Ex Parte Brown et al

Patent Trial and Appeal BoardApr 29, 2016

12352315 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/352,315 01112/2009 52169 7590 05/03/2016 Integral IP I BlackBerry 4400 Bathurst Street, Suite 10 TORONTO, ON M3H 3R8 CANADA FIRST NAMED INVENTOR Michael K. Brown UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. RIM016-22US 1577 EXAMINER NGUYEN, HAI V ART UNIT PAPER NUMBER 2649 NOTIFICATION DATE DELIVERY MODE 05/03/2016 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): USPTO@INTEGRALIP.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL K. BROWN, SCOTT TOTZKE, HERB LITTLE, NEIL ADAMS, and MICHAEL S. BROWN Appeal2014-004416 Application 12/352,315 Technology Center 2600 Before JEAN R. HOMERE, ELENI MANTIS MERCADER, and JAMES W. DEJMEK, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-004416 Application 12/352,315 STATEMENT OF CASE Appellants appeal under 35 U.S.C. Â§ 134 from a rejection of claims 3, 7, 11, 24, 25, 31, and 32. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. THE INVENTION The claimed invention is directed to determining a target transmit power of a wireless transmission based, at least in part, on confidentiality of data carried by the wireless transmission. Abstract. Claim 3, reproduced below, is illustrative of the claimed subject matter: 3. A method in a first wireless device, the method compnsmg: determining a target transmit power of a wireless transmission, wherein one or more frames to be carried by said wireless transmission are addressed to a second wireless device and include voice data of a telephone call, said target transmit power determined based, at least in part, on an identity of a participant in said telephone call who is not using said first wireless device; and transmitting said wireless transmission to said second wireless device. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Cooper Kurisko et al. US 2002/0123325 Al US 2003/0050009 Al 2 Sept. 5, 2002 Mar. 13, 2003 Appeal2014-004416 Application 12/352,315 REJECTIONS The Examiner made the following rejections: Claims 3, 7, and 24 stand rejected under 35 U.S.C Â§ 112, first paragraph as failing to comply with written description. Claims 3, 7, 11, 24, 25, 31, and 32 stand rejected under 35 U.S.C Â§ 103(a) as being unpatentable over Kurisko in view of Cooper. ISSUES The issues are whether the Examiner erred in finding: 1. Appellants' Specification does not provide an adequate description for the recited limitation of "said target transmit power determined based, at least in part, on an identity of a participant in said telephone call who is not using said first wireless device" as recited in claims 3, 7, and 24; and 2. the combination of Kurisko and Cooper teaches or suggests: determining[/ determines] a target transmit power of a wireless transmission, wherein one or more frames to be carried by said wireless transmission are addressed to a second wireless device and include voice data of a telephone call, said target transmit power determined based, at least in part, on an identity of a participant in said telephone call who is not using said first wireless device as recited in claims 3, 7, and 24. ANALYSIS 35 U.S.C Â§ 112,first paragraph Appellants argue the Specification provides adequate description for the recitation of "said target transmit power determined based, at least in 3 Appeal2014-004416 Application 12/352,315 part, on an identity of a participant in said telephone call who is not using said first wireless device" as recited in claims 3, 7, and 24 (App. Br. 8-11). Appellants, in particular, cite to paragraphs 19, 23, and 24 for support: "At 202, one or more of devices 102, 104 and 106 may determine different target transmit powers for different wireless transmission having different security requirements ... "(paragraph [0019]); "The security requirements of a particular transmission may include the confidentiality of data carried by the particular transmission, with lower target transmit powers for transmissions carrying data of higher confidentiality than for transmissions carrying data of lower confidentiality" (paragraph [0023 ]); and "For example, telephone calls with members of the user's family may be considered less confidential than telephone calls with the user's co-workers. Accordingly, the target transmission power for transmissions between mobile device 102 and headset 106 may be lower for some telephone calls than others" (paragraph [0024]). App. Br. 8. We agree with Appellants that the paragraphs cited above provide sufficient written description support for the target transmit power being determined based, at least in part, on an identity of a participant in the telephone call who is not using the first wireless device such as family members versus co-workers (see Spec., paras. 19, 23, 24). Accordingly, we reverse the Examiner's rejection of claims 3, 7, and 24 under 35 U.S.C Â§ 112, first paragraph. 4 Appeal2014-004416 Application 12/352,315 teach: 35 U.S.C Â§ 103(a) Appellants argue the combination of Kurisko and Cooper does not determining/determines a target transmit power of a wireless transmission, wherein one or more frames to be carried by said wireless transmission are addressed to a second wireless device and include voice data of a telephone call, said target transmit power determined based, at least in part, on an identity of a participant in said telephone call who is not using said first wireless device as recited in claims 3, 7, and 24 (App. Br. 12). Appellants argue Kurisko is silent regarding any telephone call, let alone, teaching "an identity of a participant in said telephone call who is not using said first wireless device" as recited in claims 3, 7, and 24 (App. Br. 12). Appellants further argue Cooper is silent regarding an identity of any participant in the telephone call (App. Br. 12-14). We are not persuaded by Appellants' argument. "The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference." In re Keller, 642 F.2d 413, 425 (CCPA 1981). Instead, the relevant issue is "what the combined teachings of the references would have suggested to those of ordinary skill in the art." Id. "Combining the teachings of references does not involve an ability to combine their specific structures." In re Nievelt, 482 F.2d 965, 968 (CCPA 1973). The Examiner relies (Ans. 12) on Kurisko' s teachings of Figure 2, and respective text, for lowering the power of transmission between two wireless devices for security concerns to avoid a Bluetooth sniffer (see Fig. 2; paras. 57-58). The Examiner then relies on Cooper for the teaching of having mobile terminals communicating with 5 Appeal2014-004416 Application 12/352,315 voice data in telephone calls communicate in a secure mode to prevent audible eavesdropping of the conversation (Ans. 12; para. 20). Thus, one skilled in the art at the time of the invention would have been motivated to lower the power of transmission as a security measure as taught by Kurisko in the telephone mobile devices to avoid eavesdropping as taught by Cooper in conversations where secure communications are needed, such as if the conversations regarding confidential work. The motivation stems from an artisan being presumed to possess both skill and common sense. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). Thus, we agree with the Examiner that the combination of Kurisko and Cooper teaches the disputed limitation of claims 3, 7, and 24. Accordingly, we affirm the Examiner's rejection of these claims and the remaining pending claims of 11, 25, 31, and 32, which were not argued separately. CONCLUSION 1. The Examiner erred in finding Appellants' Specification does not provide an adequate description for the recited limitation of "said target transmit power determined based, at least in part, on an identity of a participant in said telephone call who is not using said first wireless device" as recited in claims 3, 7, and 24; and 2. The Examiner did not err in finding the combination of Kurisko and Cooper teaches the limitation of: determining[/ determines] a target transmit power of a wireless transmission, wherein one or more frames to be carried by said wireless transmission are addressed to a second wireless device 6 Appeal2014-004416 Application 12/352,315 and include voice data of a telephone call, said target transmit power determined based, at least in part, on an identity of a participant in said telephone call who is not using said first wireless device as recited in claims 3, 7, and 24. DECISION For the above reasons, the Examiner's obviousness rejection of claims 3, 7, 11, 24, 25, 31, and 32 is affirmed. However, the written description of claims 3, 7, and 24 is reversed. Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. Â§ 41.50(a)(l). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv) (2013). AFFIRMED 7