Imagination Technologies LimitedDownload PDFPatent Trials and Appeals BoardDec 1, 20212020005225 (P.T.A.B. Dec. 1, 2021) Copy Citation 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. 15/368,809 12/05/2016 Chaitanya Tata 8059-105940-01 8155 24197 7590 12/01/2021 KLARQUIST SPARKMAN, LLP 121 SW SALMON STREET SUITE 1600 PORTLAND, OR 97204 EXAMINER DANIEL JR, WILLIE J ART UNIT PAPER NUMBER 2462 NOTIFICATION DATE DELIVERY MODE 12/01/2021 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): docketing@klarquist.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHAITANYA TATA _____________ Appeal 2020-005225 Application 15/368,809 Technology Center 2400 ____________ Before ROBERT E. NAPPI, ST. JOHN COURTENAY III, and MATTHEW J. McNEILL, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1–11, 13–16, and 18–20, which constitute all the claims pending in this application. Claims 12 and 17 are canceled. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We Reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real party in interest in this appeal is the Imagination Technologies Limited of Kings Langley, United Kingdom. See Appeal Br. 1. Appeal 2020-005225 Application 15/368,809 2 STATEMENT OF THE CASE 2 Introduction Embodiments of Appellant’s claimed subject matter relate generally to “devices and methods for saving power and reducing latency at a wireless transceiver.” Spec. 1, ll. 5–6. Independent Claim 1 1. A device capable of communicating according to a wireless communications protocol, the device comprising: a transceiver configured to receive packets from a remote device, each packet comprising an indication of whether or not the remote device has a further packet to transmit, the transceiver being operable in a first mode or a second mode, wherein: in the first mode the transceiver is configured to: (i) send a polling message to the remote device in response to receiving the indication of the remote device having a further packet to transmit; and (ii) listen for that further packet; and in the second mode the transceiver is configured to: (i) not send a polling message to the remote device in response to receiving the indication of the remote device having a further packet to transmit; and (ii) listen for packets regardless of whether a received packet indicates that the remote device has a further packet to transmit or not; and a controller configured to: [L1] monitor an activity level for the transceiver by measuring over a period of time the number of packets received indicating that the remote device has further packets to transmit; 2 We herein refer to the Final Office Action, mailed June 3, 2019 (“Final Act.”); the Appeal Brief, filed January 25, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed May 6, 2020 (“Ans.”), and the Reply Brief, filed July 6, 2020 (“Reply Br.”). Appeal 2020-005225 Application 15/368,809 3 [L2] compare the monitored activity level with a threshold; and [L3] cause the transceiver to operate in the first mode or the second mode in dependence on said comparison. Appeal Br. 13. Claims App. (disputed claim limitations emphasized and bracketed as L1, L2, and L3). Prior Art Evidence Relied Upon by the Examiner Name Reference Date Vitamäki et al. (“Vitamäki”) EP 1 473 951 A2 Dec. 22, 2003 Rejection Claims Rejected 35 U.S.C. § Reference(s)/Basis 1–11, 13–16, 18–20 102(a)(2) Vitamäki ISSUES AND ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are forfeited or waived.3 See, e.g., 37 C.F.R. § 41.37(c)(1)(iv)(2013). Throughout this 3 See In re Google Technology Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020) (some internal citation omitted): It is well established that “[w]aiver is different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a Appeal 2020-005225 Application 15/368,809 4 opinion, we give the claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and address specific findings and arguments for emphasis in our analysis below. Anticipation Rejection of Independent Claim 1 Issue: Under 35 U.S.C. § 102, did the Examiner err by finding that the cited Vitamäki reference expressly or inherently discloses the disputed claim 1, L1 limitation, that we find is dispositive to this appeal: [L1] monitor an activity level for the transceiver by measuring over a period of time the number of packets received indicating that the remote device has further packets to transmit; Claim 1 (bracketing and emphasis added regarding disputed dispositive limitation L1). Limitation L1 Appellant contends that the Examiner: has not addressed the actual claim limitation of a controller configured to monitor an activity level for the transceiver by measuring the number of packets received over a period of time that indicate that the remote device has further packets to transmit. The claims thus require a specific type of activity level monitoring, which is simply not disclosed in Vitamäki. Simply “monitoring a level of activity” to indicate a higher activity state known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two scenarios can have different consequences for challenges raised on appeal, id. at 733–34, and for that reason, it is worth attending to which label is the right one in a particular case. Appeal 2020-005225 Application 15/368,809 5 to allow faster transmission rate does not correspond to the claimed subject matter. Secondly, Vitamäki discloses in paragraph [0059], lines 32-37 that after a doze state the terminal switches into the active state and controls whether the base station has buffered data for it. If not, then the terminal again switches into the doze state as before. If data has been buffered the device can switch into a more active state and begin to receive data. This does not correspond monitoring an activity level for the transceiver by measuring the number of packets received over a period of time that indicate that the remote device has further packets to transmit, as required by claim 1. Instead, in this paragraph, Vitamäki simply discloses switching between states based on whether a base station has buffered data. Appeal Br. 10. Appellant additionally addresses the “hatch” closing mechanism that initiates a WLAN power save mode, as described in paragraphs 59 and 64 of Vitamäki. Appellant contends: Vitamäki describes in paragraph [0064] that an aggressive WLAN power save mode is used when the hatch or mechanism is closed. The device can receive data, although at a rate which is slower than normally. When a faster transmission rate for WLAN data or a more rapid reaction is required the user can leave the hatch or mechanism open, even if he would not actively use the device, or the power saving properties can be bypassed when required, for instance in a programmed way. The “hatch” referred to in this paragraph seems to be a mobile phone cover, which the user of the device manually opens and closes, e.g. the cover of a flip- phone or a PDA (see Figures 4a and 4b, and paragraph [0059]). That is, paragraph [0064] discloses determining a level of power saving based on whether the hatch or cover of a mobile device is open or closed. This is not a disclosure of monitoring an activity level for the transceiver by measuring the number of packets received over a period of time that indicate that the remote device has further packets to transmit, as required by Appeal 2020-005225 Application 15/368,809 6 claim 1. Appeal Br. 11. Turning to the evidence, we note that paragraph 59 and Figure 4a of Vitamäki clarify the “hatch” mechanism, as follows: Figure 4a shows a mechanism, which can be opened and closed, in the closed state, which mechanism can be found in some WLAN or Bluetooth terminals, such as in certain mobile phone models, particularly in mobile stations of the communicator type, and in certain mobile phones. A mechanism of this type can also be a hatch, a cover or the like, which covers the keys. A device utilising [Br. sp.] a screen saver for preventing accidental user input works basically the same way. When a mechanism of this type is closed, or a screen saver is activated or locked, the device is generally in a passive state, in other words applications using the WLAN or Bluetooth features or other features in the device are not used, or cannot be used because the keys and/or the display needed for the use are covered. When the hatch or closing mechanism is closed the terminal (station) will then in an embodiment of the invention switch into the power save mode, in which it will not receive the beacons transmitted by the base station during a certain period, for instance during the next 30 frames. Vitamäki ¶ 59 (emphasis added). In support of the anticipation rejection of limitation L1 of claim 1, the Examiner relies upon Vitamäki at paragraphs 29, 55, 59, 64, 65, 79, 81, and Figures 1 and 2.4 See Final Act. 11. In the Answer, the Examiner adds new citations to paragraph 61 and Figure 5 of Vitamäki. See Ans. 11. 4 See the mapping rule: 37 C.F.R § 1.104(c)(2)(2013) (“When a reference is complex or shows or describes inventions other than that claimed by the applicant, the particular part relied on must be designated as nearly as practicable. The pertinence of each reference, if not apparent, must be clearly explained and each rejected claim specified.” (emphasis added). Appeal 2020-005225 Application 15/368,809 7 Based upon our review of the evidence, we find paragraph 81 of Vitamäki provides the closest teaching of the “monitor” function recited in claim 1: According to an embodiment of the invention the method for determining the activity of WLAN or Bluetooth utilisation [Br.sp.] and the setting the level of the power save mode is to monitor the level of WLAN or Bluetooth so communication during a certain period. If no data has been transmitted during a certain time through the WLAN or Bluetooth, or if only a small amount of data has been transmitted, then the WLAN or Bluetooth system would switch into the power save mode, and the interval between received beacons would become longer. On the other hand, an increased amount of transmitted data would cause the WLAN or Bluetooth to switch into a more active state (lower power save mode). Vitamäki ¶ 81 (emphasis added). Appellant addresses paragraph 81, and disagrees with the Examiner’s finding of anticipation: Vitamäki discloses monitoring the level of WLAN communication during a certain period for setting the level of the power save mode. See paragraph [0081]. If no data has been transmitted during a certain time through the WLAN, or if only a small amount of data has been transmitted, then the system would switch into the power save mode, and the interval between received beacons would become longer. On the other hand, an increased amount of transmitted data would cause the WLAN to switch into a more active state (lower power save mode) (see Id.). Thus, in this embodiment Vitamäki sets a level of the power save mode based on the amount of data transmitted during a certain time, and does not monitor indications of whether there are further frames/packets to transmit. Appeal 2020-005225 Application 15/368,809 8 Appeal Br. 9 (underline in original, italics and bold added for emphasis). We have reviewed the Examiner’s responses in the Answer, including the Examiner’s reliance on purported “admissions” by Appellant, as found by the Examiner’s review of the record. See Ans. 10.5 However, we find Appellant persuasively rebuts the purported admissions on page 3 of the Reply Brief. Although we have reviewed all the admissions found by the Examiner (Ans. 10), and the multiple paragraphs and figures in Vitamäki cited by the Examiner in support, on this record we nevertheless find some degree of speculation would be required to affirm the Examiner’s finding of anticipation regarding at least disputed limitation L1 of claim 1. We emphasize the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985); see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not, because it may doubt that the invention is patentable, resort to speculation, unfounded assumptions . . . to supply deficiencies in its factual basis.”). We decline to engage in such speculation. And to the extent the Examiner is relying upon any purportedly inherent feature in Vitamäki, “[i]nherency . . . may not be established 5 “A statement by an applicant in the specification or made during prosecution identifying the work of another as ‘prior art’ is an admission which can be relied upon for both anticipation and obviousness determinations, regardless of whether the admitted prior art would otherwise qualify as prior art under the statutory categories of 35 U.S.C. 102.” MPEP §2129(I.), citing Riverwood Int’l Corp. v. R.A. Jones & Co., 324 F.3d 1346, 1354 (Fed. Cir. 2003); Constant v. Advanced Micro-Devices Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988). Appeal 2020-005225 Application 15/368,809 9 by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745, (Fed. Cir. 1999) (internal citations omitted). To anticipate under § 102, the prior art reference “must not only disclose all elements within the four corners of the document, but must also disclose those elements arranged as in the claim.” Net MoneyIn, Inc. v. Verisign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008) (citation and internal quotation marks omitted). “Thus, it is not enough that the prior art reference discloses part of the claimed invention, which an ordinary artisan might supplement to make the whole, or that it includes multiple, distinct teachings that the artisan might somehow combine to achieve the claimed invention.” Id. at 1371 (emphasis added). Here, as noted above, the Examiner maps limitation L1 of claim 1 to multiple paragraphs and figures of Vitamäki (paragraphs 29, 55, 59, 64, 65, 79, 81, Figures 1–2; see Final Act. 11). In the Answer (p. 11), the Examiner adds new citations to paragraph 61 and Figure 5 of Vitamäki. Based upon our review of the record, we find the closest teaching found in Vitamäki (i.e., the description of a monitor function at paragraph 81) does not provide an express or inherent disclosure of the claim 1 limitation L1, so as to meet the rigorous requirements of anticipation under 35 U.S.C. § 102. And we decline to express any view as to whether at least claim 1 might be obvious over Vitamäki, because we have no obviousness rejection before us on appeal.6 6 Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02 (9th ed. Rev. 10.2019, rev. June 2020). Appeal 2020-005225 Application 15/368,809 10 Therefore, on this record, we find a preponderance of the evidence supports Appellant’s argument in the Appeal Brief (p. 9, last paragraph) that Vitamäki “does not monitor indications of whether there are further frames/packets to transmit” as required by the language of claim 1, which recites “a controller configured to:” [L1] monitor an activity level for the transceiver by measuring over a period of time the number of packets received indicating that the remote device has further packets to transmit; Claim 1 (emphasis added). Accordingly, for essentially the same reasons argued by Appellant in the Briefs, as further discussed above, we are constrained on this record to reverse the Examiner’s anticipation rejection of independent claim 1, because the Examiner has not established by a preponderance of the evidence that any cited portions of Vitamäki’s description (including the cited figures) anticipates Appellant’s disputed limitation L1, as recited in claim 1. We note remaining independent claims 16 and 20 both recite similar language of commensurate scope to limitation L1 of independent claim 1. Therefore, we are constrained on this record to reverse the Examiner’s anticipation rejection of independent claims 16 and 20. Because we have reversed the anticipation rejection for all independent claims 1, 16, and 20 on appeal, for the same reasons, we also reverse the anticipation rejection of each dependent claim. Appeal 2020-005225 Application 15/368,809 11 CONCLUSION The Examiner erred in rejecting claims 1–11, 13–16, and 18–20 under 35 U.S.C. § 102(a)(2) over Vitamäki. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–11, 13–16, 18–20 102(a)(2) Vitamäki 1–11, 13–16, 18–20 REVERSED Copy with citationCopy as parenthetical citation