Ex Parte Jantunen et al

Patent Trial and Appeal Board

Dec 11, 2017

13395669 (P.T.A.B. Dec. 11, 2017)

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.
13/395,669 03/13/2012 Joni Jantunen 1004289.636US 3140
10928 7590 12/18/2017
T nrke T nrH T T P
EXAMINER
IP Docket Department
3 World Financial Center
TANG, SON M
New York, NY 10281-2101 ART UNIT PAPER NUMBER
2685
NOTIFICATION DATE DELIVERY MODE
12/18/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ptopatentcommunication @ lockelord. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONI JANTUNEN, SERGEY BOLDYREV, and
JARMO ARPONEN
Appeal 2017-002270
Application 13/395,669
Technology Center 2600
Before ST. JOHN COURTENAY III, JOHNNY A. KUMAR, and
KIMBERLY McGRAW, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, 18, 19, 33, 34, 39, 40, 46, 47, 51, and 52, which are
all the claims pending in this application. Claims 3—17, 20-32, 35—38,
41—45, 48—50, and 53—58 are cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal “relates generally to
wireless communication and information storing” (Spec. 11). According to
one embodiment, the invention is directed to:
Appeal 2017-002270
Application 13/395,669
a method is provided comprising detecting a write-enabled
radio frequency tag. The method further comprising selecting
an operation mode comprising a protocol configured to write
data to the write-enabled radio frequency tag, and transmitting
data to the memory associated with the write-enabled radio
frequency tag according to the selected operation mode.
(Spec. 16).
Representative Claim
1. A method, comprising:
detecting a write-enabled device;
selecting an operation mode comprising a protocol configured
to write data to the write-enabled device,
wherein the operation mode is selected from a plurality of
operation modes comprising a first operation mode that comprises
instructing the write-enabled device to write two or more bits of
data in each memory cell of at least a first section of a memory of
the write-enabled device and a second operation mode that
comprises instructing the write-enabled device to write one bit of
data in each memory cell of at least a second section of a memory
of the write-enabled device; and
[L] transmitting data and an associated operation mode
indication to the write-enabled device according to the selected
operation mode.
(Contested limitation L bracketed and emphasized).
Rejection
Claims 1,2, 18, 19, 33, 34, 39, 40, 46, 47, 51, and 52 are rejected
under pre-AIA 35 U.S.C. § 103(a) as being obvious over the combined
teachings and suggestions of Landt (US 6,677,852 Bl; iss. Jan. 13, 2004) in
view of Wong (US 2009/0259799 Al; publ. Oct. 15, 2009).
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Application 13/395,669
Grouping of Claims
Based upon Appellants’ arguments, we decide the appeal of the
§ 103(a) rejection of all claims 1, 2, 18, 19, 33, 34, 39, 40, 46, 47, 51, and 52
based upon representative independent claim 1. To the extent Appellants
have not advanced separate, substantive arguments for particular claims, or
other issues, such arguments are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We disagree with Appellants’ arguments, and we adopt as our
own: (1) the findings and legal conclusions set forth by the Examiner in the
Final Office Action (2—5) from which this appeal is taken, and (2) the
findings, legal conclusions, and explanations set forth in the Answer (2-4) in
response to Appellants’ arguments. We highlight and address specific
findings and arguments for emphasis in our analysis below.
Rejection of Independent Claim 1 under 35 U.S.C. § 103(a)
Issue: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by
finding the cited combination of Landt and Wong would have taught or
suggested contested limitation L:
[L] transmitting data and an associated operation mode
indication to the write-enabled device according to the selected
operation mode [,]
within the meaning of representative claim l?1 (Emphasis added).
1 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 111
F.3d 1048, 1054 (Fed. Cir. 1997). See, e.g., Spec. 1 80 (“It is also noted
herein that while the above describes example embodiments of the
invention, these descriptions should not be viewed in a limiting sense.
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Application 13/395,669
Appellants advance the following two principal contentions:
1. Landt does not disclose “transmitting data and an associated
operation mode indication to the write-enabled device according to the
selected operation mode [of a plurality of write operation modes],” (App. Br.
16-18).
2. There is no motivation for modifying Landt in view of Wong (App.
Br. 19).
However, based upon our review of the record, we find Appellants’
first contention is not persuasive. Because Appellants attack the primary
Landt reference in isolation (App. Br. 16—17), Appellants have not rebutted
the Examiner’s ultimate legal conclusion of obviousness, which relies on the
combination of Landt and Wong as teaching or suggesting contested
limitation L. Final Act. 2—3; Ans. 2-4. See In re Merck & Co., Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (One cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references.).
We particularly note at least two versions of “an operation mode
comprising a protocol configured to write data to the write-enabled device”
are found within the first and second operation modes expressly defined
within claim 1:
wherein the operation mode is selected from a plurality
of operation modes comprising a first operation mode that
comprises instructing the write-enabled device to write
two or more bits of data in each memory cell of at least a first
section of a memory of the write-enabled device and a second
Rather, there are several variations and modifications which may be made
without departing from the scope of the present invention as defined in the
appended claims.” (Emphasis added).
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Application 13/395,669
operation mode that comprises instructing the write-enabled
device to write one bit of data in each memory cell of at least a
second section of a memory of the write-enabled device ....
(Claim 1) (emphasis added).
The Examiner reads the recited first and second operation modes on
Wong’s multi-level cell (MLC) flash memory device, and Wong’s single-
level cell (SLC) architectures, respectively. (Final Act. 3; Wong || 18—20).
We note Wong paragraph 19 expressly describes: “Programming and read
times are faster for SLCs since only one bit is stored per cell.” (Emphasis
added).
Given this evidence {id.), we find Appellants fail to address the
Examiner’s specific findings which are based on the combined teachings and
suggestions of Landt and Wong. (Final Act. 3 4). See Merck, 800 F.2d at
1097. Therefore, on this record, we find Appellants’ contentions are not
persuasive regarding contested limitation L.
Moreover, we find the Examiner’s proffered combination of Landt
and Wong would have merely realized a predictable result. The Supreme
Court guides: “when a patent ‘simply arranges old elements with each
performing the same function it had been known to perform’ and yields no
more than one would expect from such an arrangement, the combination is
obvious.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (quoting
Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976)). Our reviewing court
further emphasizes: “the question under [35 U.S.C. § 103] is not merely
what the references expressly teach but what they would have suggested to
one of ordinary skill in the art at the time the invention was made.” Merck
& Co. v. Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis
added) (internal quotations and citation omitted); see also MPEP § 2143.
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Application 13/395,669
This guidance is applicable here. Although Appellants additionally
urge, “[tjhere is no motivation for modifying Landt in view of Wong” (App.
Br. 19) (emphasis omitted), we find Appellants have failed to address the
Examiner’s specific finding which sets forth a rational underpinning for the
proffered combination of Landt and Wong:
it would have been obvious to one having ordinary skill in the
art at the time the invention was made, to modify the well-
known memory array that includes a (SLC) and (MLC)
configuration taught by Wong with the tag's memory of Landt,
so that, either one bit or multi-bits are able to store in a
separated section, for the benefit of a single bit data has an
advantage of write/read at a faster rate over the multi bits
data if necessary.
(final Act. 3) (emphasis added).
We note Wong paragraph 18 expressly describes: “Programming and
read times are faster for SLCs since only one bit is stored per cell”
(emphasis added). Therefore, given this evidence {id.), we find the
Examiner has set forth sufficient “articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 L.3d 977, 988 (Led. Cir. 2006). See also 35 U.S.C. § 132(a).
We additionally note that independent claims 18, 46, and 52 are silent
regarding the argued step L of transmitting data (Claim 1). Instead, claims
18, 46, and 52 include a corresponding step or function of receiving data
and an associated operation mode, via a wireless signal.
Accordingly, for at least the aforementioned reasons, we find the
Examiner’s underlying factual findings and ultimate legal conclusion of
obviousness are supported by a preponderance of the evidence. Because
Appellants have not persuaded us the Examiner erred, we sustain the
rejection of representative independent claim 1. The remaining claims on
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Application 13/395,669
appeal (not separately argued), fall with representative claim 1. See
Grouping of Claims, supra.
Reply Brief
To the extent Appellants may have advanced new arguments in the
Reply Brief not in response to a shift in the Examiner’s position in the
Answer, we note arguments raised in a Reply Brief that were not raised in
the Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause, which Appellants
have not shown. See 37 C.F.R. § 41.41(b)(2).
DECISION
We affirm the Examiner’s decision rejecting claims 1,2, 18, 19, 33,
34, 39, 40, 46, 47, 51, and 52 under pre-AIA 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED
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