Ex Parte Godor et al

Patent Trial and Appeal Board

Jan 26, 2017

12739440 (P.T.A.B. Jan. 26, 2017)

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.
4015-6902/P24548-US2 1512
EXAMINER
BOKHARI, SYEDM
ART UNIT PAPER NUMBER
2473
MAIL DATE DELIVERY MODE
12/739,440 04/23/2010
24112 7590 01/27/2017
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
Istvan Godor
01/27/2017 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 ISTVAN GODOR, AKOS KOVACS, and ANDRAS RACZ
Appeal 2016-003881
Application 12/739,440
Technology Center 2400
Before ALLEN R. MacDONALD, JON M. JURGOVAN and PHILLIP A.
BENNETT, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-003881
Application 12/739,440
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 50—98. Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
Exemplary Claims
Exemplary claims 50 and 51 under appeal read as follows (emphasis
added):
50. An Evolved Universal Terrestrial Radio Access Network
(E-UTRAN) system transmitting Multimedia Broadcast Multicast
Service (MBMS) data, the system comprising:
a base station for transmitting the MBMS data as layered data
comprising a lower layer in a first transmit stream and a
number of higher enhancements layers in a second
transmit stream different from the first transmit stream;
and
signaling circuitry for transmitting control information
comprising signaling that binds together the different
layers transmitted in the first and second transmit streams
and belonging to the same MBMS service enabling a
User Equipment (UE) to reconstruct the layered MBMS
data.
51. The system according to claim 50, further comprising an
entity for indicating to which layer data transmitted belongs.
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Application 12/739,440
Rejections
1. The Examiner rejected claims 50, 64, 78, and 92 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Malladi (US
2010/0322350 Al; Dec. 23, 2010) and Petrovic et al. (US 2007/0053336 Al;
Mar. 8, 2007).1
2. The Examiner rejected claims 51—53, 65—67, 79—81, 93, and 94
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Malladi, Petrovic, and Lee et al. (US 2012/0127909 Al; May 24, 2012).2
3. The Examiner rejected claims 54, 68, 82, and 95 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Malladi, Petrovic,
Lee, and Yi et al. (US 2010/0142429 Al; June 10, 2010).3
4. The Examiner rejected claims 55, 56, 69, 70, 83, 84, and 96 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Malladi,
Petrovic, and Vartiainen et al. (US 2008/0170541 Al; July 17, 2008).4
1 Separate patentability is not argued for claims 64, 78, and 92. Except for
our ultimate decision, these claims are not discussed further herein.
2 Separate patentability is not argued for claims 65—67, 79-81, 93, and 94.
As to separately argued claims 52 and 53, our decision as to claim 51 is
determinative as to the rejection of claims 52 and 53. Except for our
ultimate decision, claims 52, 53, 65—67, 79-81, 93, and 94 are not discussed
further herein.
3 Separate patentability is not argued for claims 68, 82, and 95. Except for
our ultimate decision, these claims are not discussed further herein.
4 Separate patentability is not argued for claims 55, 69, 70, 83, 84, and 96.
Therefore, the rejection of claims 55, 69, 83, and 96 turns on our decision as
to claim 50. Claims 70 and 84 stand with claim 56. Except for our ultimate
decision, claims 55, 69, 70, 83, 84, and 96 are not discussed further herein.
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Application 12/739,440
5. The Examiner rejected claims 61, 62, 75, 76, 89, 90, and 98 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Malladi,
Petrovic, Yi, and Huang et al. (US 2008/0261531 Al; Oct. 23, 2008).5
6. The Examiner rejected claims 57—60, 63, 71—74, 77, 85—88, 91, and
97 under 35 U.S.C. § 103(a) as being unpatentable over Malladi and
Petrovic in various combinations with other references.6
Appellants ’ Contentions
1. Appellants contend that the Examiner erred in rejecting claim 50
under 35 U.S.C. § 103(a) because:
Malladi does mention the terms “base layer” and “enhancement
layer” when discussing a signal However, it is important to note
the context in which Malladi uses these terms — and they are not
used in the same context as the “lower layer” and “a number of
higher enhancement layers” recited in claim 50. In fact, as
evidenced by the following passage, Malladi assigns completely
different meanings to the terms “base layer” and “enhancement
layer.”
App. Br. 5.
Malladi defines the so-called “robustness” of a signal as a
function of its decoding characteristics (i.e., may be decoded at
lower SNR and lower CII ratios of the signal), and then uses the
terms “base layer” and “enhancement layer” to distinguish
between signals that are “more robust” and “less robust,”
5 Separate patentability is not argued for claims 61, 75, 76, 89, 90, and 98.
Therefore, the rejection of claims 61, 75, 89, and 98 turns on our decision as
to claim 50. Claims 76 and 90 stand with claim 62. Except for our ultimate
decision, claims 61, 75, 76, 89, 90, and 98 are not discussed further herein.
6 Separate patentability is not argued for claims 57—60, 63, 71—74, 77, 85—
88, 91, and 97. Thus, the rejections of these claims turns on our decision as
to the claim 50. Except for our ultimate decision, these claims are not
discussed further herein.
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Application 12/739,440
respectively. Compare this with the terms “lower layer” and
“enhancement layers” recited in claim 50. Specifically, the
claimed “lower layer” carries the minimum information required
by a decoder to provide a minimum quality for the receivers,
while each of the enhancement layers carry information that
provides quality refinement for the stream in each lower layer.
Spec., p. 1, II. 20-23. Indeed, whatever context Malladi
discloses has nothing to do with the claim terms.
App. Br. 5—6.
2. Appellants contend that the Examiner erred in rejecting claim 50
under 35 U.S.C. § 103(a) because:
There is no mention whatsoever in Malladi of the base station
transmitting a first transmit stream in a base layer that carries the
minimum information required by a decoder to provide a
minimum quality for a receiver, and transmitting a second
transmit stream in an enhancement layer that carries information
providing quality refinement for the stream in the base layer.
App. Br. 7.
3. Appellants contend that the Examiner erred in rejecting claim 50
under 35 U.S.C. § 103(a) because:
Regardless of what Petrovich may or may not teach with respect
to “a number of enhancement layers,” Petrovich does not teach
or suggest “a base station for transmitting the MBMS data as
layered data comprising a lower layer in a first transmit stream
and a number of higher enhancements layers in a second transmit
stream different from the first transmit stream.'1'’ as recited in
claim 50.
App. Br. 8.
4. Appellants contend that the Examiner erred in rejecting claim 50
under 35 U.S.C. § 103(a) because:
[Sjince both references alone fail to teach or suggest the same
claim limitation, the combination of these two references
necessarily fails to teach or suggest this claim limitation. Indeed,
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Application 12/739,440
there is no reason for one of ordinary skill in the art to combine
two references if such a combination would not produce the
claimed method.
App. Br. 8.
5. Appellants contend that the Examiner erred in rejecting claim 50
under 35 U.S.C. § 103(a) because:
[T]he Office Action is also incorrect in asserting that Malladi
discloses the “control information” recited in claim 50. As
stated above, Malladi simply uses the terms base and
enhancement layers to distinguish between signals as a function
of its decoding characteristics (i.e., the “base” or “more robust”
signals may be decoded at lower SNR and lower CII ratios of the
signal). There is no mention whatsoever in Malladi of control
information that binds the disclosed layers together because such
is not required in Malladi. That is, there is no need for Malladi
to bind together the two signals, as claimed, because neither
signal complements the other in terms of enhancing the quality
of information in the other signal.
In prosecution, the Examiner specifically identified Figure
6 and its corresponding paragraphs [0141-0147 and 0152] as
disclosing this claimed aspect. Appellant respectfully disagrees,
however, as the rejection misinterprets this passage. This section
of Malladi discusses single frequency networks and hierarchical
modulation. It says nothing whatsoever about signaling circuitry
that transmits control information.
App. Br. 9, emphases added.
6. Appellants contend that the Examiner erred in rejecting claim 50
under 35 U.S.C. § 103(a) because:
Petrovich fails to remedy Malladi because it too fails to teach or
suggest “signaling circuitry for transmitting control information
comprising signaling that binds together the different layers
transmitted in the first and second transmit streams and
belonging to the same MBMS service enabling a User
Equipment (UE) to reconstruct the layered MBMS data.”
App. Br. 9-10, emphasis omitted.
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7. Appellants contend that the Examiner erred in rejecting claim 51
under 35 U.S.C. § 103(a) because:
As noted in the Office Action, Lee teaches, in paragraphs [0045
and 0046], an MBMS notification message that may be
transmitted to a UE through an L1/L2 control information region,
and through a data region. The Examiner asserts that by sending
this notification message through the L1/L2 layer, Lee teaches
an entity indicating to which layer data transmitted belongs, as
claimed.
However, scrutiny of the cited passages, as well as the rest
of Lee, reveals that the disclosed notification messages contain
no indication whatsoever as to which layer transmitted data
belongs.
App. Br. 12.
8. Appellants contend that the Examiner erred in rejecting claim 54
under 35 U.S.C. § 103(a) because “Yi does not teach or suggest that the
RNTI indicates ‘to which layer transmitted data belongs.’” App. Br. 15.
9. Appellants contend that the Examiner erred in rejecting claim 56
under 35 U.S.C. § 103(a) because:
In the Office Action, the Examiner equates the disclosed
“transmission pattern” of Vartiainen to the claimed “transport
format.” However, the two are not the same. The specification
clearly defines what is meant by the “transport format” of claim
56 (“it is possible to take into account the radio channel
conditions of the receiving UEs when deciding which
components of the media stream to transmit and what
transmission parameters to use such as transmission power,
coding, etc.”). Spec., p. 5, II. 9—12. Vartiainen, in contrast,
discloses that the disclosed “transmission pattern” relates to the
frequency of scheduling. [Vartiainen, | [0065]].
App. Br. 17.
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10. Appellants contend that the Examiner erred in rejecting claim
62 under 35 U.S.C. § 103(a) because:
[N]one of [the Examiner identified] so-called “advantages” [of
Yi] teach or suggest a system “configured to transmit higher
layer media components in single cell Point to Multipoint (PTM)
mode based on any one or more of the traffic load in a given base
station, UE feedback information, or the interference caused to
neighbor cells,” as recited in claim 62. In fact, the entirety of Yi
appears conspicuously silent regarding any of these aspects.
App. Br. 19.
Issues on Appeal
Did the Examiner err in rejecting claims 1, 7, 9, 11, and 16 as being
obvious?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments (Appeal Brief) that the Examiner has erred.
As to Appellants’ above contentions 7, 8, and 10, respectively
covering claims 51, 54, and 62, we agree. We are unable to find support in
Lee and Yi for the Examiner’s findings. We conclude, consistent with
Appellants’ argument, there is insufficient articulated reasoning to support
the Examiner’s findings. Therefore, we conclude that there is insufficient
articulated reasoning to support the Examiner’s final conclusions that claims
51, 54, and 62 would have been obvious to one of ordinary skill in the art at
the time of Appellants’ invention.
As to Appellants’ above contention 1, covering claim 50, we disagree.
First, the Examiner correctly points out (Ans. 37) that “the claim language
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does not recite the context of the terms lower layer and higher enhancement
layers.” Therefore, the argument is not commensurate with the scope of the
claim. Second, Appellants are mistaken in arguing “Malladi assigns
completely different meanings to the terms ‘base layer’ and ‘enhancement
layer.’” App. Br. 5. Appellants point out that Malladi’s “base layer” and
“enhancement layer” are directed to “robustness” of a signal as a function of
its decoding characteristics including signal to noise ratio (SNR). Id.
Appellants then point out that their Specification relates “base layer” and
“enhancement layer” are directed to “quality.” Appellants overlook that
SNR is a measure of signal quality and therefore Malladi does not assign
completely different meanings to the terms.
As to Appellants’ above contention 2, Appellants repeat the “quality”
argument, and we reach the same result for the reasons above as to
contention 1.
As to Appellants’ above contentions 3 and 6, Appellants are attacking
Petrovic singly for lacking a teaching (“a base station ...” and “signaling
circuitry . . .”) that the Examiner relied on a combination of references to
show. Particularly, the Examiner points to Malladi for these limitations.
Final Act. 3. It is well established that one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413 (CCPA 1981); In
re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). Appellants argue findings
the Examiner never made. This form of argument is unavailing to show
Examiner error.
As to Appellants’ above contention 4, Appellants rely on contentions
1—3 as the sole foundation for asserting “there is no reason for one of
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ordinary skill in the art to combine two references.” As we disagree with
Appellants’ contentions 1—3, we similarly disagree with Appellants’
contention 4.
As to Appellants’ above contention 5, we disagree. First, Appellants
are mistaken in asserting “[tjhere is no mention whatsoever in Malladi of
control information that binds the disclosed layers together because such is
not required in Malladi.” App. Br. 9. Appellants’ Specification at page 4,
lines 13—15, states “the control information may contain, the session start
and signaling that binds together the transmission of the different layers
belonging to the same MBMS service . . .” Emphasis added. Malladi
explicitly states that “[t]he receiver may attempt to decode the second data
stream from both the first enhancement layer and the second base layer.” |
154. Further, Malladi states that such decoding is controlled by instructions
stored at the user equipment. | 69. We deem Appellants’ claimed binding
to require no more than what is taught by Malladi.
Second, to the extent that Appellants are arguing that the prior art fails
to teach transmitting the control information to the user equipment, we point
out that Appellants’ Background indicates that transmission of control
information is known in the art. Spec. 3 (“The MCCH channel carries
control information necessary for the reception of the MTCH channel. The
MCCH includes session/service identities for sessions to be started, i.e.,
announcing service starts, identities for ongoing services, scheduling
information etc.”).
As to Appellants’ above contention 9, we disagree. The Examiner’s
rejection cites to Vartiainen at paragraphs 73—74 as teaching “whether to
modify the transport format (transmission pattern).” Final Act. 20.
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Appellants contention points to Vartiainen at paragraph 65 to show that
adjusting the transmission pattern is not adjusting the “transport format” as
claimed because Appellants’ Specification limits the format to transmission
parameters such as transmission power, coding, etc. Appellants overlook
that Vartiainen at paragraphs 73—74 (cited by the Examiner) is directed
specifically to modifying the “transmit power.” Vartiainen at paragraphs
73—74 speaks for itself as teaching the claimed modifying the transport
format (e.g., “transmission power”) as construed by Appellants in their
argument. The Examiner’s typographical error in the rejection of
substituting the phrase “transmission pattern” for the phrase “transmission
power” does not negate the explicit teaching of Vartiainen at paragraphs 73—
74.
CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 50, 55—61, 63,
64, 69-75, 77, 78, 83—89, 91, 92, 96—98 as being unpatentable under
35 U.S.C. § 103(a).
(2) Appellants have established that the Examiner erred in rejecting
claims 51—54, 62; 65—68, 76; 79-82, 90; 93—95 as being unpatentable under
35 U.S.C. § 103(a).
(3) Claims 51—54, 62; 65—68, 76; 79-82, 90; 93—95 have not been
shown to be unpatentable.
(4) Claims 50, 55-61, 63, 64, 69-75, 77, 78, 83-89, 91, 92, 96-98
are not patentable.
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Application 12/739,440
DECISION
The Examiner’s rejections of claims 50, 55—61, 63, 64, 69-75, 77, 78,
83—89, 91, 92, 96—98 as being unpatentable under 35 U.S.C. § 103(a) are
affirmed.
The Examiner’s rejections of claims 51—54, 62, 65—68, 76, 79-82, 90,
and 93—95 as being unpatentable under 35 U.S.C. § 103(a) are 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)(l)(iv).
AFFIRMED-IN-PART
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