Ex Parte Keller et al

Patent Trial and Appeal Board

Nov 2, 2016

14216048 (P.T.A.B. Nov. 2, 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.
14/216,048 03/17/2014 Ralf Keller P19767-US2 8730
27045 7590 11/04/2016
F.RTrSSON TNC EXAMINER
6300 LEGACY DRIVE HONG, DUNG
M/SEVR 1-C-ll
PLANO, TX 75024 ART UNIT PAPER NUMBER
2643
NOTIFICATION DATE DELIVERY MODE
11/04/2016 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):
kara.coffman @ ericsson.com
kathryn.lopez@ericsson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RALF KELLER, FRANK HUND SCHELDT, and
THORSTEN LOHMAR
Appeal 2015-007515
Application 14/216,04s1
Technology Center 2600
Before BRUCE R. WINSOR, DANIEL J. GALLIGAN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—18. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Technology
The application relates to informing mobile terminals of an
emergency event. Abstract.
Representative Claims
Claims 1 and 17 are representative and reproduced below with the
limitations at issue emphasized:
1 According to Appellants, the real party in interest is Telefonaktiebolaget
LM Ericsson (publ). App. Br. 1.
Appeal 2015-007515
Application 14/216,048
1. A mobile terminal comprising:
an output unit;
a processing unit; and
a non-transitory computer-readable storage medium,
coupled to the processing unit, further including computer-
readable instructions, when executed by the processing unit, are
configured to:
receive an emergency service associated with
emergency information via an emergency multimedia
distribution bearer being indicated by an emergency
priority indicator of being of a higher priority compared to
further communication being not associated with the
emergency priority indicator,
receive information for a setting of the output unit
to an emergency alert mode for a clearly human-
recognizable perception of the emergency service,
set the output unit to the emergency alert mode
according to the information by overwriting with
emergency alert mode settings and temporarily
constraining or even deactivating some user-interaction
possibilities with the mobile terminal,
set and process the received emergency service to
be output by the output unit according to the emergency
alert mode, and
output the emergency service according to the
emergency alert mode.
17. The mobile terminal of claim 1, wherein the emergency
priority indicator is associated with a setting of the emergency
alert mode and an establishing of the emergency multimedia
capable distribution bearer causes an initiation of the setting to
the emergency alert mode.
Rejection on Appeal
Claims 1—4, 9—12, 17, and 18 stand rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Binzel et al. (US 2005/0037728 Al; Feb.
17, 2005), Korhonen et al. (WO 03/043360 Al; May 22, 2003), Lamb (US
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Application 14/216,048
6,329,904 Bl; Dec. 11, 2001), and Goss (US 7,330,693 Bl; Feb. 12, 2008).2
Final Act. 11, 24—25; App. Br. 4.
Rejection Not Addressed in Appeal Brief
Claims 1—18 stand rejected on the grounds of non-statutory
obviousness-type double patenting over claims 1, 6, 8, 14, and 15 of US
8,792,852 B2 (July 29, 2014) and Goss. Final Act. 3. Appellants do not
address the merits of the double patenting rejection in the Appeal Brief and
therefore have waived such arguments. See 37 C.F.R. § 41.37(c)(l)(iv).
Thus, we affirm the Examiner’s double patenting rejection of claims 1—18.
See 37 C.F.R. § 41.31(c). However, our affirmance is without prejudice to
any rights Appellants may have to file a terminal disclaimer to overcome the
double patenting rejection.
ISSUES
1. Did the Examiner err in finding Binzel teaches or suggests to
“set the output unit to the emergency alert mode according to the
information by overwriting with emergency alert mode settings,” as recited
in claim 1?
2. Did the Examiner err in finding Goss teaches or suggests “the
emergency priority indicator is associated with a setting of the emergency
alert mode,” as recited in claim 17?
3. Did the Examiner err in finding Goss teaches or suggests “an
establishing of the emergency multimedia capable distribution bearer causes
2 Claims 17 and 18 were not listed in the overview of the § 103 rejection but
are addressed in the body of the rejection. Final Act. 11, 24—25. Similarly,
Appellants do not list claims 17 or 18 in the overview of the appeal, yet do
provide arguments specifically addressed to claim 17. App. Br. 2, 4—6.
Thus, we treat claims 17 and 18 as rejected under § 103 and on appeal.
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Application 14/216,048
an initiation of the setting to the emergency alert mode,” as recited in claim
17?
ANALYSIS
Claim 1
Claim 1 recites “set the output unit to the emergency alert mode
according to the information by overwriting with emergency alert mode
settings and temporarily constraining or even deactivating some user-
interaction possibilities with the mobile terminal” (emphasis added). The
prior art teaches “overriding” settings, but Appellants contend “overriding”
is not the same as the claimed “overwriting.” App. Br. 6—7.
Specifically, Binzel teaches that for normal messages, “the wireless
portable communication device 104 can be set to delay communicating the
contents of, or dismiss, the broadcast message by having a user selected
message handling setting in the wireless portable communication device 104
appropriately configured.” Binzel 112. However, if a message is indicated
as an emergency, “then the wireless portable communication device 104
activates an overriding function.” Id. “The overriding function is designed
to override or bypass any conflicting user selected message handling setting
such that. . . the contents of the broadcast message are communicated
without delay.” Id. Thus, an emergency message gets played regardless of
the user’s normal setting.
Appellants contend “[o]ne skilled in the art would appreciate that
‘overwrite’ means to replace settings with ‘emergency alert mode settings’”
whereas “‘override or bypass’ does not necessarily mean that the ‘user
selected handling setting’ is replaced with different settings.” App. Br. 7.
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Application 14/216,048
We are not persuaded of error. First, Appellants’ argument is not
commensurate with the scope of the claim as written. The claim does not
recite “replacing settings,” as Appellants suggest. To the contrary, claim 1
requires “overwriting with emergency alert mode settings” but does not
specify what gets overwritten. Second, although Appellants argue
overriding “does not necessarily” mean replacing settings, the rejection here
was based on obviousness, not inherent anticipation, and Appellants have
not sufficiently addressed why replacing settings would not be obvious in
light of Binzel. Third, Binzel teaches or suggests replacing settings.
Specifically, Binzel teaches the device “overrides the user selected message
handling setting, which had previously allowed delayed communication of
the contents,” and instead communicates the emergency broadcast “without
delay.” Binzel 112. Thus, Binzel teaches replacing the user’s normal
setting (e.g., delaying a message) with the emergency setting (i.e., playing
the emergency message “without delay”). We therefore agree with the
Examiner that Binzel teaches or suggests this limitation.
Accordingly, we sustain the Examiner’s rejection of claim 1, and
claims 2-4, 9-12, and 18, which Appellants argue are patentable for similar
reasons. See App. Br. 7; 37 C.F.R. § 41.37(c)(l)(iv).
Claim 17
Claim 17 recites “the emergency priority indicator is associated with a
setting of the emergency alert mode.” We are not persuaded by Appellants’
conclusory argument that there is no association in Goss. App. Br. 6. We
agree with the Examiner that Goss teaches “a message with priority indicator
(Fig. 6 step 618-620, Fig. 7) triggers ‘a setting of emergency alert mode’
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Application 14/216,048
(Fig. 6 step 624-626-628-630 and col. 9 In 49-col. 10 In 52). Therefore,
there is a connection.” Ans. 5 (emphasis omitted).
Claim 17 further recites “an establishing of the emergency multimedia
capable distribution bearer causes an initiation of the setting to the
emergency alert mode.”
Appellants contend Goss’ determining “whether or not a message is a
priority message” or at the “end of a broadcast” fails to teach or suggest the
claimed bearer because “[a] bearer is established to deliver information — it
is not established after the message is received.” App. Br. 5; Reply Br. 3.
However, Appellants fail to sufficiently address the Examiner’s finding that
Goss’ bearer is for receiving the emergency broadcast. The Examiner stated,
“Goss discloses ‘an establishing of the emergency multimedia capable
distribution bearer’ (i.e. establishment of bearer for receiving high priority
broadcast at step 630).'” Ans. 4. The label 630 is an obvious typographical
error since Figure 6 shows step 630 is “END OF BROADCAST OR USER
TERMINATES” whereas step 628 is “RECEIVE BROADCAST
CHANNEL.” Appellants’ Reply Brief focuses on step 630 (i.e., ending the
broadcast) and fails to sufficiently address the Examiner’s textual
explanation regarding “receiving” the emergency broadcast.
Appellants also have not directed us to any portion of the
Specification or extrinsic evidence defining “bearer.” Moreover, even if
Appellants were correct that “the term ‘bearer’ implies the distribution
bearer extends to multiple components within the network,” Reply Br. 4,
Appellants have not sufficiently addressed that Goss teaches multiple
wireless communication devices (WCDs) receiving the emergency alert
from a central provider. E.g., Goss 6:27—35, FIG. 2. Thus, we are not
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persuaded of error in the Examiner’s finding Goss teaches or suggests “an
establishing of the emergency multimedia capable distribution bearer.”
Appellants also contend that Goss’ checking if the user is on a call is
not “an initiation of the setting to the emergency alert mode.” App. Br. 5—6;
Reply Br. 3. We are not persuaded by Appellants’ conclusory argument.
We agree with the Examiner that “the initiation of the setting to the
emergency alert mode is the procedure that wireless communication device
WCD executes [at] step[s] 626-628 described in Fig. 6 and col. 10 In 16-35
to automatically switch to a broadcast channel as a result of an urgent
priority broadcast message.” Ans. 4—5.
Accordingly, we sustain the Examiner’s rejection of claim 17.
DECISION
For the reasons above, we affirm the Examiner’s decision rejecting
claims 1—4, 9-12, 17, and 18 under 35 U.S.C. § 103. We also affirm the
Examiner’s decision rejecting claims 1—18 for double patenting.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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