Ex Parte Lobo

Patent Trial and Appeal Board

Jan 30, 2017

11991861 (P.T.A.B. Jan. 30, 2017)

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.
11/991,861 03/02/2009 Nativadade Albert Lobo PAT 82858W-2 1853
132251 7590
(BLG/Core Wireless/27921)
Borden Ladner Gervais LLP
World Exchange Plaza
100 Queen Street, Suite 1300
Ottawa, ON KIP 1J9
CANADA
EXAMINER
SMITH, PAULINHO E
ART UNIT PAPER NUMBER
2129
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
ipinfo@blg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NATIVADADE ALBERT LOBO
Appeal 2016-004095
Application 11/991,861
Technology Center 2100
Before MAHSHID D. SAADAT, CARL L. SILVERMAN, and
ALEX S. YAP, Administrative Patent Judges.
YAP, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the final rejection
of claims 1, 3-8, 11-16, 18-24, and 26—31,2 which are all the claims pending
in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is Core Wireless
Licensing S.A.R.L. (App. Br. 3.)
2 Claims 2, 9, 10, 17, and 25 were cancelled previously. (See id. at 10 14.)
Appeal 2016-004095
Application 11/991,861
STATEMENT OF THE CASE
Introduction
Appellant’s disclosed invention relates “to detecting presence/absence
of an information signal.” (Mar. 12, 2008 Specification (“Spec.”) p. 1,11. 7-
8.) Claim 1 is illustrative, and is reproduced below:
1. A method for detecting a presence of an information
signal comprising:
receiving inputs, wherein the inputs are power values;
updating a latest mean of the inputs based on at least the received
inputs;
determining an expected variance in a mean of the inputs
based on an assumed statistical distribution of the power values,
the expected variance being based on at least the latest mean of
the inputs;
determining a range of probable values for the mean of the
inputs based on the mean of the inputs and the determined
expected variance in the mean of the inputs; and
testing, using the determined expected variance of the
received inputs, a first hypothesis that the inputs include an
information signal to detect a presence of the information signal
by determining whether the range of probable values for the
mean of the inputs lies above a first threshold.
Prior Art and Rejections on Appeal
The following table lists the prior art relied upon by the Examiner as
evidence in rejecting the claims on appeal:
Wilson et al.
(“Wilson”) US 5,323,337 June 21,1994
Dubuc et al.
(“Dubuc”) US 7,428,270 B1 Sept. 23,2008
Barkat et al., Signal Detection and Estimation, Artech House Inc., 2nd
ed. pp. 101-115 (2005) (“Barkat”).
2
Appeal 2016-004095
Application 11/991,861
Claims 1, 22, 23, 26, and 27 stand rejected under 35 U.S.C. §112,
second paragraph, as failing to comply with the definiteness requirement.
(See Final Office Action (mailed Dec. 19, 2014) (“Final Act.”) 2-3.)
Claims 1, 3—8, 11—16, 18—20, 22—24, and 26—31 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Wilson in view of Dubuc.
(See Final Act. 4—23.)
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wilson, in view of Dubuc, and further in view of Barkat.
(See Final Act. 23-24.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions.
Indefiniteness Rejection
The Examiner finds that claims 1, 22, 23, 26, and 27 fail to comply
with the definiteness requirement of 35 U.S.C. §112, second paragraph
because:
The claims state that “determining an expected variance for the
mean of the inputs”, but fail to define what expected variance,
what equation or calculation is used to determine expected
variance, and how expected variance is different from variance.
It could mean expected variance is equal to, a multiple of,
divided by some number, or any possible math operations
performed on actual variance. In the interest of compact
prosecution and using the broadest reasonable interpretation,
examiner interprets the limitation to mean that expected variance
is the same as or equal to the variance.
3
Appeal 2016-004095
Application 11/991,861
(Final Act. 2; see id. at 3 (stating other reasons why the claims are
indefinite); see also Ans. 4—5 (maintaining the rejection under 35 U.S.C.
§ 112, second paragraph.)
Appellant does not address these specific findings in the briefs.
Accordingly, we sustain the Examiner’s rejection of claims 1, 22, 23, 26,
and 27 as failing to comply with the definiteness requirement under
35 U.S.C. § 112, second paragraph. Although the Examiner has not listed
dependent claims 3-8, 11-16, 18-20, 24, and 28-31, it is clear that the
Examiner also intended to reject these claims under 35 U.S.C. §112, second
paragraph, because these claims depend from either independent claim 1 or
independent claim 27. Therefore, we also sustain the 35 U.S.C. §112,
second paragraph, rejection of claims 3-8, 11-16, 18-20, 24, and 28-31.
Prior Art Rejections
The Examiner finds claims 1, 3-8, 11-16, 18-20, 22-24, and 26-31
unpatentable over Wilson in view of Dubuc (see Final Act. 4—23) and claim
21 unpatentable over Wilson, in view of Dubuc, and further in view of
Barkat (see Final Act. 23-24). Based on the above discussion, however, the
prior art rejections of claims 1, 3-8, 11-16, 18-24, and 26-31 under
35 U.S.C. § 103(a). In view of the indefmiteness of claims 1, 3—8, 11—16,
18—24, and 26—31, which are all the claims on appeal as discussed supra, we
do not review the Examiner’s § 103 rejections. Such a review would require
us to engage in speculation and conjecture to determine the scope of the
claimed invention. This we decline to do. See In re Steele, 305 F.2d 859,
862 (CCPA 1962) (A prior art rejection cannot be sustained if the
hypothetical person of ordinary skill in the art would have to make
speculative assumptions concerning the meaning of claim language.); see
4
Appeal 2016-004095
Application 11/991,861
also In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970) (“If no reasonably
definite meaning can be ascribed to certain terms in the claim, the subject
matter does not become obvious-the claim becomes indefinite.”).
Accordingly, we do not sustain the Examiner’s rejections of claims 1, 3-8,
11-16, 18-24, and 26-31 under 35 U.S.C. § 103(a).
DECISION
We affirm the decision of the Examiner to reject claims 1, 3-8, 11-16,
18-24, and 26-31 for failing to comply with the definiteness requirement of
35 U.S.C. §112. We reverse the decision of the Examiner to reject claims 1,
3-8, 11-16, 18-24, and 26-31 under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
5