Silver Spring Networks, Inc.Download PDFPatent Trials and Appeals BoardJun 1, 20202019002278 (P.T.A.B. Jun. 1, 2020) 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. 14/516,293 10/16/2014 Peter Hunt SILS0063US SSN-226-US 4668 103346 7590 06/01/2020 Artegis Law Group, LLP/Itron Inc. 7710 Cherry Park Drive Suite T #104 Houston, TX 77095 EXAMINER RAO, SHEELA S ART UNIT PAPER NUMBER 2119 NOTIFICATION DATE DELIVERY MODE 06/01/2020 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): jmatthews@artegislaw.com kcruz@artegislaw.com sjohnson@artegislaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PETER HUNT, JANA VAN GREUNEN, and WILL E. SAN FILIPPO III ____________ Appeal 2019-002278 Application 14/516,293 Technology Center 2100 ____________ Before ST. JOHN COURTENAY III, ELENI MANTIS MERCADER, and LINZY T. McCARTNEY, 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 1–20. 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) (2018). According to Appellant, the real party in interest is Itron Networked Solutions, Inc. See Appeal Br. 3. Appeal 2019-002278 Application 14/516,293 2 STATEMENT OF THE CASE2 Introduction Appellant’s claimed invention relates generally to “a system where transmission of available data is controlled in an effort to control the thermal properties of the system.” (Spec. ¶ 12). Independent Claim 1 1. A method for controlling thermal properties of a node, comprising: calculating, using a temperature reading, a transmission duty cycle of the node, wherein the transmission duty cycle is a measure of transmission time relative to idle time of the node; calculating a data amount capable of being transmitted with the transmission duty cycle; and transmitting, from a network interface of the node, a plurality of available data at a rate less than the data amount based on a priority of the plurality of available data. Appeal Br. 16, Claims Appendix, dispositive disputed limitation emphasized. 2 We herein refer to the Final Office Action, mailed Aug. 24, 2017 (“Final Act.”); Appeal Brief, filed Mar. 27, 2018 (“Appeal Br.”); the Examiner’s Answer, mailed Nov. 9, 2018 (“Ans.”), and the Reply Brief, filed Jan. 9, 2019 (“Reply Br.”). Appeal 2019-002278 Application 14/516,293 3 References The prior art relied upon by the Examiner as evidence: Name Reference Date Hashimoto et al. US 2002/0091475 A1 July 11, 2002 Korneluk et al. US 6,718,164 B1 Apr. 6, 2004 Brey et al. US 2013/0073096 A1 Mar. 21, 2013 Rejection Claims Rejected 35 U.S.C. § Reference(s)/Basis 1–20 103 Korneluk et al. (“Korneluk”), Brey et al. (“Brey”), Hashimoto et al. (“Hashimoto”) Issue on Appeal Did the Examiner err in rejecting claims 1–20 under 35 U.S.C. § 103, as being obvious over the combined teachings and suggestions of the cited references? ANALYSIS Rejection of Claims 1–20 under 35 U.S.C. § 103 Issues: Under 35 U.S.C. § 103, we focus our analysis on the following argued limitation that we find to be dispositive regarding the rejection of claims 1–20: Appeal 2019-002278 Application 14/516,293 4 Did the Examiner err by finding that Korneluk, Brey, and Hashimoto collectively teach or suggest the disputed, dispositive limitation: “transmitting, from a network interface of the node, a plurality of available data at a rate less than the data amount based on a priority of the plurality of available data,” within the meaning of independent claim 1?3 (emphasis added). Appellant traverses the Examiner’s reliance (Final Action 4) on Hashimoto’s description at paragraph 24, as found to teach or suggest: “transmitting . . . available data at a rate less than the data amount based on a priority of the plurality of available data.” Claim 1 (emphasis added). In particular, Appellant contends that Hashimoto does not disclose that “data of a given priority is transmitted at a rate that is lower than the transmission rate available for transmitting that data.” Appeal Br. 13–14; see also Reply Br. 4. The Examiner disagrees (Ans. 8), and points to Korneluk (col. 3, ll. 51–54) as teaching “transmitting . . . available data at a rate less than the data amount.” The Examiner explains that because Korneluk’s flow control block controls “when the communication device will start and stop the transmission of information,” the amount of data being transmitted from Korneluk’s network interface node is less than the amount of data that is capable of being transmitted. Ans. 9. However, turning to the evidence, Hashimoto (¶ 24), we find no express teaching of “transmitting . . . available data at a rate less than the 3 We give the contested claim limitation the broadest reasonable interpretation (“BRI”) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2019-002278 Application 14/516,293 5 data amount based on a priority of the plurality of available data.” (emphasis added). Although Hashimoto describes assigning a high priority to data which requires “immediate responsiveness” and sending data “in order of priority” (¶ 25), we find some degree of speculation is required to ascertain whether Hashimoto’s data is sent “at a rate less than the data amount based on a priority of the plurality of available data.” Claim 1 (emphasis added). “A rejection . . . must rest on a factual basis . . . .” 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 . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. Therefore, we decline to engage in speculation. In reviewing Korneluk (col. 3, ll. 51–54), we also find no express teaching of “transmitting . . . available data at a rate less than the data amount based on a priority of the plurality of available data.” Claim 1 (emphasis added). Although Korneluk’s starting and stopping the flow of transmission teaches that data transmission is performed at a rate less than the system’s capability, we find no teaching or suggestion that the starting and stopping of the flow of transmission is “based on a priority of the plurality of available data,” as recited in claim 1. On this point, we find the Examiner has not fully developed the record to show how Korneluk’s starting and stopping of the flow of data transmission are “based on a priority of the plurality of available data,” as required by the language of claim 1. Appeal 2019-002278 Application 14/516,293 6 Accordingly, based upon our review of the record, we find a preponderance of the evidence supports Appellant’s contention that Korneluk and Hashimoto collectively fail to teach or suggest the disputed, dispositive limitation: “transmitting, from a network interface of the node, a plurality of available data at a rate less than the data amount based on a priority of the plurality of available data.” Claim 1 (emphasis added). Moreover, the Examiner has not established that the secondary Brey reference provides the aforementioned teachings we find are missing from Korneluk and Hashimoto. Therefore, we are constrained on this record to reverse the Examiner’s obviousness rejection of independent claim 1 over the cited combination of Korneluk, Brey, and Hashimoto. Because remaining independent claims 11 and 19 recite the disputed limitation using similar language of commensurate scope, we also reverse the Examiner’s rejection of independent claims 11 and 19. Because we have reversed the rejection of each independent claim on appeal, we also reverse the Examiner’s obviousness rejection of each associated dependent claim. Accordingly, we reverse the Examiner’s obviousness rejection of all claims 1–20 on appeal. CONCLUSION The Examiner erred in rejecting claims 1–20, as being obvious under 35 U.S.C. § 103, over the cited combination of Korneluk, Brey, and Hashimoto. Appeal 2019-002278 Application 14/516,293 7 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 103 Korneluk, Brey, Hashimoto 1–20 REVERSED Copy with citationCopy as parenthetical citation