Ex Parte Schmidt

Patent Trial and Appeal BoardNov 15, 2012

09930827 (P.T.A.B. Nov. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte DOMINIK J. SCHMIDT ________________ Appeal 2011-004453 Application 09/930,827 Technology Center 2400 ________________ Before, MAHSHID D. SAADAT, KALYAN K. DESPHANDE, and JOHN G. NEW, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004453 Application 09/930,827 2 SUMMARY Appellant files this appeal under 35 U.S.C. § 134(a) from the Examiner’s Non-Final Rejection of claims 1-4, 7, 15-19, 21 and 23-32 as being unpatentable under 35 U.S.C. § 103(a). Claims 1-4, 7, 15, and 24-27 are rejected under 35 U.S.C. § 103(a) as being obvious over Kobylinski et al. (US 7,242,938 B2, July 10, 2007) (“Kobylinski”), Scholefield et al. (US 5,752,193, May 12, 1998) (“Scholefield”), Gorsuch (US 6,526,034 B1, February 25, 2003) (“Gorsuch”), and Himmel et al. (US 6,742,052 B2, May 25, 2004) (“Himmel”). The Examiner additionally rejected claims 16, 17, 19, 23, 30, and 321 under 35 U.S.C. § 103(a) as being obvious over Scholefield, Gorsuch, and Himmel. Claims 18 and 21 are rejected under 35 U.S.C. § 103(a) as being obvious over Scholefield, Gorsuch, Himmel, and Rosener et al. (US 2002/0028655 A1, March 7, 2002) (“Rosener”). Claims 28 and 29 are rejected under 35 U.S.C. § 103(a) as being obvious over Kobylinski, Gorsuch, and Himmel. App. Br. 8. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant advances no argument with respect to Claim 31, which the Examiner rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Gorsuch, Scholefield, Himmel, and Kobylinski. We consequently deem that any such argument has been waived, and we affirm the Examiner’s non-final rejection of claim 31. Appeal 2011-004453 Application 09/930,827 3 STATEMENT OF THE CASE Appellant’s invention is directed to systems and methods which wirelessly communicate data over a plurality of cellular channels by sniffing for available frequency channels, requesting an allocation of preferably adjacent cellular frequency channels from a mobile station to a base station, and allocating available frequency channels in response to the request from the mobile station. Abstract. GROUPING OF CLAIMS Because Appellant argues that the Examiner erred for substantially the same reasons with respect to claims 1-3, 4, 7, 15-19, 21, and 23-32 (App. Br. 18, 22, 24) we group these claims together. Based upon Appellant’s argument that claim 2 is also patentably distinct, we treat claim 2 as a single group for purposes of that argument (App. Br. 22). Based upon Appellant’s argument that claim 29 is also patentably distinct, we treat claim 29 as a single group for purposes of that argument (App. Br. 24). ISSUES AND ANALYSES Issue 1: Rejection of Claims 1-3, 4, 7, 15-19, 21, and 23-32. We select independent claim 1 as representative of this group. Claim 1 recites: 1. A method, comprising: a mobile device sniffing for available cellular frequency channels; Appeal 2011-004453 Application 09/930,827 4 the mobile device requesting, from a base station, an allocation of cellular frequency channels from the available cellular frequency channels; responsive to the requesting, the mobile device receiving an allocation from the available cellular frequency channels; bonding a short-range radio channel with the allocated cellular frequency channels, thus increasing available bandwidth for data communication between the mobile station and the base station; and transmitting data to the base station in parallel over the bonded short-range radio channel and the allocated cellular frequency channels. App. Br. 27. Issue Appellant argues that the Examiner erred in finding that claim 1 is unpatentable under 35 U.S.C. § 103(a) as being obvious over Gorsuch and Himmel. App. Br. 19. Specifically, Appellant argues that the Examiner erred by finding that the combination of Gorsuch and Himmel discloses or suggests the limitation of claim 1 reciting “bonding a short-range radio channel with the allocated cellular frequency channels.” App. Br. 20. According to Appellant, Gorsuch discloses a system that uses only a CDMA transceiver or a WLAN transceiver, but not both, at any given time. App. Br. 19. Appellant argues further that Himmel teaches only that wireless data may be communicated in parallel, with each channel using a different channel frequency so that there is no interference between Appeal 2011-004453 Application 09/930,827 5 channels. Id. Appellant contends that Himmel does not disclose or suggest bonding disparate types of channels, as recited in claim 1. Id. Appellant also argues that there is a lack of motivation to combine Gorsuch and Himmel. App. Br. 20. We thus address the issue of whether the Examiner erred in finding that the combination of Gorsuch and Himmel discloses or suggests the limitation of claim 1 reciting “bonding a short- range radio channel with the allocated cellular frequency channels” and, if so, whether an artisan of ordinary skill would have been motivated to combine the two references to arrive at the claimed limitation. Analysis The Examiner answers that the term “bonding” recited in the disputed limitation is not defined as being the simultaneous use of two transceivers. Ans. 21. Rather, the Examiner finds that the use of the term “bonding” in the Specification relates to the parallel transmission through the separate Bluetooth and WLAN pathways. Ans. 21 (citing Specification, p. 17, ll. 15-18). The Examiner finds that such transmission in parallel does not require transmission at the same time or at a given point in time [sic], however it does requires transmission on two separate channels (i.e., in parallel). Ans. 21. The Examiner therefore finds that Gorsuch’s disclosure of a mobile device that can communicate via a CDMA or WLAN transceiver, where the capability of the mobile to communicate via both CDMA and WLAN is equivalent to bonding. Ans. 22. Further, the Examiner finds that Himmel explicitly discloses that the channels which data are transmitted on are disparate, as each of the eight channels shown requires the implementation of a separate transceiver, and Appeal 2011-004453 Application 09/930,827 6 that each channel is set to transmit and receive at different frequencies. Ans. 22 (citing Himmel, col. 8, ll. 36-44). The Examiner therefore finds that Gorsuch discloses a short range radio channel and a cellular frequency channel and that Himmel discloses Himmel teaches parallel channels each requiring a separate transceiver and separate frequencies to receive and transmit data. Ans. 22. The Examiner also finds that Himmel discloses or suggests the motivation for combining Gorsuch and Himmel, viz., a need for greater capacity (bandwidth) for supporting multiple input and multiple output devices, and also providing greater compatibility so that devices can communicate with different input and output devices. Ans. 23. We agree with the Examiner that Appellant’s Specification does not explicitly define the term “bonding.” The Specification discloses that “a short-range transceiver communicates over a short-range radio channel with a means for bonding the short-range radio channel with the cellular frequency channels to increase bandwidth” and that “[a] means for bonding over two adjacent cellular channels can be provided to increase the bandwidth of the channels.” Specification, 4, ll. 7-9, 11-12. Absent an explicit definition, the Examiner may employ the broadest reasonable definition of the term consistent with the Specification. In re Breiner, 468 Fed. App’x. 989, 992 (Fed. Cir. 2012). We therefore agree with the Examiner that the term “bonded” as employed in the Specification does not necessarily mean the simultaneous transmission of data via the disparate channels. Furthermore, we find that Gorsuch teaches the use of two disparate channels, CDMA and WLAN, although the disclosure of switches 211a and Appeal 2011-004453 Application 09/930,827 7 211b teaches that the two cannot be used simultaneously. App. Br. 19; see also Gorsuch, FIG. 6. We also find that Himmel teaches the data transmission via the use of parallel channels each requiring a separate transceiver and separate frequencies to receive and transmit data. Ans. 22; see also Himmel, FIGS. 8a-b. We consequently find that the combination of Gorsuch and Himmel discloses the limitation of claim 1 reciting “bonding a short-range radio channel with the allocated cellular frequency channels.” Moreover, we agree with the Examiner that Himmel suggests the motivation for an artisan of ordinary skill to combine the two references, viz., to increase the bandwidth employable by the mobile device. Furthermore, both references are analogous art because they are both in the same field of endeavor. In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011). We therefore conclude that the Examiner did not err in finding that the limitation of claim 1 reciting “bonding a short-range radio channel with the allocated cellular frequency channels” would be obvious to a person of ordinary skill in the contemporaneous art over the combination of Gorsuch and Himmel. Issue 2: Final Rejection of Claim 2. Issue Claim 2 is dependent on claim 1 and recites: 2. The method of claim 1, wherein said transmitting includes the mobile device transmitting, at a given point in time, a first portion of data on the allocated cellular frequency channels and a second portion of the data on the short-range radio channel. Appeal 2011-004453 Application 09/930,827 8 App. Br. 21. Appellant argues that the Examiner erred in rejecting claim 2 because none of the references teaches or suggests the limitation of claim 2 reciting suggests “transmitting includes the mobile device transmitting, at a given point in time [sic], a first portion of data on the allocated cellular frequency channels and a second portion of the data on the short-range radio channel.” App. Br. 22. Appellant argues that claim 2 specifies that the first portion and the second portion of the data be transmitted on their respective channels at the same “given point in time.” App. Br. 23. Appellant reiterates the argument regarding claim 1 that Gorsuch is not capable of this type of operation. Id. Accordingly, Appellant contends that Gorsuch does not teach or suggest the limitations recited in claim 2. Id. We therefore address the issue of whether the Examiner erred in finding that the combined references teach the limitation of claim 2 reciting “transmitting includes the mobile device transmitting, at a given point in time [sic], a first portion of data on the allocated cellular frequency channels and a second portion of the data on the short-range radio channel.” Analysis The Examiner responds that Gorsuch teaches transmitting a first portion on a short range transceiver and when the short range is no longer available, transmitting on a long range-transceiver. Ans. 24. The Examiner recapitulates his findings supra with respect to Gorsuch, wherein the given point in time claimed is a timeslot, where a timeslot is an interval of time from tx-ty. Ans. 24-25. The Examiner thus finds that the term “a given Appeal 2011-004453 Application 09/930,827 9 point in time” recited in claim 2, viewed in light of the Specification, does not correspond to meaning the same instant in time. Ans. 25. Appellant argues in reply that “a given point in time” is not a “timeslot” or window of time, but rather that a given point in time is just that, a “point.” Reply Br. 5. “[O]ne cannot show non-obviousness by attacking references individually where … the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 426 (C.C.P.A. 1981) (citation omitted). In this case, the Examiner concludes that claim 2 is unpatentable as being obvious over the combination of, inter alia, Gorsuch and Himmel. Gorsuch discloses or suggests the use of disparate channels to transmit data from the mobile device. Ans. 22. Himmel teaches the use of parallel transmission of data via different frequency channels. Id. We find that the combination of Gorsuch and Himmel discloses or suggests the limitation of claim 2 reciting “transmitting includes the mobile device transmitting, at a given point in time [sic], a first portion of data on the allocated cellular frequency channels and a second portion of the data on the short-range radio channel.” We therefore conclude that the Examiner did not err in concluding that claim 2 is unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Gorsuch and Himmel. Issue 3: Final Rejection of Claim 29. Issue Claim 29 depends from claim 28 and recites: 29. The mobile communication device of claim 28, wherein the long-range transceiver and a short-range transceiver are further configured to concurrently transmit data to the base Appeal 2011-004453 Application 09/930,827 10 station over both the one or more bonded short-range radio channels and the one or more allocated cellular frequency channels. App. Br. 31-32. Appellant repeats the argument with respect to claim 2, viz., that Gorsuch teaches only transmission of data using one channel or the other at a given “point in time.” App. Br. 25. Appellant argues further that Himmel teaches only a wireless parallel interface that uses different frequencies for each channel, and not a different type of channel. Id. According to Appellant, the wireless peripheral device that is using the wireless interface is, by definition, at a given distance from the computer, and all 8 parallel communication lines of the wireless interface would thus be that same distance from the computer. Id. Moreover, Examiner asserts that Himmel nowhere teaches or suggests that the parallel transmission uses different protocols; only different frequencies. We are thus presented with the issue of whether the Examiner erred in concluding that claim 29 is obvious over the combination of Gorsuch and Himmel. Analysis The Examiner responds that Gorsuch discloses two separate transceivers, one for long range (CDMA) and one for short range (WLAN), and that Himmel is introduced to show that multiple transceivers having different frequencies. Ans. 25. The Examiner finds that claim 29 requires only a bonded short-range radio channel and a cellular frequency channel, both of which are disclosed by Gorsuch. Ans. 26. The Examiner also finds that Himmel discloses that the parallel channels each require a separate Appeal 2011-004453 Application 09/930,827 11 transceiver and separate frequencies to receive and transmit data. Consequently, the Examiner finds that the combination of Gorsuch and Himmel discloses or suggests all of the limitations of claim 29. Id. We are agree with the Examiner’s reasoning and adopt it as our own. As described supra, we find that Gorsuch discloses or suggests the use of long- and short-range channels to transmit data from the mobile device. Himmel teaches the use of parallel transmission of data via different frequency channels. We find that the combination of Gorsuch and Himmel discloses or suggests the all of the limitations of claim 29. We therefore conclude that the Examiner did not err in concluding that claim 29 is unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Gorsuch and Himmel. DECISION The Examiner’s rejection of claims 1-4, 7, 15-19, 21 and 23-32 is affirmed. 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)(1)(iv) (2011). AFFIRMED msc