11741590 (P.T.A.B. Feb. 29, 2016)

Ex Parte Cai et al

Patent Trial and Appeal BoardFeb 29, 2016

11741590 (P.T.A.B. Feb. 29, 2016)

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. 11/741,590 04/27/2007 Zhijun Cai 32185-US-PAT 3270 94149 7590 03/01/2016 Fish & Richardson P.C. (Blackberry) P.O.Box 1022 Minneapolis, MN 55440 EXAMINER MUI, GARY ART UNIT PAPER NUMBER 2464 MAIL DATE DELIVERY MODE 03/01/2016 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 ZHIJUN CAI and JAMES EARL WOMACK ____________________ Appeal 2014-000103 Application 11/741,590 Technology Center 2400 ____________________ Before JOSEPH L. DIXON, JOHN G. NEW, and SCOTT B. HOWARD, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2014-000103 Application 11/741,590 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3, 4, 7, 11–16, 18, 19, 22, and 23, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. SUMMARY OF THE INVENTION The claims are directed to a method and system for data-driven, variable-rate, channel quality indicator for LTE non-real-time bursty traffic. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method, in a long term evolution architecture utilizing adaptive modulation and coding requiring periodic channel quality indication reports, the method comprising the steps of: waiting, at a user equipment, for an idle channel indication from a higher layer in a protocol stack on the user equipment; and upon detection of the idle channel indication, decreasing the rate of periodic channel quality indication reports. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Das et al. US 2003/0087605 Al May 8, 2003 (“Das”) Uehara et al. US 2005/0174982 Al Aug. 11, 2005 (“Uehara”) Marinier et al. US 2007/0047502 Al Mar. 1, 2007 (“Marinier”) Appeal 2014-000103 Application 11/741,590 3 REJECTIONS The Examiner made the following rejections: Claims 1, 7, 11, 16, and 22 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Das. Claims 4, 11, 12, 14, 15, 19, and 23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Das in view of Marinier. Claim 3, 13, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Das in view of Uehara. ANALYSIS Anticipation With respect to claims 1, 7, 11, 16 and 22, Appellants argue the claims together. (App. Br. 7). We select independent claim 1 as the representative claim for the group and address Appellants’ arguments thereto. Appellants contend that: The present application provides a number of solutions to this problem. For example, paragraphs [0027] to [0035] describe a solution in which a time since the last data transmission is compared against a threshold, and if so, the CQI reporting rate is decreased. This process may be repeated until a maximum CQI reporting period has been reached. (App. Br. 6). Although Appellants urge that the Examiner’s broader reading is inconsistent with the Specification (at para. [0042] to [0044]) (App. Br. 6; Reply Br. 4–7), our reviewing court guides that [i]nterpretation of descriptive statements in a patent’s written description is a difficult task, as an inherent tension exists as to whether a statement is a clear lexicographic definition or a description of a preferred embodiment. The problem is to Appeal 2014-000103 Application 11/741,590 4 interpret claims ‘in view of the specification’ without unnecessarily importing limitations from the specification into the claims. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003) (citation omitted). Here, we find the description of application layer as a higher layer in paragraph [0042] (Spec. 6) is merely exemplary, and does not give an artisan notice of a limiting definition that would preclude a broader reading of the claimed higher layer. See Electro Medical Systems S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994) (“particular embodiments appearing in the specification will not be read into the claims when the claim language is broader than such embodiments” (citation omitted)). “[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments . . . . [C]laims may embrace ‘different subject matter than is illustrated in the specific embodiments in the specification.’” Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (citations omitted). Moreover, 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). The Examiner sets forth the anticipation rejection based upon the Das reference. The Examiner maintains that the Das reference waits until a timer has expired and checks to see if there is a transmission. (Final Act. 2–3; Ans. 10–12). We agree with the Examiner that the activity/transmission would have been an idle channel indication from a higher layer as the Examiner has proffered with respect to the anticipation rejection. Moreover, Appeal 2014-000103 Application 11/741,590 5 we find Appellants’ proffered interpretation of “higher layer” to be the “application layer” as described in the Specification at para. 42 invite us to import limitations to the claimed invention. We decline to import this specific limitation from the Specification into independent claim 1. Consequently, Appellants’ argument does not show error in the Examiner’s conclusion of obviousness of representative independent claim 1 and claims 7, 11, 16, and 22 not argued separately. Obviousness Appellants rely upon the arguments advanced with respect to independent claim 1 with respect to the obviousness rejections. (App. Br. 11–12; Reply Br. 7–8). Therefore, we sustain the rejections of claims 3, 4, 11, 12–14, 15, 18, 19, and 23 for the same reason. CONCLUSION The Examiner did not err in rejecting representative independent claim 1 based upon anticipation and claims 7, 11, 16, and 22 not argued separately. The Examiner did not err in rejecting claims 3, 4, 11, 12–14, 15, 18, 19, and 23 based upon obviousness. DECISION For the above reasons, the Examiner’s rejections of claims 1, 3, 4, 7, 11–16, 18, 19, 22, and 23 are affirmed. 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). Appeal 2014-000103 Application 11/741,590 6 AFFIRMED