Ex Parte Gabara

Patent Trial and Appeal BoardOct 14, 2016

11681158 (P.T.A.B. Oct. 14, 2016)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 11/681,158 03/01/2007 Thaddeus Gabara WirelessRelay01 6608 84070 7590 10/14/2016 Thaddeus Gabara 62 Burlington Rd Murray Hill, NJ 07974 EXAMINER LAI, DANIEL ART UNIT PAPER NUMBER 2641 MAIL DATE DELIVERY MODE 10/14/2016 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 THADDEUS GABARA ____________________ Appeal 2014-002310 Application 11/681,158 Technology Center 2600 ____________________ Before CAROLYN D. THOMAS, WILLIAM M. FINK, and JOSEPH P. LENTIVECH, Administrative Patent Judges. FINK, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1–11 and 25–29. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 The real party in interest is identified as TrackThings LLC. Br. 1. Appeal 2014-002310 Application 11/681,158 2 STATEMENT OF THE CASE Appellant’s invention relates to a “computation unit” used to determine the “best placement of a new relay to improve the link integrity of the network.” Abstract.2 Claims 1 and 9 are the independent claims on appeal. Claim 1 is illustrative of Appellant’s invention and is reproduced below with disputed limitation emphasized: 1. An ad-hoc wireless network comprising: at least one client; a plurality of relays each in a known location; and a computational unit distributed within the ad-hoc network measuring a link integrity of each link in the ad-hoc wireless network; whereby the computational unit determines a placement of a new relay at a new location into the ad-hoc wireless network to improve the link integrity of the ad-hoc wireless network. Br. 17 (emphasis added). Claims 1–11 and 25–29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kalikia (US 2007/0054670 A1; March 8, 2007) and Rappaport (US 6,971,063 B1; November 29, 2005). Based on Appellant’s arguments, the dispositive issue on appeal is whether Rappaport teaches “a computational unit distributed within the ad- 2 Our decision refers to Appellant’s Appeal Brief filed June 8, 2013 (“Br.”); the Examiner’s Answer mailed September 12, 2013 (“Ans.”); the Final Office Action mailed December 18, 2012 (“Final Act.”); and the original Specification filed March 1, 2007 (“Spec.”). Appeal 2014-002310 Application 11/681,158 3 hoc network measuring a link integrity of each link in the ad-hoc wireless network,” as recited in independent claim 1. See Br. 6–8. ANALYSIS In rejecting claim 1, the Examiner finds “Kalika discloses the computational unit for determining link integrity and determining placement of the new relay, but does not expressly disclose the computational unit distributed within the ad-hoc network,” and, instead, relies on the handheld measurement device of Rappaport as teaching this limitation. Final Act. 4 (emphasis added). Appellant argues that handheld computer and measurement device collecting data from a source node is not “distributed” within a communication network as the claim requires. Br. 6–8. In responding to Appellant’s argument, the Examiner states: [T]he handheld computer is physically located within the network along with a measurement device to receive measurement information. Rappaport further discloses the hand- held device can be equipped with an appropriate measurement device (col. 4, lines 54-58). Therefore, the handheld device is located (distributed) within the network . . . . “Distributed” is not defined in the claim, and therefore it is broadly and reasonably interpreted as being located within the ad-hoc network. Ans. 5 (emphasis added). On the record before us, we are constrained to agree with Appellant. Although we give claims their broadest reasonable interpretation, “the construction cannot be divorced from the specification and the record evidence.” In re Man Machine Interface Technologies LLC, 822 F.3d 1282, 1286 (Fed. Cir. 2016) (quoting In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Appeal 2014-002310 Application 11/681,158 4 Cir. 2011). A construction that is unreasonably broad and does not reasonably reflect the plain language and disclosure in the specification will not pass muster. Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015). In this case, the Examiner equates distributed with located, as in located within the network, but provides no support. We determine this interpretation to be too broad under the circumstances here. In the context of the claimed computational unit distributed within a network, one definition of distributed is “allocate[d] among locations or facilities, as in a data-processing function that is performed by a collection of computers and other devices and linked together by a network.” MICROSOFT COMPUTER USER’S DICTIONARY 167 (5th ed. 2002). This interpretation is consistent with the Specification, which states that one “possibility [for the invention] is to de-centralize the Computation Unit and distribute the control to each of the wireless clients and relays which forms the network.” Spec. ¶ 26 (emphasis added). That is, according to the Specification, the computational unit may be distributed to the clients and relays. By contrast, merely “locating” a computational unit somewhere within the network does not mean it is de-centralized or that its control features are distributed to the clients or relays. Under the foregoing broadest reasonable interpretation, the Examiner’s reliance on Rappaport’s disclosure of a handheld computer attached to a measurement device as forming the computational unit (see Final Act. 4 (citing Rappaport, 16:56–65, 18:48–55)) does not address Appeal 2014-002310 Application 11/681,158 5 sufficiently the recited “distributed” limitation.3 Accordingly, we cannot sustain the rejection of claim 1, as well as claim 2–8, which depend from claim 1, on the record before us. Independent claim 9 recites a similar limitation, for which the Examiner also relies on Rappaport. See Final Act. 5–6. Accordingly, we cannot sustain the rejection of claim 9, as well as claims 10, 11, and 25–29, which depend from claim 9. DECISION We reverse the Examiner’s final rejection of claims 1–11 and 25–29. REVERSED 3 In the event of further prosecution, the Examiner may wish to consider whether Kalika alone teaches or suggests all of the limitations of claim 1. For example, although the Examiner finds Kalika does not expressly disclose a distributed “computational unit” (see Final Act. 4), paragraph 41 of Kalika states that tasks or modules of the invention can be practiced in a distributed computing environment.