Ex Parte Puckett et al

Patent Trial and Appeal BoardDec 13, 2017

12790903 (P.T.A.B. Dec. 13, 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. 1350-01301 1577 EXAMINER EUSTAQUIO, CAL J ART UNIT PAPER NUMBER 2683 MAIL DATE DELIVERY MODE 12/790,903 05/31/2010 62763 7590 Tod T. Tumey Tumey LLP P.O. BOX 22188 HOUSTON, TX 77227-2188 Darryl D. Puckett 12/13/2017 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DARRYL D. PUCKETT and MICHAEL J. VICKICH Appeal 2017-002609 Application 12/790,903 Technology Center 2600 Before JOHN A. JEFFERY, BRUCE R. WINSOR, and JUSTIN BUSCH, Administrative Patent Judges. BUSCH, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellants have, in practical effect, submitted a request for rehearing under 37 C.F.R. § 41.52 (hereinafter “Response”),1 dated September 27, 1 On September 27, 2017, Appellants filed a paper entitled “Response to Decision on Appeal Dated June 26, 2017.” Although this paper is addressed to the Examiner and requests that “[t]he Examiner . . . enter the following amendments and consider the accompanying remarks,” the paper does not request any amendment to the claims, nor does it present new evidence that was not previously in the record. The paper therefore did not present a basis on which the Examiner could withdraw the rejection. See 37 C.F.R. § 41.50(b)(1) (“The new ground of rejection is binding upon the examiner unless an amendment or new evidence not previously of record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision.”). “If the appellant submits an argument without either an appropriate amendment or new evidence as to Appeal 2017-002609 Application 12/790,903 2017, of our Decision entered June 26, 2017 (hereinafter “Decision”). In that Decision, we reversed the Examiner’s final rejection of claims 1,2, 5— 12, 14, and 16—26, but issued new grounds of rejection of (1) claims 1,11, and 26 under 35 U.S.C. § 103(a) as being unpatentable over Young (US 2009/0210141 Al; Aug. 20, 2009); and (2) claims 10 and 20 under § 103(a) as being unpatentable over Young and Luciani (US 2002/0107634; Aug. 8, 2002). Appellants have requested rehearing of our Decision in relation to the new grounds of rejection. We have granted Appellants’ request to the extent we have reconsidered our original Decision in light of Appellants’ points, but we decline to modify the Decision. THE REQUEST FOR REHEARING When the Board enters a non-final decision pursuant to § 41.50(b), Appellants, within two months from the date of the decision, may request that the proceeding be reheard and “must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought.” 37 C.F.R. § 41.52(b)(2). Appellants “traverse the Patent Trial and Appeal Board’s rejection of claims 1,11, and 26 under § 103 as being unpatentable over Young.” Response 6. Appellants argue that Young “does not provide a prima facie case of obviousness for rejecting such claims in that the cited any of the claims rejected by the Board, it will be treated as a request for rehearing under 37 CFR 41.50(b)(2).” Manual of Patent Examining Procedure (MPEP) § 1214.01 (9th ed. Rev. 07.2015, Nov. 2015). We therefore treat the paper as a request for rehearing. 2 Appeal 2017-002609 Application 12/790,903 reference does not teach or suggest all of the elements recited in the rejected claims.” Id. ANALYSIS Appellants assert claim 1 is an asynchronous input/output (I/O) process that employs real-time scanning by immediately time stamping identifiers and then sending the identifiers for processing. Id. at 6—7. Appellants contend Young’s Bluetooth protocol is an inherently synchronous I/O process that groups a scan’s response signals with the same timestamp. Id. at 6. According to Appellants, Young’s sensor takes five or more seconds to complete scanning, and during that time, the responses are not accessible until the scan terminates. Id. at 7 (citing Young || 31—32, 43). Appellants conclude it is not obvious to a person having ordinary skill in the art to configure Young’s sensors 110, 120 to immediately forward its identifiers to a host module. Id. at 6. We disagree with Appellants. First, we note that Young’s description of a five-second scanning interval is merely exemplary. Young 141 (“Each Bluetooth inquiry scan comprises, for example, 4 complete interlaced inquiry scan routines and takes approximately 5.12 seconds to complete.” (emphasis added)). Thus, Young at least suggests that a scan may take approximately 1 second if Young includes only one inquiry scan per scanning interval. Id. We also note Young discloses the scan interval, regardless of length or number of interlaced inquiry scans, may terminate once the scanner receives a threshold number of responses, which may be one—i.e., Young’s scan may terminate before the end of the scheduled scanning interval. Young || 32, 33 (“The threshold number may be user- defined to achieve a desired scanning characteristic. For example, the lower 3 Appeal 2017-002609 Application 12/790,903 the threshold number, the sooner the scan terminates and the process 300 will initiate a new scan 303.”). Additionally, we note Appellants have not provided persuasive technical reasoning or evidence in support of their contention that Richter’s Bluetooth protocol is an inherently synchronous I/O process. Mere attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. Meitznerv. Mindick, 549 F.2d 775, 782 (CCPA 1977). Neither the claims nor Appellants’ Specification provides guidance regarding what it means to forward the time stamped anonymous unique network identifier immediately. Furthermore, Young provides that “data storage is enforced at the end of each Bluetooth inquiry scan in which a response is received.” Young 142. Thus, as Appellants acknowledge, Response 7 (citing Young 143), Young at least suggests transmitting the scan upon completion of the scanning process. Appellants have not argued persuasively why Young’s transmission of the unique identifier upon completion of scanning is insufficient to teach or suggest the recited limitation of “immediately forwarding a time stamped anonymous unique network identifier to a host module.” Accordingly, we did not misapprehend or overlook the teachings or suggestions of Young in entering the new grounds of rejection. 4 Appeal 2017-002609 Application 12/790,903 DECISION For the reasons above, we are not persuaded that our Decision misapprehended or overlooked any point of fact or law advanced by Appellants when issuing new grounds for rejection of (1) claims 1,11, and 26 under 35 U.S.C. § 103(a) as being unpatentable over Young; and (2) claims 10 and 20 under § 103(a) as being unpatentable over Young and Luciani. We therefore decline to modify our original Decision entered June 26, 2017. 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). REHEARING DENIED 5