Ex Parte Kashima

Patent Trial and Appeal Board

Feb 27, 2017

13939444 (P.T.A.B. Feb. 27, 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.
13/939,444 07/11/2013 Tsuyoshi KASHIMA NC60269-US-CON 5378
100809 7590 03/01/2017
Core Wireless Licensing Ltd
5601 Granite Parkway
Suite 1300
Plano, TX 75024
EXAMINER
CHU, GABRIEL L
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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):
ipadmin-core@core-wireless.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TSUYOSHI KASHIMA
Appeal 2016-005187
Application 13/939,4441
Technology Center 2100
Before LARRY J. HUME, SCOTT B. HOWARD, and
JOHN D. HAMANN, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 4—6, 8, 11—14, and 17—21. Appellant has canceled
claims 2, 3, 7, 15, and 16. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Core Wireless
Licensing S.a.r.l. App. Br. 3.
Appeal 2016-005187
Application 13/939,444
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed and claimed inventions relate to "detecting
failure of an error detection scheme relating to transmission of data units of a
transport block. A negative acknowledgement message is generated in
response to the detection of the failure . . . [and is] forwarded to a radio link
controller for discarding one or more of the data units." Abstract.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphasis added to contested limitation):
1. A method comprising:
detecting failure of an error detection scheme relating to
transmission of data units of a transport block;
generating a negative acknowledgement message in
response to the detection of the failure;
forwarding the negative acknowledgement message to a
radio link controller for discarding one or more of the data
units; and,
upon receipt of the negative acknowledgement message,
examining one or more acknowledged logical channels to
determine whether the acknowledged logical channels are
transporting a last retransmission of one of the data units.
2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed
Oct. 13, 2015); Reply Brief ("Reply Br.," filed Apr. 12, 2016); Examiner's
Answer ("Ans.," mailed Feb. 12, 2016); Final Office Action ("Final Act.,"
mailed Mar. 10, 2015); Advisory Action ("Adv. Act.," mailed
May 18, 2015); and the original Specification ("Spec.," filed July 11, 2013).
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Application 13/939,444
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Padmanaban et al. US 2005/0198028 A1 Sept. 8, 2005
("Padmanaban")
Ranta et al. US 2007/0177630 Al Aug. 2, 2007
("Ranta")
Sammour et al. US 2007/0245201 Al Oct. 18, 2007
("Sammour")
Chandra et al. US 2008/0209297 Al Aug. 28, 2008
("Chandra")
Rejections on Appeal
Rl. Claims 1, 4, 6, 8, 11, 18, 19, and 21 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Sammour,
Padmanaban, and Chandra. Ans. 2; Final Act. 3.
R2. Claims 5, 12—14, 17, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Sammour,
Padmanaban, Chandra, and Ranta. Ans. 5—6; Final Act. 5—6.
CFAIM GROUPING
Based on Appellant's arguments (App. Br. 5—6), we decide the appeal
of obviousness Rejection Rl of claims 1, 4, 6, 8, 11, 18, 19, and 21 on the
basis of representative claim 1.
We decide the appeal of obviousness Rejection R2 of independent
claim 14, not argued separately or with specificity, infra. Remaining
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Application 13/939,444
claims 5, 12, 13, 17, and 20 in Rejection R2, not argued separately, fall with
the respective independent claim from which they depend.3
ISSUE
Appellant argues (App. Br. 5—6; Reply Br. 2—3) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Sammour, Padmanaban, and Chandra is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method that includes, inter alia, the step of "upon receipt of the
negative acknowledgement message, examining one or more acknowledged
logical channels to determine whether the acknowledged logical channels
are transporting a last retransmission of one of the data units," as recited in
claim 1 (emphasis added)?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellant's arguments with respect to claim 1, and
we incorporate herein and adopt as our own: (1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken, and
(2) the reasons and rebuttals set forth in the Examiner's Answer in response
3 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/939,444
to Appellant's arguments. We incorporate such findings, reasons, and
rebuttals herein by reference unless otherwise noted. However, we highlight
and address specific findings and arguments regarding claim 1 for emphasis
as follows.
Appellant contends the Examiner erred in relying upon Chandra as
teaching or suggesting the contested limitation of claim 1, and particularly
argues:
At most, Chandra discloses "determining the number of outer-
loop retransmissions for a packet depending on its required
QoS" and does not disclose "examining one or more
acknowledged logical channels to determine whether the
acknowledged logical channels are transporting a last
retransmission of one of the data units," as recited in Claim 1.
App. Br. 6. Further, "because Chandra does not disclose any 'acknowledged
logical channels', let alone 'examining acknowledged logical channels', a
bare reference to an 'acknowledged mode', without more, is insufficient to
teach, suggest, or disclose to one of ordinary skill in the art every feature of
the claimed element." Id.
Appellant concludes his argument by alleging:
In fact, none of the cited references, alone or in
combination, discloses any examining of channels, let alone
"examining one or more acknowledged logical channels", or
further still "examining one or more acknowledged logical
channels to determine whether the acknowledged logical
channels are transporting a last retransmission of one of the data
units." Padmanaban | [0005], to which the Final Office Action
cites to attempt to teach at least part of this element, discloses
transmitting a NACK to request retransmission, but does not
disclose any logical channels, or any examining thereof.
Id.
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We first observe the predecessor to our reviewing court holds the test
for obviousness is what the combined teachings of the prior art would have
suggested to the hypothetical person of ordinary skill in the art. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981). We find Appellant argues the
references separately, and has not challenged the combinability of the
teachings of Sammour, Padmanaban, and Chandra.
Specifically, we note the Examiner relies upon Chandra's disclosure of
the known "acknowledged mode" (AM), in combination with the cited
disclosures of Sammour and Padmanaban as teaching or suggesting the
contested limitation of claim 1. We agree with the Examiner's finding.
We agree because, as the Examiner finds, "Appellant's argument itself
fails to define any meaning for an 'acknowledged logical channel', fails to
differentiate beyond art-recognized 'acknowledged mode', and barely
acknowledges that the mapping was even made. No argument of substance
has been put forth, and instead Appellant asserts that there should be 'more'
than the 'bare reference' but fails to explain how the citation was lacking or
how the remainder of Chandra (which supplies more references to both
acknowledged and unacknowledged modes) fails to supply 'more'."
Ans. 7—8.
Accordingly, based upon the findings above, on this record, we are
not persuaded of error in the Examiner's reliance on the combined teachings
and suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
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claims 4, 6, 8, 11, 18, 19, and 21 which fall therewith. See Claim Grouping,
supra.
§ 103(a) Rejection R2 of Claims 5, 12—14, 17, and 20
In view of the lack of any substantive or separate arguments directed
to the obviousness Rejection R2 of claims 5, 12—14, 17, and 20 under § 103
(see App. Br. 7), we sustain the Examiner's rejection of these claims.
Arguments not made are waived.4
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2—3) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellant has not shown.
Appellant alleges the Examiner set forth a new ground of rejection in
the Answer:
First, the Answer appears to change how Claim 1 is
allegedly] taught by the proposed Sammour-Padmanaban-
Chandra combination. With respect to the element, "examine
one or more acknowledged logical channels," the Answer offers
a position or rationale that changes the "basic thrust of the
4 Appellant merely argues,"[independent Claims 8, 14, and 18 include
features analogous to those presented with respect to Claim 1. The rejection
of Claims 8, 14, and 18 presented in the FOA are therefore improper for
reasons analogous to those discussed with respect to Claim 1. Therefore,
reversal by the Honorable Board of the rejections of Claims 1, 8, 14, and 18
presented in the FOA is respectfully solicited, along with each of their
respective dependent Claims." App. Br. 7.
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rejection," which will also give rise to a new ground of
rejection. See MPEP 1207.03 .... Thus, it is respectfully
submitted that the Answer has introduced a new ground of
rejection, and in any case, the rejection of Claims 1, 4, 6, 8, 11,
18, 19 is improper because the proposed Sammour-
Padmanaban-Chandra combination fails to disclose every
element of Claims 1,8, 14 and 18.
Reply Br. 3.
We note Appellants' assertion the Examiner introduced a new ground
of rejection in the Answer was a petitionable matter, and Appellant did not
file a petition under 37 CFR § 1.181 (a) within two months from the mailing
date of the Answer, as required. See MPEP §§ 1207.03(b); and see 37
C.F.R. §41.40(a).5
In any event, we find Appellant's Reply Brief does not address or
otherwise refute, with particularity, the Examiner's finding (Ans. 7) that
"Appellant's 'acknowledged logical channel' is merely a reference to the art-
recognized concept of acknowledged mode shown in Chandra."
Thus, we are not persuaded the Examiner erred in rejecting the claims
on Appeal after consideration of Appellant's arguments in the Reply Brief.
5 " Timing. Any request to seek review of the primary examiner's failure to
designate a rejection as a new ground of rejection in an examiner's answer
must be by way of a petition to the Director under § 1.181 of this title filed
within two months from the entry of the examiner's answer and before the
filing of any reply brief. Failure of appellant to timely file such a petition
will constitute a waiver of any arguments that a rejection must be designated
as a new ground of rejection." 37 C.F.R. § 41.40(a).
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CONCLUSION
The Examiner did not err with respect to obviousness Rejections R1
and R2 of claims 1, 4—6, 8, 11—14, and 17—21 under 35 U.S.C. § 103(a) over
the cited prior art combinations of record, and we sustain the rejections.
DECISION
We affirm the Examiner's decision rejecting claims 1, 4—6, 8, 11—14,
and 17—21.
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). See 37
C.F.R. §41.50(f).
AFFIRMED
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