Ex Parte Min et al

Patent Trials and Appeals Board

Jan 24, 2019

13724507 - (D) (P.T.A.B. Jan. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/724,507 12/21/2012
88032 7590 01/28/2019
Jordan IP Law, LLC
12501 Prosperity Drive, Suite 401
Silver Spring, MD 20904
FIRST NAMED INVENTOR
Alexander W. Min
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.
P47270 4504
EXAMINER
MENSAH, PRINCE AKWASI
ART UNIT PAPER NUMBER
2474
NOTIFICATION DATE DELIVERY MODE
01/28/2019 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):
info@jordaniplaw.com
admin@jordaniplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER W. MIN, REN WANG,
JR-SHIAN TSAI, and TSUNG-YUAN C. TAI 1
Appeal2018-004012
Application 13/724,507
Technology Center 2400
Before MICHAEL J. STRAUSS, JOSEPH P. LENTIVECH, and
DAVID J. CUTITTA II, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellants, the real party in interest is Intel Corporation. See
Br. 3.
Appeal2018-004012
Application 13/724,507
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-28. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm. 2
THE INVENTION
The claims are directed to a cloud-aware collaborative mobile
platform power management using mobile sensors. Spec., Title. Claim 1,
reproduced below, is representative of the claimed subject matter:
1. A system comprising:
logic, the logic at least partially comprising hardware logic, to:
accumulate sensor-based information from a plurality of
mobile devices, the sensor-based information including
geographically relevant information selected from the group
consisting of a power management condition and a wireless
connectivity condition;
identify in the sensor-based information context
information relevant to a particular mobile device in the plurality
of mobile devices, wherein the context information is related to
one or more operations that affect the performance of the
particular mobile device; and
send an operational recommendation to the particular
mobile device based at least in part on the context information,
wherein the operational recommendation is to include first
context information associated with sensor-based information
from one or more additional mobile devices,
wherein the plurality of mobile devices each include one
or more different sensor configurations and one or more different
communication capabilities, and the operational
recommendation is to improve a power management or a
wireless connectivity of the particular mobile device.
2 We refer to the Specification, filed December 21, 2012 ("Spec."); the Final
Office Action, mailed January 12, 2017 ("Final Act."); the Appeal Brief,
filed July 12, 2017 ("Br."); and the Examiner's Answer, mailed December
13, 2017 ("Ans.").
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Application 13/724,507
REFERENCES
The following prior art is relied upon by the Examiner in rejecting the
claims on appeal:
Ganesh
Pandey
Leung
Novak
US 2006/0088014 Al
US 2009/0168703 Al
US 2012/0163206 Al
US 2013/0003591 Al
REJECTIONS
Apr. 27, 2006
July 2, 2009
June 28, 2012
Jan.3,2013
The Examiner made the following rejections:
Claims 1-6 and 9-14 stand rejected under pre-AIA 35 U.S.C. § I03(a)
as being unpatentable over Novak and Pandey. Final Act. 2-9.
Claims 17-28 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Ganesh and Novak. Final Act. 10-17.
Claims 7, 8, 15, and 16 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Novak, Pandey, and Leung. Final
Act. 17-18.
ANALYSIS
Appellants' contentions are unpersuasive of reversible examiner error.
We adopt as our own ( 1) the findings and reasons set forth by the Examiner
in the action from which this appeal is taken (Final Act. 2-18) and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
Appellants' Appeal Brief (Ans. 3-10) and concur with the conclusions
reached by the Examiner. We highlight the following for emphasis.
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Sensor-based information including
geographically relevant information
The Examiner finds Novak's user equipment (UE) devices that are
configured to report (i) location and (ii) sensory information about (a)
channel activity/interference and (b) radio conditions teach or suggest
sensor-based information including geographically relevant information.
Final Act. 2-3. According to the Examiner, UE sensory information
including reports of interference that exceeds a threshold energy level
teaches or suggests a power management condition and UE reports of radio
conditions, interference, and channel usage teach or suggest a wireless
connectivity condition. Id. at 3.
Appellants contend the Examiner erred in finding Novak's UE
devices include information of either a power management condition or a
wireless connectivity condition. Br. 13. Appellants argue "the purported
power management condition and the purported wireless connectivity
condition are simply the interference itself, and not geographically relevant
information selected from a power management condition and a wireless
connectivity condition." Br. 13 (emphasis omitted).
The Examiner responds "since every sensory information reported by
the UE is associated with the current location (please see paragraph [0041]
as relied upon in the Final Office Action), the report information regarding
the change in spectrum/band is also a geographically relevant information
as claimed." Ans. 6. The Examiner further finds "the ability for the UE to
report various sensory information such as the interference and bands
together with the associated location is itself a selection from the group
consisting of a power management condition and a wireless connectivity
condition as claimed." Id.
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Appellants' contention is unpersuasive of examiner error. Although
we interpret claim limitations consistent with the specification, we do not
import limitations from the specification into the claims. In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993) (citing In re Zietz, 893 F.2d 319, 321
(Fed. Cir. 1989)). In particular, when construing claim terminology during
prosecution before the Office, claims are to be given their broadest
reasonable interpretation consistent with the specification, reading claim
language in light of the specification as it would have been 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). "Construing claims broadly during prosecution
is not unfair to the applicant ... because the applicant has the opportunity to
amend the claims to obtain more precise claim coverage." Id.
Appellants provide insufficient evidence or argument that the disputed
power management condition or wireless connectivity condition is to be
interpreted narrowly so as to distinguish over Novak's sensory information
including reports of interference exceeding a threshold energy level or
channel usage information, respectively. To the contrary, we note that, based
on sensory information received from the UEs, Novak's channel occupancy
and location database (COLD) server may assign a best channel having the
least interference or restrict the maximum power a UE can use. Novak
,r,r 82-83. Novak further discloses the COLD server database may include
data about UE "(i) location; (ii) transmit power; (iii) band/channels of use;
(v) signal type (TV, noise, RADAR, cellular [radio access technology
(RAT)], etc.) for each band/channel; (vi) network/system identification; (vii)
transmitter station identification; (viii) expected duration; (ix) reliability of
reported information; and the like." Novak ,r 85. Thus, under a broad but
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reasonable interpretation, Novak's examples ofUE sensor information
include types of information reasonably considered to represent power
management and wireless connectivity conditions. Furthermore, Novak's
location information teaches or suggests the disputed geographically
relevant information component of the aforementioned power management
and wireless connectivity conditions thereby teaching or suggesting the
entirety of the disputed limitation.
Context information relevant to a particular mobile device
The Examiner finds correlation by Novak's COLD server of
interference levels from different sensory information so as to locate an
interference source teaches or suggests identifying, in the sensor-based
information, context information relevant to a particular mobile device.
Final Act. 3. Appellants contend interference levels do not teach or suggest
context information. Br. 13. The Examiner responds, explaining
determination by the COLD server of relative distance of an interference
source to each UE is relevant information enabling each UE to determine
distance from the interference source thereby teaching or suggesting the
disputed context information relevant to a particular mobile device. Ans. 7-
8.
Appellants' contention is unpersuasive because it fails to address the
Examiner's findings and conclusions. In connection with the alleged error
of the Examiner in "construing the interference from the same source as the
identified context information from the plurality of sensory information"
(Br. 13 referring to Final Act. 3), Appellants fail to provide sufficient
evidence or argument to persuade us that the Examiner's construction is
improper. For example, Appellants fail to provide evidence of the meaning
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of the phrase "context information" as would have been understood by one
skilled in the art at the time of the invention or evidence that the Examiner's
interpretation is inconsistent with the Specification. Furthermore,
Appellants fail to address the Examiner's findings that, by determining a
distance between a UE and an interference source, the functionalities
provided by Novak's COLD server teach or suggest the disputed limitation.
Merely reciting a claim limitation and asserting it is not present falls short of
identifying an error in the Examiner's rejection as required on appeal.
Arguments must address the Examiner's action. 37 C.F.R. § 4I.37(c)(l)(iv)
("The arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant."); In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) ("[T]he Board reasonably interpreted Rule 41.3 7 to require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art").
Sending an operational recommendation to the particular
mobile device based at least in part on the context information
The Examiner finds Novak's COLD server's sending of best channel
information to UEs teaches or suggests sending an operational
recommendation to the particular mobile device based, at least in part, on the
context information. Final Act. 3. Appellants contend, "since Novak fails to
disclose context information or that the context information is relevant to a
particular mobile device in the plurality of mobile devices, it also fails to
disclose sending an operational recommendation to the particular mobile
device based at least in part on the context information." Br. 14 ( emphasis
omitted). Because, for the reasons above, we disagree with Appellants'
premise, i.e., that Novak fails to teach or suggest context information, we
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find Appellants' corresponding conclusion is unsupported. As Appellants
provide no additional argument in support of their contention, we are
unpersuaded the Examiner erred in finding Novak teaches or suggests the
disputed limitation.
Combining Novak and Pandey
According to the Examiner "Novak does not clearly show wherein the
plurality of mobile devices each include ... one or more different sensor
configurations." Final Act. 4 (emphasis omitted). To remedy the deficiency,
the Examiner applies Pandey's disclosure of network nodes each having one
or more sensors of various types for teaching or suggesting the recited
limitation. According to the Examiner, it would have been obvious to
incorporate the teachings of Pandey into the device of Novak "to reduce
frequency interference in the network." Final Act. 4 (citing Pandey ,r 9).
Appellants contend, because Pandey uses a localized wakeup
mechanism, the reference teaches away from its use in a prior art network
that remains on at all times. Br. 14. Therefore, according to Appellants, "a
person of ordinary skill in the art would not have combined Novak and
Pandey." Id.
The Examiner responds, explaining Pandey discloses that
communication between nodes may be disrupted by interference responsive
to changing environmental conditions. Ans. 9 ( citing Pandey ,r 25). The
Examiner finds "by having different sensor capabilities a given node would
be able to measure a desired condition." Id. According to the Examiner,
having appropriate sensor capabilities enables a sensor node to select an
alternate path having minimum interference such that one skilled in the art
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would be motivated to modify Novak to include sensors that are appropriate
to each UE as taught by Pandey. Id.
Appellants' contention is not persuasive of examiner error.
Concerning the propriety of the combination, we note:
Any judgment on obviousness is ... necessarily a reconstruction
based upon hindsight reasoning, but so long as it takes into
account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not
include knowledge gleaned only from applicant's disclosure,
such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971); see also Radix Corp.
v. Samuels, 13 USPQ2d 1689, 1693 (D.D.C. 1989) ("[A]ny obviousness
inquiry necessarily involves some hindsight."); In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds ... must
[include] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness."), cited with approval in KSR
Int'! Co v. Teleflex Inc., 550 U.S. 398,418 (2007). Here, in the absence of
sufficient argument to the contrary, we find the Examiner has articulated
reasoning with rational underpinnings sufficient to justify the legal
conclusion of obviousness. Final Act. 4; Ans. 9.
We are also unpersuaded by Appellants' contention that Pandey
teaches away from the combination. See Br. 14. To teach away, the prior art
must "criticize, discredit, or otherwise discourage the solution claimed." In
re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Teaching an alternative
method does not teach away from the use of a claimed method. See In re
Dunn, 349 F.2d 433, 438 (CCPA 1965); see also Ex parte Shuping, No.
2008-0394, 2008 WL 336222, at *2 (BPAI 2008) (unpublished)
("' [T]eaching a way is not teaching away.'" ( citation omitted)); In re
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Geisler, 116 F.3d 1465, 14 71 (holding that merely "express[ing] a
preference" falls short of discouraging one of ordinary skill in the art from
following a particular path). Appellants fail to identify any such criticism,
discrediting or discouragement. Furthermore, even if one skilled in the art
would not incorporate the entirety of Pandey into a prior art device having
nodes that remain on at all times as alleged, Appellants fail to explain how
such argument applies to Novak.
Appellants' argument is further unpersuasive because it improperly
relies on wholesale incorporation/combination of structures rather than what
the combination of Novak and Pandey teaches and suggests.
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the
art.
In re Keller, 642 F.2d 413,425 (CCPA 1981). The artisan is not compelled
to blindly follow the teaching of one prior art reference over the other
without the exercise of independent judgment. See Lear Siegler, Inc. v.
Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). Furthermore, the
skilled artisan would "be able to fit the teachings of multiple patents together
like pieces of a puzzle" because the skilled artisan is "a person of ordinary
creativity, not an automaton." KSR, 550 U.S. at 420-21. Here, Appellants
have not demonstrated the Examiner's proffered combination in support of
the conclusion of obviousness would have been "uniquely challenging or
difficult for one of ordinary skill in the art." Leapfrog Enters., Inc. v. Fisher-
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Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at
420).
For the reasons discussed above, we are unpersuaded of examiner
error. Accordingly, we sustain the rejections of independent claim 1 and, for
the same reasons, independent claim 9 under 35 U.S.C. § 103(a) over Novak
and Pandey together with the rejection of dependent claims 2---6 and 10-14
which are not argued separately with particularity. We further sustain the
rejection of dependent claims 17-28 under 35 U.S.C. § 103(a) over Ganesh
and Novak and the rejection of dependent claims 7, 8, 15, and 16 over
Novak, Pandey, and Leung, theses dependent claims also not argued
separately.
DECISION
We affirm the Examiner's decision to reject claims 1-28 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). See 37
C.F.R. § 41.50(±).
AFFIRMED
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