Ex Parte Denteneer et alDownload PDFPatent Trial and Appeal BoardFeb 4, 201612440604 (P.T.A.B. Feb. 4, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/440,604 12/03/2009 Theodorus Jacobus Johannes Denteneer 24737 7590 02/08/2016 PHILIPS INTELLECTUAL PROPERTY & STANDARDS P.O. BOX 3001 BRIARCLIFF MANOR, NY 10510 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. 2006P02139WOUS 4791 EXAMINER BLANTON, JOHN D ART UNIT PAPER NUMBER 2466 NOTIFICATION DATE DELIVERY MODE 02/08/2016 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): debbie.henn@philips.com marianne.fox@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THEODORUS JACOBUS JOHANNES DENTENEER, GUIDO ROLAND HIERTZ, GUSTAF SEBASTIAN MAX, and BERNHARD WALKE 1 Appeal2014-002500 Application 12/440,604 Technology Center 2400 Before BRUCE R. WINSOR, JOHN F. HORVATH, and AMBER L. HAGY, Administrative Patent Judges. HAGY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify Koninklijke Philips Electronics N.V. as the real party in interest. (App. Br. 3.) Appeal2014-002500 Application 12/440,604 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. Introduction According to Appellants, The present invention relates to a wireless network comprising a medium access control architecture and to a method for such [a] wireless network. More particularly, the present invention relates to a wireless network on the basis of a standard such as a standard from the family of IEEE 802 standards, especially ANSI/IEEE Std 802.11. (Spec. 1.) Exemplary Claim Claim 1, reproduced below with disputed limitation italicized, is exemplary of the claimed subject matter: 1. A wireless network comprising mesh devices and non- mesh devices, wherein a medium access control architecture incorporating at least a distributed coordination function as an access method is provided, wherein a device transmits a request to send to begin transmission of data according to said distributed coordination function, wherein in a normal mode, in which said device is a mesh device or a non-mesh device, said request to send comprises an address of said device transmitting as a transmitter address, and an address of a device to which said device intends to send data as a receiver address, and wherein in a mesh mode, in which said device is a mesh device, said mesh device originates and transmits said request to send comprising an address of said mesh device as both said 2 Appeal2014-002500 Application 12/440,604 transmitter address and said receiver address, said mesh mode characterized by allowing transmission of data among mesh devices to the exclusion of non-mesh devices. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Reed Yang Du Doi Gaur US 2003/0109217 Al June 12, 2003 US 2006/0120387 Al June 8, 2006 US 2006/0227802 Al Oct. 12, 2006 US 2007 /0133457 Al June 14, 2007 US 2008/0002636 Al Jan. 3, 2008 Abdulkareem Adinoyi et al., Definition and Assessment of Relay Based Cellular Deployment Concepts for Future Radio Scenarios Considering ]st Protocol Characteristics, IST-2003-507581 WINNER D3.4, Ver. 1 (Nov. 30, 2005) (hereinafter "Adinoyi"). REJECTIONS Claims 1, 2, 4, 7, 10, and 11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Reed, Adinoyi, and Doi. (Final Act. 5- 8.) Claims 3, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Reed, Adinoyi, Doi, and Gaur. (Final Act. 8-9.) Claims 5, 8, 9, and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Reed, Adinoyi, Doi, and Du. (Final Act. 9-11.) Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Reed, Adinoyi, Doi, and Yang. (Final Act. 11-12.) 3 Appeal2014-002500 Application 12/440,604 ISSUE Whether the combination of Reed, Adinoyi, and Doi teaches or suggests "wherein in a mesh mode, in which said device is a mesh device, said mesh device originates and transmits said request to send comprising an address of said mesh device as both said transmitter address and said receiver address," as recited in claim 1.2 ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred. We disagree with Appellants' conclusions and we adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2- 12); and (2) the reasons set forth by the Examiner in the Examiner's Answer in response to Appellants' Appeal Brief. (Ans. 2-5.) We concur with the conclusions reached by the Examiner, and we highlight the following for emphasis. 3 2 Appellants argue the rejection of independent claims 7 and 10, and dependent claims 2, 4, and 11, collectively with regard to the Examiner's obviousness rejection of claim 1under35 U.S.C. § 103(a). Therefore, based on Appellants' arguments, we decide the appeal of claims 1, 2, 4, 7, 10, and 11 based on claim 1 alone. See 37 C.F.R. § 41.37(c)(l)(iv). Except for our ultimate decision, claims 2, 4, 7, 10, and 11 are not discussed further herein. 3 Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal2014-002500 Application 12/440,604 A. Claims 1, 2, 4, 7, 10, and 11 Claim 1 recites, inter alia: "wherein in a mesh mode, in which said device is a mesh device, said mesh device originates and transmits said request to send comprising an address of said mesh device as both said transmitter address and said receiver address." (Claims App (emphasis added).) The Examiner relies on Reed "to disclose the mesh I non-mesh network architecture" (Final Act. 5---6 (citing Reed, i-fi-13, 7, 8); Ans. 3), and relies on Doi as disclosing a device that "originates and transmits said request to send (31) comprising an address of said mesh device as both said transmitter address and said receiver address." (Final Act. 6 (citing Doi i-fi-f 179-184); Ans. 2-3.) Appellants argue "the combination of Reed, Adinoyi, and Doi does not teach, show, or suggest the [disputed limitation] concerning mesh mode origination and transmission of a request to send by a mesh device in order to begin transmission, as defined in independent claim 1." (App. Br. 9 (emphasis added).) In particular, Appellants argue the "intermediate device 102" in Doi does not "originate" the request to send message, but rather merely "intercepts" the request from "device 103 ," and "substitutes ... the source ID and the destination ID with the ID of the forwarding device 102" and then forwards the request. (App. Br. 11.) The Examiner agrees Doi discloses a device "operating as a relay device" (Ans. 2), but disagrees the device does not "originate" a request to send. The Examiner asserts Doi does not merely relay the first request to send (RTS) frame, but originates a second request to send (RTS) frame: Doi discloses that a device operating as a relay device, i.e. multi- hop or mesh, will receive a first R TS frame and generate a second RTS frame. The second R TS frame replaces the source 5 Appeal2014-002500 Application 12/440,604 ID and the destination ID with the relay devices source ID, adjusts the reservation time, and sets the relay bit to "on" (paragraph 184 ). Doi states that the second R TS frame is generated by the relay device and then transmitted. Examiner asserts that the second R TS frame is based on the first R TS frame; however, the second RTS frame is a distinct RTS frame generated by the relay device. In other words, the second RTS frame does not exist until the relay device 102 generates and transmits the frame (paragraph 184). Examiner interprets the limitation of"originating the RTS" as being taught by the second R TS frame. (Ans. 2-3 (emphases added) (citing Doi i-f 184).) We agree the Examiner's findings are supported by the teachings of the cited reference, and we are not persuaded of Examiner error. Appellants further argue the Examiner errs in relying on Doi because "Doi' s network is a network of peer devices. It is not defined by Doi as a combination of mesh and non-mesh devices." (App. Br. 10 (emphases added).) The Examiner responds by noting the Examiner "relies on Reed to disclose the mesh/non-mesh architecture." (Ans. 3 (citing Reed il 3 ). ) Appellants' individual challenge to Doi as failing to teach a mesh and non- mesh network is thus misplaced, as the Examiner relies on a combination of Reed and Doi. Where, as here, the rejections are based upon the teachings of a combination of references, "[ n ]on-obviousness cannot be established by attacking references individually." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Appellants have not rebutted the Examiner's findings regarding the combined teachings of Reed and Doi. Appellants also argue "it is important and crucial to locate the device in Doi that originates and transmits the request to send message because it is that device that must be corresponded to the claimed 'said mesh device."' 6 Appeal2014-002500 Application 12/440,604 (App. Br. 11.) The Examiner disagrees, and cites an IEEE article describing the 802.1 ls standard (also referenced in Appellants' Specification) as evidence that it is known in the art that, inside a mesh architecture, mesh stations (STAs) "establish peer-to-peer wireless links and transfer messages mutually." (Ans. 3 (citing IEEE 802.11 s, Part 11: "Wireless LAN Medium Access Control (MAC) and Physical Layer (PHY) specifications Amendment 10: Mesh Networking, 5.2.14.2 Overview of the mesh BSS).) The Examiner further asserts: Doi discloses a device that operates in ad-hoc mode (peer to peer) and in a relay mode (multi-hop); while in relay mode the device generates a unique R TS frame replacing the source ID and the destination ID with the relay devices source ID, adjusting the reservation time, and setting the relay bit to "on" (paragraph 184 ). This form of direct/relay communications is analogous to the mesh network; where a node operates in a peer to peer mode and will also switch to a relay mode when the number of collisions of an R TS of another node exceeds a threshold (paragraph184). Thus the origination of an RTS with the source and destination addresses being the relay node itself can be combined with any of the mesh or non-mesh nodes disclosed by Reed, because any node disclosed by Doi may operate in mesh/non-mesh mode as claimed by the Appellant. (Ans. 3--4.) We agree with the Examiner's analysis, and are, therefore, unpersuaded of Examiner error. Appellants also argue the Examiner has entered an undesignated "new ground of rejection" on appeal by referencing the IEEE standard in support of the Examiner's discussion of the Reed and Doi references. (Reply Br. 7- 8; see Ans. 3--4.) Appellants then make the following request: "To the extent that the USPTO continues to rely on the alleged teachings of the IEEE reference, it is respectfully requested that the Board review the undesignated 7 Appeal2014-002500 Application 12/440,604 new grounds of rejection and reopen the prosecution of this application." (Reply Br. 8.) Appellants' contention the Examiner introduced a new ground of rejection in the Answer was a petitionable matter, but Appellants did not file a petition under 37 C.P.R. § 1.181 (a) within two months from the mailing date of the Answer, as required by the MPEP: If appellant believes that an examiner's answer contains a new ground of rejection not identified as such, appellant may file a petition under 3 7 CPR 1.181 (a) within two months from the mailing of the examiner's answer requesting that a ground of rejection set forth in the answer be designated as a new ground of rejection. Any such petition must set forth a detailed explanation as to why the ground of rejection set forth in the answer constitutes a new ground of rejection. Any allegation that an examiner's answer contains a new ground of rejection not identified as such is waived if not timely raised (i.e., by filing the petition within two months of the answer) by way of a petition under 37 CPR 1.181 (a). MPEP § 1207.03 (IV) (8th ed.; Rev. 9; Aug. 2012). Because Appellants did not timely file a petition under 37 C.P.R. § 1.181(a) (within two months of the Answer) that explained in detail why the ground of rejection set forth in the Answer was a new ground of rejection, such arguments were waived. We further disagree with Appellants' contention because, in response to Appellants' contention that it is "crucial to locate the device in Doi that originates and transmits the request to send message" (App. Br. 11 ), the Examiner cited the IEEE standard to provide evidence that peer-to-peer wireless communication inside a mesh network was well-known in the art, and thus the ad hoc peer- to-peer network taught by Doi, with "direct/relay communications," is "analogous to the mesh network," as recited in claim 1. (Ans. 3--4.) The 8 Appeal2014-002500 Application 12/440,604 Examiner's citation of the IEEE standard-which is also expressly referenced in Appellants' Specification (e.g., Spec. 1, 4}-was prompted by Appellants' arguments on appeal and was in further support of the Examiner's existing rejection, and did not constitute a new ground. Accordingly, we find both untimely and unpersuasive Appellants' contention the Examiner's reliance on the IEEE standard in further support of the rejection of claim 1 is an undesignated new ground of rejection. We are also unpersuaded by Appellants' arguments the Examiner has failed to establish the requisite motivation to combine the cited references. (App. Br. 13; Reply Br. 7.) We recognize the Examiner must articulate "reasoning with some rational underpinning to support the legal conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). However, contrary to Appellants' arguments, the Examiner's reasoning need not appear in, or be suggested by, one or more of the references on which the Examiner relies. Instead, a reason to combine teachings from the prior art "may be found in explicit or implicit teachings within the references themselves, from the ordinary knowledge of those skilled in the art, or from the nature of the problem to be solved." WMS Gaming, Inc. v. Int'! Game Tech., 184 F.3d 1339, 1355 (Fed. Cir. 1999) (citing In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). "Under the correct [obviousness] analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). In the instant appeal, the Examiner has made findings regarding the analogous nature of the modes of communication taught by the cited references (mesh vs. direct/relay), and has provided a rationale supporting 9 Appeal2014-002500 Application 12/440,604 motivation by a person of ordinary skill in the art to combine the references to achieve the claimed subject matter. (Final Act. 6-7; Ans. 5.) Appellants' arguments, on the other hand, are based on lack of express motivation taught by any of the cited references, which arguments ignore the guidance of KSR and do not rebut the Examiner's findings. Appellants' arguments, therefore, are unpersuasive of Examiner error. For the foregoing reasons, we sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 1, and also claims 2, 4, 7, 10, and 11, which Appellants do not argue separately. B. Claims 3, 5, 6, 8, 9, and 12-14 Appellants do not present separate substantive arguments for the patentability of dependent claims 3, 5, 6, 8, 9, or 12-14, which stand rejected over Reed, Adinoyi, Doi, and Gaur (claims 3, 12, and 13), Du (claims 5, 8, 9, and 14), or Yang (claim 6). As to these claims, Appellants only contend the Examiner's additional citations to Gaur, Du, and Yang do not "include any teaching or suggestion that would remedy the identified defects [or deficiencies] noted above in the teachings of Reed, Adinoyi, and Doi" asserted with regard to claim 1. (App. Br. 17-19.) Because, as stated above, we do not find the combination of Reed, Adinoyi, and Doi to be deficient with regard to claim 1, we also sustain the Examiner's 35 U.S.C. § 103(a) rejections of claims 3, 5, 6, 8, 9, and 12-14. 10 Appeal2014-002500 Application 12/440,604 DECISION For the above reasons, the Examiner's 35 U.S.C. § 103(a) rejections of claims 1-14 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 11 Copy with citationCopy as parenthetical citation