Ex Parte Morrison et al

Patent Trial and Appeal BoardJun 15, 2017

13628516 (P.T.A.B. Jun. 15, 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. 13/628,516 09/27/2012 Brett Robert Morrison E252.12-0136 3454 164 7590 06/19/2017 KINNEY & LANGE, P.A. THE KINNEY & LANGE BUILDING 312 SOUTH THIRD STREET MINNEAPOLIS, MN 55415-1002 EXAMINER YANG, JIANXUN ART UNIT PAPER NUMBER 2647 NOTIFICATION DATE DELIVERY MODE 06/19/2017 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): u spatdocket @ kinney .com smkomarec @ kinney .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRETT ROBERT MORRISON, CHAD MICHAEL McGUIRE, and DANIEL CLIFFORD CARLSON Appeal 2017-003539 Application 13/628,516 Technology Center 2600 Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and JOHN P. PINKERTON, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3—20 and 22—28. Claims 2 and 21 were cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 According to Appellants, the real party in interest is Rosemount Inc. (App. Br. 2). Appeal 2017-003539 Application 13/628,516 STATEMENT OF THE CASE Appellants’ invention relates to wireless devices having diverse integrated antennas selected for transmission and reception based on device orientation and received signal strength indication (RSSI) measurements (Spec. 11). Exemplary claim 1 under appeal reads as follows: 1. A wireless device comprising: a plurality X of diverse antennas; an accelerometer configured to provide a signal from which orientation of the wireless device can be determined; and a processor configured to: initially select a primary link configuration based on the determined orientation of the wireless device, the primary link configuration designating one or more of the plurality X of diverse antennas and one or more of a second plurality Y of antennas of another wireless device configured to transmit the payload messages; receive payload messages using the primary link configuration, and record a received signal strength indication (RSSI) value for the received payload messages; periodically test RSSI for each alternative link configuration; compare RSSI between the primary link configuration and the alternative link configuration; and revise the primary link configuration when the comparison indicates that the alternative link configuration RSSI is greater than primary link configuration RSSI. REFERENCES and REJECTIONS Claims 1, 3, 8, 9, 20, 22—24, and 28 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Sheynblat et al. (US 2008/0112468 Al; 2 Appeal 2017-003539 Application 13/628,516 published May 15, 2008) (“Sheynblat”), Goedeke (US 2004/0152953 Al; published Aug. 5, 2004) (“Goedeke”), Bonta et al. (US 5,740,526; issued Apr. 14, 1998) (“Bonta”), and Li et al. (US 2006/0195161 Al; published Aug. 31, 2006) (“Bange”).2 Claims 4—6 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Sheynblat, Goedeke, Bonta, Bange, and Ma et al. (US 2013/0287138 Al; published Oct. 31, 2013) (“Ma”). Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Sheynblat, Goedeke, Bonta, Bange, and Saily (US 2011/0109524 Al; published May 12, 2011) (“Saily”). Claims 10-15 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Suga (US 2009/0268679 Al; published Oct. 29, 2009) (“Suga”), Saily, Sheynblat, Goedeke, Bonta, and Bange. Claims 16—19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Suga, Saily, Sheynblat, Goedeke, Bonta, Bange, and Ma. Claims 25 and 27 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Gemeth (US 2009/0201216 Al; published Aug. 13, 2009) (“Gemeth”), Sheynblat, Goedeke, Bonta, and Bange. Claim 26 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Gemeth, Sheynblat, Goedeke, Bonta, Bange, and Saily. 2 In the Final Office Action and Answer, the Examiner referred to this reference as Bange, rather than Li (see, e.g., Ans. 4). In an effort to minimize confusion, we also refer to this reference as Bange. 3 Appeal 2017-003539 Application 13/628,516 ANALYSIS Independent Claims 1, 10, 20, and 25 Appellants contend that no combination of cited references (i.e., Sheynblat, Goedeke, Bonta, Bange, Ma, Saily, Suga, and Gemeth) teaches or suggests a link configuration that designates antennas of both transmitting and receiving devices, let alone any method for testing or selecting such a link configuration (see App. Br. 11—12). More specifically, Appellants contend Sheynblat fails to teach primary and alternative link configurations and means for selecting link configurations because Sheynblat merely teaches a system and method for selecting an antenna of a receiving device, and an antenna selection that only designates an antenna of a receiving device (and not also an antenna of a transmitting device) does not constitute the claimed “link configuration” (see App. Br. 12 (citing Sheynblat | 5)). Appellants further contend Goedeke teaches a system where some antennas of a receiving device can be turned off, but does not teach or suggest a link configuration that designates antennas of both transmitting and receiving devices, or testing any type of antenna configuration (see id. (citing Goedeke Tflf7—10)). Appellants similarly contend Bange fails to teach or suggest a link configuration that designates antennas of both transmitting and receiving devices (see App. Br. 12—13 (citing Bange H 8—11, 41)). These arguments are not persuasive because they attack the references individually, rather than the combination of references. More specifically, Appellants attack Sheynblat and Goedeke individually for failing to teach or suggest selecting the claimed “primary link configuration,” but the Examiner relied upon the combination of Sheynblat and Goedeke for teaching both the transmitting antennas and the receiving antennas of the claimed “primary 4 Appeal 2017-003539 Application 13/628,516 link configuration.” In that regard, Sheynblat teaches selecting a receiving antenna from a plurality of receiving antennas in a receiving device, and Goedeke teaches a plurality of transmitting antennas in a transmitting wireless device (see Ans. 5 (citing Sheynblat || 4, 24; Goedeke Fig. 5); see also Goedeke 7—10). Similarly, Appellants attack Bonta and Bange individually for failing to teach or suggest “periodically testing]. . . each alternative link configuration,” but the Examiner relied upon the combination of Sheynblat, Goedeke, Bonta and Bange for teaching periodically testing each alternative link configuration. Additionally, the Examiner found the combination of Sheynblat and Goedeke teaches a link configuration as previously described above, Bonta teaches periodically testing a quality of a signal received by an alternative antenna at a base station, and Bange teaches repeating a test of quality of an incoming signal for all antennas of a diversity antenna system (see Ans. 6, 8 (citing Bonta 2:1—15; Bange Tflf 65—66, 74)). It is well established that one cannot show non-obviousness by attacking references individually where the rejection is based upon the teachings of a combination of references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller 642 F.2d 413, 425 (CCPA 1981). We are not persuaded by Appellants’ argument because it does not address the actual reasoning of the Examiner’s rejection based on the combination of the applied prior art. Appellants also contend testing separate receiver and/or transmitter configurations does not teach or suggest testing each alternative link configuration, as recited in the claims (see App. Br. 13). This argument is also unpersuasive because it focuses on the individual disclosures of the references, and fails to acknowledge the knowledge, creativity, and common 5 Appeal 2017-003539 Application 13/628,516 sense that one of ordinary skill in the art would have brought to bear when considering combinations or modifications. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415—22 (2007); see also RandallMfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013). As the claimed “testing]. . . each alternative link configuration” merely involves the testing of each unique combination of the claimed “one or more of the plurality X of diverse antennas” and “one or more of a second plurality Y of antennas,” we agree with the Examiner that the combination of Sheynblat, Goedeke, Bonta and Bange suggests the claimed “testing] . . . each alternative link configuration” (see Ans. 4—8). Thus, we agree with the Examiner that the cited combination of references teaches or suggest all of the claim elements of the independent claims. Accordingly, we sustain the Examiner’s rejection of independent claims 1, 10, 20, and 25 under 35 U.S.C. § 103(a) as unpatentable over Sheynblat, Goedeke, Bonta, and Bange. Dependent Claims 3 and 28 Appellants contend no combination of cited references (i.e., Sheynblat, Goedeke, Bonta, Bange, Ma, Saily, Suga, and Gemeth) teaches or suggests periodically testing every possible alternative link configuration by exercising each of N link configurations with a data packet, where N = A* Y, as recited in claim 3, and similarly recited in claim 28 (see App. Br. 14). More specifically, Appellants contend separately testing antenna configurations of receiving and transmitting devices does not teach or suggest that all N = X * Y possible link configurations are tested, and, accordingly, does not teach or suggest that every possible alternative link configuration is tested (see id.). This argument is similar to Appellants’ argument regarding independent claims 1,10, 20, and 25, and is not 6 Appeal 2017-003539 Application 13/628,516 persuasive for the reasons discussed above. Accordingly, we sustain the Examiner’s rejection of claims 3 and 28 under 35 U.S.C. § 103(a) as unpatentable over Sheynblat, Goedeke, Bonta, and Bange. Remaining Claims No separate arguments are presented for the remaining dependent claims (see App. Br. 14). We therefore sustain their rejections for the reasons stated with respect to independent claims 1,10, 20, and 25. DECISION We affirm the Examiner’s rejection of claims 1, 3—20 and 22—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). AFFIRMED 7