Ex Parte Kwun et al

Patent Trial and Appeal Board

Aug 22, 2013

11841109 (P.T.A.B. Aug. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEALS BOARD
____________________

Ex parte JONG-HYUNG KWUN and DAI-KWAN KIM
____________________

Appeal 2012-005613
Application 11/841,109
Technology Center 2600
____________________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
CARLA M. KRIVAK, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-005613
Application 11/841,109

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-38. (App. Br. 2). The Examiner withdrew the rejections of claims
6, 11, 12, 25, 30, and 31. (Ans. 3, 30). Therefore, the rejections of claims
1-5, 7-10, 13-24, 26-29, and 32-38 are before us. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

INVENTION
Appellants’ claimed invention relates to a scheduler for “frequency-
selectively allocating a resource to a mobile station connected to a relay
station in a broadband wireless communication system.” (Spec. ¶[0002]).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. An apparatus of a Base Station (BS) in a relay type
wireless communication system, the apparatus comprising:

a transmitter for transmitting a pilot signal transmission
request message to a Mobile Station (MS), wherein the pilot
signal transmission request message instructs the MS to
transmit a pilot signal used by a Relay Station (RS) to estimate
a channel between the MS and the RS; and

a scheduler for frequency-selectively allocating a
resource to the MS by using channel information upon
receiving from the RS the channel information estimated using
the pilot signal.
(Disputed limitations emphasized).

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Application 11/841,109

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REFERENCES
The Examiner relies on the follow references as evidence in support
of the rejections on appeal:
Yu US Pat. App. Pub. No. 2005/0191965 A1 Sep. 1, 2005
Schmutz US 7,020,436 B2 Mar. 28, 2006
Sutivong US Pat. App. Pub. No. 2006/0072604 A1 Apr. 6, 2006
Hirano US Pat. App. Pub. No. 2006/0153141 A1 Jul. 13, 2006
Tong US Pat. App. Pub. No. 2008/0095223 A1 Apr. 24, 2008
(Provisional application No. 60/614,621 filed Sep. 30, 2004)
Miyoshi US Pat. App. Pub. No. 2008/0192857 A1 Aug. 14, 2008
(PCT filed Dec. 26, 2005)
Shin US 7,493,136 B2 Feb. 17, 2009

REJECTIONS
The rejections of claims 6, 11, 12, 25, 30, and 31 under 35 U.S.C.
§ 103(a) have been withdrawn. (Ans. 3, 30).
R1. Claims 1, 5, 9, 10, 13, 14, 17, 20, 24, 28, 29, 32, 33, and 36 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Schmutz and
Sutivong.
R2. Claims 2, 3, 4, 7, 21-23, and 26 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Schmutz, Sutivong, and Yu.
R3. Claims 8, 16, 19, 27, 35, and 38 stand rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over Schmutz, Sutivong, and Miyoshi.
R4. Claims 15, 18, 34, and 37 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Schmutz, Sutivong, and Tong.

Appeal 2012-005613
Application 11/841,109

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GROUPING OF CLAIMS
Based on Appellants' arguments, we decide the appeal of the
obviousness rejection R1 of claims 1, 5, 9, 10, 13, 14, 17, 20, 24, 28, 29, 32,
33, and 36 on the basis of claim 1. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
Based on Appellants' arguments, we decide the appeal of the
obviousness rejection R2 of claims 2, 3, 4, 7, 21-23, and 26 on the basis of
claim 2. (Id.).
Based on Appellants' arguments, we will decide the appeal of the
obviousness rejection R3 of claims 8, 16, 19, 27, 35, and 38 on the basis of
claim 8. (Id.).
Based on Appellants' arguments, we will decide the appeal of the
obviousness rejection R4 of claims 15, 18, 34, and 37 on the basis of claim
15. (Id.).

ANALYSIS
A.
Issue: Under § 103, did the Examiner err in finding the
cited references, either alone or in combination, would have
taught or suggested "a transmitter for transmitting a pilot signal
transmission request message to a Mobile Station (MS)," within
the meaning of claim 1?
Appellants contend that Schmutz does not disclose "a pilot signal
transmission request message." (App. Br. 7-8).
Appellants' contention is not persuasive. The Examiner relies upon
Sutivong's pilot request to teach or suggest the claimed "pilot signal
transmission request message." (Ans. 7, 33). Appellants do not file a reply
brief to further rebut the Examiner's findings.
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B.
Issue: Under § 103, did the Examiner err in finding the
cited references, either alone or in combination, would have
taught or suggested "wherein the pilot signal transmission
request message instructs the MS to transmit a pilot signal used
by a Relay Station (RS) to estimate a channel between the MS
and the RS," within the meaning of claim 1?
Appellants contend "the pilot signal of the instant application is used
by the RS to estimate a channel between the MS and the RS, whereas the
pilot signal of Sutivong is used by a Base Station (BS) to estimate a reverse
link: between the MS and the BS." (App. Br. 9).
Appellants' contentions are not persuasive because Appellants are
attacking the references in isolation.1 The Examiner's ultimate legal
conclusion of obviousness (Ans. 5-8) is based on the combined teachings
and suggestions of the cited references.
The Examiner finds the combination of Schmutz and Sutivong would
have taught or suggested the limitation at issue. (Ans. 5-8). The Examiner
relies upon Sutivong's pilot request to teach or suggest "transmitting a pilot
signal transmission request message to a Mobile Station (MS), wherein the
pilot signal transmission request message instructs the MS to transmit a pilot
signal." (Ans. 7-8 citing Sutivong ¶ [0053]). The Examiner relies upon
Schmutz's MS and RS to teach or suggest "a MS transmitting a pilot signal"
(Ans. 6; Schmutz's claim 14, col. 2, l. 3, Fig. 4, steps 610, 620) "used by a
Relay Station [(RS)] to estimate a channel between the MS and the RS"
(Ans. 6; Schmutz, Fig. 4, steps 620, 630). Moreover, we find the proffered

1 See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)(One cannot
show nonobviousness by attacking references individually where the
rejection is based on combinations of references).
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combining of Sutivong's request message for an MS to transmit a pilot
signal to estimate a channel with Schmutz's teaching of using an RS
estimating channel between an MS and RS using a pilot signal from an MS,
would have been a combination of known elements with each performing
the same function it had been known to perform, thus yielding a predictable
result.2
Appellants also contend:
Moreover, Schmutz merely discloses an RS receiving a pilot
signal from an MS in an uplink channel (see claim 14 of
Schmutz). However, Schmutz does not disclose that the pilot
signal is used to determine a channel condition.
(App. Br. 9).
We disagree. The Examiner finds Schmutz teaches "a pilot signal"
transmitted by an MS (Fig. 4, steps 610, 620) is used by a relay station "to
estimate a channel between the MS and the RS" (Fig. 4, step 630, power
level of a pilot signal measured to estimate an indication of the measured
power level of the signal over the pilot channel between the MS and the RS).
(Ans. 7). Appellants do not rebut the Examiner's findings.
Appellants further contend:
Schmutz discloses that the [Base Transceiver Station (BTS)]
(i.e., BS) transmits traffic and control signals to the repeater
(RS) (see column 7, lines 22-24 of Schmutz). Moreover,
Schmutz discloses that any such request from a BS to an MS
would first be transmitted to the RS and then be relayed to the

2 “[W]hen a patent 'simply arranges old elements with each performing the
same function it had been known to perform' and yields no more than one
would expect from such an arrangement, the combination is obvious.” KSR
Int’l Co. v. Teleflex Inc. 550 U.S. 398, 417 (2007) (quoting Sakraida v. AG
Pro, Inc., 425 U.S. 273, 282 (1976)).
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MS. In contrast, the instant application claims that the
transmission of a pilot signal request message is from the BS to
the MS.
(App. Br. 9).
Appellants' contentions are not persuasive because Appellants'
argument is not commensurate with the broader scope of the claim.
Specifically, the claim does not require the request message be sent directly
from the base station to the mobile station. (See Ans. 35). We agree with
the Examiner that "a Base station . . . transmitting a pilot signal transmission
request message to a Mobile Station (MS)," as recited in claim 1, would
have been taught or suggested by the combination of Schmutz's and
Sutivong's pilot signal request message sent from the Base station to the
Mobile station via the repeater station. (See Id.). For these reasons, on this
record, we are not persuaded of Examiner error.
C.
Issue: Under § 103, did the Examiner err in finding the
cited references, either alone or in combination, would have
taught or suggested "frequency-selectively allocating a resource
to the MS by using channel information," within the meaning of
claim 1?
Appellants contend:
Schmutz merely discloses that, based on the measured input
power and the predetermined output power level received at the
BTS 15, the BTS 15 or [ Base Station Controller (BSC)] 17 will
accordingly instruct the mobile unit 18 to either lower power,
maintain power, boost power, or prepare for handoff. See
column 10, lines 59-63 of Schmutz.
. . . .
[I]t is not clear how Schmutz's power control scheme can be
considered to disclose this limitation. As is known in the art,
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power control does not equate to selectively allocating
frequency resources.
(App. Br. 10-11).
Appellants' contentions are not persuasive. The Examiner finds, and
we agree, that Schmutz's base station: (1) frequency-selectively allocates
power for a selected channel frequency ("resource"), and (2) frequency-
selectively allocates channels at selected frequencies ("resource") to the
mobile station, using the power level information from the pilot signal on
the pilot or ground link channel ("channel information"). (Ans. 6-7, 38-39).
Specifically, the Examiner finds Schmutz's BTS base station's
scheduler: (1) allocates power for channels ("resource") at set frequencies to
the MS (col. 10; ll. 34-44)) "by using channel information" (Fig. 4, step 630,
indication of power level received from the MS at the repeater; col. 8, ll. 11-
15, 26-41), and (2) at set frequencies, selectively, allocates channels
("frequency-selectively allocating a resource") (Fig. 4, step 645; col. 4, ll. 1-
3), and "upon receiving from the RS the channel information estimated"
(Fig. 4, steps 630, 640, indication of power level) "using the pilot signal"
(Fig. 4, step 610; pilot signal from mobile). (See Ans. 5-7, 38-39; Schmutz,
Fig. 4; claims 1, 4, and 7).
We conclude that the broadest reasonable interpretation of
"frequency-selectively allocates a resource" includes Schmutz's allocating
power for channels at set frequencies and Schmutz's allocating channels at
set frequencies for data transmission. (See Ans. 5-6). Moreover, Appellants
fail to cite to a more narrow definition of "frequency-selectively allocates" in
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the Specification.3 Appellants also do not rebut the Examiners findings. For
these reasons, on this record, we are not persuaded of Examiner error
regarding the first-stated rejection of representative claim 1 and associated
claims 5, 9, 10, 13, 14, 17, 20, 24, 28, 29, 32, 33, and 36.
Remaining Rejections R2-R4
Appellants urge that the claims rejected under rejections R2-R4 are
patentable for the same reasons we did not find persuasive regarding
rejection R1 and representative claim 1. (App. Br. 11-12). Therefore, we
sustain the Examiner's rejections R2-R4 for the same reasons discussed
above regarding claim 1.

CONCLUSION
The Examiner did not err in rejecting claims 1-5, 7-10, 13-24, 26-29,
and 32-38 under 35 U.S.C. § 103(a).

3 See Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
meaning; however, a patentee must clearly express that intent in the written
description") (citation omitted).) Any special meaning assigned to a term
"must be sufficiently clear in the specification that any departure from
common usage would be so understood by a person of experience in the
field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133
F.3d 1473, 1477 (Fed. Cir. 1998).
Appeal 2012-005613
Application 11/841,109

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DECISION
We affirm the Examiner's rejections R1-R4 of claims 1-5, 7-10,
13-24, 26-29, and 32-38 under § 103.
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

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