Tadayon v. Saucon Technologies, Inc. ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAIED TADAYON, BIJAN TADAYON,
Appellants
v.
SAUCON TECHNOLOGIES, INC.,
Appellee
______________________
2014-1804
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board, in No. 95/001,644.
______________________
Decided: May 11, 2015
______________________
SAIED TADAYON, Potomac, MD, pro se.
BIJAN TADAYON, Potomac, MD, pro se.
SANFORD J. PILTCH, Allentown, PA, for appellee.
______________________
Before LOURIE, LINN, and HUGHES, Circuit Judges.
PER CURIAM.
Drs. Saied and Bijan Tadayon (the “Tadayons”) ap-
peal from the decision of the United States Patent and
2 TADAYON v. SAUCON TECHNOLOGIES
Trademark Office (“PTO”) Patent Trial and Appeal Board
(“Board”) in an inter partes reexamination initiated by
Saucon Technologies, Inc. (“Saucon”), affirming the Exam-
iner’s decision to reject claims 1, 2, 11–15, and 25 of the
Tadayons’ U.S. Patent 7,031,657 (the “’657 patent”) as
obvious under 35 U.S.C. § 103 (2006). * See Saucon Techs.,
Inc. v. Tadayon, No. 2014-002491, 2014 WL 2466138
(P.T.A.B. May 30, 2014) (“Opinion”). Because the Board
did not err in affirming the Examiner’s rejection of claims
1, 2, 11–15, and 25 of the ’657 patent, we affirm.
BACKGROUND
The Tadayons own the ’657 patent, which is directed
to a method and system for reducing the power absorbed
by the body of a user of a wireless communication device.
’657 patent col. 3 ll. 43–47. In one embodiment, the
system has multiple antennas for transmission and
reception over multiple stages. Id. col. 3 ll. 48–49. A first
antenna, closest to the user, operates with extremely low
power for short distances. Id. col. 4 ll. 29–31. The first
antenna communicates with a second antenna, which
operates at a distance from the user and transmits the
data to a base station at a relatively high power. Id. col. 4
ll. 31–32. Independent claim 1 of the ’657 patent is di-
rected to the invention’s receive mode of operation and
reads as follows:
1. A system for mobile or wireless communication
or computation, said system comprising:
first unit comprising first antenna, wherein
said first unit is mobile or wireless;
* Because the application of the ’657 patent was
filed before March 16, 2013, the pre-Leahy-Smith America
Invents Act version of § 103 applies. See Pub L. No. 112-
29, 125 Stat. 284 (2011).
TADAYON v. SAUCON TECHNOLOGIES 3
last unit comprising last antenna, wherein
said last unit is mobile or wireless; and
said first unit receives data from said last
unit, wherein said data is transmitted from said
last antenna to said first antenna,
wherein said last unit receives said data from
a location outside said system,
wherein said data is transmitted from said lo-
cation outside said system to said last antenna,
wherein transmission of said data between
said first antenna and said last antenna is done at
first frequency, and
transmission of said data between said last
antenna and said location outside said system is
done at second frequency,
wherein said second frequency is different
than said first frequency,
wherein said first frequency is chosen from a
range of frequency which corresponds to a low ra-
diation power absorption for a specific tissue or
part of human body, or which corresponds to a low
overall radiation power absorption for whole body
of a human or a specific animal, and
wherein transmission of said data between
said first antenna and said last antenna is done at
first power, and
transmission of said data between said last
antenna and said location outside said system is
done at second power,
wherein said second power is different than
said first power, wherein said second power is
larger than said first power.
4 TADAYON v. SAUCON TECHNOLOGIES
Id. col. 7 l. 47–col. 8 l. 13 (emphases added). Independent
claim 2 is similar to claim 1, but directed to the transmit
mode of operation. Id. col. 8 ll. 14–48. Claims 11–15 and
25 depend from independent claim 2. Id. col. 9 ll. 1–28,
col. 10, ll. 39–40.
In June 2011, Saucon filed a request for inter partes
reexamination of claims 1, 2, 11–15, and 25 of the ’657
patent, which the PTO granted. J.A. 3170. The Examin-
er adopted Saucon’s proposed rejections of claims 1, 2, 11–
15, and 25 under § 103 based on combinations of: (1)
Martin van der Zee et al., “Quality of Service in Bluetooth
Networking, Part I,” Mar. 1, 2001 (“van der Zee”); (2)
Specification of the Bluetooth System v1.0 B, Dec. 1, 1999
(“Bluetooth Specification”); (3) “New Developments in
Wireless Technologies,” Talk of the Nation/Science Fri-
day, June 23, 2000 (“Science Friday transcript”); and (4)
other prior art. The Tadayons appealed to the Board.
On appeal, the Board affirmed the Examiner’s rejec-
tion of claims 1, 2, 11–15, and 25 under § 103. Opinion at
*1. The Board first addressed the Tadayons’ argument
that the Examiner misconstrued the “second power”
limitation in claim 1 by confusing the claim 1 limitation
that the last unit receive data from a location outside the
system with the claim 2 limitation that conversely re-
quires that the last unit transmit data to a location out-
side the system. Id. at *5. The Tadayons argued that
none of the cited references disclosed a “second power,” or
a power associated with the transmission of data from a
location outside the system, as recited in claim 1. Id. In
response, the Board found that van der Zee teaches “the
level of power required to transmit data from the last unit
to outside the system (e.g., from a cellular phone to a
mobile base station) relative to the level of power required
to transmit data between the first and last units (i.e.,
Bluetooth transmissions).” Id. at *6. The Board reasoned
that “if a certain power level is required for the cellular
phone to transmit data to the base station, it follows that
TADAYON v. SAUCON TECHNOLOGIES 5
at least the same order of power level would be required
to transmit data in the opposite direction from the base
station to the cellular phone.” Id. Because van der Zee
teaches that the power level of Bluetooth is significantly
lower than the transmit power of current cellular phones,
the Board found that “one of ordinary skill in the art
would reasonably understand that the power level of
Bluetooth is likewise lower than the power at which the
mobile base station transmits to the cellular phone.” Id.
Thus, the Board concluded that van der Zee teaches the
“second power,” as recited in claim 1. Id. at *7.
The Board next addressed the Tadayons’ argument
that none of the references taught the limitation of fre-
quency-based low power absorption, as required by claims
1 and 2. Id. at *9. In view of the various methods dis-
closed in the specification for a frequency to be deemed to
correspond to a low radiation power absorption, the Board
found that a first frequency can be deemed to be “‘chosen
from a range of [frequencies] which correspond[] to a low
radiation power absorption’ . . . if the range of frequencies
from which the first frequency is chosen [is] such that the
frequency enables communication between the first and
last units at some power level that is lower than some
objective baseline power level.” Id. at *12. Based upon
that interpretation of the claim language, the Board found
that the limitation of frequency-based low power absorp-
tion, as required by claims 1 and 2, was taught by the
Science Friday transcript. Id.
The Board also addressed the Tadayons’ argument
that circumstances exist in which a cellular phone trans-
mission power level might be the same as or lower than
the power level of conventional Bluetooth transmissions.
Id. at *13. The Board accepted the Tadayons’ premise
that those situations exist, but nevertheless found that
“the relevant inquiry is whether the cited prior art teach-
es or suggests at least one operating condition that does
satisfy the claim limitation.” Id. Thus, because evidence
6 TADAYON v. SAUCON TECHNOLOGIES
exists that under some normal operating conditions
cellular phones will transmit to base stations at power
levels that are greater than the power levels of conven-
tional Bluetooth communications, the Board concluded
that the prior art was correctly applied. Id. Accordingly,
the Board affirmed the Examiner’s decision to reject
claims 1, 2, 11–15, and 25 under § 103.
The Tadayons timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
We review the Board’s legal determinations de novo,
In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the
Board’s factual findings underlying those determinations
for substantial evidence, In re Gartside, 203 F.3d 1305,
1316 (Fed. Cir. 2000). A finding is supported by substan-
tial evidence if a reasonable mind might accept the evi-
dence to support the finding. Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). Obviousness is a ques-
tion of law based on several underlying factual findings,
In re Baxter, 678 F.3d 1357, 1361 (Fed. Cir. 2012), includ-
ing what a reference teaches, Rapoport v. Dement, 254
F.3d 1053, 1060–61 (Fed. Cir. 2001).
During reexamination, the Board construes disputed
limitations according to their broadest reasonable inter-
pretation consistent with the specification. In re Yama-
moto, 740 F.2d 1569, 1571 (Fed. Cir. 1984). In this case,
we review the Board’s claim construction de novo because
the intrinsic record fully determines the proper construc-
tion, and the Board’s construction was not based on
extrinsic evidence. See Teva Pharm. USA, Inc. v. Sandoz,
Inc., 574 U.S. __, 135 S. Ct. 831, 841 (2015).
The Tadayons argue that the Board made three er-
rors: (1) the Board erred in construing the frequency-
based low power absorption claim limitation in claims 1
and 2 and in determining that the limitation is disclosed
TADAYON v. SAUCON TECHNOLOGIES 7
by the prior art; (2) the Board misconstrued the “second
power” limitation in claim 1, and the prior art fails to
teach a “second power” for transmitting from outside the
system, as correctly construed; and (3) the Board misap-
plied facts regarding the operation of Bluetooth transmis-
sions and cellular phones.
In response, Saucon argues that: (1) substantial evi-
dence supports the Board’s conclusion that the cited
references teach the frequency-based low power absorp-
tion feature of claims 1 and 2; (2) substantial evidence
supports the Board’s conclusion that the prior art teaches
the “second power” limitation from claim 1; and (3) the
Board correctly considered the operation of Bluetooth
devices and cellular phones during active transmission.
We agree with Saucon that the Board did not err in
affirming the Examiner’s rejection of claims 1, 2, 11–15,
and 25 of the ’657 patent. First, substantial evidence
supports the Board’s finding that the prior art teaches
“wherein said first frequency is chosen from a range of
[frequencies] which correspond[] to a low radiation power
absorption for a specific tissue or part of human body,” as
recited in claims 1 and 2. As an initial matter, the speci-
fication of the ’657 patent fails to explicitly define what
constitutes a “low radiation power absorption.” As a
result, the Board found, and we agree, that a first fre-
quency can be chosen from a range of frequencies that
correspond to a low radiation power absorption if the
frequency is chosen from a range of frequencies that
enable communication between the first and last units at
some power level that is lower than some objective base-
line power level. In other words, if the baseline power
level is the level at which a cellular phone operates, a
frequency may be deemed to correspond to “a low radia-
tion power absorption” if the selected frequency allows
communication that produces a much smaller dose of
radiation than that produced by a cellular phone.
8 TADAYON v. SAUCON TECHNOLOGIES
As construed, and as the Board found, the frequency-
based low power absorption limitation is taught by the
Science Friday transcript, which teaches choosing a
frequency that would minimize absorption of radiation.
More specifically, the Science Friday transcript teaches
that the radiation of the Bluetooth, which operates in the
“2.4-gigahertz ISM band,” J.A. 2673, “is so minimal,
much, much, much smaller than radiation that gets sent
and received by the cell phone, that you are, in fact,
putting less radiation in the area of your head . . . ,” J.A.
2674. Thus the Board’s finding that the prior art teaches
the frequency-based power absorption limitation in claims
1 and 2 is supported by substantial evidence.
The Board’s finding that van der Zee discloses the
“second power” from claim 1 is also supported by substan-
tial evidence. Claim 1 requires that the transmission of
data between said last antenna and said location outside
said system is done at a second power, “wherein said
second power is different than said first power, [and]
wherein said second power is larger than said first pow-
er.” ’657 patent col. 8 ll. 11–13. As the Board found, van
der Zee teaches the relationship between the level of
power required to transmit data from a cellular phone to
a base station and the level of power required to transmit
data from a Bluetooth transmitter to a cellular phone.
J.A. 3832; see also Opinion at *6. One of ordinary skill in
the art would understand that if a certain power level
would be required to transmit data to the base station, at
least the same order of power level would be required to
transmit data in the opposite direction, i.e., from the base
station to the cellular phone. And because van der Zee
teaches that the “power level of Bluetooth is significantly
lower than the transmit power of current cellular phones,”
J.A. 3832, one of ordinary skill in the art would also
understand that the power level at which the base station
transmits to the cellular phone (or the “second power”) is
significantly higher than the power level of Bluetooth.
TADAYON v. SAUCON TECHNOLOGIES 9
See In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992) (“[A]
prior art reference is relevant for all that it teaches to
those of ordinary skill in the art.”) (citation omitted). As a
result, the Board’s finding that the prior art teaches the
“second power” from claim 1 is supported by substantial
evidence.
The Tadayons also argue that circumstances exist in
which a cellular phone transmission power level might be
the same as or lower than the power level of conventional
Bluetooth transmissions. That argument is unavailing
because, although the Board accepted the Tadayons’
premise that those situations exist, van der Zee still
discloses that under normal active operating conditions
cellular phones will transmit to base stations at power
levels that are greater than the power level of convention-
al transmissions. See, e.g., In re Inland Steel Co., 265
F.3d 1354, 1361 (Fed. Cir. 2001) (“The fact that [a prior
art reference] teaches that [a second step] in addition to [a
first step] produces optimal results does not negate [the
reference's] additional teaching that [the first step] is
effective even in [the absence of the second step.]”)
CONCLUSION
We have considered the remaining arguments and
find them unpersuasive. For the foregoing reasons, we
conclude that claims 1, 2, 11–15, and 25 of the ’657 patent
would have been obvious in view of the cited references
and therefore affirm the decision of the Board.
AFFIRMED