Ex Parte Cleveland

Patent Trial and Appeal Board

Dec 13, 2012

11585009 (P.T.A.B. Dec. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOSEPH R. CLEVELAND
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Appeal 2010-006924
Application 11/585,009
Technology Center 2600

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Before DEBRA K. STEPHENS, HUNG H. BUI, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-006924
Application 11/585,009

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Appellant appeals under 35 U.S.C. § 134(a) (2002) from the final
rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

Introduction
According to Appellant, the invention relates to a system and method
for synchronous spectrum sharing for use in a wireless communication
system based on orthogonal frequency division multiplexing (OFDM) or
orthogonal frequency division multiple access (OFDMA) signaling. See
Appellant’s Spec. ¶005 and Abstract.

STATEMENT OF THE CASE
Exemplary Claim
Claim 1 is an exemplary claim and is reproduced below:
1. A synchronous spectrum sharing system for using in a
wireless communication system having a primary user node and
a secondary user node, the system comprising:

a frame detector configured to detect a frame of a
broadcast waveform and extract idle spectrum information for
the frame to the secondary user node,

wherein the secondary user node transmits data in a first
unused symbol slot identified in the idle spectrum information.

References
Bonta US 2004/0233888 A1 Nov. 25, 2004
Ling US 2005/0063298 A1 Mar. 24, 2005

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Rejections
(1) Claims 1, 4-9, and 12-16 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Bonta. Ans. 3-6.
(2) Claims 2, 3, 10, 11, and 17-21 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Bonta and Ling. Ans. 6-10.

ISSUE 1
Double Patenting: Claims 1, 9, and 17
Claim 1 is provisionally rejected on the ground of non-statutory
obviousness-type double patenting as being unpatentable over claim 2 of co-
pending Application No. 11/805,113; claim 9 over claim 11 of co-pending
Application No. 11/805,113; and claim 17 over claim 20 of co-pending
Application No. 11/805,113. Claim 1 is provisionally rejected on the ground
of non-statutory obviousness-type double patenting as being unpatentable
over claim 1 of co-pending Application No. 11/725,749; claim 9 over claim
10 of co-pending Application No. 11/725,749; and claim 17 over claim 20 of
co-pending Application No. 11/725,749. Claim 1 is provisionally rejected
on the ground of non-statutory obviousness-type double patenting as being
unpatentable over claim 1 of co-pending Application No. 11/702,397; claim
9 over claim 11 of co-pending Application No. 11/70,2397; and claim 17
over claim 22 of co-pending Application No. 11/702,397. Claim 1 is
provisionally rejected on the ground of non-statutory obviousness-type
double patenting as being unpatentable over claim 1 of co-pending
Application No. 11/805,114; claim 9 over claim 10 of co-pending
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Application No. 11/805,114; and claim 17 over claim 17 of co-pending
Application No. 11/805,114.
Appellant has not acknowledged or traversed these rejections. We
therefore affirm these rejections, pro forma, as no error has been
demonstrated by Appellant.

ISSUE 2
35 U.S.C. § 102(b): Claims 1, 4-9, and 12-16
Appellant argues his invention is not anticipated by Bonta (App. Br.
14). Specifically, Appellant contends Bonta does not disclose extracting idle
spectrum information for the frame and the secondary user node transmits
data in a first unused symbol slot identified in the idle spectrum information
(App. Br. 16). Appellant argues Bonta measures inactivity of a channel but
not idle spectrum information for the frame of a broadcast waveform (Reply
Br. 3-4). Appellant further argues that Bonta does not disclose why the
secondary node would transmit data in a first unused symbol slot identified
in the idle spectrum information (Reply Br. 5-6). Instead, according to
Appellant, Bonta teaches the base station provides the channels in a best to
worst order determined based on interference (Reply Br. 6). Thus,
Appellant contends Bonta does not expressly or inherently teach the recited
invention.

Issue 2: Has the Examiner erred in finding Bonta discloses “a frame
detector configured to…extract idle spectrum information for the frame to
the secondary user node, wherein the secondary user node transmits data in a
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first unused symbol slot identified in the idle spectrum information” as
recited in claim 1 and commensurately recited in claim 9?

ANALYSIS
We agree with Appellant’s arguments that the Examiner has not
shown where Bonta discloses the disputed limitations (Reply Br. 3-7).
Specifically, we agree the Examiner has not shown Bonta discloses
extracting idle spectrum information for a portion (a frame) of a broadcast
waveform. We further agree the Examiner has not shown Bonta anticipates
the secondary user node transmitting data in a first unused symbol slot
identified in the idle spectrum information. Therefore, we are constrained to
find the Examiner erred in finding Bonta discloses the invention as recited in
independent claims 1 and 9. Dependent claims 4-8 and 12-16 stand with
their respective independent claims. Therefore, the Examiner erred in
rejecting claims 1, 4-9, and 12-16 under 35 U.S.C. § 102(b) for anticipation
by Bonta.

ISSUE 3
35 U.S.C. § 103(a): Claims 2, 3, 10, 11, and 17-21
Claims 2, 3, 10, and 11
Claims 2, 3, 10, and 11 which depend from claims 1 and 9,
respectively, are rejected for obviousness over Bonta and Ling. For the
reasons set forth above, Bonta does not disclose the invention as recited in
claims 1 and 9. The Examiner has not shown Ling cures the deficiencies of
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Bonta. Therefore, claims 2, 3, 10, and 11 stand with their respective
independent claims.
Claims 17-21
Appellant asserts their invention is not obvious over Bonta and Ling
because Bonta and Ling do not teach or suggest “a frame detector
configured to …extract idle spectrum information of the frame…wherein the
secondary user node transmits data in a first unused symbol slot identified in
the idle spectrum information” as recited in claim 17 (App. Br. 19).
Issue 3: Has the Examiner erred in concluding the combination of
Bonta and Ling teaches or suggests “a frame detector configured to…extract
idle spectrum information for the frame to the secondary user node, wherein
the secondary user node transmits data in a first unused symbol slot
identified in the idle spectrum information” as recited in independent claim
17?

ANALYSIS
For the reasons set forth above in Issue 2, we find Bonta does not
teach the disputed limitations. Further, the Examiner has not shown Bonta
suggests the disputed limitations or Ling cures the deficiencies of Bonta.
Accordingly, the Examiner erred in finding the combination of Bonta and
Ling teaches or suggests the invention as recited in independent claim 17.
Dependent claims 18-20 thus stand with claim 17. It follows therefore that
the Examiner erred in rejecting claims 17-21 under 35 U.S.C. § 103(a) for
obviousness over Bonta and Ling.

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Accordingly, the Examiner erred in finding the combination of Bonta
and Ling teaches or suggests the invention as recited in claims 2, 3, 10, 11,
and 17-21. Therefore, the Examiner erred in rejecting claims 2, 3, 10, 11,
and 17-21 under 35 U.S.C. § 103(a) for obviousness over Bonta and Ling.

DECISION
The Examiner’s provisional rejections of claims 1, 9, and 17 on the
ground of non-statutory obviousness-type double patenting are affirmed.
The Examiner’s rejection of claims 1, 4-9, and 12-16 under 35 U.S.C.
§ 102(b) as being anticipated by Bonta is reversed.
The Examiner’s rejection of claims 2, 3, 10, 11, and 17-21under 35
U.S.C. § 103(a) as being unpatentable over Bonta and Ling is reversed.
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) (2011).

AFFIRMED-IN-PART

ELD