Ex Parte Miller-Smith

Patent Trial and Appeal Board

May 27, 2016

12811392 (P.T.A.B. May. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/811,392 07/01/2010 Richard Matthew Miller-Smith
24737 7590 06/01/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2008P00172WOUS 6713
EXAMINER
PEACHES, RANDY
ART UNIT PAPER NUMBER
2641
NOTIFICATION DATE DELIVERY MODE
06/01/2016 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):
marianne.fox@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD MATTHEW MILLER-SMITH1
Appeal2014-006530
Application 12/811,3 92
Technology Center 2600
Before THU A. DANG, NORMAN H. BEAMER, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-14. Claim 15 has been canceled. App. Br. 7. We have jurisdiction
over the remaining pending claims under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Koninklijke Philips N.V. as the real party in interest.
App. Br. 2.
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Application 12/811,3 92
STATEMENT OF THE CASE
Introduction
Appellant's invention is directed to collecting data from a plurality of
sensors of a wireless network. Abstract; Spec. 1. In addition to a sensor
network, an access, or collating device is also disclosed for collecting data
from the sensor nodes. Spec. 1. In a disclosed embodiment, the collection
device may be a portable device and/or stationary device where handover
between the portable and stationary devices is coordinated as one becomes
more suitable for use as compared to the other. Spec. 2, 7.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
1. A system for data collection from a plurality of sensors
connected in a wireless network, said system comprising:
a stationary device powered by mains; and
a mobile device for the data collection from the plurality of
sensors and having a detector for detecting a broadcast signal from the
stationary device; and
a control unit for handover of data collection from said mobile
device to said stationary device based on the detected broadcast
signal.
The Examiner's Rejection2
Claims 1-14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kuwana (US 2007 /0293223 Al; Dec. 20, 2007) and
Siegel (US 7,555,383 B2; June 30, 2009). Final Act. 2-9.
2 We note in the Final Office Action, the Examiner included claim 5 under a
heading "Claim Rejections -35 USC§ 112" and suggested Appellant
amend the claim to recite a "stationary device" rather than a "master
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Issue on Appeal
Did the Examiner err in finding the combination of Kuwana and
Siegel teaches or suggests the disputed limitations of claim 1?
ANALYSIS3
Appellant contends the paragraphs of Kuwana cited by Examiner are
silent about a terminal performing data collection from a plurality of sensors
in a wireless network and do not teach the handover of data collection from
a mobile device to a stationary device based on a detected broadcast signal.
App. Br. 8-9; Reply Br. 3-5. Appellant further argues Siegel fails to teach
"a mobile device for the data collection from the plurality of sensors." App.
Br. 9. For the reasons discussed infra, we are not persuaded of Examiner
error.
Kuwana relates to the operation of multiple wireless terminals acting
together to form a piconet. Kuwana i-f 4. Within the piconet, a wireless
terminal may also act as a control station. Kuwana i-f 5. According to
Kuwana, the wireless terminal acting as the control station "constantly
device." Final Act. 2. On August 7, 2013, Appellant amended the claim as
suggested by the Examiner. In an Advisory Action, mailed September 3,
2013, the Examiner indicated for purposes of the appeal, the proposed
amendments would be entered. Adv. Act. 1. Accordingly, we treat the
rejection of claim 5 under 35 U.S.C. § 112 as having been resolved and no
longer before us.
3 Throughout this Decision, we have considered the Appeal Brief filed
November 11, 2013 ("App. Br."); the Reply Brief filed May 12, 2014
("Reply Br."); the Examiner's Answer mailed on March 14, 2014 ("Ans.");
and the Final Office Action ("Final Act.") mailed on June 7, 2013, from
which this Appeal is taken.
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transmits a beacon, receives various requests and information from each of
the other wireless terminals and monitors status." Kuwana ,-r 8. Such
activity is disclosed to cause severe power consumption of that device.
Kuwana ,-r 8. To avoid power cut-off, for example, due to a low battery,
Kuwana discloses a communication device comprising, inter alia, a
recognition device to recognize "the type of power supply of another
communication apparatus participating in the network; and a handover
device configured to execute processing for handing over the control station
based upon recognition by the recognition device." Kuwana ,-r 10. In a
disclosed embodiment, a wireless terminal acting as a control station and
being powered by a battery performs a handover to another wireless terminal
powered by an AC power supply (i.e., mains). Kuwana ,-r 23.
The Examiner finds, and we agree, Kuwana teaches a plurality of
wireless terminals connected in a wireless network (i.e., a piconet). Final
Act. 2-3 (citing Kuwana i-fi-124, 27); Ans. 2-3; see also Kuwana, Fig. 1. As
the Examiner explains, a wireless terminal may be connected to an AC
power supply (i.e., powered by mains). Final Act. 2 (citing Kuwana ,-r 24).
The Examiner further finds, and we agree, Kuwana teaches a control unit
(406) (see, e.g., Kuwana, Figs. 1 and 2) that senses the power supply of the
wireless terminals. Final Act. 2 (citing Kuwana ,-r 27). Kuwana teaches that
this status is communicated wirelessly (i.e., via a broadcast signal) to the
wireless terminal serving as the control station. Kuwana i-fi-127, 34. The
Examiner finds, and we agree, the wireless terminals "contain sensors that
are able to sense the power of the associated terminals." Ans. 3. Further,
when a control station powered by battery detects a broadcast signal from
another wireless terminal indicating it is powered by mains, control is
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transferred (i.e., handed over) to the AC-powered wireless terminal. Final
Act. 3 (citing Kuwana i-fi-127, 34--38); Ans. 2-3.
Contrary to Appellant's assertion that paragraphs 34 through 38 of
Kuwana do not teach the handover of data collection based on the detected
broadcast signal (Reply Br. 4--5), paragraph 34 of Kuwana teaches mobile
device (401) is acting as a control station when it receives a notification (i.e.,
via a broadcast signal) that device 404 is receiving power via the mains.
Kuwana i134. Control is handed over from device 401 to device 404. Id.
("By being so notified, the wireless terminal 401 recognizes that handover of
the control station is possible and executes processing 629 for handing over
control to the wireless terminal 404."). Thus, the Examiner finds, and we
agree, Kuwana teaches and suggests a control unit for handover of data
collection from a mobile device to a stationary device based on the detected
broadcast signal. Final Act. 3 (citing Kuwana i-fi-127, 34--38, Fig. 2 (521)).
The Examiner further finds Siegel teaches a network using a plurality
of sensors. Final Act. 3 (citing Siegel, col. 2, 11. 38-57). As the Examiner
explains, "due to the lack of language in cited prior art Kuwana, the
Examiner uses the secondary reference Siegel [sic] to teach of the use of [a]
plurality of sensors to make such detection [ (of power source)]." Ans. 3.
Appellant concedes that Siegel teaches "many sensors," but argues
Siegel does not teach "a mobile device for the data collection from the
plurality of sensors." App. Br. 9.
Non-obviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Keller, 642 F.2d 413, 426
(CCP A 1981 ). Rather, the test for obviousness is whether the combination
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of references, taken as a whole, would have suggested the patentee's
invention to a person having ordinary skill in the art. In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Here, the Examiner finds, and we agree, the combination of Kuwana
and Siegel teaches or reasonably suggests a mobile device for the data
collection (i.e., a wireless terminal acting as a control station collecting data
from other wireless terminals in the piconet, as taught by Kuwana) from a
plurality of sensors (i.e., the "many sensors" of Siegel). Although not relied
upon in affirming the Examiner's rejection, we further note Kuwana teaches
a plurality of sensors. See, e.g., Kuwana, Fig. 2 (power-status detector (522)
and power supply detector (519)).
Appellant additionally belatedly argues, for the first time in the Reply
Brief, that the combination of Kuwana and Siegel does not teach "a
stationary device powered by mains," as recited in claim 1. Reply Br. 4.
However, this argument, which could have been made in the Appeal Brief,
was not made in the Appeal Brief and is not responsive to any new evidence
set forth by the Examiner in the Answer. In the absence of a showing of
good cause by Appellant, this argument is untimely and deemed waived.
"Any argument raised in the reply brief which was not raised in the appeal
brief, or is not responsive to an argument raised in the examiner's answer,
including any designated new ground of rejection, will not be considered by
the Board for purposes of the present appeal, unless good cause is shown."
37 CPR 41.41(b )(2) (2012); see also Ex parte Nakashima, 93 USPQ2d 1834,
183 7 (BP AI 2010) (informative) (explaining that arguments and evidence
not presented timely in the principal brief, will not be considered when filed
in a Reply Brief, absent a showing of good cause explaining why the
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argument could not have been presented in the principal brief); 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."). Nonetheless, the argument is unpersuasive because the
Examiner finds, and we agree, Kuwana teaches a "stationary device powered
by mains." Final Act. 2 (citing Kuwana i-f 24 ("wireless terminal 404 is
equipped with an AC power supply 421"), Fig. 1 ).
Appellant additionally argues, for the first time in the Reply Brief, the
claimed plurality of sensors "do not stop sensing data, all the sensors
continue to provide data." Reply Br. 5. Appellants suggests this is contrary
to the teachings of Kuwana and Siegel. We find Appellant's arguments
unpersuasive as they are not commensurate with the claim language, and
thus, for that reason, do not demonstrate error in the Examiner's rejection.
See In re Self, 671F.2d1344, 1348 (CCPA 1982) (limitations not appearing
in the claims cannot be relied upon for patentability).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection of claim 1. For
similar reasons, we also sustain the Examiner's rejection of independent
claims 7 and 12-14, which recite similar limitations and which were not
argued separately. App. Br. 11. Further, we sustain the Examiner's
rejection of dependent claims 2---6 and 8-11, which were not argued
separately. App. Br. 7.
DECISION
We affirm the Examiner's decision to reject claims 1-14.
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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(±).
AFFIRMED
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