Ex Parte Derr et al

Patent Trial and Appeal BoardOct 7, 2016

12419901 (P.T.A.B. Oct. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/419,901 0410712009 85013 7590 10/12/2016 TraskBritt I Battelle Energy Alliance, LLC PO Box 2550 Salt Lake City, UT 84110 FIRST NAMED INVENTOR KurtW. Derr 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. 2939-9221US (BA-281) 1490 EXAMINER AHN,SUNGS ART UNIT PAPER NUMBER 2631 NOTIFICATION DATE DELIVERY MODE 10/12/2016 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): USPTOMail@traskbritt.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KURT W. DERR and JOHN G. RICHARDSON Appeal2015-006843 1 Application 12/419,901 Technology Center 2600 Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and GARTH D. BAER, Administrative Patent Judges. BAER, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify Battelle Energy Alliance, LLC as the real party in interest. Appeal Br. 4. Appeal2015-006843 Application 12/419,901 STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. Â§ 134(a), from the Examiner's final rejection of claims 1-18, 20, 21, 24--27, 29, and 30, which are all the pending claims. Appeal Br. 4. Claims 19, 22, 23, and 28 have been cancelled. We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. BACKGROUND A. The Invention Appellants' invention is directed to "monitoring devices and systems configured to monitor frequency hopping wireless communications without handshaking or other transmission by the [devices] or [systems]." Spec i-f 5. Claim 1 is representative and reproduced below, with emphasis added to the disputed elements: 1. A wireless communication monitoring device, compnsmg: a plurality of data channel modules, each data channel module of the plurality of data channel modules configured to capture wireless communications of data for at least one selected frequency channel of a plurality of frequency channels substantially unrelated to frequency hopping sequences of the captured wireless communications, wherein capturing the wireless communications is performed without prior knowledge of the frequency hopping sequences and without participating in handshake protocols; and processing circuitry coupled to the plurality of data channel modules and configured to: receive the captured wireless communications from the plurality of data channel modules; 2 Appeal2015-006843 Application 12/419,901 regardless of order received at the processing circuitry and regardless of the data channel module received from, identify that packets from at least two different data channel modules of the plurality belong to a group responsive to at least one parameter in the packets identifying at least one of a transmitting device, a receiving device, and a transmission sequence; and organize the data in the captured wireless communications from the at least two different data channel modules of the plurality of data channel modules into the group according to the at least one parameter. Appeal Br. 26. (Claims App.). B. The Rejection on Appeal The Examiner rejects claims 1-18, 20, 21, 24--27, 29, and 30 under 35 U.S.C. Â§ 103(a) as unpatentable over Eliezer (US 2009/0257396 Al; Oct. 15, 2009), in view of Bloebaum (US 2005/0207350 Al; Sept. 22, 2005) and further in view ofiviogensen (US 2004/0268351 Al; Dec. 30, 2004). Final Act. 4. ANALYSIS Appellants argue that the combination of Eliezer and Bloebaum fails to teach "organiz[ing] the data in the captured wireless communications from the at least two different data channel modules of the plurality of data channel modules into the group according to the at least one parameter," as recited in independent claim 1. 2 See Appeal Br. 11. Appellants agree with 2 Appellants' arguments raise additional issues, but we do not reach them because the identified issue is dispositive of the appeal. 3 Appeal2015-006843 Application 12/419,901 the Examiner that Eliezer does not explicitly disclose the aforementioned claim element, and further argue Eliezer does not suggest a need or capability to organize packets from different transceivers (which the Examiner finds teaches the claimed "data channel modules") because Eliezer describes that all of the data from a data stream comes from a single radio frequency (RF) receiver and is presented to a central processing unit (CPU) as a contiguous data stream. See Appeal Br. 11-13; see also Reply Br. 2. Appellants also argue that Bloebaum teaches a single transceiver that transmits or receives packets, and, therefore, Bloebaum does not teach or suggest a capability of organizing packets from different RF transceivers. See Appeal Br. 14; see also Reply Br. 2. We find Appellants' argument persuasive. We agree with Appellants that the Examiner has not shown that Eliezer and Bloebaum, whether considered individually or in combination, teach organizing data in captured wireless communications from at least two different data channel modules into a group (or otherwise) according to at least one parameter. More specifically, we agree with Appellants that the Examiner failed to show Eliezer teaches or suggests that the CPU organizes data received from at least two RF transceivers according to at least one parameter. See Appeal Br. 11-13 (citing Eliezer i-fi-162, 64---65). Further, we agree with Appellants that, while Bloebaum describes a system that receives packets from a single transceiver, and further describes that a packet header contains information for packet acknowledgment, reordering, and flow control, the Examiner failed to show Bloebaum teaches the system organizes data in the packets received from at least two transceivers according to the information 4 Appeal2015-006843 Application 12/419,901 contained in the packet header or according to any other type of parameter. See Appeal Br. 13-14 (citing Bloebaum i-f 5). Thus, we agree with Appellants that the combination of Eliezer and Bloebaum fails to teach or suggest "organiz[ing] the data in the captured wireless communications from the at least two different data channel modules of the plurality of data channel modules into the group according to the at least one parameter," as recited in independent claim 1. Further, the Examiner failed to establish that Mogensen cures the deficiencies of Eliezer and Bloebaum. Accordingly, we do not sustain the Examiner's rejection of independent claim 1. We also do not sustain the Examiner's rejection of independent claims 7, 16, and 24, which recite substantially similar limitations as claim 1, or dependent claims 2---6, 8-15, 17, 18, 20, 21, 25-27, 29, and 30. DECISION We reverse the Examiner's rejection of claims 1-18, 20, 21, 24--27, 29, and 30 under 35 U.S.C. Â§ 103(a). REVERSED 5