Ex Parte Ouyang

Patent Trial and Appeal Board

Nov 20, 2013

11719490 (P.T.A.B. Nov. 20, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte XUEMEI OUYANG
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Appeal 2011-012994
Application 11/719,490
Technology Center 2600
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Before JASON V. MORGAN, DANIEL N. FISHMAN and
CATHERINE SHIANG, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-3, 7-14 and 18-23. We have jurisdiction under 35
U.S.C. § 6(b). We affirm.
In reaching the decision, we have considered only the arguments that
Appellant actually raised. Arguments that Appellant did not make are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010).

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Application 11/719,490

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STATEMENT OF THE CASE
The present invention relates to a multiple in multiple out (MIMO)
wireless multimedia communication system. See generally Spec., 1. Claim
1 is illustrative:
1. A method for channel state information (CSI) assisted multimedia
transmission in a multiple in multiple out MIMO system for a wireless
network, comprising:
making a MIMO system channel H from a receiver available at a
transmitter;
decomposing an estimated channel matrix Hn for the MIMO channel
H to provide a decomposed signal;
pre-equalizing the decomposed signal;
separating the pre-equalized decomposed signal into a plurality of
different source coding streams;
mapping each of the plurality of different source coding streams onto
an antenna for transmission; and
distributing transmission energy for the plurality of different source
coding streams based on CSI.

THE REJECTIONS
Claims 1-3, 7, 8, 12-14, 18, 19, and 23 are rejected under 35 U.S.C.
103(a) as being unpatentable over Oprea (US 2003/0218973 A1), and
Medvedev (US 2004/0042556 A1). See Ans. 3-16.
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Application 11/719,490

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Claims 9, 10 and 20, 21 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Oprea, Medvedev, and Applicant’s admitted prior art
(AAPA) (specification, page 1, lines 9-35). See Ans. 16-18.
Claims 11 and 22 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Oprea, Medvedev, AAPA, and Thielecke (US
2003/0003863 A1). See Ans. 18-19.

ISSUES
Under 35 U.S.C. § 103, has the Examiner erred by concluding that
(1) mapping each of the plurality of different source coding streams
onto an antenna for transmission; and
(2) distributing transmission energy for the plurality of different
source coding streams based on channel state information (CSI)
as recited in claim 1 are obvious over Oprea and Medvedev?

ANALYSIS
On this record, we find that the Examiner did not err in rejecting claim
1.
Issue 1
Appellant asserts that Medvedev does not teach the recited claim
limitation “mapping each of the plurality of different source coding streams
onto an antenna for transmission,” but provides scarce analysis for the
assertion. See App. Br. 7-9.
Appellant’s assertion is unpersuasive because the Examiner relies on
Oprea—not Medvedev—for concluding the claim limitation is obvious. See
Ans. 6-8, 20.
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Application 11/719,490

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In the Reply Brief and for the first time, Appellant belatedly argues:
(1) that Oprea does not teach the disputed claim limitation, and (2) that the
disputed claim limitation would not have been obvious over Oprea. See
Reply Br. 3-5. Appellant has waived such arguments since they are
untimely. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
(informative) (“[T]he reply brief [is not] an opportunity to make arguments
that could have been made in the principal brief on appeal to rebut the
Examiner’s rejections, but were not.”).
We also note that Appellant’s belated arguments are unpersuasive, as
we agree with the Examiner’s conclusion. We adopt the Examiner’s
reasoning and findings on pages 20-22 of the Answer as our own.

Issue 2
Appellant asserts that Medvedev’s paragraph 125 does not teach
“distributing transmission energy for the plurality of different source coding
streams based on channel state information (CSI)” because it does not teach
determining a transmit power to use for a selected antenna. See App. Br. 7-
9.1 Appellant asserts that as a result, the combination of Oprea and
Medvedev does not teach claim 1. See App. Br. 8-9. Appellant contends
that it would not have been obvious to combine the references because they
teach conflicting and opposite views. See App. Br. 9; see also Reply Br. 7-
8.

1 In the Reply Brief, Appellant argues that Medvedev’s paragraph 125 does
not teach the disputed claim limitation because it does not teach transmission
energy for the plurality of different source coding streams, and that the
combination of Oprea and Medvedev does not teach claim 1 as a result. See
Reply Br. 6-7.
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We agree with the Examiner that claim 1 does not require determining
a transmit power to use for a selected antenna as argued by Appellant. See
Ans. 28. Further, although Appellant acknowledges that the Examiner also
relies on other Medvedev paragraphs for the disputed claim limitation (App.
Br. 7; see also Ans. 8-9), Appellant does not provide any arguments with
respect to those cited paragraphs in the Appeal Brief (App. Br. 7-9). We
disagree with Appellant’s arguments, and agree with the Examiner’s
conclusion. We adopt the Examiner’s reasoning and findings on pages 8-9,
23-24, 26 (second paragraph), and 27-34 of the Answer as our own. We
emphasize the following: The Examiner correctly maps the recited
distributing transmission energy . . . based on channel state information
(CSI) to Medvedev’s based on CSI, determining the transmit power to use
for each transmission channel, and distributing transmit power to the
transmission channels. See Ans. 24; Medvedev ¶¶ 125; 46.2 The Examiner
finds—and Appellant does not dispute—that Oprea teaches separating the
pre-equalized decomposed signal into a plurality of different source coding
streams. See Ans. 6-8. Therefore, Oprea teaches a plurality of different
source coding streams. As a result, Oprea and Medvedev collectively teach
distributing transmission energy for the plurality of different source coding
streams based on channel state information (CSI). Combining the teachings
of Oprea and Medvedev would have predictably used prior art elements
according to their established functions—an obvious improvement. See KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).

2 Alternatively, the Examiner maps the recited distributing transmission
energy . . . based on channel state information (CSI) to Medvedev’s “total
transmit power Ptotal is distributed to the Ns groups based on . . . channel
SNRs.” See Ans. 24, 26; Medvedev ¶ 73.2
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Further, Appellant’s argument that it would not have been obvious to
combine the references is unpersuasive. It is well settled that “a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements.” In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for
obviousness whether a secondary reference’s features can be bodily
incorporated into the structure of the primary reference. See In re Keller,
642 F.2d 413, 425 (CCPA 1981).
For the first time in the Reply Brief, Appellant belatedly argues that:
(1) Medvedev teaches determining the transmit power, not the recited
“distributing” transmission energy; (2) Medvedev’s paragraphs 46 and 73 do
not teach “based on CSI” because signal-to-noise ratio (SNR) is not CSI;
and (3) the combination of Oprea and Medvedev does not teach distributing
transmission energy. See Reply Br. 5-7. Appellant has waived such
arguments since they are untimely. See Borden, 93 USPQ2d at 1474.
We also note that Appellant’s belated arguments are unpersuasive in
light of the Examiner’s findings and reasoning we adopted above. Further,
Appellant argues that SNR is not CSI, but the Examiner cites Medvedev’s
channel SNR. See Ans. 24, 26. The Examiner correctly finds that the
broadest reasonable interpretation of the term CSI encompasses channel
SNR. See id.3 .

3 Although not relied on in affirming the rejection, we note Thielecke
teaches that the term CSI encompasses channel SNR. See, e.g., Thielecke ¶
2 (“[T]he transmitter has knowledge of one or more channel parameters
reflecting the current ability of the channel for transmit data reliably. This
kind of information is referred to as channel state information (CSI).
Examples are signal-to-noise ratio . . . .”).
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Application 11/719,490

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Accordingly, we sustain the Examiner’s rejection of claim 1.
Appellant applies their arguments for claim 1 to claims 12 and 23.
App. Br. 10. Therefore, for similar reasons discussed above with respect to
claim 1, we sustain independent (1) claims 12 and 23, and (2)dependent
claims because Appellant asserts that the dependent claims are patentable for
the same reason as claim 1, and additionally cited prior art does not cure the
alleged deficiencies discussed above. App. Br. 11-12.

ORDER
The Examiner’s decision rejecting claims 1-3, 7-14 and 18-23 is
affirmed.
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).

AFFIRMED

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