Ex Parte Shaw et al

Board of Patent Appeals and Interferences

Jul 27, 2011

10607329 (B.P.A.I. Jul. 27, 2011)

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.
10/607,329 06/26/2003 Michael J. Shaw 1392-WND (P266US) 4207
31127 7590 07/28/2011
JAMES J. MURPHY
THOMPSON AND KNIGHT LLP
1722 ROUTH ST.
SUITE 1500
DALLAS, TX 75201
EXAMINER
QURESHI, AFSAR M
ART UNIT PAPER NUMBER
2472
MAIL DATE DELIVERY MODE
07/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL J. SHAW, DANIEL R. DILLON, and
GRAHAM SMITH
____________

Appeal 2009-010783
Application 10/607,329
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, CARLA M. KRIVAK, and
THOMAS S. HAHN, Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

Appeal 2009-010783
Application 10/607,329

2
STATEMENT OF THE CASE
Appellants’ claimed invention is a method and system for
implementing transmit diversity (Spec. ¶ [0001]).
Independent claim 1 is reproduced below.
1. A transmit diversity method comprising:
transmitting data at a selected rate from a first antenna;
awaiting an acknowledgement indicating successful receipt by a
receiving terminal of the data transmitted at the selected rate
from the first antenna; and
transmitting data at the selected rate from a second antenna
upon failure to receive an acknowledgement, after expiration of
a predetermined time interval after transmitting from the first
antenna, of successful receipt by the receiving terminal of the
data transmitted at the selected rate from the first antenna.

REFERENCES
The Examiner rejected claims 1, 4, 8, 11, 15, and 16 under 35 U.S.C.
§ 102(b) based upon the teachings of Weerackody (US 5,689,439; Nov. 18,
1997).
The Examiner rejected claims 2, 3, 5-7, 9, 10, 12-14, and 17-20 under
35 U.S.C. § 103(a) based upon the teachings of Weerackody and Ryan (US
6,898,198 B1; May 24, 2005).

ANALYSIS
The Examiner finds Appellants’ claims are broadly written and do not
claim a device that fails to receive a signal. Further, the Examiner finds
Weerackody’s “NAK signal can be read as ‘failure to receive an ACK
signal’” (Ans. 7).
Appeal 2009-010783
Application 10/607,329

3
Appellants’ claimed invention recites transmitting data from a second
antenna upon failure to receive an acknowledgement, after expiration of a
predetermined time interval. Appellants contend Weerackody teaches a
“system that relies on a feedback channel over which a receiving terminal
actively requests retransmission of data in response to the receipt of
erroneous information” (App. Br. 12-13; Weerackody col. 2, l. 48–col. 3, l.
3). That is, Weerackody teaches the receiving terminal sends either an
acknowledgement signal (ACK) upon successful receipt of transmitted data
or a negative acknowledgement (NAK) signal (a request to re-transmit (col.
4, ll. 22-23) if there is an error in the transmission. Further, Weerackody
recites that, following the transmissions of each information packet over a
forward communication channel, the transmitter waits for a positive or
negative acknowledgement (a request to re-transmit) from the receiver (col.
2, ll. 1-4; col 2, l. 59–col. 3, l. 3)). Thus, Weerackody requires a transmit
signal of some type—acknowledgment or negative acknowledgement
signal—and does not contemplate operating such that the receiving terminal
fails to return a responsive signal (an acknowledgment or negative
acknowledgement), as does Appellants’ claimed invention (App. Br. 13).
Thus, claims 1, 4, 8, and 11 are not anticipated by Weerackody.
With respect to claims 15 and 16, although Weerackody teaches
switching to a second antenna when an NAK is received (Abstract; col. 4, ll.
29-35), the Examiner has not shown Weerackody teaches switching back to
the first antenna and retransmitting at a second rate as recited in claim 15.
Thus, claims 15 and 16 are not anticipated by Weerackody.
Appeal 2009-010783
Application 10/607,329

4
Ryan is directed to selecting a data rate. It does not cure the
deficiencies of Weerackody. Thus, claims 2, 3, 5-7, 9, 10, 12-14, and 17-20
are not obvious over Weerackody and Ryan.

DECISION
The Examiner’s decision rejecting claims 1-20 is reversed.

REVERSED

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