Ex Parte Grewe

Patent Trial and Appeal BoardJul 14, 2015

11998057 (P.T.A.B. Jul. 14, 2015)

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. 11/998,057 11/28/2007 Anthony J. Grewe Grewe 31 4723 7590 07/14/2015 IP Legal Services LLC 1500 East Lancaster Avenue, Suite 200, P.O. Box 1027 Paoli, PA 19301 EXAMINER MA, KAM WAN ART UNIT PAPER NUMBER 2681 MAIL DATE DELIVERY MODE 07/14/2015 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 ANTHONY J. GREWE ___________ Appeal 2013-006299 Application 11/998,057 Technology Center 2600 ____________ Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and MELISSA A. HAAPALA, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1, 3, 5, 6, 8–10, 12, 14, 15, and 17–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Rather than reiterate the arguments of Appellant and the Examiner, we refer to the Final Office Action (“Final Act.”) mailed July 31, 2012, the Appeal Brief (“App. Br.”) filed January 22, 2013, the Answer (“Ans.”) mailed February 12, 2013, and the Reply Brief (“Reply Br.”) filed April 11, 2013, for the respective details. We have considered in this decision only those arguments Appellant actually raised in the Briefs. Any other arguments which Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2013-006299 Application 11/998,057 2 STATEMENT OF THE CASE Introduction Appellant’s invention relates to a radio frequency identification (RFID) device with channel-in-use sensing and time multiplexing transmission to prevent radio systems of RFID devices in close proximity to one another from transmitting while another one of the RFID devices is transmitting. Claim 1, which is illustrative of the invention, reads as follows: 1. A method of data transmission by an energized radio- frequency identification (RFID device), the method comprising the steps of: (a) detecting whether a radio channel is busy with a transmission of one or more close proximity RFID devices; and, if the radio channel is busy: (b) delaying transmission of data by the energized RFID device, wherein step (b) comprises the steps of: (b1) engaging a random back-off timer if the radio channel is busy; (b2) testing whether the random back-off timer is expired; and (b3) repeating step (a) if the random back-off timer is expired; and if the radio channel is not busy: (c) in the absence of any additional steps, transmitting the data. The Rejections The Examiner rejected claims 1, 6, 8–10, 15, and 17–20 under 35 U.S.C. § 103(a) as being unpatentable over Zai (US 2005/0093679 A1, Appeal 2013-006299 Application 11/998,057 3 May 5, 2005) in view of Margon (US 7,123,624 B1, Oct. 17, 2006). Final Act. 2–4. The Examiner rejected claims 3 and 12 under 35 U.S.C. § 103(a) as being unpatentable over Zai and Margon, further in view of Steeves (US 6,034,603, May 7, 2000). Final Act. 4–5. The Examiner rejected claims 5 and 14 under 35 U.S.C. § 103(a) as being unpatentable over Zai and Margon, further in view of Kornprobst (US 2003/0114113 A1, June 19, 2003). Final Act. 5–6. ISSUE AND ANALYSIS1 Based on Appellant’s arguments, the principal and dispositive issue of whether the Examiner erred in rejecting exemplary claim 1 turns on whether Margon teaches away from Zai, and thus, applying the teaching of Margon would destroy the operability of Zai. App. Br. 10–11. We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. We disagree with Appellant’s conclusions. We adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief. In rejecting independent claim 1 over the combination of Zai and Morgan, the Examiner finds (Final Act. 2–3) that Zai discloses all the claimed features, except for “if the radio channel is not busy: (c) in the 1 Separate patentability is not argued for claims 3, 5, 6, 8–10, 12, 14, 15, and 17–20. App. Br. 10–12; Reply. Br. 5–6. Except for our ultimate decision, claims 3, 5, 6, 8–10, 12, 14, 15, and 17–20 are not discussed further herein. Appeal 2013-006299 Application 11/998,057 4 absence of any additional steps, transmitting the data.” The Examiner relies on Margon for this limitation (Final Act. 3). In particular, the Examiner properly identifies the relevant teachings in Zai and Margon and states how each claimed element is met by those teachings. Appellant contends Margon “teaches away from waiting to ensure that there is enough time to send all of the data by teaching to transmit its data immediately after the station assesses that a clear channel is present.” App. Br. 11 (citing Margon, col. 6, ll. 51–53). We are unpersuaded by Appellant’s contentions and specifically agree with the Examiner’s stated position that Margon does not teach away from the combination because the reference expressly teaches to “transmit the data (Col. 6 lines 42-62 discloses the second remote station transmits data over RC 108 immediately after the station assesses that a clear channel is present).” Ans. 6. We agree this does not teach away (criticize, discredit, or otherwise discourage) Zai’s teaching of waiting to ensure there is enough time to send all of the data. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant’s contention that “Margon does not address the situation regarding what happens to any data that the second Remote Station transmits after the RC expires”(Reply Br. 6), is unavailing, because independent claim 1 does not preclude such a reading. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). In addition, we agree with the Examiner (Ans. 6–7) that Margon teaches the Remote station continues to transmit the data beyond the current RC slot into the next time slot because once the timer has expired, the nth radio station listens and detects the RC is “still transmitting data” so Appeal 2013-006299 Application 11/998,057 5 nth station does not transmit data during that time. Margon, col. 6, ll. 53–62. In other words, the data is transmitted using more than one RC slot. Appellant further contends that that it would not have been obvious to combine Zai and Margon since applying the teaching of Margon would destroy the operability of Zai. App. Br. 10. The Examiner responds that: The modified system of Zai would occupy the clear channel right away and continually transmit data in the next time slot when there is data left to be transmitted while the original system of Zai suggests an extra step of determining whether the free channel has sufficient time for communication. The modification suggests an alternative approach in data communication and does not teach away or destroy the operation of Zai. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to modify the system of Zai with the teachings of Margon since it is no more than simple substitution of one known technique with another and the combination would have yielded only predictable result. Ans. 7. We agree with the Examiner because the modification suggests an alternative approach that does not change Zai’s principle of operation or otherwise renders Zai inoperable for its intended purpose. See, e.g., In re Ratti, 270 F.2d 810, 813 (CCPA 1959) (finding that a combination was not a proper ground of rejection only when the “suggested combination of references would require a substantial reconstruction and redesign of the elements shown in [the primary reference] as well as a change in the basic principles under which the [primary reference] construction was designed to operate”). Appeal 2013-006299 Application 11/998,057 6 For the above reasons, the Examiner’s 35 U.S.C. § 103(a) rejections of claims 1, 3, 5, 6, 8–10, 12, 14, 15, and 17–20 are sustained. DECISION The decision of the Examiner rejecting claims 1, 3, 5, 6, 8–10, 12, 14, 15, and 17–20 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). AFFIRMED msc