Ex Parte Shipley et al

Patent Trial and Appeal Board

Aug 7, 2017

14175327 (P.T.A.B. Aug. 7, 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.
14/175,327 02/07/2014 Trevor Daniel Shipley 7622a 6088
7590 08/09/201728004
SPRINT
6391 SPRINT PARKWAY
KSOPHTO101-Z2100
OVERLAND PARK, KS 66251-2100
EXAMINER
SWEET, LONNIE V
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
08/09/2017 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):
6450patdocs @ sprint.com
steven.j.funk@sprint.com
sprint @ setterroche. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TREVOR DANIEL SHIPLEY, JEREMY R. BREAU,
CESAR PEREZ, and DOUGLAS ALAN OLDING
Appeal 2017-001083
Application 14/175,327 1
Technology Center 2400
Before JOSEPH L. DIXON, LARRY J. HUME, and
CARL L. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20 which constitute the only claims pending.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
The invention relates to a communication system employing
information delivery to user devices wherein the information includes
1 The real party in interest is identified as Sprint Communications Company
L.P. App. Br. 2.
Appeal 2017-001083
Application 14/175,327
characteristics of a wireless signal. Abstract; Spec. 2—6. Claim 1,
reproduced below, is exemplary of the subject matter on appeal:
1. A method of operating a Wireless Fidelity (WiFi)
communication system to transfer Long Term Evolution (LTE)
communication system information, the method comprising:
wirelessly receiving an LTE signal from at least one wireless
access node of an LTE communication system and processing the
LTE signal to determine LTE Radio Frequency (RF) signal strength;
generating a data packet indicating the WiFi communication
system and the LTE RF signal strength; and
wirelessly transferring a WiFi signal including the data packet
from the WiFi communication system for receipt by at least a user
communication device on the WiFi communication system, the data
packet indicating the WiFi communication system and indicating the
LTE RF signal strength.
App. Br. 11 (Claims Appendix).
THE REJECTIONS
Claims 1,2, 11, and 12 stand rejected2 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Hao et al. (US 2012/0066495 Al; pub.
March 15, 2012) (hereinafter “Hao”) in view of Bhargava et al. (US
2013/0083722 Al; pub. April 4, 2013) (hereinafter “Bhargaval”). Final
Act. 2-4.
Claims 3—5 and 13—15 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Hao, Bhargava, and Hata et al. (US
2004/0203416 Al; pub. October 14, 2004) (hereinafter “Hata”). Final
Act. 4—5.
2 The rejection of dependent claims 2 and 12 is withdrawn. Ans. 2.
2
Appeal 2017-001083
Application 14/175,327
Claim 6—8, 10, 16—18, and 20 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Hao, Bhargava, and Pfister (US
2006/0073832 Al; pub. April 6, 2006) (hereinafter “Pfister”). Final
Act. 5—7.
Claim 9 and 19 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Hao, Bhargava, and Edwards et al. (US
2008/0005156 Al; pub. January 3, 2008) (hereinafter “Edwards”). Final
Act. 8.
ANALYSIS
Appellants argue the Examiner errs in finding Hao teaches a
transmission of WiFi signals indicating LTE RF signal strength, as required
by claim 1.” App. Br. 6 (citing Hao Tflf 39, 62, 69). App. Br. 6—7.
According to Appellants, “Hao provides that a target peer may
provide signal strength information regarding WiFi connectivity with donor
devices to a selector system [], but fails to disclose or suggest that the
information includes LTE signal strength and further fails to teach that the
signal strength information is transferred via WiFi signals.” App. Br. 6
(citing 139).
Appellants argue the Examiner provides Bhargava to teach the
identification of LTE signal strength, but the Examiner fails to provide any
suggestion or motivation as to why the LTE signal strength would be
provided in a WiFi signal to a user communication device. App. Br. 6
(citing Bhargava 1139). According to Appellants, Bhargava teaches “the
end user device itself makes the determination of signal strength, and would
3
Appeal 2017-001083
Application 14/175,327
have no motivation to supply LTE signal strength using a WiFi signal to
another end user device.” Id.
The Examiner finds Hao teaches a wireless access network that
includes WiFi and LTE and teaches transmission of signals indicating LTE
RF signal strength. Ans. 2 (citing || 20, 45, 62). The Examiner additionally
finds Hao teaches using the same WiFi transmission in the content streaming
for transmission of LTE signal strength:
Additionally, or alternatively, donor peer selector 730 may request a
signal strength indication from the target peer device 110 (e.g., the peer
device that initiated the content request). The signal strength indication
may be used by donor peer selector 730 to determine a best available
donor peer device (e.g., a peer device that has the requested content,
has MiFi3 capability, and has the best signal for the target peer device).
Ans. 3 (citing Hao 162).
The Examiner finds one of ordinary skill in the art would be
motivated to combine Hao and Bhargava to supply LTE signal strength
using a WiFi signal to another end user device because this would improve
the allocation and use of the cellular system resources. Ans. 4 (citing
Bhargava 137). The Examiner finds the combination of Hao and Bhargava
teaches the identification of LTE signal strength wherein Bhargava identifies
LTE signal strength via a threshold of gain. Ans. 5—6 (citing Bhargava
1139).
Appellants rely on the same arguments for independent claim 11 and
rely on dependency from independent claims 1 and 11 for the remaining
3 According to Hao, “the terms "mobile WiFi" and "MiFi" may be used
interchangeably to refer to mobile user devices acting like a WiFi router
(e.g., using IEEE 802.11 standards). Hao 115.
4
Appeal 2017-001083
Application 14/175,327
rejected claims. App. Br. 8—9. Appellants further argue the additional cited
references do not cure the deficiencies of Hao and Bhargava. Id.
We are not persuaded by Appellants’ arguments and agree, instead,
with the findings of the Examiner. Appellants interpret the teachings of Hao
and Bhargava unreasonably narrowly and present no persuasive evidence
that the Examiner’s findings and conclusions regarding the teaching of Hao
and Bhargava are unreasonable. 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. See Keller, 642 F.2d at 425.
As stated by the Supreme Court, the Examiner’s obviousness rejection
must be based on:
[Sjome articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness .... [Hjowever, the
analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.
KSRInt’l. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
We find the Examiner’s findings are reasonable because the skilled
artisan would “be able to fit the teachings of multiple patents together like
pieces of a puzzle” since the skilled artisan is “a person of ordinary
creativity, not an automaton.” KSR, 550 U.S. at 420-21.
5
Appeal 2017-001083
Application 14/175,327
On this record, Appellants do not present sufficient evidence that the
combination of Hao and Bhargava was “uniquely challenging or difficult for
one of ordinary skill in the art” or “represented an unobvious step over the
prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007) (citing KSR, 550 U.S. at 418—19). Nor have Appellants
provided objective evidence of secondary considerations, which our
reviewing court guides “operates as a beneficial check on hindsight.”
Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., Inc., 725 F.3d 1341,
1352 (Fed. Cir. 2013).
In view of the above, we sustain the rejection of independent claim 1,
and independent claim 11 which is argued together with claim 1 and is
commensurate in scope. We agree with the Examiner, supra, that there is no
deficiency regarding the combination of Hao and Bhargava, and we also
sustain the rejection of dependent claims 3—10 and 13—20 as these claims are
not argued separately. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm4 the Examiner’s decision rejecting claims 1,3 10,
and 13-20 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(f).
AFFIRMED
4 We note the rejection of dependent claims 3 and 13 is not withdrawn.
Ans. 2. However, these claims appear to include the limitations of
dependent claims 2 and 12 for which the rejection is withdrawn. See
footnote 2, supra.
6