Ex Parte Jantunen et alDownload PDFPatent Trial and Appeal BoardDec 11, 201713395669 (P.T.A.B. Dec. 11, 2017) Copy Citation 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). 2 Appeal 2017-002270 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. 3 Appeal 2017-002270 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). 4 Appeal 2017-002270 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. 5 Appeal 2017-002270 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 6 Appeal 2017-002270 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 7 Copy with citationCopy as parenthetical citation