Samsung Electronics Co., Ltd.

Patent Trials and Appeals Board

Apr 26, 2021

2019006939 (P.T.A.B. Apr. 26, 2021)

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.
15/466,197 03/22/2017 Sunheui RYOO 0202-1224-1 5662
68103 7590 04/26/2021
Jefferson IP Law, LLP
1130 Connecticut Ave., NW, Suite 420
Washington, DC 20036
EXAMINER
SEFCHECK, GREGORY B
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
04/26/2021 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):
usdocketing@jeffersonip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SUNHEUI RYOO, JUNGSOO JUNG,
JUNG-MIN MOON, SEUNG-HOON PARK, and BYOUNGHOON JUNG

Appeal 2019-006939
Application 15/466,197
Technology Center 2400
____________

Before JOHNNY A. KUMAR, CARL L. SILVERMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 21–40, which constitute all pending
claims. 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) (2018). Appellant identifies the real party in interest as
Samsung Electronics Co., Ltd. Appeal Br. 2.
Appeal 2019-006939
Application 15/466,197

2
STATEMENT OF THE CASE
Appellant’s disclosure is directed to controlling communication of a
terminal supporting a multi-radio access technology in a wireless
communication system. Abstr., Spec. ¶¶ 2, 9; Figs. 10A, 19.
Claim 21 is representative2 of the invention and reads as follows
(emphases added):
21. A method for operating a terminal supporting multi-
radio access technologies (multi-RAT) in a wireless
communication system, the method comprising:
receiving, from a base station through a first RAT, a
signal indicating a first sequence number of packet data
convergence protocol (PDCP) data to be last received from an
access node through a second RAT; and
transmitting, to the base station through the first
RAT, a signal indicating a second sequence number of the
PDCP data last received from the access node through the
second RAT,
wherein a successful transmission of the PDCP data
from the access node through the second RAT is ensured
when the second sequence number of the PDCP data last
received through the second RAT is as same as the first
sequence number of the PDCP data to be last received through
the second RAT.
Appeal Br. 12 (Claims Appendix).
REFERENCES AND REJECTION
The prior art relied upon by the Examiner is:

2 Based on Appellant’s arguments (Appeal Br. 4–10) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness
rejection of claims 22–40 on the basis of representative claim 21.
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Name Reference Date
Yi et al. US 8,774,108 B2 July 8, 2014
Koskinen US 2014/0301188 A1 Oct. 9, 2014
Himayat et al. US 2015/0351079 A1 Dec. 3, 2015

Claims 21, 25, 26, 30, 31, 35, 36, and 40 stand rejected under
35 U.S.C. § 103 as unpatentable over Himayat and Koskinen. Final Act. 2–
9.
Claims 22–24, 32–34, 27–29, and 37–39 stand rejected under
35 U.S.C. § 103 as unpatentable over Himayat, Koskinen, and Yi. Final
Act. 9–10.
Claims 21, 24–26, 29–31, 34–36, 39, and 40 are provisionally rejected
under the doctrine of non-statutory obviousness-type double patenting
(OTDP) over co-pending application U.S. Patent Application Serial No.
15/142,647. 3 Final Act. 11–12.

ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
contentions in the Appeal Brief and the Reply Brief that the Examiner has
erred, as well as the Examiner’s response to Appellant’s arguments in the
Appeal Brief. Arguments which Appellant could have made, but did not
make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). On the
record before us, we are unpersuaded the Examiner has erred. We adopt as

3 We note Appellant filed a Terminal Disclaimer on September 25, 2019.
Accordingly, this rejection is moot. Therefore, this rejection of these claims
is not discussed further herein.

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our own the findings, conclusions, and reasons set forth in the rejections
from which the appeal is taken and in the Examiner’s Answer, and provide
the following for highlighting and emphasis.
In the Final Action, the Examiner finds the combination of the
teachings of Himayat and Koskinen teaches the limitations of representative
claim 21 and provides reasoning why one of ordinary skill in the art would
have been motivated to combine the teachings. Final Act. 2–4 (citing
Himayat, Fig. 7, ¶¶ 46, 49, 62–66, 69; Koskinen ¶ 55).
The Examiner finds Himayat’s Figure 7 describes supporting multi-
radio access technologies (multi-RAT eNB and AP 138) in a wireless
communication system. Id. at 3 (citing Himayat Figs. 1, 7). The Examiner
finds Himayat describes receiving, from a base station (eNB 136) through a
first RAT, a signal indicating packet data convergence protocol (PDCP) data
to be received from an access node through a second RAT (emphasis added).
Id. (citing Himayat, Fig. 7, 725; PDCP bearer modification instruction).
The Examiner finds Himayat describes transmitting, to the base station (eNB
136) through the first RAT, a signal (Fig. 7, 735, PDCP ACK) indicating
PDCP data last received from the access node through the second RAT to
ensure successful transmission of the PDCP data from the access node
through the second RAT (Fig. 7, 730). Id. The Examiner finds Himayat
teaches a PDCP layer for maintaining sequence numbers and coordinating
the interworking/percentage of traffic on the primary and secondary carriers
(corresponding to the first/second RATs) using in-band PDCP signaling of
various control information. Id. (citing Himayat ¶¶ 46, 49, 62–66, 69).
Regarding the limitation “receiving, from a base station through a first
RAT, a signal indicating a first sequence number of packet data convergence
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protocol (PDCP) data to be last received from an access node through a
second RAT,” the Examiner finds Himayat does not expressly show the
second sequence number of PDCP data last received through the second
RAT is the same as the first sequence number of PDCP data to be received
through the second RAT, and relies on Koskinen for this limitation. Id. at 3–
4 (citing Koskinen ¶ 55).
Appellant argues the Examiner errs in finding Himayat teaches
“receiving, from a base station through a first RAT, a signal indicating . . .
packet data convergence protocol (PDCP) data to be received from an access
node through a second RAT.” Appeal Br. 7–8. According to Appellant,
Himayat teaches distribution of a data bearer (“bearer distribution split”)
between two APs and does not teach any identification of a data to be last
received, or even exchanged, through any of the APs therein (using PDCP
sequence numbers or otherwise). Id. at 7. According to Appellant:
Thus, even assuming, arguendo, that reference Koskinen
could be interpreted as describing a transmission of PDCP
sequence numbers to a UE, or the use of a “PDCP sequence
number of a data to be last received,” which Appellant does not
concede, there is simply no reason for such teachings to be added
to Himayat, as the “bearer distribution split” of Himayat relies
upon, and only provides, a ratio of bearer data to be transmitted
through two APs, not a “data to be last received” of the bearer
data. In other words, there is simply no reason to include in
Himayat’s PDCP bearer modification instruction 725 a
“sequence number of PDCP data to be last received from an
access node,” because the “bearer distribution split”
functionality does not depend on knowing a last PDCP data. The
distribution split in Himayat relates to the data that the UE 110
is to transmit to the two APs (i.e. eNB 136 and WLAN AP 138)
and it is the UE 110 who determines the last packet to be
transmitted to each of the APs based on the ratio. Therefore, there
is no reason for the APs to know or provide to the UE a
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“sequence number of PDCP data to be last received” by the UE,
as recited.
Id. at 7–8.
Appellant argues Himayat’s bearer modification 735 modified split
ratio does not have any identification of a data last received, or even
exchanged, through any of the APs therein (using PDCP sequence numbers
or otherwise), much less of a particular AP. Id. at 8 (citing Himayat ¶ 85).
According to Appellant, there is no reason for this ACK message to have
that information, as its only purpose is to acknowledge a previously received
PDCP bearer modification instruction. Id. Appellant argues, assuming,
arguendo, that Koskinen could be interpreted as describing a transmission of
PDCP sequence numbers to a UE, or the use of “a PDCP sequence number
of a data last received,” there is no reason for such teachings to be added to
Himayat, as there is no reason to include in Himayat’s PDCP bearer
modification ACK message a “sequence number of PDCP data last received
from an access node,” because the “bearer distribution split” functionality
does not depend on knowing a last PDCP data, much less do so in this
particular ACK message. Id. at 8–9.
In the Answer, the Examiner finds Appellant’s arguments fail to
consider the simple case scenario in which the bearer split between
Himayat’s eNB 136 and AP 138, in terms of percentages, is modified
between 100/0 and 0/100, effectively illustrating a handover of bearer traffic
between eNB 136 and AP 138, as would be recognized by one of ordinary
skill in the art. Ans. 11. The Examiner also finds Appellant’s
characterization of Himayat fails to consider the teachings of paragraph 46
of Himayat, cited in the Final Rejection. Id. at 11–12. The Examiner finds
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paragraph 46 of Himayat establishes the need for “maintenance of PDCP
sequence numbers . . . and/or other functions related to the PDCP layer,”
including the communication of “control information (and/or other types of
information) associated with the . . . communications of UE.” Id. at 11–12.
In particular, the Examiner finds:
Himayat only fails to show the express inclusion of PDCP
sequence numbers in the modification instruction 725 and ACK
735 messages of Fig. 7, but as shown above, Himayat at least
suggests the maintenance of sequence numbers during the bearer
modification/handover processing between eNB 136 and AP
138. Thus, secondary reference to Koskinen is relied upon to
explicitly show analogous PDCP sequence number maintenance
during handover in which a forwarding status report of expected
(i.e. to be last received, as claimed) PDCP sequence numbers to
be received before/after handover. Therefore, the rejections
based upon the combination of Himayat and Koskinen are proper
and should be affirmed by the Board.
Id. at 12.
In the Reply Brief, Appellant reiterates and argues the Examiner errs
in interpreting Himayat’s bearer modification PDCP instruction 725 and
PDCP bearer modification ACK 735. Reply Br. 5–9. Appellant argues
Himayat relates to distribution of a data bearer between two APs of a
network for communication between the network and a terminal. Id. at 3
(citing Himayat ¶¶ 79–85, FIG. 7). Appellant argues Himayat only
describes transmitting a ratio of bearer data and the Examiner’s reference to
Himayat’s “maintenance of PDCP sequence numbers and/or other functions
related to the PDCP layer is layer” is directed to, at best, bearer data
communication between the network and the terminal as a whole, and there
is no teaching or suggestion in Himayat that the terminal would need to tie
or map PDCP sequence numbers of the data bearer to a particular AP. Id. at
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4. Appellant additionally argues Himayat does not expressly discuss or
suggest having unique bearer modification instructions for different
distribution scenarios. Id.
As discussed below, we are not persuaded by Appellant’s arguments
because the arguments are not based on a reasonable and broad
interpretation of the disputed limitations and are based on an unreasonably
narrow characterization of the teaching of the cited references.
Figure 7 of Himayat describes using PDCP packets for controlling
WLAN and WWAN transmission. See also Himayat ¶¶ 46, 79–85. The
bearer modification instruction is output (at 725) to UE 110 (received by UE
110) via one or more PDCP packets to enable modification of the bearer
split ratio between the WLAN and the WWAN bearer. Himayat ¶ 85.
Himayat describes that “UE 110 may further output (at 735) [transmitted]
one or more PDCP packets, indicating that UE 110 has modified the bearer
split ratio (e.g., an acknowledgment (‘ACK’)).” Id. Himayat teaches the
widespread use of PDCP. Himayat ¶ 46. Appellant does not dispute the
teachings of Koskinen.
We are not persuaded by Appellant’s arguments and agree, instead,
with the findings and conclusions of the Examiner. Although Himayat
describes ratios, the Examiner additionally finds the teachings are not
limited to ratios and would include a handover as recognized by one of
ordinary skill in the art. This is not persuasively disputed by Appellant.
Moreover, claim 21 does not exclude a ratio environment. Appellant’s
arguments regarding the use of PDCP are inconsistent with the broad
teachings of Himayat and are not supported by evidence. Himayat ¶ 46.
Additionally, the Examiner finds Himayat does not expressly show the
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second sequence number of PDCP data last received through the second
RAT is the same as the first sequence number of PDCP data to be received
through the second RAT, and relies on Koskinen for this limitation.
Appellant does not persuasively argue the findings of the Examiner
regarding the teaching of Koskinen.
Appellant argues an unreasonably narrow teaching of the cited
references, particularly Himayat, to attempt to limit the teaching to the
express disclosures, and asserts an overly demanding standard of
obviousness. However, we note:
[t]he test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in
the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981).
As stated by the Supreme Court, the Examiner’s obviousness rejection
must be based on:
[S]ome articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness. . . . [H]owever, the
analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006)).
On the record before us, we are not persuaded by Appellant’s
arguments because the Examiner provides sufficient evidence to support the
findings and conclusions. Therefore, on the record before us, we conclude
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the Examiner does not err in rejecting representative claim 21, as well as
independent claims 26, 31, and 36, which recite similar limitations, and
dependent claims 22–25, 27–30, 32–35, and 37–40, as these claims are not
argued separately.

CONCLUSION
For the reasons stated above, we sustain the obviousness rejections of
representative claim 21 and independent claims 26, 31, and 36 which recite
the disputed limitations, and dependent claims 22–25, 27–30, 32–35, and
37–40.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
21, 25, 26,
30, 31, 35,
36, 40
103 Himayat, Koskinen 21, 25, 26,
30, 31, 35,
36, 40

22–24, 32–
34, 27–29,
37–39
103 Himayat, Koskinen, Yi 22–24,
32–34,
27–29,
37–39

21, 24–26,
29–31, 34–
36, 39, 40
Provisional Non-
statutory OTDP4

Overall
Outcome
21–40

4 The Provisional OTDP Rejection is dismissed as moot, supra (footnote 3).
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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).
See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED