MOTOROLA MOBILITY LLC

Patent Trials and Appeals BoardApr 2, 2021

2019006999 (P.T.A.B. Apr. 2, 2021)

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. 15/913,908 03/06/2018 Vivek Tyagi 017.17.0040- MM920170141-2 8124 115167 7590 04/02/2021 Motorola Mobility LLC, c/o Cygan Law Offices, P.C. 2300 Barrington Road Suite 400 Hoffman Estates, IL 60169 EXAMINER PANNELL, MARK G ART UNIT PAPER NUMBER 2642 NOTIFICATION DATE DELIVERY MODE 04/02/2021 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.MOBILITY@MOTOROLA.COM docketing@cyganlawoffices.com jcygan@cyganlawoffices.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VIVEK TYAGI, DOUGLAS LAUTNER, and SUDHIR VISSA ____________ Appeal 2019-006999 Application 15/913,908 Technology Center 2600 ____________ Before ST. JOHN COURTENAY III, LARRY J. HUME, and PHILLIP A. BENNETT, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–11, which constitute all the claims pending in this application. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 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 is Motorola Mobility LLC. See Appeal Br. 1. Appeal 2019-006999 Application 15/913,908 2 STATEMENT OF THE CASE2 Introduction Embodiments of Appellant’s invention relate generally to “real-time locating systems (RTLS) and mobile devices and more particularly to location error correction within an RTLS.” (Spec. ¶ 1). Representative Independent Claim 1 1. A method of operating a real time locating system (RTLS), the method comprising: receiving, by an RTLS tagged object, RTLS coordinates of the RTLS tagged object within an RTLS perimeter; tracking inertial measurement unit (IMU) data by the RTLS tagged object; determining, by the RTLS tagged object, RTLS coordinate error in the RTLS coordinates using the IMU data; and determining corrected RTLS coordinates for the RTLS tagged object using the error. CLAIMS APPENDIX 1 (Disputed limitations emphasized). 2 We herein refer to the Final Office Action, mailed January 30, 2019 (“Final Act.”); Appeal Brief, filed May 23, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed July 31, 2019 (“Ans.”); and the Reply Brief, filed September 25, 2019 (“Reply Br.”). Appeal 2019-006999 Application 15/913,908 3 Evidence The prior art relied upon by the Examiner as evidence: Name Reference Date Fidler US 2002/0161547 A1 Oct. 31, 2002 Asher et al. US 2003/0201934 A1 Oct. 30, 2003 Gruchala et al. US 2006/0284766 A1 Dec. 21, 2006 Agarwal US 2009/0252303 Al Oct. 8, 2009 Supino et al. US 2009/0326795 A1 Dec. 31, 2009 Ono et al. US 2014/0005931 A1 Jan. 2, 2014 Park et al. US 2016/0071294 A1 Mar. 10, 2016 Troy US 9,423,250 B1 Aug. 23, 2016 Sendonaris et al. US 2017/0082727 A1 March 23, 2017 Ding et al. US 2018/0172842 A1 June 21, 2018 Table of Rejections Rej. Claims Rejected 35 U.S.C. § Reference(s)/Basis A 1, 6 103 Troy, Agarwal B 2, 5, 7, 10 103 Troy, Agarwal, Ono et al. (“Ono”) C 3, 8 103 Troy, Agarwal, Asher et al. (“Asher”) D 4, 9 103 Troy, Agarwal, Ding et al. (“Ding”) E 11 103 Supino et al. (“Supino”), Sendonaris et al. (“Sendonaris”), Park et al. (“Park”) Appeal 2019-006999 Application 15/913,908 4 ANALYSIS Rejection A of Independent Claims 1 and 6 Under 35 U.S.C. § 103, we focus our analysis on the following argued limitations regarding Rejection A of independent claim 1 and also independent claim 6, which recites similar limitations. Issue: Did the Examiner err by finding that the cited references collectively teach or suggest the disputed limitations: A method of operating a real time locating system (RTLS), the method comprising, inter alia, [the steps or acts of:] [A] receiving, by an RTLS tagged object,… [B] determining, by the RTLS tagged object, RTLS coordinate error in the RTLS coordinate using the IMU data[,] within the meaning of independent claim 1?3 (Emphases added). See Final Act. 3–6. Appellant contends Troy’s portable device does not teach an RTLS tagged object because no RTLS tag is present in Troy’s devices, which instead teach GPS. See Appeal Br. 13, 16. In particular, Appellant contends an “RTLS tagged object” is explicitly defined in Appellant’s Specification at paragraph 26, and “therefore this definition controls the interpretation of the claim term.” Appeal Br. 15–16. We are not persuaded by Appellant’s contention, because we find Appellant’s Specification at paragraph 26 does not provide an explicit definition of an RTLS tagged object. Instead, paragraph 26 merely provides 3 Throughout this opinion, we give the claim limitations the broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2019-006999 Application 15/913,908 5 non-limiting examples of RTLS tagged objects. See Spec. ¶ 26 (e.g., “Any object that has an RTLS tag attached or integrated internally, such as RTLS tagged object 150, may be monitored and tracked as an object of interest by the RTLS 100.”) (emphasis added). The Examiner takes Official Notice that it was well known in the art that a broad but reasonable interpretation of RTLS includes GPS. See Ans. 4. The Examiner provides the following extrinsic evidence in support of the taking of Official Notice: (1) US 2006/0284766 A1 to Gruchala at paragraph 2: “Systems to locate mobile electronic devices are known generally as RTLS (Real Time Location Systems). One well-known example of RTLS technology is GPS (Global Positioning System) based technology;” and, (2) US 2002/0161547 A1 to Fidler at paragraph 5: “Wireless technologies are also available for reporting location data of portable devices. Generally, these technologies may be referred to as real time location systems (‘RTLS’), with a well-known example comprising global positioning systems (‘GPS’)” (emphasis added). In this context, we emphasize that, because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). Accordingly, on this record, we are not persuaded that the Examiner’s claim interpretation is overly broad or unreasonable, especially considering that Appellant has not provided an explicit limiting definition for the claim term “RTLS tagged object” in the claims or in the Specification. Therefore, on this record, we are not persuaded that the Examiner’s reading of the claim term “RTLS tagged object” on Troy’s GPS-tagged object is in error. Appeal 2019-006999 Application 15/913,908 6 Appellant further urges that Troy’s device “is not capable of receiving location information” because its “direct line-of-sight system is occluded” and it is solving a different problem. Appeal Br. 17–20 (citing Troy Col. 1, ll. 29–33). We are not persuaded by Appellant’s additional argument because as explained in KSR Int’l Co. v. Teleflex Inc. (550 U.S. 398, 420 (2007)), it is error to assume that a person of ordinary skill attempting to solve a problem will be led only to those elements of the prior art designed to solve the same problem. Rather, . . . A person of ordinary skill is also a person of ordinary creativity, not an automaton. Id. at 420-21. See also KSR at 419: “[N]either the particular motivation nor the avowed purpose of the [Appellant] controls” in an obviousness analysis. Our reviewing court further guides it is irrelevant that the prior art and the present invention may have different purposes. See Nat'l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) (“A finding that two inventions were designed to resolve different problems . . . is insufficient to demonstrate that one invention teaches away from another.”). It is sufficient that references suggest doing what Appellant did, although the Appellant’s particular purpose was different from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re Gershon, 372 F.2d 535, 539 (CCPA 1967)). Thus, for a prima facie case of obviousness to be established, the reference need not recognize the same problem solved by the Appellant. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). As noted above, the reason(s) or motivation(s) to combine the references may often suggest what the inventor has done, but for a different Appeal 2019-006999 Application 15/913,908 7 purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by Appellant. See In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006) (motivation question arises in the context of the general problem confronting the inventor rather than the specific problem solved by the invention); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005) (“One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.”). On this record, we find Appellant has not shown that the invention as recited in claim 1 is “more than the predictable use of prior art elements according to their established functions” so as to be non-obvious under the guidance of KSR, 550 U. S. at 417. Therefore, for the reasons discussed above, Appellants have not provided arguments supported by a preponderance of the evidence to persuade us the Examiner erred. Appellant also argues that Troy does not teach the claim limitation “RTLS coordinate error in the RTLS coordinates” because Troy’s portable device does not receive any RTLS coordinates or error in such coordinates and also because Appellant’s Specification at paragraph 57 defines “RTLS coordinate error,” which Troy does not teach. Appeal Br. 20–23. We are not persuaded by Appellant’s arguments, because Appellant’s Specification does not provide a limiting definition for “RTLS coordinate error.” Instead, the Specification merely provides non-limiting, exemplary descriptions of such errors. See Spec. ¶ 57 (e.g., “In one example of ‘zero- in’ lag time, there is a realtime lag in obtaining a position fix due to latency.”). Appeal 2019-006999 Application 15/913,908 8 See also Ans. 10. We find Troy’s detection of an error condition, and calculation of the corrected acceleration data based upon a difference between the estimated position of the ending location and a known location of the ending location, teaches or at least suggests the disputed limitation: “RTLS coordinate error in the RTLS coordinates.” See Troy, Fig. 4, cols. 11, 12; see also Ans. 11. We are similarly not persuaded by Appellant’s arguments pertaining to tracking IMU data (Appeal Br. 23), and agree with the Examiner’s findings, because Troy’s method 500 includes initiating the acquisition of acceleration data and rotational data, which we find at least suggests “using the IMU data,” as recited in claim 1. See Appeal Br. 23 (citing Troy, Fig. 5, col. 12, ll. 15–24). We emphasize that “the question under 35 USC 103 is not merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made.” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also MPEP § 2123. Appellant also argues that Troy “teaches away” from the claimed subject matter with respect to the claim language regarding “IMU data.” See Appeal Br. 24–25. Appellant specifically argues “that there is no such legal requirement” [(“to criticize, discredit, or otherwise discourage the solution of using IMU data to correct coordinate data, RTLS”)] “for a finding that a reference teaches away.” Appeal Br. 25 (citing Arctic Cat Inc. v. Bombardier Recreational Prods. Inc., 876 F.3d 1350, 1360 (Fed. Cir. 2017)). Appeal 2019-006999 Application 15/913,908 9 However, we are not persuaded by Appellant’s argument because, upon reading the citation to Arctic Cat, we are of the view that its guidance is not consistent with Appellant’s argued characterization. Regarding Appellant’s “teaching away” argument, our reviewing court guides: “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations omitted). However, a “finding that the prior art as a whole suggests the desirability of a particular combination need not be supported by a finding that the prior art suggests that the combination claimed by the patent applicant is the preferred, or most desirable, combination.” In re Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004). Teaching an alternative or equivalent method, however, does not teach away from the use of a claimed method. In re Dunn, 349 F.2d 433, 438 (CCPA 1965). See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (“A reference does not teach away [. . .] if it merely expresses a general preference for an alternative invention but does not ‘criticize, discredit, or otherwise discourage’ investigation into the invention claimed.”). Here, because both Troy and Agarwal are in the same field of endeavor as Agarwal also pertains to RTLS (Ans. 18 (citing Agarwal, ¶ 59 (GPS))), we find they are analogous art to the claimed invention. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Specifically, we find Appellant’s “teaching away” argument unavailing, because we find nothing Appeal 2019-006999 Application 15/913,908 10 in either Troy or Agarwal that criticizes, discredits, or otherwise discourages the invention claimed. Appellant further contends that the Examiner’s rationale to combine the teachings of Troy and Agarwal is insufficient. See Appeal Br. 28. In particular, Appellant contends: [T]he motivation is not logical because ‘tracking a mobile phone within an area, as described in Agarwal’ and ‘receiving coordinates of a device and tracking the device, as described in Troy’, each obtain the same result of ‘tracking the device’ and therefore there would be no motivation to combine Troy and Agarwal to ‘track the device’ because each do that already independently. Appeal Br. 29. The Examiner articulates a rationale for combining the references, and explains: It would have been obvious to a person of ordinary skill in the art to incorporate tracking a mobile phone within an area, as described in Agarwal, with receiving coordinates of a device and tracking the device, as described in Troy, because doing so is combining prior art elements according to known methods to yield predictable results. Combining tracking a mobile phone within an area of Agarwal with receiving coordinates of a device and tracking the device of Troy was within the ordinary ability of one of ordinary skill in the art based on the teachings of Agarwal. Since Troy and Agarwal disclose overlapping subject matter, combining them is reasonable and logical. Ans. 20. See also Final Act. 5–6. On this record, we are not persuaded the Examiner erred because Appellant does not point to any evidence of record that shows combining the Troy and Agarwal references in the manner proffered by the Examiner (Final Act. 5–6) would have been “uniquely challenging or difficult for one of ordinary skill in the art” or would have “represented an unobvious step Appeal 2019-006999 Application 15/913,908 11 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). On this record, we find the Examiner has provided a sufficient “rational underpinning to support the legal conclusion of obviousness,” KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection A of independent representative claim 1. Accordingly, for the reasons discussed above, we sustain the Examiner’s obviousness Rejection A of independent claim 1 and also Rejection A of independent claim 6, which recites the disputed limitations in commensurate form, over the collective teachings and suggestions of Troy and Agarwal. Rejections B–D of dependent Claims 2–5 and 7–10 In view of the lack of any substantive, separate arguments directed to Rejections B–D of dependent claims 2–5 and 7–10, under § 103 (see Appeal Br. 30–32), we sustain the Examiner’s Rejections B–D of the remaining dependent claims. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection E of Independent Claim 11 The Examiner cites to Supino, Sendonaris, and Park in rejecting independent claim 11. See Final Act. 24. Appellant argues (similar to the arguments advanced above regarding Troy in claim 1) that Supino teaches a GPS and not a RTLS, and, therefore Supino does not teach an RTLS tag as Appeal 2019-006999 Application 15/913,908 12 alleged. Appeal Br. 33. We have fully addressed this claim construction issue supra regarding Rejection A of claim 1. Appellant contends that Sendonaris does not teach RTLS. Appeal Br. 35. Appellant also argues that Sendonaris “teaches away” from RTLS as described in Appellant’s Specification at paragraph 26. See Appeal Br. 36. Appellant additionally argues that Park is non-analogous art. See Appeal Br. 37. We disagree with Appellant regarding independent claim 11 for essentially the same reasons as set forth by the Examiner. Therefore, we agree with and adopt the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection E of claim 11.4 See Final Act. 24–28; Ans. 22–31. We agree with the Examiner that Supino’s system that includes a GPS at least suggests an RTLS; see supra our claim interpretation of “RTLS.” Therefore, on this record, and based upon a preponderance of the evidence, Appellant has not persuaded us the Examiner erred in rejecting independent claim 11. Accordingly, we sustain the Examiner’s Rejection E of independent claim 11. 4 See Icon Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner's findings.). Appeal 2019-006999 Application 15/913,908 13 Reply Brief To the extent Appellant may advance new arguments in the Reply Brief not in response to a shift in the Examiner’s position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner’s Answer will not be considered except for good cause, which Appellant has not shown. See 37 C.F.R. § 41.41(b)(2). CONCLUSION The Examiner did not err in rejecting claims 1–11 as being obvious under 35 U.S.C. § 103, over the cited combinations of references. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1, 6 103 Troy, Agarwal 1, 6 2, 5, 7, 10 103 Troy, Agarwal, Ono 2, 5, 7, 10 3, 8 103 Troy, Agarwal, Asher 3, 8 4, 9 103 Troy, Agarwal, Ding 4, 9 11 103 Supino, Sendonaris, Park 11 Overall Outcome 1–11 Appeal 2019-006999 Application 15/913,908 14 FINALITY AND RESPONSE 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)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED