Ex Parte Yao et al

Patent Trial and Appeal Board

Oct 25, 2017

13869479 (P.T.A.B. Oct. 25, 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.
13/869,479 04/24/2013 Zongming Yao 13674-1231
(83270984US06)
7760
93823 7590 10/26/2017
BGL/Huawei
P.O. Box 10395
Chicago, IL 60610
EXAMINER
VLAHOS, SOPHIA
ART UNIT PAPER NUMBER
2633
MAIL DATE DELIVERY MODE
10/26/2017 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 ZONGMING YAO, MENGHONG LIU, and
LINFENG XIA
(Applicant: HUAWEI TECHNOLOGIES CO., LTD.)
____________________

Appeal 2016-002733
Application 13/869,479
Technology Center 2600
____________________

Before JASON V. MORGAN, ADAM J. PYONIN, and AMBER L. HAGY,
Administrative Patent Judges.

HAGY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–12, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Applicant Huawei Technologies Co., Ltd., also identified as the real party
in interest (App. Br. 2), will be referred to herein as “Appellant.”
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STATEMENT OF THE CASE
Introduction
According to Appellant, “[t]he present application relates to the
communications field, and in particular, to data feedback methods and
related apparatuses.” (Spec. ¶ 2.) The particular context of Appellant’s
disclosed invention is communication involving the IEEE 802.11ac protocol,
which includes a channel detection mechanism for wireless communications
between a beamformer (e.g., an access point) and a beamformee (e.g., a
station). (Spec. ¶ 3.)

Exemplary Claim
Claims 1, 8, and 12 are independent. Claim 1, reproduced below with
the disputed limitation italicized, is exemplary of the claimed subject matter:
1. A data feedback method, comprising:
acquiring, by a beamformee, a quantity of columns from a
null data packet announcement (NDPA) message;
detecting, by the beamformee, a quantity of active first
spatial streams;
comparing, by the beamformee, the quantity of the first
spatial streams and the quantity of columns;
when the quantity of the first spatial streams is smaller
than the quantity of columns, determining the quantity of the first
spatial streams to be a quantity of second spatial streams
required for feedback; and
feeding back, by the beamformee, the quantity of second
spatial streams and spatial stream measurement information
about the second spatial streams to a beamformer.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Wallace et al.
Zhang et al.
Haruna
Abraham et al.
US 2002/0193146 A1
US 2011/0096796 A1
US 2012/0020375 A1
US 2012/0257605 A1
Dec. 19, 2002
Apr. 28, 2011
Jan. 26, 2012
Oct. 11, 2012
(prov. filed Sept. 29,
2010)

Draft STANDARD for Information Technology—Telecommunications
and Information Exchange Between Systems—Local and Metropolitan
Area Networks—Specific requirements, Part 11: Wireless LAN
Medium Access Control (MAC) and Physical Layer (PHY)
Specifications, Amendment 5: Enhancements for Very High
Throughput for Operation in Bands Below 6 GHz, IEEE (Standard
P802.11acTM / D1.0) (May 2011) (hereafter “draft IEEE standard
802.11ac”).

REJECTIONS2
Claims 1, 3, 7–9, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Abraham, Wallace, and Haruna. (Final Act. 9–13.)
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Abraham, Wallace, Haruna, and draft IEEE standard
802.11ac. (Final Act. 14–15.)
Claims 4–6 and 10–11 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Abraham, Wallace, Haruna, and Zhang. (Final Act.
15–18.)

2 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Leahy-Smith America Invents Act of 2011.
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ISSUES
(1) Whether the Examiner erred in finding the combination of
Abraham, Wallace, and Haruna teaches or suggests “detecting, by the
beamformee, a quantity of active first spatial streams,” as recited in
independent claim 1 and commensurately recited in independent claims 8
and 12.
(2) Whether the Examiner erred in finding the combination of
Abraham, Wallace, Haruna, and Zhang teaches or suggests “when the
locally stored AID [(“association ID”)] is equal to the AID of the first STA
[(“station”)] information field in the NDPA [(“null data packet
announcement”)] message, triggering the step of comparing the quantity of
first spatial streams with the quantity of columns,” as recited in dependent
claim 5 and commensurately recited in dependent claim 10.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments the Examiner has erred. We disagree with Appellant’s
conclusions and we 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. 9–
18) and (2) the reasons set forth by the Examiner in the Examiner’s Answer
in response to Appellant’s Appeal Brief. (Ans. 3–8.) We concur with the
conclusions reached by the Examiner, and we highlight the following for
emphasis.3

3 Only those arguments made by Appellant have been considered in this
decision. Arguments Appellant did not make have not been considered and
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2014).
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A. “detecting . . . a quantity of active first spatial streams”
(Claims 1–4, 6–9, 11, and 12)
The Examiner relies on a combination of Abraham, Wallace, and
Haruna as teaching or suggesting the limitations of independent claim 1.
(Final Act. 9–12.) Appellant argues the Examiner’s findings are in error
because none of the references teach or suggest “detecting, by the
beamformee, a quantity of active first spatial streams.” (App. Br. 5–8
(emphasis added).) In particular, Appellant takes issue with the Examiner’s
conclusion that “‘active first spatial streams’” includes streams that are
“‘capable of acting.’” (App. Br. 6; see also Final Act. 3.) Appellant argues
the Examiner’s interpretation of that claim language is too broad, and further
argues the term “active spatial streams” must be more narrowly construed as
streams that are “producing or involving action or movement.” (App. Br.
7.) Appellant bases this argument on the following language in the
Specification: “‘The beamformee detects spatial streams where data
transmission exists and determines the number of active first spatial
streams.’” (Id. (citing Spec. ¶ 27).)
The Examiner responds in part by finding, even if Appellant’s
construction were adopted (in which the term “‘active’” is interpreted as
“‘producing or involving action or movement’”), Haruna teaches or
suggests “detecting, by the beamformee, a quantity of active first spatial
streams.” (Ans. 5–6.) In particular, the Examiner finds, by reference to
Haruna at Figure 14 and paragraphs 7–9:
Node X requests 5 streams to be used for communication with
node Y whereas node Y permits 3 streams. Communication
between nodes X and Y is started [using] the 3 permitted streams.
Last sentence of [0007] discloses that the permitted number of
streams is the maximum number of streams which each mode
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can accept (for communication, this is implicit). The number of
streams permitted by node Y (the permitted streams are streams
used for communication and are therefore considered active
streams) correspond to the active first spatial streams.
(Id. (emphasis added).)
Appellant argues these findings by the Examiner are in error because
“the term ‘permitted streams’ based on the context in Haruna should be
interpreted as vacant streams (i.e.[,] streams having no data
transmission), and cannot be interpreted as ‘streams on which data
transmission is acting.’” (Reply Br. 5.) Appellant acknowledges Haruna’s
“‘permitted streams’” are the “‘maximum number of streams which each
node can accept,’” but asserts “Haruna negotiates ‘the permitted number
of streams’ before transmissions happen on the streams. The disclosed
permitted number of streams is based on vacant streams instead of
streams on which data transmission is acting.” (Id.)
Appellant’s argument boils down to Appellant’s contention that
“active first spatial streams” in claim 1 must be construed as limited to
spatial streams on which data transmission is currently acting; that is,
according to Appellant, a spatial stream is detected as “active” in accordance
with claim 1 only if it is currently engaged in data activity. (See, e.g., Reply
Br. 3.) This proposed narrow construction is clear from Appellant’s attempt
to distinguish Haruna’s teaching based on Appellant’s contention that a
“permitted” stream in Haruna is only one that is “vacant,” and that a stream
becomes vacant once communication on that stream to another node ends.
(See Reply Br. 5 (citing Haruna ¶¶ 7, 65).)
We disagree that Appellant’s claims are as limited as Appellant
contends. As Appellant argues, one definition of “active” is “producing or
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involving action or movement.” (See App. Br. 7 (citing
http://www.merriamwebster.com/dictionary/active).) According to this
definition, as the Examiner finds and we agree, Haruna’s permitted streams
are “active” because they are streams used for communication—that is, they
“involve action (node acceptable communication) between node Y and X.”
(See Ans. 5–6.)
Appellant’s attempt to further narrow the construction of “active first
spatial streams” to streams that are detected as currently engaged in data
transmission is not, as Appellant argues, required by Appellant’s
Specification. Although paragraph 27 of Appellant’s Specification states
“[t]he beamformee detects spatial streams where data transmission exists
and determines the number of active first spatial streams,” we are not
persuaded this disclosure constitutes a narrowing definition. The Federal
Circuit has explained that
[t]o act as its own lexicographer, a patentee must “clearly set
forth a definition of the disputed claim term” other than its plain
and ordinary meaning. It is not enough for a patentee to simply
disclose a single embodiment or use a word in the same manner
in all embodiments, the patentee must “clearly express an intent”
to redefine the term.
Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
2012) (citations omitted). Appellant has not demonstrated that the
Specification defines “active first spatial streams” as limited to those in
which data transmission currently exists. On the other hand, interpreting
“active first spatial streams” as spatial streams that produce or involve action
or movement without a temporal restriction, as the Examiner does (Ans. 5–
6), is fully consistent with Appellant’s Specification. In particular,
according to Appellant’s Specification, in response to a null data packet
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announcement (NDPA) message from a beamformer, a beamformee
determines the active first spatial streams and compares that number to the
number that is requested by a beamformer based on the number of columns
in the NDPA message. (E.g., Spec. ¶¶ 24–29.) As Appellant’s Specification
further states, the beamformee will then feed back spatial stream
measurement based only on the smaller of the two numbers. (Id. ¶ 29; see
also Abstract.) In this way, the beamformee will not feed back spatial
stream measurement information for more streams than are available from
the beamformee. If, however, a beamformee was not currently engaged in
data transmission, and therefore (according to Appellant) had no “active first
spatial streams,” it would feed back no spatial stream measurement
information and, presumably, be falsely deemed unavailable for
communication.
In that regard, we further note that the Federal Circuit has “often
remarked that a construction which excludes the preferred embodiment is
rarely, if ever correct.” PPC Broadband, Inc. v. Corning Optical Commc’ns
RF, LLC, 815 F.3d 747, 755 (Fed. Cir. 2016) (quotation marks omitted). If
“active” spatial streams were limited to streams currently engaged in data
transmission, as Appellant at least implicitly argues, a beamformee not
currently engaged in transmission (but ready and available) would determine
it has zero “active first spatial streams,” and would therefore feed back to the
beamformer zero spatial stream measurement information, thus defeating
the purpose of Appellant’s invention.
For the foregoing reasons, we are unpersuaded of error in the
Examiner’s 35 U.S.C. § 103(a) rejection of independent claim 1 and we,
therefore, sustain that rejection, along with the rejection of independent
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claims 8 and 12, which are argued collectively with claim 1. (App. Br. 8.)
We also sustain the rejection of dependent claims 2–4, 6–7, 9, and 11, which
Appellant does not argue separately. (Id. at 9.)
B. “when the locally stored AID is equal to the AID of the first STA
information field in the NDPA message, triggering the step of
comparing the quantity of first spatial streams with the quantity of
columns” (Claims 5, 10)
With regard to dependent claims 5 and 10, the Examiner finds the
combination of Abraham, Wallace, Haruna, and Zhang teaches or suggests
the claimed invention. (Final Act. 15–18.) Appellant argues the Examiner’s
findings are in error because none of the references teach or suggest “when
the locally stored AID is equal to the AID of the first STA information field
in the NDPA message, triggering the step of comparing the quantity of first
spatial streams with the quantity of columns.” (App. Br. 8–9.)
In particular, although Appellant concedes Abraham teaches a
beamformee matching an association ID (AID) of a station information field
(STA info) in the NDPA message, Appellant argues Abraham does not teach
“determining whether the locally stored AID of the beamformee is listed in
the first STA information field in the NDPA message.” (App. Br. 8.) We
disagree. As the Examiner finds, and we agree, Abraham teaches an AID
stored for an intended beamformee in the first STA information field in the
NDPA message. (Ans. 6–7 (citing Abraham Figs. 4–7C and ¶¶ 70, 71, 81).)
The Examiner also finds the combination of Abraham, Wallace, and Haruna
teach or suggest “when an AID is equal to the AID of the first STA
information field in the NDPA message, triggering the step of comparing the
quantity of first spatial streams with the quantity of columns.” (Ans. 7–8.)
Appellant does not address the Examiner’s combination of references.
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The Examiner also finds the combination of Abraham, Wallace, and
Haruna does not “expressly disclose ‘locally stored AID,’” but finds, and we
agree, that Zhang teaches or suggests “the AID of a client station is a locally
stored AID (or MAC ID) and is compared against AIDs.” (Ans. 8 (citing
Zhang ¶¶ 66–67 and 94).) Appellant’s argument against the Examiner’s
findings regarding Zhang is that “[d]ifferent from Zhang, besides the step of
matching AID, in claim 5, there is another determining step related to the
AID. That is determining whether the locally stored AID of the beamformee
is equal to the first STA information field in the NDPA message.” (Reply
Br. 7; see also App. Br. 9.) Appellant’s argument challenging Zhang
individually ignores the Examiner’s combination of Zhang with Abraham,
Wallace, and Haruna. The Examiner relies on Zhang only as teaching
matching an AID in a received transmission with a locally stored AID (Ans.
8), and relies on Zhang in combination with Abraham, Wallace, and Haruna
as otherwise teaching or suggesting the invention as recited in claim 5. (Id.
at 6–8.) Appellant’s arguments do not address the Examiner’s combination
of references, and, therefore, are not persuasive of error, as it is well
established that one cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See In re Keller, 642 F.2d 413, 425 (CCPA 1981); In re Merck & Co., 800
F.2d 1091 (Fed. Cir. 1986).
For the foregoing reasons, we are not persuaded of error in the
Examiner’s 35 U.S.C. § 103(a) rejection of claim 5 or of claim 10, which is
argued collectively with claim 5. (App. Br. 9.) We, therefore, sustain the
Examiner’s rejection of claims 5 and 10.

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DECISION
For the above reasons, the Examiner’s rejections of claims 1–12 are
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