Ex Parte Hua

Patent Trial and Appeal Board

Jul 28, 2016

13522443 (P.T.A.B. Jul. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/522,443 07/16/2012 Zhidong Hua
26646 7590 08/01/2016
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
12604/93 6516
EXAMINER
KOETH, MICHELLE M
ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
08/01/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
uspto@kenyon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ZHIDONG HUA 1
Appeal2015-001771
Application 13/522,443
Technology Center 2600
Before BRUCE R. WINSOR, SHARON PENICK, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITT A, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 16-23 and 25-38. Claims 16, 23, 27, and 28 are
independent. We have jurisdiction over this appeal under 35 U.S.C. § 6(b ).
We AFFIRM. 2
1 According to Appellant, the real party in interest is SEW-EURODRIVE
GmbH & Co. KG. See Appeal Brief 1.
2 Throughout this Opinion, we refer to: (1) Appellant's Specification filed
July 16, 2012 ("Spec."); (2) the Final Office Action ("Final Act.") mailed
Dec. 26, 2013; (3) the Appeal Brief ("Appeal Br.") filed July 30, 2014; (4)
the Examiner's Answer ("Ans.") mailed Sept. 8, 2014; and (5) the Reply
Brief ("Reply Br.") filed Nov. 5, 2014.
Appeal 2015-001771
Application 13/522,443
BACKGROlH~D
According to Appellant, the application relates to a method for data
transmission and a data transmission system in which the rate of repetition
of OFDM symbols within a telegram is ascertained as a function of a
transmission characteristic of a transmission medium of the data signal.
Spec. 1-2. Claim 16 is representative and is reproduced below:
16. A method for data transmission by an orthogonal
frequency multiplexing (OFDM) between a transmitter and a
receiver using a data signal, the data signal having a telegram
including OFDM symbols, comprising:
transmitting the OFDM symbols by the transmitter in
symbol-wise fashion at a rate of repetition inn-fold succession
within the telegram; and
during receiving in the receiver, adding the respectively n-
fold successively transmitted OFDM symbols symbol-wise in
phase;
wherein the added n-fold succession does not include a
scaling factor.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal:
Roberts et al. ("Roberts")
Williams
Francos et al. ("Francos")
Redfern
Griepentrog et al.
("Griepentrog '188")
Griepentrog et al.
("Griepentrog '085")
Remy et al. ("Remy")
Steiner et al. ("Steiner")
Sedarat et al. ("Sedarat")
Hua
us 6,006,071
US 6,344,749 Bl
US 6,741,662 Bl
US 2005/0169392 Al
US 2005/0225188 Al
US 2006/0187085 Al
US 2008/0095188 Al
US 2008/0258650 Al
US 7,443,916 B2
WO 2009/106109 Al
2
Dec. 21, 1999
Feb. 5,2002
May 25, 2004
Aug.4,2005
Oct. 13, 2005
Aug. 24, 2006
Apr. 24, 2008
Oct. 23, 2008
Oct. 28, 2008
Sept. 3, 2009
Appeal 2015-001771
Application 13/522,443
Hua et al. ("Hua '537'')
Clausen
Norrell et al. ("Norrell")
US 2010/0088537 Al
US 7 ,852,869 B2
US 8,194,722 B2
REJECTIONS
Apr. 8, 2010
Dec. 14, 2010
June 5, 2012
Claims 16, 17, and 27 stand rejected under pre-AIA (America Invents
Act) 35 U.S.C. § 103(a) as being unpatentable over Clausen in view of
Redfern. Final Act. 4.
Claim 18 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Clausen in view of Redfern and Remy. Final Act. 8.
Claim 19 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Clausen in view of Redfern, Remy, and Williams. Final
Act. 11.
Claim 20 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Clausen in view of Redfern, and Griepentrog '085. Id.
Claim 21 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Clausen in view of Redfern, Norrell, and Sedarat. Final
Act. 12.
Claim 22 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Clausen in view of Redfern and Francos. Final Act. 14.
Claims 23, 25, 26, 28, and 30 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Griepentrog '188 in view of Redfern,
Roberts, and Clausen. Final Act. 15.
Claims 31, 32, and 38 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Griepentrog '188 in view of Redfern,
Clausen, Roberts, and Hua. Final Act. 23.
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Appeal 2015-001771
Application 13/522,443
Claim 29 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Clausen in view of Redfern, and Griepentrog '188. Final
Act. 26.
Claims 33, 34, 35 and 37 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Griepentrog '188 in view of Redfern,
Roberts, Clausen, and Hua '537. Final Act. 26.
Claim 36 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Griepentrog '188 in view of Redfern, Roberts, Clausen,
and Steiner. Final Act. 29.
Our review in this appeal is limited only to the above rejections and
issues raised by the Appellant. We have not considered other possible issues
that have not been raised by Appellant and which are, therefore, not before
us. See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
ISSUES
1. Did the Examiner err in finding that the combination of Clausen
and Redfern teaches or suggests all of the limitations of claim 16?
2. Was the Examiner's rationale for modifying Clausen based on
Redfern erroneous?
DISCUSSION
After review of Appellant's arguments and the Examiner's findings,
conclusions, and reasoning, we determine that Appellant has not identified
error in the Examiner's rejection of claim 16. Accordingly, we affirm the
rejection for reasons set forth by the Examiner in the Final Office Action and
the Answer. See Final Act. 4--5; Ans. 4--10. We add the following for
emphasis.
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Appeal 2015-001771
Application 13/522,443
Appellant argues that:
Clausen does not describe transmitting the OFDM symbols by
the transmitter in symbol-wise fashion at a rate of repetition inn-
fold succession within a telegram, and during receiving in the
receiver, adding the respectively n-fold successively transmitted
OFDM symbols symbol-wise in phase, wherein the added n-fold
succession does not include a scaling factor.
Appeal Br. 6.
As the Examiner correctly notes, however, Appellant's discussion
simply cites to various portions of Clausen while alleging what Clausen
"merely describes," without specifically addressing the Final Office Action's
cited portions or rationale. Ans. 8 (citing Appeal Br. 6).
Accordingly, Appellant's argument is unpersuasive because it is not
responsive to the Examiner's rejection. Specifically, Appellant's argument
does not address the Examiner's finding that Clausen's repeating of symbols
28 N-times within a block and averaging the transmitted symbols in the
receiving device suggests the disputed limitations. Final Act. 4--5 (citing
Clausen col. 5 and Fig. 4B). That is, in the absence of a more detailed
explanation by Appellant, we are not persuaded of error on the part of the
Examiner. See In re Jung, 637 F.3d.1356, 1365 (Fed. Cir. 2011) ("[I]t has
long been the Board's practice to require an applicant to identify the alleged
error in the examiner's rejections" (citing Ex Parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential)).
The Examiner relies upon Redfern to suggest using OFDM and
adding symbols "symbol-wise in phase," as recited in claim 16. Appellant
contends that the portion of Redfern cited by the Examiner "[ m ]erely stat[ es]
that OFDM is employed in wireless communications" and therefore "does
not describe a method for data transmission by [OFDM]." Appeal Br. 5
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Application 13/522,443
(citing Redfern i136). As the Examiner indicates, however, Appellant
mischaracterizes the cited portion of Redfern by describing Redfern as
"merely stating that OFDM is employed in wireless communications"
(Appeal Br. 5) when the cited portion of Redfern actually indicates that
Redfern's invention may be used in other communication contexts such as
OFDM. Ans. 5 (citing Redfern i-f 36).
Appellant next argues that the cited portion of Redfern fails to suggest
adding symbols symbol-wise in phase, because the cited portion of Redfern
"merely describes Figure 3 (a 'preferred embodiment of the invention []
described in connection with a DSL environment."' Appeal Br. 5 (citing
Redfern i-f 49). Thus Appellant contends that Redfern only suggests adding
symbols symbol-wise in phase in a DSL environment and not in an OFDM
context.
Appellant's argument is not persuasive because the Examiner
correctly finds that Redfern's invention, including the adding of symbols
symbol-wise in phase, may alternatively be used in other communication
contexts such as OFDM. Ans. 5 (citing Redfern i-f 36).
Appellant argues that "there is no motivation or other tenable rationale
to modify Clausen with the system of Redfern to achieve the features
described in claim 16." Appeal Br. 6. In support of the argument,
Appellant, as the Examiner notes, "cites to various portions of Clausen and
Redfern, alleging what these portions 'merely describe,' but [does] not set
forth a rebuttal or effectively articulate contrary evidence to the motivation
to combine that was set forth in the Final Office Action." Ans. 9 (citing
Appeal Br. 6-7). We are thus not persuaded by Appellant's argument, for
the reasons indicated by the Examiner, and because the Examiner has
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Application 13/522,443
provided reasoning with rational underpinnings, namely, that combining the
references "would allow for high frequency efficiency and compensation for
an increase in inter-symbol interference (see Song et. al., US 2009/0196362
para. [0005]) as well as allowing for a transmitted symbol to be coherently
combined while canceling out noncoherent noise (Redfern para. [0023])."
Final Act.7-8; see also In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)
("[R]ejections on obviousness grounds [require] some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness") (cited with approval in KSR Int 'l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007).
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 16.
We also sustain the Examiner's 35 U.S.C. § 103(a) rejection of
independent claims 23, 27, and 28, which Appellant argues are patentable
for substantially similar, unpersuasive, reasons. Appeal Br. 7, 10-11.
Appellant does not make any other substantive argument regarding
the rejection of dependent claims 17-22 and 25, 26, and 29-38. Appeal Br.
7-14. Therefore, we likewise sustain the rejections of these claims under 35
U.S.C. § 103(a).
DECISION
We affirm the Examiner's decision rejecting claims 16-23 and 25-38
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
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