Ex Parte Drozt et al

Patent Trial and Appeal Board

Feb 29, 2016

12981226 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/981,226 12/29/2010
22917 7590 03/02/2016
MOTOROLA SOLUTIONS, INC.
IP Law Docketing
1301 EAST ALGONQUIN ROAD
IL02 5th Floor - SHS
SCHAUMBURG, IL 60196
FIRST NAMED INVENTOR
Peter M. Drozt
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CM13705 6160
EXAMINER
HUQ, OBAIDUL
ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
03/02/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
USAdocketing@motorolasolutions.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER M. DROZT,
MICHAEL F. KORUS, JAMES E. MATHIS, and
DONALD G. NEWBERG
Appeal2014-001780
Application 12/981,226
Technology Center 2400
Before MAHSHID D. SAADAT, ST. JOHN COURTENAY III, and
MATTHEW J. McNEILL, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-20, which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Invention
The claimed invention on appeal relates to "transporting a plurality of
media streams over a shared Multimedia Broadcast/Multicast Service
(MBMS) bearer in a 3rd Generation Partnership Project (3GPP) compliant
system." (Spec. 1, 11. 17-20).
Appeal2014-001780
Application 12/981,226
Illustrative Claims
1. A method for transporting a plurality of media streams
over a shared Multimedia Broadcast/Multicast Service (MBMS)
bearer in a 3rd Generation Partnership Project (3GPP) compliant
system, the method comprising:
an infrastructure device coupled to the 3GPP compliant
system and using application layer processing to perform:
receiving a first request to transmit a first media stream to
a first communication group;
identifying a shared MBMS bearer in a first 3GPP MBMS
service area that is already transporting a second media stream to
a second communication group;
determining whether the shared MBMS bearer has
sufficient capacity to transport both the first media stream and
the second media stream simultaneously;
when the shared MBMS bearer has sufficient capacity,
simultaneously sending both the first media stream and the
second media stream on the shared MBMS bearer.
(Emphasis added for contested limitation).
18. A method for receiving a media stream that is being
simultaneously transported with at least one other media stream
over a shared Multimedia Broadcast/Multicast Service (MBMS)
bearer in a 3rd Generation Partnership Project (3GPP) compliant
system, the method comprising:
a user equipment (UE) that 1s a member of a first
communication group performing;
[L 1] receiving a MEMS bearer identifier that identifies a
shared 3GPP MEMS bearer that is used to simultaneously
transport a combined media stream comprising a first media
stream of the first communication group and a second media
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Application 12/981,226
stream of a second communication group, wherein the nrst
media stream is identified by a first communication group
identifier and the second media stream is identified by a second
communication group identifier;
locating the shared 3GPP MBMS bearer using the MBMS
bearer identifier;
[L2] differentiating the first media stream from the second
media stream on the 3GPP MEMS bearer using the first
communication group identifier in order to process the first
media stream.
(Bracketed matter and emphasis added for contested limitations L 1 and L2).
Rejections
A. Claims 1-3, 8-10, 14--17, and 20 are rejected under 35 U.S.C. § 103(a)
over the combined teachings and suggestions of Amirjoo (US
2008/0102811 Al, pub. May 1, 2008), and Rey (US 2008/0212583 Al,
pub. Sept. 4, 2008). (Final Act. 3-12).
B. Claim 4 is rejected under 35 U.S.C. § 103(a) over the combined
teachings and suggestions of Amirjoo, Rey, and Nebat (US
2012/0230240 Al, pub. Sept. 13, 2012). (Final Act. 12-13).
C. Claims 5-7 are rejected under 35 U.S.C § 103(a) over the combined
teachings and suggestions of Amirjoo, Rey, Nebat, and Gao (US
2007/0281722 Al, pub. Dec. 6, 2007). (Final Act. 13-15).
D. Claim 11 is rejected under 35 U.S.C. § 103(a) over the combined
teachings and suggestions of Amirjoo, Rey, and Fukunaga (US
2009/0245155 Al, pub. Oct. 1, 2009). (Final Act. 15-16 ).
E. Claims 12 and 13 are rejected under 35 U.S.C § 103(a) over the
combined teachings and suggestions of Amirjoo, Rey, Fukunaga, and
Becker (US 2010/0061308 Al, pub. Mar. 11, 2010). (Final Act. 16-18).
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Appeal2014-001780
Application 12/981,226
F. Claim 18 stands rejected under 35 U.S.C. § 103(a) over the combined
teachings and suggestions of Amirjoo and Fukunaga. (Final Act. 18-21 ).
G. Claim 19 stands rejected under 35 U.S.C. § 103(a) over the combined
teachings and suggestions of Amirjoo, Fukunaga, and Rey. (Final Act.
21-22).
H. Claim 4 stands rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim
the subject matter which the inventor regards as the invention. (Final
Act. 2).
ANALYSIS
Rejection A under§ 103(a) of Claims 1-3, 8-10, 14-17, and 20
Issue: Under§ 103(a), did the Examiner err in finding Amirjoo
teaches or suggests "using [the] application layer" within the meaning of
independent claims 1 and 20?
We begin by broadly but reasonably construing "application layer
processing" as defined in Appellants' Specification:
As used herein, the application layer is defined as the highest
layer in both the OSI (Open Systems Interconnection)
networking model in the Transport Control Protocol (TCP)/IP
protocol stack, e.g., as described in RFC 1122 dated October
1989, and any subsequent revisions. In OSI, the Application
layer (layer 7) is right above the presentation layer (layer 6); and
in the TCP/IP stack, the application layer (layer 4 in RFC 1122)
is right above the transport layer (layer 3).
(Spec. 13, 11. 23-29) (Emphasis added).
Given the reference to the well-known OSI networking model (id.),
we find Appellants' definition comports with the ordinary and customary
meaning the claim term "application layer processing" would have had to a
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Appeal2014-001780
Application 12/981,226
person of ordinary skill in the art at the time of the invention. (Claims 1,
20).
Appellants principally contend, inter alia:
Amirjoo merely teaches, and is merely contended to teach, "a
radio access network [that] facilitates transmission of [an MBMS
service] to plural user equipment units served by a radio base
station." A radio access network (RAN) does not operate at the
application layer, and a facilitation of transmission of an MBMS
service to multiple user equipment units (UEs) by a RAN is not
application layer processing. Therefore, Amirjoo does not teach
the features of claims 1 and 20 being performed using
application layer processing as recited in those claims.
(App. Br. 10).
The Examiner disagrees, and finds: "Amirjoo clearly discloses using
same IUB user plane resources (emphasis added) (i.e., application layer) for
multiple cells in a Node B to modify [the] Common Transport Channel
Setup procedure (i.e., application layer processing)." (Ans. 21, pointing to
Amirioo ~ 54): see also Final Act. 21) .
.J II / / /
Appellants further respond in the Reply Brief (7):
The Iub interface is an internal Radio Access network (RAN)
interface that connects the Radio Network Controller (RNC) and
the Node B. As is known in the art, the Iub interface is a radio
network/transport !aver interface. Such layers are below the
application layer. The reference to a the Iub being a 'user plane
resource' merely is a reference to the fact that the Iub interface
can be employed to convey control signaling (in which event it
may be considered to be a control plane resource) or to convey
user data (in which event it may be considered to be a user plane
resource). This is not intended to make the Iub interface
something it is not, that is, application layer processing.
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Application 12/981,226
We agree with Appellants (App. Br. 10), because the cited evidence
(Amirjoo i-f 13, 11. 1--4, i-f 54; Fig. 1) does not support the Examiner's
findings. (Ans. 21; Final Act. 4--5).
The teachings of Amirjoo (i-fi-f 26, 54, 68, cited by the Examiner, Final
Act. 4--5; Ans. 21), are directed to the transport layer, which is below the
application layer in the OSI networking model. (See, e.g., Amirjoo i-f 26;
discussing utilization of a "transport" bearer; id. i-f 28, using a "common
transport channel ID" or "a transport layer address" to identify a channel;
and id. i-f 68, determining whether to share "the transport bearer 60 for two or
more cells").
The Examiner relies on the secondary Rey reference for teaching
"simultaneously sending both the first media stream and the second media
stream on the shared MBMS bearer" (claim 1, see also commensurate
language recited in claim 20). Therefore, the Examiner has not shown that
Rey overcomes the aforementioned deficiency regarding the contested
"application layer processing" as recited in both independent claims 1 and
20 (Emphasis added).
For these reasons, on this record, we are persuaded the Examiner
erred. Accordingly, we reverse rejection A under § 103 of independent
claims 1 and 20. Because we have reversed the Examiner's rejection of
independent claim 1, we also reverse rejection A of associated dependent
claims 2-3, 8-10, and 14--17. (Independent claim 20 has no dependent
claims).
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Appeal2014-001780
Application I2/98I,226
Rejections B-E of claims 4-7and11-13 under§ 103
Because the Examiner has not shown the additional cited secondary
references overcome the aforementioned deficiency regarding the rejection
of independent claim I, we reverse rejections B-E of claims 4--7 and I I-I 3,
each depending directly or indirectly from claim I.
Rejection F of Independent Claim 18 under§ 103
Claim I 8 recites, in pertinent part, contested limitation LI:
[LI] receiving a MBMS bearer identifier that identifies a
shared 3GPP MBMS bearer that is used to simultaneously
transport a combined media stream comprising a first media
stream of the first communication group and a second media
stream of a second communication group ....
Appellants contend Amirjoo fails to teach limitation LI, because:
"paragraph 006 I merely discloses a sharing of a common transport channel
for conveying of a single stream of data for a single MEMS service to
multiple user equipment, which at best may be equated to a single
communication group." (App. Br. I3).
The Examiner maps the first and second communication groups of
limitation LI to Amirjoo differently, finding each cell is a separate
communication group. (Ans. 25). Thus, although Amirjoo discloses "a
single stream of data for a single MBMS" entering the radio base station, the
Examiner finds Amirjoo teaches the radio base station duplicates the single
stream into multiple streams, one for each cell. (See Final Act. I 9, citing
Amirjoo i-f 62: "the radio network controller 26 uses the already-established
channel as the shared common transport bearer for transmitting Multimedia
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Appeal2014-001780
Application 12/981,226
Broadcast/ivlulticast Service user data to user equipment units situated in
plural cells served by the radio base station.").
Appellants have not rebutted the Examiner's specific finding that each
cell in Amirjoo is a separate communication group. (Ans. 25). Moreover,
claim 18 is silent regarding any requirement that the first and second media
streams contain different data. Therefore, we find Appellants' arguments
unpersuasive regarding limitation LI of claim 18.
Claim 18 further recites, in pertinent part, contested limitation L2:
[L2] differentiating the first media stream from the second
media stream on the 3GPP MBMS bearer using the first
communication group identifier in order to process the first
media stream.
Referring to Fukunaga, as applied to limitation L2, Appellants
contend:
Nothing [in Fukunaga] teaches or implies simultaneously
transporting a combined media stream for multiple
communication groups on a same MBMS bearer, and in fact
paragraph 0053 of Fukunaga explicitly states that the multiple
user equipment all receive a same MBMS service .... [I]nstead,
this is a separate use of a same resource at each of two different
base stations for two different purposes.
(App. Br. 13-14).
We find this argument (i.e., that the two streams use a single
resource), is similar to the argument previously advanced regarding
limitation L 1. As discussed above, nothing in claim 18 requires the first and
second media streams to contain different data or services. Therefore,
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Appeal2014-001780
Application 12/981,226
Appellants' arguments are unpersuasive because they are not commensurate
with the broader scope of claim 18. 1
Moreover, the Examiner clearly mapped the recited "communication
group identifier" of limitation L2 to Fukunaga' s identifiers:
Fukunaga clearly discloses a multi-cell/multicast coordination
entity (MCE) that adds information items such as "MBSRN Area
ID" which is an ID for identifying an MBSFN area (i.e., a group
identifier), [and] a "Service ID" which is an ID for identifying an
MBMS service (channel) to a message directed to M2 interface
to inform the wireless base station of the different resources (i.e.,
various identifiers used in the message differentiates MBMS
media stream from different MBSFN area (i.e., from [a] different
group with [a] corresponding MBSFN Area ID)).
(Ans. 26-27).
Because Appellants have failed to rebut the Examiner's specific
findings, we also find Appellants' arguments unpersuasive regarding
limitation L2 of claim 18.
Therefore, on this record, and by a preponderance of the evidence, we
are not persuaded of error regarding the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness for claim 18.
Accordingly, we sustain rejection F of independent claim 18.
Rejection G of Claim 19 under§ 103
Appellants do not advance separate substantive arguments and
supporting evidence demonstrating error regarding the Examiner's rejection
G of dependent claim 19. Arguments not made are considered waived. See
1 See In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (the "name of
the game is the claim" and unclaimed features cannot impart patentability to
claims).
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Application 12/981,226
37 C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain rejection G of dependent
claim 19.
Rejection Hof Claim 4 under 35 U.S. C. § 112, second paragraph
In the Final Office Action (2), the Examiner rejected claim 4 as being
indefinite for lack of proper antecedent basis for the recited "first media
steam." (Emphasis added). This is a minor spelling/typographical error
correctable by amendment, as Appellants clearly intended to recite "the first
media stream" instead of "the first media steam." (Claim 4, line 2, emphasis
added). Although the Briefs are silent regarding this rejection, rejection H
has not been expressly withdrawn by the Examiner, and therefore is before
us on appeal. See 37 C.F.R. § 41.31(c). Arguments not made are considered
waived. See 37 C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain rejection H
of dependent claim 4.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer (e.g., the
argument concerning the MBSFN Area ID and Service ID, Reply Br. 12),
we note arguments raised in a Reply Brief that were not raised in the Appeal
Brief or are not responsive to arguments raised in the Examiner's Answer
will not be considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
Conclusion
On this record, and by a preponderance of evidence, we are persuaded
the Examiner erred in rejecting claims 1-17 and 20, under§ 103(a)
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Application 12/981,226
rejections A-E, for at least the reasons argued on page 10 of the Appeal
Brief, as discussed above.
However, for the reasons discussed above, we are not persuaded the
Examiner erred in rejecting claims 18 and 19 under§ 103(a) rejections F and
G, respectively. Nor do we find the Examiner erred regarding rejection Hof
claim 4, under§ 112, second paragraph, which is directed to a
spelling/typographical error correctable by amendment.
DECISION
We reverse the Examiner's decision rejecting claims 1-17 and 20
under§ 103(a).
We affirm the Examiner's decision rejecting claims 18 and 19 under
§ 103(a).
We affirm the Examiner's decision rejecting claim 4 under§ 112,
second paragraph.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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