Ex Parte Jugl et al

Patent Trial and Appeal Board

Jan 23, 2015

11863483 (P.T.A.B. Jan. 23, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ENRICO JUGL,
JUNG A. LEE, and
JENS MUECKENHEIM1
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Appeal 2012-005617
Application 11/863,483
Technology Center 2600
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Before JASON V. MORGAN, JOHNNY A. KUMAR, and
LINZY T. McCARTNEY, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 2–7, 9–12, and 16–20. Claims 1 and 8 have been
canceled. App. Br. 2. Claims 14 and 15 have been allowed, and claim 13
has been indicated as containing allowable subject matter. Id.; Ans. 14–15.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 Alcatel Lucent USA is the Real Party in Interest. App. Br. 1.
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Invention
Appellants invented a
method of controlling a load at a wireless communication base
station [that] includes determining an indication of a maximum
path loss between the base station and any high speed data users
currently in a cell served by the base station. A target loading
limit for the cell is set based upon the determined indication of
the maximum path loss.
Abstract.
Exemplary Claims
Independent claim 11, and claims 3, 5, 9, 12, and 16 which depend
therefrom, are reproduced below with key limitations emphasized:
11. A method of controlling a load at a wireless
communication base station, comprising the steps of:
determining an indication of a maximum path loss
between the base station and any high speed data users
currently in a cell served by the base station;
setting a target loading limit for the cell based upon the
determined indication of the maximum path loss;
determining a maximum loading limit for the cell;
setting the target loading to be less than or equal to the
maximum loading limit; and
setting the target loading limit based upon a mean
loading in the cell over a selected time and a variance of the
loading in the cell over the selected time.
3. The method of claim 11, comprising
determining a transport block size for the user
corresponding to the determined indication of the maximum
path loss; and
setting the target loading limit based upon the
determined transport block size.
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5. The method of claim 11, comprising
determining distances between any high speed data users
currently in the cell and the base station and
wherein the determined indication of the maximum path
loss corresponds to the furthest determined distance.
9. The method of claim 11, comprising
updating the target loading limit more frequently than
making any changes to the maximum loading limit.
12. The method of claim 11, comprising
setting the target loading limit to be equal to the
maximum loading limit if the variance is approximately zero.
16. The method of claim 11, comprising
estimating the variance from data when the data value
exceeds the mean value.
Rejections
The Examiner rejects claims 2, 11, 12, and 16–18 under 35 U.S.C.
§ 103(a) as being unpatentable over Carlsson (WO 2007/039789 A1; filed
Oct. 3, 2005) and Zahir Azami (US 2004/0005041 A1; Jan. 8, 2004).2 Ans.
4–7, 13–14.

2 Appellants note the Examiner mistakenly cites to Iochi in the statement of
the rejection of claims 12 and 16, but does not rely on Iochi in rejecting
these claims or claim 11 from which they depend. App. Br. 11. We agree
that the Examiner’s rejection of claims 12 and 16 does not rely on Iochi. See
Ans. 4–6, 13–14. However, the Examiner’s mistaken reference to Iochi—an
additional reference not relied upon for any recitations in claims 12 and
16—is insufficient to constitute reversible error. Cf. In re Kronig, 539 F.2d
1300, 1303 (CCPA 1976) (the Board did not err in affirming a rejection
based on fewer references than relied upon by the Examiner).
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The Examiner rejects claims 3, 4, 9, 19, and 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Carlsson, Zahir Azami, and Iochi (US
2005/0208973 A1; Sept. 22, 2005). Ans. 8–10.
The Examiner rejects claims 5 and 6 under 35 U.S.C. § 103(a) as
being unpatentable over Carlsson, Zahir Azami, and Piekarski (US 2008/
0153509 A1; June 26, 2008). Ans. 11.
The Examiner rejects claims 7 and 10 under 35 U.S.C. § 103(a) as
being unpatentable over Carlsson, Zahir Azami, Iochi, and Englund (WO
2006/077141 A1; July 27, 2006). Ans. 12–13.
ISSUES
1. Did the Examiner err in relying on the combination of Carlsson
and Zahir Azami to teach or suggest the recitations of claim 11?
2. Did the Examiner err in finding the combination of Carlsson, Zahir
Azami, and Iochi teaches or suggests “setting the target loading limit based
upon the determined transport block size,” as recited in claim 3?
3. Did the Examiner err in finding the combination of Carlsson, Zahir
Azami, and Piekarski teaches or suggests “determining distances between
any high speed data users currently in the cell and the base station,” as
recited in claim 5?
4. Did the Examiner err in finding the combination of Carlsson, Zahir
Azami, and Iochi teaches or suggests “updating the target loading limit more
frequently than making any changes to the maximum loading limit,” as
recited in claim 9?
5. Did the Examiner err in finding the combination of Carlsson and
Zahir Azami teaches or suggests “setting the target loading limit to be equal
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to the maximum loading limit if the variance is approximately zero,” as
recited in claim 12?
6. Did the Examiner err in concluding the combination of Carlsson
and Zahir Azami teaches or suggests “estimating the variance from data
when the data value exceeds the mean value,” as recited in claim 16?
ANALYSIS
Claims 2, 7, 10, 11, 17, and 18
In rejecting independent claim 11, the Examiner finds Carlsson’s
process for selecting a MRCR—a predetermined maximum load for
guaranteed random access channel (RACH) coverage—teaches or suggests:
(1) determining an indication of a maximum path loss between the base
station and any high speed data users currently in a cell served by the base
station; (2) setting a target loading limit for the cell based upon the
determined indication of the maximum path loss; (3) determining a
maximum loading limit for the cell; and (4) setting the target loading to be
less than or equal to the maximum loading limit. Ans. 5 (citing Carlsson 6,
ll. 14–21, 6, l. 24–7, l. 2, 7, ll. 11–15, 17–21).
Appellants contend the Examiner’s findings do not show Carlsson
teaches or suggests both “a maximum loading limit for a cell and a separate
target loading limit.” App. Br. 5; see also Reply Br. 1. Appellants argue
Carlsson instead merely teaches the MRCR limit. See App. Br. 5.
Appellants also argue Carlsson’s MRCR “is not set based upon current
users’ maximum path loss indications,” and thus “[t]here is no mention
anywhere in [Carlsson] of a target loading limit that is set based upon an
indication of maximum path loss for current high speed users within the
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cell.” Id. at 6; see also Reply Br. 2. Therefore, Appellants argue the
Examiner erred in relying on Carlsson to teach or suggest the steps relating
to the use of a maximum path loss, the setting of a target loading limit, and
the determining of a maximum loading limit for a cell.
Appellants’ arguments are not persuasive because, as the Examiner
correctly finds
Carlsson discloses that “The MRCR value is set in such a
manner that a thought [sic] of given UE [(user entity)], having
the maximum possible path loss that expectedly can arise
within the desired cell coverage area, can forward its first
RACH message to Node B. In other words, MRCR should be
selected so that an UE with a specific maximum path loss
can always transmit at a specific minimum data rate.
Moreover, MRCR should be selected so that the interference to
neighboring cells is not exceeding [sic] a given level.”
Ans. 18–19 (citing Carlsson 7, ll. 16–22).
In particular, Carlsson’s use of an expected maximum path loss
teaches or suggest setting a target loading limit for a cell based upon an
indication of maximum path loss. Carlsson 7, ll. 17–21. Appellants argue
“there is a difference between using current user information and expected
or potential path loss information.” Reply Br. 2; see also App. Br. 6.
However, Carlsson explicitly teaches performing “iterative estimations of
MAX_ROT [(the maximum carrier load pertaining to a given prevalent user
entity)] for all prevalent user entities in order to allocate or re-allocate
resources efficiently.” Carlsson 7, ll. 4–6 (emphasis added). Although
Carlsson discloses “it cannot be assumed the prevalent worst-case user entity
(minimum MAX_ROT(UEn)) in a given situation represents the possible
worst-case situation” (id. 7, ll. 11–12), an artisan of ordinary skill would
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have recognized that the possible worst-case path loss is at least the
prevalent maximum path loss (see Ans. 19). Thus, Carlsson does not merely
disclose a limit based on a potential maximum path loss, but also teaches or
suggests a limit based on the maximum path loss with respect to prevalent
user entities. See id.
Carlsson’s additional constraint—limiting MCRC so that the
interference to neighboring cells does not exceed a given level—further
teaches or suggests determining a maximum loading limit for the cell.
Carlsson 7, ll. 21–22. This constraint is independent of the maximum path
loss considerations, and thus, contrary to Appellants’ arguments (see App.
Br. 5; Reply Br. 1–2), teaches or suggests the claimed use of a maximum
loading limit for the cell.
Appellants further argue “[t]here is no mention anywhere in the
[Carlsson] reference of a target loading limit that is set based upon an
indication of maximum path loss for current high speed users within the
cell.” App. Br. 6. However, as discussed above, Carlsson teaches or
suggests the use of a maximum path loss for prevalent (i.e., current) user
entities to set a target loading limit. As the Examiner correctly finds,
Carlsson relates to communication aspects of high-speed data usage in code
division multiplex access systems. Ans. 20 (citing Carlsson 1, ll. 5–9).
Specifically, Carlsson’s invention “relates to aspects of (high-speed packet)
uplink packet access communication, such as enhanced uplink traffic
(EUL).” Carlsson 1, ll. 6–8. Thus, in teaching or suggesting determining an
indication of a maximum path loss between a base station and user entities,
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Carlsson teaches or suggests that such user entities may be high speed data
users (i.e., users that make use of high-speed packet communications).
The Examiner further relies on Zahir Azami’s use of a class load
mean and load variance to calculate an estimated load mean and an
estimated loan variance to teach or suggest setting the target loading limit
based upon a mean loading in the cell over a selected time and a variance of
the loading in the cell over the selected time. Ans. 5 (citing Zahir Azami
¶¶ 18, 21). The Examiner concludes it would have been obvious to an
artisan of ordinary skill to modify Carlsson “to forecast efficient future cell
loading limits, and consequently providing an efficient communication
system.” Ans. 6.
Appellants contend the Examiner erred in relying on the combined
teachings and suggestions of Carlsson and Zahir Azami because Zahir
Azami’s “[h]istorical information regarding loading in the cell has no
relationship with the technique in the Carlsson reference for allocating a user
to one of the two carriers.” App. Br. 7; see also Reply Br. 2–3. However,
Appellants’ arguments do not persuasively show error in the Examiner’s
conclusion that an artisan of ordinary skill would have recognized modifying
Carlsson to take into account previous values (i.e., using Zahir Azami’s
mean and load variance values) would help achieve “the desired results
based on factual occurrences in the past.” Ans. 21.
The use of values representing past loading characteristics is
consistent with Carlsson’s disclosure that “it cannot be assumed that the
prevalent worst-case user entity . . . in a given situation represents the
possible worst-case situation.” Carlsson 7, ll. 11–12. That is, an artisan of
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ordinary skill would have recognized taking into account not just the
prevalent worst-case path loss, but also information about previous loading
characteristics, would help accurately identify the possible worst-case
situation. See Ans. 22 (Carlsson’s cell load determination depends on past
performance; modifying Carlsson to use statistical measures provides better
results based on factual measures). Therefore, the Examiner has provided a
persuasive reason, having a rational underpinning, in support of the
proposed combination of Carlsson and Zahir Azami. Id. at 6. Appellants’
arguments do not persuasively show error in this reason.
Appellants also argue modifying Carlsson using the teachings and
suggestions of Zahir Azami would change Carlsson’s principle of operation
of “considering a user’s noise enduring capability and choosing carrier C1 or
C2 accordingly.” App. Br. 7. However, Appellants do not persuasively
show how the use of Zahir Azami’s teachings and suggestions to modify
Carlsson’s teachings and suggestions related to setting a target loading limit
affects carrier selection in a manner that changes Carlsson’s purported
principle of operation. Therefore, we do not find Appellants’ arguments
persuasive of error.
For these reasons we find the Examiner did not err in relying on the
combination of Carlsson and Zahir Azami to teach or suggest the recitations
of claim 11. Ans. 4–6. Accordingly, we sustain the Examiner’s 35 U.S.C.
§ 103(a) rejection of independent claim 11, and claims 2, 7, 10, 17, and 18,
which Appellants do not argue separately. App. Br. 5.
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Claims 3, 4, 19, and 20
In rejecting claim 3, the Examiner finds Iochi’s use of a received
signal quality level to set a maximum transport block size teaches or
suggests setting the target loading limit based upon the determined transport
block size. Ans. 8 (citing Iochi ¶ 159). Specifically, the Examiner relies on
Iochi’s teaching of “an assigner that determines a maximum transport block
size to satisfy a predetermined received quality according to the signal
quality estimated by the quality estimator.” Iochi ¶ 159.
Appellants contend the Examiner erred because “[s]etting a target
loading limit is not the same thing as setting a maximum transport block
size.” App. Br. 8. Appellants argue the cited disclosure in Iochi relates to
“setting a transport block size for a user.” Id. (citing Iochi ¶ 159).
The Examiner does not dispute that a target loading limit is distinct
from a maximum transport block size. Instead, the Examiner finds “that one
skilled in the art would understand that setting a target load is based on
channel quality and Iochi teaches setting quality based on maximum
transport block. Thus, an [artisan] would recognize that setting the target
loading limit is based on the transport block size.” Ans. 22.
The Examiner does not identify evidence that persuasively shows
Iochi teaches or suggests setting a target load based on a channel quality that
is based on a maximum transport block. In particular, the cited portion of
Iochi merely relates to setting a maximum transport block size “to satisfy a
predetermined received quality,” rather than setting a channel quality—and a
target load—based on a maximum transport block size. See Iochi ¶ 159.
Thus, the Examiner’s finding that Iochi teaches setting quality (and a target
load) based on a maximum transport block size is not supported by a
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preponderance of the evidence on record. The Examiner does not rely on
Carlsson or Zahir Azami to cure the noted deficiency of Iochi. Therefore,
the Examiner erred in finding the combination of Carlsson, Zahir Azami,
and Iochi teaches or suggests “setting the target loading limit based upon the
determined transport block size,” as recited in claim 3. Ans. 8.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 3, and claims 4, 19, and 20, which contain similar
recitations.
Claims 5 and 6
In rejecting claim 5, the Examiner finds Piekarski’s determination of a
distance from a mobile phone to a base station teaches or suggests the
determination and use of such distance as an indication of maximum path
loss when combined with the teachings and suggestions of Carlsson. Ans.
11 (citing Carlsson ¶ 16). Appellants contend the Examiner erred because
“[t]here would be no benefit to adding a determination regarding distances to
the teachings of” Carlsson. App. Br. 10. Appellants argue “[d]etermining a
distance between a user and the base station will not in any way enhance the
ability of the Carlsson reference to use the noise enduring capability
information that it already has for purposes of assigning a user to a carrier.”
Id.
Appellants’ arguments are not persuasive of error because, as
discussed above, Carlsson teaches or suggests using prevalent maximum
path loss in setting a target loading limit. Appellants do not persuasively
show error in the Examiner’s finding that Piekarski’s determination of
mobile phone to base station distance provides an indication of maximum
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path loss. Ans. 23. Thus, we agree with the Examiner it would have been
obvious to an artisan of ordinary skill to modify Carlsson’s teachings and
suggestions to use Piekarski’s distance determination to determine a
maximum path loss. Id. Therefore, we agree with the Examiner the
combination of Carlsson, Zahir Azami, and Piekarski teaches or suggests
“determining distances between any high speed data users currently in the
cell and the base station,” as recited in claim 5. Id. at 11.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 5, and claim 6, which Appellants do not argue separately. App. Br.
10.
Claim 9
In rejecting claim 9, the Examiner finds Carlsson’s adjustment of a
transport block size—when the transport block size exceeds the amount of
data awaiting transmission by more than a predetermined range—teaches or
suggests updating the target loading limit more frequently than making any
changes to the maximum loading limit. Ans. 9 (citing Iochi ¶ 167).
Appellants contend the Examiner erred by incorrectly alleging “Iochi’s
teaching regarding setting a transport block size corresponds to setting a
target loading limit more frequently than making any changes to a maximum
loading limit.” App. Br. 10.
The Examiner does not present additional findings to show how
updating a transport block size teaches or suggests the claimed target loading
limit update frequency, but instead merely finds Appellants’ arguments are
addressed by the Examiner’s rationale for rejecting claim 3. Ans. 22.
However, claim 3 does not relate to the frequency with which a target
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loading limit is updated. Moreover, the Examiner’s findings do not
persuasively show how Iochi’s transport block size update relates to the
claimed target loading limit update frequency. The Examiner does not rely
on Carlsson or Zahir Azami to cure the noted deficiency of Iochi. Therefore,
the Examiner’s findings do not show the combination of Carlsson, Zahir
Azami, and Iochi teaches or suggests “updating the target loading limit more
frequently than making any changes to the maximum loading limit,” as
recited in claim 9.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 9.
Claim 12
In rejecting claim 12, the Examiner finds Zahir Azami’s use of a load
mean and load variance teaches or suggests setting the target loading limit to
be equal to the maximum loading limit if the variance is approximately zero.
Ans. 13 (citing Zahir Azami ¶¶ 18, 21). Appellants contend the Examiner
erred because neither of the cited paragraphs of Zahir Azami “contain any
teaching regarding setting a target loading limit to be equal to a maximum
loading limit (regardless of what the variance may be).” App. Br. 11.
Appellants also contend the Examiner’s construction of “approximately zero
[as] any number that is not zero” is unreasonably broad. Id. at 12.
Appellants’ arguments are not persuasive because the disputed
recitation of claim 12 is a conditional method step. In the broadest
reasonable scenario—where the variance is not approximately zero—the
step is performed regardless of whether the target loading limit is set to be
equal to the maxim loading limit. That is, being conditional, the disputed
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recitation has no effect in the broadest reasonable scenario. Thus, the
Examiner’s findings need not show the prior art teaches or suggests the
conditional step. See Ex parte Katz, 2011 WL 514314, *4 (BPAI 2011)
(non-precedential) (citing In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004)). Therefore, the Examiner did not err in finding the
combination of Carlsson and Zahir Azami teaches or suggests “setting the
target loading limit to be equal to the maximum loading limit if the variance
is approximately zero,” as recited in claim 12. Ans. 13.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 12.
Claim 16
In rejecting claim 16, the Examiner finds Zahir Azami’s use of a load
mean and load variance teaches or suggests estimating the variance from
data when the data value exceeds the mean value. Ans. 14 (citing Zahir
Azami ¶¶ 18, 21). Appellants do not dispute that Zahir Azami teaches or
suggest the claimed variance estimate, but merely argue the Examiner’s
reason for combining the teachings and suggestions of Zahir Azami and
Carlsson “has nothing to do with the technique of the Carlsson reference in
which uses are allocated to one of two carriers.” App. Br. 12.
Appellants’ arguments are not persuasive of error because, as
discussed above, an artisan of ordinary skill would have recognized
modifying Carlsson to take into account previous values (i.e., using Zahir
Azami’s mean and load variance values) would help achieve “the desired
results based on factual occurrences in the past.” Ans. 21. The disputed
recitation of claim 16 merely relates to the estimation of the variance used in
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claim 11. Appellants’ arguments do not show error in the Examiner’s
reliance on the combined teachings and suggestions of Zahir Azami and
Carlsson to teach or suggest the recitations of claim 11, and Appellants do
not show error in the Examiner’s reliance on Zahir Azami to teach or
suggest the refinement of this method recited in claim 16. Therefore, we
agree with the Examiner the combination of Carlsson and Zahir Azami
teaches or suggests “estimating the variance from data when the data value
exceeds the mean value,” as recited in claim 16. Ans. 13.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 16.
DECISION
We affirm the Examiner’s decision rejecting claims 2, 5–7, 10–12,
and 16–18.
We reverse the Examiner’s decision rejecting claims 3, 4, 9, 19, and
20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED-IN-PART

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