nullDownload PDFPatent Trials and Appeals BoardDec 2, 201914728859 - (D) (P.T.A.B. Dec. 2, 2019) 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. 14/728,859 06/02/2015 Tao Luo QLXX.P1034US/1000211426 2344 15757 7590 12/02/2019 Qualcomm /Norton Rose Fulbright US LLP 2200 Ross Avenue Suite 3600 Dallas, TX 75201-7932 EXAMINER MILLS, DONALD L ART UNIT PAPER NUMBER 2462 NOTIFICATION DATE DELIVERY MODE 12/02/2019 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): doipdocket@nortonrosefulbright.com ocpat_uspto@qualcomm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TAO LUO, PETER GAAL, WANSHI CHEN, ALEKSANDAR DAMNJANOVIC, YONGBIN WEI, DURGA PRASAD MALLADI, HAO XU, MADHAVAN SRINIVASAN VAJAPEYAM, and SRINIVAS YERRAMALLI Appeal 2019-000984 Application 14/728,859 Technology Center 2400 BEFORE ERIC B. CHEN, JOHN F. HORVATH, and ADAM J. PYONIN, Administrative Patent Judges. PYONIN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as QUALCOMM Incorporated. Appeal Br. 2. Appeal 2019-000984 Application 14/728,859 2 STATEMENT OF THE CASE Introduction The Application is directed to a wireless communication system using “protected clear channel assessment (CCA)-exempt transmission (CET) transmission and reception.” Spec. ¶ 2. Claims 1–3, 25–27, 49–51, and 73– 75 are pending; claims 1, 25, 49, and 73 are independent. Appeal Br. 12–16. Claim 1 is reproduced below for reference (emphasis added): 1. A method of wireless communication, comprising: generating a control-reference transmission using network information, the control-reference transmission to be transmitted over a transmission channel of an unlicensed carrier; scheduling a transmission time for the control-reference transmission, wherein the control-reference transmission includes a clear channel assessment exempt transmission (CET), and wherein the control-reference transmission is transmitted without evaluating whether the transmission channel is clear; transmitting channel reserving signals on the unlicensed carrier, prior to the scheduled transmission time of the control- reference transmission; and transmitting the control-reference transmission on the unlicensed carrier at the scheduled transmission time. References and Rejection2 Claims 1–3, 25–27, 49–51, and 73–75 are rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Fwu et al. (US 2015/0264699 A1; Sept. 17, 2015), hereinafter referred to as “Fwu.” Final Act. 3. 2 The Examiner has withdrawn the rejection under 35 U.S.C. § 112(b). Adv. Act. 1. Appeal 2019-000984 Application 14/728,859 3 ANALYSIS We have reviewed the Examiner’s rejection in light of Appellant’s arguments. Arguments Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant that the Examiner erred and adopt as our own the findings and reasons set forth by the Examiner, to the extent consistent with our analysis below. We add the following primarily for emphasis. The Transmitting Without Evaluating Limitation Appellant argues the Examiner’s rejection is in error, because Fwu “fails to disclose transmissions without evaluating whether the transmission channel is clear,” as required by claim 1. Appeal Br. 5 (emphasis omitted). Particularly, Appellant contends Fwu “clearly distinguishes the evaluation process and the reservation mechanism as two distinct processes, and makes it clear the reservation of the channel is actually optional,” “but before the channel may even be reserved, the [node] evaluates whether the channel is clear or not.” Appeal Br. 6, 7 (emphasis omitted); see also Reply Br. 3. We are not persuaded the Examiner errs in finding Fwu’s listen before talk (LBT) is tantamount to the claimed evaluating limitation, and that “FWU states that the system can utilize LBT or channel reservation or a combination thereof, but the system does not require LBT.” Ans. 5 (emphasis omitted). Fwu states the system “can perform listen before talk (LBT) protocols and/or channel reservation techniques.” Fwu ¶ 21. Fwu further discloses that “a LBT protocol and/or reservation mechanism 612 can be used to reserve the channel.” Fwu ¶ 63; see also Fwu ¶ 64. We agree with the Examiner that one of ordinary skill would understand Fwu’s use of Appeal 2019-000984 Application 14/728,859 4 “and/or” between the “LBT protocol” and the “channel reservation” indicates that Fwu “performs channel reservation without LBT.” Ans. 5. Appellant does not challenge the Examiner’s reasonable analysis of Fwu’s “and/or” disclosures. Ans. 5; see also Reply Br. 1–4. Nor does Appellant provide persuasive technical reasoning or evidence to show Fwu requires evaluation of the channel before transmitting. “Attorney’s argument in a brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Accordingly, we are not persuaded the Examiner errs in determining Fwu discloses “the control-reference transmission is transmitted without evaluating whether the transmission channel is clear” as recited by claim 1. See Ans. 5, 6. The Transmitting the Control-Reference Limitation Appellant argues the Examiner “has erred in relying on different examples of the same signal transmission in [Fwu] to teach the two distinct transmissions of different signals in claim 1.” Appeal Br. 9. Specifically, Appellant contends “the [Examiner] equates the claimed ‘control-reference transmission’ to [Fwu]’s transmission of a discovery signal that is used to reserve the channel,” and “equates the claimed transmission of ‘channel reserving signals’ to [Fwu’s] transmission of a ‘reservation message,’” but “the cited portions of [Fwu] show that the reservation message and the discovery signal are merely different examples of . . . the same thing/element.” Appeal Br. 8; see also Reply Br. 3. Appeal 2019-000984 Application 14/728,859 5 We are not persuaded the Examiner errs. Fwu states that, in “another embodiment[3] . . . discovery subframe 714 is transmitted after the LBT/reservation mechanism 712.” Fwu ¶ 64 (emphasis added); see also Ans. 6. One of ordinary skill would understand Fwu discloses transmitting a discovery signal separate from transmitting a reservation signal, based on Fwu’s use of different element numbers (712 and 714) and transmission of one signal after the other. See Ans. 7 (Finding Fwu “describes utilizing a channel reservation message in combination with a discovery signal, in which the channel reservation message is scheduled prior to the discovery signal.”); Fwu ¶¶ 123, 127. Thus, we find the Examiner’s determination— that Fwu discloses “transmitting channel reserving signals . . . prior to the scheduled transmission time of the control-reference transmission,” as claimed—to be reasonable. Final Act. 3 (emphasis omitted); Ans. 6. We sustain the Examiner’s rejection of independent claim 1. Appellant does not present additional substantive arguments for the remaining claims. See Appeal Br. 9–11. Accordingly, we sustain the Examiner’s rejection of claims 2, 3, 25–27, 49–51, and 73–75 for the same reasons. 3 We note the cited portions of Fwu refer to various embodiments. See Final Act. 3–4; Ans. 4–7; see, e.g., Fwu ¶¶ 57–66. Appellant does not challenge this aspect of the rejection. See, e.g., Reply Br. 1–4. As such, we do not review whether the Examiner has relied on potentially disparate embodiments in making an anticipation rejection. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“[T]he Board will not, as a general matter, unilaterally review . . . uncontested aspects of the rejection.”). Appeal 2019-000984 Application 14/728,859 6 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Basis/Reference(s) Affirmed Reversed 1–3, 25–27, 49–51, 73– 75 102(a)(2) Fwu 1–3, 25– 27, 49–51, 73–75 TIME PERIOD FOR RESPONSE 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. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation