Ex Parte Oteri et al

Patent Trial and Appeal Board

Nov 21, 2017

13944122 (P.T.A.B. Nov. 21, 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.
13/944,122 07/17/2013 Oghenekome F. Oteri 9888-02816 1953
81310 7590 11/24/2017
Meyertons, Hood, Kivlin, Kowert & G (Apple)
P.O. BOX 398
Austin, TX 78767-0398
EXAMINER
JONES, PRENELL P
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
11/24/2017 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):
patent_docketing@intprop.com
ptomhkkg @ gmail .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OGHENEKOME F. OTERI and JAMES W. McCOY1
Appeal 2017-006115
Application 13/944,122
Technology Center 2400
Before BRADLEY W. BAUMEISTER, MIRIAM L. QUINN, and
MICHAEL M. BARRY, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—12. App. Br. 6.2 We have jurisdiction under
35 U.S.C. § 6(b). We affirm-in-part. Pursuant to our discretionary authority
under 37 C.F.R. § 41.50(b), we designate the affirmance of claims 8 and 9 as
constituting a new ground of rejection.
1 Appellants list Apple Inc. as the real party in interest. Appeal Brief 2 (filed
August 11, 2016) (“App. Br.”).
2 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the above-noted Appeal Brief and the following
documents for their respective details: the Final Action mailed April 14,
2016 (“Final Act.”); the Examiner’s Answer mailed January 4, 2017
(“Ans.”); and the Reply Brief filed February 28, 2017 (“Reply Br.”).
Appeal 2017-006115
Application 13/944,122
STATEMENT OF THE CASE
Appellants describe the present invention as follows:
Methods and corresponding systems for determining a
transmit power in a wireless device include receiving, in the
wireless device, a cell-wide power control parameter related to a
target receive power at a serving base station. Thereafter, a
transmit power is calculated in response to the cell-wide power
control parameter and an implicit mobile-specific power control
parameter. The wireless device then transmits using the transmit
power. The cell-wide power control parameter can be a cell
target signal to interference-plus-noise ratio, or a fractional
power control exponent. The implicit mobile-specific power
control parameter can be a modulation and coding level
previously used by the wireless device, or a downlink S1NR level
measured by the wireless device.
Abstract.
Claims 6—12 stand rejected under 35 U.S.C. § 102(b) as anticipated by
B1 (US 2004/0203807 Al; published Oct. 14, 2004). Final Act. 7-9.
Claims 1—5 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over B1 and Lohr (US 2009/0097444 Al; published Apr. 16, 2009). Final
Act. 4—6.
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
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Application 13/944,122
I.
Independent claim 1, reproduced below, is illustrative of the appealed
claims 1—5:
1. A method for wireless communication power control
comprising:
receiving a resource allocation request from a wireless
device, wherein the resource allocation request includes a
maximum number of resource blocks based on one or more of a
current power level and a current modulation and coding scheme
(MCS) of the wireless device;
sending a dynamic resource allocation grant for the
wireless device; and
reducing a transmit power for the wireless device when an
allocated number of resource blocks exceeds the maximum
number of resource blocks for the wireless device.
Findings and Contentions
The Examiner finds that B1 discloses the steps of receiving a resource
allocation request from a wireless device and reducing a transmit power for
the wireless device (Final Act. 4—5), but does not teach sending a dynamic
resource allocation grant for the wireless device {id. at 5). The Examiner
finds that Lohr teaches this additional limitation and that one of ordinary
skill would have had reason to combine these teachings. Id.
Appellants argue, inter alia, that B1 does not disclose receiving a
resource allocation request from a wireless device such that the request
includes an indication of a maximum number of resource blocks for the
wireless device. App. Br. 6. In response, the Examiner clarifies the
reasoning underlying the rejection:
it is inherent in a wireless communication design that the
scheduling/allocation of resources are with respect to time and
frequency (i.e. blocks, slots....); therefore, . . . B1 does teach
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Application 13/944,122
communicating a limited (amount or number) of resources
associated with a request message (see para: 0027, 28 and 0031,
allocation of resource blocks.) .... B1 does teach a second
condition of claim 1, “resource allocation request includes a
maximum, number of resource blocks based on one or more of a
current power level” (see para: 003 0, 0031, resource request
associated with threshold of allocated resources and power
threshold in streaming conditions (current/recent).
Ans. 8—9.
Analysis
Although B1 discloses a wireless device that sends a request to a
resource-allocation-granting entity (e.g., user equipment that sends a request
to a base station), the Examiner has provided insufficient evidence or
technical reasoning to establish that B1 discloses such requests inherently
include an indication of the maximum number of resource blocks the
wireless device is capable of handling. Furthermore, the passages of B1
upon which the Examiner relies do not expressly disclose that such
information is contained within a request from a wireless device to a
resource-granting entity. Paragraphs 27 through 31 of B1 instead set forth a
protocol in which the base station determines whether to admit or deny a
remote station based on the power that the base station would have to use if
the remote station were admitted. See, e.g., B1131.
Accordingly, we reverse the obviousness rejection of independent
claim 1 and of claims 2—5, which depend from claim l.3
3 Because we find that B1 does not teach that the allocation request includes
an indication of the maximum number of resource blocks, we need not
further decide whether the claim language “based on one or more of a
current power level and a current modulation and coding scheme (MCS) of
the wireless device” further limits the “receiving” method step or whether
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Application 13/944,122
II.
Independent claim 8, reproduced below with added emphasis, is
illustrative of the appealed claims 8 and 9 (emphases added):
8. A method for wireless communication power control
comprising:
receiving a resource allocation request, where the resource
allocation request is based at least in part on power consumption
requirements of a wireless device;
sending a resource allocation grant for the wireless device;
and
reducing a transmit power for the wireless device when an
allocated number of resource blocks exceeds the maximum
number of resource blocks for the wireless device.
Findings and Contentions
The Examiner finds that B1 discloses all of the limitations of
independent claim 8. Final Act. 8 (citing B131, 32, 36, and 37;
Figs. 2, 3). In response, Appellants present the following two arguments:
B1 fails to disclose [(1)] “receiving a resource allocation request,
where the resource allocation request is based at least in part on
power consumption requirements of a wireless device” and
[(2)] “reducing a transmit power for the wireless device when an
allocated number of resource blocks exceeds the maximum
number of resource blocks for the wireless device”.
App. Br. 9.
Analysis
Appellants’ first argument is unpersuasive. Claim 8 is distinguishable
from claim 1, the latter of which sets forth that the resource allocation
this claim language constitutes, for example, a non-limiting statement of an
intangible property associated with the resource-block information.
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Application 13/944,122
request includes resource blocks, and that the affirmatively recited resource
blocks are what is based on one or more characteristics of the wireless
device. Claim 8, in contrast, more broadly recites that the received resource
allocation request, itself, is based on characteristics associated with the
sending wireless device—i.e., the request is based on the wireless device’s
power consumption requirements.
Claim 8 does not recite that the resource allocation request actually
includes any information regarding the wireless device’s power consumption
requirements. Claim 8 does not recite an affirmative step of using at least
power consumption requirements of a wireless device in generating a
resource allocation request. The only affirmative action that claim 8’s first
limitation recites is that the generated resource allocation request is received
by a device (for example, by a resource-granting base station). Furthermore,
Appellants have not indicated that the structure, content, or timing of the
ultimately generated resource allocation request, as claimed, will be in any
way affected by, or reflective of, any particular power consumption
requirement.
Because the claim does not recite any structure or functional property
(i.e., content, form, or timing) for the request or any manner in which the
power consumption requirement affects the “receiving” function (or any of
the other recited steps), the recited characterization of the “resource
allocation request” as being “based on” a power consumption requirement
fails to tangibly limit the claimed method. As recited, the “receiving” step
encompasses receiving a resource allocation request regardless of the
content, form, or timing of that resource allocation request. As such, the
claim reads on a receiving device that is impervious to whatever factors the
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resource allocation request “is based on.” That is, the language “based at
least in part on power consumption requirements of a wireless device”
merely describes an intangible property of the resource allocation request, as
claimed, which does not further limit the content, form, or timing of the
request. We therefore conclude that the recited intangible property does not
further limit the affirmatively recited step of receiving a resource allocation
request.
Appellants’ second argument also is unpersuasive. The third
limitation’s language “when an allocated number of resource blocks exceeds
the maximum number of resource blocks for the wireless device” sets forth a
condition that may or may not occur. As such, the entire step of reducing a
transmit power for the wireless device constitutes a conditional limitation.
Therefore, claim 8 also would be anticipated by a prior-art power control
method that does not reduce a transmit power, or at least be anticipated in
those situations in which the allocated number of resource blocks does not
exceed a maximum limit. See Ex parte Schulhauser, 2013-007847, 2016
WL 6277792, at *4 (PTAB Apr. 28, 2016) (precedential) (holding that
according to the broadest reasonable interpretation, a method claim is met if
the prior art performs all mandatory steps, even if the prior art does not teach
or suggest performing the optional conditional steps); see also In re
Johnston, 435 F.3d. 1381, 1384 (Fed. Cir. 2006) (“[Ojptional elements do
not narrow the claim because they can always be omitted.”).
We therefore affirm the rejection of claim 8, as well as the rejection of
dependent claim 9, which is not argued separately. See App. Br. 9. Because
the thrust of our reasoning differs from that of the Examiner, we designate
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our affirmance as constituting a new ground of rejection pursuant to
37 C.F.R. § 41.50(b).
III.
Independent claim 6, reproduced below, is illustrative of the appealed
claims 6, 7, and 10—12:
6. A method for wireless communication power control
comprising:
receiving a resource allocation request from a wireless
device;
sending a persistent resource allocation grant for the
wireless device, wherein the persistent resource allocation grant
includes a power control instruction for initial use during the
persistent resource allocation grant; and
sending subsequent power control instructions for the
wireless device during a duration of the persistent resource
allocation grant.
Findings and Contentions
The Examiner finds, inter alia, that B1 discloses sending power
control instructions to a wireless device. Final Act. 7 (citing B1 Figs. 2, 3;
Abstract); id. at 3 (citing B1H 7, 9, 11, 12); Ans. 10 (citing B131—33).
Appellants argue that “the power thresholds and budgets of B1 are that
of the base station not the wireless device of the claims. Saying this another
way, B1 never discloses an allocation grant for a wireless device involving
multiple power control instructions.” App. Br. 11.
Analysis
Appellants’ arguments are persuasive. The passages of B1 cited by the
Examiner only disclose adjusting the power of the base station—the entity
that receives the resource allocation request from a wireless remote device.
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The Examiner has not established that Bl’s base station sends power control
instructions back to those wireless devices of B1 that initially had sent the
resource allocation request.
Accordingly, we reverse the anticipation of independent claim 6, as
well as that of claim 7, which depends from claim 6. We likewise reverse
the anticipation rejection of claims 10—12, which set forth similar
limitations.
DECISION
The Examiner’s decision rejecting claims 8 and 9 is affirmed.
The Examiner’s decision rejecting claims 1—7 and 10—12 is reversed.
Pursuant to our discretionary authority under 37 C.F.R. § 41.50(b), we
designate the affirmance of claims 8 and 9 (see section II, supra) as a new
ground of rejection. Rule 41.50(b) provides that “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Rule 41.50(b) also provides the following:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new Evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the prosecution will be
remanded to the examiner. The new ground of
rejection is binding upon the examiner unless an
amendment or new Evidence not previously of
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Application 13/944,122
Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner
reject the claims, appellant may again appeal to the
Board pursuant to this subpart.
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same Record. The request for rehearing
must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new
ground of rejection and also state all other grounds
upon which rehearing is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure (MPEP) § 1214.01
(9th Ed., Rev. 9, Nov. 2015).
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.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
37 C.F.R, $ 41.50(b)
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