Ex Parte Das et al

Board of Patent Appeals and Interferences

Apr 20, 2007

09725393 (B.P.A.I. Apr. 20, 2007)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ARNAB DAS, FAROOQ ULLAH KHAN, and,
SANJIV NANDA
__________

Appeal 2007-0843
Application 09/725,393
Technology Center 2100
__________

Decided: April 20, 2007
__________

Before ALLEN R. MACDONALD, JEAN R. HOMERE, and
ST. JOHN COURTENAY III, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-14 and 16-24. Claim 15 has been
cancelled.
THE INVENTION
The disclosed invention relates generally to wireless communication
systems and, more particularly, to data transmission over wireless
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communication systems. The disclosed invention is a method of sub-packet
adaptation based on the data rate. In particular, the size of a sub-packet is
adapted to the data rate at which the sub-packet is to be transmitted. The
disclosed invention further adapts the sub-packet size to the data rate in a
format that would allow such size-adapted sub-packet to be soft combined
with another sub-packet of a same or different size. The size-adapted sub-
packet may be transmitted prior to or after the other sub-packet. In one
embodiment, the disclosed invention comprises the steps of channel coding
an encoder packet to produce a channel-coded encoder packet; and
puncturing and/or repeating the channel-coded encoder packet to produce an
encoder sub-packet having a size based on a size of the encoder packet and a
data transmission rate at which the encoder sub-packet is to be transmitted
(Specification 1-3).
Representative claim 1 is illustrative:
1. A method of transmitting data comprising the steps of:
channel coding an encoder packet to produce a channel coded encoder
packet; and
puncturing and/or repeating the channel coded encoder packet to
produce a first encoder sub-packet having a first size based on a size of the
encoder packet and a first data transmission rate at which the first encoder
sub-packet is to be transmitted, wherein the first data transmission rate is
different from and based on a data rate for transmitting the first encoder
subpacket indicated in a first rate indication message from a receiver.

THE REFERENCES
The Examiner relies upon the following references as evidence of
unpatentability:
Buchholz US 5,337,313 Aug. 9, 1994
Tiedemann US 5,914,950 Jun. 22, 1999
Bruckman US 2002/0051466 A1 May 2, 2002
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Applicant’s Admitted Prior Art (AAPA), see Specification,
“BACKGROUND OF THE RELATED ART” section, p. 1, l. 14 through p.
2, l. 23.

THE REJECTIONS
The following rejections are on appeal before us:
1. Claims 1-5, 14, and 16-23 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the teachings of Bruckman in view of
AAPA, and further in view of Tiedemann.
2. Claims 6-13 and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the teachings of Bruckman in view of
AAPA, and further in view of Tiedemann, and further in view of
Buchholz.

Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for the respective details
thereof.
OPINION
Only those arguments actually made by Appellants have been
considered in this decision. It is our view, after consideration of the record
before us, that the evidence relied upon supports the Examiner’s rejection of
the claims on appeal. Accordingly, we affirm.

Claims 1-5, 14, and 16-23
We consider first the Examiner’s rejection of claims 1-5, 14, and 16-
23 as being unpatentable over the teachings of Bruckman in view of AAPA,
and further in view of Tiedemann. Since Appellants’ arguments with
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respect to this rejection have treated these claims as a single group which
stand or fall together, we will select independent claim 1 as the
representative claim for this rejection because it is the broadest independent
claim in this group. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
Appellants argue that Bruckman fails to teach or suggest at least
puncturing and/or repeating channel coded packets to produce a first sub-
packet based on a size of the encoder packet, as set forth in claim 1.
Appellants argue that Bruckman at most discloses the fragmenting (i.e.,
dividing) of packets into pieces based on a transmission rate over a channel,
where the optimal fragment length is based on considerations of overhead
and maximum permitted delay. Appellants argue the actual size of the
datagram received at the transmitter front end merely triggers the
fragmenting of a received datagram and is not used in determining the size
of the packet fragments. Appellants acknowledge that when an input packet
from “sources 26” exceeds a determined fragment size, “fragmenter 28”
divides the packet for transmission into multiple fragments (see Bruckman, ¶
0026, ll. 9-11). Nevertheless, Appellants conclude that the input packet size
is not used in determining the size of the packet fragments (Br. 15-16).
In the Reply Brief, Appellants further argue that the fragmenting of
Bruckman does not constitute the recited “puncturing” (claim 1). Appellants
argue the claimed “puncturing” involves dropping bits (id.). Appellants
assert that Bruckman merely teaches fragmenting or slicing an input
fragment into multiple smaller fragments (Reply Br. 3).
In response, the Examiner agrees that the size of the sub-packets in
Bruckman is based on the transmission frequency. However the Examiner
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maintains that the size of Bruckman’s subpackets (i.e., fragments) is
additionally based on the size of the input encoder packet. The Examiner
points out that when Bruckman’s input packet does not exceed the
determined fragment size, then the size of the output packet is based entirely
on the size of the input packet (Answer 6-7, emphasis added).
Appellants further argue that the cited combination of references does
not teach or suggest “wherein the first data transmission rate is different
from and based on a data rate for transmitting the first encoder subpacket
indicated in a first rate indication message from a receiver,” as set forth in
claim 1 (Br. 17-20).
The Examiner disagrees. The Examiner argues that Tiedemann
teaches the receiver [remote station 6] transmits a maximum supportable
transmission rate to the transmitter [cell] (col. 11, ll. 44-52). The Examiner
also points to Tiedemann’s disclosure at Fig. 8, step 224: i.e., “Assign the
Scheduled Rate Based on the Max Transmission Rate, Preferred Rate, and/or
Requested Rate (from Remote Station).” In particular, the Examiner notes
that the “Scheduled Rate” is based on three factors of which the “Requested
Rate” is only one (Tiedemann, Fig. 8, step 224). Therefore, the Examiner
concludes that the breadth of Tiedemann’s disclosure teaches an
embodiment where the actual first data transmission rate is different from
and based on the “Requested Rate,” 1 i.e., where Tiedemann’s “Requested
Rate” corresponds to the recited “data rate for transmitting … indicated in a
first rate indication message from a receiver.” (Answer 8-9).

1 See Tiedemann’s “Requested Rate” (col. 11, ll. 44-45).

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Lastly, Appellants argue that the Examiner has impermissibly used
hindsight in formulating the rejection (Br. 21).
The Examiner disagrees. The Examiner argues that the cited
combination would have enabled multiple receivers and/or wireless
communications, as taught by Tiedemann (Answer 9).
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.”
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. See In re
Kahn, 441 F.3d 977, 987-988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006); In
re Young, 927 F.2d 588, 591, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991).
We begin our analysis by broadly but reasonably construing the
recited term “puncturing” in a manner consistent with the Specification
(claim 1). “[D]uring examination proceedings, claims are given their
broadest reasonable interpretation consistent with the specification.” In re
Hyatt, 211 F.3d 1367, 1372, 54 USPQ2d 1664, 1667 (Fed. Cir. 2000).
When we look to the Specification for context, we find no support for
Appellants’ argument that “puncturing” requires dropping bits (see Reply
Br. 3). In contrast, the Specification merely discloses puncturing and/or
repeating the channel coded encoder packet to produce an encoder sub-
packet having a size based on a size of the encoder packet and a data
transmission rate at which the encoder sub-packet is to be transmitted
(Specification p. l. l. 32 through p. 2, l. 2). The Specification further
discloses that puncturing and/or repetition techniques are used to obtain
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different size encoder sub-packets wherein the original encoder packet may
be derived from each of the encoder sub-packets (Specification, p. 6, ll. 18-
20). Therefore, we find Appellants are reading limitations into the claims
(i.e., that “puncturing” requires dropping bits). We conclude the scope of the
recited “puncturing” limitation broadly but reasonably encompasses
Bruckman’s input packets that are broken up or fragmented (i.e., punctured)
into multiple fragments or subpackets (see Bruckman, ¶ 0026).
Thus, we find the argued limitations 2 broadly but reasonably
encompass Bruckman’s teaching that an input packet exceeding a
determined fragment size triggers the operation of “fragmenter 28” that
divides the packet into multiple fragments where the fragment size is based
on the variable rate of transmission (¶ 0026). In particular, we agree with
the Examiner’s observation that Bruckman’s output fragments (i.e., sub-
packets) are based entirely on the size of the input packet when the input
packet does not exceed the determined fragment size. We note that
Bruckman also teaches the size of the fragments is based on the variable rate
of transmission over the data channel (¶ 0026). Therefore, we agree with the
Examiner that Bruckman teaches and/or suggests: “puncturing and/or
repeating the channel coded encoder packet to produce a first encoder sub-
packet having a first size based on a size of the encoder packet and a first
data transmission rate at which the first encoder sub-packet is to be
transmitted” (claim 1).

2 “puncturing and/or repeating the channel coded encoder packet to
produce a first encoder sub-packet having a first size based on a size of the
encoder packet and a first data transmission rate at which the first encoder
sub-packet is to be transmitted” (claim 1).
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We further agree with the Examiner that Tiedemann teaches and/or
suggests the argued limitations of: “wherein the first data transmission rate is
different from and based on a data rate for transmitting the first encoder
subpacket indicated in a first rate indication message from a receiver” (claim
1). As pointed out by the Examiner, we note that Tiedemann teaches the
receiver (i.e., remote station 6) transmits a maximum supportable
transmission rate to the transmitter (i.e., cell) (col. 11, ll. 44-52). We find
this portion of Tiedemann teaches the instant claimed “first rate indication
message from a receiver” where Tiedemann’s “remote station 6”
corresponds to the claimed receiver (see Tiedemann, col. 11, ll. 44-45).
As also pointed out by the Examiner, we note that Tiedemann teaches
the assigned “Scheduled Rate” is based on three factors: e.g., “Assign the
Scheduled Rate Based on the Max Transmission Rate, Preferred Rate, and/or
Requested Rate (from Remote Station)” See Tiedemann, Fig. 8, step 224,
also see col. 12, ll. 1-3. Therefore, we find the breadth of Tiedemann’s
disclosure teaches and/or suggests an embodiment where the actual first data
transmission rate 3 is different from and based on a date rate for transmitting
… indicated in a first rate indication message from a receiver, where the
recited “first rate indication message from a receiver” corresponds to
Tiedemann’s “Requested Rate” (claim 1, see also Answer 8-9, see also
footnote 1 supra).
Motivation
We do not agree with Appellants’ assertion that the Examiner has
impermissibly used hindsight in formulating the rejection. We note that

3 See Tiedemann’s “Scheduled Rate,” Fig. 8, step 224, col. 12, ll. 1-3.
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Bruckman, AAPA, and Tiedemann are each broadly directed to the
telecommunications art and, more particularly, to methods of sending and
receiving data on a telecommunications network. We specifically note that
Tiedemann’s CDMA system enables both voice and data communications
between users (col. 1, ll. 19-21). Therefore, we find the cited references are
analogous by virtue of being from the same field of endeavor as the instant
invention (i.e., being broadly directed to data transmission over a
telecommunications network). See In re Kahn, 441 F.3d 977, 987, 78
USPQ2d 1329, 1336 (Fed. Cir. 2006) (“The analogous-art test requires that
the Board show that a reference is either in the field of the applicant's
endeavor or is reasonably pertinent to the problem with which the inventor
was concerned in order to rely on that reference as a basis for rejection.”)
(internal citation omitted).

Furthermore, our reviewing court has recently reaffirmed:

[A]n implicit motivation to combine exists not only when a suggestion
may be gleaned from the prior art as a whole, but when the
‘improvement’ is technology-independent and the combination of
references results in a product or process that is more desirable, for
example because it is stronger, cheaper, cleaner, faster, lighter,
smaller, more durable, or more efficient … In such situations, the
proper question is whether the ordinary artisan possesses knowledge
and skills rendering him capable of combining the prior art
references.

DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464
F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006) (emphasis in
original).
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Here, we find the ordinarily skilled artisan who possessed knowledge
and skills relating to telecommunications networks would have been capable
of combining Bruckman’s dynamic packet fragmentation system with
Tiedemann’s CDMA network in the manner suggested by the Examiner for
the purpose of realizing a faster and more efficient data communications
network. Furthermore, we find Tiedemann explicitly discloses the
advantage of assigning the maximum scheduled transmission rate that can be
used by each remote station for high speed data transmission on the reverse
link (col. 7, 29-32).
We need not reach the issue of whether the Examiner has established
a proper motivation to combine Bruckman and AAPA under §103, because
we find that Bruckman, as modified by Tiedemann, teaches or suggests all
the limitations of representative claim 1, as discussed supra. We find that
the teachings of AAPA are cumulative to Tiedemann and unnecessary to
support the rejection. It is proper to affirm a rejection based upon the
teachings of a lesser number of references than those relied upon by the
Examiner. In affirming a multiple reference rejection under 35 U.S.C.
§ 103, the Board may rely on one reference alone in an obviousness
rationale without designating it as a new ground of rejection. In re Bush,
296 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA 1961); In re Boyer, 363
F.2d 455, 458, n.2, 150 USPQ 441, 444, n.2 (CCPA 1966).
Therefore, for at least the aforementioned reasons, we conclude the
Examiner has met the burden of establishing a prima facie case of
obviousness. Accordingly, we will sustain the Examiner’s rejection of
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representative claim 1 as being unpatentable over Bruckman in view of
Tiedemann.
Pursuant to 37 C.F.R. § 41.37(c)(1)(vii), we have decided the appeal
with respect to claims 2-5, 14, and 16-23 on the basis of the selected claim
alone. Therefore, we will sustain the Examiner’s rejection of these claims as
being unpatentable over Bruckman in view of Tiedemann for the same
reasons discussed supra with respect to representative claim 1.
Claims 6, 7, 9-11, 13, and 24
We consider next the Examiner’s rejection of claims 6, 7, 9-11, 13,
and 24 as being unpatentable over the teachings of Bruckman in view of
AAPA, and further in view of Tiedemann, and further in view of Buchholz.
Since Appellants’ arguments with respect to this rejection have treated these
claims as a single group which stand or fall together, we will select
dependent claim 10 as the representative claim for this rejection. See 37
C.F.R. § 41.37(c)(1)(vii)(2004).
Appellants argue that even if Bruckman, AAPA, Tiedemann, and
Buchholz could be properly combined, Buchholz would not make up for the
deficiencies of Bruckman, AAPA, and Tiedemann (Br. 21-22).
We see no deficiencies with respect to Bruckman as modified by
Tiedemann, as discussed supra. We have found the teachings of AAPA are
cumulative to Tiedemann and unnecessary to support the rejection, as also
discussed supra. We note that Appellants have not presented any
substantive arguments directed separately to the patentability of claims 6, 7,
9-11, 13, and 24. In the absence of a separate argument with respect to the
dependent claims, those claims stand or fall with the representative
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independent claim. See In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089,
1091 (Fed. Cir. 1991). Therefore, we will sustain the Examiner’s rejection
of these claims as being unpatentable over Bruckman in view of Tiedemann,
and further in view of Buchholz for the same reasons discussed supra with
respect to the rejection of independent claim 1 as being unpatentable over
Bruckman in view of Tiedemann.

Claims 8 and 12
Lastly, we consider the Examiner’s rejection of claims 8 and 12 as
being unpatentable over the teachings of Bruckman in view of AAPA, and
further in view of Tiedemann, and further in view of Buchholz.
Appellants argue the Examiner’s alleged taking of “Official Notice”
fails to provide the necessary motivation for incorporating what the
Examiner considers as “well known” into the system disclosed by Bruckman
(Br. 22).
Contrary to Appellants’ arguments, we find the Examiner has not
taken “Official Notice” in formulating the rejections of claims 8 and 12 (see
Answer 5, see also MPEP § 2144.03). In contrast, the Examiner, as finder
of fact, has found Bruckman teaches transmitting fragments based upon their
individual transmission rates (see Answer 5). The Examiner has further
found that Bruckman expressly teaches modulating the data (see Bruckman,
¶ 0028, i.e., “modems”). The Examiner points out that “modem” stands for
modulator/demodulator (see Answer 5).
Therefore, we see no deficiencies with respect to Bruckman as
modified by Tiedemann, as discussed supra. We have found the teachings
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of AAPA are cumulative to Tiedemann and unnecessary to support the
rejection, as also discussed supra. Accordingly, we will sustain the
Examiner’s rejection of claims 8 and 12 as being unpatentable over
Bruckman in view of Tiedemann, and further in view of Buchholz for the
same reasons discussed supra with respect to the rejection of independent
claim 1 as being unpatentable over Bruckman in view of Tiedemann.

DECISION
In summary, we have sustained the Examiner’s rejection of all claims
on appeal. Therefore, the decision of the Examiner rejecting claims 1-14
and 16-24 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).
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AFFIRMED.

ELD

HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 8910
RESTON VA 20195

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