Ex Parte Jalil et al

Patent Trials and Appeals Board

Dec 8, 2014

11741776 - (D) (P.T.A.B. Dec. 8, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte REHAN JALIL and MUSTAFA ERGEN

Appeal 2012-0081191
Application 11/741,776
Technology Center 2600
____________________

Before JEAN R. HOMERE, CARL W. WHITEHEAD JR., and
JEFFREY S. SMITH, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 Appellants identify the real party in interest as WiChorus, Inc. 3.
Appeal 2012-008119
Application 11/741,776

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–10, 19–22, and 28–35. Claims 11–18 and 23–27
have been objected to as being dependent upon a rejected base claim, but
would otherwise be allowable if rewritten in independent form to include the
limitations of the base claim and intervening claims. App. Br. 3. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
Appellants invented a method and system for communicating packets
in a Multicast Broadcast Service (MBS) communication network. Spec. ¶2,
Fig. 1. In particular, upon determining that one of a plurality of packets
received at a controller (104, 106) is an MSB packet, the controller
communicates with a base transceiver station (BTS 108, 109) to encode an
MBS frame using the MBS packet. Spec. ¶¶16, 18. Then, the BTS transmits
the encoded MBS frame to a mobile station (MS- 122, 114, 116, 118) at a
take-off time (TOT) that is greater than a maximum link delay in the
communication between the controller and the BTS. Spec. ¶¶18, 25.
Representative Claim
Independent claim 1 is representative. It reads as follows:
1. A method of communication in a Multicast Broadcast
Service (MBS) communication network, the method
comprising:
determining if at least one packet among a plurality of
packets received at an at least one controller among a plurality
of controllers is a MBS packet, the at least one controller
configured to communicate with a plurality of Base Transceiver
Stations (BTSs);
Appeal 2012-008119
Application 11/741,776

3
encoding at least one MBS frame using the MBS packet;
and
transmitting the at least one MBS frame from at least one
BTS among the plurality of BTSs to at least one Mobile Station
(MS) at a Take Off Time (TOT) based on a criterion, the TOT
being greater than a maximum link delay of the master
controller to the at least one BTS among the plurality of BTSs.
Prior Art Relied Upon
Gracon US 2002/0110134 A1 Aug. 15, 2002
Popovich US 2002/0186652 A1 Dec. 12, 2002
Lundby US 2003/0112778 A1 June 16, 2003
Dulin US 2005/0157679 A1 July 21, 2005
Agrawal US 2006/0013168 A1 Jan. 19, 2006
Kang US 2006/0239264 A1 Oct. 26, 2006
Kostoff US 7,469,297 B1 Dec. 23, 2008
Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
Claims 1, 2, 29, 30, 34, and 35 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Kang and Dulin.
Claims 3 and 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kang, Dulin, and Agrawal.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kang, Dulin, and Kostoff.
Claims 5, 6, 10, 19, and 33 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Kang, Dulin, and Popovich.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kang, Dulin, Kostoff, and Popovich.
Appeal 2012-008119
Application 11/741,776

4
Claims 8, 9, 28, 31, and 32 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Kang, Dulin, and Lundby.
Claims 20 and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Kang, Dulin, Popovich, and Gracon.
ANALYSIS
We consider Appellants’ arguments seriatim as they are presented in
the Appeal Brief, pages 7–14 and the Reply Brief, pages 2–10.2

Dispositive Issue: Under 35 U.S.C. § 103, did the Examiner err in finding
the combination of Kang and Dulin teaches or suggests transmitting one
MBS frame from a base station (BTS) to a mobile station (MS) at a
predetermined take off time (TOT) that is greater than a maximum link delay
in a communication between a controller and a BTS, as recited in claim 1?
Appellants argue the proffered combination does not teach or suggest
the disputed limitations emphasized above. App. Br. 9. We have reviewed
the Examiner’s rejection in light of Appellants’ arguments. Id. We are
unpersuaded by Appellants’ contentions. We adopt as our own the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken, and as detailed in the Examiner’s Answer in response to Appellants’

2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed December 23, 2011), the Reply Brief (filed
April 23, 2012) and the Answer (mailed February 21, 2012) for the
respective details. We have considered in this Decision only those
arguments Appellants actually raised in the Brief. Any other arguments
Appellants could have made but chose not to make in the Briefs are deemed
to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2012-008119
Application 11/741,776

5
Appeal Brief (see Ans. 19–24 ). However, we highlight and address specific
arguments and findings for emphasis as follows.
First, Appellants argue Dulin discloses “compensating for the variable
network delays by computing a worst case time delay and scheduling . . . for
a particular frame that is ‘T units of time prior to the actual transmission
time of that frame.’” App. Br. 10. According to Appellants, Dulin’s
disclosure of determining the transmission time from the BTS to a subscriber
station based on a worst case time delay does not teach or suggest a TOT
that is greater than a maximum link delay for transmission between the
controller and the BTS. Id.
In response, the Examiner finds, consistent with the discussion in
¶¶25–26 of Appellants’ Specification, Dulin’s disclosure of computing a
look-ahead scheduling to compensate for the worst case delay for a frame
transmission between a controller and a BTS teaches a TOT that is greater
than the maximum delay time in the frame transmission. Ans. 20–22.
We agree with the Examiner. In particular, we echo the Examiner’s
finding that by using the worst case delay (maximum transmission delay) to
calculate a look ahead scheduling for the frame transmission between the
controller and the BTS (Dulin ¶¶67–68), Dulin would complement Kang’s
undisputed teachings to predictably result in an MBS communication
network that uses for subsequent transmissions a take-off time that exceeds
the maximum delay for the transmission between the controller and the BTS.
Ans. 20–22.
Second, we find unpersuasive Appellants’ argument that Dulin
calculates the transmission time from the base station controllers, and not
Appeal 2012-008119
Application 11/741,776

6
from the BTS (App. Br. 10) because such argument is directed to Dulin
individually as opposed to the proposed combination Dulin with Kang as
proffered by the Examiner. Therefore, Appellants’ individual attack of the
references does not establish non-obviousness. One cannot show non-
obviousness by attacking the references individually where the rejections are
based on combinations of references. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
Third, we find unavailing Appellants’ argument that there is
insufficient teaching, suggestion or motivation to combine Kang and Dulin.
App. Br. 10–11. As noted by the Examiner, because Dulin explicitly
indicates that such look-ahead scheduling would help compensate for
transmission delay, the proposed combination is supported by sufficient
rationale underpinning. Ans. 18–19, and 22. Furthermore, as noted above,
because Kang and Dulin disclose prior art elements that perform their
ordinary functions to predictably result in an MBS communication network
that uses for subsequent transmissions a take-off time that exceeds the
maximum delay for the transmission between the controller and the BTS, the
proposed combination is proper. KSR Int'l Co. v. Teleflex, Inc., 550 U.S.
398, 416 (2007). Hence, we find the cumulative weight and the totality of
the evidence on this record reasonably support the Examiner’s finding that
the combined disclosures of Kang and Dulin would have taught or suggested
the disputed limitations.
For at least the aforementioned reasons, we find Appellants have not
sustained the requisite burden on appeal of providing arguments or evidence
persuasive of error in the Examiner’s rejection of representative claim 1. It
Appeal 2012-008119
Application 11/741,776

7
therefore follows that Appellants have not shown that the Examiner erred in
finding that the combination of Kang and Dulin renders claim 1
unpatentable.
Because Appellants have either not presented separate patentability
arguments or have reiterated substantially the same arguments as those
previously discussed for patentability of claim 1 above, claims 2–10, 19–22,
and 28–35 fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii).
DECISION
We affirm the Examiner’s rejections of claims 1–10, 19–22, and 28–
35 as set forth above. 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

tj