Ex Parte Leiba

Patent Trial and Appeal Board

Feb 15, 2017

13592467 (P.T.A.B. Feb. 15, 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.
13/592,467 08/23/2012 Yigal Leiba Si_MCSoptim 8748
16759 7590
Active Knowledge Ltd.
P.O. Box 294
Kiryat Tivon, 36011
ISRAEL
EXAMINER
YANG, JIANXUN
ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
02/17/2017 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):
ari@ activekn.com
gil@ activekn.com
taltiber@ gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YIGAL LEIBA
Appeal 2016-003958
Application 13/592,467
Technology Center 2600
Before ST. JOHN COURTENAY III, THU A. DANG, and
CATHERINE SHIANG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—9, 35, and 37-40, which are all the claims remaining
in the application. Claims 10-34 and 36 are withdrawn. We have
jurisdiction under 35 U.S.C. § 6(b).
We Affirm.
Appeal 2016-003958
Application 13/592,467
Invention
The disclosed and claimed invention on appeal relates to “a
millimeter-wave wireless point-to-point or point-to multipoint
communication system which maintains a stable communication link even in
the face of problems such as vibration or other mechanical disturbance to
transceivers in the system or radio interference to the transmission beam
produced by a transmitter and received by a receiver.” Abstract.
Representative Claim
1. A method for optimizing performance of a
millimeter-wave communication system, comprising:
detecting, by a millimeter-wave communication system,
a degradation in performance of a wireless data link conveyed
by said millimeter-wave communication system via a beam of
millimeter-waves;
[LI] performing, by said millimeter-wave communication
system, a test procedure comprising temporarily changing
direction at which said beam is pointing; and
[L2] selecting, by said millimeter-wave communication
system, according to a result of said test procedure, a course of
action for at least partially resolving said degradation, from
essentially two possible courses of action comprising:
(i) optimizing direction at which said beam is pointing of
said wireless data link, and
(ii) optimizing modulation and coding schemes of said
wireless data link.
(Contested limitations LI and L2 emphasized).
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Rejection
Claims 1—9, 35, and 37-40 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over the combined teachings and suggestions
of Hairapetian (US 2006/0068719 Al, Mar. 30, 2006) and Kwan et al
(US 2003/0081692 Al, May 1, 2003).
Dependent Claims 2—9 and 37—40
In reviewing the record, we observe Appellant attempts to limit the
claims on appeal to independent claims 1 and 35. Br. 6; see also Br. 3
(“Claims 1 and 35 are being appealed.”). However, pursuant to our
procedural rule 37 C.F.R. § 41.31(c), when an appeal is taken it is
“presumed to be taken from the rejection of all claims under rejection unless
cancelled by an amendment filed by the applicant and entered by the
Office.” Furthermore, pursuant to rule § 41.39(a)(1),
An examiner’s answer is deemed to incorporate all of the
grounds of rejection set forth in the Office action from which
the appeal is taken (as modified by any advisory action and pre­
appeal brief conference decision), unless the Examiner’s answer
expressly indicates that a ground of rejection has been
withdrawn.
Here, the Examiner has not withdrawn a rejection, and Appellant
may not appeal a subset of the rejected claims. See 37 C.F.R. § 41.31(c).
Arguments not made regarding claims 2—9 and 37 40 are waived. See 37
C.F.R. §41.37(c)(l)(iv).
Grouping of Claims
Based upon Appellant’s arguments, we decide the appeal of all claims
on the basis of representative claim 1. To the extent Appellant has not
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Application 13/592,467
advanced separate, substantive arguments for particular rejected claims or
issues, such arguments are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. We find Appellant’s arguments unpersuasive for the reasons
discussed infra. We adopt as our own: (1) the findings and legal conclusions
set forth by the Examiner in the Final Office Action from which this appeal
is taken, and (2) the findings, legal conclusions, and explanations set forth in
the Answer in response to Appellant’s arguments (Ans. 13—17). We
highlight and address specific findings and arguments for emphasis in our
analysis below.
Rejection of Representative Claim 1
Issues: Under 35 U.S.C. § 103, did the Examiner err by finding the
cited combination of Hairapetian and Kwan would have taught or suggested
contested limitations LI and L2, within the meaning of representative
claim 1? 1 Further, did the Examiner erred in combining the cited references
under § 103?
1 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997). Cf Spec. 17,11. 26—31 (“Embodiments/cases
described in conjunction with specific examples are presented by way of
example, and not limitation. Moreover, it is evident that many alternatives,
modifications and variations will be apparent to those skilled in the art.
Accordingly, it is intended to embrace all such alternatives, modifications
and variations that fall within the spirit and scope of the appended claims
and their equivalents.”) (emphasis added).
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Application 13/592,467
Contested Limitation LI
Regarding limitation LI, Appellant contends, inter alia, that the literal
claim terms,
“temporarily changing direction”, or an equivalent expression,
do not appear in Hairapetian or in Kwan. Neither Hairapetian
nor Kwan discuss [in] any way anything similar to temporarily
changing direction, not by itself, and certainly not in the context
of a “test procedure”.
Br. 7 (emphasis omitted).
The Examiner finds Hairapetian’s procedure is a “temporary”
operation within the scope of the claim, because:
it is not an operation in action continuously in all times. (Fig.
4A, “The transceivers may need to be aligned manually”,
[0068]; “The system may, for example optimize the alignment
over . . . some other time interval”, [0071]). In the case of
“some other time interval” being infinity, only one alignment is
performed. Thus the alignment may be a temporary operation.
Ans. 13—14 (emphasis added).
As an initial matter of claim construction, we look to Appellant’s
Specification for context. We conclude the Examiner’s interpretation of
“temporary” (Ans. 13) is consistent with the Specification, which contrasts
“temporary” problems, with corresponding solutions that are “to be
deployed on a permanent or semi-permanent basis . . . .” (Spec. 2,11. 22—
24).2 Therefore, on this record, we are not persuaded the Examiner’s
2 “Claim language employing terms of degree has long been found definite
where it provided enough certainty to one of skill in the art when read in the
context of the invention.” Interval Licensing LLC v. AOL, Inc., 766 F.3d
1364, 1370 (Fed. Cir. 2014) (citing Libel Process Co. v. Minn. & Ont. Paper
Co., 261 U.S. 45, 65-66 (1923)).
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Application 13/592,467
reading of the contested claim term “temporarily” is overly broad or
unreasonable.3 Ans. 13; Claim 1.
Turning to the evidence cited by the Examiner (Final Act. 2—3),
Hairapetian describes, in pertinent part, a system and method “for optimizing
a directional wireless communication link” in which “the directional link can
be, for example, a line of sight communication link or a millimeter wave
communication link.” Hairapetian 17 (emphasis added). Hairapetian
further describes a “feedback link is provided in a directional wireless
communication link to allow a directional transmitter to optimize an antenna
alignment and gain.” Id. Hairapetian additionally teaches “[t]he directional
transmitter can adjust a gain or alignment of the antenna based on the signal
metric.” Id.
Appellant acknowledges “it is true that Hairapetian describes ‘The
directional transmitter can adjust a gain or alignment of the antenna based on
the signal metric’, [0007] . . . .” Br. 7 (emphasis omitted). However,
Appellant urges this “‘adjustment of alignment’ is not a test performed to
understand if such an alignment is needed, but rather the alignment itself.”
Id. (emphasis in original omitted, emphasis added).
But it is not necessary for the prior art to serve the same purpose as
that disclosed in Appellant’s Specification in order to support the conclusion
that the claimed subject matter would have been obvious. See In re Lintner,
458 F.2d 1013, 1016 (CCPA 1972); see also KSR Inti Co. v. Teleflex Inc.,
3 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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550 U.S. 398, 419 (2007) (“[N]either the particular motivation nor the
avowed purpose of the [Appellant] controls” in an obviousness analysis.).
Moreover, a literal replication of claim terms is not required in a reference.4
This reasoning is applicable here. Given the Examiner’s broad but
reasonable claim interpretation (Ans. 13), on this record, we are not
persuaded the Examiner erred in finding that Hairapetian’s antenna
alignment procedure is a “test procedure” that involves “temporarily
changing [the] direction at which said beam is pointing,” within the meaning
of claim 1.
For the aforementioned reasons, we find a preponderance of the
evidence supports the Examiner’s underlying factual findings and legal
conclusion of obviousness regarding contested limitation LI (Final Act. 2—3;
Ans. 13-14).
Contested Limitation L2
Regarding limitation L2, Appellant further contends:
“selecting . . according to a result of said test procedure” does
not appear in Hairapetian or in Kwan, at least because no test
procedure in a context of changing a direction of a beam is ever
done, and at least because statements made in Hairapetian such
as ‘align the steerable antenna based in part on a feedback
signal’, [0008] are the alignment itself and not a selection
between different courses of actions.
Br. 8 (emphasis omitted).
However, we find Appellant’s contentions regarding limitation L2
(id.) are grounded on the erroneous premise that limitation LI is not taught
4 Cf. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (anticipation “is not an
‘ipsissimis verbis’ test” (citation omitted)). “An anticipatory reference . . .
need not duplicate word for word what is in the claims.” Standard Havens
Prods, v. Gencor Indus., 953 F.2d 1360, 1369 (Fed. Cir. 1991).
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or suggested by the Examiner’s proffered combination of Hairapetian and
Kwan. Appellant acknowledges, “[i]t is true that Hairapetian describes ‘The
directional transmitter can adjust a gain or alignment of the antenna based on
the signal metric’, [0007] and ‘align the steerable antenna based in part on a
feedback signal’, [0008] . . . Br. 8 (emphasis omitted). However,
Appellant urges “these are only descriptions of ‘optimizing direction at
which said beam is pointing’ (aligning), and not a description of two courses
of action, out of which one is selected as a result of a test procedure. ” Id.
(emphasis added).
Appellant further admits “it is true that Hairapetian discusses
alignment of the antenna and that Kwan discusses MCS [(Modulation and
Coding Scheme)] adaptation . . . .” Id. However, Appellant reiterates that
“even if the two references are combined, the result is not selecting between
the two possible procedures, and not selecting between the two possible
procedures based on a test procedure comprising temporarily changing
direction.” Id. (emphasis omitted).
The Examiner disagrees, and notes Hairapetian was relied on to teach:
optimizing a millimeter wave link by performing alignment to
achieve better received signal metric such as RSSI and symbol
error rate. Hairapetian also teaches that the wireless link
optimization may also include other transmission adjustment
besides the antenna orientation adjustment (“Optimizing the
alignment can include the physical beam alignment as well as
increasing a gain or directivity to a desired level”, [0069]).
Ans. 14—15.
The Examiner finds Hairapetian does not explicitly disclose that the
other adjustment is: “(ii) optimizing modulation and coding schemes of said
wireless link.” Ans. 15. However, the Examiner finds:
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Application 13/592,467
such deficiency is covered by Kwan et al (“provide optimized
adaptive modulation and coding and multi-code transmission
for a radio link”, [0010]; “selecting a number of channelization
codes and a modulation and coding scheme (MCS) from among
a plurality of MCSs for use by a transmitter over the radio
link”, [0011]) in a method of optimizing/testing a radio link
(“for a target radio link quality, said step of adaptively selecting
comprises the steps of testing, one after another, increasingly
higher order MCSs each capable of achieving a specified error
measure for said channel having said target radio channel
quality, and selecting a highest order MCS that tests for a
maximum allowed number of channelization codes or less
without falling below said target radio channel quality”,
[0015]).
Ans. 15.
In reviewing the evidence, we find Hairapetian teaches “(i) optimizing
[the] direction at which said beam is pointing of said wireless data link”
(claim 1), because Hairapetian expressly describes “optimizing a directional
wireless communication link” with “a feedback link ... to allow a
directional transmitter to optimize an antenna alignment and gain.”
Hairapetian 17 (emphasis added). Hairapetian teaches “[t]he directional
transmitter can adjust a gain or alignment of the antenna based on the signal
metric.” Id. We note Appellant acknowledges the same: “it is true that
Hairapetian describes ‘The directional transmitter can adjust a gain or
alignment of the antenna based on the signal metric’, [0007] . . . .” Br. 7
(emphasis omitted).
We also find Kwan teaches “(ii) optimizing modulation and coding
schemes of said wireless data link,” because Kwan expressly describes an
“object... to provide appropriate signaling to signal the optimization from a
transmitter to a receiver over the radio link.” Kwan 110. In the paragraph
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that follows, Kwan expressly describes the use of a modulation and coding
scheme (MCS):
According to a first aspect of the invention, a method for
use in adaptively modulating a radio link in a mobile
communications system according to a time varying radio link
quality, includes the steps of selecting a number of
channelization codes and a modulation and coding scheme
(MCS) from among a plurality of MCSs for use by a transmitter
over the radio link according to said time varying radio link
quality, and signaling information relating to said adaptively
selected MCS and said number of channelization codes from
said transmitter to a receiver of said radio link.
Kwan 111 (emphasis added).
Given the aforementioned evidence, we find the combination of
Hairapetian and Kwan would have taught or suggested selection of: (1)
optimizing the direction of the wireless data link beam or (2) optimizing
according to a modulation and coding scheme (MCS), within the meaning of
contested limitation L2 of claim l.5
For the aforementioned reasons, and based upon a preponderance of
the evidence, we find Appellant’s arguments regarding contested limitations
LI and L2 of claim 1 are not persuasive.
Combinability of the References under §103
Regarding remaining independent claim 35, Appellant contends the
cited Hairapetian and Kwan references have been improperly combined by
5 “[T]he question under 35 U.S.C. § 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made.” Merck & Co., Inc. v. Biocraft
Laboratories, Inc., 874 F. 2d 804, 807—808 (Fed. Cir. 1989) (citation
omitted); see also MPEP § 2123.
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the Examiner. Br. 9. In support, Appellant advances a “teaching away”
argument:
Kwan cannot be combined with Hairapetian to produce the
combined claim 35 limitations: ‘set direction of said millimeter-
wave' and 'optimize further performance of said wireless data
link, by selecting modulation and coding schemes’, at least
because Hairapetian teaches away from ‘optimize further
performance of said wireless data link, by selecting modulation
and coding schemes ’ by stating that: [0071] ‘Once the local
transceiver is finished aligning its antenna, the communication
link is optimized.’ It is clear that if the communication link is
“optimized” after finishing alignment of antennas, there is no
need for ‘optimize further performance of said wireless data
link, by selecting modulation and coding schemes’.
Br. 9.
However, in reviewing the record, we find Appellant has not
established that Hairapetian “teaches away” from the claimed invention, by
demonstrating that “a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Our reviewing
court further guides: “[a] reference does not teach away if it merely
expresses a general preference for an alternative invention from amongst
options available to the ordinarily skilled artisan, and the reference does not
discredit or discourage investigation into the invention claimed.” In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). The Supreme Court guides:
“if a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.” KSR, 550 U.S. at 417. When
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combining references to establish obviousness, the appropriate consideration
is whether the proposed combination would work for its intended purpose,
not whether the combination is inconsistent with the stated goal of one of the
references, as Appellant argues. Br. 9; see DePuy Spine, Inc. v. Medtronic
Sofamor Danek, Inc., 567 F.3d 1314 (Fed. Cir. 2009).
Moreover, Appellant does not provide evidence sufficient to
demonstrate that combining the teachings of Hairapetian and Kwan, in the
manner proffered by the Examiner (Final Act. 6), would have been
“uniquely challenging or difficult for one of ordinary skill in the art,”
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007).
Therefore, on this record, we find the Examiner’s proffered
combination of the respective teachings of Hairapetian and Kwan would
have merely yielded predictable results, and thus would have been obvious
to an artisan possessing an ordinary level of skill in the art at the time of
Appellant’s invention. SeeKSR, 550 U.S. at 416 (“The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.”).
For at least the aforementioned reasons, and based upon a
preponderance of the evidence, we do not find persuasive Appellant’s
arguments alleging the Examiner has improperly combined the references
under § 103. Br. 9.
Because Appellant has not persuaded us the Examiner erred, we
sustain the §103 rejection of representative independent claim 1, and the
rejection of the associated grouped claims, which fall with claim 1. See
Grouping of Claims, supra.
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Conclusion
For at least the aforementioned reasons, on this record, Appellant has
not persuaded us the Examiner erred. We find a preponderance of the
evidence supports the Examiner’s underlying factual findings and ultimate
legal conclusion of obviousness for all contested claims on appeal.
DECISION
We affirm the Examiner’s decision rejecting claims 1—9, 35, and
37-40 under § 103(a).
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
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