Ex Parte Viering et alDownload PDFPatent Trial and Appeal BoardAug 2, 201613257135 (P.T.A.B. Aug. 2, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/257, 135 09/16/2011 29683 7590 08/02/2016 HARRINGTON & SMITH 4 RESEARCH DRIVE, Suite 202 SHELTON, CT 06484-6212 FIRST NAMED INVENTOR Ingo Viering 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. 863.0373.Ul(US) 5766 EXAMINER MIAH,LITON ART UNIT PAPER NUMBER 2642 MAILDATE DELIVERY MODE 08/02/2016 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 INGO VIERING, MARTIN DOETTLING, and RICHARD WALDHAUSER Appeal2015-003202 Application 13/257,135 Technology Center 2600 Before MATTHEW R. CLEMENTS, CARLL. SILVERMAN, and SCOTT B. HOWARD, Administrative Patent Judges. HOWARD, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's Non-Final Rejection of claims 1-10 and 12-15, which constitute all of the claims pending in this application. Claim 11 has been cancelled. App. Br. 23. Although the action appealed from is a Non-Final Rejection, because the application has been twice rejected we have jurisdiction pursuant to 35 U.S.C. §§ 6 and 134. Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994) (precedential). We affirm. 1 Appellants identify Nokia Solutions and Networks Oy as the real parties in interest. App. Br. 2. Appeal2015-003202 Application 13/257,135 THE INVENTION The claimed invention is directed to a method and device for data processing in a mobile communication network including a method for two cells to directly negotiate a load-balancing hand-over. Abstract, Spec. 2:6- 7, 9:22-34. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for data processing in a mobile communication network, comprising: directly negotiating a handover parameter of at least one cell between a first cell and a second cell based on a load situation at the first cell, or on a load situation at the second cell, or on a load situation at the first cell and at the second cell; and using the negotiated handover parameter to handover at least one mobile terminal. REFERENCES The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Laux US 2003/0097405 Al May 22, 2003 Ergen US 2009/0069004 Al Mar. 12, 2009 Kazmi US 2009/0201810 Al Aug. 13, 2009 Gannholm WO 2009/002241 Al Dec. 31, 2008 REJECTIONS Claims 1-5, 7, 8, 10, 12, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ergen in view of Kazmi. Non-Final Act. 3-7. 2 Appeal2015-003202 Application 13/257,135 Claims 6, 9, and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ergen in view of Kazmi and Gannholm. Non-Final Act. 7-9. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Ergen in view of Kazmi and Laux. Non-Final Act. 9-10. ANALYSIS We have reviewed the Examiner's rejection in light of Appellants' arguments that the Examiner erred. In reaching this decision, we have considered all evidence presented and all arguments made by Appellants. We are not persuaded by Appellants' arguments regarding claims 1-10 and 12-15. Claims 1, 3-5, 7, 8, 12, and 15 Appellants argue neither Ergen nor Kazmi teach "directly negotiating a handover parameter of at least one cell between a first cell and a second cell based on a load situation," as recited in claim 1. App. Br. 3-11; Reply Br. 2--4. More particularly, Appellants argue Ergen teaches using an Access Service Network controller that generates instructions to various base stations to balance the load in a network. App. Br. 4--5. However, according to Appellants, Ergen does not teach or suggest base stations directly negotiating with each other. App. Br. 5. Appellants further argue Kazmi merely teaches "the presence of the LTE X2 interface between Node Bs." App. Br. 6. Although the various Node Bs can communicate directly with each other to "communicate requests from one to the other for a handover and/ or for measurement 3 Appeal2015-003202 Application 13/257,135 reports and can receive replies to these requests" (App. Br. 7), Appellants argue Kazmi does not teach or suggest the two cells engaging in a direct negotiation of a handover parameter. App. Br. 6-7; Reply Br. 2-3. The Examiner finds Ergen teaches or suggests "a handover parameter of at least one cell is negotiated between a first cell and a second cell based on a load situation" at the first and/or second cell. Non-Final Act. 3--4. However, the Examiner notes Ergen "fails to explicitly disclose directly negotiating a handover parameter" between the first and second cell. Non- Final Act. 4. The Examiner further finds Kazmi teaches or suggests direct communication between the first cell and the second cell, including measurement reports. Id.; Ans. 3 (citing Kazmi i-f 29). The Examiner further finds that the combination of Ergen and Kazmi "as a whole discloses the direct negotiation of a handover parameter between the Node Bs." Ans. 3 (emphasis omitted); see also Non-Final Act. 4 (It would have been obvious "to incorporate the direct negotiation between the cells as taught by Kazmi et al to the load balancing system as disclosed by Ergen et al for purpose avoiding unnecessary measurement reporting in order to minimize the overhead signaling."). Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. In re Keller, 642 F.2d 413, 4 Appeal2015-003202 Application 13/257,135 425 (CCP A 1981 ). Because Appellants' arguments focus on the references individually, we are not persuaded by Appellants' argument that the Examiner erred. Instead, we agree with and adopt the Examiner's determinations that Ergen teaches a third-party negotiating a hand over parameter, that Kazmi teaches direct communication between two cells, and that it would have been obvious to a person of ordinary skill in the art to have combined the direct communication of Kazmi with the load balancing system of Ergen in order to minimize overhead signaling. Appellants also argue that neither Kazmi's description of Node Bs requesting and receiving a measurement report nor Ergen's description of sending/receiving a flag that indicates a congestion level teaches "directly negotiating" because "negotiating" requires the "ability to agree with, disagree with, or modify" a handover parameter. App. Br. 7-10. Appellants cite to portions of the Specification describing Figure 1. Id. The cited portions of the Specification do not define the term "negotiating." At best, they describe only one embodiment. During prosecution, claims must be given their broadest reasonable interpretation while reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. A cad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). However, we will not read limitations from the specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Regardless of the general contentions and imputed intended meanings articulated by Appellants in the Appeal Brief, "[i]t is the claims that measure the invention." See SRI Int 'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en bane) (citations omitted). 5 Appeal2015-003202 Application 13/257,135 Though understanding the claim language may be aided by the explanations contained in the written description, it is important not to import into a claim limitations that are not a part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment. SuperGuide Corp. v. DirecTV Enters, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (citing Electro Med. Sys. S.A. v. Cooper Life Sci., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994) ). "[A ]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments .... [C]laims may embrace 'different subject matter than is illustrated in the specific embodiments in the specification."' Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en bane) (citations omitted). On this record, we are not persuaded that the term "negotiating" excludes the exchange of measurement reports taught in Kazmi. Accordingly, we sustain the Examiner;s rejection of claim 1, along with the rejections of claims 3-5, 7, 8, 12, and 15, which are not argued separately. Claim 2 Claim 2 recites that "the handover parameter comprises at least one handover offset." App. Br. 21 (Claims App'x). Because the word offset does not appear in Ergen, Appellants argue Ergen does not teach the limitation of claim 2. App. Br. 12. There is no requirement in an obviousness analysis for the prior art to "contain a description of the subject matter of the appealed claim in 6 Appeal2015-003202 Application 13/257,135 ipsissimis verbis." In re May, 574 F.2d 1082, 1090 (CCPA 1978). Accordingly, we are not persuaded by Appellants' argument that the Examiner erred. Appellants further state that certain sections of the Specification discuss the handover offset parameter. App. Br. 12 (citing Spec. 14:33-37, 15 :25-34 ). Appellants then argue Ergen does not teach or suggest "the handover offset or the use of a handover offset parameter." App. Br. 12. As discussed above, we will not read limitations from the specification into the claims. Van Geuns, 988 F.2d at 1184. Although the disclosure of Ergen may be different from what is disclosed in the Specification, Appellants have not persuaded us that Examiner erred in construing the term "holdover offset" broadly enough to encompass the teaching of Ergen. Accordingly, we sustain the Examiner's rejection of claim 2. Claim 10 Claim 10 recites that the handover negotiation comprises the steps of: the first cell informs the second cell about a handover parameter setting; the second cell confirms this handover parameter setting or it suggests a different handover parameter setting or it rejects the handover parameter setting. App. Br. 23 (Claims App'x). Appellants argue that Ergen does not teach or suggest the additional limitations recited in claim 10 because it does not contain various words or word snippets from the claim--"confirm", "reply", "replie", "ackn", and "respond". App. Br. 13-14. Appellants further assert that although the ASN-controller sends commands to the various base 7 Appeal2015-003202 Application 13/257,135 stations, the base stations do not "confirm[]" because they do not "repl[y] in any way [to] an instruction [from] the ASN-controller." App. Br. 13. 2 The Examiner finds Ergen-as modified by Kazmi in claim 1- teaches the informing and confirming limitations recited in claim 10. Non- Final Act. 6-7; Ans. 5---6. Specifically, the Examiner finds Ergen teaches sending instructions that indicate calls handled by a first cell will be handed off to a second cell (the informing limitation) and the second cell confirms the handover parameter setting by accepting the call (the confirming limitation). Ans. 5---6 (citing Ergen i-f 44). We are not persuaded by Appellants' arguments that the Examiner erred. As discussed above, there is no requirement that the prior art described the claimed invention ipsissimis verbis. May, 574 F.2d at 1090. It is, therefore, irrelevant that Ergen does not contain the word confirm. Instead, with agree with the Examiner's determination that the phrase "confirms this handover parameter setting," as recited in claim 10, is broad enough to encompass accepting the handover call. To the extent Appellants argue that the confirmation needs to be sent, that is not required by the claim; claim 10 merely recites that "the second cell confirms this handover parameter setting." We agree with the Examiner's conclusion that the broadest reasonable interpretation of confirm encompasses confirmation by accepting the handover request. Because 2 Appellants also argue Kazmi does not teach or suggest the limitation recited in claim 10. App. Br. 13. Because the Examiner does not rely on Kazmi, the argument is moot. See Merck, 800 F.2d at 1097 (improper to argue references individually); Keller, 642 F.2d at 425 (same). 8 Appeal2015-003202 Application 13/257,135 Appellants' arguments are not commensurate with the scope of the claims, they are unpersuasive. See In re Self, 671F.2d1344, 1348 (CCPA 1982). It is similarly irrelevant that the Examiner does not make any findings concerning the other two options recited in the claim: suggesting a different handover parameter setting or rejecting and handover parameter setting. As long as one member of the group is obvious, the claim is obvious. See In re Skol!, 523 F.2d 1392, 1397 (CCPA 1975). Accordingly, we sustain the Examiner's rejection of claim 10. Claim 6 Appellants argue Gannholm does not teach or suggest the first and second cells directly negotiating a handover parameter and, therefore, Gannholm does not cure the deficiencies in the disclosures of Ergen and Kazmi. App. Br. 15-16. Because we do not find any deficiencies in the underlying rejection based on Ergen and Kazmi, we are not persuaded by Appellants' argument that the Examiner erred in rejecting claim 6. Accordingly, we sustain the Examiner's rejection of claim 6. Claim 9 Appellants argue Grannholm does not teach or suggest a negotiation or a direct negotiation between cells of a handover parameter. App. Br. 16- 18. We are not persuaded by Appellants' arguments. As discussed above, it is improper to argue the references individually when the rejection is directed to the combined teaching of multiple references. Merck, 800 F .2d at 1097 (improper to argue references individually); Keller, 642 F.2d at 425 9 Appeal2015-003202 Application 13/257,135 (same). As discussed above for claim 1, the Examiner finds the combination of Ergen and Kazmi teaches or suggests direct negotiation between the first cell and the second cell. See also Ans. 8-9. Therefore, Appellants' argument that Grannholm does not teach that limitation is not persuasive. Instead, we agree with and adopt the Examiner's finding that Grannholm teaches or suggests that the mobile station can move between cells and that the mobile station can be in an active state. See Ans. 9 (citing Grannholm 1: 15-23 ). Accordingly, we sustain the Examiner's rejection of claim 9. Claim 14 Although claim 14 is listed in the heading on page 14 of the Appeal Brief, Appellants do argue that the Examiner erred in rejecting that claim. Because Appellants have not identified any errors in the Examiner's findings and because we have sustained the rejection of claims from which claim 14 depends, we summarily affirm the Examiner's decision rejecting the claims. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) ("If an appellant fails to present arguments on a particular issue - or, more broadly, on a particular rejection - the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection."). Claim 13 Appellants argue Laux "is really unrelated to switching off cells of a wireless communication network. Instead, Laux is directed to routing messages to servers based on load balancing." App. Br. 19. Similarly, Appellants argue "[i]t is also not understood why one skilled in the art 10 Appeal2015-003202 Application 13/257,135 concerned with handovers in a cellular system would consult the teachings of Laux in view of the disclosures of Ergen and Kazmi." Id. Appellants further argue Laux does not contain the words "cell." Id. The Examiner finds Laux teaches load balancing that is switched off via an operation and maintenance function. Non-Final Act. 10 (citing Laux i-f 109); Ans. 10 ("Laux discloses on paragraph 109 [lines 12-17] wherein load balancing function is turned off by load balancer.") (emphasis omitted). The Examiner further finds "Laux further discloses on paragraph 78-79 that client can be mobile telephone which can be connected to a network via a wireless communication link, so Laux is related to a wireless communication network." Ans. 10 (emphasis omitted). Art is analogous when it is: (1) from the same field of endeavor as the claimed invention; or (2) reasonably pertinent to the particular problem faced by the inventor, if the art is not from the same field of endeavor. In re Bigio, 381F.3d1320, 1325-26 (Fed. Cir. 2004). In order to be "reasonably pertinent," art must "logically[] commend[] itself' to an inventor's attention in considering his problem. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007) (citing In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992)). Although only one prong needs to be satisfied for the prior art to be analogous, we find that both prongs are satisfied. First, the Examiner finds Laux is in the same field of endeavor. Ans. 10. Appellants have not identified any errors in the Examiner's findings. See Reply Br. 1-7 (not addressing claim 13). "If an appellant fails to present arguments on a particular issue - or, more broadly, on a particular rejection - the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection." Frye, 94 USPQ2d at 1075. 11 Appeal2015-003202 Application 13/257,135 Second, we find Laux to be reasonably pertinent to the particular problem faced by the inventor. Both Laux and the claimed invention are directed to how to handle issues related to load balancing. As the Supreme Court has recognized, "if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Accordingly, we are not persuaded by Appellants' arguments that the Examiner erred in applying Laux. Additionally, we agree with and adopt the Examiner's finding that the combination of Ergen, Kazmi, and Laux teaches and suggests the limitations recited in claim 13. Laux teaches a load balancing system that turns off the "load balancing function." Laux i-f 109. It would have been obvious to a person of ordinary skill in the art at the time of the invention to have adopted this functionality in the combined system of Ergen/Kazmi system. See Non- Final Act. 10; Ans. 10. Therefore, we are not persuaded by Appellants' argument that the Examiner erred. Accordingly, we sustain the Examiner's rejection of claim 13. DECISION For the above reasons, we affirm the Examiner's decisions rejecting claims 1-10 and 12-15. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv). 12 Appeal2015-003202 Application 13/257,135 AFFIRMED 13 Copy with citationCopy as parenthetical citation