Ex Parte Becker

Board of Patent Appeals and Interferences

Jan 7, 2011

10975760 (B.P.A.I. Jan. 7, 2011)

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.
10/975,760 10/28/2004 Burkhard Becker L0099.0015 7520
38881 7590 01/07/2011
DICKSTEIN SHAPIRO LLP
1633 Broadway
NEW YORK, NY 10019
EXAMINER
TSAI, SHENG JEN
ART UNIT PAPER NUMBER
2186
MAIL DATE DELIVERY MODE
01/07/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte BURKHARD BECKER
____________________

Appeal 2009-007069
Application 10/975,7601
Technology Center 2100
____________________

Before JEAN R. HOMERE, JAY P. LUCAS, and JAMES R. HUGHES,
Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL2

1 This Application was filed on October 28, 2004. It is a continuation of
PCT/DE03/01170, filed April 9, 2003. The real party in interest is Infineon
Technologies, AG.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007069
Application 10/975,760

STATEMENT OF THE CASE
Appellant appeals from a final rejection of claims 1 to 11 and 14 to 26
under authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b). The Examiner
objects to the form of claims 12 and 13 (Ans. 13, top). The Examiner states
that the claims would be allowable if rewritten in independent form,
including all of the limitations of the base claim and any intervening claims
(id.). The Examiner has not made a formal rejection of claims 12 and 13.
We thus do not have a rejection on those claims that can be properly
appealed to this tribunal, and thus we cannot rule on those claims.

We affirm.

Appellant’s invention relates to a method for efficiently managing
data block versions obtained from repeat transmissions of a data block to be
decoded in a receiver such that the method permits powerful decoding with
low memory space requirement (Spec. ¶ [0010]). In the words of Appellant:
Further measures permitting more detailed
management of stored data block versions and
increasing the size of the parameter set which
taken as a basis for making the decision to store or
not to store a data block version in the memory
area involve the management information
comprising information which indicates the
channel code used and/or the puncturing pattern
used for the data block versions stored in the
memory area.
Preferably, the inventive method is carried
out on the basis of the following steps: if free
memory space is available in the memory area, a
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Application 10/975,760

received data block version is stored there.
Otherwise, a decision is made regarding whether
the received data block version can be stored by
overwriting a data block version of the same data
block. If this is not possible, a decision is made
regarding whether the received data block version
can be stored by overwriting a data block version
of a different data block. If this is not possible
either, the received data block version is rejected.
… [T]his implementation of the method also
permits data block versions which cannot be
attributed to the data block in the currently
received data block version to be overwritten.
(Spec. ¶¶ [0023] and [0024]).

The following claim illustrates the claims on appeal:
Claim 1:
1. A method for managing data block versions
obtained from repeat transmissions of a data block
which is to be decoded in a receiver, the data block
to be transmitted being subjected to channel
coding and puncturing in the transmitter,
comprising the steps of:

providing a memory area for storing
received data block versions in punctured form;
and

making a decision regarding whether or not
a received data block version for a data block
whose decoding in the receiver has failed to date
and is also unsuccessful when the received data
block version is taken into account is stored as a
punctured data block version in the memory area.

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Appeal 2009-007069
Application 10/975,760

The Examiner prior art relied upon the following prior art in rejecting
the claims on appeal:
Lou US 5,657,325 Aug. 12, 1997
Hassan US 5,968,198 Oct. 19, 1999
Furuskar US 6,704,898 B1 Mar. 09, 2004
(filed Oct. 19, 1999)
Garani EP 1,168,702 A1 Jun. 30, 2000

REJECTIONS
The Examiner rejects the claims as follows:

R1: Claims 1, 3, 4, 15, 17, 18, and 25 stand rejected under
35 U.S.C. § 102(b) for being anticipated by Lou.
R2: Claims 2, 5, 6, 14, 16, 19, and 20 stand rejected under 35
U.S.C. § 103(a) for being obvious over Lou in view of Furuskar.
R3: Claims 7 to 113, 14 and 21 to 24 stand rejected under 35
U.S.C. § 103(a) for being obvious over Lou in view of Garani.
R4: Claim 26 stands rejected under 35 U.S.C. § 103(a) for being obvious
over Hassan.

3 We treat the Examiner’s omission of dependent claim 11 from the rejection
R3 as merely a typographical error. Appellant’s footnote on page 5 of the
Brief makes a mere dependency argument for claim 11 by virtue of its
indirect dependency from claim 1. However, mere allegations of
patentability based on dependency, such as those presented by Appellant, are
not considered a persuasive form of argumentation. (See
37 C.F.R. § 41.37(c)(1)(vii); 37 C.F.R. § 1.111(b).) Accordingly, we find no
error in the rejection.

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Appeal 2009-007069
Application 10/975,760

We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUE
The pivotal issue before us in the present appeal involves whether
Appellant has shown4 that the Examiner erred in rejecting the claims under
35 U.S.C. §§ 102(b) and 103(a). The issue specifically turns on whether
Lou teaches Appellant’s claim limitation “making a decision regarding
whether or not a received data block version … is stored as a punctured data
block version in the memory area” (claim 1).

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
Disclosure
1. Appellant has invented an apparatus and method of deciding whether
to store a received data block version as a punctured data block version in a
memory area. (See claim 1.)
Lou
2. The Lou reference teaches a method of deciding where and in what
format to store a received information packet. (See Abstract and col. 5, ll.

4 Appellant has the burden on appeal to the Board to demonstrate Examiner
error. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006).
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Appeal 2009-007069
Application 10/975,760

12 to 17.) Lou’s packet may be stored as either a punctured packet or a
recoverable packet (col. 5, ll. 35 and 38). Lou’s punctured packet contains a
partially decipherable section and an error information section, which may
remain undecipherable. (See col. 5, ll. 33 to 40). In addition, Lou discloses
a means for reading the undecipherable error information and combining
that information with a punctured packet stored in a memory (id.). Lou
further discloses recovering undecipherable information via a self-decoding
process and then storing the packet in a data sink (col. 5, ll. 33 to 38). When
self-decoding fails, Lou’s system stores the packet in a memory (id.).

ANALYSIS
Arguments with respect to the rejection
of claims 1, 3, 4, 15, 17, 18, and 25
under 35 U.S.C. § 102(e) [R1]

The Examiner has rejected the noted claims for being anticipated by
the Lou reference, pages 3 to 7 of the Examiner’s Answer.
Appellant argues that when errors cannot be corrected, Lou fails to
teach making a decision as to whether to store the received data block
version (App. Br. 7, bottom). Rather, Appellant argues that such packets
containing errors are always stored in Lou’s memory (id.). Since Lou
teaches that as long as the packet contains an error, then the packet is stored,
the patent’s teachings do not anticipate exemplary claim 1 (id.).
We disagree with Appellant for the following reasons. We construe
Appellant’s claimed “decision” to be no different from the choice of where
and in what format to store an information packet, as Lou teaches. We find
that Appellant has invented an apparatus and method of deciding whether to
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Application 10/975,760

store a received data block version as a punctured data block version in a
memory area (FF#1). In comparison, we find that the Lou reference teaches
a method of deciding where and in what format to store a received
information packet (Appellant’s claimed “received data block version”)
(FF#2). Lou’s packet may be stored as either a punctured packet or a
recoverable packet (id.). A punctured packet contains a partially
decipherable section and an error information section, which may remain
undecipherable (id.). Lou discloses recovering undecipherable information
via a self-decoding process and then storing the packet in a data sink (id.).
When self-decoding fails, Lou’s system stores the packet (Appellant’s
punctured packet”) in a memory (Appellant’s claimed “memory area”).
To be clear, we find that Appellant’s claim limitation “making a
decision regarding whether or not a received data block version … is stored
as a punctured data block version in the memory area” (claim 1) reads on
Lou’s decision regarding a received packet’s destination (i.e., a data sink or
a memory). (See FF#1 and FF#2.) The decision in Lou determines the
received packet’s destination. (See FF#2.) Lou’s teachings suffice to
anticipate claim 1, in that Lou teaches a “decision,” as claimed, which sends
a received packet (the claimed “received data block version”) to either of
these two distinct locations (id.).
For the above-stated reasons, we read Appellant’s claimed “decision”
as being be no different from the choice of where and in what format a
packet is stored, as Lou teaches. Accordingly, we find Appellant has not
demonstrated error in the rejection R1 in this regard.
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Next, Appellant argues that in Lou, data blocks are not analyzed
before deciding whether each data block should be stored (App. Br. 8,
bottom).
We agree with the Examiner’s finding that claim 1 fails to specify the
timing of the claimed “decision” to either store or not to store “a received
data block,” as claimed (Ans. 16, middle). Reading the claim language
broadly but reasonably, see In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989),
we find that Appellant’s claimed step of “making a decision regarding
whether or not a received data block version … is stored as a punctured data
block version in the memory area” reads on Lou’s decision concerning
which location (i.e., a memory or a data sink) to send a received data block
(FF#2). Accordingly, we find Appellant has not shown error in the rejection
R1.

Argument with respect to the rejection
of claims 2, 5, 6 to 11, 14, 16, 19, 20 to 24, and 26
under 35 U.S.C. § 103(a) [R2 to R4]

The Examiner has rejected the noted claims for being obvious over
various prior art references, pages 7 to 13 of the Examiner’s Answer.
Appellant provides no separate argument in accordance with
37 C.F.R. § 41.37(c)(1)(vii). We thus affirm the rejections R2 to R4.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has not shown that the Examiner erred in rejecting claims 1 to 11
and 14 to 26.
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Appeal 2009-007069
Application 10/975,760

DECISION
We affirm the Examiner’s rejections R1 to R4 of claims 1 to 11 and
14 to 26.

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).

AFFIRMED

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