Ex Parte Tseng

Patent Trial and Appeal Board

Oct 20, 2014

11882863 (P.T.A.B. Oct. 20, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LI-CHIH TSENG
____________________

Appeal 2012-009916
Application 11/882,863
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, CATHERINE SHIANG and
MICHELLE N. WORMMEESTER, Administrative Patent Judges.

PER CURIAM

DECISION ON APPEAL

Appeal 2012-009916
Application 11/882,863

2
STATEMENT OF CASE
Introduction
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1, 3–7, and 9–12. Claims 2, 8, and 13–46 have been canceled. (Final
Rej. 2). We have jurisdiction under 35 U.S.C. § 6(b).

Exemplary Claim
Exemplary claim 1 under appeal reads as follows (emphasis added):
Claim 1. A method of measuring variance of a data payload for a
wireless communications system, the method comprising:
a radio resource control (RRC) layer of the wireless communications
system predetermining plural variance reference values;
the RRC layer receiving a variance measurement result from a
medium access control layer of the wireless communications system; and
the RRC layer rounding the variance measurement result
downwards to a maximum variance reference value of the plural variance
reference values if the variance measurement result is greater than the
plural variance reference values and upwards to a closest variance
reference value of the plural variance reference values if the variance
measurement result is less than the maximum variance reference value of the
plural variance reference values.

Rejection
The Examiner rejected claims 1, 3–7, and 9–12 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Applicant’s
Admitted Prior Art (hereafter referred to as AAPA) and Prieto (US
7,002,918 B1; date Feb. 21, 2006).1

1 Separate patentability is not argued for claims 3–7 and 9–12. Except for
our ultimate decision, these claims are not discussed further herein.
Appeal 2012-009916
Application 11/882,863

3
Appellant’s Contentions
1. Appellant contends that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because “[a] prima facie case of obviousness has
not been established.” (App. Br. 4). Appellant presents his supporting
argument at pages 4–5 of the Appeal Brief.
2. Appellant further contends that the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 103(a) because “[i]mpermissible hindsight was
used to reject the pending claims.” (App. Br. 5). Appellant presents his
supporting argument at pages 5–6 of the Appeal Brief.
3. Appellant further contends that the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 103(a) because “[t]he Examiner has not
considered Prieto in its entirety.” (App. Br. 6). Appellant presents his
supporting argument at pages 6–7 of the Appeal Brief and page 4 of the
Reply Brief.
4. Appellant further contends that the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 103(a) because “Prieto is non-analogous art.”
(App. Br. 7). Appellant presents his supporting argument at pages 7–8 of
the Appeal Brief.

Issues on Appeal
Did the Examiner err in rejecting claim 1 as being obvious for the
reasons argued by Appellant?

Appeal 2012-009916
Application 11/882,863

4
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments (Appeal Brief and Reply Brief) that the Examiner has erred.
We disagree with Appellant’s conclusions. We adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and (2) the reasons set forth by the Examiner in
the Examiner’s Answer in response to Appellant’s Appeal Brief (see
particularly the Examiner’s remarks at pages 9–15 of the Answer). We
concur with the conclusions reached by the Examiner.

CONCLUSION
(1) The Examiner has not erred in rejecting claims 1, 3–7, and 9–12
as being unpatentable under 35 U.S.C. § 103(a).
(2) Claims 1, 3–7, and 9–12 are not patentable.

DECISION
The Examiner’s rejection of claims 1, 3–7, and 9–12 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

tj