Ex Parte Fodor et al

Patent Trial and Appeal Board

Mar 11, 2019

14898163 (P.T.A.B. Mar. 11, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/898,163 12/14/2015 Gabor Fodor
24112 7590 03/12/2019
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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.
4015-9390 I P40219-US1 4101
EXAMINER
LEE, JAE YOUNG
ART UNIT PAPER NUMBER
2466
MAIL DATE DELIVERY MODE
03/12/2019 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 GABOR FODOR, BENGT LINDOFF,
QIANXI LU, QINGYU MIAO, and PONTUS W ALLENTIN
Appeal2018-007124
Application 14/898, 163
Technology Center 2400
Before JOSEPH L. DIXON, JAMES W. DEJMEK, and
STEPHEN E. BELISLE, Administrative Patent Judges.
BELISLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a final rejection of
all pending claims, namely, claims 26-49. App. Br. 2. We have jurisdiction
under 35 U.S.C. § 6(b ).
We reverse.
1 Appellants identify Telefonaktiebolaget L M Ericsson as the real party in
interest. App. Br. 2.
Appeal2018-007124
Application 14/898, 163
STATEMENT OF THE CASE
The Claimed Invention
Appellants' invention generally relates to a method, a wireless device,
and a computer program for cluster head selection in a communications
network. Spec. 1 :4---6. According to Appellants, a cluster head provides, for
example, synchronization and radio resource management within its cluster,
and also acts as a central node to create a tree topology for communication
with the cluster. Spec. 2:24--28.
Claim 26, reproduced below, is illustrative of the claimed subject
matter on appeal:
26. A method for cluster head selection in a communications
network, the method comprising a wireless device:
receiving a respective beacon signal from each one of at least one
further wireless device, each beacon signal comprising a cluster
head capability metric;
comparing each of the received cluster head capability metrics to
at least one qualifying criterion; and
selecting one of the at least one further wireless devices as the
cluster head of the wireless device based on the comparison.
References
The Examiner relies on the following references as evidence of
unpatentability of the claims on appeal:
Liu
Yamazaki
US 2011/0235561 Al
US 2015/0282232 Al
Sept. 29, 2011
Oct. 1, 2015 2
2 Yamazaki's provisional application No. 61/718,869 was filed Oct. 26,
2012.
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Rejections
The Examiner made the following rejections of the claims on appeal:
Claims 26-38 and 40-49 stand rejected under 35 U.S.C. § 102(a)(l)
as anticipated by Liu.
Claim 39 stands rejected under 35 U.S.C. § 103 as obvious over Liu
and Yamazaki.
ANALYSIS 3
35 U.S.C. § 102(a)(l)
Appellants argue claims 26-49 as a group. See App. Br. 2, 7, 8. We
select claim 26 as representative of the group. Any claim not argued
separately will stand or fall with our analysis of the rejection of claim 26.
See 37 C.F.R. § 4I.37(c)(l)(iv) (2017).
Appellants argue, inter alia, Liu "fails to disclose the claimed
selection of one [ of the] at least one further wireless device as the cluster
head .... " App. Br. 7.
Liu is generally directed to "a method and an apparatus for
negotiating a master station and pertains to the field of communication
3 Throughout this Decision, we have considered Appellants' Appeal Brief
filed January 22, 2018 ("App. Br."); Appellants' Reply Brief filed June 22,
2018 ("Reply Br."); the Examiner's Answer mailed May 2, 2018 ("Ans.")
and Supplemental Examiner's Answer mailed June 28, 2018 ("Supp. Ans.");
the Final Office Action mailed August 24, 2017 ("Final Act."); and
Appellants' Specification filed December 14, 2015 ("Spec.").
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Application 14/898, 163
technologies." Liu ,r 2. More specifically, Liu's disclosed method
comprises the following steps:
First, an 'ordinary station B' receives a beacon frame that carries a
master identity, where the beacon frame is sent by a 'master station A' in
broadcast mode. Liu ,r 30 (step 201). Second, ordinary station B obtains a
maximum time interval (Tm) between receiving of the beacon frame and
receiving of a next beacon frame from the master station. Liu ,r 33
(step 202). Third, if the next beacon frame is not received from master
station A after the time interval (Tm), and the capability of ordinary station
B is higher than a preset threshold capability (i.e., ordinary station B could
be competent as a master station), ordinary station B sends an
Announcement Master Indication Message ("AMIM") frame to other
ordinary stations, "declaring that ordinary station B becomes a new master
station in the network." Liu ,r 35 (step 203). Fourth, ordinary station B
judges whether any "NOWAY" frame is received in response to the AMIM
from other ordinary stations (e.g., stations C, D, etc.) within a beacon
interval ("BI"), where the NOWAY frame is sent through a backoff
contention mechanism. Liu ,r 38 (step 204). Fifth, absent receiving a
NOWAY frame, ordinary station B sends a beacon frame that carries a
master identity to other ordinary stations in broadcast mode, where the
beacon frame is used to determine the ordinary station B as a new master
station. Liu ,r 39 (step 205). Alternatively, if a NOWAY frame is received,
ordinary station B returns an "ACK" frame to the station which succeeds in
contending to send the NOWAY frame, and does so without changing the
ordinary station identity of the ordinary station B. Liu ,r 42 (step 206).
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Appellants argue, inter alia, Liu does not anticipate the "selecting"
limitation of claim 26:
[T]he independent claims recite the selection of one or more
further wireless devices (i.e., one of the devices transmitting the
beacon signal to the wireless device performing the claimed
comparison and the claimed selection) based on the comparison,
whereas Liu teaches that ordinary station B (i.e., the station
receiving the beacon signal) selects itself (the station receiving
the beacon and performing the comparison) as the master station
based on a comparison. In other words, the independent claims
recite that a wireless device performing the comparison selects a
wireless device different from the one performing the
comparison, while Liu teaches that a wireless device performing
the comparison selects itself responsive to the comparison.
App. Br. 7.
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). Additionally, to anticipate, a prior art reference must
disclose more than "multiple, distinct teachings that the artisan might
somehow combine to achieve the claimed invention." Net MoneyIN, Inc. v.
VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008); see also In re Arkley,
455 F .2d 586, 587 (CCP A 1972) ("[T]he [prior art] reference must clearly
and unequivocally disclose the claimed [invention] or direct those skilled in
the art to the [invention] without any need for picking, choosing, and
combining various disclosures not directly related to each other by the
teachings of the cited reference.").
As relevant here, the Examiner finds "as a result of no answering by
the ordinary station C [ after ordinary station B sends an AMIM frame], the
ordinary station B becomes [a] new master station by default," citing Liu
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,r 43 ("so as to regard station B as a new master station by default"), and
finds this defaulting action "teaches" the claim 26 limitation of 'selecting
one of the at least one further wireless devices as the cluster head of the
wireless device based on the comparison.' Ans. 30-31; Supp. Ans. 30-31.
In other words, the Examiner finds that because ordinary station C did not
stop ordinary station B from becoming a master station, this teaches
ordinary station C "selecting" ordinary station B as the master station. But
the rejection at issue here is anticipation, not obviousness; therefore, the
proper inquiry is what Liu discloses, not teaches. 4 See Net Money!N,
545 F.3d at 1371 ("[D]ifferences between the prior art reference and a
claimed invention, however slight, invoke the question of obviousness, not
anticipation.").
Appellants respond that neither station B nor station C of Liu
discloses the "selecting" limitation of claim 26:
Station B does not disclose the claimed selection. While
Station B clearly receives some kind of beacon and performs
some kind of comparison, Station B at best either selects itself as
the master station or does not select itself as the master station
(allowing Station A to remain as the master station). Nothing in
Liu discloses that Station B selects any station other than itself
as the master. As such, the selection made by Station B is not
the same as the claimed selection, which requires the wireless
4 As the Examiner rejected the subject independent claims under 35 U.S.C.
§ 102(a)(l), we do not opine herein on whether Liu, alone or in combination
with other prior art, would render those claims obvious, and leave it to the
Examiner to further consider this issue in any further prosecution on the
merits. Although the Board is authorized to reject claims under 37 C.F.R.
§ 4I.50(b), no inference should be drawn when the Board elects not to do so.
See MPEP § 1213.02.
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device doing the selection to select one of at least one further
wireless devices.
Reply Br. 4.
Station C does not make any selection of any station, much less
of any other station. * * * When Station B does not receive
another beacon frame from Master Station A, Station B sends an
[ AMIM] frame to Station C. If Station C receives a beacon frame
from Master Station A during the same beacon interval (BI) as it
receives the AMIM frame, this indicates to Station C that
Station B failed to receive the beacon frame, causing Station B
to mistakenly regard Station A as disconnected and to mistakenly
declare itself as the new master station. In this case, Station C
sends a NOWAY frame to Station B to force Station B to reverse
course. If after a predetermined time interval (Tm) after
receiving the AMIM Station C does not receive a beacon frame
from Station A, Station C does not answer Station C [sic: BJ and
regards Station B as the new master station.
Reply Br. 6.
We find Appellants' arguments here persuasive, and agree with
Appellants that the Examiner has not shown by a preponderance of the
evidence that Liu discloses a wireless device "selecting one of the at least
one further wireless devices as the cluster head of the wireless device based
on the comparison" as recited in claim 26. In particular, we find the
Examiner has not provided sufficient evidence or technical reasoning to
show that silence or no action by Liu's station C clearly and unequivocally
discloses station C selecting station Bas a master station or cluster head,
where, importantly, station B already has selected itself as the master station
(and has not selected a device other than itself, i.e., the claimed "further
wireless device"). See In re Arkley, 455 F.2d at 587 ("reference must clearly
and unequivocally disclose the claimed [invention]"). Because we find this
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"selecting" limitation dispositive here, we do not address Appellants' other
arguments.
For the reasons discussed supra, we are persuaded of Examiner error.
Accordingly, we do not sustain the Examiner's rejection of independent
claim 26 under 35 U.S.C. § 102(a)(l). For similar reasons, we do not sustain
the Examiner's rejection of independent claims 41 and 49, which recite
similar limitations. Further, we do not sustain the Examiner's rejection
under 35 U.S.C. § 102(a)(l) of claims 27-38, 40, and 42--48, which depend
directly or indirectly therefrom.
35 u.s.c. § 103
Moreover, the Examiner has not identified how the additional
reference, namely, Yamazaki, remedies the noted deficiency above. As a
result, we do not sustain the Examiner's rejection of claim 39 under
35 U.S.C. § 103 for the same reasons discussed above.
DECISION
We reverse the Examiner's anticipation rejection of claims 26-38 and
40--49.
We reverse the Examiner's obviousness rejection of claim 39.
REVERSED
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