Ex Parte Keller et alDownload PDFPatent Trial and Appeal BoardNov 2, 201614216048 (P.T.A.B. Nov. 2, 2016) 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. 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 2 Appeal 2015-007515 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. 3 Appeal 2015-007515 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. 4 Appeal 2015-007515 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’ 5 Appeal 2015-007515 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 6 Appeal 2015-007515 Application 14/216,048 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 7 Copy with citationCopy as parenthetical citation