Ex Parte Balachandran et al

Patent Trial and Appeal Board

Apr 15, 2016

11757650 (P.T.A.B. Apr. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111757,650 0610412007 Kumar Balachandran
24112 7590 04/18/2016
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4015-5667/P23223-US 1 3062
EXAMINER
TRAN, MONG-THUY THI
ART UNIT PAPER NUMBER
2646
MAILDATE DELIVERY MODE
04/18/2016 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
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KUMAR BALACHANDRAN, RAJARAM RAMESH, and
HA VISH KOORAPATY
Appeal2014-007871
Application 11/757 ,650
Technology Center 2600
Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and
MATTHEW J. McNEILL, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1, 3-9, 11-13, 15-23, and 25-32. Claims 2, 10, 14, and
24 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The invention on appeal relates to "a method and apparatus for mobile
terminal-initiated vocoder source rate control." (Spec. i-f 1 ).
Appeal2014-007871
Application 11/757,650
Representative Claim
1. A method of adaptive vocoder source rate control by a
mobile terminal in a wireless communication network
implementing digital voice telephony, comprising:
[LI] detecting, by a mobile terminal, congestion in the
wireless communication network by
[L2] monitoring bandwidth allocation among a plurality
of mobile terminals operative in the wireless communication
network and analyzing the bandwidth allocation to detect
congestion; and
[L3] selecting, by the mobile terminal, a vocoder source
rate of a vocoder in the mobile terminal, based on the congestion.
(Emphasis added with respect to contested limitations Ll-L3).
Re} ections 1
A. Claims 1, 13, and 23 are rejected under 35 U.S.C. § 102(e), as anticipated
by Chean (U.S. 2007/0115848; pub. May 24, 2007).
B. Claims 3, 9, 20, and 30 are rejected under 35 U.S.C. § 103 as being
obvious over the combined teachings and suggestions of Chean and Ilan
(U.S. 2006/0245357 Al; pub. November 2, 2006).
1 We note claims 20-22 and 30-32 depend directly or indirectly from
cancelled claims 14 and 24, respectively. See pre-AIA 35 U.S.C. § 112,
fourth paragraph ("A claim in dependent form shall be construed to
incorporate by reference all the limitations of the claim to which it refers.").
Because the scope of these claims is unclear (by virtue of their dependency
from a cancelled claim), and in the event of further prosecution, we leave it
to the Examiner's to consider a rejection under 35 U.S.C. § 112, second
paragraph, for claims 20-22 and 30-32. Although the Board is authorized to
reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn
when the Board elects not to do so. See Manual of Patent Examining
Procedure (MPEP) §1213.02.
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C. Claims 4 and 5 are rejected under 35 U.S.C. § 103 as being obvious over
the combined teachings and suggestions of Chean, Ilan, and Zuckerman
(U.S. 2007/0121745 Al; pub. May 31, 2007).
D. Claims 6-8 are rejected under 35 U.S.C. § 103 as being obvious over the
combined teachings and suggestions of Chean and Cao (U.S.
2007/0097957 Al; pub. May 3, 2007).
E. Claims 11, 12, 21, 22, 31, and 32 are rejected under 35 U.S.C. § 103 as
being obvious over the combined teachings and suggestions of Chean and
Wadekar (U.S. 2007/0058532 Al; pub. March 15, 2007).
F. Claims 15, 16, 25, and 26 are rejected under 35 U.S.C. § 103 as being
obvious over the combined teachings and suggestions of Chean and
Zuckerman.
G. Claims 17-19 and 27-29 are rejected under 35 U.S.C. § 103 as being
obvious over the combined teachings and suggestions of Chean,
Zuckerman, and Cao.
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of rejection A
of independent claims 1, 13, and 23 on the basis of representative claim 1.
Also based upon Appellants' arguments, we decide rejection B of claims 3,
9, 20, and 30 on the basis of representative claim 3. We address the
remaining claims rejected under rejections C---G, infra. See 37 C.F.R.
§ 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellant's arguments and any evidence
presented. We disagree with Appellant's arguments, and we adopt as our
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own: ( l) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Answer in response to Appellant's arguments. (Ans. 10-20). However,
we highlight and address specific findings and arguments for emphasis in
our analysis below.
Rejection A of Claims 1, 13, and 23 under§ 102
First Issue: Under § 102, did the Examiner err in finding Chean
expressly or inherently discloses "[L 1] detecting, by a mobile terminal,
congestion ... and [L3] selecting, by the mobile terminal, a vocoder source
rate of a vocoder in the mobile terminal, based on the congestion," within
the meaning of claim 1? (Emphasis added).
At the outset, and to the extent Appellants contest a "mobile terminal"
in the principal Brief ( 6), 2 we note Appellants refer to Chean' s paragraph 2
and "admit a mobile terminal is at least inherent in Chean," in the Reply
Brief (2). (Emphasis added).
Nevertheless, Appellants urge that Chean delegates the "detecting"
and "selecting" steps of respective limitations L 1 and L3 to two separate
terminals, which would be improper to support a rejection under§ 102:
2 Appellants' assertion with reference to claim 1 that Chean "teaches away
from[] a mobile terminal in a wireless network" (App. Br. 6) is misplaced
because "[t]eaching away is irrelevant to anticipation." Seachange
International, Inc., v. C-Cor, Inc., 413 F.3d 1361, 1380 (Fed. Cir. 2005). "A
reference is no less anticipatory if, after disclosing the invention, the
reference then disparages it . . . . [T]he question whether a reference
'teaches away' from the invention is inapplicable to an anticipation
analysis." Celeritas Techs., Ltd. v. Rockwell Int'! Corp., 150 F.3d 1354,
1361(Fed.Cir.1998).
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Chean discloses that network congestion is detected at a
destination node 20 .... The destination node 20 transmits this
information in a feedback packet to the source node 12, which
adjusts its vocoder source rate in response thereto. Thus, Chean
fails to disclose that the same mobile terminal both detects
network congestion, and adjusts its vocoder rate in response
thereto.
(App. Br. 10). 3
The Examiner finds Chean's "terminal (12 in Fig. 1, Fig. 2) both
detects network congestion and adjusts [(i.e., selects),] its vocoder rate in
response to the reported congestion." (Ans. 12, emphasis added). The
Examiner supports this finding with a broader reading of the claim term
"detecting:"
The Datagram Congestion Control Protocol (DCCP) 212d [of
terminal 12] receives the feedback packet from the edge router,
evaluates the feedback packets wherein the congestion
information is extracted from the information packet arrival
information, and the Variable rate and/or protection application
12v selects a rate based upon the reported congestion.
(Id. (citing Chean iii! 23-24)).
Thus, the Examiner finds terminal 12 detects the level of congestion
when terminal 20 informs terminal 12 of such congestion via a feedback
packet. (See Chean, Fig. 1). We agree, and conclude the Examiner's broad
but reasonable construction of the claim term "detecting" (i.e., discovering)
does not depart from the plain meaning of the word, as it would have been
understood by an artisan at the time of Appellants' invention. 4
3 Appellants refer to 12 and 20 as "nodes," but Chean in fact refers to 12 and
20 as "terminals." (See, e.g., Chean if 23).
4 See e.g., "Detect ... 1. To discover or discern the existence, presence, or
fact of." Webster's II New Riverside University Dictionary, 1988, p.368.
See also 37 C.F.R. § 41.30.
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In the Reply Brief ( 4) Appellants respond by noting "quantifying the
reported congestion information in terms amenable to use in adjusting a
vocoder rate" is not the same as "detect[ing] the congestion, as claimed."
However, Appellants do not provide any rebuttal evidence in the
record to support their argument. 5 Furthermore, Appellants have not argued
that a definition in the Specification for "detecting" would preclude the
Examiner's broader interpretation.
Because Appellants have not argued a definition in the Specification,
or provided rebuttal evidence in the record, we are not persuaded the
Examiner's reading of the claim term "detecting" is overly broad or
unreasonable. 6 Therefore, the Examiner's findings regarding limitations L 1
and L3 are supported by a preponderance of the evidence. Accordingly, we
are not persuaded the Examiner erred in finding Chean anticipates contested
limitations L 1 and L3.
Second Issue: Under § 102, did the Examiner err in finding Chean
expressly or inherently discloses: "[L2] monitoring bandwidth allocation
among a plurality of mobile terminals ... and analyzing the bandwidth
allocation to detect congestion," within the meaning of claim 1?
The Examiner reads contested claim limitation L2 on paragraph 27 of
Chean. (Final Act. 5). Paragraph 27 describes an embodiment in which a
terminal's DCCP module "bases the congestion determination on round trip
5 See App. Br. 22: "(IX.) EVIDENCE APPENDIX None."
6 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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time," where round trip time describes "the time duration between the time
that an information packet is sent and the time at which an
acknowledgement returns." Chean further describes that round trip time
"directly translates into congestion in the network," because a longer round
trip time "comes from lost packets, and the time [packets] spen[ d] waiting in
a queue .... When queues are building up, then round trip time will become
longer. When there are drop packets then queues will be even longer." (Id.)
Appellants contend Chean fails to monitor and analyze "bandwidth
allocation" because "Chean discloses that the bandwidth allocated to various
calls is a consequence of reduced network bandwidth, not that congestion is
detected from the bandwidth allocated to calls." (App. Br. 11 ).
We do not find this argument persuasive. As Chean explains (i1i1 26-
27), round trip time is an indicator for the sufficiency of allocated bandwidth
relative to demand for the bandwidth. Thus, by monitoring and analyzing
round trip times, we find an artisan having an ordinary level of skill would
have monitored the sufficiency of allocated bandwidth, relative to demand
for the bandwidth, in order to determine a congestion level. Although
Chean's arrangement is agnostic as to whether the congestion results from a
decrease in bandwidth allocation, or an increase in demand for the allocated
bandwidth, we note claim 1 is silent regarding any limitations that specify
how the bandwidth allocation is monitored and analyzed for the intended
purpose of detecting congestion. See ICON Health and Fitness, 496 F.3d at
1379. Therefore, we find Chean anticipates contested limitation L2.
For at least those reasons, on this record, we find a preponderance of
the evidence supports the Examiner's finding of anticipation regarding
independent claim 1. Because Appellants have not persuaded us the
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Examiner erred, we sustain rejection A of representative claim 1. Grouped
independent claims 13 and 23, also rejected under rejection A, fall with
claim 1. See Grouping of Claims, supra.
Rejection B of Claims 3, 9, 20, and 30 under§ 103
Claim 3 recites: "The method of claim 1 wherein monitoring
bandwidth allocation in the wireless communication network comprises
monitoring a periodic report of bandwidth allocated to each subscriber
served by a network access point."
Appellants contend Ilan fails to remedy the alleged deficiencies of
Chean, because "Ilan does not teach or suggest that the same mobile
terminal that adjusts its vocoder rate[] monitors bandwidth to detect network
congestion." (App. Br. 12) (emphasis added). However, as discussed above
regarding claim 1, we find no deficiencies with Chean, given the Examiner's
broad but reasonable claim interpretation of the claim term "detecting."
Accordingly, we find Han's teaching (i1i115-17) of periodically
comparing required and available bandwidth at least suggests (under§ 103,
Rejection B), and thus renders obvious, modifying the terminal 12 in Chean
to periodically monitor a bandwidth report. 7 8 (See Final Act. 6).
Therefore, on this record, we find a preponderance of the evidence
supports the Examiner's underlying factual findings and ultimate legal
conclusion of obviousness regarding representative claim 3. Because
7 See e.g., Ilan (i-fl 7): "(iii) repeating steps (i) and (ii) periodically;"
8 "[T]he question under 35 [U.S.C. §] 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made." Merck & Co., Inc. v. Biocraft
Labs., Inc., 874 F.2d 804, 807---08 (Fed. Cir. 1989) (emphasis added)
(internal quotations and citation omitted).
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Appellants have not persuaded us the Examiner erred, we sustain rejection B
of claim 3. Grouped claims 9, 20, and 30, also rejected under rejection B,
fall with claim 3. See Grouping of Claims, supra.
Rejection C-E of Claims 4-8, 11, 12, 21, 22, 31, and 32 under§ 103
Regarding claims 4--8, 11, 12, 21, 22, 31, and 32, Appellants follow a
pattern of: (1) reciting the claim language, (2) restating the Examiner's
findings, and (3) merely asserting that the cited references fail to teach or
suggest the features of the claims. (See App. Br. 13-15). However, mere
attorney argument and conclusory statements do not demonstrate error in the
Examiner's rejection. 9
Therefore, on this record, Appellants have not persuaded us the
Examiner erred. We find a preponderance of the evidence supports the
Examiner's legal conclusion of obviousness regarding the dependent claims
rejected under rejections C-E. Therefore, we sustain the Examiner's
rejections C-E, under § 103, of dependent claims 4--8, 11, 12, 21, 22, 31,
and 32.
Rejections F and G of claims 15-19 and 25-29 under§ 103
Pursuant to the provisions of37 C.F.R. § 41.31(c), rejections F and G
of pending claims 15-19 and 25-29 under § 103 are also before us on
appeal. However, Appellants' principal Brief is silent regarding rejections F
and G. Because arguments not made are considered waived, we sustain the
9 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.").
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Examiner's rejections F and G of claims 15-19 and 25-29 under§ 103. See
37 C.F.R. § 41.37(c)(l)(iv).
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
For at least the aforementioned reasons, on this record, Appellants
have not persuaded us the Examiner erred. We find a preponderance of the
evidence supports the Examiner's finding of anticipation regarding all
claims rejected under rejection A. For at least the reasons discussed above,
Appellants have not persuaded us of error regarding the Examiner's
underlying factual findings and ultimate legal conclusion of obviousness for
all claims rejected under§ 103 under rejections B-G.
DECISION
We affirm the Examiner's rejection of claims 1, 13, and 23 under
§ 102(e).
We affirm the Examiner's rejections of claims 3-9, 11, 12, 15-22, and
25-32 under§ 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED
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