitations emphasized, is illustrative. 1. A method for operating a conducted radio frequency (RF) link of an electronic device, the method comprising: determining, via processing circuitry of the electronic device, whether the electronic device having the conducted RF link has an inactive RF channel to use for transmitting an RF signal via an antenna of the electronic device, the conducted RF link, or a combination thereof, wherein the conducted RF link utilizes a conductor that facilitates communication between the electronic device and another electronic device; and if an inactive RF channel exists, using the inactive RF channel for RF signal generation and transmission over the conducted RF link, via the processing circuitry, wherein RF signal transmission over the conducted RF link provides a lower RF signal amplification relative to RF signal transmission on the antenna. Id. at 15 (emphasis added). Independent claim 11 recites limitations corresponding to the disputed limitations of claim 1. Appellant does not Appeal 2020-004833 Application 14/871,913 3 challenge our Decision with respect to any of claims 1, 11, and 21, separately. Therefore, we focus our analysis on independent claim 1. II. ANALYSIS OF REHEARING REQUEST Pursuant to 37 C.F.R. § 41.50(a)(1) (2011), “[t]he Board, in its decision, may affirm or reverse the decision of the examiner in whole or in part on the grounds and on the claims specified by the examiner.” (Emphasis added.) Under 37 C.F.R. § 41.52(a)(1) (2011), The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board. Arguments not raised, and Evidence not previously relied upon, pursuant to §§ 41.37, 41.41, or 41.47 are not permitted in the request for rehearing except as permitted by paragraphs (a)(2) through (a)(4) of this section. (Emphasis added.) Appellant requests rehearing of our Decision for two reasons. Req. Reh’g 2. First, “Appellant respectfully, but strongly, believes that the Board has not held the Examiner to his burden of proof, and instead, the Board appears to hold the Appellant to an unreasonable and improper burden of proof.” Id. Second, “both the Examiner and the Board appear to misapprehend the claims, as well as misapply both the law and the prior art in rejecting these claims.” Id. For the reasons given below, we deny the Request for Rehearing. A. Appellant Fails to Persuade Us the Examiner Errs First, Appellant contends: In the Decision on Appeal, the Board improperly shifted the burden of proof to Appellant even though the Examiner failed to produce a prima facie case of obviousness. Indeed, the Examiner did not provide any evidence whatsoever at any point during prosecution that a conducted link (or conductor) has been Appeal 2020-004833 Application 14/871,913 4 used to transmit radio frequency signals from one device to another. As such, the Examiner failed to make a prima facie case of obviousness and, thus, Appellant is under no obligation to submit evidence to show nonobviousness. Req. Reh’g 2-3 (footnote omitted). We disagree with Appellant. During patent examination and reexamination, the concept of prima facie obviousness establishes the framework for the obviousness determination and the burdens the parties face. Under this framework, the patent examiner must first set forth a prima facie case, supported by evidence, showing why the claims at issue would have been obvious in light of the prior art. Once the examiner sets out this prima facie case, the burden shifts to the patentee to provide evidence, in the prior art or beyond it, or argument sufficient to rebut the examiner’s evidence. The examiner then reaches the final determination on obviousness by weighing the evidence establishing the prima facie case with the rebuttal evidence. ACCO Brands Corp. v. Fellowes, Inc., 813 F.3d 1361, 1365-66 (Fed. Cir. 2016) (emphasis added; internal citations omitted); see MPEP 3 § 2142 (quoting ACCO Brands). In an appeal from the Examiner’s rejection, Appellant bears the burden of persuading us that the Examiner errs in the rejection. 37 C.F.R. § 41.37(c)(iv) (2011). Specifically, Appellant’s “arguments shall explain why the examiner erred as to each ground of rejection contested by appellant.” Id.; see MPEP § 1205.02 (“The arguments of appellant with respect to each ground of rejection and the basis therefor, including citations of statutes, regulations, authorities and parts of the Record relied on, should be presented in this section.”). For the reasons given below, we are persuaded the Examiner met the initial burden of establishing a prima facie 3 All MPEP citations refer to the 9th ed., Rev. 10.2019, Last Rev’d June 2020. Appeal 2020-004833 Application 14/871,913 5 case for obviousness. Thus, Appellant properly bears the burden of persuasion regarding reversible Examiner error. In particular, Appellant contends, “the Examiner did not provide any evidence whatsoever at any point during prosecution that a conducted link (or conductor) has been used to transmit radio frequency signals from one device to another.” Req. Reh’g 2-3. Again, we disagree with Appellant. As we explain in our Decision, the Examiner finds that Zicker and Sherman together teach or suggest, “the conducted RF link utilizes a conductor that facilitates communication between the electronic device and another electronic device.” Dec. 9-10 (quoting claim 1). Specifically, the Examiner finds Zicker teaches or suggests, “determining, via processing circuitry of the electronic device, whether the electronic device . . . has an inactive RF channel to use for transmitting an RF signal via an antenna of the electronic device.” Final Act. 5-6 (citing Zicker, 8:26-63, Figs. 1, 6). In particular, Zicker discloses, “[w]hen task 64 finds a channel from available channel list 62 that is not currently in use, a task 66 transmits a ‘Here I Am’ message over the channel.” Zicker, 8:49-51. Thus, the Examiner finds Zicker teaches or suggests determining via processing circuitry whether a device has an inactive, i.e., unused, RF channel to use for transmitting an RF signal. Dec. 10. The Examiner finds, however, Zicker does not teach or suggest a conducted RF link or “wherein the conducted RF link utilizes a conductor that facilitates communication between the electronic device and another electronic device,” as recited in claim 1. Final Act. 6. Nevertheless, the Examiner finds the combination of Zicker’s teachings with those of Sherman teaches or suggests this missing limitation and that a person of ordinary skill in the relevant art would have had reason to combine Sherman’s teachings Appeal 2020-004833 Application 14/871,913 6 with those of Zicker to achieve this limitation of claim 1. Id. at 6-7 (citing Sherman ¶¶ 216-220, Fig. 21); Adv. Act. 4; Ans. 21-22. In particular, Sherman discloses, “[t]he cellular phone, generally referenced 70, comprises a baseband processor or CPU 71 having analog and digital portions. The basic cellular link is provided by the RF transceiver 94 and related one or more antennas 96, 98.” Sherman ¶ 216 (emphases added); see Adv. Act. 7-9 (citing Spec. ¶¶ 33, 37, 42, 49). Further, Sherman discloses, “A USB interface connection 78 provides a serial link to a user’s PC or other device.” Id. ¶ 219; see also Spec. ¶ 3 (“Traditionally, such connections have been ‘hard-wired’, such that the devices had to be connected directly to one another by some sort of cabling or by cabling via a network interface. Such cabling is typically terminated by standardized connectors (e.g., USB, RS232, etc.) or by proprietary connectors, e.g. Apple’s Lightning® connector, etc.” (emphasis added)). Thus, the Examiner finds a person of ordinary skill in the relevant art would have understood Sherman to teach or suggest using a conducted RF link, e.g., a USB interface, for signal transmission in addition to or as an alternative to an antenna. Final Act. 6; Adv. Act. 5; Ans. 21-22. Further, Appellant contends, “a conducted link is not used for wireless communication.” Req. Reh’g 3 n.1. Specifically, Appellant contends, “[b]ecause the radio frequency signal is transmitted via a conductor as opposed to an air interface (e.g., wireless communication), it does not require the amount of amplification of a wireless signal, thus saving power compared to wireless communication.” Id. (emphasis added; citing Spec. ¶ 26, Fig. 1). However, as noted above, claim 1 recites, “determining, via processing circuitry of the electronic device, whether the electronic device having the conducted RF link has an inactive RF channel to use for Appeal 2020-004833 Application 14/871,913 7 transmitting an RF signal via an antenna of the electronic device, the conducted RF link, or a combination thereof.” Appeal Br. 15 (Claims App.) (emphasis added). Thus, Appellant’s contention is not consistent with the language of claim 1. Consequently, we are not persuaded that we improperly place the burden to show nonobviousness of claim 1, 11, and 21 on Appellant or that the Examiner fails to provide evidence “that a conducted link (or conductor) has been used to transmit radio frequency signals from one device to another.” Appellant simply fails to persuade us that the Examiner errs. B. The Claims Are Not Improperly Interpreted, And the Law and References Are Not Improperly Applied Appellant contends, “both the Examiner and the Board appear to misapprehend the claims, as well as misapply both the law and the prior art in rejecting these claims.” Req. Reh’g 2. For the reasons given below, we disagree with Appellant. First, Appellant contends, “[w]ith regard to Appellant’s position that Zicker only teaches wireless modes of operation, and not using a conductor to transmit radio frequency signals, the Board ruled against Appellant stating that ‘Appellant points to no portion of Zicker that excludes other modes of operation.’” Req. Reh’g 3 (emphasis added); see Reply Br. 4 (“[A]s discussed in the Appeal Brief, multiple radio communication channels that are used by either a cellular station or cordless base station include only wireless modes of operation, and not a conductor (e.g., utilizing a cable or surface contacts) that facilitates communication between the electronic device and another electronic device.” (emphasis added)). Appellant contends that “the fact that Zicker does not exclude other forms of communication means absolutely nothing, as there is still no evidence that Appeal 2020-004833 Application 14/871,913 8 such ‘other forms of communication’ might include the use of a conducted link to transmit radio frequency signals from one device to another.” Req. Reh’g 3. We disagree with Appellant. In our Decision, we note Appellant reads Zicker’s disclosure too narrowly. Reply Br. 4; Appeal Br. 7. As we explain in our Decision, Zicker’s failure to exclude other means of communication, together with Sherman’s teachings, described above, justifies the combination of their teachings to achieve the disputed limitation of claim 1. Dec. 9-11; see supra Section II.A. Appellant cannot show nonobviousness by attacking references individually when the rejection(s) is(are) based on combined teachings of the references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 426 (CCPA 1981). Second, Appellant contends, “the Board again ruled against Appellant stating that Appellant’s Wikipedia evidence was not reliable as to what type of signal one of ordinary skill in the art would understand a baseband processor to process and, even if it was considered, that Appellant failed to address the CPU of Sherman.” Req. Reh’g 4 (citing Dec. 11-12). Appellant asserts: The simple fact is that it is notoriously well known in the art that a baseband processor processes baseband signals and not modulated radio frequency signals, regardless of whether the year is 2019, 2007 or 1987. Indeed, this is the sort of fact that is so well known that it cannot reasonably be doubted. Req. Reh’g 4. Thus, Appellant contends, “the Board should have taken judicial notice that a baseband processor does not process radio frequency signals in overturning the Examiner's rejection.” Id. Nevertheless, Appellant’s naked assertion is insufficient to permit us to take official notice. As we note in our Decision, we do not recognize Appeal 2020-004833 Application 14/871,913 9 Wikipedia as a trustworthy source of information. Dec. 12. In order to take official notice, we must provide specific factual findings predicated on evidence supporting sound technical and scientific reasoning. See MPEP § 2144.03(B) (“If such [official] notice is taken, the basis for such reasoning must be set forth explicitly.”). On this record, we have no such supporting evidence and cannot make specific factual findings necessary for the desired official notice. Third, Appellant contends: As with the baseband processor, the Examiner also failed to provide any teaching or suggestion that any CPUs, much less the CPU in Sherman, process radio frequency signals. Indeed, the reason that Appellant’s did not further address the CPU is that CPUs process digital signals. Radio frequency signals by definition, and as certainly well known to those skilled in the art, are analog signals. Appellant is unaware of any CPUs that process radio frequency signals and the Examiner has not provided any evidence, from any cited references or otherwise, of a CPU processing, generating or transmitting radio frequency signals. Req. Reh’g 4 (emphasis added). Again, we disagree with Appellant. Initially, we note that Appellant did not raise this contention in its Appeal or Reply Briefs. Dec. 13. Therefore, Appellant cannot raise it for the first time in its Request for Rehearing. 37 C.F.R. § 41.52(a)(1) (2011) (quoted above). Nevertheless, although Appellant contends, “there is no teaching in Sherman that any ‘analog portion’ of the CPU processes any radio frequency signals or that the USB interface transmits any radio frequency signals to any other device” (Req. Reh’g 4), Sherman discloses, “[t]he cellular phone, generally referenced 70, comprises a baseband processor or CPU 71 having analog and digital portions. The basic cellular link is provided by the RF Appeal 2020-004833 Application 14/871,913 10 transceiver 94 and related one or more antennas 96, 98.” Sherman ¶ 216 (emphases added). Because CPU 71 has both “analog and digital portions,” and the cellular link is provided by an RF transceiver that transmits and receives RF signals, we are persuaded the Examiner shows that Sherman teaches or suggests the missing limitation of claim 1.4 Dec. 13. For the above reasons, we deny Appellant’s Request for Rehearing, and we sustain the Examiner’s rejections of claims 1, 11, and 21. DECISION SUMMARY We deny Appellant’s Request for Rehearing. Outcome of Decision on Rehearing: Claims 35 U.S.C. § Reference(s)/Basis Denied Granted 1, 21 103 Zicker, Sherman, Landmark 1, 21 11 103 Zicker, Sherman 11 Overall Outcome 1, 11, 21 Final Outcome of Appeal after Rehearing: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6, 11, 16 Nonstatutory Double Patenting, Chong 1, 6, 11, 16 1-4, 6, 7, 9, 10, 12-17, 19, 20, 21 103 Zicker, Sherman, Landmark 1, 21 2-4, 6, 7, 9, 10, 12- 17, 19, 20 11 103 Zicker, Sherman 11 8, 18 103 Zicker, Sherman, Landmark, Wirtanen 8, 18 4 Because the Examiner relies on Sherman’s teachings regarding CPU 71, even were we able to take the desired official notice of the nature of broadband processors, the outcome of this appeal seems unlikely to change. Appeal 2020-004833 Application 14/871,913 11 Overall Outcome 1, 11, 21 2-4, 6- 10, 12-20 TIME PERIOD FOR RESPONSE 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) (2013). DENIED