Ex Parte Haber-Land-Schlosser et alDownload PDFPatent Trial and Appeal BoardApr 22, 201310517018 (P.T.A.B. Apr. 22, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KNUT HABER-LAND-SCHLOSSER, UDO GOERTZ, MATTHIAS LUCK, KLAUS RATEITSCHEK, REZA SERAFAT, WOLFGANG THEIMER, PETER WEINGART, and JAKKE MAKELA ____________ Appeal 2010-012239 Application 10/517,018 Technology Center 2400 ____________ Before JOHNNY A. KUMAR, LARRY J. HUME, and LYNNE E. PETTIGREW, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-012239 Application 10/517,018 2 Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-11, 13-14, 16, 19-22, 25 and 26. Claims 12, 15, 17, 18, 23, and 24 have been canceled. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Introduction Appellants’ invention relates to a method for the dynamic generation of a mobile homepage. (See Spec. page 3, ll. 4-5). Claim 1 is illustrative of the invention and reads as follows: 1. A method, comprising: automatically determining information about environmental conditions indicating actual weather conditions of a location of a mobile telephone device, and automatically adapting a mobile homepage in accordance with said determined information about said environmental conditions indicating actual weather conditions of the location of said mobile telephone device. The Examiner’s Rejections Claims 1-7, 8, 11, 19-21, 25 and 26 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kehr (“Look Ma’, My Homepage is Mobile!” Journal of Personal Technologies, HP Labs, Vol. 4, (2000)) in view of Schwoegler (U.S. Patent Publication Number 2001/0030624 A1, Oct. 18, 2001). Ans. 4-8. Claims 9 and 10 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kehr, Schwoegler, and further view of Nagaoka (U.S. Patent Publication Number 2002/0180579 A1, Dec. 5, 2002). Ans. 8-9. Appeal 2010-012239 Application 10/517,018 3 Claims 11 and 22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kehr, Schwoegler, and further view of Kanevsky (US 6,496,949 B1, Dec. 17, 2002). Ans. 9-10. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Kehr, Schwoegler, and further view of Largman (U.S. Patent Publication Number 2002/0188887 A1, Dec. 12, 2002). Ans. 10-11. Claims 14 and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kehr, Schwoegler, and further view of Venkatraman (US 5,956,487, Sep. 21, 1999). Ans. 11-13. Claim 16 stands rejected under 35 U.S.C. § 101 based on a new ground of rejection in the Examiner's Answer, in which the rejection was properly presented in the Examiner's Answer and approved by the Technology Center Director. Ans. 13-14, and 21. The Appellants did not respond, as is required under 37 CFR § 41.39(b) to maintain the appeal with regard to these claims. Accordingly, the appeal is dismissed sua sponte as to claim 16, leaving only the rejection of claims 1-11, 13-14, 19-22, 25 and 26 before us. Appellants’ Contentions 1. Appellants contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because Schwoegler requires that forecasts be “downloaded to the mobile terminal from the weather forecasting service,” whereas in the claimed invention because “there is an ‘automatic’ determination, no downloading is necessary.” Br. 6. Appeal 2010-012239 Application 10/517,018 4 2. Appellants contend that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because Kehr and Schwoegler do not teach or suggest that the “mobile telephone comprises elements capable of sensing the environment in which the mobile telephone is located.” Br. 6 (emphasis added). ANALYSIS We consider Appellants’ arguments seriatim as they are presented in the Appeal Brief, pages 4-12. Dispositive Issue: Did the Examiner err in finding that the combination of Kehr and Schwoegler teaches or suggests “automatically determining information about environmental conditions indicating actual weather conditions of a location” of the mobile telephone device, as recited in claim 1? 1 We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. We concur with the conclusions reached by the Examiner. We highlight and address specific findings and arguments for emphasis as follows. Regarding Appellants’ contention 1, we find that Appellants’ arguments are not commensurate with the scope of the claims. Claim 1 does not preclude downloading forecasts from the weather forecasting service to the mobile terminal. See also Ans. 17. 1 Similarly, claim 19 recites “a processor configured to determine information about environmental conditions indicating actual weather conditions of a location of said mobile telephone device.” Appeal 2010-012239 Application 10/517,018 5 The Examiner finds that: Furthermore, the cited passage (Pg. 10, lines 20-22 of the specification) does not even support this implied function. The passage merely states that "[m]ore sophisticated mobile terminal devices may further add information about the location of the mobile phone, or can comprise information about the environment like temperature, humidity and atmospheric pressure." The passage does not state how the mobile device actual [sic] obtains weather information. Ans. 17. (Emphasis added). We agree with the Examiner that Appellants’ Specification does not provide any definition giving special meaning and thereby limiting the scope of “automatically determining…actual weather conditions.” Ans. 16-18. The Specification only states that “the mobile homepage can comprise information such as a small map indicating the actual position of the mobile terminal device, or other elements indicating e.g. actual weather conditions such as temperature, atmospheric pressure, and humidity.” Spec. page 3, ll. 10-13. (Emphases added). Therefore the phrase “automatically determining…actual weather conditions” is to be given its plain meaning unless inconsistent with the Specification. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1372 (Fed. Cir. 2004). The Examiner has found the phrase “automatically determining…actual weather conditions” to encompass gathering or receiving that information from an external source, such as the Internet, without the user direct user input. Ans. 18. We find this construction of the “automatically determining…actual weather conditions” claim element to be Appeal 2010-012239 Application 10/517,018 6 both reasonable and consistent with the Specification.2 Id. Appellants have not presented evidence or argument sufficient to persuade us that the Examiner’s interpretation of “automatically determining…actual weather conditions” is in error. Given the above construction, the Examiner correctly finds (Ans. 5) that the combination of Kehr and Schwoegler teaches automatically determining information about environmental conditions indicating actual weather conditions of a location of the mobile telephone device (citing to Schwoegler, Fig 4, ¶[0059]). Ans. 5. Regarding Appellants’ contention 2, although Appellants admit that “the claim language does not explicitly recite a sensing of the environment by the mobile telephone,” they nonetheless argue that implicitly “the claimed mobile telephone comprises elements capable of sensing the environment in which the mobile telephone is located.” Br. 6. The Examiner finds (and we agree) that there is nothing implicit within the specification or the state of mobile phone technology at the time the invention was created to suggest that the mobile phone senses the environmental conditions of the specific location of the mobile device. Ans. 17. The Examiner also finds that nothing related to "sensing" or "reading" weather conditions using only the mobile phone is found within the specification. Id. As such, we agree with the Examiner and find that Appellants’ arguments are not commensurate with the scope of the claims because claim 2 See In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969) and In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004) (During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification.) Appeal 2010-012239 Application 10/517,018 7 1 does not recite that the “mobile telephone comprises elements capable of sensing the environment in which the mobile telephone is located.” Claim 19 recites, inter alia, “a processor configured to determine information about environmental conditions indicating actual weather conditions of a location of said mobile telephone device.” (Emphases added). Appellants contend that “it would have been clear to those of ordinary skill in the art that no downloading of the information from the Internet, as in Schwoegler, for example, is necessary because the processor in the mobile telephone device itself determines the information about the environmental conditions at the location of the device.” Br. 8. (Emphasis added). We find that Appellants’ arguments are not commensurate with the scope of the claims because the recited term “configured” does not exclude downloading. As such, for reasons similar to claim 1 above, claim 19 does not preclude downloading forecasts from a weather forecasting service to the mobile terminal. Appellants argue the patentability of claims 2-11, 13-14, and 22, based on the same arguments presented for claims 1 and 19 (see Br. 9-12), which we found to be unpersuasive. Therefore, for the same reasons stated above with respect to claims 1 and 19, we conclude that the Examiner did not err in rejecting claims 1-11, 13-14, 19-22, 25 and 26 under 35 U.S.C. § 103(a). Appeal 2010-012239 Application 10/517,018 8 CONCLUSION On the record before us, we conclude that, because the combination of references teaches or suggests all the claim limitations, the Examiner has not erred in rejecting claims 1-11, 13-14, 19-22, 25 and 26 as being unpatentable under 35 U.S.C. § 103(a). DECISION The appeal of claim 16 is dismissed. The Examiner’s rejection of claims 1-11, 13-14, 19-22, 25 and 26 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 tj Copy with citationCopy as parenthetical citation