Ex Parte Knapik et al

Patent Trial and Appeal Board

Jul 20, 2016

12901876 (P.T.A.B. Jul. 20, 2016)

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.").
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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
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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
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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
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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.
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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
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