Ex Parte Sebire et al

Patent Trial and Appeal Board

Aug 30, 2016

12213833 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/213,833 06/25/2008
32294 7590 09/01/2016
Squire PB (NV A/DC Office)
8000 TOWERS CRESCENT DRIVE
14THFLOOR
VIENNA, VA 22182-6212
FIRST NAMED INVENTOR
Benoist Sebire
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.
089229.00185 4429
EXAMINER
LEVITAN, DMITRY
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
IPGENERAL TYC@SQUIREpb.COM
SONIA.WHITNEY@SQUIREpb.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENOIST SEBIRE, VINH VAN PHAN, and
MERJA VUOLTEENAHO
Appeal2014-009588
Application 12/213,833
Technology Center 2400
Before JEREMY J. CURCURI, KARA L. SZPONDOWSKI, and
SHARON PENICK, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 12-15, 17-20, 22-28, 30-35, and 37. Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
Claims 12-14, 17-19, 22-26, 30-33, and 37 are rejected under 35
U.S.C. § 103(a) as obvious over Yi (US 2004/0156330 Al; published Aug.
12, 2004) and PDCP and RLC Control PDU handling, 3GPP TSG-RAN
WG2 #59, May 20-24, 2007 1, QUALCOMM Europe ("3GPP"). Ans. 2--4.
Claims 15, 20, 27, 28, 34, and 35 are rejected under 35 U.S.C.
§ 103(a) as obvious over Yi, 3GPP, and ETSI TS 136 300 V8.0.0 (2007-03)
1 The publication date of this reference is the issue in the present appeal.
Appeal2014-009588
Application 12/213,833
Technical Specification, Universal Mobile Telecommunications System
(UMTS); Evolved Universal Terrestrial Radio Access (E·UTRA) and
Evolved Universal Terrestrial Radio Access (E-UTRAN), (3GPP TS 36.300
version 8.0.0 Release 8), ©European Telecommunications Standards
Institute 2007 ("ETSI"). Ans. 4--5.
We reverse.
STATEMENT OF THE CASE
Appellants' invention relates to "handling in-band signaling messages
in radio access networks." Spec. i-f 2. Claim 12 is illustrative and
reproduced below:
12. A method, comprising:
defining packet data convergence protocol control packet
data units within a packet data convergence protocol layer,
wherein the control packet data units define signaling messages
for a radio bearer;
passing the control packet data units to and from a lo\~1er
layer radio link control; and
sending the control packet data units in radio link control
packet data unit format.
ANALYSIS
THE OBVIOUSNESS REJECTION OF CLAIMS 12-14, 17-19,
22-26, 30-33, AND 37 OVER YI AND 3GPP
The Examiner finds Yi and 3GPP teach all limitations of claims 12-
14, 17-19, 22-26, 30-33, and 37. Ans. 2--4.
Appellants present the following principal argument:
"[3GPP] was not published prior to the effective filing date of the
present application and is therefore not available as prior art under any
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Appeal2014-009588
Application 12/213,833
section of 35 USC§ 102." App. Br. 7; see also Kittila Declaration dated
June 28, 2013.
Appellants, among other arguments, support their principal argument
further arguing:
1. "[3GPP] document was intended to indicate a publication date
of 20th - 24th August, 2007, since that is the date of the appropriate 3GPP
meeting at which the document was first made publically available."
App. Br. 8.
11. "The meeting cited in [section 2] of [3GPP], the RAN2#58bis,
took place in Orlando, Florida on June 25-29, 2007 ." App. Br. 8.
In response, the Examiner explains the date of the meeting does not
indicate the publication date of the document. See Ans. 5-7.
Appellants have persuaded us that 3GPP (3GPP TSG-RAN WG2 #59)
was not published prior to the effective filing date of the present application
and is therefore not available as prior art under any section of 35 USC § 102.
In particular, the Kittila Declaration dated June 28, 2013, included a
schedule of 3GPP meetings, with the schedule indicating August 20th_ 24th
2007 as the date of the 3GPP meeting corresponding to the meeting title and
location indicated on the face of the 3GPP document. Based on this
evidence, we are persuaded that the date of 20th - 24th May 2007 on the first
page of the document is erroneous.
Further, the meeting cited in section 2 of 3GPP (3GPP TSG-RAN
WG2 #59) refers to an agreement which occurred during RAN2#58bis,
which according to the provided schedule of 3GPP meetings, took place in
Orlando, Florida on June 25-29, 2007. This further supports that 3GPP
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Appeal2014-009588
Application 12/213,833
(3GPP TSG-RAN WG2 #59) was published after June 25, 2007, the earliest
effective filing date claimed by Appellants.
Thus, based on the record before us, we find that 3GPP (3GPP TSG-
RAN WG2 #59) was published after June 25, 2007, the earliest effective
filing date claimed by Appellants.
We, therefore, do not sustain the Examiner's rejection of claims 12-
14, 17-19, 22-26, 30-33, and 37.
THE OBVIOUSNESS REJECTION OF CLAIMS 15, 20, 27,
28, 34, AND 35 OVER YI, 3GPP, AND ETSI
Claims 15, 20, 27, 28, 34, and 35 variously depend from claims 12,
17, 23, and 30. For reasons discussed above, we do not sustain the
Examiner's rejection of claims 15, 20, 27, 28, 34, and 35.
ORDER
The Examiner;s decision rejecting claims 12-15, 17--'20, 22--'28, 30-
35, and 37 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
REVERSED
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