Ex Parte Mizuguchi

Board of Patent Appeals and Interferences

Sep 24, 2009

09924723 (B.P.A.I. Sep. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte HIRONORI MIZUGUCHI
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Appeal 2009-004580
Application 09/924,723
Technology Center 2600
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Decided: September 24, 2009
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Before JOHN C. MARTIN, KARL D. EASTHOM, and
CARL W. WHITEHEAD, JR., Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-004580
Application 09/924,723

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Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-42. See App. Br. 5. We have jurisdiction under 35
U.S.C. § 6(b) (2002).1 We affirm.

STATEMENT OF THE CASE
Appellant invented a reverse-link transmission power control system
and method that controls reverse-link transmission power in a digital mobile
communication system.2
Claim 1, which further illustrates the invention, follow:
1. A base station of a mobile communication system comprising:
a communication monitor circuit for detecting quality deterioration of
radio communication with mobile stations, wherein:
said communication monitor circuit comprises:
a monitor unit for monitoring a communication state of said radio
communication;
a judging unit coupled to said monitor unit for judging whether said
communication state monitored by said monitor unit is worse than a
predetermined state; and
a notifying unit coupled to said judging unit for notifying an external
circuit of said quality deterioration when said judging unit judges that
said communication state is worse than said predetermined state.

The Rejection

1 An oral hearing for this appeal was held on September 10, 2009.
2 See generally App. Br. 7.
Appeal 2009-004580
Application 09/924,723

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The Examiner relies upon the following prior art reference as
evidence of unpatentability:
Itoh US 6,418,321 B1 Jul. 9, 2002
Larijani US 6,603,746 B1 Aug. 5, 2003

Claims 1-42 stand rejected under 35 U.S.C. § 103(a), as being
unpatentable over Larijani and Itoh (Ans. 3-33).
Rather than repeat the arguments of Appellant or the Examiner, we
refer to the Briefs and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellant. Arguments which Appellant could have made but did not make
in the Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii) (2008).

Obviousness Rejection of Claims 1-42
Appellant argues that the combination of Larijani and Itoh fails to
disclose monitoring the quality of a plurality of individual communications
between a plurality of mobile units and the base station and making a
judgment based upon the state of communication of all of the plurality of
communications (App. Br. 24). The Examiner takes the position that the
claims do not recite a plurality of individual communications (Ans. 46). The
Examiner argues that it would be reasonable to interpret the claims as
monitoring a broadcast from the base station to multiple mobile stations. Id.

ISSUES
Appeal 2009-004580
Application 09/924,723

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Has Appellant shown that the Examiner erred in finding that the
combination of Larijani and Itoh discloses a base station having circuitry for
detecting quality deterioration of radio communication between mobile
stations and the base station?

FINDINGS OF FACT
1. Larijani discloses that forward-link CDMA signals transmitted by a base
station to various mobile units in the cell are immune to interference from
signals destined for other mobile units (“Background of the Invention,”
col. 1, ll. 47-55).
2. Larijani discloses that closed-loop power control consists of a destination
(base station or mobile unit) measuring the signal-to-interference ratio of a
signal received from a source and comparing it with a predetermined target
value. The power transmitted by the source may be adjusted based upon the
comparison (“Background of the Invention,” col. 1, ll. 63-67; col. 2, ll. 1-5).

PRINCIPLES OF LAW
“[T]he PTO gives claims their ‘broadest reasonable interpretation.’”
In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000)). “Moreover, limitations are not to be read
into the claims from the specification.” In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989)).
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
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doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). If the Examiner's burden
is met, the burden then shifts to the Appellant to overcome the prima facie
case with argument and/or evidence. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness of the
arguments. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).

ANALYSIS
Claims 1, 4, 6-9, 12, 14-17, 20, 22, 25, 27-30, 33 and 35-42
Appellant argues that the claimed invention requires that the base
station monitors the communication state of a plurality of mobile stations
(App. Br. 24). Claim 1 has a base station comprising of a communication
monitor circuit for detecting quality deterioration of radio communication
with mobile stations. Therefore, the Appellant’s argument is persuasive. As
explained below, Larijani discloses that the claimed configuration between
the base station and the mobile stations was well known in the art (FF 1-2).
Appellant further reasons that because claimed invention requires that
the base station monitors the communication state of a plurality of mobile
stations, the claimed communication state of said radio communication
refers to the quality of a group of individual communications between the
mobile stations and the base station (App. Br. 24; Reply Br. 4-5). This
argument is not commensurate with the scope of the claims. The claims
simply do not address the quality of a group of individual communications.
Instead, claim 1 is broad enough to read on checking the quality of
communications with the plural mobile stations individually. Therefore we
do not find the Appellant’s argument to be persuasive.
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Appellant further reasons that Larijani fails to disclose monitoring the
quality of a plurality of individual communications between a plurality of
mobiles [sic] units and the base station and making a judgment based upon
the state of communication of all a plurality of communications (App. Br.
24; Reply Br. 4-5). This argument is not commensurate with the scope of
the claims. The claims do not address a plurality of individual
communications nor do they address making a judgment based on the state
of all a plurality of communications. Therefore we do not find the
Appellant’s argument to be persuasive.
Once the Examiner has satisfied the burden of presenting a prima
facie case of obviousness, the burden then shifts to Appellant to present
evidence and/or arguments that persuasively rebut the Examiner's prima
facie case. See In re Oetiker, 977 at 1445. Since Appellant did not
particularly point out errors in the Examiner’s reasoning to persuasively
rebut the Examiner's prima facie case of obviousness, the rejection of claims
1, 4, 6-9, 12, 14-17, 20, 22, 25, 27-30, 33 and 35-42 is sustained.

Claims 2, 3, 5, 10, 11, 13, 18, 19, 21, 23, 24, 26, 31, 32 and 34
Although the Appellant argues that the dependent claims should be
allowable based upon their dependence upon the independent claims, the
Appellant presents additional arguments as to why the Examiner’s
obviousness rejection should not be sustained (App. Br. 25). The Appellant
argues that the Larijani and Itoh combination fails to disclose monitoring or
measuring the total interference electric power of a plurality of
communications in regard to claims 2, 5, 10, 13, 18, 21, 23, 26, 31 and 34.
Id. The Appellant further argues that the Larijani and Itoh combination fails
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to disclose the monitoring or measuring signal to noise ratios of a plurality
of communications in regard to claims 3, 11, 19, 24 and 32. Id. The
Appellant also argues that these references fail to disclose monitoring TPC
bit signals, as recited in claims 4, 12, 20, 25, and 33 (App. Br. 26). Although
the Examiner relied upon the combined teachings of Larijani and Itoh,
Appellant failed to address the errors of the obviousness rejection based
upon the combination of the references with any specificity. Appellant does
not specifically address the Examiner’s obviousness rejection other than
asserting that the references do not disclose aforementioned claim
limitations. Such conclusory assertions without supporting explanation or
analysis particularly pointing out errors in the Examiner's reasoning fall well
short of persuasively rebutting the Examiner's prima facie case of
obviousness. See Oetiker, 977 F.2d at 1445. We therefore sustain the
Examiner's rejection of claims 2, 3, 5, 10, 11, 13, 18, 19, 21, 23, 24, 26, 31,
32 and 34.

CONCLUSION
Appellant has not shown that the Examiner erred in finding that the
combination of Larijani and Itoh discloses a base station having circuitry for
detecting quality deterioration of radio communication between mobile
stations and the base station.

ORDER
We will sustain the Examiner’s decision rejecting claims 1-42.
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).
Appeal 2009-004580
Application 09/924,723

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AFFIRMED
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