Ex Parte Wang et al

Patent Trial and Appeal Board

Apr 10, 2018

14414920 (P.T.A.B. Apr. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/414,920 01115/2015
48116 7590
FAY SHARPE/LUCENT
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115-1843
04/12/2018
FIRST NAMED INVENTOR
He Wang
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.
LUTZ 201961US01 1230
EXAMINER
CORBO, NICHOLAS T
ART UNIT PAPER NUMBER
2424
NOTIFICATION DATE DELIVERY MODE
04/12/2018 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):
docketing@faysharpe.com
ipsnarocp@nokia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HEW ANG and HUA CHAO
Appeal2017-010481
Application 14/414,920 1
Technology Center 2400
Before DENISE M. POTHIER, SCOTT B. HOW ARD, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-3 and 5-15, which constitute all of the claims rejected in this
application. The Examiner has allowed claim 4. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies the applicant, Alcatel Lucent, as the real party in
interest. App. Br. 1.
Appeal2017-010481
Application 14/414,920
THE INVENTION
The disclosed and claimed invention is directed "to bearer
management in wireless video communication" as part of a wireless
communication system. Spec. 1:4--5.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for managing video service transmission in a
broadcast multicast service center, wherein the video service is
coded as coding layer data comprising base coding layer data
and enhancement coding layer data, the base coding layer data
and the enhancement coding layer data respectively use
different multimedia broadcast multicast service bearer to
implement transmission, and the method comprises:
obtaining dependency information of the enhancement
coding layer data, the dependency information being used to
indicate the coding layer data on which the enhancement coding
layer data depends; and
transmitting, to a multimedia broadcast multicast service
gateway, a session start request signaling of multimedia
broadcast multicast service, the session start request signaling
of multimedia broadcast multicast service being used to request
establishing multimedia broadcast multicast service bearer for
the enhancement coding layer data, the session start request
signaling of multimedia broadcast multicast service including
the dependency information; and
transmitting, to the multimedia broadcast multicast
service gateway, a session stop request signaling of multimedia
broadcast multicast service, the session stop request signaling
of multimedia broadcast multicast service being used to request
releasing the multimedia broadcast multicast service bearer for
the base coding layer data and all enhancement coding layer
data depending on the base coding layer data.
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REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Wang et al.
("Wang")
Lim
Rapaport et al.
("Rapaport")
US 2006/0256851 Al Nov. 16, 2006
US 2011/0141963 Al June 16, 2011
US 2013/0315124 Al Nov. 28, 2013
REJECTIONS
Claims 1-3 and 5-15 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Lim in view of Wang and Rapaport. Final Act.
3-11.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. 2
We disagree with Appellant's arguments with respect to claims 1-3 and 5-
15, and we incorporate herein and adopt as our own: ( 1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 2-11), and (2) the reasons and rebuttals set forth in the
Examiner's Answer in response to Appellant's arguments (Ans. 2-9). We
2 Rather than reiterate the entirety of the arguments of Appellant and the
positions of the Examiner, we refer to the Appeal Brief (filed Feb. 8, 2017);
the Reply Brief (filed July 26, 2017); the Final Office Action (mailed Sept.
16, 2016); the Advisory Action (mailed Dec. 2, 2016); and the Examiner's
Answer (mailed June 1, 2017) for the respective details.
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incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. However, we highlight and address specific findings and
arguments for emphasis as follows.
Claims 1 and 3
Appellant argues the Examiner erred in finding Lim teaches the
"transmitting ... the session stop request" recited in claim 1. App. Br.
13-15; Reply Br. 2--4. Specifically, Appellant argues although "Lim teaches
sending an MBMS session stop request from an MME [(mobile management
entity)] to an MCE [(multi-cell/multicast coordination entity),] ... Lim does
not teach transmitting a session stop request from a broadcast multicast
service center (BMSC) to a multimedia broadcast multicast service gateway
(MBMS GW)." App. Br. 13 (emphasis omitted); see also id. at 13-14;
Reply Br. 3 ("Lim's mention of a BM-SC in paragraph 0043 does not teach
transmitting a session stop request from a BMSC to a MBMS GW .... ").
Appellant further argues the additional sections of Lim relied on by
the Examiner in the Answer do not teach the disputed limitation:
However, Lim paragraphs 0037---0042 do not teach a BMSC.
And, as discussed above, Lim's mention of a BM-SC in
paragraph 0043 does not teach transmitting a session stop
request from a BMSC to a MBMS GW, much less transmitting
a session stop request from a BMSC to a multimedia broadcast
multicast service gateway MBMS GW that is used to request
releasing the multimedia broadcast multicast service bearer for
the base coding layer data and all enhancement coding layer
data depending on the base coding layer data.
Moreover, Lim paragraphs 0085, 0088 and 0100 also do
not teach messages sent from a BMSC. Indeed, Lim paragraph
0100 even states: "First, the MCE 112 may receive, from an
MME 113, MBMS SESSION STOP REQUEST." (emphasis
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added). Lim paragraph 0088 discusses messages, but does not
expressly state where the messages are sent from; however, Lim
paragraph 0087 seems to imply that these messages are sent
from eNB #1 111 to mobile terminal 110. In any event, there is
no disclosure that these messages are sent from a BMSC. Lim
paragraph 0086 is also silent with respect to any messages sent
from a BMSC.
Reply Br. 3.
The Examiner finds Lim teaches "transmit[ ting] to the MBMS
gateway, a session stop request signaling of multimedia broadcast multicast
service, the session stop request signaling of multimedia broadcast multicast
service being used to request releasing the multimedia broadcast multicast
service bearer for data." Final Act. 3 (citing Lim Fig. 15, i-fi-138, 39, 43,
100). The Examiner further finds Lim teaches "transmitting session control
messages (such as a stop request as seen in Paragraphs 0085, 0088, and
0100) from the BMSC to the MBMSGW." Ans. 3 (citing Lim i-f 43). The
Examiner also finds Wang teaches
a multicast system wherein the video service is coded as base
coding layer data and enhancement coding layer data (see
Paragraphs 0011and0020), obtaining dependency
information of the enhancement coding layer data, the
dependency information being used to indicate the coding layer
data on which the enhancement coding layer data depends (see
Paragraph 0012 and 0032), and signaling of multimedia
broadcast multicast service including the dependency
information (see Paragraphs 0035 and 0153---0158).
Final Act. 4. The Examiner further determines that a person of ordinary skill
in the art would have "incorporate[ d] the dependency information methods
of Wang with the system of Lim in order to solve the problem of not being
possible to signal scalability information for a particular layer of a scalable
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bit stream by signaling a set of at least one property." Id. (citing Wang
iii! 15, 32).
We are not persuaded by Appellant's argument that the Examiner
erred. 3 Lim teaches transmitting session control messages, including a stop
message, from the MME to the MCE. See Lim iii! 37--42 (cited at Ans. 3);
see also id. iii! 85, 88, 100. Lim further teaches that the same session control
messages, including the stop request, can be sent from the broadcast
multicast service center to the gateway: "A Broadcast and Multicast-Service
Center (BMSC) 115 may transmit, to the gateway 114, the session control
messages, the synchronization information, and the broadcasting data." Lim
if 43. Accordingly, we agree with the Examiner that Lim teaches the BMSC
transmitting a session stop request to the gateway.
Additionally, 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., 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, 425 (CCPA 1981). Because Appellant's argument (e.g., App.
Br. 13-14) focuses on Lim alone and not the combined teachings of Lim and
Wang relied on by the Examiner, we are not persuaded by Appellant's
argument that the Examiner erred.
3 Appellant argues the claim requires the message to be transmitted from a
broadcast multicast service center. See App. Br. 14; but see Ans. 4
(disagreeing with Appellant's claim construction). For purposes of this
appeal, we have used Appellant's claim interpretation.
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Appellant also argues the Examiner erred in finding that Lim and
Wang teach the "transmitting ... the session start request" step recited in
claim 1. App. Br. 15; Reply Br. 5. Specifically, Appellant argues "Lim
does not teach the claimed deficiency information" and, although Wang
teaches deficiency information, "Wang does not teach that any dependency
information would be included in a start request." App. Br. 15 (emphasis
omitted); see also Reply Br. 5 ("In response to the statements on page 5 of
the Examiner's Answer, Appellant[] respectfully maintain[s] that Wang does
not teach transmitting a start request that includes dependency
information.").
The Examiner finds the combination of Lim and Wang teaches
"transmitting ... the session start request" step. See Final Act. 3--4; Ans. 4--
6. Because Appellant argues the references individually and does not
address the Examiner's combination of the teachings, we are not persuaded
by Appellant's argument that the Examiner erred. See Merck, 800 F.2d
at 1097; Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner's rejection of claim 1, along
with the rejection of dependent claim 3, which is not argued separately.
Claim 2
Appellant argues the Examiner erred in finding Lim or Rapaport
teaches "receiving a feedback of unsuccessfully establishing the multimedia
broadcast multicast service bearer for the enhancement coding layer data,
transmitted by the multimedia broadcast multicast service gateway," as
recited in claim 2. See App. Br. 16; Reply Br. 6-7. Additionally, in the
Reply Brief, Appellant states Wang does not cure the deficiencies of the
other references. Reply Br. 6-7.
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With respect to the argument in the Appeal Brief, claim 2 depends
from claim 1 and Appellant's argument directed to Lim and Rapaport do not
address the Examiner's finding with respect to independent claim 1 that
Wang teaches a multicast system wherein the video service is coded as base
coding layer data and enhancement coding layer data. See Final Act. 4.
Because Appellant argues the references individually and does not address
the Examiner's combination of the teachings-notably the teachings of
Wang as applied to claim 1-we are not persuaded by Appellant's argument
that the Examiner erred. See Merck, 800 F.2d at 1097; Keller, 642 F.2d at
425.
Nor are we persuaded by Appellant's argument in the Reply Brief.
First, because Appellant did not address Wang in the opening brief and good
cause has not been shown why it should be considered on the record, we will
not consider this argument. 37 C.F .R. §41.41 (b )(2); Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (Informative) ("[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner's rejections, but were not.").
Second, even if we did consider the argument regarding Wang on the merits,
Appellant's assertion is unpersuasive because the argument still addresses
the references individually and does not address the combination of the
teachings as proposed by the Examiner. See Merck, 800 F .2d at 1097;
Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner's rejection of claim 2.
Claims 5, 8, 11, 12, 14, and 15
Appellant does not specifically address claims 5, 8, 11, 12, 14, and 15.
"If an appellant fails to present arguments on a particular issue - or, more
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broadly, on a particular rejection-the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection." Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Accordingly, we summarily sustain the Examiner's rejection of claims
5, 8, 11, 12, 14, and 15.
Claim 6
Appellant contends the Examiner erred in rejecting claim 6. App. Br.
1 7. Specifically, Appellant quotes from the cited sections of the references
and states that "none of these teachings from Lim and Wang fairly suggest"
the additional limitation recited in claim 6. Id.; see also Reply 8 (quoting
Lim paragraph 83 and stating in a conclusory fashion that Lim does not
teach a claim limitation).
Appellant merely quotes the prior art, quotes the claim language, and
makes a naked assertion that the prior art does not teach the limitation. That
is insufficient to raise an argument that the Examiner erred. See In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires "more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art."); see also 37 C.F.R. § 41.37(c)(l)(iv) ("A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim."); cf In re Baxter Travenol
Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of this
court to examine the claims in greater detail than argued by an appellant,
looking for [patentable] distinctions over the prior art.").
Moreover, to the extent the Appellant makes an argument, Appellant
addresses the references individually and does not address the combined
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teachings as found by the Examiner. See App. Br. 17; Reply Br. 8. For
example, Appellant argues Lim does not teach "'storing the dependency
information of the enhancement coding layer data,' as recited in claim 6."
App. Br. 17 (emphasis added). However, the Examiner relies on Wang-not
Lim-for teaching dependency information. See Final Act. 3--4, 6-7.
Addressing the references individually does not demonstrate persuasively
that the Examiner erred. See Merck, 800 F.2d at 1097; Keller, 642 F.2d at
425.
Accordingly, we sustain the Examiner's rejection of claim 6.
Claim 7
Appellant argues the Examiner erred in finding the references teach
the additional limitation recited in claim 7. Specifically, Appellant argues
the cited sections of Lim "discuss an mbms session start response" but do
not discuss "any feedback of unsuccessfully establishing the multimedia
broadcast multicast service bearer for the enhancement coding layer data."
App. Br. 18; see also Reply Br. 8-9.
Claim 7 depends from claim 5 and recites the following additional
limitation: "when the multimedia broadcast multicast service bearer for the
enhancement coding layer data is not successfully established, transmitting a
feedback of unsuccessfully establishing the multimedia broadcast multicast
service bearer for the enhancement coding layer data, to the upstream
network device of the network device." App. Br. 25-26 (Claims App'x)
(emphasis added).
During prosecution, claims must be given their broadest reasonable
interpretation while reading claim language in light of the specification as it
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would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
With regard to claim 7, the additional limitation is a conditional
limitation. That is, claim 7 only recites an additional step to be "when" the
multimedia broadcast multicast service bearer for the enhancement coding
layer data is not successfully established. See App. Br. 25-26 (Claims
App'x). On the other hand, the claim does not require any specific action
when the bearer is successfully established. Id. We conclude that the
broadest reasonable construction of claim 1 covers two alternative methods,
one method when the bearer is not successfully established and one when
the bearer is successfully established. See Ex parte Schulhauser, Appeal
2013-007847, 2016 WL 6277792, *3-5 (PTAB April 28, 2016)
(precedential) (discussing construction of conditional limitations in method
claims). In light of the claim's conditional language, the prior art need only
teach one of the two alternatives, not both. See id. Appellant does not argue
that the prior art does not teach or suggest all of the steps of the method
when the bearer is established. Therefore, we are not persuaded by
Appellant's arguments that the Examiner erred. Id. (holding the claimed
subject matter to be obvious when only one of two conditional methods is
taught by the prior art).
Moreover, even if we consider the method when the bearer is not
successfully established, we are not persuaded by Appellant's argument that
the Examiner erred. Appellant merely asserts that Lim does not teach the
limitation with respect to "the enhancement coding layer data." See App.
Br. 18. However, the Examiner relies on Wang-which Appellant does not
address-for the coding layer data. See Final Act. 3--4. Addressing the
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references individually does not demonstrate persuasively that the Examiner
erred. See Merck, 800 F.2d at 1097; Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner's rejection of claim 7.
Claims 9 and 13
Appellant contends that "[ t ]he applied references" do not teach the
additional limitation of claim 9. App. Br. 18; see also id. at 18-19; Reply
Br. 9. In the Appeal Brief, Appellant quotes part of the sections of Lim cited
by the Examiner (App. Br. 18-19) and then states "this does not specifically
teach the above-mentioned features of claim 9." Id. at 19. In the Reply
Brief, Appellant states that Wang does not teach the limitations of claim 9.
Reply Br. 9.
The Examiner finds the combination of Lim, Wang, and Rapaport
teaches "different coding layers having different bearers/sources." Final
Act. 8 (citing claim 1 analysis). The Examiner further finds Lim, in
combination with the teachings of Wang, teaches the additional limitations
recited in claim 9. Final Act. 8-9; Ans. 8-9.
We are not persuaded that the Examiner erred. First, Appellant
merely quotes the prior art, quotes the claim language, and makes a naked
assertion that the prior art does not teach the limitation. That is insufficient
to raise an argument that the Examiner erred. See Lovin, 652 F.3d at 1357
(Rule 41.37 requires "more substantive arguments in an appeal brief than a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art."); see also 37 C.F.R.
§ 41.37(c)(l)(iv).
Second, in the Appeal Brief, Appellant only addresses Lim and does
not address the teachings of Wang and Rapaport which the Examiner relied
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on for finding limitations of independent claim 5-from which claim 9
depends-and which are also recited in claim 9. Addressing the references
individually does not demonstrate persuasively that the Examiner erred. See
Merck, 800 F.2d at 1097; Keller, 642 F.2d at 425.
Third, because Appellant did not address Wang in the opening brief
and good cause has not been shown why the newly raised argument in the
Reply Brief should be considered, we will not consider this argument.
37 C.F.R. §41.41(b )(2); Borden, 93 USPQ2d at 1474 ("[T]he reply brief [is
not] an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner's rejections, but were not.").
Fourth, even if we did consider the argument regarding Wang on the
merits, we would still find the arguments unpersuasive because Appellant
addresses Wang individually and does not address the combination of the
teachings of the references as combined by the Examiner. See Merck, 800
F.2d at 1097; Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner's rejection of claim 9, along
with the rejection of claim 13, which is argued on the same basis.
Claim 10
Appellant argues the Examiner erred in finding the prior art teaches
the limitations recited in dependent claim 10, which depends from claim 5.
App. Br. 19; Reply Br. 10. Specifically, Appellant contends that because
"Lim [F]igure 15 does not show either a [broadcast multicast service center]
or a [multimedia broadcast multicast service gateway]," and Lim "does not
teach transmitting a session stop request from a [mobility management
entity] to a [multimedia broadcast multicast service gateway], much less
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transmitting a session stop request" that has the limitations recited in
claim 5. App. Br. 19.
The Examiner finds Lim teaches "the network devices comprise a
multimedia broadcast multicast service gateway, a mobility management
entity or a multicast coordination entity." Final Act. 9 (citing Lim Fig. 1 ).
The Examiner further relies on the combination of Wang and Lim to teach
transmitting the specific session stop request recited in claim 5, from which
claim 10 depends. Final Act. 6-7.
We are not persuaded by Appellant's argument that the Examiner
erred. First, Appellant focuses on Lim Figure 15, but does not address the
teachings of Lim Figure 1, which the Examiner relies upon. Second,
Appellant only addresses Lim and does not address Wang, which the
Examiner also relies upon. Therefore, Appellant addresses the references
individually and does not address the combination of the teachings of Lim
and Wang as combined by the Examiner. See Merck, 800 F .2d at 1097;
Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner's rejection of claim 10.
DECISION
For the above reasons, we affirm the Examiner's decision rejecting
claims 1-3 and 5-15.
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). See 37
C.F.R. § 41.50(±).
AFFIRMED
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