Cisco Technology, Inc.

Patent Trials and Appeals Board

Aug 4, 2021

2020003639 (P.T.A.B. Aug. 4, 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.
15/685,984 08/24/2017 David KLOPER 983763US02 (091052) 2241
62147 7590 08/04/2021
PATTERSON & SHERIDAN, LLP/CISC
24 GREENWAY PLAZA
SUITE 1600
HOUSTON, TX 77046-2472
EXAMINER
TRAN, THINH D
ART UNIT PAPER NUMBER
2466
NOTIFICATION DATE DELIVERY MODE
08/04/2021 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):
Cisco_Admin@pattersonsheridan.com
PAIR_eofficeaction@pattersonsheridan.com
PSDocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID KLOPER, JULAN HSU, HARI RANGARAJAN, and
PAUL STAGER
____________

Appeal 2020-003639
Application 15/685,984
Technology Center 2400
____________

Before KARL D. EASTHOM, KARA L. SZPONDOWSKI, and
SCOTT B. HOWARD, Administrative Patent Judges.

HOWARD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–21, which constitute all of the claims pending in
this application. We have jurisdiction 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. Appellant identifies the real party in interest as Cisco
Technology, Inc. Appeal Br. 3.
Appeal 2020-003639
Application 15/685,984

2
THE INVENTION
The disclosed and claimed invention relates “generally to devices with
multiple radios.” Spec. ¶ 2.2 The claimed invention is more particularly
directed to “monitoring . . . for determining channel conditions” but
selectively excluding measurements taken “while the first radio is
transmitting.” Id. ¶ 3; see id. ¶¶ 14–16.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A multi-radio device, comprising:
a first radio comprising a transmitter; and
a second radio comprising a receiver and configured to:
monitor, using the receiver, a channel to obtain data
representative of measurements of a predefined channel
parameter;
receive, using a communication path distinct from a
wireless communication path between the first and second
radios, a signal from the first radio providing data
indicating whether the transmitter of the first radio is
transmitting;
determine, based on the received signal, a length of
time that the transmitter was transmitting during a first
sampling period for a first measurement of the predefined
channel parameter; and
based on the determined length of time relative to a
duration of the first sampling period, selectively exclude
the first measurement.

2 We refer to the Specification filed Aug. 24, 2017 (“Spec.”); Final Office
Action mailed June 11, 2019 (“Final Act.”); Appeal Brief filed Dec. 19,
2019 (“Appeal Br.”); Examiner’s Answer mailed Feb. 12, 2020 (“Ans.”);
and the Reply Brief filed Apr. 13, 2020 (“Reply Br.”).
Appeal 2020-003639
Application 15/685,984

3
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Name Reference Date
Olkkonen et al.
(“Olkkonen”)
US 6,842,460 B1 Jan. 11, 2005
Comsa et al.
(“Comsa”)
US 2012/0281563 A1 Nov. 8, 2012
Schmidt et al.
(“Schmidt”)
US 2014/0153482 A1 June 5, 2014
Lum et al. (“Lum”) US 2014/0160955 A1 June 12, 2014
Seo et al. (“Seo”) US 9,467,881 B2 Oct. 11, 2016

REJECTIONS
Claims 1–21 stand rejected on the grounds of nonstatutory double
patenting as unpatentable over claims 1–18 of U.S. Patent No. 9,794,810.
Final Act. 4.
Claims 1–3, 12–18, and 20 stand rejected under 35 U.S.C. § 103 as
unpatentable over Schmidt and Comsa. Final Act. 12.
Claims 7–9 stand rejected under 35 U.S.C. § 103 as unpatentable over
Schmidt, Comsa, and Lum. Final Act. 23.
Claim 10 stands rejected under 35 U.S.C. § 103 as unpatentable over
Schmidt, Comsa, and Olkkonen. Final Act. 26.
Claim 19 stands rejected under 35 U.S.C. § 103 as unpatentable over
Schmidt, Comsa, and Seo. Final Act. 27.
Appeal 2020-003639
Application 15/685,984

4

ANALYSIS
Double Patenting Rejection
Appellant does not traverse the rejection of claims 1–21, which stand
rejected on the ground of nonstatutory double patenting as being
unpatentable over claims 1–18 of U.S. Patent No. 9,794,810. Final Act. 4;
see Appellant’s Response to Final Office Action (filed August 12, 2019) 2.
“If an appellant fails to present arguments on a particular issue—or,
more broadly, on a particular rejection—the Board will not, as a general
matter, unilaterally review those uncontested aspects of the rejection.” Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Accordingly, we summarily affirm the Examiner’s double patenting
rejection of claims 1–21.

Section 103 Rejection
Claim 1 recites (with emphasis added): “determine, based on the
received signal [providing data indicating whether the transmitter of the first
radio is transmitting], a length of time that the transmitter was transmitting
during a first sampling period for a first measurement of the predefined
channel parameter.” Appeal Br. 16 (Claims App.).
The Examiner finds that Comsa’s “communication between
components, ISM and LTE, indicating activity time of the ISM to LTE or
LTE to ISM component” teaches determining a length of time that at
transmitter was transmitting during a first sampling period. Final Act. 12–13
(citing Comsa, Fig. 4, ¶¶ 106, 116, 121, 146, 61). Specifically, the Examiner
finds that Comsa’s WTRU “keep[s] track of when the ISM transmitter is
Appeal 2020-003639
Application 15/685,984

5
transmitting,” and knows “the length of the time the ISM transmitter
transmitting or ‘a length of time that the transmitter was transmitting.’”
Ans. 5–6 (citing Comsa ¶ 116). According to the Examiner, Comsa’s
“determination of the overlapping or partial overlapping of the ISM Signaled
Activity 812 and ISM Signaled Activity 814 with the initial scheduled
measurement” teaches “determining a length of time that the transmitter was
transmitting during a first sampling period.” Id. at 6 (citing Comsa ¶ 116).
The Examiner also finds that Comsa’s “perform[ing] measurement[s] based
on the LTE schedule activity patterns [and] based on LTE scheduled activity
or inactivity timers” teaches “indicating the length of time the LTE
transmitter is transmitting and not transmitting.” Id. at 8 (citing Comsa
¶¶ 121, 123, 124).
Appellant argues that “Comsa is silent as to ‘determin[ing] . . . a
length of time that the transmitter was transmitting during a first sampling
period”’ or “selectively excluding a measurement ‘based on the determined
length of time relative to a duration of the first sampling period.”’ Appeal
Br. 13. Specifically, Appellant argues that “Comsa detects only a presence
or absence of the aggressor transmitter activity, and is ignorant to a length of
the aggressor transmitter activity.” Id. at 12; see also id. at 14. According to
Appellant, “Comsa at best describes that a complete overlap or a partial
overlap of aggressor (e.g., ISM) transmitter activity with the measurement
schedule (e.g., for the LTE device) renders the scheduled measurement
periods inadequate, and that measurement times may be delayed until the
completion of the aggressor transmitter activity.” Id.
We are persuaded by Appellant’s argument as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Appeal 2020-003639
Application 15/685,984

6
the combination of Schmidt and Comsa teaches determining a length of time
that the transmitter was transmitting during a first sampling period for a
first measurement of the predefined channel parameter as claimed.
The cited sections of Comsa describe that “Initial Scheduled
Measurement 802 and Initial Schedule Measurement 804 may be normally
scheduled measurement periods (e.g., time period scheduled for
measurement absent an aggressor transmitter).” Comsa ¶ 116. However,
“none of the initially scheduled measurement periods may be adequate for
collection of the full range of measurement samples by the WTRU because
of the complete or partial overlap between the measurement schedule and
periods of aggressor transmitter activity.” Id. In one example, “the WTRU
may delay performing measurements until the aggressor completes the ISM
transmission, and/or the aggressor transmitter indicates that it may be
inactive.” Id. In other words, the sections of Comsa cited by the Examiner
and on the record before us do not teach determining a length of time that the
transmitter was transmitting. Instead, Comsa teaches determining whether
the transmitter was transmitting (the presence of a partial or complete
overlap between the measurement schedule and the periods of transmitter
activity), and delaying measurements until after the transmitter is no longer
transmitting. Comsa thereby teaches determining that the transmitter is
transmitting, and to delay measurement until after the transmitting is no
longer transmitting, but not determining the length of time that the
transmitter is transmitting.
Therefore, we agree with Appellant that the Examiner’s finding that
the combination of Schmidt and Comsa teaches the disputed limitation is in
error because it is not supported by a preponderance of the evidence. See In
Appeal 2020-003639
Application 15/685,984

7
re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (The Examiner’s burden of
proving non-patentability is by a preponderance of the evidence.); 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 or hindsight reconstruction to supply deficiencies in
its factual basis.”).
Accordingly, we are constrained on the record before us to reverse the
Examiner’s rejection of independent claim 1, along with the rejection of
independent claims 16 and 20, which recite limitations commensurate in
scope to the disputed limitation discussed above, and dependent claims 2, 3,
12–15, 17, and 18.
Moreover, because the Examiner has not shown that the additional
references cure the foregoing deficiency regarding the rejection of the
independent claims 1, 16 and 20, we will not sustain the obviousness
rejections of dependent claims 7–10 and 19.

CONCLUSION
We affirm the Examiner’s nonstatutory double patenting rejection of
claims 1–21.
We reverse the Examiner’s § 103 rejections of claims 1–3, 7–10, and
12–20.
Appeal 2020-003639
Application 15/685,984

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–21 Nonstatutory
Double Patenting
U.S. Patent
9,794,810
1–21
1–3, 12–18,
20
103 Schmidt, Comsa 1–3, 12–18,
20
7–9 103 Schmidt, Comsa,
Lum
7–9
10 103 Schmidt, Comsa,
Olkkonen
10
19 103 Schmidt, Comsa,
Seo
19
Overall
Outcome
1–21

TIME PERIOD FOR 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2021).

AFFIRMED