Ex Parte 7512095 et al

Patent Trial and Appeal BoardAug 24, 2017

90013498 (P.T.A.B. Aug. 24, 2017)

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. 90/013,498 04/29/2015 7512095 P257056.US.01 6156 20686 7590 08/24/2017 DORSEY & WHITNEY, LLP - Denver INTELLECTUAL PROPERTY DEPARTMENT 1400 Wewatta Street Suite 400 DENVER, CO 80202-5549 EXAMINER POKRZYWA, JOSEPH R ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 08/24/2017 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEALS BOARD ____________________ Ex parte SHIINE MICRO INC. and SOFTWARE RADIO TECHNOLOGY PLC, Appellants ____________________ Appeal 2017-007186 Reexamination Control No. 90/013,498 Patent 7,512,095 B2 Technology Center 3900 ____________________ Before JOHN A. JEFFERY, MARC S. HOFF, and DENISE M. POTHIER, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF CASE This proceeding arose out of a third party request (“Request”) by Lawrence D. Graham (“Requester”), for ex parte reexamination of U.S. Patent No. 7,512,095 (“the ’095 patent”) to Mark M. Johnson and Andreas Lesch, entitled Multiple Access Communication System for Moveable Objects, issued March 31, 2009. The real parties of interest are Shine Micro, Inc. and Software Radio Technology PLC Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 2 (“Appellants”). App. Br. 1.1 The ’095 patent concerns transmitting “geographical position data of one or more moving or stationary objects, to one or more other moving or stationary objects on the same communication frequency without interfering with any other users[.]” The ’095 patent 1:7–11. Examples of such objects are boats or ships (e.g., 20–25). Id. at 2:48–54, Fig. 1. “The present invention is a non-complex data communication system that listens on a given RF frequency and transmits [its] own position data only when there are no other user transmissions.” Id. at 1:22–25. Appellants appeal from the decision in the Final Rejection rejecting claims 1–15 and 24–26 of the ’095 patent. See App. Br. 3. Claims 16–23 have been canceled. Final Act. 1 (Box 2); App. Br. iii (Claims App’x). With the exception of the rejection of claim 26 under 35 U.S.C. § 305, the Examiner’s Answer maintains the rejections presented in the Final Action. Ans. 2–3. Appellants indicate that the ’095 patent is not subject to appeal or interference “[t]o the best of Appellant’s knowledge.” App. Br. 2. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. An oral hearing was held July 26, 2017. The transcript has been made of record. We AFFIRM. 1 Throughout this opinion, we refer to (1) the Final Action (Final Act.) mailed May 4, 2016, (2) the Corrected Appeal Brief (App. Br.) filed November 3, 2016, (3) the Examiner’s Answer (Ans.) mailed December 22, 2016, and (4) the Reply Brief (Reply Br.) filed February 22, 2017. Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 3 Independent claims 1 and 2 read as follows: 1. A communication system comprising several moving participants (20, 21, 22, 23, 24, 25) that are each equipped with a communication device (10) for exchanging information having a transmitter, transmissions from said transmitter, and receiver (1, 2) characterized by a method, for detecting free transmission periods (8) which control the transmissions of the transmitter (1); means for detecting transmission periods by a transmission detector (8), its input (15) being connected to a first output (16) of the receiver (2) and its output (14) being connected with a first input (13) of the transmitter (1); the transmission detector (8) scanning, within a predictable window of time, for the appearance of transmissions initiated by other participants with the receiver (2) and releases the transmitter (1) for communicating navigational data if such transmissions do not appear. 2. A communication system on the same RF frequency with several moving participants (20, 21, 22, 23, 24, 25) that are each equipped with a communication device (10) for exchanging information having a transmitter, transmissions from said transmitter, and receiver (1, 2) characterized by a method, for detecting free transmission periods (8) which control the transmissions of the transmitter (1); a second input (11) of the transmitter (1), having a time basis (5) for generating a transmission frame characterized in that methods for synchronizing the time basis (5) of each moving participant (20, 21, 22, 23, 24 and 25) only depends on a minimum of one relevant participant within the receiving range; and the time basis (5) having a steering input (43) which drives the transmission frame within a moveable time period and that the means for synchronizing the time basis (5) are provided by a synchronization unit (6) which has an output(40) connected to the steering input (43) of the time basis (5) and a second input (18) of the receiver (2) connected to the input (19) of the synchronization unit (6), so that a transmission signal is in direct timing relation to the transmission of one or more other participants. App. Br. i (Claims App’x). Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 4 A. Prior Art Relied Upon The Examiner relies on the following as evidence of unpatentability: Fraughton US 5,153,836 Oct. 6, 1992 Lans US 5,506,587 Apr. 9, 1996 Fulthrop US 5,737,330 Apr. 7, 1998 ITU (International Telecommunications Union) Radiocommunication Assembly, Recommendation ITU-R M.1371-1* – Technical Characteristics for a Universal Shipborne Automatic Identification System Using Time Division Multiple Access in the VHF Maritime Mobile Band 1–98 (1998-2001) (“ITU-R M.1371-1”). B. The Rejections The Examiner maintains the following rejections: Reference(s) Basis Claims Answer Fraughton § 102(b) 1, 15, and 26 Final Act. 4–12; Ans. 2 Fulthrop § 102(b) 1, 15, and 24–26 Final Act. 12–20; Ans. 2 Lans § 102(b) 2–5 Final Act. 20–22; Ans. 2 ITU-R M.1371-1 § 102(b) 6–14 Final Act. 22–25; Ans. 2 II. ISSUES ON APPEAL We review the appealed rejections for error based upon the issues identified by Owner in its appeal brief, and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). “Any arguments or Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 5 authorities not included in the briefs permitted under this section or [37 C.F.R.] §§ 41.68 and 41.71 will be refused consideration by the Board, unless good cause is shown.” 37 C.F.R. § 41.67(c)(1)(vii). Based on the arguments presented, Appellants raise the following issues. Did the Examiner err in determining that: (A) Fraughton or (B) Fulthrop discloses 1. “means for detecting transmission periods by a transmission detector” as recited in claims 1, 15, and 26? 2. “the transmission detector . . . scanning within a predictable window of time, for the appearance of transmissions initiated by other participants” as recited in claim 1 and similarly recited in claims 15 and 26? 3. “other participants using a higher order protocol” as recited in claim 15? 4. “the transmission periods are a plurality of slots of a time division multiple access transmission method” as recited in claim 24? 5. “the predictable windows are periods of time within each slot of the plurality of slots” as recited in claim 25? (C) Lans discloses “a time basis . . . for generating transmission frame characterized in that methods for synchronizing the time basis . . . of each moving participant . . . only depends on a minimum of one relevant participant within the receiving range” as recited in claim 2? (D) ITU-R M.1371-1 discloses “the own transmission timing correction is a function of weighting different predetermined groups and numbers of participants in those groups” as recited in claim 6? Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 6 III. ANALYSIS Claim Construction Prior to discussing the § 102 rejections, we address some of the disputed terms in claims 1, 15, and 24. For purposes of discussion, we select independent claim 1 as representative. We address limitations concerning only claim 15 separately. “[M]eans for detecting transmission periods by a transmission detector” recited in claims 1, 15, and 26 Appellants state that the “means for detecting” recitation in claim 1 has not been interpreted as including means-plus-function limitations under 35 U.S.C. § 112(f) or sixth paragraph (pre-AIA). App. Br. 8. Appellants state “to the extent this recitation contains a means plus function recitation . . . an example of the structure, material, or acts described in the specification includes the transmission detector.” Id. (citing the ’095 patent 3:16–18). The Examiner makes no statements regarding whether or not the above-quoted recitation invokes 35 U.S.C. § 112(f) or sixth paragraph (pre-AIA), but discusses transmission detector 28 along with other citations in the ’095 patent in connection with the recited “means.” Ans. 4–5. When a claim uses “means for” language— as is in the instant patent— there is a presumption that the claim invokes 35 U.S.C. § 112, sixth paragraph. See Biomedino LLC v. Waters Techs. Corp., 490 F.3d 946, 950 (Fed. Cir. 2007). “‘This presumption can be rebutted when the claim, in addition to the functional language, recites structure sufficient to perform the claimed function in its entirety.’” Id. (quoting Altiris, Inc. v. Symnantec Corp., 318 F.3d 1363, 1375 (Fed. Cir. 2003)). Although claim 1 further recites “a transmission detector” and how Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 7 the detector is connected to the receiver and transmitter (App. Br. i (Claims App’x)), we determine for the following reasons that the additional recitation to the transmission detector itself does not recite sufficient structure to perform the function of detecting transmission periods or to rebut the presumption that 35 U.S.C. § 112(f) or sixth paragraph (pre-AIA) has been invoked. Turning to Figure 3 of the ’095 patent, transmission detector 28 is shown as a box. The ’095 patent, Fig. 3. No details of what are inside the detector are provided in the drawings. See id., Figs. 1–3. The description in the ’095 patent provides little assistance. The Specification states receiver 2 is connected to positioning unit 4 and transmission detector 28 but does not further discuss detector 28. Id. at 3:16–18, Fig. 3, cited in App. Br. 8. The disclosure also states that a device (e.g., 10) includes “a unit for detecting free transmission time,” which is similarly recited in claim 1, but does not discuss the unit detects transmission periods or how detection happens. The ’095 patent 2:63–65 (emphasis added). Nor does the record provide adequate evidence of what exactly one skilled in the art would have understood is the structure of such a transmission detector for detecting transmission periods. On the other hand, the Specification of the ’095 patent states “[i]f there is energy in the detection period recognized, the channel is occupied.” The ’095 patent 1:44–45, quoted in Ans. 5. As such, the disclosure describes a technique of sensing “energy” in order to detect the transmission period. Yet, as stated above, the record does not describe sufficiently the transmission detector’s structure that performs the recited function of “detecting transmission periods.” We therefore presume that the recited “means for detecting transmission periods” invokes 35 U.S.C. § 112(f) or sixth paragraph (pre-AIA). Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 8 Means-plus-function limitations are construed to cover the corresponding structure, material, or acts described in the specification and its equivalents. In re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en banc). For computer- implemented, means-plus-function limitations reciting a function that cannot be performed by a general purpose computer without special programming, the disclosed structure must include the algorithm for performing the claimed function. Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1312 (Fed. Cir. 2012) (citing Aristocrat Techs. Austl. Pty Ltd v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008)). Based on the above disclosure in the ’095 patent and as explained further below, we determine the structure, material, or acts and its equivalents corresponding to the recited “means for detecting transmission periods” in the disclosure include hardware (e.g., circuitry) or a specially-programmed algorithm that detects a time or interval when transmissions occur. Appellants contend that the term “transmission periods” recited within this means-plus-function recitation should be construed to mean “‘time lengths or time segments for the transmission of data.’” App. Br. 17 (underlining omitted). To support this contention, Appellants point to various passages in the ’095 patent. Id. at 18–19 (citing the ’095 patent 3:40–45, 50–51, 62–66, 4:2–3). The Examiner concurs with Appellants’ understanding of a transmission period (Ans. 3), but adds that this period is “a ‘predefined time period (a so called Detection Period)’. [sic]” Ans. 5. The Examiner also states the examples of using an allotted time slot or a frame as transmission periods in the ’095 patent will not be imported into the recitation “transmission period” in the ’095 patent (id. at 3–4 (citing the ’095 patent 3:50–51, 4:2–3)). The Examiner cites to other passages in the ’095 patent regarding the discussed “detection period” to support the conclusion that the Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 9 “transmission period” is a predefined time period. Ans. 4–5 (citing the ’095 patent 1:36–50, 3:9–48) (emphasis omitted). We and Appellants agree with the Examiner that recited “transmission periods” in claim 1 should not be construed to import particular examples from the ’095 patent. Reply Br. 1. Thus, although the passages in the ’095 patent discussed by both the Examiner and Appellants related to “transmission periods” may inform our construction of the recited term, we decline to import such embodiments into claim 1, which fails to recite a specific transmission period (e.g., slots or frames). Ans. 3–4. We further agree with the Examiner and adopt the Examiner’s finding related to claim 1 containing a broad recitation to “transmission periods,” unlike claim 24, which further specifies the transmission periods. Ans. 4. However, we disagree with the Examiner that the recited “transmission periods” are predefined. Ans. 5. That is, the discussed “Detection Period” in the ’095 patent (the ’095 patent 1:26), which is a predefined time period, is the period that the invention listens for traffic— not the period the traffic is transmitted. The ’095 patent 1:25–26, 41, 44–45. We also disagree with Appellants that the recited “transmission periods” require “determin[ing] a particular point in time at which a transmission occurs (e.g., begins and/or ends).” App. Br. 24. As broadly as recited and although a transmission period has a beginning and an end, the limitation “detecting transmission periods” in light of the disclosure does not require any specific point (e.g., beginning or end of the transmission) that the transmission is detected. Rather, a transmission period, and thus “transmission periods” in claim 1 are therefore times or intervals, but not particular or predefined times or intervals when traffic is transmitting. Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 10 Accordingly, the recited “means for detecting transmission periods” is construed to include hardware (e.g., circuitry) or an algorithm that detects energy of transmitted traffic for a time or interval. “[P]redictable window of time” in claims 1, 15, and 26 Appellants argue that the recitation “predictable window of time” recited in claim 1 should be construed as “a window of time whose occurrence can be predicted.” App. Br. 19 (underlining omitted). Appellants further state the phrase “predictable window of time” and “transmission periods” are distinct terms and have different meanings. Id. Appellants provide a definition of the plain and ordinary meaning of “predict” to include “to declare or indicate in advance; esp.: foretell on the basis of observation, experience, or scientific reason.” Id. (citing MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 918 (10th ed., Merriam-Webster 1997)). Appellants provide examples of predictable windows in the ’095 patent to include (1) slots having a fixed period, (2) using time division multiple access (TDMA) transmission techniques, (3) claims 3, 8, and 13 (id. at 20), and (4) the “predefined period of time (a so called Detection Period)” (id. (citing the ’095 patent 1:23–31, 3:32–33, 40–43, 51–54)). The Examiner agrees with the definition provided by Appellants, indicating the examples in the disclosure are not imported into the claim. Ans. 5; see also Reply Br. 1. We agree the examples in the disclosure should not be imported into claim 1. As such, even though the ’095 patent discusses the invention “listens for a predefined time period (a so called Detection Period)” (the ’095 patent 1:25–26, quoted in Ans. 4), a predictable window of time, which is known in advance or beforehand, is not limited to a predefined period of time having a specific numerical value. For example, scanning within a predictable window of time Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 11 includes scanning within a time window after a specific event (e.g., after receiving a message), which is known to occur in advance but has no predefined numerical value. We further note that claim 1 recites “within a predictable window of time” (App. Br. i (Claims App’x) (emphasis added)), which merely requires that “the transmission detector scan[s]” within this time window but does not require scanning for the entire “predictable window of time.” Accordingly, the “predictable window of time” includes a time period or a time window known beforehand or in advance, such as time window that occurs based on an event. “[A] higher order protocol” in claim 15 Regarding claim 15, Appellants argue that the recitation “transmission protocol” is “‘a set of rules governing the format of transmitted messages.’” App. Br. 21 (underlining omitted). Appellants argue that this “protocol, in the sense of radio frequency transmissions, is commonly understood to include more than simply the transmission frequency.” Id. (citing the ’095 patent 1:53, 3:62–4:28, 4:25, 7:7–16). Appellants assert that the recitation “higher order protocol implies that there are at least two kinds of protocols: a higher order and a lower order protocol” and “[t]he orders of the protocol generally refer[s] to the complexity.” App. Br. 26. As the Examiner indicates, the phrase “a higher order protocol”— not a transmission protocol— is recited in claim 15. Ans. 6. Even so, the recitation “the transmission detector scanning . . . for the appearance of transmissions initiated by other participants using a higher order protocol with the receiver” implies that some participants transmit data using a higher order protocol than other participants. App. Br. iii (Claims App’x). The ’095 patent also supports this Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 12 position. See the ’095 patent 1:16 (“different data transmission protocol”), 1:50 (“other communication protocols”), 2:7–8 (“any other communication protocol”), 2:30–32 (“to transmit navigation information to other users on the same frequency . . . including the use of other protocols on the same channel”), 3:3–5 (“two different protocols including Groups I and II that can co-exist with the present invention and still allow the transmission of any type of data among all users”), 4:1–2 (“other transmissions belonging to a different protocol”), 4:9–10 (“the other protocol communication systems”), and Abstract (“other protocols transmitting). As such, the recitation of “higher order protocol” as broadly as recited includes a protocol or rule set used in transmitting information. The Examiner further states the examples in the disclosure of the protocols used should not be imported into claim 15. Ans. 6. We agree. The discussion of using RATDMA (random access TDMA) ALOHA or other protocols that use allotted slots are just examples in the ’095 patent and are not particularly recited in claim 15. The ’095 patent 1:53, 3:51–54, 4:24–28. The Examiner discusses column 3 of the ’095 patent, which uses the phrases “higher order protocol” and “higher protocol activity” (the ’095 patent 3:40, 52) in the context of detecting and determining whether to transmit packets. Ans. 6 (citing the ’095 patent 3:36–54). But, these discussions will not be imported into the claims. On the other hand, the Examiner states in light of the disclosure the phrase “higher order protocol” is viewed as “a protocol that has more functionality (such as a protocol that uses ‘slot numbers, frames, or slot management’).” Ans. 7. This is similar to Appellants’ position which describes a higher order protocol as introducing more complexity. See App. Br. 26. We agree the phrase, “higher order protocol,” implies more functionality or complexity relative to some other Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 13 protocol. On that note, the ’095 patent discusses a system that is assigned a radio frequency that can include “other protocol transmissions.” The ’095 patent 3:37– 38. The ’095 patent further discusses users (e.g., Groups I and II) having different transmission protocols can use the same communication on the same frequency in this invention. The ’095 patent 1:12–16, 3:1–8, Fig. 2. Figure 2 is further described as a “diagram of moveable objects including different classes of priority and weighting.” The ’095 patent 2:42–43, Fig. 2. Accordingly, the recitation of “other participants using a higher order protocol” includes participants using a protocol (e.g., a set of rules) for transmission that has more priority, weighting, functionality, or complexity than other participants. A. Anticipation Rejection Based on Fraughton Claims 1, 15, and 24 are rejected under 35 U.S.C. § 102(b) as being anticipated by Fraughton. Final Act. 4–12; Ans. 2. 1. “[M]eans for detecting transmission period” Appellants contend that Fraughton does not disclose the recited “‘means for detecting transmission periods’” and the recited transmission detector “‘scanning, within a predictable window of time, for the appearance of transmissions.’” App. Br. 22. Appellants contend “Fraughton cannot, and do not, detect a transmission period,” because “as recited in claim 1, the system should be able to determine a particular point in time at which a transmission period occurs (e.g., begins and/or ends).” App. Br. 24. In Appellants’ view, “Fraughton merely detect[s] the presence (or lack thereof) of traffic on a channel. . . . There is no disclosure of detecting any type of structured time lengths or segments in the open channel of Fraughton.” Id. (citing Fraughton 4:66–5:3). Appellants contend the Examiner is Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 14 disregarding the term “period” from the recitation “transmission period,” which according to Appellants, specifies some restriction on transmission. App. Br. 24. The same or similar arguments are presented for independent claims 15 and 26. App. Br. 26–27. The Examiner states the recited “means” is disclosed in Fraughton. Final Act. 4 (citing Fraughton 10:21–32, 18:59–19:59, Figs. 1A (steps 14–16), 3–5. The Examiner explains that Fraughton waits a random or fixed period of time based on the registration number, random generator, or some other means before transmitting. Ans. 9 (citing Fraughton 10:21–32, 13:20–46, 14:7–23, 17:60–68). The Examiner also cites to steps 14 through 16 in Figure 1A and column 10, lines 21 through 32 to teach the recited “means for detecting transmission periods by a transmission detector.” Final Act. 4 (citing Fraughton 10:21–32, Fig. 1A); see also Ans. 9 (citing Fraughton 10:21–32). As discussed above, the recitation “means for detecting transmission periods” is construed to include structure, material, or acts and its equivalents, including hardware, circuitry, or an algorithm, that detect a time or interval when traffic is transmitting. This includes detecting energy (e.g., signal strength) of transmitted traffic for a time or interval. See the ’095 patent 1:44–45. Fraughton teaches listening for conflicting signals and waiting a random period of time “after the detection” at steps 14 and 15 respectively. Fraughton 9:68–10:3, 10:21–26, Fig. 1A; see also Ans. 10 (discussing “scan[ning] for the appearance of transmissions to make sure that no conflicting signal is present” when addressing the “means” limitation). In particular, Fraughton further discusses checking the Carrier Active Sense (CAS) “to see if the frequency is clear or not.” Id. at 19:13–14, Figs. 4–5 (step 280). Checking for conflicting signals or Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 15 seeing if the frequency is clear using Fraughton’s CAS requires some structure to detect or act (e.g., an algorithm or intelligence) of detecting the energy/signals within the transmitted radio frequency (e.g., detecting traffic). See id. at 9:68– 10:3, 19:10–14. Additionally, this conflict determination in Fraughton would necessarily involve detecting a transmission’s energy over a given time period (e.g., two milliseconds or seconds). As such, Fraughton discloses structure and/or acts that detect energy of transmitted traffic for a time or interval (e.g., transmission periods). See id. And this determination of signals is a distinct act or step from listening or “scanning . . . for the appearance of transmissions,” which is separately recited in claim 1. We thus disagree with Appellants that Fraughton does not teach the recited “means for detecting transmission periods by a transmission detector” as claimed in independent claims 1, 15, and 26. 2. “[T]he transmission dectector [] scanning, within a predictable window of time, for the appearance of transmissions” Appellants also argue that Fraughton fails to teach “the transmission detector . . . scanning, within a predictable window of time, for the appearance of transmissions” as recited in claim 1 and as similarly recited in claims 15 and 26. App. Br. 25, 27. Appellants assert, because Fraughton can transmit data at any time, each transmitter listens for traffic at random and unpredictable instances, which is opposite to what the recited “predictable window of time.” Id. at 25. Appellants further contend that Fraughton only waits a predefined period of time once the listening aircraft detects the transmission channel is occupied. Id. The Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 16 Examiner cites to various passages in Fraughton to teach this disputed limitation. Final Act. 5 (citing Fraughton 10:9–32, 17:6–19:59, Figs. 3, 4–2, 4–5, and 4–6). As already discussed, Fraughton teaches listening for conflicting signals at step 14 or checking to see if a frequency is clear using a CAS, separate from actually detecting transmission periods. Fraughton 9:68–10:3, 10:21–32, 19:10–14, Fig. 1A; see also Ans. 12 (citing Fraughton 10:21–32 and step 14). Fraughton does not disclose explicitly how long the listening process lasts. See id. However, Fraughton teaches that the listening (e.g., scanning) occurs over some time period that this time period is known in advance; otherwise, the listening process would not know when to start or stop checking if the frequency is clear. See id. This process in Fraughton thus demonstrates that Fraughton includes a transmission detector having the ability to scan for transmissions over a predictable amount of time. Also, as previously indicated, claim 1 recites “scanning, within a predictable window of time, for the appearance of transmissions.” App. Br. i (Claims App’x) (emphasis added). As such, Fraughton need only scan for the appearance of transmission at an interval during a predictable window (e.g., before the end of the window) but does not require scanning for the entire “predictable window of time.” Based on the above teachings in Fraughton, we determine scanning for transmissions occurs, and thus scanning is achieved within some time window known in advance as already discussed. We therefore disagree with Appellants that Fraughton does not teach the recited “transmission detector . . . scanning, within a predictable window of time, for the appearance of transmissions” as recited in independent claim 1 and as similarly recited in claims 15 and 26. Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 17 Accordingly, we sustain the rejection of claims 1 and 26 based on Fraughton. 3. “[A] higher order protocol” Unlike claims 1 and 26, independent 15 additionally recites “transmission detector scanning . . . for the appearance of transmissions initiated by other participants using a higher order protocol.” App. Br. iii (Claims App’x). Appellants contend that Fraughton does not “disclose two levels of transmissions and thus cannot disclose listening for other participants ‘using a higher order protocol’” as recited. App. Br. 26. Fraughton, according to Appellants, “all transmissions use the same protocol” and “discloses a single transmission protocol.” Id. (citing Fraughton 4:58–60, 4:66–5:5, 10:21–32). Appellants also contend an understanding that “higher order protocol” means more functionality is not supported by the term’s plain meaning or the record. Reply Br. 3. As to this latter contention, we disagree. As noted above in the Claim Construction section, there is no definition of the term “higher order protocol” in the disclosure. See generally the ’095 patent. Moreover, the ’095 patent describes various differing protocols, including different classes of priority and weighting. Id. at 1:12–16, 2:42–43, 3:1–8. However, the ’095 patent does not limit the different “protocols” to specific protocol types and does not further define what makes a protocol of “a higher order.” See id. We thus determine, as explained above, transmissions initiated by other participants using a protocol or set of rules for transmission that has more priority, weighting, complexity, or functionality than other participants is “a higher order protocol” as broadly recited. We further note that this recitation “the transmission detector scanning . . . for the appearance of transmissions initiated by other participants using a higher order protocol” in Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 18 claim 15 is construed as a functional limitation—not an active method step—given that claim 15 is an apparatus claim reciting the capability of the claimed “transmission detector.” Turning to Fraughton, the Examiner states that the recited “transmission detector scanning . . . for the appearance of transmissions initiated by other participants using a higher order protocol” is disclosed. Final Act. 8–9 (citing Fraughton 4:51–65, 9:34–55, 12:43–50, 14:7–18); Ans. 14. Fraughton discloses that all crafts are able to monitor the position of all other craft within a predetermined range and to transmit its own position to aid in navigation. Fraughton 4:44–50. Fraughton discusses using a LORAN (Long Range Navigation) navigation system or GPS position for receiving or determining the position of a craft and to transmit its own position to aid in navigation. Id. at 4:51– 57. Such systems, including the position-determining devices, are “on board” the craft and include (1) an altimeter (e.g., provides a position fix in 1-D), (2) a LORAN receiver (e.g., provides a position fix in 2-D), or (3) LORAN receiver in combination with an altimeter or GPS (e.g., provides a position fix in 3-D). Id. at 4:51–53, 9:34–55. As such, Fraughton teaches the navigation system, including those of other participants, can use any of three techniques to obtain a craft’s position fix. Each of these three techniques vary in complexity or functionality (e.g., has only an altimeter, LORAN receiver, or LORAN receiver and GPS) and differing functionalities are used (e.g., one being more complex or higher than the other). See id. Moreover, 2-D or 3-D systems are preferred. Id. at 9:34–40. As such, Fraughton teaches a participant may use a 1-D process (e.g., a first order) while Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 19 another may use a 2-D process (e.g., a preferred, second order) to determine a craft’s position. See id. Granted, Fraughton does not discuss these components in the differing systems are necessarily used for data transmissions. See id. That is, Fraughton discusses using RS-232 communication protocol to communicate with other devices. Id. at 12:43–50; see App. Br. 26. But, as previously explained, because claim 15 is a “system” claim, the recited “transmission detector scanning . . . for the appearance of transmissions initiated by other participants using a higher order protocol with the receiver” in claim 15 is a functional limitation, requiring the detector only to have the ability to scan for transmissions initiated by participants using a higher order protocol. App. Br. iii (Claims App’x). Such a recited transmission detector need only be capable of scanning transmissions initiated by other participants using a higher order protocol. We conclude that Fraughton’s transmission detector has such an ability to scan for transmissions initiated by participants using a higher order protocol. That is, there is insufficient evidence in the record demonstrating that Fraughton’s technique that includes listening for conflicts or checking if a frequency is clear using a CAS would not have the ability to scan higher order protocol transmissions. See Fraughton 9:68–10:3, 10:21–32, 19:10–14, Fig. 1A. As such, Appellants’ argument that Fraughton teaches a single transmission protocol is unavailing. App. Br. 26. Accordingly, we sustain the rejection of claim 15 based on Fraughton. B. Anticipation Rejection Based on Fulthrop Claims 1, 15, and 24–26 are rejected under 35 U.S.C. § 102(b) based on Fulthrop. Final Act. 12–20; Ans. 2. Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 20 1. “[M]eans for detecting transmission periods” Appellants contend that Fulthrop does not disclose the recited “means for detecting transmission periods by a transmission detector.” App. Br. 27–28. Appellants present similar arguments to those discussed above with Fraughton, namely Fulthrop’s system is not “able to determine a particular point in time at which a transmission period occurs (e.g., begins and/or ends).” App. Br. 28, 35. Appellants argue that Fulthrop “operates completely irrespective of any transmission periods that are defined on the channel” and, by using fixed time slots to transmit data in Fulthrop, “there is no need to detect transmission periods.” Id. at 28. As explained above, the recitation “means for detecting transmission periods” includes structure, material, or acts and its equivalents, including hardware, circuitry, or an algorithm, that detects transmissions for a time or an interval. This includes detecting energy or a signal strength of transmitted traffic for a time or an interval. See the ’095 patent 1:44–45. Fulthrop discloses such structure, acts, or an algorithm for detecting transmission energy for a time or interval. Fulthrop teaches using a carrier sense circuit to detect the presence of carrier frequency (e.g., detect energy or signal strength in a time or interval). Fulthrop 2:44–58, cited in Final Act. 13. Moreover, Fulthrop teaches receiving data frames from a base station by searching for a pattern and frame type (e.g., detecting energy). Fulthrop 11:25–51, Fig. 5B, cited in Ans. 17–18. This process involves waiting a given number of milliseconds (e.g., a time or interval) to listen for valid reception of data frames. Fulthrop 11:35–38. In particular, at step 136, Fulthrop teaches a system determining whether a frame sequence is found (e.g., detecting Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 21 energy) after searching for valid correlation patterns during this listening period at step 134. Id. at 11:41–46, Fig. 5B. Fulthrop’s determination process involves detecting the transmission’s energy at a time or over some time interval (e.g., transmission periods) and is separate from scanning for the transmissions (e.g., step 134) as claimed. See id. As such, Fulthrop discloses structure or acts for detecting transmission energy at a time or interval. We thus disagree with Appellants that Fulthrop does not teach the recited “means for detecting transmission periods by a transmission detector” as claimed in independent claims 1, 15, and 26. 2. “[T]he transmission detector . . . scanning, within a predictable window of time, for the appearance of transmissions” Appellants further argue that Fulthrop does not teach “the transmission detector [] scanning, within a predictable window of time, for the appearance of transmissions” as recited in claim 1 and as similarly recited in claims 15 and 26. App. Br. 29. Appellants assert, because Fulthrop can transmit data at any time, which is random and unpredictable, Fulthrop cannot scan for transmissions “within a predictable window of time” as recited. Id. Appellants also contend Fulthrop’s listening for a specified amount of time is still occurring at random, unpredictable points in time “based on when the transmitter has data to transmit.” Id. We are not persuaded. As already discussed, Fulthrop listens a given number of milliseconds for valid reception of data frames (e.g., scans for transmissions for a given amount of time) using a carrier sense circuit over a time or interval. Fulthrop 2:44–58, 11:35–46, Fig. 5B (steps 132 and 134). Even assuming that Fulthrop’s listening does not occur at regular intervals, scanning for transmissions in Fulthrop still Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 22 happens within a given amount of time, which is predefined and predictable. See id. Otherwise, the listening process would not know when to start and stop listening. See id. Also, as noted previously, claim 1 recites “scanning, within a predictable window of time, for the appearance of transmissions.” App. Br. i (Claims App’x) (emphasis added). Fulthrop requires scanning for the appearance of transmission at a time or interval during a predictable window (e.g., a given number of milliseconds), but does not require scanning for the entire “predictable window of time.” Fulthrop’s process also sets up a timing loop to continue searching until the time elapses, which is a time period known in advance. See Fulthrop 11:25–64, Fig. 5B. We therefore disagree with Appellants that Fulthrop does not teach the recited “transmission detector . . . scanning, within a predictable window of time, for the appearance of transmissions” as recited in independent claims 1 and similarly recited in claims 15 and 26. Accordingly, we sustain the rejection of claims 1 and 26 based on Fraughton. 3. Claim 15 Independent 15 additionally recites “the appearance of transmissions” is “initiated by other participants using a higher order protocol.” App. Br. iii (Claims App’x). Appellants contend that Fulthrop discloses using “two mutually exclusive modes of operation: CSMA and TDMA” and that in either mode, a single, lower order protocol is being used. App. Br. 34 (citing Fulthrop 6:51–54, 7:21–45, 8:46– 62). Appellants further argue that in either operation mode there is no scanning within a predictable window of time. App. Br. 34. We are not persuaded. Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 23 There is no requirement in claim 15 that all participants, including those “using a higher order protocol,” communicate with each other at the same or a given point in time as other participants using another, lower order protocol. See also Ans. 13. As such, even though Fulthrop teaches switching between CSMA (carrier sense multiple access) and TDMA modes (Fulthrop 6:51–54), this alone does not demonstrate Fulthrop cannot anticipate the elements recited in claim 1. Moreover, as previously stated, the “scanning” recitation as broadly as claimed is a functional limitation and Fulthrop’s transmission detector need only have the ability to scan for transmissions initiated by participants using a higher order protocol. Various passages in Fulthrop support a CSMA mode (e.g., a lower priority mode) having the ability to scan for transmissions initiated by participants using a higher order protocol (e.g., TDMA) for a specified amount of time. While in CSMA mode, Fulthrop discloses transmitting TDMA channel requests, TDMA service, poll frames, data frames, and frame types that are “not a poll frame.” Fulthrop 7:62–66, 10:1–3, 10–18, 11:25–35, 13:62–67; see also Ans. 23. Given Fulthrop’s ability to listen for various frames and the record fails to demonstrate sufficiently that some of these frames cannot be “transmission[s] of high volume, more frequent data” (Fulthrop 8:56–57), we determine Fulthrop’s transmission detector has the ability to listen or scan for transmissions (e.g., frames of high volume, more frequent data) initiated by participant using a higher order protocol (e.g., TDMA). See id. at 7:62–66, 10:1–3, 10–18, 11:25–35, 13:62–67. Additionally, Fulthrop discusses listening in CSMA mode for various data frames, without regard to whether the frames are transmitted by a participant using a lower Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 24 order (e.g., CSMA) or higher order (e.g., TDMA) protocol. See id. at 11:25–26, 35–48, 13:30–35, 62–66; see also Ans. 20. We therefore conclude that Fulthrop’s transmission detector has the ability to scan for transmissions initiated by participants using a higher order protocol. Appellants have not presented persuasive evidence in the record to the contrary. See App. Br. 33–34; Reply Br. 7–8. Lastly, as discussed above, Fulthrop scans for the appearance of these transmissions initiated by other participants within a predictable window of time. We refer above for more details. Moreover, the fact that the base stations do not scan before transmitting as argued (App. Br. 34) does not demonstrate Fulthrop fails to teach a detector scanning for the transmissions as recited. Accordingly, we sustain the rejection of claim 15 based on Fulthrop. 4. Claim 24 Claim 24 depends from claim 1 and further recited “the transmission periods are a plurality of slots of a time division multiple access transmission method.” App. Br. iii (Claims App’x). Appellants contend that the recited “means for detecting transmission periods by a transmission detector” should be able to determine the particular point in time a transmission period occurs and Fulthrop operates irrespective of a transmission period. App. Br. 30. For the reasons stated above, we are not persuaded. Appellants also argue that in Fulthrop’s TDMA mode, when transmission periods are fixed time slots, there is no listening and thus there is no detecting of transmissions. App. Br. 30–31 (citing Fulthrop 7:21–25). Appellants further assert that in Fulthrop’s CSMA mode there is no detection of transmission periods, Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 25 including detecting TDMA time slots. App. Br. 30–31. Concerning whether Fulthrop does not detect a transmission period, we disagree as previously stated. Regarding whether Fulthrop teaches detecting transmission periods that are TDMA time slots, the Examiner states claim 24 does not require expressly “detecting a plurality of slots of a time division multiple access transmission method.” Ans. 21. Although claim 24 does not recite “TDMA time slots,” claim 1 requires a “means for detecting transmission periods” and dependent claim 24 further limits “the transmission periods” to “a plurality of slots of a time division multiple access transmission method.” App. Br. iii (Claims App’x). As such, claim 24 requires a “means for detecting transmission periods” that “are a plurality of slots of a time division multiple access transmission method.” Id. However, as broadly as construed and as explained above, Fulthrop’s carrier sense circuit detects transmission periods. Fulthrop 11:25–26, 35–48, 13:30–35, 62–66, Figs. 5B, 7A. Moreover, claim 24 does not require the system’s means for detecting transmissions periods that are slots of a TDMA transmission method must occur at the same time as the transmission detector is “scanning” as recited functionally. App. Br. iii (Claims App’x). We discussed above Fulthrop’s carrier sense circuit that detects the presence of the carrier frequency in a CSMA mode. Fulthrop 2:44–51. Notably, this circuit in Fulthrop detects transmission energy through listening. Id. at 11:25–26, 35–48, 13:30–35, 62–66, Figs. 5B, 7A. Granted, Fulthrop does not explicitly discuss detecting slots using a TDMA transmission method during this listening process. See id. However, as discussed above, Fulthrop’s carrier sense circuit has structure and performs some process for detecting energy from a frame, including energy from TDMA slots or time periods, when listening over a transmission period. See Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 26 id. We thus determine Fulthrop’s carrier sense circuit is a transmission detector that detects energy of transmitted frames, including “slots of a” TDMA transmission method as recited, and thus has a “means for detecting transmission periods,” including a slot transmission period as recited, by detecting energy. See id. On the record, Appellants have not provided persuasive evidence to the contrary. App. Br. 29–32; Reply Br. 5–6. Thus, regardless of whether or not when Fulthrop is in TDMA mode, each remote unit has a specific time slot and there is no need to detect transmission periods (App. Br. 30; Reply Br. 6), Fulthrop discloses a “means for detecting transmission periods” that includes periods of “slots of a time division multiple access transmission method” as broadly as recited. For the above reasons, the Examiner did not err in rejecting claim 24 based on Fulthrop. 5. Claim 25 Claim 25 depends from claim 24 and further recites “the predictable windows2 are periods of time within each slot of the plurality of slots.” App. Br. iii (Claims App’x). The recited “predictable window[]” as recited relates to “the transmission detector [] scanning, within a predictable window of time, for the appearance of transmission.” Id. at i (Claims App’x). As noted above, claim 1 (or claim 25 for that matter) is not a method claim, but rather a system claim directed to a transmission detector having the ability to scan within the recited predictable window of time. For claim 25, that window of time is within each slot of a 2 Claim 1, from which claim 25 depends indirectly, recites “a predictable window of time.” Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 27 plurality of slots. See id. at iii (Claims App’x). As such, Fulthrop does not have to disclose scanning within the slotted, predictable window of time; rather, the transmission detector just has to have the ability to scan as recited. Appellants argue that, similar to claim 1, merely listening for traffic flow in an open channel does not teach the limitations of claims 1 and 25. App. Br. 32–33. We disagree and refer above for details. As discussed above, when addressing claim 1, there is nothing in Fulthrop that prevents its listening technique from occurring within a predictable window of time— not for a period of time as argued (App. Br. 33)—that is within each slot of a plurality of slots (e.g., 2 slots) as recited. As explained above, Fulthrop teaches listening for energy within a predictable window of time and thus scans for transmissions within a predictable window of time as recited. See Fulthrop 2:44–58, 11:35–46, 13:30–32, Fig. 5B. Given this ability to scan for transmissions, Fulthrop has the ability to scan for a slot transmission within each transmitted slot. See id. Even if Fulthrop operates in TDMA mode at different times than CSMA mode where listening occurs (App. Br. 33), Appellants have not provided adequate evidence that Fulthrop’s circuit lacks the ability to scan as recited. Accordingly, the Examiner did not err in rejecting claim 25 based on Fulthrop. We next turn to the remaining claims that differ in scope from independent claims 1, 15, and 26. C. Anticipation Rejection Based on Lans Claims 2–5 are rejected under 35 U.S.C. § 102(b) based on Lans. Final Act. 20–22; Ans. 2. Independent claim 2 recites inputs into (1) the transmitter of a communication device and (2) the time basis. App. Br. i (Claims App’x). Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 28 Appellants argue Lans does not teach the recited “synchronizing the time basis of each moving participant . . . only depends on a minimum of one relevant participant within the receiving range.” App. Br. 35 (citing Lans 5:19–21). Specifically, Appellants contend that the above limitation “requires only other moving object(s) to synchronize a transmission signal, as opposed to complex, external synchronization systems” and that “the claim requires the system to be capable of synchronizing based on only the participant(s), rather than external synchronization systems” (e.g., GPS and UTC (Coordinated Universal Time)) for accurate timing. App. Br. 36. The Examiner states that “claim 2 does not expressly require that ‘only other moving objects [] synchronize a transmission signal.’” Ans. 37. We agree with the Examiner that the recited and dependent “‘one relevant participant’” is not necessarily the same as the recited “moving participant.” See id. That is, claim 2’s “system” containing “a second input . . . having a time basis . . . for generating a transmission frame characterized in that methods for synchronizing the time basis . . . of each moving participant” does not recite the method depends on these moving participants but rather “one relevant participant within the receiving range,” which may or may not be a moving participant. App. Br. i (Claims App’x); see also App. Br. 38. Additionally, we emphasize claim 2 recites the synchronizing only depends on a minimum of one “relevant participant within the receiving range.” App. Br. i (Claims App’x) (emphasis added). As the Examiner explains, “the current claim language is not clear if a ‘minimum of one relevant participant . . .’ is actually one of the claimed ‘several moving participants’, [] the claimed ‘one or more other participants[,]’” (Ans. 40) or possibly even some other participant. Also, the term Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 29 “relevant” is not described in the disclosure to have a specific meaning. See generally the ’095 patent. In fact, Appellants cites to column 3, lines 57–60 of the ’095 patent for support (App. Br. 9), which describes synchronizing targets using “the average of the closest of targets” “[i]f there are more than one other protocol targets.” The ’095 patent 3:57–58, 60 (emphasis added). This portion of the disclosure describes using more than one participant or identifies more than one target without identifying which is the “one relevant participant.” The ordinary meaning of “relevant” includes “having significant and demonstrable bearing on the matter at hand.”3 Given that what type of participant at a minimum is relevant is not precisely explained in the disclosure, the recitation “relevant participant” introduces a relative term as to which participants are significant in synchronizing the time basis. Thus, the broadest reasonable construction of the phrase “synchronizing the time basis . . . only depends on a minimum of one relevant participant within the receiving range,” in light of the disclosure, includes the ability to synchronize the time basis with a dependence on only one (or more) relevant participant(s) within the receiving range. We thus agree with the Examiner when stating “[t]he fact that Lans can use multiple ground stations or multiple moving objects to ensure accurate transmissions is not precluded by the current claim language” (Ans. 39), given some of these stations and objects may not be considered significant or “relevant” as recited. Turning to Lans, Appellants argue that Lans depends on an external synchronization system, such as GPS or UTC, rather than only depending on one relevant participant. App. Br. 35–36 (citing Lans 5:19–21). Appellants further 3 Merriam-Webster Online Dictionary, (def. 1a), available at https://www.merriam-webster.com/dictionary/relevant Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 30 contend that Lans requires at least two participants in emergency situations instead of only one participant. App. Br. 36; Reply Br. 8 (citing Lans 10:33–39). Based on the above claim construction, we are not persuaded. Of note, Lans teaches a situation where the system operates when GPS fails, and thus includes techniques where there is no external synchronization system (e.g., GPS) as argued. See Lans 5:43–54, 10:26–39. To be sure, Lans teaches the system may work, even if the GPS receiver lapses or fails, as long as “the plurality of ground stations can keep a common time” (e.g., synchronize the time basis). Lans 10:35–36; id. at 10:35–39. But, given the breadth of claim 2 as discussed above, Lans teaches depending the time basis on only one relevant or significant participant. See Lans 10:26–39. For example, in Lans, only one neighboring ground station or a station using accurate clock calibrated from a satellite out of the existing geostationary satellites may be considered relevant or significant. See id. Thus, in these scenarios, any other station is not considered significant or relevant. See id. We therefore disagree Lans is incapable of having “a time basis for generating transmission frame characterized in that methods for synchronizing the time basis . . . of each moving participant . . . only depends on a minimum of one relevant participant within the receiving range” as recited. For the above reasons, the Examiner did not err in determining Lans discloses the disputed limitations in claim 2 and dependent claims 3–5 not argued separately. D. Anticipation Rejection Based on ITU-R M.1371-1 Claims 6–14 are rejected under 35 U.S.C. § 102(b) based on ITU-R M.1371- 1. Final Act. 22–25; Ans. 2. Independent claim 6 recites “a synchronization unit” that includes a “means for weighting . . . with defined factors for correcting the Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 31 synchronization error; and the own transmission timing correction is a function of weighting different predetermined groups and numbers of participants in those groups.” App. Br. ii (Claims App’x). Appellants argue ITU-R M.1371-1 fails to disclose “the own transmission timing correction is a function of weighting different predetermined groups and numbers of participants in those groups” in claim 6. App. Br. 36. Appellants contend that the above recitation requires weighting of both the different predetermined groups and the number of participants in those groups. App. Br. 37. The Examiner asserts that the phrase can be reasonably construed to weight only the predetermined groups, and that timing correction is a function of the number of participants in the group but is not weighted. Ans. 41. The ’095 patent discusses “different classes of priority and weighting” when referring to Figure 2, which shows groups “I” and “II.” The ’095 patent 2:42–43, 2:66–3:2, Fig. 2. These groups are described as having different protocols. Id. at 3:2–4. The ’095 patent also discusses when there is more than one other protocol targets, the system may choose targets used to synchronize based on the average of the closest targets and using distance correction. Id. at 3:55–61, cited in App. Br. 37. However, these are just an example, and the recited “timing correction” that is “a function of weighting” in light of the disclosure does not have to involve weighting “numbers of participants in those groups.” Additionally, Appellants assert the recited “numbers of participants in those groups” have to be moving participants. App. Br. 38. The Examiner disagrees that these features are claimed. Ans. 46. We agree the recitation of “numbers of participants in those groups” does not necessarily refer back to the “moving” participants previously recited in claim 6. Also, the limitation of “different Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 32 predetermined groups” does not define the “participants in those groups” as recited to be moving participants. The Specification further does not exclude the invention applying to stationary objects, stating that the invention is applicable to “one or more other moving or stationary objects.” The ’095 patent 1:8–10. Thus, the broadest, reasonable construction of “numbers of participants in those groups” includes moving and stationary participants. Appellants argue ITU-R M.1371-1 communicates using only MMSI (maritime mobile service identity) identifying number and thus synchronization is based only a single “group” as defined the ’095 patent. App. Br. 37–38 (citing ITU-R M.1371-1, p. 1). For this reason, Appellants argue ITU-R M.1371-1 does not disclose the timing correction is a function of groups and number of participants. App. Br. 37. We disagree that the word “group” in claim 6 has been defined in the ’095 patent’s disclosure. See generally the ’095 patent. Also, there is nothing in the claim that requires the predetermined group to use a different protocol as argued (see App. Br. 37). App. Br. ii (Claims App’x). Additionally, as explained above, we disagree that the timing correction as claimed must be a function of the numbers of participants. Nor does claim 6 require the “different predetermined groups” or “numbers of participants in those groups” as recited are moving participants as asserted. App. Br. 38. Turning to the rejection, ITU-R M.1371-1 synchronizes the mobile stations to the base station based on the station with the lowest MMSI. ITU-R M.1371-1, p. 10 (§§ 3.1.1.3 and 3.1.1.4). That is, ITU-R M.1371-1 assesses multiple stations (e.g., participants) but weights the one with the lowest MMSI. See id. This involves factoring participants (e.g., stations) when correcting the synchronization. Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 33 See id.; Ans. 43. For example, ITU-R M.1371-1 discloses different predetermined groups are used or considered during synchronization. See id. Those predetermined groups include (1) a participant group able to receive transmissions from base stations and synchronizing based on the base station with the highest number of received stations, and (2) a participant group unable to receive transmissions from base stations and synchronizing based on the base station with the highest number of other stations received in the last nine frames. See id.; see also Ans. 42–45. Additionally, with either group, the station with the lowest MMSI (e.g., “numbers of participants in those groups”) is also considered and weighted. See ITU-R M.1371-1, p. 10. As such, synchronizing and correcting for timing in ITU-R M.1371-1 is a function of weighting different predetermined groups and numbers of participants as broadly recited. For the above reasons, the Examiner did not err in rejecting claim 6 of dependent claims 7–12 not separately argued. IV. CONCLUSIONS On the record before us, we affirm the rejections presented by the Examiner. Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f). AFFIRMED Appeal 2017-007186 Reexamination Control 90/013,498 Patent 7,512,095 B2 34 For PATENT OWNER: DORSEY & WHITNEY, LLP – DENVER Intellectual Property Department 1400 Wewatta Street Suite 400 Denver, CO 80202-5549 For THIRD PARTY REQUESTOR: LOWE GRAHAM JONES, PLLC 701 Fifth Avenue Suite 4800 Seattle, WA 98104 cdc