Ex Parte Barrett

Patent Trial and Appeal Board

Nov 30, 2017

13997384 (P.T.A.B. Nov. 30, 2017)

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.
13/997,384 09/06/2013 Stephen Barrett IW-12-0252-GB-PCT-US 8802
102469 7590 12/04/2017
PARKER JUSTISS, P.C./Nvidia
14241 DALLAS PARKWAY
SUITE 620
DALLAS, TX 75254
EXAMINER
ONAMUTI, GBEMILEKE J
ART UNIT PAPER NUMBER
2463
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
docket@pj-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN BARRETT
Appeal 2017-0098961
Application 13/997,384
Technology Center 2400
Before DENISE M. POTHIER, JOHNNY A. KUMAR, and
SCOTT B. HOWARD, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 13—30. Claims 1—12 have been canceled. App. Br. 6.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Throughout this opinion, we refer to (1) the Final Action (Final Act.)
mailed July 26, 2016, (2) the Appeal Brief (App. Br.) filed January 23, 2017,
(3) the Examiner’s Answer (Ans.) mailed May 17, 2017, and (4) the Reply
Brief (Reply Br.) filed July 14, 2017.
2 The real party of interest is listed as NVIDIA Corporation. App. Br. 3.
Appeal 2017-009896
Application 13/997,384
Invention
Appellant describes a cellular communication system, where wireless
communication units (e.g., 225 and 226) receive broadcast content (e.g.,
evolved Mobile Broadcast and Multicast Service (eMBMS) 610) from at
least one of a base station (e.g., 210) and a relay node (RN) (e.g., 224). See
Spec. 12:4—15, Abstract, Fig. 6. The wireless communication devices also
receive a supplementary, unicast transmission (e.g., 605) from at least one of
the base station and relay node. See id.; see also id. at 8:4—11, 12:4—15.
Advantages include (1) avoiding duplicate transmissions on both broadcast
and unicast channels, (2) adaptively improving transmitted information and
reception quality when a RN is struggling to decode correctly the broadcast
transmission, and (3) consuming less radio resources. Id. at 14:3—16.
Claim 13 is reproduced below with emphasis:
13. A method for reception of broadcast transmission in a
wireless communication system that comprises a plurality of
communication cells, with broadcast content being routed from
a base station to at least one wireless communication unit,
wherein the method comprises, [] the at least one wireless
communication unit'.
receiving a broadcast transmission of the broadcast
content from either the base station or at least one relay node
(RN), the broadcast content being broadcast from the base
station and the at least one RN at a same time', and
receiving a supplementary at least one augmented
unicast transmission sent from the base station to the at least
one RN;
wherein the at least one augmented unicast transmission
is associated with the broadcast content broadcast at the same
time as the unicast transmission.
App. Br. 13 (Claims App’x).
The Examiner relies on the following as evidence of unpatentability:
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Application 13/997,384
Bhagavath
Doppler
US 6,374,288 B1 Apr. 16, 2002
US 2009/0092073 A1 Apr. 9, 2009
US 2009/0265743 A1 Oct. 22, 2009
US 2011/0045763 A1 Feb. 24, 2011
Gao
Mohanty
The Rejections
Claims 13 and 15—30 are provisionally rejected on the ground of
nonstatutory double patenting rejection as being unpatentable over claims
17—35 ofU.S. Application No. 13/997,3907 Ans. 3—11.
Claim 14 is provisionally rejected on the ground of nonstatutory
double patenting rejection as being unpatentable over claims 17—35 ofU.S.
Application No. 13/997,390 and Gao. Ans. 11—12.
Claims 13—30 are rejected under 35U.S.C. § 112(a) or § 112, first
paragraph (pre-AIA) as failing to comply with the written description
requirement. Ans. 12—14.
Claims 13, 19, 20, and 25—30 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mohanty and Doppler. Ans. 14—18.
Claims 14 and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mohanty, Doppler, and Gao. Ans. 18—19.
Claims 15, 17, 22, and 24 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mohanty, Doppler, and Bhagavath. Ans. 19—23.
Claims 16, 18, and 23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mohanty, Doppler, Gao, and Bhagavath. Ans. 23—25.
3 U.S. Application No. 13/997,390 has issued into U.S. Patent No.
9,445,242. Notably, U.S. Application No. 13/997,404 (US Pub. No.
2013/0343262), is also currently before the Patent Trial and Appeal Board as
Appeal No. 2017-006910.
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Application 13/997,384
THE PROVISIONAL
DOUBLE PATENTING REJECTIONS
Appellant presents no arguments for these rejections, indicating “all
§§112 and 103(a) rejections of Claims 13-30 are being appealed.” App. Br.
6. We conclude that in this circumstance it is premature for the Board to
address the Examiner’s provisional double patenting rejections. See Ex
parte Moncla, slip op. at 3 (BPAI June 22, 2010) (precedential).4 We thus
do not reach the Examiner’s provisional double patenting rejections of
claims 13—30.
THE LACK OF WRITTEN DESCRIPTION REEJECTION
Claims 13—30 are rejected under 35U.S.C. § 112(a) or § 112, first
paragraph (pre-AIA) as failing to comply with the written description
requirement. Ans. 12—14. The Examiner points to several passages in the
Specification to demonstrate lack of written description support for the
phrase, “the broadcast content being broadcast from the base station and the
at least one RN at a same time” recited in claims 13 and 28—30. Ans. 13—14
(citing Spec. Tflf 43, 81—82). Appellant cites to different passages, urging the
Specification supports the above limitation. App. Br. 7—8 (citing Spec.
6:37—7:5, 15:29-16:2, Fig. 8); Reply Br. 2—3 (citing Spec. 2:3—11, 14:20-
25).
4 Available at
https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/prec/fd090
06448.pdf.
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Application 13/997,384
ISSUE
Under § 112(a) or first paragraph (pre-AIA), has the Examiner erred
in rejecting independent claims 13 and 28—30 by finding that the
Specification does not describe the claimed “broadcast content being
broadcast from the base station and the at least one RN at a same time” in
sufficient detail that one skilled in the art would have reasonably concluded
that the inventor had possession of the claimed invention?
ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of representative, independent claim 13.5 As the Examiner
indicates, the Specification discusses an example where the unicast
transmission from a base station to one or more RNs is transmitted “at
substantially the same time as an eMBMS broadcast transmission.” Spec.
6:28—31.6 Additionally, the Specification describes a base station
broadcasting the eMBMS data received by user equipment (UE) and RNs
and one or more RNs re-broadcasted the eMBMS data. Id. at 6:13—20.
These passages thus support a unicast transmission from a base station and a
broadcast from (1) the base station or (2) the relay node being sent at the
substantially same time. Yet, we agree with the Examiner there is
insufficient detail that one skilled in the art would have reasonably
5 Claims 13—30 are argued as a group. App. Br. 7—8. We select claim 13 as
representative. See 37 C.F.R. § 41.37(c)(l)(iv).
6 The Examiner refers to paragraph 43, presumably from U.S. Pub. No.
2013/0343259 Al. Ans. 14. However, the quotation comes from paragraph
45. Throughout this opinion, we refer to the disclosure’s page and line
numbers as originally submitted.
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Application 13/997,384
concluded the inventor has possession of “the broadcast content being
broadcast from the base station and at least one RN at the same time” as
recited in claim 13.
The Specification further describes multiple RNs transmit a MBSFN
(multicast broadcast single frequency network) broadcast transmission at the
same time. Spec. 14:20—24. But, once again, although discussing multiple
broadcasts at the same time, this passage does not provide sufficient detail
that one skilled in the art would have reasonably concluded the inventors has
possession of the claimed “broadcast from the base station and the at least
one RN at the same time.” App. Br. 13 (Claims App’x) (emphasis added);
see Spec. 14:20-24.
Appellant contends various passages in the disclosure provide the
requisite, written description support for the disputed, claim language. App.
Br. 7—8 n.3,4 (citing Spec. 6:37—7:5, 15:29-16:2, Fig. 8); Reply Br. 2 (citing
Spec. 2:3—11). Appellant states:
While the re-broadcast of the eMBMS frame is not transmitted
by the RN at exactly the same time the eMBMS frame is
transmitted by the evolved NodeB (eNodeB) or Donor eNodeB
(DeNB), the timing is close enough that, given inconsistency in
delays between a DeNB and user equipment (UE) and between
a RN and the UE, the data is effectively broadcast at
substantially the same time.
Id. We are not persuaded.
First, Appellant acknowledges the re-broadcast of eMBMS frame
from a RN is not transmitted at exactly the same time as the broadcast frame
from the base station as is required by claim 13 ’s recitation “at a same time.”
Id. at 7—8; see also Reply Br. 2—3 (stating SFN transmissions are
“substantially time-coincident”) (quoting Spec. 2:3—11). Second, page 6,
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line 37 through page 7, line 5 describes transmitting a unicast transmission
along with an MBMS transmission— not a broadcast content being
broadcast from the base station and the RN. Spec. 6:37—7:5. Also, the
Figure 8 embodiment describes combining an MBMS broadcast signal with
a unicast signal and then re-broadcasting each MBMS frame from the RN to
UE. Id. at 15:29-16:2, Fig. 8. Appellant has provided insufficient evidence
that combining the MBMS broadcast signal with the unicast signal would be
instantaneous, such that the original broadcast from the base station and the
re-broadcast from the RN is “at a same time” as recited in claim 13. App.
Br. 7-8.
For the foregoing reasons, Appellant has not persuaded us of error in
the lack of written description rejection of independent claims 13 and 28—30
and dependent claims 14—27, not separately argued.7
7 Should prosecution continue the Examiner should consider whether this
same phrase, “receiving a broadcast transmission of the broadcast content
from either the base station or at least one relay node (RN), the broadcast
content being broadcast from the base station and the at least one RN at a
same time,” cast the scope of the claim in clear terms under 35 U.S.C.
§ 112(b). As understood, a “broadcast” includes sending data from one
sender (e.g., base station or RN) to all connected receivers (e.g., UEs). See
Microsoft Computer Dictionary, 5th ed. 73 (2002); see also Gorry Fairhurst,
Unicast, Broadcast, and Multicast 1, available at
http://www.erg.abdn.ac.uk/users/gorry/intro-pages/uni-b-mcast.html (last
visited November 22, 2017) (“Fairhurst”). But, claim 13 includes a
limitation that the wireless communication unit receives a broadcast
transmission of the broadcast content from either the base station or a RN
even though the claim further requires the content is broadcasted from both.
Similarly, the Examiner should consider whether the phrase “the at least one
wireless communication unit. . . receiving a supplementary at least one
augmented unicast transmission sent from the base station to the least one
RN” in claim 13 is clear. Given that “unicast” is understood to mean
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Application 13/997,384
OBVIOUSNESS REJECTION OVER MOHANTY AND DOPPLER
Regarding representative claim 13,* * * * * * 8 the Examiner finds that Mohanty
teaches many limitations, including the disputed “the at least one wireless
communication unit. . . receiving a supplementary at least one augmented
unicast transmission sent from the base station to the at least one RN.” Ans.
15 (citing Mohanty | 55, Fig. 1). Appellant argues Mohanty does not teach
a wireless communication unit (e.g., 150/152) (1) receiving a unicast
transmission or (2) having the ability to receive a unicast transmission. App.
Br. 9.
ISSUE
Under § 103, has the Examiner erred in rejecting claim 13 by finding
that Mohanty and Doppler collectively would have taught or suggested “at
the at least one wireless communication unit. . . receiving a supplementary
at least one augmented unicast transmission sent from the base station to the
at least one RN”?
ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of claim 13. Mohanty teaches a base station (BS) (e.g., 140)
sending information from one sender to one receiver (see Microsoft
Computer Dictionary, 5th ed. 538 (2002); see also Fairhurst 1), it is not clear
in this claim whether the subsequently recited “the at least one augmented
unicast transmission” is the transmission from (1) the base station to the RN,
(2) the RN to the wireless communication unit, or (3) both (e.g., two,
separate unicast transmissions).
8 Claims 13, 19, 20, and 25—30 are argued as a group. App. Br. 8—10. We
select claim 13 as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/997,384
transmitting a paging announce message to a relay device (e.g., 102) in a
unicast format. Mohanty 1 55, Fig. 1. Both the Examiner and Appellant
agrees on this finding. Ans. 28; App. Br. 9.
Mohanty further teaches a further transmission of “the paging
message” from a relay node (e.g., 102) to a wireless communication device
(e.g., 150). Mohanty | 57, Fig. 1. Appellant appears to acknowledge
Mohanty’s paging message may be unicast between its relay device and
wireless communication device. Reply Br. 3 (stating “Mohanty’s MOB-
PAG-ADV may be unicast between Mohanty’s BS 140, relay device 102,
and wireless communication device 150.”) Yet, to the extent Appellant
maintains Mohanty only teaches sending this message as a broadcast
transmission (App. Br. 9), we disagree.
To be sure, Mohanty teaches the message is transmitted from the relay
device “to the wireless communication device [] e.g., in the form of a
broadcast transmission.” Mohanty 1 57 (emphasis added). We emphasize
the signal “e.g.,” above to illustrate Mohanty discusses an example of how
the relay device may transmit the paging message to the wireless
communication device. Id. However, by using this signal, this passage in
Mohanty does not exclude other types of transmission. See id. Additionally,
Mohanty teaches other known formats for transmitting the same paging
message, including a unicast transmission. See id. 1 55. Mohanty thus at
least suggests to one skilled in the art its wireless communication device
(e.g., 150) receives a supplementary, unicast transmission sent from the base
station to a RN as recited in claim 13. See id. 1155, 57.
Moreover, given these two known, finite options (e.g., unicast or
broadcast transmissions), one skilled in the art would have good reason to
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pursue either of these options within an artisan’s grasp. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007). As such, Mohanty’s teaching
provide a reason that it would have been obvious to try any of the known
options, including transmitting the paging message between the relay node
and the wireless communication unit in a unicast manner. See id.; cf. Ans.
28.
Additionally, Fairhurst, which is noted above, demonstrates that all
local area networks (LANs) support a unicast transfer mode. Fairhurst 1.
Mohanty teaches that some of its embodiments may be used in conjunction
with a LAN and various wireless devices. See Mohanty 115. We thus
disagree with Appellant (App. Br. 9) that Mohanty’s wireless
communication unit lacks the ability to receive a unicast transmission,
especially in a LAN environment.
Appellant also contends “the Office Action has not articulated a
finding that the applied combination of the cited portions of Mohanty and
Doppler includes ‘each element claimed’ in pending Claims 13 and 28-30,”
and therefore, Mohanty and Doppler “does not established a conclusion of
obviousness.” App. Br. 10 (emphasis omitted). This assertion is not
persuasive, as the Examiner has made specific findings for each limitation
(Ans. 14—16) and Appellant fails to direct this argument to any of these
findings concerning the limitations in the claims. Id.
In the Reply Brief, Appellant newly asserts that Mohanty’s paging
message is not “supplemental” or “associated with broadcast content.”
Reply Br. 3. These arguments were not raised in the Appeal Brief. See
generally App. Br. Nor do these arguments respond to an argument raised in
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the Examiner’s Answer. As such, these, new arguments are waived. See 37
C.F.R. § 41.41(b)(2).
Accordingly, Appellant has not persuaded us of error in the rejection
of (1) independent claim 13, (2) independent claims 28—30, which are
commensurate in scope with claim 1, and (3) dependent claims 19, 20, and
25—27 not separately argued.
THE REMAINING OBVIOUSNESS REJECTIONS
Claims 14—18 and 21—24 are rejected under 35 U.S.C. § 103 based on
Mohanty, Doppler, and at least one additional reference. Ans. 18—25. As
for these rejections, Appellant refers to the arguments presented for claim 13
and further contends the additional references (i.e., Gao and Bhagavath) are
not relied upon to cure the purported deficiencies. App. Br. 11. We are not
persuaded for the above-stated reasons. For the foregoing reasons,
Appellant has not persuaded us of error in the rejections of claims 14—18 and
21-24.
DECISION
We affirm the Examiner’s rejection of claims 13—30 under § 112(a) or
§112, first paragraph (pre-AIA).
We affirm the Examiner’s rejections of claims 13—30 under § 103.
We do not reach the provisional double patenting rejections of claims
13-30.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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