Ex Parte Knapik et alDownload PDFPatent Trial and Appeal BoardJul 20, 201612901876 (P.T.A.B. Jul. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/901,876 10/11/2010 22917 7590 07/22/2016 MOTOROLA SOLUTIONS, INC IP Law Docketing 1301 EAST ALGONQUIN ROAD IL02 5th Floor - SHS SCHAUMBURG, IL 60196 FIRST NAMED INVENTOR Grzegorz Knapik 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 ATTORNEY DOCKET NO. CONFIRMATION NO. SBL08928 1019 EXAMINER BATISTA, MARCOS ART UNIT PAPER NUMBER 2642 NOTIFICATION DATE DELIVERY MODE 07/22/2016 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): USAdocketing@motorolasolutions.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GRZEGORZ KNAPIK, ALBERT DABROWSKI, BARTOSZ DRZEWINSKI, KRZYSZTOF A. KLOC, KONRAD LIEDTKE, SYL WESTER PENA, MICHAL PYTEL, MICHAL SLUSARCZYK, and IRENEUSZ WLIZLO Appeal 2015-000411 Application 12/901,876 Technology Center 2600 Before THU A. DANG, JOHN P. PINKERTON, and NORMAN BEAMER, Administrative Patent Judges. PINKERTON, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1--4, 7-11, and 14, which constitute all the claims pending in this application. Claims 5, 6, 12, 13, and 15-20 are canceled. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellants identify Motorola Solutions, Inc. as the real party in interest. App. Br. 3. Appeal 2015-000411 Application 12/901,876 STATEivIENT OF THE CASE Introduction Appellants' disclosed and claimed invention generally relates to a mobile telephone. Abstract. 2 Claim 1 is representative of the claims on appeal and reads as follows (with the disputed limitations emphasized): 1. A mobile telephone comprising: a radio transceiver for transmitting a radio signal based on a measured signal strength of a cellular signal received from a remote transceiver; a microprocessor coupled to the radio transceiver, the microprocessor monitoring the measured signal strength over time and determining a time when the measured signal strength decreases to a predetermined threshold, the predetermined threshold corresponding to a loss of the cellular signal received from the remote transceiver; a global positioning system (GPS) receiver coupled to the processor for determining a location of the mobile telephone at the time when the measured signal strength decreases to the predetermined threshold; a memory coupled to the radio transceiver for storing the time and the location only when the measured signal strength decreases to the predetermined threshold; and a display coupled to the memory for displaying a route traveled by the mobile telephone, the route indicating the time and the location of the mobile telephone when the measured signal strength decreases to the predetermined threshold. 2 Our Decision refers to the Final Office Action mailed Sept. 13, 2013 ("Final Act."); Appellants' Appeal Brief filed Apr. 4, 2014 ("App. Br."); the Examiner's Answer mailed July 29, 2014 ("Ans."); Appellants' Reply Brief filed Sept. 19, 2014 ("Reply Br."); and, the Specification filed Oct. 11, 2010 ("Spec."). 2 Appeal 2015-000411 Application 12/901,876 App. Br. 12 (Claims App.). Re} ection on Appeal Claims 1--4, 7-11, and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Martin et al. (US 2009/0163197 Al, published June 25, 2009) ("Martin"), Malcolm (US 2004/0214616 Al, published Oct. 28, 2004) ("Malcolm"), and Lee (US 2009/0156198 Al, published June 18, 2009) ("Lee"). ANALYSIS We have reviewed the Examiner's rejection in light of Appellants' arguments in the Briefs and are not persuaded the Examiner erred. Unless otherwise noted, we agree with, and adopt as our own, the findings and reasons set forth by the Examiner in the Final Action from which this appeal is taken (Final Act. 2-11 ), and in the Answer in response to Appellants' Appeal Brief (Ans. 4--7), and we concur with the conclusions reached by the Examiner. For emphasis, we consider and highlight specific arguments as presented in the Briefs. Appellants contend Martin fails to teach or suggest its mobile unit "determining a time when the measured signal strength decreases to a predetermined threshold" and a memory in the mobile unit "storing the time and the location only when the measured signal strength decreases to the predetermined threshold," as recited in claim 1, and as similarly recited in claim 9. App. Br. 8-9. Appellants also argue because Martin fails to teach the "storing" limitation, Martin also fails to teach or suggest "a global positioning system (GPS) receiver coupled to the processor for determining a location of the mobile telephone at the time when the measured signal 3 Appeal 2015-000411 Application 12/901,876 strength decreases to the predetermined threshold," as recited in claim 1. App. Br. 9. Appellants further argue Malcolm does not cure the deficiencies of Martin, and Lee does not cure the deficiencies of Martin and Malcolm. Id. We are not persuaded by Appellants' arguments that the Examiner has erred. Appellants' arguments regarding the "determining" and "storing" limitations are directed to Martin individually, but the Examiner relies on the combination of Martin and Malcolm as teaching or suggesting these limitations. Final Act. 3-5; Ans. 4--5, 7. Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The relevant inquiry is whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, the Examiner finds Martin teaches a mobile device that receives a signal from a base station and determines various information about the signal, including if the signal has been dropped based on whether the signal quality is lower than a predetermined threshold. Ans. 4 (citing Martin i-f 33). The Examiner then relies on Malcolm for teaching or suggesting "that the time and location of signal strength are recorded when the signal is lost (i.e., signal has dropped below a predetermined level)." Ans. 4--5 (citing Malcolm i-f 78). Appellants have not provided persuasive evidence or arguments to rebut these findings. Thus, we are unpersuaded that the Examiner erred in finding the combination of Martin and Malcolm teaches or suggests the limitations "determining a time when the measured signal 4 Appeal 2015-000411 Application 12/901,876 strength decreases to a predetermined threshold" and "storing the time and the location only when the measured signal strength decreases to the predetermined threshold." Id. Appellants further argue Martin fails to teach or suggest "a global positioning system (GPS) receiver coupled to the processor for determining a location of the mobile telephone at the time when the measured signal strength decreases to the predetermined threshold, as recited in claim 1. App. Br. 9. This argument is not persuasive because, once again, Appellants argue Martin individually, whereas the Examiner relies on the combination of Martin and Malcolm as teaching this limitation. Ans. 7; see In re Merck, 800 F .2d at 1097. In that regard, the Examiner finds, and we agree, as follows: Id. Malcolm at cited paragraph 78 teaches that the time and location of signal strength are recorded when the signal is lost (i.e., signal has dropped below a predetermined level). * * * Martin at the cited paragraphs of 7, 27 and 33, discloses the use of a GPS receiver in the mobile device in order to determine the location of the mobile device. When the teaching[ s] of Martin and Malcolm are combined, the GPS receiver is construed as determining the location of the mobile device when the signal drops below certain level. In the Reply Brief, Appellants argue that Lee and Malcolm fail to teach or suggest a display "for displaying a route traveled by the mobile telephone, the route indicating the time and the location of the 5 Appeal 2015-000411 Application 12/901,876 mobile telephone when the measured signal strength decreases to the predetermined threshold," as recited in claim 1. Reply Br. 4--5. 3 Appellants also argue in the Reply Brief that the references do not provide a reason to combine Lee with Martin and Malcolm and the Examiner "has been afforded the benefit of impermissible hindsight." Id. at 5. Appellants further argue in the Reply Brief that when Lee is combined with Martin and Malcolm, "the calendar or map does not display the actual time and location but instead displays symbols representing where and when [the] signal is lost and found." Id. at 5- 6. Appellants did not, however, make these arguments regarding the limitation "for displaying a route" in the Appeal Brief, but raised them for the first time in the Reply Brief. Accordingly, these argument are waived as they were raised for the first time in the Reply Brief without a showing of good cause. See 37 C.F.R. § 41.41(b)(2) (2012); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) ("[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not."). Thus, based on this record, we do not find error (1) in the Examiner's findings that the combination of Martin and Malcolm teaches or suggests the disputed limitations of claims 1 and 9 or (2) in the Examiner's conclusion that the combination of these references renders claims 1 and 9 obvious under 35 U.S.C. § 103(a). Accordingly, we sustain the Examiner's rejection 3 The pages of the Reply Brief are unnumbered. Accordingly, we consider the title page to be page 1 and the remaining pages to be numbered sequentially thereafter. 6 Appeal 2015-000411 Application 12/901,876 of claims l and 9. We also sustain the Examiner's rejection of claims 2--4, 7, 8, 10, 11, and 14, which variously depend from claims 1 and 9 and are not argued separately. See 37 C.F.R. § 41.37(c)(l)(iv). DECISION We affirm the Examiner's decision rejecting claims 1--4, 7-11, and 14 under 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). AFFIRMED 7 Copy with citationCopy as parenthetical citation