Ex Parte Loyez et al

Patent Trial and Appeal Board

Mar 27, 2017

13490909 (P.T.A.B. Mar. 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.
13/490,909 06/07/2012 Christophe Loyez ST-10-GR1CO-209US01 9843
102473 7590 03/29/2017
Slater Matsil, LLP - ST-EP
17950 Preston Road, Suite 1000
Dallas, TX 75252
EXAMINER
CADEAU, WEDNEL
ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
docketing @ slatermatsil. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHE LOYEZ, SAMUEL FOULON,
SEBASTIEN PRUVOST, and NATHALIE ROLLAND
Appeal 2016-001243
Application 13/490,909
Technology Center 2600
Before JOSEPH L. DIXON, MARC S. HOFF, and JOYCE CRAIG,
Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-001243
Application 13/490,909
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—5, 9, 18, and 21. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The claims are directed to a wireless transmission system. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A wireless data transmitter comprising:
a local oscillator configured to generate an initial
frequency signal;
a mixer configured to generate a frequency signal based
upon said initial frequency signal and a frequency spreading code
signal, the frequency spreading code signal being based upon a
random code;
a modulator configured to modulate a data signal based on
said frequency signal; and
first and second antennas directly coupled to said
modulator and said mixer, respectively, said first and second
antennas configured to transmit said modulated data signal and
said frequency signal independently, the data signal and the
frequency spreading code signal having a same code rate.
The prior art relied upon by the Examiner in rejecting the claims on
REFERENCES
appeal is:
Adachi et al. US 5,987,309 Nov. 16, 1999
US 2005/0104603 Al May 19, 2005
US 2005/0162338 Al July 28, 2005
US 7,065,125 B1 June 20, 2006
EP 1 821 418 A2 Aug. 22, 2007
Peschmann et al.
Ikeda et al.
Miller et al.
Shoji
J. Meel, Spread Spectrum (SS), pp.l—33, Oct. 1999
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Application 13/490,909
REJECTIONS1
The Examiner made the following rejections:
Claims 1—4, 6, 7, 9, 10, 18, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Shoji in view of Ikeda, Meel, and
Miller.
Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shoji in view of Ikeda in view of Meel, Miller, and in
view of Peschmann.
Claim 23 was rejected under 35 U.S.C. § 103(a) as being unpatentable
over Shoji in view of Peschmann and in view of Adachi.
ANALYSIS
With respect to independent claims 1 and 9, we find the claims
contain similar limitations argued by Appellants. Consequently, we address
independent claim 1 as the illustrative claim for the group. Appellants
contend:
As noted in Figure 3, reproduced below, Shoji et al. discloses a
communication system 30 comprising transmitter and receiver
devices 31,32. The transmitter device includes a modulator 311,
a local oscillator 316, and a mixer 312 coupled to the modulator
and the local oscillator. The transmitter uses one or more
1 Claims 1—7, 9—10, 18, 21, and 23 were rejected under 35 U.S.C. § 112
(pre-AIA), second paragraph and claim 23 was rejected under 35 U.S.C.
§112 (pre-AIA), first paragraph, as failing to comply with the written
description requirement in the Final Action. The Examiner allowed entry of
the amendment, filed January 5, 2015, in an Advisory Action dated March 6,
2015, thereby modifying the rejections from the Final Action. The
Examiner has not repeated the rejections under 35 U.S.C. §§ 112, second
paragraph and first paragraph, in the Examiner's Answer. See Ans. 3.
Appellants have canceled claims 6—8, 10-17, 19, 20, 22, and 23. Asa result,
we limit our review to the obviousness rejections of the remaining claims
under appeal.
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Application 13/490,909
antennas to transmit the local oscillator signal and the modulated
signal to the receiver device. The oscillator signal and the
modulated signal have vertical and horizontal polarizations,
respectively.
(App. Br. 3 4). Appellants further contend:
The Examiner correctly notes that even a selective
combination of Shoji et al., Ikeda et al., and Meel et al. also fails
to disclose or fairly suggest the data signal and the frequency
spreading code signal having a same code rate, as recited by
independent Claim 1, for example. (Final Office Action, 10-3-
2014, Page 6). In a primary argument, the Examiner contended
that this teaching was inherent within Meel et al. Page 3 of Meel
et al. recites: “[a] pseudo-noise sequence pm generated at the
modulator, is used in conjunction with an M-ary PSK modulation
to shift the phase of the PSK signal pseudorandomly, at the
chipping rate Rc (=1/Tc) a rate that is an integer multiple of the
symbol rate Rs (=1/Ts)”.
(App. Br. 5). Appellants also argue:
In an alternative argument, the Examiner looks to Miller
et al. for this deficiency of Shoji et al., Ikeda et al., and Meel et
al. Miller et al. discloses SA/CDMA, which is originally
disclosed in U.S. Patent No. 5,537,397 to Abramson. Abramson
discloses that SA/CDMA includes using a same spreading code
for each terminal in the system, rather than the unique spreading
codes in typical CDMA. Miller et al. recites “that under
SA/CDMA, the spreading code repeats at a rate equal to the data
rate, i.e., the code repeats for every data bit.” (Col. 5, lines 63-
66).
Appellant submits that the rejection is in error for the
following reasons. Firstly, Appellant submits that independent
Claim 1, for example, overcomes the current rejection because
none of the applied prior art references discloses or fairly
suggests the data signal and the frequency spreading code signal
having a same code rate, as recited by independent Claim 1. As
discussed in the present application, at paragraph 52,
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[t]he code signal is for example a random signal
synchronized with the data signals I and Q and having the
same data rate as the signals I and Q. The data rate of the
code signal C is for example substantially equal to that of
the data signal I, Q, such that the modulation speed of the
frequency signal fc is for example substantially equal to
that of the modulated data signal.
In contrast, Miller et al. discloses repeating the entire
spreading code for each data symbol, see Figure 6, reproduced
below.
(App. Br. 6). Additionally, Appellants argue:
with regards to the Examiner's contention that this feature is
implied within the disclosure of Meel et al., i.e. that this feature
is "inherent". Appellant notes that if a claim element is not
expressly disclosed by the prior art, the prior art reference must
inherently disclose the claim element to anticipate it. In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999).
(App. Br. 7).
The Examiner disagrees with Appellants’ contentions and maintains
Firstly, Appellant submits that independent Claim 1, for
example, overcomes the current rejection because none of the
applied prior art references discloses or fairly suggests the data
signal and the frequency spreading code signal having a same
code rate, as recited by independent Claim 1. Hence, although it
is possible for Meel et al. to operate the code rate and the data
rate at the same rate, it is mere possibility from an infinite
number of possibilities. The person of ordinary skill in the art
would not appreciate the needed modifications to the Meel et al.
disclosure to produce the claimed invention.
Examiner disagrees with appellant assertion above that the
cited references do not teach all the limitation of the argued claim
1 above. As conceded by the applicant, and examiner agrees, it
is possible to operate the code rate and the data rate at the same
rate. But appellant argues that it is a mere possibility from and
infinite number of possibility. However, Meel teaches that the
bandwidth expansion factor, being the ratio of the chip rate and
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Application 13/490,909
the data symbol rate is usually selected to be an integer. As one
of ordinary skill in the art knows one is the first integer and would
have been obvious to try one and using 1 as an integer would
serve as a reference for any other bandwidth expansion since it
would be a way to analyze the system without bandwidth
expansion. Again Miller reinforced the teaching of Meel by
disclosing the same principle that the ratio of the chip rate to the
data rate is commonly known as the spreading gain (or
processing gain), since it is the ratio by which the bandwidth of
the data sequence is increased once it is multiplied by the
spreading sequence (Meel col. 1 line 56-61). In order, if band
expansion is not desired the data rate can be made equal to the
code rate. Miller further teaches the spreading code repeats at a
rate equal the data rate (Miller col. 5 lines 62-65) which cover
applicant argued limitation. Applicant further argued that Miller
teaches repeating the entire spreading code for each data symbol
and cites figure 6 of Miller reproduced below.
(Ans. 3—4). The Examiner further maintains:
Assuming for the sake of argument applicant is correct that
in figure 6 Miller teaches repeating the entire code for each data
symbol based on that assertion in figure 7, for example one can
successfully argue[] that the code is only repeat for each symbol
therefore, as a result the data symbol rate is the same as the code
rate. Although, using the teachings of Meel one skill in the art
making the spreading code signal to have the same rate as the
data signal is implied since it is the startup or the neutral point,
Meel was cited to make clear on the record the particular is
clearly taught and obvious in the art.
(Ans. 5).
The Examiner disagrees with Appellants’ argument with regards to
the frequency band versus modulation argument. The Examiner maintains:
Examiner disagrees with appellant assertion above.
Appellant argued that as disclosed above “the quadrature
generation of the claimed invention allows the use of complex
modulations scheme QPSK, xQAM that is not possible in Shoji
et al.”. However applicant has not provided any proof to back
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up this assertion. Shoji discloses the invention is not limited to
the modulation method or the modulation band. Therefore,
examiner fails to see why the disclosure of Shoji cannot be
modified to allow the use of complex modulations scheme
QPSK, xQAM. Spreading the clock (316) before providing it to
the modulator (312) and amplifier (317) in the system of Shoji
would have been obvious to one having ordinary skill in the art,
as taught by Ikeda, in order to spread the energy of the peak. As
a result make it easy to meet proscribed FCC regulation while
retaining nominal frequency equivalent to that of the
fundamental frequency of the clock (316). Furthermore, Meel in
page 3 clearly teaches combining an RF clock with a PN code
and perform data modulation using the combined signal with
incoming data signal.
(Ans. 7; emphasis omitted).
Appellants contend that:
the Examiner is mischaracterizing the teachings of the Meel et
al. prior art reference. Appellant notes that the set of integers
includes all whole numbers from negative infinity to positive
infinity. The person of ordinary skill in the art would appreciate
that the integer “1” is no more suited in Meel et al. than any of
the other literal infinite possibilities in the set of integers.
The Examiner also contended that “Miller teaches
repeating the entire code for each data symbol based on that
assertion in figure 7, for example one can successfully argued
that the code is only repeat for each symbol therefore, as a result
the data symbol rate is the same as the code rate.” (Id. at 5).
Appellant submits that this is a mischaracterization of the Miller
et al. prior art reference. Miller et al. discloses repeating the
entire spreading code for each data symbol, which provides a
code rate N times the data rate (N being the length of the code
rate).
(Reply Br. 2—3).
We agree with Appellants and note that the Examiner’s application of
the prior art and the Examiner’s rationale for the setting a unitary value for
comparison reasons is based upon speculation and conjecture. While the
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Application 13/490,909
Examiner disagrees with Appellants’ arguments regarding the complex
modulations schemes of the Shoji reference and the Examiner indicates that
Appellants have provided no proof to support the assertion (Ans. 7), the
Examiner similarly provides no evidence to support the Examiner’s rationale
for the combination and interpretation of the prior art references as proffered
by the Examiner.
Whether it would have been obvious for a person of ordinary skill in
the art to combine two or more references is a flexible inquiry. A factfinder
“need not seek out precise teachings directed to the specific subject matter
of the challenged claim” and “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l Co. v. Teleflex. Inc., 550 U.S. 398, 418 (2007). Nevertheless,
obviousness cannot be established “by mere conclusory statements; instead,
there must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” Id. (quoting In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006)).
Thus, the Examiner’s findings of fact and conclusion of obviousness
are in error because they are not supported by a preponderance of the
evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985)
(Examiner’s burden of proving non-patentability is by a preponderance of
the evidence); see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967)
(“The Patent Office has the initial duty of supplying the factual basis for its
rejection. It may not, because it may doubt that the invention is patentable,
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis.”).
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While the Examiner provides discrete teachings of each of separate
portions of the claimed invention in each of the four prior art references, the
Examiner has not shown a teaching or suggestion that the “data signal and
the frequency spreading code having the same code rate.” Each of the prior
art references teaches some part of the claimed invention. The Miller
reference teaches the use of a spreading code. The Shoji reference teaches
and suggests the use of two antennas for differing polarizations in the
transmission of the radio signal. The Ikeda reference teaches modulating
data by a spreading code and transmission of the spreading code to the
receiver. The Meel reference discloses the well-known use of spreading
code to reduce the effect of noise. We find none of the prior art references
teach or suggests the claimed “first and second antennas directly coupled to
said modulator and said mixer, respectively, said first and second antennas
configured to transmit said modulated data signal and said frequency signal
independently, the data signal and the frequency spreading code signal
having a same code rate” as recited in independent claim 1. Nor has the
Examiner specifically identified how the separate and distinct teachings
relied upon would teach or suggest the claimed “first and second antennas
directly coupled to said modulator and said mixer, respectively, said first and
second antennas configured to transmit said modulated data signal and said
frequency signal independently, the data signal and the frequency spreading
code signal having a same code rate.”
As a result, we cannot sustain the obviousness rejection of
independent claim 1 and its respective dependent claims 2-4 based upon
obviousness over the combination of the four references as applied by the
Examiner in the grounds of rejection.
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Independent claim 9 contains similar limitations discussed above with
respect to independent claim 1. The Examiner relies upon the rejection of
independent claim 1 which we find to be deficient. Consequently, we
cannot sustain the obviousness rejection of independent claim 9 and its
respective dependent claims 18 and 21 for the same reasons.
With respect to dependent claim 5, the Examiner has not identified
how the additional prior art reference remedies the deficiency noted above.
As a result, we cannot sustain the obviousness rejection of dependent claim
5 for the same reasons.
CONCLUSION
The Examiner erred in rejecting claims 1—5, 9, 18, and 21 based upon
obviousness under 35 U.S.C. § 103.
DECISION
For the above reasons, we reverse the Examiner’s obviousness
rejection of claims 1—5, 9, 18, and 21 under 35 U.S.C. § 103.
REVERSED
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