Ex Parte Rathonyi et alDownload PDFPatent Trial and Appeal BoardJun 21, 201311675881 (P.T.A.B. Jun. 21, 2013) Copy Citation 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. 11/675,881 02/16/2007 Bela Rathonyi 4015-5602 / P22221-US2 7081 24112 7590 06/24/2013 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 EXAMINER HTUN, SAN A ART UNIT PAPER NUMBER 2643 MAIL DATE DELIVERY MODE 06/24/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BELA RATHONYI and LEIF MATTISSON ____________ Appeal 2011-001546 Application 11/675,881 Technology Center 2600 ____________ Before JOSEPH F. RUGGIERO, JASON V. MORGAN, and BARBARA A. BENOIT, Administrative Patent Judges. BENOIT, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the rejection of claims 1-35, which constitute all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We reverse the Examiner’s rejection of these claims. Appeal 2011-001546 Application 11/675,881 2 STATEMENT OF THE CASE Appellants’ invention relates to performance testing for wireless communication devices. See generally Spec. ¶ 0001. Claim 1 is illustrative and reads as follows, with key limitations emphasized: 1. A method of implementing performance testing of a mobile device, the method comprising: activating a test module of the mobile device responsive to a test activation message received from a test system; receiving radio link control (RLC) data units from the test system; determining an error metric based on the RLC data units received by the test module; and reporting the error metric to the test system. The Rejection The Examiner rejected claims 1-35 under 35 U.S.C. § 102(b) as anticipated by Numminen (US 6,687,499 B1; issued Feb. 3, 2004). Ans. 3- 19. ANALYSIS Claims 1-7, 15-26, and 33-35 This appeal turns on whether Numminen’s test data, which is “periods of a pseudorandom bit sequence packed in downlink frames” (col. 8, ll. 4-6), discloses “radio link control (RLC) data units from the test system” as recited in claim 1. Appellants contend that an ordinarily skilled artisan would “understand that the RLC is a protocol associated with cellular communication systems, e.g., Wideband CDMA systems” and the recited “‘RLC data units’ are limited to data units associated with the RCL layer and formatted according to the RLC protocol.” Br. 5-6. Appellants indicate that Appeal 2011-001546 Application 11/675,881 3 their Specification is consistent with this interpretation. Br. 5-6 (citing Spec. ¶ 17, Figs. 1-4). The Examiner concludes the recited “receiving radio link control (RLC) data units” is broadly interpreted as “receiving a [sic] test data from the test system,” which is met by Numminen’s test data of a pseudorandom bit sequence packed in downlink frames received by the mobile station. Ans. 19-20; see also Ans. 3. On the record before us, we agree with Appellants that the Examiner’s interpretation of the recited RLC data units is overbroad and, consequently, the Examiner’s reliance on Numminen is misplaced. The Examiner’s indication that “receiving radio control link (RCL) data units” can be interpreted as “receiving a test data” (Ans. 19-20) is problematic for that interpretation does not consider “radio control link (RCL) data units” as recited in claim 1. See also Ans. 3 (finding “receiving radio link control (RLC) data units from the test system” is met by the test equipment starting to send “test data, i.e., periods of a pseudorandom bit sequence packed in downlink frames”). Although identity of terminology between Numminen and the claimed limitation is not required (In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990)), anticipation requires the claim elements to be disclosed within the four corners of the reference as arranged in the same way as in the claim (Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369-71 (Fed. Cir. 2008)). The Examiner has not identified a disclosure in Numminen for “receiving radio link control (RLC) data units from the test system.” Ans. 19-20. (emphasis added). Appeal 2011-001546 Application 11/675,881 4 As noted by Appellants (Br. 6), their Specification discloses an embodiment of their invention that uses “sequences of pseudo random data to fill the data portion of the transmitted RLC data unit” (Spec. ¶0027) (emphasis added). We agree with Appellants (Br. 6) that Numminen’s general disclosure of test data as a pseudorandom bit sequence packed in downlink frames is not sufficient to disclose the recited “radio link control (RLC) data units,” which requires more than pseudorandom data. We are persuaded that Numminen does not disclose “receiving radio link control (RLC) data units from the test system,” and so violates the requirement that, to anticipate, the reference must show all elements of the claim. See Verdegaal Bros., Inc. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987). We, therefore, do not sustain the rejection of (1) independent claim 1, (2) independent claims 15, 21, and 33, which recite commensurate limitations, and (3) dependent claims 2-7, 16-20, 22-26, 34, and 35 for similar reasons. Claims 8-14 and 27-32 Independent claim 8 recites “transmitting radio link control (RLC) data units to the mobile device.” For this limitation, the Examiner relies on the same portion of Numminen (col. 7, l. 48-col. 8, l. 61) as the Examiner relies on for “receiving radio link control (RLC) data units from the test system.” Compare Ans. 6 with Ans. 3. The Examiner again equates the recited RLC data units with Numminen’s “test data, i.e., periods of a pseudorandom bit sequence packed in downlink frames.” Ans. 6. Because we are not persuaded that Numminen discloses the recited “radio link control (RLC) data units” for the reasons previously discussed Appeal 2011-001546 Application 11/675,881 5 with regard to claim 1, we do not sustain the rejection of (1) independent claim 8, (2) independent claim 27, which recites commensurate limitations, and (3) dependent claims 9-14 and 28-32 for similar reasons. CONCLUSION The Examiner erred in rejecting claims 1-35 under § 102. ORDER The Examiner’s decision rejecting claims 1-35 is reversed. REVERSED kis Copy with citationCopy as parenthetical citation