13397493 - (D) (P.T.A.B. Oct. 24, 2019)

Santosh Paul. Abraham et al.

Patent Trials and Appeals BoardOct 24, 2019

13397493 - (D) (P.T.A.B. Oct. 24, 2019)

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. 13/397,493 02/15/2012 Santosh Paul Abraham 111024U3 9620 15055 7590 10/24/2019 Patterson & Sheridan, L.L.P. Qualcomm 24 Greenway Plaza, Suite 1600 Houston, TX 77046 EXAMINER TSEGAYE, SABA ART UNIT PAPER NUMBER 2467 NOTIFICATION DATE DELIVERY MODE 10/24/2019 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): PAIR_eOfficeAction@pattersonsheridan.com ocpat_uspto@qualcomm.com qualcomm@pattersonsheridan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte SANTOSH PAUL ABRAHAM, SAMEER VERMANI, HEMANTH SAMPATH, STEPHEN J. SHELLHAMMER, and RAHUL TANDRA ________________ Appeal 2017-010660 Application 13/397,493 Technology Center 2400 ________________ Before ROBERT E. NAPPI, JASON J. CHUNG, and JAMES W. DEJMEK, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge, JASON J. CHUNG. Opinion dissenting filed by Administrative Patent Judge, JAMES W. DEJMEK. CHUNG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection of claims 1, 2, 4–7, 9–11, 16–30, 36, and 37. 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 (2015). According to Appellant, Qualcomm Incorporated is the real party in interest. Appeal Br. 3. Appeal 2017-010660 Application 13/397,493 2 INVENTION The invention relates to “managing transmit power in a television white space (TVWS) network.” Spec. ¶ 2. Claim 1 is representative of the invention and is reproduced below: 1. An apparatus for wireless communications, comprising: a processing system configured to determine a modulation and coding scheme (MCS) for transmitting data frames from the apparatus; a transmitter configured to transmit a request message comprising an indication of the determined MCS; and a receiver configured to receive a response message comprising an indication of a link margin, wherein the link margin is based on the determined MCS. REJECTIONS AT ISSUE Claims 1, 2, 4, 6, 7, 9, 11, 16–19, 21, 22, 24, 25, 27, 28, 30, 36, and 37 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over the combination of Kim (US 2011/0171914 A1; filed Dec. 27, 2010) and Lee (US 2013/0215985 A1; continuation of application No. 12/528,419, filed on Aug. 24, 2009). Final Act. 2–8.2 2 In the Final Rejection, the Examiner rejects claims 3 and 8 over the combination of Kim and Lee. However, in the Advisory Action mailed on February 4, 2016, the Examiner entered Appellant’s Amendment After Final cancelling claims 3 and 8. We, therefore, interpret each mention of claims 3 and 8 being rejected (see e.g., Ans. 2 (stating every ground of rejection is maintained); Final Act. 2, 7 (stating claims 3 and 8 are rejected in the heading and including the rejection of claims 3 and 8 in the body of the rejection); Appeal Br. 8, 14; Reply Br. 2, 5, 7) as a typographical error and we do not include claims 3 and 8 in our summary table infra. Appeal 2017-010660 Application 13/397,493 3 Claims 5, 10, 20, 23, 26, and 29 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over the combination of Kim, Lee, and Grandhi (US 2011/0116487 A1; filed Nov. 12, 2010). Final Act. 8–10. ANALYSIS I. Claims 1, 2, 4–7, 9–11, 16–19, 21–25, 27–30, 36, and 37 Rejected Under pre-AIA 35 U.S.C. § 103(a) The Examiner finds Kim teaches transmitter 912 transmits a request message, which the Examiner maps to the limitation “a transmitter configured to transmit a request message.” Final Act. 2 (citing Kim, Fig. 9). The Examiner finds Kim teaches second device 920 transmits a link margin response frame to first device 910, which the Examiner maps to the limitation “a receiver configured to receive a response message comprising an indication of a link margin,” recited in claim 1. Final Act. 2–3 (citing Kim, Fig. 9). The Examiner finds Kim teaches second device 920 calculates a link margin by calculating a difference between a signal to noise ratio measured by the second device and a signal to noise ratio appropriate to an MCS, which the Examiner maps to the limitation “wherein the link margin is based on the determined MCS” recited in claim 1. Ans. 8–9 (citing Kim ¶ 42); Final Act. 2–3 (citing Kim ¶ 42). The Examiner finds Lee teaches a mobile station determines an MCS level and transmits the MCS level with channel quality information to a base station, which the Examiner maps to the limitation “message comprising an indication of the determined MCS” recited claim 1. Final Act. 3 (citing Lee ¶ 10). Appeal 2017-010660 Application 13/397,493 4 Appellant explains the Examiner finds Kim does not teach a request comprising an indication of the MCS. Appeal Br. 10.3 Appellant argues Lee fails to teach the limitation “transmit a request message comprising an indication of the determined MCS,” as recited in claim 1. Id. at 9–10; Reply Br. 2–3. Appellant argues that the combination of Kim and Lee fails to teach the limitation “a receiver configured to receive a response message comprising an indication of a link margin, wherein the link margin is based on the determined MCS” recited in claim 1 because Kim’s link margin in the link margin response frame is not based on an MCS that is determined by apparatus 910 and indicated in the link margin response frame. Appeal Br. 10. And Appellant argues Lee fails to teach “a receiver configured to receive a response message comprising an indication of a link margin, wherein the link margin is based on the determined MCS” recited in claim 1 because Lee does not teach determining a link margin at all. Id.; Reply Br. 3. We disagree with Appellant. At the outset, one cannot show nonobviousness “by attacking references individually” where the rejections are based on combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). In this case, the Examiner relies on Kim to teach transmitter 912 transmits request message, which teaches the limitation “a transmitter configured to transmit a request message.” Kim Fig. 9 (cited at Final Act. 2). In addition, Kim teaches 3 Appellant filed three Appeal Briefs (1) the first Appeal Brief was filed on February 23, 2016; (2) the second Appeal Brief was filed on July 1, 2016; and (3) the third Appeal Brief was filed on April 5, 2017. In this Decision, we refer to the second Appeal Brief filed on July 1, 2016. Appeal 2017-010660 Application 13/397,493 5 second device 920 transmits a link margin response frame to first device 910, which teaches the limitation “a receiver configured to receive a response message comprising an indication of a link margin” recited in claim 1. Kim Fig. 9 (cited at Final Act. 2–3). Also, Kim teaches second device 920 calculates a link margin by calculating a difference between a signal to noise ratio measured by the second device and a signal to noise ratio appropriate to an MCS, which teaches the limitation “wherein the link margin is based on the determined MCS” recited in claim 1. Kim ¶ 42 (cited at Ans. 8–9; Final Act. 2–3). Furthermore, Lee teaches mobile station determines an MCS level and transmits the MCS level with a channel quality information to base station, which teaches the limitation “message comprising an indication of the determined MCS” recited claim 1. Lee ¶ 10 (cited at Final Act. 3). Accordingly, we are not persuaded of error in the Examiner’s finding that Kim and Lee collectively teach the limitation a transmitter configured to transmit a request message comprising an indication of the determined MCS; and a receiver configured to receive a response message comprising an indication of a link margin, wherein the link margin is based on the determined MCS recited in representative claim 1. Although Appellant argues claim 18 separately, Appellant’s arguments are essentially the same arguments as Appellant’s arguments for claim 1. Appellant does not argue claims 2, 4–7, 9–11, 16, 17, 19, 21–23, 25, and 27–29 separately with particularity, but asserts the § 103 rejection of those claims should be withdrawn for at least the same reasons as argued for claims 1 and 18. Appeal Br. 8–13. Accordingly, we sustain the Examiner’s rejection of: (1) independent claims 1, 6, 11, 16–18, 24, 30, 36, and 37; and Appeal 2017-010660 Application 13/397,493 6 (2) dependent claims 2, 4, 5, 7, 9, 10, 19, 21–23, 25, and 27–29 under pre- AIA 35 U.S.C. § 103(a). II. Claims 20 and 26 Rejected Under pre-AIA 35 U.S.C. § 103(a) The Examiner finds Kim teaches calculating a difference between a signal to noise ratio measured by the second device and a signal to noise ratio appropriate to an MCS, which the Examiner maps to the limitation “determine a signal-to-interference-plus-noise ratio (SINR)[], wherein the link margin is based on the MCS, the SINR” recited in claim 20 (and similarly recited in claim 26). Final Act. 9 (citing Kim ¶ 42). The Examiner finds Grandhi teaches determining a receive signal based on path loss measurement information. Final Act. 9 (citing Grandhi ¶ 15). Appellant argues Kim, Lee, and Grandhi fail to teach a link margin that is based on all three of an MCS, an SINR, and a path loss. Appeal Br. 13; Reply Br. 20–21. At the outset, one cannot show nonobviousness “by attacking references individually” where the rejections are based on combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). In this case, the Examiner relies on Kim to teach calculating a difference between a signal to noise ratio measured by the second device and a signal to noise ratio appropriate to an MCS, which teaches the limitation “determine a signal-to- interference-plus-noise ratio (SINR)[], wherein the link margin is based on the MCS, the SINR” recited in claim 20 (and similarly recited in claim 26). Kim ¶ 42 (cited at Final Act. 9). The Examiner finds Grandhi teaches determining a receive signal based on path loss measurement information. Grandhi ¶ 15 (cited at Final Act. 9). Appeal 2017-010660 Application 13/397,493 7 Accordingly, we are not persuaded of error in the Examiner’s finding that Kim and Lee collectively teach the limitation “determine a signal-to- interference-plus-noise ratio (SINR) and a path loss, wherein the link margin is based on the MCS, the SINR, and the path loss” recited in claim 20 (and similarly recited in claim 26). Kim ¶ 42 and Grandhi ¶ 15 (cited at Final Act. 9). We respectfully disagree with our esteemed dissenting colleague. The issue raised in the dissent, that the proposed modification renders Kim inoperable for its intended purpose, was not raised by Appellant. As such Appellant waived this argument and it was not considered by the Majority. Appellant does not argue claim 26 separately with particularity, but asserts the § 103 rejection of claim 26 should be withdrawn for at least the same reasons as argued for claim 20. Appeal Br. 13. Accordingly, we sustain the Examiner’s rejection of claims 20 and 26 under pre-AIA 35 U.S.C. § 103(a). We have only considered those arguments that Appellant actually raised in the Briefs. Arguments Appellant could have made, but chose not to make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2017-010660 Application 13/397,493 8 CONCLUSION Claim(s) Rejected 35 U.S.C. § References(s)/Basis Affirmed Reversed 1, 2, 4, 6, 7, 9, 11, 16– 19, 21, 22, 24, 25, 27, 28, 30, 36, and 37 103 Kim, Lee 1, 2, 4, 6, 7, 9, 11, 16– 19, 21, 22, 24, 25, 27, 28, 30, 36, and 37 5, 10, 20, 23, 26, and 29 103 Kim, Lee, Grandhi 5, 10, 20, 23, 26, and 29 Overall Outcome 1, 2, 4–7, 9–11, 16– 30, 36, and 37 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 UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte SANTOSH PAUL ABRAHAM, SAMEER VERMANI, HEMANTH SAMPATH, STEPHEN J. SHELLHAMMER, and RAHUL TANDRA ________________ Appeal 2017-010660 Application 13/397,493 Technology Center 2400 ________________ Before ROBERT E. NAPPI, JASON J. CHUNG, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DISSENTING OPINION I respectfully dissent from the Majority’s decision affirming the Examiner’s decision rejecting claims 1–11, 16–30, 36, and 37 under pre- AIA 35 U.S.C. § 103(a). As broadly recited in independent claim 1, for example, a processing system determines a modulation and coding scheme (MCS) for transmitting data frames and a transmitter transmits a request message “comprising an indication of the determined MCS.” The Examiner finds Kim teaches a processing system configured to determine a modulation and coding scheme for transmitting data frames and a transmitter configured to transmit an indication of the MCS. Final Act. 2 Appeal 2017-010660 Application 13/397,493 2 (citing Kim ¶¶ 42, 50–55, 79–80, 106–107, Figs. 2, 9). However, the Examiner clarifies that “Kim does not expressly disclose determining [a] modulation and coding scheme [or] the request comprising an indication of the MCS.” Final Act. 3. The Examiner relies on Lee to teach a mobile station measuring a channel status between the mobile station and base station and selecting an MCS level from an available MCS set, based on the measured channel status. Final Act. 3. The Examiner finds Lee teaches the “MCS level information is transmitted when there is a request of the mobile station.” Final Act. 3 (citing Lee ¶¶ 10, 46, 51, 90). Based on the teaching of Kim and Lee, the Examiner determines it would have been obvious to an ordinarily skilled artisan to modify Kim’s system to include the determined MCS and to transmit an indication of the MCS, as taught by Lee, “in order to process transmitting data according to at least one of a modulation scheme and a coding scheme . . . . [in order to] reduce[] complexity of the system due to high-speed data.” Final Act. 3 (citing Lee ¶¶ 47–48). Generally, Kim is directed to a link adaptation method in a data communication system “by changing a modulation and coding scheme (MCS) according to a state of a link via which transmission and receipt are performed.” Kim ¶ 4. Kim discloses that “a link margin may be used in order to determine the state of the link.” Kim ¶ 5. In other words, Kim teaches a modulation and coding scheme is changed based on a link margin. Appeal 2017-010660 Application 13/397,493 3 Figure 9 of Kim, as relied on by the Examiner is illustrative and is reproduced below. Figure 9 of Kim illustrates a block diagram of a link margin controlling apparatus. Kim ¶ 106. Kim describes the link margin controlling apparatus (910) as comprising transmitter (912), receiver (914), and operation performing unit (916). Kim ¶ 106. As illustrated in Figure 9, transmitter (912) transmits a link margin request frame to a second device (920). Kim ¶ 107. The link margin request frame requests information about a link margin to the second device (920). Kim ¶ 107. Receiver (914) receives a link margin response frame from the second device (920). Kim ¶¶ 109–110. Based on the received link margin response frame, the operation performing unit (916) performs a change in MCS. Kim ¶ 111. Appeal 2017-010660 Application 13/397,493 4 Prior art must be evaluated for what the reference would have fairly suggested to one of ordinary skill in the art at the time of the invention. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807–808 (Fed. Cir. 1989). “If references taken in combination would produce a ‘seemingly inoperative device,’ . . . such references teach away from the combination and thus cannot serve as predicates for a prima facie case of obviousness.” McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001) (citation omitted); see also Tec Air, Inc. v. Denso Mfg. Michigan Inc., 192 F.3d 1353, 1360 (Fed. Cir. 1999) (“If when combined, the references ‘would produce a seemingly inoperative device,’ then they teach away from their combination.”) (quoting In re Sponnoble, 405 F.2d 578, 587 (CCPA 1969); also citing In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (where the court concluded that, essentially, “French teaches away from the board’s proposed modification” because “if the French apparatus were turned upside down, it would be rendered inoperable for its intended purpose”)). The Examiner’s proposed modification of Kim’s system is to “add a system that determine[s] MCS and transmits an indication of the MCS, such as that suggested by Lee.” Final Act. 3. Based on the Examiner’s mapping, therefore, the link margin request frame of Kim would be modified to transmit an indication of the MCS. As I understand Kim, the link margin request frame is transmitted to receive an indication of the link margin (in the link margin response frame) so that Kim may change the MCS based on the received link margin. See Kim ¶¶ 4–5, 78–80, 106–111. Thus, the determination of the MCS occurs in response to sending the link margin response frame request (and subsequently receiving the link margin response frame). The proposed modification, therefore, Appeal 2017-010660 Application 13/397,493 5 renders Kim inoperable for its intended purpose of changing MCS based on a received link margin and, accordingly, teaches away from the Examiner’s proposed combination. Moreover, if Kim were modified to add a system that determines MCS and transmits an indication of the MCS, as taught by Lee, it is unclear why the system of Kim—which is particularly requesting link margin so that an MCS level may be determined—would need the relied upon link margin request frame and link margin response frame messages. I do not find that the Examiner has set forth sufficient technical reasoning or support for the proposed combination. I agree with Appellant (see App. Br. 9–10) that individually, neither Kim nor Lee teaches a transmitter transmitting a request message comprising an indication of a determined MCS. Moreover, I agree with Appellant (see App. Br. 9) that the combination of Kim and Lee, as proposed by the Examiner, also fails to teach the transmitting a request message comprising an indication of a determined MCS. For the foregoing reasons, I am persuaded of Examiner error and would reverse the Examiner’s rejection of independent claim 1. For similar reasons, I would also reverse the Examiner’s rejection of independent claims 6, 11, 16–18, 24, 30, 36, and 37. Moreover, I would reverse the Examiner’s rejections of claims 2–5, 7–10, and 19–29, which depend directly or indirectly therefrom. Accordingly, I respectfully dissent.