Ex Parte Le Goff

Patent Trial and Appeal Board

Feb 25, 2013

10548720 (P.T.A.B. Feb. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DAVID LE GOFF
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Appeal 2011-011136
Application 10/548,720
Technology Center 2400
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Before THU A. DANG, JAMES R. HUGHES, and GREGORY J.
GONSALVES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 3, 4, 6-12, and 17-28. Claim 13-16 are indicated as containing
allowable subject matter (Ans. 9), and claims 2 and 5 have been cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellant’s invention relates to a testing apparatus for digital
telecommunication and a method of determining a quality of at least one
channel in a digital telecommunication (Spec. 1, ll. 4-7).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A testing apparatus for receiving signals in a frequency
range comprising a plurality of channels, the testing apparatus
comprising a tuner arranged to scan said frequency range, a
demodulator arranged to receive the signals from the tuner and
to detect at least one channel comprising a digital signal, an
error corrector circuit arranged to receive said digital signal
and to measure at least one bit error rate of said digital signal
and a number of uncorrectable packets in said digital signal, a
controller arranged to determine a quality of the at least one
channel responsive to comparing said bit error rate to at least
one threshold and taking into account the number of
uncorrectable packets.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
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D’Amico US 6,741,554 B2 May 24, 2004
Ninomiya US 6,771,318 Bl Aug. 03, 2004
Miyabayashi US 6,982,745 B2 Jan. 03, 2006
(filed Nov. 26, 2002)

Claims 1, 3, 4, 6-9, 11, 12, 17, 18, 20-25, 27, and 28 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Miyabayashi and
Ninomiya.
Claims 10, 19, and 26 stand rejected under 35 U.S.C. § 13(a) as being
unpatentable over Miyabayashi, Ninomiya and D’Amico.

II. ISSUE
The dispositive issue before us is whether the Examiner has erred in
determining that the combination of Miyabayashi and Ninomiya teaches or
would have suggested a testing apparatus comprising “a controller arranged
to determine a quality of the at least one channel responsive to comparing
said bit error rate to at least one threshold” (claim 1, emphasis added). In
particular, the issue turns on whether Miyabayashi’s microprocessor that
compares the bit error rate to a conversion table of carrier-to-noise (CN)
ratio would at least have suggested a controller that is capable of comparing
the bit error rate to a “threshold.”

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Miyabayashi
1. Miyabayashi discloses selecting, as an antenna level to be
displayed, with either the carrier-to-noise (CN) ratio based on mapped points
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of the received signal or the CN ratio based on the error rate (col. 5, ll. 26-
30).
2. The microprocessor has a read-only-memory (ROM) containing
a conversion table of the CN ratio to the bit error rate obtained from the
received signal, wherein the CN ratio is calculated corresponding to the bit
error rate (col. 10, ll. 14-23).
3. The CN value calculated from the bit error rate is used to
display the proper CN ratio that faithfully reflects the signal environment
(col. 10, ll. 53-58).

IV. ANALYSIS
Appellant contend that although the Examiner finds that “a conversion
of data using a ROM or look-up table corresponds to claim limitations
directed toward a comparisons to a threshold,” “no reasonable interpretation
would confuse the use of a conversion/lookup table with a comparison to a
threshold value” (Reply Br. 3). In particular, Appellant contends that
“Appellant’s [S]pecification teaches … that the threshold can represent a
value above which certain action is taken and below which the action is not
taken” (id.).
However, we give the claim its “broadest reasonable interpretation”
consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997) (citations omitted). Although Appellant contends that the
Specification teaches that a threshold “can represent a value above which
certain action is taken and below which the action is not taken” (Reply Br. 3,
emphasis added), claim 1 does not provide any such definition for
“threshold,” and the portion of the Specification merely discloses a possible
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example of “threshold.” In fact, claim 1 merely defines “threshold” as a
value to which the bit error rate is compared.
We note that the value to which the error rate is compared is merely a
data type that the controller is arranged to compare. However, what type of
data that is being compared does not alter the functionality of or provide any
additional function to the comparing of the data to the error rate. That is, the
limitation is essentially nonfunctional descriptive material in that the
limitation simply describes the type data to be compared to the error rate, but
the underlying functionality remains the same regardless of the data type.
Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). See Ex
parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative) (Fed. Cir.
Appeal No. 2006-1003), aff’d, Rule 36 (June 12, 2006).
Accordingly, we give “threshold” its broadest reasonable
interpretation as merely data to which a bit error rate is compared.
We also note that claim 1 merely recites a “testing apparatus”
comprising “a controller arranged to” perform certain steps (emphasis
added). However, we find such “arranged to” language merely represents a
statement of intended purpose controller. An intended purpose will not limit
the scope of the claim because it merely defines a context in which the
invention operates. Boehringer Ingelheim Vetmedica, Inc. v. Schering-
Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Thus, we give “a
controller arranged to” its broadest reasonable interpretation as any
controller that is capable of receiving and determining the quality of a
channel responsive to comparing the bit error rate to a value.
Miyabayashi discloses determining an antenna level to be displayed
based on the CN ratio calculated from the error rate (FF 1). The CN ratio is
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calculated by comparing the bit error rate obtained from a received signal
with values in a conversion table of the CN ratio (FF 2). That is,
Miyabayashi discloses comparing the error rate to a value. We find that
Miyabayashi discloses a controller that is capable of comparing the bit error
rate to a value, such as a “threshold,” as required by claim 1.
Furthermore, in Miyabayashi, the CN value calculated from the bit
error rate is used to display the proper CN ratio that faithfully reflects the
signal environment (FF3). That is, the CN ratio is a value that faithfully
reflects the signal environment. Thus, even if we were to apply Appellant’s
definition “that the threshold can represent a value above which certain
action is taken and below which the action is not taken” (Reply Br. 3), we
find no error in the Examiner’s finding that Miyabayashi’s values stored in
ROM 62 to which the error rate is compared comprise a “threshold” (Ans.
10).
Accordingly, we find that the Examiner has not erred in rejecting
claim 1 over Miyabayashi in view of Niyomiya. Appellant does not provide
arguments for claims 3, 4, 6-9, 11, 12, 17, 18, 20-25, 27, and 28 separate
from those of claim 1 (App. Br. 4). Accordingly, claims 3, 4, 6-9, 11, 12,
17, 18, 20-25, 27, and 28 fall with claim 1.
Appellant does not provide arguments for claims 10, 19, and 26 (App.
Br. 4). Accordingly, Appellant fails to show error in the Examiner’s
rejection of claims 10, 19 and 26 over Miyabayashi and Niyomiya in further
view of D’Amico.

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V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1, 3, 4, 6-12, and 17-28 under
35 U.S.C. § 103(a) is affirmed.
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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