Ex Parte Sartori et al

Patent Trial and Appeal Board

May 8, 2018

13348981 (P.T.A.B. May. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/348,981 01112/2012
74365 7590 05/10/2018
Slater Matsil, LLP/HW/FW/HWC
17950 Preston Road, Suite 1000
Dallas, TX 75252
FIRST NAMED INVENTOR
Philippe Sartori
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
HW 83232984US01 7311
EXAMINER
KASSIM, KHALED M
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
05/10/2018 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):
uspatent@huawei.com
docketing@slatermatsil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIPPE SARTORI, ZHONGFENG LI, and
ANTHONY C.K.
Appeal2017-004373
Application 13/348,981
Technology Center 2400
Before JOHN A. JEFFERY, ST. JOHN COURTENAY III, and
KRISTEN L. DROESCH, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-3, 5, 6, 10-12, 14, and 37, which are all the claims pending in this
application. Claims 4, 7-9, 13, 15-17, 25-29, and 33-36 are cancelled.
Claims 18-24 and 30-32 are withdrawn. See Amendment, filed July 24,
2015. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b ).
We reverse.
Appeal2017-004373
Application I3/348,98 I
STATEMENT OF THE CASE
Introduction
Appellants' invention "relates generally to digital communications,
and more particularly to a system and method for wireless link
configuration." Spec. i-f I.
Exemplary Claim
I . A method for operating a relay node during a handoff
from a first controller to a second controller, the method
compnsmg:
[LI] receiving, by the relay node, afirst instruction/ram
the first controller to discontinue using a first set of wireless
backhaul link resources allocated to the relay node by the first
controller and to temporarily use a second set of wireless
backhaul link resources dedicated by the second controller;
temporarily using, by the relay node, the second set of
wireless backhaul link resources in response to the first
instruction;
[L2] receiving, by the relay node, a second instruction
from the second controller to discontinue using the second set
of wireless backhaul link resources and to begin using a third
set of wireless backhaul link resources allocated to the relay
node by the second controller,
wherein the second set of wireless backhaul link
resources includes a minimum set of wireless backhaul link
resources common to the first set of wireless backhaul link
resources and the third set of wireless backhaul link resources;
and
using, by the relay node, the third set of wireless
backhaul link resources in response to the second instruction.
(Emphasis added regarding contested limitations LI and L2).
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Application 13/348,981
Rejection
Claims 1-3, 5, 6, 10-12, 14, and 37 are rejected under pre-AIA
35 U.S.C. § 103(a) as being obvious over the combined teachings and
suggestions of Choi et al. (US Pub. No. 2004/0224690 Al; published Nov.
11, 2004) (hereinafter "Choi"), Van Phan et al. (US Pub. No. 2012/0315916
Al; published Dec. 13, 2012) (hereinafter "Van Phan"), and Agrawal et al.
(US Pub. No. 2013/0084865 Al; published Apr. 4, 2013) (hereinafter
"Agrawal") or Chung et al. (US Pub. No. 2012/0069795 Al; published Mar.
22, 2012) (hereinafter "Chung").
Issue on Appeal
Did the Examiner err in rejecting claims 1-3, 5, 6, 10-12, 14, and 37
as being obvious over the cited combination of references, under pre-AIA
35 U.S.C. § 103(a)?
We have considered all of Appellants' arguments and any evidence
presented.
Rejection of Independent Claim 1 under§ 103 (a)
Contentions
Appellants contest limitations L 1 and L2 of claim 1, contending, inter
alia, that the recited first and second controllers are not taught by Choi,
because only the (single) new access point (AP) in Choi (Fig. 4B, 413) sends
a discontinuation message:
Choi discloses a temporary connection between two APs,
and only a single entity, the new access point (AP), sending
messages that possibly could be interpreted as discontinue-
using resources instructions. Specifically, Choi discloses the
new AP sending a QoS [ (Quality of Service)] a temporary
connection from the previous AP to the new AP for the
temporary buffering of data. See, e.g., Choi, i-f [0067], Fig. 4B
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Application 13/348,981
(element 409). After establishing a connection with the mobile
station, the new AP sends a connection termination request
message to the previous AP to terminate the temporary
connection. See, e.g., id. at i-f [0068], Fig. 4B (element 413). To
the extent the final Office Action is interpreting the
reassociation response message to the mobile station as being a
discontinue-using-resources instruction, this message also is
sent by the same entity, the new AP. See, e.g., id. at i-f [0067],
Fig. 4 B (element 411 ). Again, Choi discloses that all such
messages are sent by a single entity, the new AP, and that the
temporary connection is between the two APs. In contrast with
Choi, claims 1 and 10 recite that the mobile station receives
resource usage discontinuation instructions from different
controllers.
Br. 8, emphasis added.
In response, "[t]he Examiner agrees that Choi does not appear to
explicitly disclose that the instructions received to stop [discontinue] using
the first set of backhaul link resources and second set of backhaul link
resources are received by a relay node." Ans. 3. The Examiner emphasizes:
"[t]o support the shortcomings of Choi, Van Phan was introduced. Van Phan
discloses using a relay node and discloses receiving, by the relay node,
instructions to release a first set of backhaul links and second set of backhaul
links (See Van Phan i-f 0036, i-f 0037)." Ans. 3.
However, Appellants further contest limitations LI and L2 of claim 1,
contending, inter alia:
claims 1 and 10 recite that the second set of wireless backhaul
link resources includes a minimum set of wireless backhaul
link resources common to the first set of wireless backhaul link
resources allocated to the relay node by the first controller, and
the third set of wireless backhaul link resources allocated to the
relay node by the second controller. Further, claims 1 and 10
recite that the relay node receives a first instruction from the
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Appeal2017-004373
Application 13/348,981
first controller to discontinue using the first set of resources,
and the relay node receives a second instruction from the
second controller to discontinue using the second set of
resources. Nothing is Choi teaches or suggests a relay node
receiving these different instructions from different
controllers for the relay node to discontinue using resources,
including a set of wireless backhaul link resources common to
the first and third sets of resources.
Br. 9 (emphasis added).
Although the Examiner responds that Appellants are attacking the
references individually, Ans. 3, we find Appellants substantively traverse the
secondary Van Phan reference. See Br. 10. Appellants contend Van Phan
does not remedy the deficiencies of Choi, because:
Van Phan discloses a source base station sending a handover
first backhaul link message S3, sending a release second
backhaul link message S6, and sending a release third
backhaul link message S8. See, e.g., Van Phan, Fig. 4, i-fi-1
[0036]-[0038]. As with Choi, Van Phan discloses only a single
entity sending messages that could be interpreted as
discontinue-using-resources instructions. In contrast with Van
Phan, claims 1 and 10 recite that the mobile station receives
instructions from different controllers. That is, the mobile
station receives a first instruction to discontinue using resources
from a first controller, and receives a second instruction to
discontinue using resources from a second controller.
Br. 10 (emphasis added).
Appellants also substantively traverse the teachings of the Agrawal
and Chung references, cited in the alternative by the Examiner (Final Act.
5), for teaching the "wherein" clause of claim 1: 1
1 Claim 1 : "wherein the second set of wireless backhaul link
resources includes a minimum set of wireless backhaul link resources
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Appeal2017-004373
Application I3/348,98 I
Finally, neither of the references cited in the alternative,
Agrawal and Chung, remedies the deficiencies of Choi and Van
Phan. Agrawal discloses almost blank subframe (ABS)
patterns, the static portion of which represents a common
minimum subset of the ABS patterns, and non-ABS patterns
also having a common minimum subset. See, e.g., Agrawal,
Abstract, i-f [0054]. Agrawal does not teach or suggest a relay
node receiving the first and second instructions from different
controllers as discussed above.
Chung discloses that a "common backhaul/access
downlink/uplink subframe allocation pattern may be applied to
time resources on all CCs configured on the backhaul link and
the access link." E.g., Chung, i-f [OI36]. "A subframe pattern
may be set for each individual RN [relay node], commonly for
all RNs within the coverage area of the eNode B, or for each
RN group within the coverage area of the eNode B." E.g., id. at
i-f [OI37]. As with Agrawal, Chung also does not teach or
suggest a relay node receiving first and second instructions
from different controllers as discussed above.
Br. I 0 (emphasis added).
ANALYSIS
Issue: Under pre-AIA 35 U.S.C. § I03(a), did the Examiner err by
finding that Choi, Van Phan, and Agrawal or Chung would have collectively
taught or suggested contested limitations LI and L2:
[LI] receiving, by the relay node, afirst instruction/ram
the first controller to discontinue using a first set of wireless
backhaul link resources allocated to the relay node by the first
controller and to temporarily use a second set of wireless
backhaul link resources dedicated by the second controller;
common to the first set of wireless backhaul link resources and the
third set of wireless backhaul link resources;" (emphasis added).
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Application 13/348,981
[L2] receiving, by the relay node, a second instruction
from the second controller to discontinue using the second set
of wireless backhaul link resources and to begin using a third
set of wireless backhaul link resources allocated to the relay
node by the second controller[,]
within the meaning of representative independent claim 1 ?2 (Emphasis
added).
Based upon our review of the record, we find the Examiner does not
explain in sufficient detail how the cited prior art combination teaches or
suggests the contested claimed features. In setting forth the rejection of
claim 1, we find the Examiner paints with a broad brush. Final Act. 3--4.
On this record, we find the Examiner's proffered mapping of the disputed
claim limitations to the corresponding specific features found in each of the
cited references is imprecise, and thus would require us to engage in some
degree of speculation. 3
In particular, we note that contested limitation L 1 of claim 1 requires
that a first instruction is received by the relay node from the first
controller. As claimed, the first instruction from the first controller
commands the relay node to perform two specific functions: (1)
"discontinue using a first set of wireless backhaul link resources allocated to
the relay node by the first controller," and (2) "temporarily use a second set
2 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
3 See 37 C.F.R. § 1.104(c)(2) ("When a reference is complex or shows or
describes inventions other than that claimed by the applicant, the particular
part relied on must be designated as nearly as practicable. The pertinence of
each reference, if not apparent, must be clearly explained and each rejected
claim specified."
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Application 13/348,981
of wireless backhaul link resources dedicated by the second controller."
Claim 1.
Further regarding contested limitation L2, claim 1 requires that a
second instruction is received by the relay node from the second
controller. Significantly, the second instruction from the second controller
also commands the relay node to perform two (different) specific functions:
( 1) "discontinue using the second set of wireless backhaul link resources,"
and (2) "begin using a third set of wireless backhaul link resources allocated
to the relay node by the second controller." Claim 1.
Based upon our review of the record, we find a preponderance of the
evidence supports Appellants' contentions that the recited first and second
controllers are not taught by Choi, because only the (single) new access
point (AP) in Choi (Fig. 4B, 413) sends a discontinuation message. Br. 8.
At best, we find the portions of Van Phan (i1i136-37, describing Fig.
4), as cited by the Examiner (Final Act. 4), only teach a single entity (the
source base station Fig. 4) that sends messages that could be interpreted as
discontinue using-resources instructions (see "release backhaul link" S6 and
S8, Van Phan Fig. 4), as argued by Appellants. Br. 10. Moreover, we find
the Examiner has not shown that the proffered combination of prior art
teaches or suggests the claimed first instructions and second instructions that
command the relay node to perform two different functions, respectively, in
the manner discussed above, and as recited in claim 1.
Because the Examiner has not fully developed the record to establish
how Choi, Van Phan, and Agrawal or Chung teach or suggest the disputed
limitations, we find speculation would be required to affirm the Examiner on
this record. We decline to engage in speculation. "A rejection ... must rest
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Application 13/348,981
on a factual basis .... " 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 ... resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in its factual basis." Id.
Therefore, we are constrained by the record before us to find the
Examiner erred in concluding that the combination of Choi, Van Phan, and
Agrawal or Chung renders obvious Appellants' independent claim 1.
Accordingly, we reverse the Examiner's§ 103(a) rejection of
independent claim 1, and for the same reasons we also reverse remaining
independent claim 10, which recites the contested limitations using similar
language of commensurate scope. Because we have reversed the rejection
of all independent claims, for the same reasons we reverse the Examiner's
§ 103(a) rejection of all dependent claims on appeal.
Conclusion
The Examiner erred in rejecting claims 1-3, 5, 6, 10-12, 14, and 37 as
being obvious over the cited combination of references under pre-AIA
35 U.S.C. § 103(a).
DECISION
We reverse the Examiner's decision rejecting claims 1-3, 5, 6, 10-12,
14, and 37 under pre-AIA 35 U.S.C. § 103(a).
REVERSED
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