Ex Parte Gupta et alDownload PDFPatent Trial and Appeal BoardNov 25, 201411241684 (P.T.A.B. Nov. 25, 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. 11/241,684 09/30/2005 Piyush Gupta LUCW:0022/Gupta 4-11 5694 48671 7590 11/26/2014 FLETCHER YODER (LUCENT) P.O. BOX 692289 HOUSTON, TX 77069 EXAMINER CEHIC, KENAN ART UNIT PAPER NUMBER 2479 MAIL DATE DELIVERY MODE 11/26/2014 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 PIYUSH GUPTA and ALEKSANDR STOLYAR1 ____________________ Appeal 2012-003288 Application 11/241,684 Technology Center 2400 ____________________ Before DEBORAH KATZ, HUNG H. BUI, and NATHAN A. ENGELS, Administrative Patent Judges. ENGELS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1, 3–5, and 13–21. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. STATEMENT OF CASE The claims are directed to method and apparatus for managing a random access communication system by adjusting transmission attempts of one node in a network based in part on congestion created by transmission 1 According to Appellants, the real party in interest is Alcatel-Lucent USA, Inc. Appeal 2012-003288 Application 11/241,684 2 attempts of other nodes in the network. Abstract.2 Claim 1, reproduced below, is exemplary of the claimed subject matter: 1. A system comprising: a plurality of network nodes of a local contention neighborhood of a random access network, wherein a first node is configured to transmit to a second node at an access attempt percentage, wherein the first node is configured to receive an indicia of inter-node interference between the first node and a third node and a measurement of transmission success rate of the third node; and wherein the first node is configured to adjust the access attempt percentage to transmit to the second node based on the measurement of transmission success rate of the third node. Claims 1, 3–5 and 13–21 stand rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Claims 1, 13, 16, 18, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yeh (US 2005/0058151 A1, pub. Mar. 17, 2005) in view of Belcea (US 2006/0268792 A1, pub. Nov. 30, 2006). Claim 3 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Yeh in view of Belcea and further in view of Foster et al. (US 2002/0181395 A1, pub. Dec. 5, 2002). Claim 14 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Yeh in view of Belcea and further in view of Souissi et al. (US 2002/0142721 A1, pub. Oct. 3, 2002). Claim 17 stands rejected under 2Throughout this opinion, we refer to the Appeal Brief filed April 4, 2011 (“App. Br.”), the Reply Brief filed September 6, 2011 (“Reply”), the Examiner’s Answer filed July 5, 2011 (“Ans.”), the Final Office Action filed October 4, 2011, and the Original Specification filed September 30, 2005 (“Spec.”). Appeal 2012-003288 Application 11/241,684 3 35 U.S.C. § 103(a) as being unpatentable over Yeh in view of Belcea and further in view of Guo et al. (US 2006/0264229 A1, pub. Nov. 23, 2006). The Examiner withdrew the rejections of claims 4 and 21 under 35 U.S.C. § 103(a). Ans. 4. ISSUES 1. Did the Examiner err in rejecting the Appellants’ claims as failing to comply with the written description requirements of 35 U.S.C. § 112, first paragraph? 2. Did the Examiner err in rejecting the Appellants’ claims as obvious in view of the prior art of record? ANALYSIS 1. Rejection Under 35 U.S.C. § 112, First Paragraph The function of the written description requirement of the first paragraph of 35 U.S.C. § 112 is to ensure that the inventor has possession, as of the filing date of the application, of the specific subject matter claimed. In re Wertheim, 541 F.2d 257, 262 (CCPA 1976); Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991). In establishing a basis for a rejection under the written description requirement of the statute, the Examiner has the initial burden of presenting evidence or reasons why persons skilled in the art would not recognize in an applicant’s disclosure a description of the invention defined by the claims. Wertheim, 541 F.2d at 265. Regarding claim 1, the Examiner finds that the limitation “wherein the first node is configured to receive an indicia of inter-node interference Appeal 2012-003288 Application 11/241,684 4 between the first node and a third node and a measurement of transmission success rate of the third node” lacks adequate support in Appellants’ Specification. Ans. 16–17. Specifically, the Examiner finds that the claimed “indicia of inter-node interference” equates to the “indicia of throughput” described in the Specification, but that the indicia of throughput also putatively equates to the “measurement of transmission success rate.” Ans. 17. The Examiner finds that claim 1 requires reception of two different items—“an indicia of inter-node interference” and “a measurement of transmission success rate of the third node”—but that the Specification defines those terms to be the same. Ans. 17–18. Appellants argue that the Specification discloses multiple types of “indicia of throughput.” App. Br. 6–7. Specifically, Appellants argue that the Specification provides, for example, that one indicia of throughput is the successful data transmission from one node to an access point, and each node’s measurement of a transmission success rate is another indicia of throughput. App. Br. 6–7; Reply 2. The Specification also states, among other things, that the claimed invention mitigates interference “by basing the access attempt percentage of one node on one or more indicia of inter-node interference, such as throughput, transmission success rate, and the like.” Spec. at 11. Accordingly, we conclude that the “indicia of inter-node interference” limitation includes “throughput” and “transmission success rate,” among other similar indicia. The examiner correctly notes that claim 1 requires two things; (1) an indicia of inter-node interference and (2) a measurement of transmission success rate. More precisely, though, claim 1 requires: (1) an indicia of inter-node interference “between the first node and a third node,” and (2) a Appeal 2012-003288 Application 11/241,684 5 measurement of transmission success rate “of the third node.” Thus, while the Examiner is correct that the indicia of inter-node interference and the transmission success rate can be the same thing, we find that the modifiers included with those limitations in claim 1 indicate that they are not the same pieces of information and that the claim limitations are adequately supported by the Specification. We also disagree with the Examiner’s finding that the Specification fails to provide written description support for “measurement of transmission success rate.” Appellants argue that the following provides written-description support for the “measurement of transmission success rate” limitation: computing an indicia of the throughput of the ith node, which reflects successful data transmissions by the ith node to one of the access points 12a-c. . . . That is, the specification discloses that an indicia of throughput reflects successful data transmissions of a node (i.e., the transmission success rate of the node). App. Br. 6 (quoting Spec. at 12). The Specification also describes computing the indicia of throughput based “on whether the last transmission from the ith node to one of the access point[s] . . . was a success” (Spec. at 12), suggesting that the system can also identify a transmission that was not a success. While the Examiner is correct that the Specification does not describe how to perform the mathematical calculation or measurement of a transmission success rate, we find a person of ordinary skill in the art would recognize a system that collects or recognizes successful data transmissions would implicitly support the calculation or measurement of a transmission success rate. See Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1379–80, Appeal 2012-003288 Application 11/241,684 6 (Fed. Cir. 1986) (information well known in the art need not be described in detail in the specification). Accordingly, we reverse the Examiner’s rejection of claim 1 under 35 U.S.C. § 112, first paragraph. Further, we reverse the Examiner’s rejection of claims 3–5 and 13–21 under 35 U.S.C. § 112, first paragraph for similar reasons; while the Specification’s descriptions are minimal, the claim limitations at issue are directed to calculations and concepts well known to a person of ordinary skill in the art. 2. Rejection Under 35 U.S.C. § 103(a) A. Independent Claim 1 Appellants argue that Belcea fails to teach or suggest the limitations “a measurement of transmission success rate” and “adjusting the access attempt percentage to transmit to the second node based on the measurement of transmission success rate of the third node” in claim 1. App. Br. 12–13. According to Appellants, Belcea only teaches a system in which nodes broadcast information about utilization of resources between neighboring nodes, but “there is no teaching of any measurement of the rate of success that any node has or will experience, let alone adjusting an access rate ‘based on’ that measured rate.” App. Br. 12–13. Belcea discloses a system that includes transmission times divided into timeframes, with each timeframe divided into timeslots. Belcea ¶ 53. The Examiner finds Belcea’s disclosure of nodes that assess and broadcast indications of available and used timeslots is a “measurement of transmission success rate” as claimed in claim 1. Ans. 23–24 (citing Belcea ¶¶ 53, 135–138). According to the Examiner, if a timeframe includes 10 Appeal 2012-003288 Application 11/241,684 7 timeslots and a node successfully uses one timeslot, that node’s transmission success rate would be 1/10. Ans. 23–24 (citing Belcea ¶¶ 53, 135–138). We agree with the Examiner’s findings. Similar to the Specification’s support for the “measurement of transmission success rate” limitation, we find Belcea teaches that limitation with the following: Each node selects one or many Time Slots and transmits only during the selected Time Slots. Between transmissions, the node listens to neighbors and collects information about the resource utilization and data traffic at neighbors. Each node broadcasts information about its perception of utilization of resources by itself and neighbors. While listening to transmissions of neighbors, a node identifies “used” and “unused” Time Slots and then it broadcasts the collected information to neighbors, which in turn can identify those Time Slots that are contention free and could be used when needed. . . Belcea ¶¶ 135–136. Consistent with the Appellants’ argument that calculation of information reflecting successful transmissions discloses to a person of ordinary skill in the art “measurement of transmission success rate,” we find Belcea teaches that limitation with its disclosure of used and unused timeslots within a timeframe. See App. Br. 6 (citing Specification at 12 (“one or more of the nodes . . . computing an indicia of the throughput of the ith node, which reflects successful data transmissions by the ith node to one of the access points 12a-c”)). Belcea also teaches that when two nodes signal the intent to use the same time slot, the system will broadcast interference information and the nodes must choose different timeslots in the timeframe. Belcea ¶¶ 137–139. The Examiner finds that Belcea thus teaches “adjust[ing] the access attempt percentage to transmit to the second node based on the measurement of Appeal 2012-003288 Application 11/241,684 8 transmission success rate of the third node,” as required by claim 1. Ans. 23–24 (citing Belcea ¶¶ 137–139). Appellants do not offer independent evidence or arguments to rebut the Examiner’s finding, beyond Appellants’ argument that Belcea does not disclose the measurement of a transmission success rate, which we find unpersuasive as explained above. See App. Br. 14. Accordingly, Appellants have not advanced persuasive arguments that the Examiner erred in concluding that claim 1 is unpatentable in view of Yeh and Belcea, and we affirm the Examiner’s rejection of claim 1. B. Independent Claim 13 Repeating the arguments addressed above regarding claim 1, Appellants argue that Belcea does not teach “a measurement of transmission success rate of the second node,” as required by claim 13. App. Br. 14. Appellants do not raise additional persuasive arguments or cite new evidence regarding the patentability of claim 13. Accordingly, we find the Appellants’ arguments unpersuasive and affirm the Examiner’s rejection for the reasons discussed above. C. Dependent Claims 3, 14, and 17 Claim 3 depends from claim 1, and claims 14 and 17 depend from claim 13. Appellants argue that claims 3, 14, and 17 are patentable based on each claim’s dependency on its independent claim. App. Br. 3, 17. Appellants do not raise any independent persuasive arguments or evidence for the patentability of these claim, and we therefore affirm the Examiner’s rejection of claims 3, 14, and 17 for the reasons discussed above. Appeal 2012-003288 Application 11/241,684 9 DECISION For the above reasons, the Examiner’s rejection of claims 1, 3–5 and 13–21 under 35 U.S.C. §112 first paragraph are reversed, and the Examiner’s rejection of claims 1, 3, 13, 14, 16–18, and 20 under 35 U.S.C. § 103(a) 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) (2009). AFFIRMED IN PART Klh Copy with citationCopy as parenthetical citation