Ex Parte Ling et al

Patent Trial and Appeal Board

Dec 20, 2018

13768982 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/768,982 02/15/2013
23446 7590 12/25/2018
MCANDREWS HELD & MALLOY, LTD
500 WEST MADISON STREET
SUITE 3400
CHICAGO, IL 60661
FIRST NAMED INVENTOR
Curtis Ling
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.
25044US02 6320
EXAMINER
CHEN, ZHITONG
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
12/25/2018 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):
mhmpto@mcandrews-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CURTIS LING and TIMOTHY GALLAGHER1
Appeal2017-002265
Application 13/7 68,982
Technology Center 2600
Before MARC S. HOFF, CAROLYN D. THOMAS, and
JAMES R. HUGHES, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-20, all the pending claims in the
present application (see Claims Appendix). We have jurisdiction over the
appeal under 35 U.S.C. § 6(b ).
We REVERSE.
The present invention relates generally to detecting the presence of a
peer wireless communication device within operating range and pairing with
the same (see Spec., Abstract).
1 Appellants name Maxlinear Inc. as the real party in interest (App. Br. 2).
Appeal2017-002265
Application 13/768,982
Claim 1 is illustrative:
1. A method, comprising:
in a wireless communication device:
configuring communication of wireless broadband
signals, corresponding to a first type of communications, for
transmission over a designated frequency spectrum band
allocated by a regulatory body to a second type of
communications;
detecting presence of a peer wireless
communication device within operating range; and
pairing with said detected peer wireless
communication device,
wherein:
said wireless communication device and said peer
wireless communication device are operable to communicate
said wireless broadband signals using said first type of
communications at a power level that is below a spurious
emissions mask specified by said regulatory body for limiting
spurious emissions in said second type of communications.
Appellants appeal the following rejections:
RI. Claims 1, 2, 11, and 12 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Moallemi (US 2007/0249288 Al, publ. Oct. 25,
2007), Gehring (US 2004/0028011 Al, publ. Feb. 12, 2004), and Rofheart
(US 2005/0265503 Al, publ. Dec. 1, 2005);
R2. Claims 3, 4, 13, and 14 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Moallemi, Gehring, Rofheart, and McCrokle (US
2003/0053554 Al, publ. Mar. 20, 2003);
R3. Claims 5-8 and 15-18 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Moallemi, Gehring, Rofheart, McCrokle, and Overy
(US 2003/0220765 Al, publ. Nov. 27, 2003); and
2
Appeal2017-002265
Application 13/768,982
R4. Claims 9, 10, 19, and 20 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Moallemi, Gehring, Rofheart, and Kindle (US
2009/0016728 Al publ., Jan. 15, 2009).
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
ANALYSIS
Appellants contend that "the Examiner does not explain or clarify how
and where Gehring teaches communications corresponding to two different
types, where signals corresponding to the first type of communications are
configured for transmission over a spectrum allocated ... for transmission[]
for the second type of communications" (App. Br. 10). Specifically,
Appellants contend that "[ n Jo where does Gehring disclose, at the cited
paragraphs, different types of communications, spectrum allocation,
regulatory bodies, or any details on configuring of communications" (App.
Br. 10), because when looking at the "use of split UWB bands ... it is clear
that per Gehring' s teaching that the bands are both used for UWB--that is
the same type of communication (UWB)" (id. at 12). Appellants further
contend that "Gehring's invention is merely directed to switching between
different bands (e.g., band 4 and band 2), but for the same type of
communication" (Reply Br. 6). We agree with Appellants.
Claim construction is a question of law that we review de nova. Cf
Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319, 1331 (Fed. Cir.
2009). Following the guidance of the Federal Circuit, we also perform de
3
Appeal2017-002265
Application 13/768,982
nova review of the Examiner's claim construction. We are not limited to the
Examiner's findings and conclusions with respect to claim construction (id.).
Here, the Examiner finds that "when a transmission coding is
changed, a redundancy scheme is modified, a transmission frequency band is
split/shift or a transmission bandwidth is reduced or increased and a device
configuration is needed to be adjusted, the type of communication is
different" (Ans. 3--4). The Examiner further finds that "[u]nless the different
type of communication is further narrowed to different protocols or different
RATs and etc., the arguments that Gehring's bands all use UWB ... is
moot" (id. at 4 ). In other words, the Examiner construes the claimed "type
of communications" as designating different communication instance or
different arrangement for transmitting communications, as opposed to
different types of protocol or wireless technologies. We find the Examiner's
construction to be too broad and inconsistent with Appellants' Specification.
"During examination, 'claims ... are to be given their broadest
reasonable interpretation consistent with the specification, and ... claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art."' In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d
831, 833 (Fed. Cir. 1990)).
The claims require communications ( of a first type) over a
"designated frequency spectrum band allocated by a regulatory body to a
second type of communications" ( claim 1 ( emphasis added)). The "types"
of communications refer to classifications ( of signals/ communications)
transmitted within a regulated (by a regulatory body) frequency spectrum.
Here, we find that one of ordinary skill in the art would interpret the claimed
4
Appeal2017-002265
Application 13/768,982
"type of communications," when read in light of the Specification, to denote
"types" of wireless technologies, i.e., wireless communication protocols or
schemes.
For example, Appellants' Specification discusses that "the processor
240 may enable configuration of the BNC/FSC enabled device 200 to
operate in different communication environments" (Spec. ,r 43) and
describes how "other wireless technologies such as, for example, ZigBee,
Bluetooth, WLAN, and WiMax may coexist with full spectrum capture in
the same BNC/FSC enabled device 200" (Spec. ,r 72; see also Spec. Figs. 1
and 2). In other words, Appellants' Specification describes a device that
uses different wireless technologies or wireless communication protocols.
Gehring merely discloses a multi-frequency band wideband system
and accounting for the modification of center frequencies (see Gehring
Abstract; see also id. ,r,r 66-70). In other words, Gehring appears to be
limited to ultra-wideband technology and the Examiner's findings fail to
demonstrate otherwise.
Thus, we find that the Examiner's aforementioned interpretation is too
broad in that it ignores Appellants' Specification and essentially cuts out the
recited "type of communications" from the claim.
As such, we disagree with the Examiner's finding that Gehring
teaches a first/second "type of communications," as recited in each of the
independent claims. The Examiner also has not found any of the other
references of record teach this feature. Since we agree with at least one of
the arguments advanced by Appellants, we need not reach the merits of
Appellants' other arguments. Accordingly, we will not sustain the
Examiner's obviousness rejections of claims 1-20.
5
Appeal2017-002265
Application 13/768,982
DECISION
The decision of the Examiner to reject claims 1-20 is reversed.
REVERSED
6