Ex Parte Guo et alDownload PDFPatent Trial and Appeal BoardAug 21, 201411744531 (P.T.A.B. Aug. 21, 2014) Copy Citation 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. Appeal 2012-003064 Application 11/744,531 2 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 Appeal 2012-003064 Application 11/744,531 3 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 Appeal 2012-003064 Application 11/744,531 4 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 Appeal 2012-003064 Application 11/744,531 5 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, Appeal 2012-003064 Application 11/744,531 6 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 Appeal 2012-003064 Application 11/744,531 7 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 cdc Copy with citationCopy as parenthetical citation