Ex Parte Wigard et alDownload PDFPatent Trial and Appeal BoardOct 16, 201211350394 (P.T.A.B. Oct. 16, 2012) Copy Citation 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. 11/350,394 02/07/2006 Jeroen Wigard 800.0912.U1 (US) 8840 10948 7590 10/16/2012 Harrington & Smith, Attorneys At Law, LLC 4 Research Drive, Suite 202 Shelton, CT 06484 EXAMINER EDOUARD, PATRICK NESTOR ART UNIT PAPER NUMBER 2644 MAIL DATE DELIVERY MODE 10/16/2012 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 JEROEN WIGARD, KARRI RANTA-AHO, and BENOIST SEBIRE ____________ Appeal 2010-005619 Application 11/350,394 Technology Center 2600 ____________ Before JAMES R. HUGHES, DENISE M. POTHIER, and ANDREW CALDWELL, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005619 Application 11/350,394 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Invention Appellants’ invention relates to mobile communications and, more particularly, improving link adaptation when using de-centralized scheduling. Spec. 1. Claims 1 and 2 are reproduced below with the key disputed limitations emphasized: 1. Method, comprising: measuring at a base station a value of received total wide band power, signalling the value of received total wide band power in a common measurement value information element, from the base station to a radio network controller, and using the value of received total wide band power by a base station scheduler to make scheduling decisions, unless the base station receives a noise value from the radio network controller in response to the signalling, in which case the base station can use said noise value in said scheduling decisions. 2. Method, comprising: making a measurement in a first network element of noise on a radio interface between user equipment and said first network element, sending a measurement report signal having a magnitude indicative of said measurement of said noise from said first network element to a second network element, and using said measurement of said noise in scheduling decisions made by said first network element. Appeal 2010-005619 Application 11/350,394 3 The Examiner relies on the following as evidence of unpatentability: Kwak US 7,324,821 B2 Jan. 29, 2008 (filed Nov. 4, 2003) The Rejection The Examiner rejected claims 1-19 under 35 U.S.C. § 102(e) as anticipated by Kwak. Ans. 3-10. CLAIM 1 Contentions The Examiner makes the following findings: Nowhere in Kwak et al. reference disclose [sic] that No (noise power) is assumed or estimated. As stated above [the noise rise over thermal noise] ROT is defined as ROT = Io/ No Where Io is the sum of all received signal strengths in Node B (claimed base station) and No is thermal noise power spectral density of the Node B [ROT: (Column 1, Line 25) & (Column 2, Line 15-Column 40)]. Therefore, Kwak et al. disclose a measure of noise regardless of how much noise changes over time because [the] Equation clearly indicates that ROT is based on a measure of Io and a measure of noise. Ans. 13. Appellants argue that the recited noise differs from Kwak’s ROT and one cannot determine noise from the ROT. App. Br. 6-7. Appellants contend: Kwak states that ROT is a ratio of received power to noise power, and it is understood to one of skill in the art that ROT is a measure of reverse link traffic or channel load, rather than a measure of noise. For example, Equation 1 in Kwak (ROT = Io/No) specifically shows that ROT is the ratio of Io (the sum of Appeal 2010-005619 Application 11/350,394 4 all received signal strengths) and No (the thermal noise power spectral density). Therefore, there is no overlap between the ROT and the noise recited in claim 1. Reply Br. 2; see also Ans. 7. Appellants also argue "[t]he noise level must be estimated in order for the ROT to be meaningful, since the only measurement is the absolute power of the received signal." Reply Br. 2. Issue 1 Under § 102, has the Examiner erred in rejecting claim 1 by finding that Kwak discloses “the base station receives a noise value from the radio network controller in response to the signalling, in which case the base station can use said noise value in said scheduling decisions”? Analysis We are unpersuaded by Appellants' arguments. First, a claim is given its broadest reasonable construction “in light of the specification as it 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) (internal citations and quotations omitted). Claim 1 recites "the base station can use said noise value in said scheduling decisions[,]" (emphasis added), which can broadly, but reasonably be construed as not requiring the base station to use the noise value in some cases (i.e., can use). This recitation therefore does not impose any further limitation on the claimed method, and we accord little patentable weight to this “unless” limitation found in claim 1 because the recitation at issue is not positively recited. Appeal 2010-005619 Application 11/350,394 5 Second, assuming arguendo that the recitation at issue of “the base station can use said noise value in said scheduling decisions” and the accompanying “unless” condition are accorded patentable weight, we agree with the Examiner's findings and conclusion (Ans. 13) that the broadest reasonable interpretation of "noise value" reads on Kwak's ROT. See In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004). Appellants have not defined the term, “noise value,” in the disclosure (see generally Specification) or demonstrated that this term has special meaning to an ordinary artisan such that it excludes a ROT (see App. Br. 6-7). Also, Kwak discloses that a component of ROT includes a noise value, given that ROT is defined by the equation ROT = Io/ No, where No is the thermal noise power spectral density. As such, Kwak's ROT includes a "noise value," No (the thermal noise power spectral density), and using the ROT involves using a noise value to schedule decisions as broadly recited. Also, Appellants' contention that "[t]he noise level must be estimated in order for the ROT to be meaningful, since the only measurement is the absolute power of the received signal" is unpersuasive. App. Br. 7. Appellants fail to present sufficient evidence or substantive argument to support this contention. Also, while claim 1 does not recite measuring noise, Kwak states that Node B measures ROT (e.g., M_ROT). See e.g., col. 2, ll. 9-10, col. 3, ll. 37-44. Kwak also states that "[b]ecause No is changed little for a predetermined time, ROT is dominantly dependent on Io." Col. 2, ll. 27-28. Kwak's statement that "ROT is dominantly dependent on Io" supports the finding that ROT is also dependent on No (thermal noise power spectral density of the Node B), however minor in capacity, and further supports the finding that the measured ROT includes the "noise value" No . Id. Appeal 2010-005619 Application 11/350,394 6 For the forgoing reasons, Appellants have not persuaded us of error in the Examiner's finding that Kwak discloses "unless the base station receives a noise value from the radio network controller in response to the signalling, in which case the base station can use said noise value in said scheduling decisions" as recited in claim 1. Additional Contention The Examiner makes the following findings: Kwak et al. discloses Node B controlled scheduling in which Node B does not receive noise value from radio network controller [RNC], Node B makes scheduling decision based on measured value i.e., Node B determines target value from Node B measured value [(Column 3, Line 36-45) (Column 5, Line 1-15) (Column 12, Line 9-20)]. Ans. 14 (emphasis removed). Appellants argue: The Office further asserts in paragraph (3) on page 13 of the Examiner's Answer that Kwak discloses Node B controlled scheduling when the Node B does not receive a noise value from the RNC, and the Node B makes scheduling decisions based on [a] measured value, i.e. Node B determines target value from Node B measured value. However, merely determining a target value is not the equivalent of making scheduling decisions. There is no suggestion in Kwak that the Node B's measurements M_ROT (shown in FIG. 6 of Kwak) can be used to make scheduling decisions before the T_ROT (shown in FIG. 7 of Kwak) is received from the RNC. Reply Br. 2 (emphases added); see also App. Br. 7. Appeal 2010-005619 Application 11/350,394 7 Issue 2 Under § 102, has the Examiner erred in rejecting claim 1 by finding that Kwak discloses "using the value of received total wide band power by a base station scheduler to make scheduling decisions"? Analysis We are unpersuaded by Appellants' arguments for at least the following reasons. We agree with the Examiner's findings and conclusion that broadest reasonable interpretation of the claimed "scheduling decisions" reads on Kwak's Node B's target value (T_ROT) decision. Ans. 14 (citing to col. 3; ll. 36-46, col. 5, ll. 1-4, col. 12, ll. 7-21). First, Appellants do not define “scheduling decisions” in the disclosure (see generally Spec.) or demonstrate the phrase has a particular meaning in the art. Given its ordinary meaning, the claim language, "mak[ing] scheduling decisions," requires only making decisions that are part of a schedule (a series of things to do). See In re Bigio, 381 F.3d at 1324; Cf. The Random House College Dictionary 1177 (Jess Stein ed., Random House, rev. ed. 1980) (defining schedule as "2. a series of things to be done within a given period"). Here, as broadly recited, Kwak's Node B's schedule includes deciding the T_ROT value. Ans. 14 (citing col. 5, ll. 1-4, col. 12, ll. 7-21). Appellants fail to present sufficient evidence or substantive argument to rebut this interpretation. Second, Kwak's Node B determined T_ROT (target ROT) is also used in Node B's "scheduling decisions" to schedule resources (e.g., time and data rate) to be assigned to each of the user equipment. Col. 5, ll. 1-4, 17-31. For example, Node B makes maintaining scheduling decisions of resources Appeal 2010-005619 Application 11/350,394 8 using the determined target ROT (T_ROT) to control the measured ROT (M_ROT) to be equal to or less than the target ROTs (T_ROTs). Col. 3, ll. 37-42, col. 5; ll. 17-31. Therefore, Kwak discloses the limitation at issue because Kwak's Node B uses or can use the determined target ROT (T_ROT) in "scheduling decisions" (e.g., T_ROT maintaining scheduling of resources to be assigned to each of the user equipment). Id. Appellants' argument that "[t]here is no suggestion in Kwak that the Node B's measurements M_ROT (shown in FIG. 6 of Kwak) can be used to make scheduling decisions before the T_ROT (shown in FIG. 7 of Kwak) is received from the RNC" is unpersuasive. Reply Br. 2 (emphasis added). This is because the feature Appellants' argument relies upon —"mak[ing] scheduling decisions before the T_ROT . . . is received" (emphasis added) — is not recited in claim 1. Finally, Appellants argue that Kwak fails to teach measuring at a base station a value of the received total wide band power. App. Br. 6. However, merely repeating claim language and asserting without any further evidence that Kwak does not teach the measuring steps is not considered a separate argument for patentability. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). For the foregoing reasons, Appellants have not persuaded us of error in the Examiner's finding that Kwak discloses "using the value of received total wide band power by a base station scheduler to make scheduling decisions" as recited in claim 1. Accordingly, Appellants have not persuaded us of error in the Examiner's rejection of claim 1 and of claim 17, which is not separately argued with particularity. App. Br. 8. Consequently, we sustain the rejection of claims 1 and 17. Appeal 2010-005619 Application 11/350,394 9 CLAIM 2 Contentions Appellants advance similar arguments as presented for claim 1 that the claimed "measurement . . . of noise" recited in claim 2 does not read on Kwak's measured ROT. App. Br. 7-8. Issue Under § 102, has the Examiner erred in rejecting claim 2 by finding that Kwak discloses "making a measurement in a first network element of noise," as recited in claim 2? Analysis Except that we accord the disputed limitation patentable weight, we find Appellants' arguments unpersuasive for the same reasons discussed above with respect to claim 1. Appellants' argument that "[w]hile Kwak discusses determining the ROT target to be used in schedule, the present invention as recited in claim 2 is specifically directed to determining the thermal noise (+interference, i.e. background noise level) experienced in the cell . . . result" (App. Br. 7-8) is also unpersuasive. This is because the features which Appellants' argument relies upon —"determining the thermal noise (+interference, i.e. background noise level) experienced in the cell"— is not recited in claim 2. We further are unconvinced that noise has not been measured in Kwak. App. Br. 7-8. As discussed above, Kwak discloses calculating a M_ROT that includes measuring noise to determine the T_ROT. See also, e.g., col. 9 (discussing collecting resource information) and col. 10 (section Appeal 2010-005619 Application 11/350,394 10 entitled, “Embodiment of T_ROT Determination.”) Contrary to Appellants’ arguments (Reply Br. 2), this resource information involves calculating some noise value component and, thus, “noise” is measured in order to calculate the ROT defined in Kwak. See col. 2, ll. 16-26. For the foregoing reasons, Appellants have not persuaded us of error in the rejection of claim 2 and claims 3-5 and 12, which are not separately argued with particularity. App. Br. 8. Accordingly, we sustain the Examiner's rejection of claims 2-5 and 12. REMAINING CLAIMS Appellants argue that independent claims 6, 7, 9-11, 13, 15, 16, and 18 are patentable for the reasons argued with respect to claims 1 and 2. App. Br. 8-10. For the reasons given above with respect to the rejections of claims 1 and 2, we are unpersuaded by Appellants' arguments. Appellants also argue that claims 8 and 14 and claim 19, which depend from claims 7 and 18 respectively, are patentable by virtue of their dependency from their respective independent claims. App. Br. 9-10. For the reasons given above with respect to their independent claims, we are unpersuaded of Examiner error. Accordingly, we sustain the rejection of claims 6-11, 13-16, 18, and 19. Appeal 2010-005619 Application 11/350,394 11 DECISION 1 The Examiner’s decision rejecting claims 1-19 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 kis 1 In the event of further prosecution of claims 6, 7, and 9, we leave it to the Examiner to ascertain whether the claims that include means-plus-function limitations have adequate support under 35 U.S.C. § 112, paragraph 6. We also leave it to the Examiner to ascertain whether independent claim 13 is indefinite for failing to contain any method steps with patentable weight. Notice of References Cited Application/Control No. 11/350,394 Applicant(s)/Patent Under Patent Appeal No. 2010-005619 Examiner Aung T. Win Art Unit 2617 Page 1 of 1 U.S. PATENT DOCUMENTS * Document Number Country Code-Number-Kind Code Date MM-YYYY Name Classification A US- B US- C US- D US- E US- F US- G US- H US- I US- J US- K US- L US- M US- FOREIGN PATENT DOCUMENTS * Document Number Country Code-Number-Kind Code Date MM-YYYY Country Name Classification N O P Q R S T NON-PATENT DOCUMENTS * Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages) X U The Random House College Dictionary, Jess Stein Ed., Random House, Rev. Ed. 1980, pp. 1177, (defining schedule). V W X *A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).) Dates in MM-YYYY format are publication dates. Classifications may be US or foreign. U.S. Patent and Trademark Office PTO-892 (Rev. 01-2001) Notice of References Cited Part of Paper No. Copy with citationCopy as parenthetical citation