Ex Parte BarrettDownload PDFPatent Trial and Appeal BoardNov 30, 201713997404 (P.T.A.B. Nov. 30, 2017) Copy Citation 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. 13/997,404 09/18/2013 Stephen Barrett IW-12-0254-US 1054 102469 7590 12/04/2017 PARKER JUSTISS, P.C./Nvidia 14241 DALLAS PARKWAY SUITE 620 DALLAS, TX 75254 EXAMINER ALATA, YASSIN ART UNIT PAPER NUMBER 2426 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 2017-0069101 Application 13/997,404 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 10-23. Claims 1-9 have been canceled. App. Br. 4. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Throughout this opinion, we refer to (1) the Final Action (Final Act.) mailed June 3, 2016, (2) the Appeal Brief (App. Br.) filed October 3, 2016, (3) the Examiner’s Answer (Ans.) mailed January 26, 2017, and (4) the Reply Brief (Reply Br.) filed March 27, 2017. Appeal 2017-006910 Application 13/997,404 Invention Appellant describes a cellular communication system having a base station (e.g., 210) broadcasting content (e.g., eMBMS (evolved Mobile Broadcast and Multicast Service) 610) to wireless communication units (e.g., 225 and 226) and a relay node (RN) (e.g., 224) at the same time. See Spec. 11:24-35, Abstract, Fig. 6. The base station supplements the broadcast transmission with an augmented, unicast transmission (e.g., 605) at the same time. See id.; see also id. at 7:24-31, 11:35-39. 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 13:22-33. Claim 1 is reproduced below with indentation and punctuation added for clarity: 10. A cellular communication system for supporting broadcast transmission in at least one of a plurality of communication cells, the cellular communication system comprising[:] at least one base station broadcasting non-rebroadcasted content to both at least one relay node (RN) and at least one wireless communication unit at the same time[,] wherein the at least one base station is arranged to supplement the broadcast transmission with at least one augmented unicast transmission associated with the non- rebroadcasted content broadcast at the same time as the broadcast transmission, the at least one augmented unicast transmission received by the at least one wireless communication unit. App. Br. 11 (Claims App’x). 2 The real party of interest is listed as Nvidia Corporation. App. Br. 3. 2 Appeal 2017-006910 Application 13/997,404 The Examiner relies on the following as evidence of unpatentability: Bhagavath US 6,374,288 B1 Apr. 16,2002 Ahn US 2010/0254295 A1 Oct. 7,2010 ZTE Corporation, Cooperative Transmission for Broadcast Service in Type II Relay Scenario (3GPP TSG RAN WG2 #66bis (Document R2-093890)) 1^1 (2013) (“3GPP”). The Rejections Claims 10-23 are provisionally rejected based on double patenting as claiming the invention of (1) claims 17-35 of U.S. Application No. 13/997,3 903 and (2) claims 13-30 of U.S. Application No. 13/997,384.4 Final Act. 3. Claims 10, 11, 16, and 19-23 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ahn and 3GPP. Final Act. 4-8. Claims 12-15, 17, and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ahn, 3GPP, and Bhagavath. Final Act. 8-9. THE PROVISIONAE DOUBEE PATENTING REJECTIONS Appellant presents no arguments for these rejections, indicating “all § 103(a) rejections of Claims 10-23 are being appealed.” App. Br. 4. We conclude that in this circumstance it is premature for the Board to address the Examiner’s provisional double patenting rejections. See Ex parte 3 U.S. Application No. 13/997,390 has issued into U.S. Patent No. 9,445,242. 4 U.S. Application No. 13/997,384 is currently under appeal at the Patent Trial and Appeal Board as Appeal No. 2017-009896. 3 Appeal 2017-006910 Application 13/997,404 Moncla, slip op. at 3 (BPAI June 22, 2010) (precedential).5 We thus do not reach these double patenting rejections of claims 10-23. THE OBVIOUSNESS REJECTION OVER AHN AND 3GPP Regarding independent claim 10, the Examiner finds that Ahn teaches (1) broadcasting content to both a relay node and a wireless communication unit (Final Act. 4 (citing Ahn 60-64, Fig. 2); Ans. 5 (further citing Ahn 3, 15-16, 20-226)) and (2) the recited “augmented unicast transmission associated with the broadcast content” (Final Act. 4 (citing Ahn ^ 64, 115-117, Fig. 6); see also Ans. 5-6 (further citing Ahn33, 75-79, 111, Fig. 2)). As for the timing component, the Examiner states “Ahn is not clear . . . that the broadcasting is at the same time” and turns to 3 GPP for its teachings. Final Act. 5 (citing 3GPP § 2.2-2.3, Fig. 1). Among other arguments, Appellant asserts the only embodiment in Ahn that teaches both a unicast and a broadcast transmission at the same time is Figure 6. App. Br. 6. According to Appellant, only Ahn’s relays receive unicast data in this embodiment and thus Ahn fails to teach or suggest simultaneous unicast and broadcast transmissions between Ahn’s base station and Ahn’s UE. Id. at 6-7 (citing Ahn 115). 5 Available at https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/prec/fd090 06448.pdf. 6 The Examiner’s Answer states “[paragraphs 0020-0012.” Ans. 5. We presume “0012” is a typographical intended to refer to paragraph 22. 4 Appeal 2017-006910 Application 13/997,404 ISSUE Under § 103, has the Examiner erred in rejecting claim 10 by finding that Ahn and 3 GPP would have taught or suggested the at least one base station is arranged to supplement the broadcast transmission with at least one augmented unicast transmission associated with the non-rebroadcasted content broadcast at the same time as the broadcast transmission, the at least one augmented unicast transmission received by the at least one wireless communication unit[7] ANALYSIS Based on the following, we determine the Examiner erred in concluding Ahn and 3 GPP teach the above, disputed limitation. Although we disagree that claim 10 “requires that the unicast and broadcast transmission is received by the claimed wireless communication unit at the same time” (Reply Br. 2), the prior art as presented fails to teach or suggest claim 10’s limitation of “the at least one augmented unicast transmission received by the at least one wireless communication unit.” App. Br. 11 (Claims App’x). As broadly as recited, there is no requirement in claim 10 that the unicast transmission is received by the wireless communication unit at the same time as the wireless communication device receives the broadcast transmission. Id. Rather, claim 10 requires the base station “is arranged” to broadcast the augmented, unicast transmission at the same time as the broadcast transmission, and the unicast transmission is received by a wireless communication unit. Id. Turning to the prior art, Ahn teaches transmitting MBS (multicast broadcast service) data (e.g., the Examiner’s mapped, broadcast transmission (see Final Act. 4; see also Ans. 5)) from base station 210 to both RN 220 5 Appeal 2017-006910 Application 13/997,404 and user equipment (UE) 230. See also Ahn 15, 64, Fig. 2. This embodiment does not discuss unicast transmissions. See Ahn 15, 64, Fig. 2. Ahn separately teaches unicasting an additional transmission (e.g., MBSFN (multicast frequency single frequency network) data) between a base station and relays (e.g., RN). See Ahn16, 111, 115-16, Fig. 6. Aim’s Figure 6 embodiment teaches or suggests supplementing the base station-to-UE transmissions (e.g., broadcast transmissions) with base station- to-relay transmissions (e.g., unicast transmission) at the same time. Ahn, Fig. 6 (see TIME arrow in Figure 6). Yet, Figure 6 fails to show the transmitted, unicast data is also received by a UE or “the at least one wireless communication unit” as recited in claim 10. See App. Br. 6 (stating “Ahn’s embodiment of Fig. 6 discloses that unicast data is only received by Ahn’s relay (relay 1 or relay 2), but not any of Ahn’s UEs 230.”) In the Examiner’s Answer, the Examiner relies on additional paragraphs in Ahn, concluding “Ahn, as shown above, discloses that the transmissions between the base station and the relay and then between the relay and the UE are unicasted. The Office Action has articulated a finding that the applied combination of the cited references include each element in Claim 10.” Ans. 6; see id. at 5-6 (citing Ahn^ 3, 15, 20-227, 33, 75-79, 111, Figs. 2 and 6). We are not persuaded. Ahn teaches generally to multicast and broadcast common data to terminals and relays, but does not discuss or suggest the described “common data” are transmitted in a unicast manner. See Ahn ^ 3. Ahn further teaches a method of transmitting MBS data from base station to a UE and to a relay, 7 As noted earlier, we presume “0012” is a typographical error, intending to refer to paragraph 22. 6 Appeal 2017-006910 Application 13/997,404 which amplifies and forwards the MBS data to a UE. Ahn 15, 20; see id. 21-22, 61, 64. As best understood, this transmission of Ahn’s MBS data is mapped to the recited, broadcast transmission— not the recited, unicast transmission. See Final Act. 4. On the other hand, Ahn teaches an embodiment, where MBS or MBSFN data is transmitted from a base station to a relay in a unicast manner. Ahn ^ 16, 33, 111. But, as Appellant indicates (App. Br. 6-7), Ahn does not further teach or suggest to one skilled in the art that the disclosed unicast transmission8 in Ahn carries over or continues as a unicast transmission between the relay and the UE (see id. 1115, 33, 111-116), such that “the at least one augmented unicast transmission [is] received by the at least one wireless communication unit” as recited in claim 10. App. Br. 11 (Claims App’x) (emphasis added). The Examiner even further cites paragraphs 75 through 79 of Ahn for support. Ans. 6. Curiously, the Examiner reproduces paragraphs 75-79 of the Appellant’s disclosure— not Ahn. Id. Reliance on the instant disclosure does not demonstrate what Ahn discloses or suggests. To the extent the Examiner intended to rely on Ahn’s paragraphs 75 through 79, we are not convinced any discussed, unicast transmission is received by a wireless communication unit as recited in claim 10. Only paragraph 78 discusses unicast signals. Ahn 78. In this passage, Ahn teaches switching between transmitting a unicast signal and using the relay like a repeater for transmitting a MBSFN signal between a base station and another device. See id. When acting like a repeater, Ahn suggests that the relay transmits 8 Unicast is defined as “[t]o transmit between a single sender and a single receiver over a network.” Microsoft Computer Dictionary, 5th ed. 538 (2002). 7 Appeal 2017-006910 Application 13/997,404 broadcast content between the relay and a UE. In contrast, when transmitting unicast content, Ahn suggests to one skilled in the art the relay receives the unicast signals but does not behave like a repeater, which would transmit the unicast signals further to another device (e.g., a wireless communication unit as recited). See id. These paragraphs therefore do not teach or suggest “the at least one augmented unicast transmission [is] received by the at least one wireless communication unit” recited in claim 10. Although 3 GPP is also relied upon to teach the recited “broadcast at the same time” feature (see Final Act. 5), we agree with Appellant (App. Br. 7) 3GPP has not been cited to teach or suggest “the at least one augmented unicast transmission [is] received by the at least one wireless communication unit” as recited. As such, what 3GPP teaches in this regard9 are not before us. Nor will we engage in such an inquiry in the first instance on appeal. Accordingly, Appellant has persuaded us of error in the rejection of (1) independent claim 10 and (2) dependent claims 11, 16, and 19-23 for similar reasons. THE REMAINING OBVIOUSNESS REJECTION Dependent claims 12-15, 17, and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ahn, 3 GPP, and Bhagavath. Final Act. 8-9. Bhagavath has not been relied upon to teach the above disputed limitation. See id. For similar reasons to those discussed above, we will not sustain this rejection. 9 See 3GPP, Fig. 2. 8 Appeal 2017-006910 Application 13/997,404 DECISION We reverse the Examiner’s rejection of claims 10-23 under § 103. We do not reach the double patenting rejections of claims 10-23. REVERSED 9 Copy with citationCopy as parenthetical citation