Ex Parte Jeschke et al

Board of Patent Appeals and Interferences

Mar 25, 2004

09313359 (B.P.A.I. Mar. 25, 2004)

1
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 25
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte MICHAEL JESCHKE
and
IVAR MORTENSEN
_______________
Appeal No. 2002-2106
Application No. 09/313,359
_______________
ON BRIEF
_______________
Before HAIRSTON, KRASS, and FLEMING, Administrative Patent
Judges.
FLEMING, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection
of claims 1 through 4, 7, 9 and 10. Claims 5, 6, and 8 are
objected to for being dependent upon a rejected claim.
Appeal No. 2002-2106
Application 09/313,359
2
Invention
The invention relates to a mobile cellular
communications system which contains a number of base stations
which communicate with mobile stations. See page 1 of
Appellants’ specification. The invention addresses the problem
where two base stations communicate simultaneously with the
same mobile station. The power transmitted by the base stations
must be adapted as quickly as possible to changes in channel
characteristics. The mobile station sends to all base stations
serving it a transmit power control command instructing them to
change their transmitted powers, namely to raise or lower the
transmitted power level by a predetermined amount. See pages 1
and 2 of Appellants’ specification. The invention is predicated
on the recognition of the following problem which arises if the
transmit power control command is detected in error. If one of
the base stations receives the transmit power command
incorrectly, it will change its transmitted power incorrectly as
compared with those base stations which receive the transmit
power command correctly. Accordingly, the transmitted power
levels will drift apart, which is called “random walk.” To
prevent this drift, the invention proposes to preset for each
Appeal No. 2002-2106
Application 09/313,359
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base station an individual target value from which the trans-
mitted power level should not deviate on a long-term average.
See page 2 of Appellants’ specification. Fig. 2a shows the
structure of a mobile communications system according to the
invention. The mobile communications system contains a number of
base stations of which only two, NB1 and NB2, are shown. These
two base stations NB1 and NB2 are interconnected by a control
network and communicate simultaneously with a mobile station UE.
See page 4 of Appellants’ specification. Each of the two base
stations NB1 and NB2 changes its transmitted power using the
method according to the invention, in which target values TV1 and
TV2 are preset by the first base station controller SRNC for base
stations NB1 and NB2, respectively. See page 5 of Appellants’
specification. Fig. 3 is a flowchart showing the steps of a
method 100 for changing the transmitted power of a base station.
In the first step 110, the base station controller SRNC presets
a target value TV1 for the base station NB1. See page 6 of
Appellants’ specification. In step 120, a transmit power command
is transmitted from the mobile station UE to the two base
stations NB1 and NB2. In step 130, the transmitted power is
Appeal No. 2002-2106
Application 09/313,359
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changed solely by taking account of the received command transmit
power control. See pages 7 and 8 of Appellants’ specification.
In step 140, the base station NB1 additionally changes its
transmitted power by taking into account the target value TV1
assigned to it. The target value is preset by the first station
controller SRNC prior to the beginning of the flowchart. See
page 8 of Appellants’ specification.
Independent claim 1, present in the application, is
representative of Appellants’ claimed invention and is reproduced
as follows:
1. A method (100) of changing the powers transmitted
by at least two base stations (NB1, NB2) communicating simul-
taneously, at least temporarily, with a mobile station (UE) in a
mobile communications system (MTS), said method (100) comprising
the steps of: sending from the mobile station (UE) to the base
stations (NB1, NB2) a command (TPC) instructing the base stations
(NB1, NB2) to change their transmitted powers (120); changing the
transmitted power in each (NB1) of the base stations in response
to the command (TPC) (130); and additionally changing the trans-
mitted power in each (NB1) of the base stations continuously in
the direction of a presettable target value (TV1) (140).
References
The references relied on by the Examiner are as
follows:
Nakano et al. (Nakano) 5,933,782 Aug. 3, 1999
(filed July 29, 1997)
Appeal No. 2002-2106
Application 09/313,359
1 Appellants filed an appeal brief on May 28, 2002. Appellants
filed a reply brief on October 15, 2002. The Examiner mailed out
an Office communication on February 10, 2003, stating that the
reply brief has been entered.
5
Ozluturk 6,181,919 Jan. 30, 2001
(filed Nov. 20, 1998)
Kumar et al. (Kumar) 6,212,399 Apr. 3, 2001
(filed Mar. 6, 1998)
Rejections at Issue
Claims 1, 2, 9 and 10 stand rejected under 35 U.S.C.
§ 102 as being anticipated by Nakano. Claim 3 stands rejected
under 35 U.S.C. § 103 as being unpatentable over Nakano in view
of Kumar. Claim 4 stands rejected under 35 U.S.C. § 103 as
being unpatentable over Nakano. Claim 7 stands rejected under
35 U.S.C. § 103 as being unpatentable over Nakano in view of
Ozluturk. Throughout our opinion, we make reference to the
briefs1 and the answer for the respective details thereof.

OPINION
With full consideration being given to the subject
matter on appeal, the Examiner’s rejections and the arguments of
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Application 09/313,359
6
Appellants and the Examiner, for the reasons stated infra, we
reverse the Examiner’s rejection of claims 1, 2, 9 and 10 under
35 U.S.C. § 102, and we reverse the Examiner’s rejection of
claims 3, 4 and 7 under 35 U.S.C. § 103.
Rejection Under 35 U.S.C. § 102
“Anticipation is established only when a single prior
art reference discloses, expressly or under principles of
inherency, each and every element of a claimed invention." RCA
Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444,
221 USPQ 385, 388 (Fed. Cir.), cert. dismissed, 468 U.S. 1228
(1984), citing Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772,
218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026
(1984).
Appellants argue that the term “presettable target
value” properly construed in accordance with the Appellants’
specification, does not read on Nakano’s disclosed “notified
transmission power value.” See pages 5-10 of the brief and the
reply brief.
As pointed out by our reviewing court, we must first
determine the scope of the claim. "[T]he name of the game is the
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Application 09/313,359
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claim." In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523,
1529 (Fed. Cir. 1998).
We note that Appellants’ independent claim 1 recites
“additionally changing the transmitted power in each (NB1) of the
base stations continuously in the direction of a presettable
target value (TV1)(140).” We note that Appellants’ independent
claim 9 recites “a transmit power controller (PCR) connected to
the memory (MEM) for changing the transmitted power of the base
station (NB1) in response to the command and for additionally
changing the transmitted power continuously in the direction of
the presettable target value (TV1).” Finally, we note that
independent claim 10 recites “a transmit power controller (PCR)
connected to the memory (MEM) for changing the transmitted power
in response to the command (TPC) and for additionally changing
the transmitted power continuously in the direction of the pre-
settable target value (TV1).”
Appellants argue that the proper interpretation of the
recited term “presettable” is the ordinary meaning. The Examiner
refers to the Webster’s Dictionary definition for “preset” which
is defined as “to set beforehand.” The Examiner argues that
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Application 09/313,359
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Nakano discloses a communications system in which the exchange
station notifies the base station of a transmission power value,
and that the base station corrects its transmission power to
match the notified transmission power value. The exchange
station sets this notified transmission value based upon the
comparison of the transmission power values reported from the
base stations. The Examiner points to Nakano, column 18,
line 66, through column 19, line 17. The Examiner argues that
the notified transmission power value reads on the Appellants’
claimed presettable target value because the notified power value
is set before it is transmitted to the base station and used to
correct transmission power. See page 4 of the Examiner’s answer.
As our reviewing court states, “[t]he terms used in the
claims bear a “heavy presumption” that they mean what they say
and have the ordinary meaning that would be attributed to those
words by persons skilled in the relevant art.” Tex. Digital
Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202, 64 USPQ2d
1812, 1817 (Fed. Cir. 2002), cert. denied, 123 S.Ct. 2230 (2003).
“Moreover, the intrinsic record also must be examined in every
case to determine whether the presumption of ordinary and
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Application 09/313,359
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customary meaning is rebutted” (citation omitted). “Indeed, the
intrinsic record may show that the specification uses the words
in a manner clearly inconsistent with the ordinary meaning
reflected, for example, in a dictionary definition. In such a
case, the inconsistent dictionary definition must be rejected.”
Tex. Digital Sys., 308 F.3d at 1204, 64 USPQ2d at 1819 (“[A]
common meaning, such as one expressed in a relevant dictionary,
that flies in the face of the patent disclosure is undeserving of
fealty.”) Id. (citing Liebscher v. Boothroyd, 258 F.2d 948, 951,
119 USPQ 133, 135 (CCPA 1958)(“Indiscriminate reliance on defini-
tions found in dictionaries can often produce absurd results.”)).
“In short, the presumption in favor of a dictionary definition
will be overcome where the patentee, acting as his or her own
lexicographer, has clearly set forth an explicit definition of
the term different from its ordinary meaning.” Id. “Further,
the presumption also will be rebutted if the inventor has
disavowed or disclaimed scope of coverage, by using words or
expressions of manifest exclusion or restriction, representing
a clear disavowal of claim scope.” Id.
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Upon our review of Appellants’ specification, we fail
to find an expressed definition of the term “presettable.”
However, upon reviewing the specification, we find that the
specification does put in context that the target value (TV1) is
determined prior to sending from the mobile station to the base
station a command instructing the base station to change their
transmitted powers. So even using the ordinary meaning as
proposed by the Examiner, we find that the claims require that
the target value is set before the steps of sending from the
mobile station to the base station a command instructing the
base station to change its transmitted powers.
Turning to Nakano, we fail to find that the “notified
transmission power value” is set before the mobile station sends
the command instructing the base stations to change their
transmitted powers. In fact, we find that this value is not
determined until the exchange station compares the transmitted
power values reported from the base stations after the request to
change the power values from the mobile station. In particular,
Nakano teaches that the seventh specific embodiment is a more
specific embodiment based upon the fourth basic embodiments
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Application 09/313,359
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described above. See Nakano, column 18, lines 51-56. Further-
more, Nakano teaches that the seventh specific embodiment
configurations of the mobile station and the base station are
substantially similar to those of Figs. 18 and 19 described
above, but it is assumed that the base station control station 11
is functionally integrated into the exchange station 7 so that
the control with respect to the base station control station
function is to be realized by the control with respect to the
exchange station. See Nakano, column 18, lines 57-64. Nakano
teaches that the control signal (transmission power control
command) is sent from the mobile unit first before correcting the
transmission power of each of the base stations according to the
seventh embodiment. See column 11, line 62, through column 12,
line 30. Therefore, we fail to find that the Examiner properly
found that Nakano’s “notified transmission power value” reads on
Appellants’ claimed invention.
Rejections Under 35 U.S.C. § 103
For the rejections of claims 3, 4 and 7 under 35 U.S.C.
§ 103, we note that the Examiner has relied on Nakano for the
teaching of “presettable target values” as recited in Appellants’
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Application 09/313,359
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claims. Upon our review of Kumar and Ozluturk, we fail to find
that these references teach this limitation. Therefore, we will
not sustain the Examiner’s rejection under 35 U.S.C. § 103 for
the same reasons as set forth above.
In view of the foregoing, we have not sustained the
Examiner’s rejection of claims 1, 2, 9 and 10 under 35 U.S.C.
§ 102. Furthermore, we have not sustained the Examiner’s
rejection of claims 3, 4 and 7 under 35 U.S.C. § 103.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
ERROL A. KRASS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MICHAEL R. FLEMING )
Administrative Patent Judge )
MRF:psb
Appeal No. 2002-2106
Application 09/313,359
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