Ex Parte Haartsen

Patent Trial and Appeal Board

Feb 7, 2017

12041784 (P.T.A.B. Feb. 7, 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.
9342-422 2128
EXAMINER
CHOUDHRY, SAMINA F
ART UNIT PAPER NUMBER
2462
MAIL DATE DELIVERY MODE
12/041,784 03/04/2008
54414 7590 01
MYERS BIGEL, P.A.
P.O. BOX 37428
RALEIGH, NC 27627
Jacobus Haartsen
02/08/2017 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 JACOBUS HAARTSEN
Appeal 2015-002045
Application 12/041,784
Technology Center 2400
Before ERIC S. FRAHM, LARRY J. HUME, and
SCOTT B. HOWARD, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—4 and 6—20. Claim 5 has been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
Exemplary Claim
Appellant’s disclosed and claimed inventions pertain to wireless
mobile packet communications using an evolution of the 3G WCDMA
standard called the Long-Term 3G Evolution (LTE) (Spec. 1 and 2).
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More specifically, the disclosed invention provides a way to control duty
cycles in order to reduce power consumption in voice applications of
wireless communications (Spec. 4 and 5). To this end, Appellant
discloses a radio interface circuit (110 in Fig. 2; 210 in Fig. 3; Spec. 124)
for performing packet transmissions to/from a wireless terminal/base station
(Fig. 1, 100/200). The radio interface circuit 110/210 is in turn composed of
(i) retransmission control circuitry 112/212; (ii) link adaption circuitry
114/214; and (iii) uplink/downlink offset control circuitry 116/216 (Figs. 1
and 2; Spec. Tflf 24—26).
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below with bracketed numbering
added:
1. A method of operating a wireless communications
system, the method comprising:
performing packet transmissions between a base station
and terminals in half-duplex uplink and downlink transmission
intervals with [1] adaptive intra-interval packet
retransmission, [2] adaptive packet expansion and [3] adaptive
variation of durations of the uplink and downlink transmission
intervals.
The Examiner s Rejections
(1) The Examiner rejected each of the independent claims 1,8, and 14
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Bauchot (US 5,970,062; issued Oct. 19, 1999), Freedman (US 6,985,458 B2;
issued Jan. 10, 2006), and Schmidl (US 7,133,396 Bl; issued Nov. 7, 2006).
Final Act. 3^4.
(2) The Examiner rejected dependent claims 3,4, 10, 11, 16, and 17
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
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Bauchot, Freedman, Schmidl, and Damnjanovic (WO 2008/024890 A2;
published Feb. 28, 2008). Final Act. 4—5.
(3) The Examiner rejected claims 2, 9, and 15 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Bauchot, Freedman,
Schmidl, and Korpela (US 6,311,054 Bl; issued Oct. 30, 2001). Final
Act. 5—6.
(4) The Examiner rejected claims 6, 12, 13, 18, and 19 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Bauchot,
Freedman, Schmidl, and Marinier (US 6,747,967 B2; issued Jun. 8, 2004).
Final Act. 6—7.
(5) The Examiner rejected claims 7 and 20 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Bauchot, Freedman, Schmidl,
and IP Wireless, NextWave Wireless, Mitsubishi Electric, Operation of Half
Duplex, Agenda Item 6.1.7 of 3GPP TSG RAN WG#5 Ibis Meeting in
Seville, Spain, pp. \-A (January 14—18, 2008) (hereinafter, “Seville”). Final
Act. 7—8.
Reply Brief
No Reply Brief has been presented. Therefore, Appellant has not
disputed the Examiner’s articulated reasoning and findings found at pages
2—5 of the Answer, including the new citations to Bauchot (see Ans. 3),
Freedman (see Ans. 4), Schmidl (see Ans. 3—4, and Damnjanovic (see
Ans. 5).
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Issues on Appeal
Based on Appellant’s arguments in the Appeal Brief (Br. 3—9) and in
light of the Examiner’s response to Appellant’s arguments in the Appeal
Brief (Ans. 2—5), the following two principal issues are presented on appeal:
(1) Did the Examiner err in rejecting claims 1, 6—8, 12—14, and 18—20
because the base combination of Bauchot, Freedman, and Schmidl fails to
teach or suggest a method of operating a wireless communication system
including performing packet transmissions between a base station and
terminals, as recited in representative claim 1 ?
(2) Did the Examiner err in rejecting dependent claims 3, 4, 10, 11,
16, and 17 for obviousness over Bauchot, Freedman, Schmidl, and
Damnjanovic because the applied references, taken singly or in combination,
fail to teach or suggest performing packet transmissions including adjusting
an offset, as recited?
ANALYSIS
We have reviewed the Examiner’s rejections (Final Act. 3—8) in light
of Appellant’s contentions in the Appeal Brief (Br. 3—9) that the Examiner
has erred, as well as the Examiner’s response to Appellant’s arguments in
the Appeal Brief (Ans. 2—5).
Claims 1, 6—8, 12—14, and 18—20
We disagree with Appellant’s arguments (Br. 4—8) as to representative
independent claim 1. With regard to representative independent claim 1, we
adopt as our own (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken (Final Act. 3—4), and (2) the
reasons set forth by the Examiner in the Examiner’s Answer in response to
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the Appellant’s Appeal Brief (Ans. 2-4). We highlight and amplify certain
teachings and suggestions of the references as follows.
We note that each reference cited by the Examiner must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(finding one cannot show non-obviousness by attacking references
individually where the rejections are based on combinations of references).
In this light, Appellant’s arguments as to representative independent claim 1
(Br. 5—6) concerning the individual shortcomings in the teachings of
Schmidl are not persuasive, and are not convincing of the non-obviousness
of the claimed invention set forth in representative independent claim 1.
The Examiner has relied upon the combination of Bauchot, Freedman,
and Schmidl as teaching or suggesting the method of operating a wireless
communication system including performing packet transmissions between a
base station and terminals recited in claim 1.
We agree with the Examiner (Final Act. 3^4; Ans. 2—5) that the base
combination of Bauchot, Freedman, and Schmidl teach or suggest all of the
recited limitations in representative independent claim 1. Appellant has not
filed a Reply Brief or otherwise shown error with persuasive argument or
evidence. Based on the foregoing, Appellant’s contentions are not
persuasive of Examiner error with regard to representative claim 1.
With regard to Appellant’s arguments (Br. 6—8) concerning a lack of
motivation for combining the three references applied in the base
combination, we find these arguments unpersuasive in view of the
Examiner’s rationale articulated from pages 3^4 of the Final Rejection (“to
improve the quality of service by making adjustments dynamically based on
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channel conditions” and “to increase the utilization and efficiency of the
retransmission” (Final Act. 4). Additionally, we agree with the Examiner
(Ans. 3 4) Bauchot operates uplink and downlink transmissions in separate
assigned slots, this it would have been obvious to modify Bauchot with
Schmidl “to increase the utilization and efficiency of the retransmissions by
adjusting the time slots dynamically based on the network conditions”
(Ans. 4). Again, Appellant has not filed a Reply Brief or otherwise shown
error with persuasive argument or evidence.
In view of the foregoing, we sustain the Examiner’s obviousness
rejection of representative independent claim 1, as well as claims 6—8, 12—
14, and 18—20 grouped therewith.
Claims 3, 4, 10, 11, 16, and 17
With regard to dependent claims 3,10, and 16, which all contain
limitations directed to adjusting an offset, Appellant’s arguments (Br. 8—9)
are not persuasive of Examiner error for similar reasons as provided above
as to claim 1. Notably, Appellant does not dispute the Examiner’s reliance
upon Bauchot as teaching half duplex operation. We agree with the
Examiner’s findings as to the teachings and suggestions of each of the
references to Bauchot, Freedman, Schmidl, and Damnjanovic (Final
Act. 4—5), as well as the conclusion that Appellant is again arguing the
shortcoming of Damnjanovic (as not teaching half duplex operation) when
the Examiner has relied upon Bauchot as teaching this limitation (Ans. 4—5).
With regard to claims 4, 11, and 17, Appellant relies on the same
arguments presented for claims 1,8, and 14 from which claims 4, 11, and 17
respectively depend. Therefore, for the same reasons as provided for
claim 1 already discussed above, we also find no error in the Examiner’s
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rejection of claims 4, 11, and 17 over the same base combination as claim 1
of Bauchot, Freedman, and Schmidl.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 3, 4, 10, 11, 16, and 17 over Bauchot, Freedman, Schmidl, and
Damnjanovic.
Claims 2, 9, and 15
Appellant has failed to show the Examiner erred in determining that
the combination of Bauchot, Freedman, Schmidl, and Korpela teaches or
suggests the electronic device recited in claims 2, 9, and 15 because
Appellant does not address the merits of this rejection, or otherwise present
arguments on the merits with regard to claims 2, 9, and 15 (see Br. 3
(Appellant does list the rejection of claims 2, 9, and 15 as a ground of
rejection to be reviewed on appeal)). See 37 C.F.R. § 41.37(c)(l)(vii)
(requiring a statement in the briefs as to each ground of rejection presented
by Appellant for review); 37 C.F.R. § 41.37(c)(l)(vii) (stating that
arguments not presented in the briefs by Appellant will be refused
consideration). As such, Appellant has not argued that the Examiner erred
in rejecting claims 2, 9, and 15 or otherwise shown this obviousness
rejection to be in error. See 37 C.F.R. § 41.37(c)(l)(vii).
CONCLUSIONS
(1) The Examiner did not err in rejecting claims 1, 6—8, 12—14, and
18—20 because the base combination of Bauchot, Freedman, and Schmidl
teaches or suggests a method of operating a wireless communication system
including performing packet transmissions between a base station and
terminals, as recited in representative claim 1.
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(2) The Examiner did not err in rejecting dependent claims 3,10, and
16 for obviousness over Bauchot, Freedman, Schmidl, and Damnjanovic
because the applied references, taken singly or in combination, teach or
suggest performing packet transmissions including adjusting an offset as
recited. The Examiner did not err in rejecting dependent claims 4, 11, and
17 over the base combination of Bauchot, Freedman, and Schmidl for the
same reasons as claim 1.
(3) Appellant has not shown that the Examiner has erred in rejecting
claims 2, 9, and 15 as being unpatentable under 35 U.S.C. § 103(a) over the
combination of Bauchot, Freedman, Schmidl, and Korpela. Therefore, we
sustain the Examiner’s rejection of claims 2, 9, and 15 pro forma.
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DECISION1
We affirm the Examiner’s rejections of claims 1—4 and 6—20 under
35 U.S.C. § 103(a).
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
1 We have decided the appeal before us. However, should there be further
prosecution of claim 8 (which recites “[a] wireless base station comprising: a
radio interface circuit configured to ...”), the Examiner’s attention is
directed to 35 U.S.C. §§ 112(a), (b), and (f) regarding written description,
indefmiteness, and means-plus-function. Specifically, the Examiner may
wish to consider whether claim 8 may lack sufficient written description
support under 35 U.S.C. § 112(a), particularly insofar as the originally filed
Specification (Spec. 24—26 and Figs. 2 and 3) and the Appeal Brief’s
summary of claimed subject matter (Br. 2—3 citing Spec, 29-32) do not
cite any algorithms or describe any hardware supporting (i) retransmission
control circuitry 112/212; (ii) link adaption circuitry 114/214; and
(iii) uplink/downlink offset control circuitry 116/216 (see Figs. 1 and 2;
Spec. 24—26) which make up the “radio interface circuit” recited in
claim 8. See Noah Systems, Inc. v. Intuit, Inc., 675 F.3d 1302, 1312 (Fed.
Cir. 2012) (“In cases . . . involving a special purpose computer-implemented
means-plus-fimction limitation, . . . [w]e require that the specification
‘disclose an algorithm for performing the claimed function.’” (citations and
quotations omitted)). Notably, the radio interface circuit is configured to
perform the three functions recited in claim 8 of (i) adaptive intra-interval
packet retransmission, (ii) adaptive packet expansion, and (iii) adaptive
variation of durations of uplink and downlink transmission intervals by
inexplicably using three black boxes: (i) retransmission control circuitry
112/212; (ii) link adaption circuitry 114/214; and (iii) uplink/downlink offset
control circuitry 116/216 (see Figs. 1 and 2; Spec. 24—26).
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