Ex Parte Guo et al

Patent Trial and Appeal Board

Aug 21, 2014

11744531 (P.T.A.B. Aug. 21, 2014)

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.
11/744,531 05/04/2007 Katherine H. Guo Guo 23-89-72
(LCNT/128962
8982
46363 7590 08/21/2014
WALL & TONG, LLP/
ALCATEL-LUCENT USA INC.
25 James Way
Eatontown, NJ 07724
EXAMINER
HOPKINS, MATTHEW A
ART UNIT PAPER NUMBER
2463
MAIL DATE DELIVERY MODE
08/21/2014 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 KATHERINE H. GUO, ARUN N. NETRAVALI, and
KRISHAN K. SABNANI
____________

Appeal 2012-003064
Application 11/744,531
Technology Center 2400
____________

Before CAROLYN D. THOMAS, JASON V. MORGAN, and
JOHNNY A. KUMAR, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner
finally rejecting claims 1–21, all the claims pending in the application. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
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Application 11/744,531

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The present invention relates generally to “scheduling multicast
transmissions in a wireless network by selecting one of a plurality of
multicast groups of a cellular region that is permitted to transmit information
during a current timeslot.” See Abstract.

Claim 1 is illustrative:
1. A method for scheduling multicast transmissions in a
wireless network, comprising:
receiving, at a network element of the wireless network,
data rate request values from wireless user terminals of each of a
plurality of multicast groups;
assigning, to each of the multicast groups, a respective
data rate where the respective data rate is assigned using the data rate
request values of wireless user terminals belonging to the respective
multicast group;
selecting one of the multicast groups for which
information is transmitted, wherein the selected multicast group is
selected using the assigned data rates of the multicast groups; and
transmitting information toward wireless user terminals
of the selected multicast group.

Appellants appeal the following rejections:
R1. Claim 20 is are rejected under 35 U.S.C. § 101 as being directed
to non-statutory subject matter;
R2. Claims 1, 2, 5–9, 11, 12, 15–18, 20, and 21 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Hyon (US 2007/0115813 A1,
May 24, 2007), Brueck (US 2007/0177555 A1, Aug. 2, 2007), and Chaddha
(US 6,728,775 B1, Apr. 27, 2004); and
R3. Claims 3, 4, 10, 13, 14, and 19 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hyon, Brueck, Chaddha, and Bao (US
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2005/0002352 A1, Jan. 6, 2005).

Claim Groupings
Based on Appellants’ arguments in the Appeal Brief, we will decide
the appeal on the basis of claims 1 and 20, as set forth below. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2010).

ANALYSIS
Rejection under 35 U.S.C. § 101
Issue 1: Did the Examiner err in concluding that claim 20 is directed
to non-statutory subject matter?
Appellants contend that “the terms medium and carrier are both
referring to physical storage media” (App. Br. 12).
The Examiner concludes that “appellant’s [sic] scope includes an
open-ended example list . . . . The broadest reasonable interpretation . . .
includes a ‘carrier wave’” (Ans. 29). We agree with the Examiner.
We refer Appellants to the February 23, 2010 “Subject Matter
Eligibility of Computer Readable Media ” policy statement by former PTO
Director David J. Kappos, as published in the Official Gazette of the United
States Patent and Trademark Office (USPTO) (reproduced in part below):
The [USPTO] is obliged to give claims their broadest reasonable
interpretation consistent with the specification during proceedings
before the USPTO. See In re Zletz, 893 F.2d 319 (Fed. Cir. 1989)
(during patent examination the pending claims must be interpreted as
broadly as their terms reasonably allow). The broadest reasonable
interpretation of a claim drawn to a computer readable medium (also
called machine readable medium and other such variations) typically
covers forms of non-transitory tangible media and transitory
propagating signals per se in view of the ordinary and customary
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meaning of computer readable media, particularly when the
specification is silent. See MPEP 2111.01. When the broadest
reasonable interpretation of a claim covers a signal per se, the claim
must be rejected under 35 U.S.C. § 101 as covering non-statutory
subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir.
2007) (transitory embodiments are not directed to statutory subject
matter) and Interim Examination Instructions for Evaluating Subject
Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009; p. 2.

1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (Italics added), available at
http://www.uspto.gov/web/offices/com/sol/og/2010/week08/TOC.htm#ref20
We are not persuaded by Appellants’ argument, because the
Specification describes only by example that a readable medium or carrier
may encompass “RAM memory, magnetic or optical drive or diskette, and
the like” (Spec. 22:10–11), but this does not exclude transient signals.
Describing a non-exclusive list of examples does not disclaim or otherwise
exclude any particular embodiment from the list, and therefore does not
exclude transitory signals as being within the scope of a readable medium or
carrier, under a broad but reasonable interpretation.
Therefore, we are not persuaded of Examiner error regarding the
§ 101 rejection. Accordingly, we sustain the Examiner’s rejection of claim
20 under § 101.

Rejection under 35 U.S.C. § 103(a)
Issue 2: Did the Examiner err in finding that the combined teachings
of Hyon, Brueck, and Chaddha, particularly Chaddha, teaches and/or
suggests selecting one of the multicast groups, as set forth in claim 1?
Appellants contend “the Examiner fails to consider all of the words of
this limitation of Appellants’ claim 1” (App. Br. 13), as “the Examiner fails
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to consider the ‘for which information is transmitted’ portion of this
limitation” (id.), and “Chaddha is devoid of any teaching or suggestion of
selecting one of a plurality of multicast groups for which information is
transmitted” (id. at 14). Appellants further contend that “this portion of
Chaddha merely discloses selection of a multicast group by a client
computer” (id. at 16).
The Examiner concludes “the claim does not limit the selection to
being performed in the transmitter” (Ans. 29–30) and finds “Chaddha
discloses selecting one of the multicast groups” (id. at 30). We agree with
the Examiner.
We refer to, rely on, and adopt the Examiner’s findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.
Here, Appellants appear to emphasize that Chaddha’s client selecting
the multicast group, is not the same as the claimed invention, i.e., selecting
one of the multicast groups for which information is transmitted. However,
as highlighted by the Examiner (see Ans. 29–30), Appellants’ claims do not
limit the selection itself of a multicast group to any particular entity, i.e.,
group selection can be done by the client, the server, and/or any party. In
addition, while Appellants argue that “‘for which information is transmitted’
references the information that is then transmitted toward wireless user
terminals of the selected multicast group” (see Reply Br. 4), we conclude
that the plain language of claim 1’s for which information is transmitted
does not indicate whether information is transmitted “to” or “from” user
terminals and/or multicast groups. Instead, the claim leaves open the
direction in which information is transmitted. “In the patentability context,
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claims are to be given their broadest reasonable interpretations. . . .
[L]imitations are not to be read into the claims from the specification.” In re
Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Here,
the broadest reasonable interpretation of selecting one of the multicast
groups for which information is transmitted reads on any entity selecting a
multicast group and information being transmitted.
Similarly, Chaddha discloses that the “server 210 receives selection(s)
of one or both multicast groups from one or more client computers 231, 232,
. . . 239 (step 1130). Server 210 adaptively right-sizes the multimedia data
stream in response to the feedback from client computers” (col. 9, ll. 36–42;
see also ll. 56–57; col. 7, ll. 14–19; col. 8, ll. 2–6). In other words, in
Chaddha, the client computer selects a multicast group to receive
information from and the server right-sizes, i.e., grows and/or prunes, the
multimedia data transmitted to the client based on the client’s needs. Here,
Chaddha emphasizes that the “client computer 231 intelligently decides
which multicast (address) groups to dynamically join or leave. This is
possible because server 210 periodically provides updated information to
client computer 231 about . . . their associated data transfer rates” (col. 7, ll.
14–22). Stated differently, Chaddha’s client selects a multicast group to
receive information from using updated information about the multicast
groups, such as information about their associated data transfer rates. As
such, we find that Chaddha teaches and/or suggest selecting a multicast
group using the assigned data rates, as set forth in claim 1.
In view of the above discussion, since Appellants have not
demonstrated that the Examiner erred in finding the argued limitations in the
disclosure of Chaddha, the Examiner’s 35 U.S.C. § 103(a) rejection of
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representative independent claim 1, as well as claims 2–21 not separately
argued by Appellants, is sustained.

DECISION
We affirm the Examiner’s § 101 and § 103(a) rejections.
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).

AFFIRMED

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