Ex Parte Webster et al

Patent Trial and Appeal Board

Feb 23, 2017

13628424 (P.T.A.B. Feb. 23, 2017)

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.
13/628,424 09/27/2012 Mark A. Webster 088245-9818 1024
23524 7590 02/27/2017
FOT FY Rr T ARDNFR T T P
EXAMINER
3000 K STREET N.W. LIU, JUNG-JEN
SUITE 600
WASHINGTON, DC 20007-5109 ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
02/27/2017 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):
ipdocketing @ foley. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK A. WEBSTER and MICHAEL J. SEALS
Appeal 2016-003961
Application 13/628,424
Technology Center 2400
Before ST. JOHN COURTENAY III, JAMES W. DEJMEK, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—3, 5—15, and 17—24, which are all the claims
remaining in the application. Claims 4 and 16 are cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal “is generally related to
communication systems, and, more particularly, is related to wireless
communication systems and methods.” (Spec. 13).
Appeal 2016-003961
Application 13/628,424
Representative Claim
1. A method comprising:
in a first mode:
generating separate first mode transmit symbols by
at least two transmitters operating on separate data streams
at a base station; and
transmitting the separate first mode transmit
symbols from the at least two transmitters over separate
antennas across a spectrum of frequencies that is the same
for each of the at least two transmitters; and
in a second mode:
generating separate second mode transmit symbols
by the at least two transmitters operating on separate data
streams;
transmitting the separate second mode transmit
symbols from a first transmitter across a first spectrum of
frequencies; and
transmitting the separate second mode transmit
symbols from the second transmitter across a second
spectrum of frequencies, [L] wherein the first spectrum of
frequencies does not overlap with the second spectrum of
frequencies.
(Contested negative limitation L emphasized).
Rejection
Claims 1—3, 5—15, and 17—24 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over the combined teachings and suggestions
of Walton et al. (US 2004/0136349 Al; July 15, 2004), hereinafter
“Walton,” in view of Lakkis (US 2005/0147079 Al; July 7, 2005).
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Appeal 2016-003961
Application 13/628,424
Grouping of Claims
Based upon Appellants’ arguments, we decide the appeal of all
rejected claims on the basis of representative claim 1. To the extent
Appellants have not advanced separate, substantive arguments for particular
claims or issues, such arguments are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We find Appellants’ arguments unpersuasive for the reasons
discussed infra. We adopt as our own: (1) the findings and legal conclusions
set forth by the Examiner in the Final Office Action from which this appeal
is taken, and (2) the findings, legal conclusions, and explanations set forth in
the Answer in response to Appellants’ arguments (Ans. 17-41). We
highlight and address specific findings and arguments for emphasis in our
analysis below.
ISSUE
For each independent claim on appeal, Appellants contest negative
limitation L. (Br. 10-20).1
Issue: Under § 103(a), did the Examiner err by finding the cited
combination of Walton and Lakkis would have taught or suggested negative
limitation L: “wherein the first spectrum of frequencies does not overlap
with the second spectrum of frequencies[,]” within the meaning of
1 We note each independent claim 1,7, 13, and 19 recites contested negative
limitation L.
3
Appeal 2016-003961
Application 13/628,424
independent claim 1 ? 2
Claim Construction
At the outset, we turn to the Specification for context, and find support
for contested negative limitation L (“wherein the first spectrum of
frequencies does not overlap with the second spectrum of frequencies”)
(independent claims 1,7, 13, and 19), in original claim 1, and in the
Specification (emphasis added). Original claim 1 recites:
1. (Original) A method comprising:
transmitting in a first mode using symbols from at least two
transmitters operating on separate data streams and generating separate
transmit symbols for transmission in the same frequency band over separate
antennas; and
transmitting in a second mode using symbols from at least two
transmitters operating on the separate data streams and generating separate
transmit symbols for transmission in a plurality of non-overlapping
frequency channels.
In the Brief (6), Appellants point to support in the Specification at
paragraphs 36—38 and Figs. 3B—3D. In particular, paragraph 38 of the
Specification refers to Figures 3C and 3D, and describes:
Both frequency spectrums 350a, 350b and 352a, 352b reveal
non-overlapping, noninterfering spectrums that result in a
multi-fold increase in the data rate (e.g., by using multiple 20
MHz channels, a doubling of the bandwidth can result in a two­
fold increase in data rate). In other words, the BES system 300
2 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997).
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Appeal 2016-003961
Application 13/628,424
(FIG. 3B) has increased the data rate by transmitting the OFDM
symbols side by side (separate channels). Further, in this
implementation, the operation of a signal separators 380 and
382 is not needed (since by definition, signals at distinct
frequencies are separate). Also, by implementing expanded
bandwidth techniques, the signaling overhead used to train a
signal separator can be eliminated.
(Emphasis added).3
Given this context, we broadly but reasonably interpret negative
limitation L according to its plain meaning, i.e., “wherein the first spectrum
of frequencies does not overlap with the second spectrum of frequencies,”
i.e., in terms of bandwidth that does not overlap. (Claim 1). See n.2,
supra.
Appellants ’ Contentions
We next turn to Appellants’ arguments. Appellants contend, inter
The Final Office Action seemed to analogize the “non­
overlapping sub-channels” of Lakkis to the claimed “first
spectrum of frequencies" and “second spectrum of
frequencies” that do not overlap with each other. However,
Claims 1 and 13 recite “transmitting . . . symbols from a first
transmitter across a first spectrum of frequencies; and
transmitting . . . symbols from the second transmitter across a
second spectrum of frequencies,” and that the
transmitters “operat[ e] on separate data streams at a base
station.” Thus, the “first spectrum of frequencies” and the
“second spectrum of frequencies” of Claims 1 and 13 are
bandwidths used by different transmitters (and therefore
have different communication channels) at a base station.
3 See Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1351 (Fed. Cir.
2012) (“Negative claim limitations are adequately supported when the
specification describes a reason to exclude the relevant limitation.”).
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Appeal 2016-003961
Application 13/628,424
In contrast, the sub-channels of Lakkis span a single bandwidth
of a single communication channel. Lakkis provides no
indication that different transmitters may use different
communication channels having frequency channels that do not
overlap. Indeed, different bandwidths of different
communication channels as in Claims 1 and 13 are not the
same as subchannels that are divisions of a single
bandwidth as in Lakkis.
(Br. 14—15) (emphasis added).
However, we note on page 17 of the Brief, Appellants acknowledge
“Walton discloses that in a MIMO system, multiple transmit antennas and
multiple receive antennas may transmit and receive data using multiple
carriers.”
The Examiner’s Findings and Legal Conclusion of Obviousness
The Examiner finds Appellants are arguing the references separately
(Ans. 34, 41). In support of the rejection, the Examiner finds, inter alia:
Walton discloses FDD transmission that utilizes different
frequency bands, implies that frequency bands are non­
overlap rpingj:
[0155] MIMO system 100 may be a time division duplex
(TDD) system or a frequency division duplex (FDD) system.
The downlink and uplink (1) share the same frequency band for
a TDD system and (2) use different frequency bands for an
FDD system. The following description assumes that MIMO
system 100 is a TDD system.
Furthermore, the second prior art Lakkis discloses non­
overlapping subchannels] that function as Applicant’s non­
overlapping “spectrum of frequencies”:
[0066] Preferably, sub-channels 200 are non-overlapping as this
allows each sub-channel to be processed independently in the
receiver. To accomplish this, a roll-off factor is preferably
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Application 13/628,424
applied to the signals in each sub-channel in a pulse-shaping
step. The effect of such a pulse-shaping step is illustrated in
FIG. 3 by the non-rectangular shape of the pulses in each sub­
channel 200.
(Ans. 31) (emphasis added).
The Examiner (id.) relies on Figure 3 of Lakkis, which depicts a
plurality of non-overlapping frequency bands, as shown below.
300 2QG 280
\ f \
V.....
AfiAi
f . f f
SOS S3G
? ?
I \ fS
/ \/ \2----i_™V ..........X----
f f j fjMiienev
.... „____ij
s*m-nyrs
Figure 3 of Lakkis is depicted above,
illustrating a plurality of non-overlapping
frequency bands.
Given the strength of the evidence cited by the Examiner (id.), we are
not persuaded the Examiner erred in finding the combination of Walton and
Lakkis would have taught or at least suggested contested negative limitation
L: “wherein the first spectrum offrequencies does not overlap with the
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Application 13/628,424
second spectrum of frequencies,” as claimed, within the meaning of
representative claim 1. (Emphasis added).
We note Appellants’ contentions regarding representative claim 1
(and the remaining independent claims) follow the same general pattern of
argument throughout the Brief (11—20). Appellants merely:
(1) recite limitation L, and assert it is not taught by the cited references; (2)
reproduce portions of the references cited by the Examiner; (3) attack the
Walton and Lakkis references separately, considered in isolation; and (4)
advance conclusory statements that each reference considered in isolation
does not teach the contested negative limitation. In reviewing the Brief, we
find Appellants have not substantively traversed the specific findings set
forth by the Examiner, which we find are based upon the combined
teachings and suggestions of Walton and Lakkis. (Ans. 17-41; Final Act. 8—
21).
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 Appellants’ arguments are directed to each
reference considered individually, and are not directed to the combination of
respective teachings, as applied by the Examiner (Ans. 17—41; Final Act. 8—
21), on this record, we are not persuaded the Examiner erred.
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Appeal 2016-003961
Application 13/628,424
Moreover, “the question under 35 U.S.C. § 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made.” Merck & Co.,
Inc. v. Biocraft Labs., Inc., 874 F. 2d 804, 807—08 (Fed. Cir. 1989).
This reasoning is applicable here. We note Appellants do not
substantively contest the Examiner’s proffered rationale to combine the
Walton and Lakkis references. (Final Act. 14). Nor do Appellants further
rebut the Examiner’s findings by filing a Reply Brief. Arguments not made
are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
Therefore, on this record, we are not persuaded the Examiner’s
proffered combination of Walton and Lakkis would have been anything
more than a “predictable use of prior art elements according to their
established functions.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007). Accordingly, we sustain the Examiner’s § 103 rejection of
representative claim 1. The remaining claims on appeal fall with claim 1.
See Grouping of Claims, supra.
Conclusion
For at least the aforementioned reasons, and on this record, Appellants
have not persuaded us the Examiner erred. We find a preponderance of the
evidence supports the Examiner’s underlying factual findings and ultimate
legal conclusion of obviousness for all contested claims on appeal.
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DECISION
We affirm the Examiner’s decision rejecting claims 1—3, 5—15, and
17—24 under § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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