12918996 (P.T.A.B. May. 25, 2016)

Ex Parte Lilleberg et al

Patent Trial and Appeal BoardMay 25, 2016

12918996 (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/918,996 11/09/2010 11051 7590 05/27/2016 Squire Patton Boggs (US) LLP Nokia Technologies Oy 8000 Towers Crescent Drive, 14th Floor Vienna, VA 22182 FIRST NAMED INVENTOR Jorma Lilleberg 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 059864.02116 2522 EXAMINER KIM, KEVIN ART UNIT PAPER NUMBER 2631 NOTIFICATION DATE DELIVERY MODE 05/27/2016 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): sonia.whitney@squirepb.com ipgeneraltyc@squirepb.com nokia.ipr@nokia.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JORMA LILLEBERG, TING ZHOU, and FANG WANG Appeal2014-005910 Application 12/918,9961 Technology Center 2600 Before JOHN P. PINKERTON, JEFFREY A. STEPHENS, and CARLL. SILVERMAN, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 34--40, 42, 43, 46-51, and 53. Claims 1-33 are cancelled and claims 41, 44, 45, and 52 are subject to objection. Claims 34-- 40, 42, 43, 46-51, and 53 are the remaining pending claims. Final Act. 2; App. Br. 5. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. STATEMENT OF THE CASE The claimed invention relates to relaying signals. Abstract. 1 Appellants identify the real party in interest as Nokia Corporation of Espoo, Finland. App. Br. 3. Appeal2014-005910 Application 12/918,996 Claim 34, reproduced below, is exemplary of the subject matter on appeal: 34. A method comprising: receiving a signal over a communication link; demodulating the signal; estimating soft symbols based on probability information corresponding to the demodulated signal; remodulating the demodulated signal based on the soft symbols; and outputting a relay signal based on the remodulated signal. App. Br. 7. (Claims App.). THE REJECTIONS Claims 34, 35, 37, 38, 43, 46, 48, and 49 stand rejected under 35 U.S.C. Â§ 102(e) as being anticipated by Miyoshi et al (US 2010/0284448 Al; published Nov. 11, 2010) ("Miyoshi"). Final Act. 2--4. Claims 36, 39, 40, and 50 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Miyoshi in view of Li et al (Distributed Turbo coding with Soft Information Relaying in Multihop Relay Networks, IEEE JOURNAL ON SELECTED AREAS IN COMMUNICATIONS, VOL. 24, No. 11, PGS. 204050, admitted prior art) ("Li"). Final Act. 5. Claims 42, 47, 51, and 53 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Miyoshi. Final Act. 5---6. ANALYSIS The 35 U.S.C. Â§ 102(e) Rejections Appellants argue Miyoshi is not 102( e) prior art because the 102( e) date of Miyoshi "is its actual filing date, namely July 22, 201 O," and the present application, filed February 21, 2008, antedates this date. App. Br. 2 Appeal2014-005910 Application 12/918,996 1 O; see also Reply Br. 3--4. According to Appellants, Miyoshi is a continuation of an earlier-filed international application that was published in Japanese, not English, and, therefore, the 102(e) date for the Miyoshi is its actual filing date of July 22, 2010. App. Br. 10-11 (citing annotated Flow Charts); see also Reply Br. 3--4 (citing MPEP 706.02(t)(l)(II) example 5). The Examiner agrees Myoshi's international filing date of March 26,2 2006 cannot be used because the international publication was not in English. However, the Examiner finds Miyoshi "is a continuation of US application 11/817,526, filed August 31, 2007," and, therefore, Miyoshi's effective filing date is August 31, 2007. Ans. 6-7. We agree with Appellants that the August 31, 2007 date relied on by the Examiner is the national stage entry date of the Miyoshi parent application under 35 U.S.C. Â§ 371(c). See Reply Br. 4 (citing US 7,787,524). The Examiner does not provide persuasive authority establishing that the Â§ 3 71 ( c) date may be considered the date of filing in the United States under pre-AIA 35 U.S.C. Â§ 102(e) when the international filing date does not qualify underÂ§ 102(e).3 Therefore, we agree with Appellants the 102( e) date of Miyoshi is its actual filing date of July 22, 2 The correct date is March 3, 2006. See Myoshi Foreign Publication Priority Data. 3 We note pre-AIA 35 U.S.C. Â§ 363 does not provide an alternate filing date when the international application falls within the Â§ 102( e) exception. See 35 U.S.C. Â§ 363 (2006) ("An international application designating the United States shall have the effect, from its international filing date under article 11 of the [Patent Cooperation] treaty, of a national application for patent regularly filed in the Patent and Trademark Office except as otherwise provided in [pre-AIA 35 U.S.C.] section 102(e) ... . ");see also MPEP Â§ 1893.03(b) (8th ed., rev. 8 (July 2010)). 3 Appeal2014-005910 Application 12/918,996 2010 and, because this is later than the February 21, 2008 date of the present application, Miyoshi is not 102( e) prior art. For these reasons, we do not sustain the rejection of claim 34, and independent claims 37 and 48, which recite similar limitations and are also rejected as anticipated by Miyoshi. App. Br. 12-15. We also do not sustain the rejection of dependent claims 35, 38, 43, 46, 48, and 49. Cf In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("[D]ependent claims are nonobvious if the independent claims from which they depend are nonobvious"). The 35 U.S.C. Â§ 103(a) Rejections over Miyoshi and Li We do not sustain the rejection of dependent claims 36, 39, 40, and 50 over the combination of Miyoshi and Li because Myoshi is not 102(e) prior art and the Examiner presents no alternative basis for Myoshi to be considered as prior art .. The 35 U.S.C. Â§ 103(a) Rejections over Miyoshi We do not sustain the rejection of claims dependent claims 4 2, 4 7, 51, and 53 over Miyoshi because Myoshi is not 102(e) prior art and the Examiner presents no alternative basis for Myoshi to be considered as prior art. 4 Appeal2014-005910 Application 12/918,996 DECISION We reverse the Examiner's decision rejecting claims 34--40, 42, 43, 46-51, and 53. REVERSED 5