Ex Parte Dahlman et al

Board of Patent Appeals and Interferences

Jan 8, 2008

09873309 (B.P.A.I. Jan. 8, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERIK DAHLMAN, HENRIK ANDREASSON,
MAGNUS SUNDELIN, BO GORANSSON,
and STEFAN PARKVALL
____________

Appeal 2007-3053
Application 09/873,309
Technology Center 2600
____________

Decided: January 8, 2008
____________

Before KENNETH W. HAIRSTON, ROBERT E. NAPPI,
and KARL D. EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the Final
Rejection of claims 1-20. We have jurisdiction pursuant to 35 U.S.C. § 6(b).

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BACKGROUND
The claims are directed to a method of transmitting information in a
radio communication system having at least a first and second channel. The
level of power of information transmitted in the second channel is used to
control the choice of the modulation and/or coding scheme in the first
channel.
Claim 1 is illustrative of the claims on appeal:

1. A method of transmitting information in a radio communication
system comprising at least one transmitter and at least one receiver,
the method comprising the steps of:
transmitting first information in a first channel from the at least
one transmitter to the at least one receiver, using in the transmitting a
modulation and/or coding scheme and adapting the modulation and/or
coding scheme to give a secure communication of the first
information, and
transmitting second information in a second channel from the at
least one transmitter to the at least one receiver and setting the power
used for transmitting in the second channel to give a secure
communication of the second information, wherein in the step of
transmitting the first information, the choice of the modulation and/or
coding scheme is controlled by the level of the power at each instant
set for transmitting in the second channel.

The References

Willenegger US 2002/0009061 Jan. 24, 2002
Baum US 6,385,462 B1 May 7, 2002
Balachanrdan US 6,567,375 B2 May 20, 2003

Rejections Appealed
Claims 1-13 and 15-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Willenegger in view of Baum.
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Claims 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over in view of Baum, further in view of Balachandran.
Appellants contend that the Examiner fails to make out a prima facie
case of obviousness because the combination of Willenegger and Baum does
not teach all of the claim limitations (Br. 4). Specifically, Appellants
contend that the reference disclosures do not teach the claim element of
“wherein the choice of the modulation and/or coding scheme for
information transmitted in a first channel is controlled by the level of power
at each instant set for transmitting in a second channel.” (Br. 7) (emphasis
original). Appellants do not separately argue the rejected claims; thus we
group claims 1 through 13, and 15 through 20 of the rejected claims
together. We take claim 1 as representative of the claims on appeal. See 35
C.F.R. § 41.37(c)(1)(vii).

Issue
The issue is whether Appellants have met their burden on appeal of
asserting error in the Examiner’s obviousness rejection of claim 1 under 35
U.S.C. § 103 based on the combination of Willenegger and Baum.
We affirm.

PRINCIPLES OF LAW
On appeal, Appellants bear the burden of showing that the Examiner
erred. Appellants may sustain this burden by showing that, where the
Examiner relies on a combination of disclosures, the Examiner failed to
provide sufficient evidence to show that one having ordinary skill in the art
would have done what Appellants did. United States v. Adams, 383 U.S. 39,
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47 (1966); In re Kahn, 441 F.3d 977, 987-988 (Fed. Cir. 2006); DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, Co., 464 F.3d
1356, 1360-1361 (Fed. Cir. 2006).
Appellants may also show that the Examiner has failed to meet his
initial burden of presenting a prima facie case of obviousness. In re Oetiker,
977 F.2d 1443, 1445 (Fed. Cir. 1992). If that burden is met, then the burden
shifts to the Appellants to overcome the prima facie case with argument
and/or evidence. See Id.
The Examiner’s articulated reasoning in the rejection must possess a
rational underpinning to support the legal conclusion of obviousness. In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
“[W]hen a patent claims a structure already known in the prior art that
is altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result.” KSR
Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1740 (2007).
For the same reason, if a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.
Sakraida and Anderson’s-Black Rock are illustrative – a court must
ask whether the improvement is more than the predictable use of prior
art elements according to their established functions.

Id.

FINDINGS OF FACT
1. Appellants’ disclosed system maps power from one channel to the
coding or modulation scheme in another channel. (Spec. 11-12).

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2. Appellants admit: “Compared to conventional systems...the
method according to fig. 2 is new with respect to two features. First, the
inventive idea resides in the mapping of the power used in the dedicated
physical channel into a suitable modulation and coding scheme. Secondly,
in the method according to the invention, a varying modulation coding
scheme is used on the downlink shared channel.” (Spec. 11: 11-17).
3. In Appellants’ W-CDMA system, to control the modulation
scheme, power (PDPCH) from the second channel, a downlink physical
channel (DPCH), is implemented in the form of a table (Table 2), to
determine the modulation scheme for the first channel, a downlink shared
channel (DSCH). (Spec. 9, 11-12).

Appellants’ Table 2 is reproduced below.

Appellants’ Table 2 depicts decreasing power ranges from a downlink
physical channel mapped to modulation types with increasing data rates for a
downlink shared channel (Spec. 12).

The terms QPSK and QAM, respectively, mean Quaternary Phase Shift
Keying and Quadrature Amplitude Modulation, while the integers 8, 16, and
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64 indicate the amount of signaling alternatives (Spec. 12). Low transmitted
power indicates signal quality is high, while high transmitted power
indicates signal quality is low (Spec. 13).
4. Appellants admit that it is known to employ a technique whereby
the modulation or data rate of a radio channel is selected based on
information about the quality of the radio channel (Spec. 1-2). The
technique is known as “link adaptation.” “Link adaptation can be
accomplished by, e.g. changing the modulation and/or channel coding
scheme (MCS).” (Spec. 2: 1-9). Appellants further describe link adaptation
as follows: If the radio channel quality is high, the transmitter can exploit
the high quality by transmitting at a higher data rate (either by reducing
redundancy or employing higher order modulation or other methods). On
the other hand, if the radio channel quality is low, the data rate is adjusted to
be lower to ensure more reliable transmission. (Spec. 1:17 to 2:9). The
quality of the radio channel can be determined in a number of ways. One
known way involves “estimat[ing] the received signal-to-interference
ratio[,]by measuring the received signal strength of a signal transmitted at a
known constant power, such as a pilot signal, and the overall interference.”
(Spec. 2: 16-21).
5. Appellants also admit that: “Generally speaking, methods for
controlling the coding scheme and power level based on explicit feedback
information from the receiver are well known for a person skilled in the art,
as disclosed above.” (Spec. 5: 16-19).
6. Baum teaches associating a signal quality with transmit power in a
link to assign a modulation/coding rate (“MCR”) to that link. In one
embodiment employing multiple links, the modulation/coding rate MCR is
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assigned as a common MCR for all the links based on a common target
signal quality for all the links. (Col. 4, ll. 17-28). Baum’s method is
“advantageously applied” to “WCDMA” (wideband code division
multiplex) systems (col. 10, ll. 22-30).
7. Willenegger teaches using commands from an inner power control
loop in a second channel, a downlink physical channel (“DPCH”), to control
the transmitted power in a first channel, a physical downlink shared channel
(“PDSCH”), in a W-CDMA system. Power is controlled to obtain target
SNR ratios in each channel (Par. 0036, 0047).

ANALYSIS
Appellants’ argument that the Examiner fails to establish a prima facie
case of obviousness is founded on the premises: 1) that Willenegger does
not teach using power in a first channel to determine the modulation/coding
scheme in a second channel, and 2) that Baum teaches controlling the
modulation scheme in one channel based on power information from that
same channel (Br. 7). The Examiner generally agrees with Appellants’
premises as Appellants implicitly acknowledge (Br. 7-8, Ans. 4). We also
find the premises factually supported (FF 6, 7).
However, Appellants fail to respond to the Examiner’s contention that
the combination of Willenegger with Baum meets the claim limitations.
Accordingly, we conclude that Appellants have failed to sustain their burden
on appeal.
We conclude as the Examiner does that the combination of
Willenegger and Baum teach the invention. The Examiner explains:
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The combination of Willenegger and Baum render a first
channel (PDSCH) with an adaptive modulation and/or coding scheme
that is dependent on the power level of the PDSCH. The power level
of the PDSCH is dependent on the power level of the DPCH thus the
modulation and/or coding scheme of the PDSCH will ultimately
depend on the power level of the DPCH. The combination of
Willenegger and Baum thus render the claimed invention.

(Ans. 14).
We find the Examiner’s explanation to be factually supported and
logically sound. First, we find, as the Examiner does, that in Willenegger’s
system, “the power level of the PDSCH is dependent on the power level of
the DPCH” (Ans. 14 quoted above, see FF 7). Appellants do not challenge
this finding. In other words, power in the second channel, the physical
channel (DPCH), is used to control the power in the first channel, the shared
channel (PDSCH) (see FF 7).
Second, we concur with the Examiner’s finding that Baum “teaches
a selection of a modulation and/or coding scheme for a channel that is
controlled by the level of power of [sic] at each instant set for transmitting
in said channel” (Ans. 13, see FF 6).1 Appellants’ contend that “Baum
discloses using the signal quality associated with the transmit power

1 Appellants do not accept the Examiner’s characterization of Baum’s
teaching as correct, but instead, assume it is correct for purposes of
argument (Ans. 6). Appellants’ implied counter argument is that the
limitation “controlled by the level of power at each instant set” requires
control based on instantaneous transmitted power (Ans. 13). Baum teaches
that “link adaptation may be performed once every frame” (col. 8, ll. 40-50).
Therefore, even if we accept Appellants’ implied argument that the claim
requires instantaneous power, we determine that Baum meets the limitation.
We also note that Appellants do not include instantaneous power in either of
the two inventive ideas they identify as embodied in their invention (FF 2).
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assigned to a link to control the choice of modulation and/or coding on that
same link.” (Br. 7: 30 to 8:1)(emphasis original, citing Baum (col. 4, ll. 19-
25).
We also find Appellants’ contention factually supported. As both
contentions are factually supported, and because Appellants accept the
Examiner’s contention as correct for purposes of argument (see n.1 above),
we decline to resolve any differences between the two contentions. We also
find that Baum teaches what Appellants admit is well-known – “link
adaptation” – using the signal power in a link to determine, based on the
desired signal quality in the channel, a modulation and/or channel coding
scheme (MCS) (or modulation and/or data rate (MCR)) in order to satisfy
the desired signal quality (see FF 4-5).2 We note that Baum and Appellants
disclose that the link adaptation technique is advantageous for W-CDMA
systems (FF 3, 4, 6).
Willenegger also teaches a W-CDMA system.3 Because Willenegger
teaches using power in the second channel to control power in the first
channel, and Baum teaches using power in the first channel to determine the
modulation and/or coding schedule or rate in the first channel it follows that
the combination renders the result as advanced by the Examiner (Ans. 14 as

2 We also note that Baum discloses assigning power in one link depending
on the total power available to all the links and depending on a target C/I
(signal quality). Hence the power in a link depends on the power in another
link. Baum also teaches link adaptation or assigning the “modulation/coding
rate based on the target C/I”. (Baum, col. 5, ll. 35-65). Therefore, Baum’s
teachings imply that power in a one channel ultimately determines
modulation in another link.
3Appellants’ and Baum’s systems each employ physical and shared channels
(FF 3, 7).
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quoted above); i.e., power in the second channel ultimately controls the
modulation and/or coding scheme in the first channel.4 Consequently, we are
persuaded by the Examiner’s unchallenged explanation that the combination
of the Willenegger and Baum references meets claim 1.
We are not persuaded by Appellants’ separate attacks on each
reference. In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“one cannot show
non-obviousness by attacking references individually where, as here, the
rejections are based on combinations of references”). As indicated above,
what the references individually teach is not disputed in a dispositive or
material manner. Following Keller, we determine that the arguments that
Baum’s teaching is limited to a single channel and that neither Baum nor
Willenegger discloses that power in a second channel controls the
modulation or coding scheme in a first channel (Br. 7) are not material to the
obviousness issue here involving the Examiner’s proposed combination of
the references.
We also note that Appellants do not challenge the Examiner’s reasons
given to support the combination of Willenegger and Baum (Ans. 14). We
find that the Examiner’s rationale is clearly articulated and sufficiently
provides a sound basis to suggest the combination as proposed. We adopt
those reasons as our own here. We summarize by stating that we agree with
the Examiner that each reference is concerned with enhancing signal quality
and that Baum teaches a well-known way to enhance it (Ans. 14).

4 Appellants’ argument that Baum’s teaching is limited to a single channel
renders the result advanced by the Examiner since the teaching is applied to
the single shared channel – the first channel of the claim.
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We determine that a person of ordinary skill in the art would have
recognized that Baum’s well-known prior art link adaptation technique
applied in a W-CDMA system would have improved Willenegger’s
W-CDMA system in the same way, rendering the combination no more than
the predictable use of a prior art technique according to its established
function. We also determine that the combination meets the elements of
claim 1.

CONCLUSION
Appellants fail to meet the burden of asserting error in the Examiner’s
rejection. See United States v. Adams, 383 U.S. at 47 (1966); In re Kahn,
441 F.3d at 987-988 (Fed. Cir. 2006); DyStar Textilfarben GmbH & Co.
Deutschland KG v. C.H. Patrick, Co., 464 F.3d at 1360-1361 (Fed. Cir.
2006). Appellants did not file a Reply Brief challenging the Examiner's
findings. Based on the arguments made in the Brief, we have no basis for
questioning the unchallenged findings of the Examiner. Appellants have not
sustained their burden on appeal of showing that the Examiner erred in
rejecting the claims on appeal as being unpatentable under 35 U.S.C.
§ 103(a).
Accordingly, we sustain the Examiner’s rejection of claim 1.
Appellants have not separately argued claims 2- 13 and 15-20. Therefore,
we also sustain the Examiner’s rejections of claims 2-13 and 15-20.
Further, as Appellants has not presented arguments directed to the
Examiner’s rejection of claim 14, we sustain the Examiner’s rejection of
claim 14 for the reasons discussed above with respect to claim 1.

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DECISION
The decision of the Examiner is 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) (2006).

AFFIRMED

KIS

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