Ex Parte Afrashteh et al

Patent Trial and Appeal Board

Feb 19, 2013

11407035 (P.T.A.B. Feb. 19, 2013)

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.
11/407,035 04/20/2006 Alireza Afrashteh NXTL 0316 6211
57541 7590 02/19/2013
SPRINT NEXTEL CORPORATION
6391 SPRINT PARKWAY
MAILSTOP: KSOPHT0101-Z2100
OVERLAND PARK, KS 66251-2100
EXAMINER
SHEDRICK, CHARLES TERRELL
ART UNIT PAPER NUMBER
2646
MAIL DATE DELIVERY MODE
02/19/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte ALIREZA AFRASHTEH, MASOUD OLFAT,
DOUGLAS A. HYSLOP, and RAJESH M. GANGADHAR
____________
Appeal 2010-007440
Application 11/407,035
Technology Center 2600
____________

Before JAMESON LEE, MICHAEL R. ZECHER, and
BRIAN J. MCNAMARA, Administrative Patent Judges.

ZECHER, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
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I. STATEMENT OF THE CASE
On January 28, 2013, Appellants filed a Request for Rehearing
(hereinafter “Request”) under 37 C.F.R. § 41.52 directed to a new ground of
rejection entered against claims 1-23, 25, 26, 28, and 29 in our Decision on
Appeal (hereinafter “Decision”) mailed November 26, 2012. In the
Decision, we reversed the Examiner’s rejection of claims 1-23, 25, 26, 28,
and 29 under 35 U.S.C. § 102(b) as being anticipated by Skillermark, and we
entered a new ground of rejection against those claims under 35 U.S.C.
§ 103(a) as being unpatentable over Skillermark.
Prior Art Relied Upon
Skillermark US 2002/0164989 A1 Nov. 7, 2002

Appellants’ Contentions
First, Appellants allege that Skillermark’s disclosure is limited to
conventional systems that operate using either frequency division duplexing
(“FDD”) or time division duplexing (“TDD”) carriers and, therefore,
Skillermark does not disclose a system that operates using both FDD and
TDD carriers. Request 4-5. Appellants also argue that there is no evidence
in the record to support the Board’s conclusion that one of ordinary skill in
the art would have known to combine Skillermark’s systems that only use
FDD or TDD carriers to predictably result in one system that allocates
resource assignments between both FDD and TDD carriers. Id. at 5-6.
Appellants assert that such a modification would be beyond the level of an
ordinarily skilled artisan. Id. at 6-7.
Second, Appellants allege that the Board does not provide evidence to
support its finding that Skillermark’s cellular communication systems
primarily carry voice data. Request 8. Appellants also argue that because
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the Board does not cite to a textual portion of Skillermark that discloses
different types of voice data, it would not have been obvious to one with
ordinary skill in the art to modify Skillermark to allocate resource
assignments to both FDD and TDD carriers based on “the type of voice data
to be received.” Id. Finally, Appellants assert that when the prior art
elements of Skillermark are used according to their established functions,
using the type of information to be received as a basis for allocating a
resource assignment is not a predictable result. Id. at 9.

II. ISSUES
1. Did the Board misapprehend or overlook the limits of
Skillermark’s disclosure in concluding that one of ordinary skill in the art
would have understood that Skillermark’s adaptive uplink/downlink
allocation scheme is capable of being implemented in a communication
system that operates using both FDD and TDD carriers?
2. Did the Board provide substantial evidence to support its
conclusion that it would have been obvious to one with ordinary skill in the
art to allocate resource assignments using Skillermark’s adaptive
uplink/downlink allocation scheme to both FDD and TDD carriers based
upon “the type of information to be received,” as claimed?

III. ANALYSIS
We have carefully reviewed the Decision in light of Appellants’
allegations of error, but we decline to change the Decision for the following
reasons. In particular, we will address Appellants’ allegations in the order in
which they are presented in the Request, and as outlined above.
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Issue #1
Appellants’ arguments in support of their first allegation, i.e., that the
Board misapprehended or overlooked the limits of Skillermark’s disclosure,
are not persuasive. Request 4-5. The Decision states: “Skillermark
discloses that its adaptive uplink/downlink allocation scheme may be
applicable to other communication systems (¶ [0044]), such as
communication systems that operate in an FDD mode (¶ [0033]).” Decision
9. For convenience, the relevant citations to Skillermark are provided in
their entirety:
 “Examples of systems using these concepts are DECT (TDD FD-
TDMA), UTRA-FDD (FDD CDMA), UTRA-TDD (TDD TD-
CDMA) and GSM (FDD FD-TDMA).” ¶ [0033] (emphasis added).
 Below, an exemplifying embodiment is described, taken from
an UTRA-TDD system. However, the invention is not limited
to such a system, but can also be applied to other cellular
communication systems using frames of communication
resources in time or frequency domain or a combination
thereof.

¶ [0044] (emphasis added).
The cited disclosure at ¶ [0044] teaches applying Skillermark’s
adaptive uplink/downlink allocation scheme to a communication system that
uses frames of communication resources in both time and frequency.
Contrary to Appellants’ arguments, one with ordinary skill in the art would
have understood that Skillermark is not limited to conventional systems that
operate using either FDD or TDD carriers, but instead explicitly teaches a
communication system that operates using both FDD and TDD carriers.
Decision 9.
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Further, we are not persuaded by Appellants’ arguments that there is
no evidence in the record to support the Board’s conclusion that one of
ordinary skill in the art would have known to combine Skillermark’s
communication systems that only use FDD or TDD carriers to predictably
result in one communication system that allocates resource assignments
between both FDD and TDD carriers. Request 5-6. Nor are we persuaded
by Appellants’ argument that such a modification would be beyond the level
of an ordinarily skilled artisan. Id. at 6.
First, as discussed above, Skillermark explicitly teaches a
communication system that operates using both FDD and TDD carriers.
¶ [0044]. Second, Appellants have not submitted any evidence or argument
regarding technological difficulties that may prevent one with ordinary skill
in the art from using known methods to combine Skillermark’s TDD and
FDD carriers into one communication system. Third, Appellants have not
demonstrated that Skillermark’s TDD and FDD carriers, in combination, do
not perform the same functions as each carrier would perform separately.
Finally, Appellants have not provided any persuasive evidence or
technological reasoning pertaining to why the proffered combination would
somehow produce an unexpected result. Accordingly, Skillermark teaches
the claimed “allocating” method steps “based upon the radio resources of the
FDD and TDD carriers,” as recited in independent claim 1, and similarly
recited in independent claims 6, 11, 16, 19, 25, and 28. Decision 9-10.
Issue #2
We are also not persuaded by arguments made by Appellants in
support of their second allegation, i.e., that the Board failed to provide
sufficient evidence to support its conclusion that it would have been obvious
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to one with ordinary skill in the art to allocate resource assignments in
Skillermark’s adaptive uplink/downlink allocation scheme to both FDD and
TDD carriers based upon “the type of information to be received.” Request
7-8. The Decision cites to the disclosure in Skillermark at ¶ [0001] before
concluding that “an ordinarily skilled artisan would have recognized that
traffic in [Skillermark’s cellular] communication systems primarily consists
of voice data.” Decision 10.
In addition, we are not persuaded by Appellants’ argument that
because Skillermark does not disclose different types of voice data, it would
not have been obvious to one of ordinary skill in the art to modify
Skillermark to allocate resource assignments to both FDD and TDD carriers
based on “the type of voice data to be received.” Request 8. Appellants’
argument is not commensurate in scope with the claim limitations recited in
independent claim 1, and similarly recited in independent claims 6, 11, 16,
19, 25, and 28—namely allocating resource assignments “based upon . . . the
type of information to be received.” The claim phrase in question does not
require allocating resource assignments based on different types of
information received by a carrier. Emphasis added. Instead, the scope and
breadth of that claim phrase does not preclude allocating resource
assignments based upon the type of information received by a carrier, e.g.,
voice data. Decision 9 (citing to Spec. ¶ [0024]).
Finally, we are not persuaded by Appellants’ argument that when the
prior art elements of Skillermark are used according to their established
functions, using the type of information to be received as a basis for
allocating a resource assignment is not a predictable result. Request at 9.
Similar to our analysis above, Appellants have not submitted any evidence
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or argument regarding technological difficulties that would arise if one with
ordinary skill in the art allocates a resource assignment for an uplink to
either Skillermark’s TDD or FDD carrier based upon the type of information
to be received. Nor have Appellants provided any persuasive evidence or
technological reasoning pertaining to why the proffered combination would
somehow produce an unexpected result. Accordingly, Skillermark teaches
the second “allocating” method step and the “type of information to be
received,” as recited in independent claim 1, and similarly recited in
independent claims 6, 11, 16, 19, 25, and 28. Decision 9-10.

IV. CONCLUSION
The allegations set forth in the Request, and as outlined above, have
not persuaded us that we erred in entering a new ground of rejection against
claims 1-23, 25, 26, 28, and 29 under 35 U.S.C. § 103(a) as being
unpatentable over Skillermark.

V. DECISION
Appellants’ Request has been granted to the extent that we have
reconsidered our Decision, but is denied with respect to making any
modification to the Decision.
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).

REQUEST FOR REHEARING—DENIED