Ex Parte Virtej et alDownload PDFPatent Trial and Appeal BoardJun 30, 201613043161 (P.T.A.B. Jun. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/043, 161 03/08/2011 11051 7590 07/05/2016 Squire Patton Boggs (US) LLP Nokia Technologies Oy 8000 Towers Crescent Drive, 14th Floor Vienna, VA 22182 FIRST NAMED INVENTOR Elena Virtej 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. 059864.01947 8361 EXAMINER LINDENBAUM, ALAN LOUIS ART UNIT PAPER NUMBER 2466 NOTIFICATION DATE DELIVERY MODE 07/05/2016 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): sonia.whitney@squirepb.com ipgeneraltyc@squirepb.com nokia.ipr@nokia.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ELENA VIRTEJ and JARI PETTER! LUNDEN Appeal2014-007238 Application 13/043,161 Technology Center 2400 Before JEAN R. H01\1ERE, DEBF~A K. STEPHENS, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-007238 Application 13/043,161 This is an 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 and enter a new ground of rejection under 37 C.F.R. § 41.50(b ). INVENTION The claimed invention is directed to an apparatus and method for allocating communication resources in a communication system. (Spec. i-f 1.) Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An apparatus, comprising: a processor; and a memory including computer program code, said memory and said computer program code configured to, with said processor, cause said apparatus to perform at least the following: monitor communication resources employed by a plurality of base stations; determine an opportunity for improved utilization of said communication resources by said apparatus and said plurality of base stations; and generate a change request for said communication resources employed by at least one of said plurality of base stations based on said opportunity for improved utilization thereof, 2 Appeal2014-007238 Application 13/043,161 \'I/herein said opportunity for improved utilization of said communication resources is dependent on a distance or a path loss between ones of said plurality of base stations. REFERENCE The prior art relied upon by the Examiner in rejecting the claims on appeal is: Hui US 2010/0054196 Al March 4, 2010 REJECTION Claims 1-20 stand rejected under 35 U.S.C. § 102(b) as anticipated by Hui. (Ans. 3.) ANALYSIS Claim 1 The issue for claim 1 is whether the Examiner erred in finding that Hui discloses the elements of: "generate a change request ... "and "wherein said opportunity for improved utilization ... is dependent on a distance .... " (App. Br. 10.) Appellants argue Hui does not disclose an opportunity for improved utilization of communication resources that is dependent on a distance or a path loss between a plurality of base stations. (App. Br. 11; Reply Br. 7-8.) In particular, Appellants contend that Hui's null pattern is not an opportunity for improved utilization and is not dependent on distance. (App. Br. 11-12; Reply Br. 7-8.) Appellants further argue that Hui teaches null patterns are undesirable. (App. Br. 12.) 3 Appeal2014-007238 Application 13/043,161 \Ve are not persuaded by these arguments. i~ .. s the Examiner finds, and we agree, Hui teaches that null patterns, appropriately used, reduce interference, which results in improved utilization of communication resources. (Ans. 11-12, citing, inter alia, Hui i-fi-151, 52.) As the Examiner further finds, this improved utilization of communication resources is dependent on distance. (Id.) Hui states: "Depending on how far the neighboring BTSs are placed, applying null patterns for each neighboring BTS may create problems because some UEs may be in the direction of a neighboring BTS." (Hui i152.) Appellants argue this same passage teaches applying null patterns in Hui is undesirable. (App. Br. 12). We are not persuaded by that interpretation. An anticipation analysis is based solely on whether the prior art reference discloses and enables the claimed invention. We find Hui discloses applying null patterns. (e.g., Hui Figs. 4--5, i151.) Appellants argue that Hui does not disclose generating a change request in which a null pattern would be applied and, therefore, does not disclose the generating-a-change-request element. (App. Br. 13-14; Reply Br. 5---6.) We agree. The Examiner sets forth where Hui discloses a change request (e.g., at paragraphs 90-96) and where Hui discloses reconfiguring BTS's to reduce interference by applying null patterns (at paragraphs 51- 52). (Ans. 12-13.) We agree with the Examiner on both issues, but we do not agree that, as a result, Hui discloses a change request for applying null patterns. Instead, Hui suggests such a change request by disclosing change requests and the desirability of applying null patterns. This suggestion, however, is not sufficient for anticipation. 4 Appeal2014-007238 Application 13/043,161 i\~ccordingly, 'l.fe do not sustain the Examiner's rejection of claim 1 under 35 U.S.C. § 102. However, pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new ground of rejection for claim 1under35 U.S.C. § 103(a) as unpatentable over Hui. For this new ground of rejection, we adopt the Examiner's findings regarding Hui and claim 1 with the exception that we find that Hui teaches or suggests, rather than discloses, a change request for applying null beams. (Final Act. 2-3, 9-11; Ans. 3--4, 11-15.) Appellants present additional arguments regarding claim 1 that we do not find persuasive. Appellants argue that Hui fails to disclose any apparatus that could determine an opportunity for improved utilization that is dependent on a distance between base stations. (App. Br. 14.) This argument is premised on the contention that the application of a null pattern is not such an opportunity-a contention we do not find persuasive. Appellants also argue the Examiner is not relying on the same apparatus in Hui for the monitoring, determining, and generating elements. (App. Br. 15-17; Reply 8-10.) We agree with the Examiner's response to this argument. (Ans. 13-14.) Claims 2-20 Claims 2-20 incorporate through dependency the limitations of claim 1. Accordingly, for the reasons described above, we will not sustain the rejection of claims 2-20. For a new ground of rejection for these claims, the issues are the same as for claim 1. Appellants assert that they are separately arguing each of claims 2-20. (App. Br. 17-24.) For several claims, however, Appellants present no separate argument, and for the remaining, Appellants present arguments that depend on acceptance of their arguments for claim 1. (App. 5 Appeal2014-007238 Application 13/043,161 Br. 17-24; Reply Br. 10-12.) Therefore, pursuant to our authority under 37 C.F.R. § 41.50(b), we reject claims 2-20 under 35 U.S.C. § 103(a) as unpatentable over Hui. For this rejection, we adopt the Examiner's findings and rationale regarding claims 2-20 and Hui with the exception stated above for the generating-a-change-request element in claim 1 and the corresponding elements in claims 11 and 15. (Final Act. 2-10; Ans. 3-15.) DECISION We reverse the Examiner's anticipation rejection of claims 1-20. In a new ground of rejection, we reject claims 1-20 under 35 U.S.C. § 103 as unpatentable over Hui. This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: ( 1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. 6 Appeal2014-007238 Application 13/043,161 (2) Request rehearing. Request that the proceeding be reheard under§ 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure§ 1214.01. 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)(iv). REVERSED; 37 C.F.R. § 41.50(b) 7 Copy with citationCopy as parenthetical citation