Ex Parte Durand et al

Patent Trial and Appeal Board

Sep 25, 2013

11103410 (P.T.A.B. Sep. 25, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/103,410 04/11/2005 Roger Durand 27592-01397-US1 7592
30678 7590 09/26/2013
NOVAK DRUCE CONNOLLY BOVE + QUIGG LLP
1875 EYE STREET, N.W.
SUITE 1100
WASHINGTON, DC 20006
EXAMINER
DECKER, CASSANDRA L
ART UNIT PAPER NUMBER
2466
MAIL DATE DELIVERY MODE
09/26/2013 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 APPEAL BOARD
____________________

Ex parte ROGER DURAND and MICHAEL YUEN1
____________________

Appeal 2011-003126
Application 11/103,410
Technology Center 2400
____________________

Before JOSEPH L. DIXON, JEAN R. HOMERE, and LARRY J. HUME,
Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-3, 7-14, and 18-24. Appellants have previously
canceled claims 4-6 and 15-18. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 The Real Party in Interest is Autocell Laboratories, Inc. (App. Br. 2.)
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STATEMENT OF THE CASE2
The Invention
Appellants’ invention relates to interference source recognition for
wireless communications networks, and methods to cope with such
interference. Spec. ¶ [002] (“Field of the Invention”).
Exemplary Claims
Claims 1 and 13 are exemplary claims representing aspects of the
invention which we reproduce below (emphasis added to disputed
limitations):
1. In a wireless network having a first device and a
second device, a method for coping with interference from a
third device that adversely affects communications between the
first device and the second device comprising the steps of:
differentiating between the interference and normal
communications by assembling a quiet interval during which
the normal communications cease, quiet interval duration and
sampling rate within the quiet interval having values which
assure identification of the interference, the quiet interval being
assembled from temporally non-contiguous segments selected
to assure identification of representative successive energy
peaks of the interference in first and second ones of those
segments;
determining whether the interference originates from a
known type of device by referencing a stored interference
profile; and

2 Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed
June 29, 2010); Examiner’s Answer (“Ans.,” mailed Aug. 6, 2010); Final
Office Action (“FOA,” mailed Mar. 31, 2010); and the original Specification
(“Spec.,” filed Apr. 11, 2005).
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selecting a remedial action based at least in-part on
whether the interference originates from a known type of
device.

13. In a wireless network having a first device and a
second device, an apparatus for coping with interference from a
third device that adversely affects communications between the
first device and the second device comprising:
processing logic operable to differentiate between the
interference and normal communications by assembling a quiet
interval during which the normal communications cease, quiet
interval duration and sampling rate within the quiet interval
having values which assure identification of the interference,
the quiet interval being assembled from temporally non-
contiguous segments selected to assure identification of
representative successive energy peaks of the interference in
first and second ones of those segments;
comparison logic operable to determine whether the
interference originates from a known type of device by
referencing a stored interference profile; and
selection logic operable to select a remedial action based
at least in-part on whether the interference originates from a
known type of device.

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Prior Art
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Kotzin U.S. 4,942,570 Jul. 17, 1990
Sherlock U.S. 2003/0123420 A1 Jul. 3, 2003
Miller U.S. 2004/0023674 A1 Feb. 5, 2004
Zhang WO 2004/059933 A1 July 15, 2004
“Toward the use of local monitoring and network-wide
correction to achieve QoS guarantees in mobile ad hoc
networks”; Arora, Harpreet, Greenwald, Lloyd; Sensor
and Ad Hoc Communications and Networks, 2004, IEEE
SECON 4-7 Oct. 2004. (Hereinafter “Arora”).
Rejections on Appeal
1. Claims 1, 9, 13, 20, and 23 stand rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. Ans. 4.
2. Claims 1-3, 7-14, and 18-24 stand rejected under 35 U.S.C.
§ 112, second paragraph, as being indefinite for failing to particularly point
out and distinctly claim the subject matter which applicant regards as the
invention. Ans. 6.
3. Claims 13, 14, and 18-22 stand rejected under 35 U.S.C. § 101
as being directed to non-statutory subject matter. Ans. 7.
4. Claims 1, 2, 7, 8, 11-14, 18, 19, and 22-24 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination of Sherlock
and Miller. Ans. 9.
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5. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Sherlock, Miller, and Zhang. Ans. 18.
6. Claims 9 and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Sherlock, Miller, and Kotzin.
Ans. 18.
7. Claims 10 and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Sherlock, Miller, and Arora.
Ans. 19.
ISSUES AND ANALYSIS
1. Indefiniteness Rejection of Claims 1-3, 7-14, and 18-24
Issue 1
Appellants argue (App. Br. 17) that the Examiner’s indefiniteness
rejection of claim 1 under 35 U.S.C. § 112, second paragraph, is in error.
These contentions present us with the following issue:
Did the Examiner err in finding that the phrase in dispute in claim 1,
i.e., “quiet interval duration,” is indefinite?
Analysis
When claims have been rejected under both the first and second
paragraphs of 35 U.S.C. § 112, analysis “should begin with the
determination of whether the claims satisfy the requirements of the second
paragraph.” In re Moore, 439 F.2d 1232, 1235 (CCPA 1971).
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Appellants contend
With regard to the terms “a quiet interval” and “quiet
interval duration” in claims 1, 13 and 23, the first term is an
“interval” and the second term is a “duration,” modified by
“quiet interval,” which operates as an adjective in the second
term and a noun in the first term. Consequently, the change
suggested in the office action would cause confusion.
App. Br. 17. The Examiner responds by concluding “the question is whether
‘quiet interval duration’ refers to the duration of the previously recited quiet
interval . . . [and, i]f so, correction to – the quiet interval duration – would
render the claim language definite.” Ans. 21.
We disagree with the Examiner, and find that a person of ordinary
skill in the art would be able to ascertain the metes and bounds of claims 1,
13, and 23, i.e., a person with skill in the art would understand that the
recited phrase “quiet interval duration” refers to the time duration of the
recited “quiet interval.” As such, we find that the claim amendment
suggested by the Examiner, while not inherently wrong, is unnecessary to
gain an understanding of the claim scope.
Accordingly, Appellants have provided sufficient evidence or
argument to persuade us of reversible error in the Examiner’s claim
construction. Therefore, we cannot sustain the Examiner’s indefiniteness
rejection of independent claim 1. For the same reasons, we reverse the
Examiner's rejection of claims 2-3, 7-14, and 18-24, which recite the
disputed limitation in commensurate form.
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2. Written Description Rejection of Claims 1, 9, 13, 20, and 23
Issue 2
Appellants argue (App. Br. 15 ) that the Examiner’s written
description rejection of claim 1 under 35 U.S.C. § 112, first paragraph, is in
error. These contentions present us with the following issue:
Did the Examiner err in finding that the limitation in claim 1 of “the
quiet interval being assembled from temporally non-contiguous segments
selected to assure identification of representative successive energy peaks of
the interference in first and second ones of those segments,” lacks written
description support in the originally filed disclosure?
Analysis
We agree with Appellants’ conclusions with respect to claims 1, 9, 13,
20, and 23, and we disagree with (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken, and (2) the reasons
and rebuttals set forth by the Examiner in the Examiner’s Answer in
response to Appellants’ Arguments. Ans. 4, 5, and 20-21. We highlight and
address specific findings and arguments regarding claim 1 for emphasis as
follows.
Appellants contend the limitation in dispute finds support in the
Specification by pointing out that “temporally non-contiguous quiet gaps
between communications may be combined via a relatively long sampling
window during which the probability of having a continuously occupied
channel over the entire time period is near zero to assemble a quiet interval
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(400).” App. Br. 15-16 (citing Spec. ¶ [0023]; see also Spec. ¶¶ [0024]-
[0025]).
In response, the Examiner concludes, “it should be noted that the
disclosure teaches that the duration of and sampling rate within the quiet
interval as a whole are so selected,” i.e., “to assure identification of
representative successive energy peaks of the interference” (Ans. 20 (citing
Spec. ¶ [0024])), and that “[t]he disclosure does not teach that the segments
are so selected.” Ans. 20.
“[C]ompliance with the written description requirement is a question
of fact.” Hyatt v. Boone, 146 F.3d 1348, 1352 (Fed. Cir. 1998) (citing Vas-
Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)). “To fulfill
the written description requirement, the patent specification must describe an
invention in sufficient detail that one skilled in the art can clearly conclude
that the inventor invented what is claimed.” Kao Corp. v. Unilever U.S.,
Inc., 441 F.3d 963, 967–968 (Fed. Cir. 2006) (quoting Cordis Corp. v.
Medtronic AVE, Inc., 339 F.3d 1352, 1364 (Fed. Cir. 2003)).
We disagree with the Examiner because Appellants’ disclosure (Spec.
¶ [0023]) of combining temporally non-contiguous quiet gaps between
communications using a relatively long sampling window provides support
for the limitation in dispute.
Accordingly, Appellants have provided sufficient evidence or
argument to persuade us of reversible error in the Examiner’s
characterization of the Specification and related claim construction.
Therefore, we cannot sustain the Examiner’s written description rejection of
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independent claim 1. For essentially the same reasons, we reverse the
Examiner's written description rejection of claims 13 and 23, which recite
the disputed limitation in commensurate form.
With respect to dependent claims 9 and 20, depending from claims 1
and 13, respectively, the Examiner contends Appellants’ disclosure teaches
modifying the duration of the quiet interval (Ans. 5 (citing Spec. ¶ [0025])),
but does not describe “dynamically altering the segment length based at least
in part on network conditions,” as recited in claim 9 and as commensurately
recited in dependent claim 20. We disagree with the Examiner, and find that
Appellants’ disclosure teaches dynamically altering the quiet interval, i.e.,
the “segment length.” Spec. ¶ [0025].
Accordingly, we do not sustain the written description rejection of
claims 9 and 20.
3. Statutory Subject Matter Rejection of Claims 13, 14, and 18-22
Issue 3
Appellants argue (App. Br. 18) that the Examiner’s statutory subject
matter rejection of claim 13 under 35 U.S.C. § 101 is in error. These
contentions present us with the following issue:
Did the Examiner err in finding that the recitations of “processing
logic,” “comparison logic,” and “selection logic” in apparatus claim 13 are
directed to software per se, and that claim 13 is therefore unpatentable?
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Analysis
Appellants admit that the recited apparatus may contain software, but
argue that the Examiner’s rejection does not give patentable weight to the
purported “fact that software per se cannot transmit and receive wireless
signals.” Id.
In response, the Examiner concludes:
Matter relating to wireless devices appears only in the
preamble of Claim 13. The apparatus to which the claim is
directed engages only in data processing operations,
comparison, and selecting an action. The claimed logic
comprising the apparatus does not transmit or receive signals,
and is not involved in putting the selected action into effect.
The claim does not indicate that the apparatus is a component
of any of the devices on the wireless network.
Ans. 22. We agree with the Examiner, because the claim does not require or
positively recite transmitting or receiving signals, but instead, the preamble
merely indicates an intended use in the field of wireless communications
networks. See claim 13.
“An intended use or purpose usually will not limit the scope of the
claim because such statements usually do no more than define a context in
which the invention operates.” Boehringer Ingelheim Vetmedica, Inc. v.
Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Although
“[s]uch statements often . . . appear in the claim's preamble,” In re Stencel,
828 F.2d 751, 754 (Fed. Cir. 1987), a statement of intended use or purpose
can appear elsewhere in a claim. Id.
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Further, although claim 13 is nominally an apparatus claim, the
Specification does not define the “logic” recitations in apparatus claim 13, as
being implemented in hardware, and they are not in a form that would invite
claim interpretation under 35 U.S.C. § 112, sixth paragraph, as means plus
function limitations.3 Rather, they appear to be block of codes that are
operable to perform the recited functions.
Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s claim
construction. Therefore, we sustain the Examiner’s non-statutory subject
matter rejection of independent claim 13. As Appellants have not provided
separate arguments with respect to dependent claims 14 and 18-22, we
similarly sustain the Examiner’s rejection of these claims under 35 U.S.C.
§ 101.
4. Unpatentability Rejection of Claims 1-3, 7-14, and 18-24
Issue 4
Appellants argue (App. Br. 18-20) that the Examiner’s unpatentability
rejection of claim 1 under 35 U.S.C. § 103(a) over the combination of

3 The Federal Circuit has established that use of the term “means” is central
to the analysis of whether a claim limitation should be interpreted in
accordance with 35 U.S.C. § 112, sixth paragraph: use of the word “means”
creates a rebuttable presumption that the inventor intended to invoke § 112,
sixth paragraph, whereas failure to use the word “means” creates a
rebuttable presumption that the inventor did not intend the claims to be
governed by § 112, sixth paragraph. Personalized Media Commc’ns, LLC v.
Int’l Trade Comm’n, 161 F.3d 703-704 (Fed. Cir. 1998); Flo Healthcare
Solutions, LLC v. Kappos, 697 F.3d 1367, 1373 (Fed. Cir. 2012).
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Sherlock and Miller is in error. These contentions present us with the
following issue:
Did the Examiner err in finding that the combination of Sherlock and
Miller teaches or suggests the limitation in dispute, i.e., a “quiet interval . . .
assembled from temporally non-contiguous segments selected to assure
identification of representative successive energy peaks of the interference in
first and second ones of those segments,” as recited in claim 1?
Analysis
Appellants contend Sherlock teaches creating a temporally contiguous
quiet period using the network allocation vector (NAV), and thus does not
teach or suggest the limitation in dispute, i.e., a “quiet interval . . . assembled
from temporally non-contiguous segments.” App. Br. 18 (citing Sherlock
¶ [0028]).
Appellants further contend Miller describes a radio that listens for
interference at different times but does not teach or suggest that those
different listening times are shorter than the interference period and which
may be combined to provide a quiet interval in which successive energy
peaks can be found. App. Br. 19. Appellants also contend Miller fails to
describe how to correlate peaks from different non-contiguous samples such
that successive peaks in one cycle of the interference signal may be
differentiated from non-successive peaks. Appellants allege that this
“omission is evidence that Miller actually intends that the different times at
which the part-time transmitter listens are relatively long, i.e., long enough
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to record an entire cycle of the interference signal if that data is to be
contributed to the histogram.” Id.
Appellants suggest that Miller’s allegedly long listening period creates
the problem purportedly solved by Appellants’ claimed invention, i.e., “such
a long listening period is problematic because a wireless access point would
disrupt communications by skipping beacon intervals in order to listen for
interference, and some typical sources of interference would require that
much delay in order to be identified.” Id. In contrast, Appellants contend,
“the claims describe how to find one peak in a first temporally non-
contiguous segment, find another peak in a second temporally non-
contiguous segment, and associate those peaks in order to assure that those
peaks represent successive peaks.” Id.
Finally, Appellants disagree with the Examiner’s conclusion in the
Final Rejection that “it is well known in the art that the Nyquist rate is the
minimum sampling rate for alias-free signal sampling and that the minimum
duration of the sampling interval is the signal period.” FOA 8. Appellants
contend, “the recited limitation is not distinguishing between different
signals by sampling for the greatest period listed in any profile, but rather
assuring identification of the signal where the interval is assembled from
temporally non-contiguous segments.” App. Br. 20.
In response to the above-cited contentions, the Examiner concludes
Sherlock teaches assembling a quiet interval from temporally non-
contiguous segments, citing the fact that Sherlock captures sample data over
multiple intervals. Ans. 22 (citing Sherlock ¶ [0028]). We agree with the
Examiner and note Sherlock teaches:
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The one or more access points then enter a recording period
where raw baseband data for its respective radio is logged and
then transmitted back to the interference monitor 52. The
output takes the form of analog to digital converter samples.
The sample data can be obtained with minimal disruption to the
network by having the access point use the Network allocation
vector to force periods of inactivity on the network during
which sample data can be captured.
Sherlock ¶ [0028]. We agree with the Examiner’s characterization of non-
contiguous data collection in Sherlock because Sherlock’s data capture
occurs over multiple intervals which we construe as being non-contiguous
due to the existence of forced periods of inactivity.
As for the teachings of Miller, the Examiner finds Miller teaches
identifying successive interference energy peaks in different segments. Ans.
10 (citing Miller ¶¶ [0177] and [0190]; Abstract; and tables following
¶¶ [0192] and [0193]); and see Ans. 23. Further, the Examiner concludes
that Miller’s teaching of sample intervals and sample duration indicates the
assembly of a quiet interval during which communications cease in
temporally non-contiguous segments. Ans. 10.
We agree with the Examiner because Miller teaches detection of brief
energy bursts (i.e., energy peaks) in the RF spectrum resulting from
interference. Miller ¶ [0177]. Repeated detections of a series of interference
peaks over a period of time, including non-contiguous segments, are
included in collected interference statistics. Miller ¶ [0190].
In addition, the Examiner concludes that Appellants attempt to
distinguish over Miller by arguing limitations that are not in the claims.
Ans. 22. For example, Appellants argue “Miller fails to describe how to
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correlate peaks from different non-contiguous samples such that successive
peaks, i.e., one cycle of the interference signal, are differentiated from non-
successive peaks, i.e., from a multiple of the interference cycle.” App.
Br. 19.
We find Appellants’ arguments are not commensurate with the scope
of the claim. Claim 1 requires “the quiet interval being assembled from
temporally non-contiguous segments selected to assure identification of
representative successive energy peaks of the interference in first and second
ones of those segments,” and does not require the correlation of peaks or
differentiation between non-successive peaks, as argued by Appellants. Id.
Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s
characterization of the cited art and related claim construction. Therefore,
we sustain the Examiner’s obviousness rejection of independent claim 1.
Because Appellants have not provided separate, substantive
arguments (App. Br. 20) with respect to independent claims 13 and 23,
rejected on the same basis as claim 1, or dependent claims 2, 3, 7-12, 14, 18-
22, and 24, rejected over various combinations of Sherlock and Miller with
Zhang, Kotzin, and Arora, we similarly sustain the Examiner’s rejection of
these claims under 35 U.S.C. § 103(a).
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CONCLUSIONS
(1) The Examiner erred with respect to the indefiniteness rejection
of claims 1-3, 7-14, and 18-24 under 35 U.S.C. § 112, second paragraph, and
the rejection is not sustained.
(2) The Examiner erred with respect to the written description
rejection of claims 1, 9, 13, 20, and 23 under 35 U.S.C. § 112, first
paragraph, and the rejection is not sustained.
(3) The Examiner did not err with respect to the statutory subject
matter rejection of claims 13, 14, and 18-22 under 35 U.S.C. § 101, and the
rejection is sustained.
(4) The Examiner did not err with respect to the various
unpatentability rejections of claims 1-3, 7-14 and 18-24 under 35 U.S.C.
§ 103(a) over the cited prior art combinations, and the rejections are
sustained.
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. § 41.50(a)(1).
DECISION
The decision of the Examiner to reject claims 1-3, 7-14, and 18-24 is
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)(1)(iv).
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AFFIRMED

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