In Re: Khayrallah ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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IN RE ALI S. KHAYRALLAH
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2014-1382
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Serial No.
11/517,533.
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Decided: December 9, 2014
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DAVID E. BENNETT, Coats & Bennett, P.L.L.C. of Cary,
North Carolina, for appellant. With him on the brief was
LETAO QIN.
NATHAN K. KELLEY, Solicitor, United States Patent
and Trademark Office, of Alexandria, Virginia, for appel-
lee. With him on the brief were THOMAS W. KRAUSE,
Deputy Solicitor, MICHAEL S. FORMAN and STACY B.
MARGOLIES, Associate Solicitors.
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Before DYK, WALLACH, and HUGHES, Circuit Judges.
2 IN RE: KHAYRALLAH
DYK, Circuit Judge.
Ali S. Khayrallah (“Khayrallah”) appeals from a
decision by the United States Patent and Trademark
Office, Patent Trial and Appeal Board (“Board”). The
Board rejected his claims as anticipated and obvious
under 35 U.S.C. § 102(b) and § 103(a). We affirm.
BACKGROUND
On September 7, 2006, Khayrallah filed an applica-
tion for a patent, U.S. Patent Application No. 11/517,533,
entitled “Method of Receiving Wideband Signal.” On
June 3, 2010, the examiner issued a non-final rejection of
all pending claims, relying on various combinations of
four prior art references: U.S. Patent No. 6,574,459 and
U.S. Patent Publication Nos. 2005/0078649,
2005/0141412, and 2006/0111054. Khayrallah appealed
to the Board, which affirmed the examiner’s rejection of
all pending claims on December 23, 2013, as anticipated
or obvious. The Board found that independent claims 1
and 20 were anticipated in light of one prior art reference:
U.S. Patent Publication No. 2005/0078649 (“Tehrani”).
The various dependent claims were anticipated or obvious
in light of Tehrani and additional references not at issue
here.
Khayrallah appealed and challenges whether inde-
pendent claim 1 is anticipated in light of Tehrani. Khay-
rallah also appeals whether independent claim 20 and
dependent claims 2–11, 16–19, 21–30, and 35–39 are
patentable over Tehrani, arguing simply that they are
patentable for the same reasons claim 1 is patentable.
The claimed invention relates to variable bandwidth
receivers having multiple antennas, in which different
antennas are configured to receive sub-signals of a wide-
band signal. Claim 1 is representative:
IN RE: KHAYRALLAH 3
A method for receiving a wideband signal includ-
ing multiple sub-signals, said method comprising:
receiving the wideband signal using two or more
receive antennas;
selectively assigning a first one of said receive an-
tennas to receive one or more signals of interest on
a first sub-signal of the wideband signal;
selectively assigning a second one of said receive
antennas to receive one or more signals of interest
on a second sub-signal of the wideband signal;
and
wherein said first and second sub-signals have dif-
ferent bandwidths and overlap in the frequency
domain.
J.A. 3 (emphases added). As originally filed, the claim did
not contain the emphasized portions; the emphasized
portions were added during prosecution in response to
rejections by the examiner.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(4)(A).
DISCUSSION
This appeal raises two related issues: first, did the
Board give the proper broadest reasonable interpretation
to claim 1; second, in light of the proper interpretation,
does Tehrani anticipate the claim? We review the first
question de novo. In re Montgomery, 677 F.3d 1375, 1379
(Fed. Cir. 2012) (“The broadest reasonable interpretation,
like claim construction in the infringement context, is a
question of law that we review de novo.”) (citing In re
NTP, Inc., 654 F.3d 1268, 1274 (Fed. Cir. 2011)). We
review the second question for substantial evidence. In re
Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010).
4 IN RE: KHAYRALLAH
Khayrallah argues that the Board opinion does not
take proper account of the “to receive” language and the
“wherein” clause found in claim 1.
While there is language in the Board opinion suggest-
ing the “to receive” language and the “wherein” clause
were not limiting, the Board’s ultimate interpretation
incorporated those limiting requirements. The Board
interpreted “selectively assigning a first one of said re-
ceive antennas to receive one or more signals of interest on
a first sub-signal of the wideband signal” as requiring
“merely assigning a first antenna that is capable of receiv-
ing a signal at a first discrete frequency component of the
wideband signal.” J.A. 8 (emphasis in original). The
Board interpreted the two “selectively assigning” steps,
taken together, as “assigning a first and second antenna
that are capable of receiving a first and second sub-signal
which have different bandwidths and overlap in the
frequency domain.” J.A. 8–9. Thus, the limitation found
in the “wherein” clause—that the signals “have different
bandwidths and overlap in frequency domain”—was
incorporated into the Board’s express requirement that
the two antennas be “capable of receiving a first and
second sub-signal which have different bandwidths and
overlap in the frequency domain.” Id. (emphasis added).
Similarly, the “to receive” limitation was incorporated
into the interpretation when the Board required that the
antennas be “capable of receiving” a signal at a discrete
frequency. In light of the specification, which expressly
discloses separate antennas each receiving the entire
wideband signal, these interpretations were consistent
with the broadest reasonable interpretation of the terms.
In light of the broadest reasonable interpretation of
claim 1, there is substantial evidence to conclude that
Tehrani teaches the claimed invention. Tehrani discloses
a multi-antenna receiver in which each receiver receives a
IN RE: KHAYRALLAH 5
different version of the same signal. That redundancy can
minimize errors in propagation. The examiner found, and
the Board agreed, that, because each antenna’s physical
location will affect the signal it receives, the antennas will
“selectively” receive the signal because, “changing the
position of the antenna in space will result in a different
version of the signal being received.” J.A. 208. Addition-
ally, the examiner found, and the Board agreed, that the
requirements of different bandwidths and overlap in
frequency were inherently disclosed in Tehrani. As
support, the examiner reasoned that the signals in Teh-
rani must overlap in frequency because they are different
versions of the same wideband signal. He reasoned that
the signals received by the different antennas would
inherently vary slightly because of natural changes in
phase, power, and interference—that is, the received
signals would differ from each other as a result of natural
impairment during propagation. For the reasons provid-
ed by the examiner and the Board, we find that there is
substantial evidence that Tehrani anticipates claim 1 of
Khayrallah’s application.
Khayrallah argues that Tehrani does not disclose re-
ceiving different sub-signals because no reasonable inter-
pretation of sub-signals can include the signals received
by Tehrani. We disagree. In Tehrani, the same signal is
sent to two separate antennas. As noted above, when
received by the antennas, the versions of the signals
differed from each other due to natural impairment
during propagation. Treating these differently impaired
signals as sub-signals is consistent with the broadest
reasonable interpretation of the term ‘sub-signals’ as used
by Khayrallah. The specification nowhere expressly
defines ‘sub-signal,’ and Khayrallah has failed to explain
how the broadest reasonable interpretation of that term
cannot include the wideband signal impaired during
6 IN RE: KHAYRALLAH
propagation. When the specification does describe sub-
signals, it uses broad, inclusive language. For example,
the specification states:
The sub-signals of the wideband signal occupy dif-
ferent portions of the frequency spectrum of the
wideband signal. The sub-signals may be spaced
apart in the frequency domain, or may overlap.
The frequency bands of the sub-signals may be ad-
jacent or non-adjacent. . . . The sub-signals of the
wideband signal may occupy different sub-
channels of a wideband channel. The sub-
channels may have different bandwidths and may
overlap in frequency.
J.A. 26–27. Given such broad descriptions of sub-signal,
the recognition of possible “overlap,” and the lack of an
express definition, Khayrallah cannot complain that the
Board’s broadest reasonable interpretation includes two
versions of a signal differently impaired during propaga-
tion.
Because we do not find any error in the Board’s deci-
sion that claim 1 is anticipated, and because Khayrallah
puts forth no independent defense of any of the additional
claims, we find no error in the Board’s conclusion that
independent claim 20 and dependent claims 2–11, 16–19,
21–30, and 35–39 would have been obvious.
AFFIRMED