Telefonaktiebolaget LM Ericsson (publ)

Patent Trials and Appeals Board

Dec 14, 2020

2019002563 (P.T.A.B. Dec. 14, 2020)

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.
15/223,453 07/29/2016 Yufei Blankenship 3000-480 6108
27820 7590 12/14/2020
WITHROW & TERRANOVA, P.L.L.C.
106 Pinedale Springs Way
Cary, NC 27511
EXAMINER
MALEK, LEILA
ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
12/14/2020 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):
patents@wt-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YUFEI BLANKENSHIP, SHIWEI GAO, and
ROBERT MARK HARRISON
Appeal 2019-002563
Application 15/223,453
Technology Center 2600
Before JOSEPH L. DIXON, ERIC S. FRAHM, and SCOTT E. BAIN,
Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–32. See Final Act. 1. Claims 33–42
are canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42 (2018). Appellant identifies the real party in interest as
Telefonaktiebolaget LM Ericsson. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a precoding diversity in time domain.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A User Equipment, UE, comprising:
circuitry comprising a processing module and a memory
module configured to:
receive an indication that a physical channel is repeated
over a set of subframes; and
receive an indication that the UE can assume that a first
subset of the repetitions of the physical channel and a reference
signal will use a first precoder.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Kim US 2011/0002322 A1 Jan. 6, 2011
Wang US 2012/0052899 A1 Mar. 1, 2012
You US 2015/0280876 A1 Oct. 1, 2015

REJECTIONS
Claims 1, 11, 21, 22, 26, 27, 28, 29, 30, and 32 stand rejected under
35 U.S.C. § 101 because the claimed invention is directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more. Final Act. 6–7.
Claims 1, 2, 7–12, 17–21, and 26–29 stand rejected under 35 U.S.C.
§ 102(a)(2) as being anticipated by You. Final Act. 8.
Claims 3, 13, 22, and 30 stand rejected under 35 U.S.C. § 103 as
being unpatentable over You and Kim. Final Act. 11.
Claims 4, 14, 23, and 31 stand rejected under 35 U.S.C. § 103 as
being unpatentable over You and Wang. Final Act. 12.
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Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1, 11, 21, 22, 26, 27, 28,
29, 30, 32
101 Eligibility
1, 2, 7–12, 17–21, 26–
29
102(a)(2) You
3, 13, 22, 30 103 You, Kim
4, 14, 23, 31 103 You, Wang

OPINION
35 U.S.C. § 1012
Appellant argues claims 1, 11, 21, 22, 26, 27, 28, 29, 30, and 32 as a
group. Appeal Br. 11. We select claim 1 to represent the group. See 37
C.F.R. § 41.37(c)(1)(iv)(2018) . Arguments which Appellant could have
made but did not make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985–86 (Fed. Cir.
2006).
Patent eligibility under 35 U.S.C. § 101 is a question of law that is
reviewable de novo. See Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333
(Fed. Cir. 2012).
a. Legal Principles
An invention is patent eligible if it claims a “new and useful process,

2 We note that the Final Action, Appeal Brief, and the Examiner’s Answer
were filed prior to the Revised Guidance and the Reply Brief was filed
after the Revised Guidance, but does not specifically address the Revised
Guidance. Our Decision addresses the rejection under the Revised
Guidance.
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machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, under Step 2A, we first determine what concept the claim is
“directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before
us are drawn to the concept of intermediated settlement, i.e., the use of a
third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S.
593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the
basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas and, thus, patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).

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If, under Step 2A, the claim is “directed to” an abstract idea, then,
under Step 2B, “we must examine the elements of the claim to determine
whether it contains an ‘inventive concept’ sufficient to ‘transform’ the
claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at
221 (quotation marks omitted). “A claim that recites an abstract idea must
include ‘additional features’ to ensure ‘that the [claim] is more than a
drafting effort designed to monopolize the [abstract idea].’” Id. (quoting
Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer
implementation[] fail[s] to transform that abstract idea into a patent-eligible
invention.” Id.
On January 7, 2019, the U.S. Patent and Trademark Office
(“USPTO”) published revised patent subject matter eligibility guidance. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50,
2019 (“Revised Guidance”). Under the Revised Guidance, Step 2A of the
Alice two-step framework is divided in two prongs. For Step 2A, Prong 1,
we look to whether the claim recites any judicial exceptions falling into
certain groupings of abstract ideas (e.g., mathematical concepts, certain
methods of organizing human activity such as a fundamental economic
practice, or mental processes). For Step 2A, Prong 2, if the claim recites
such a judicial exception, we look to whether the claim recites any additional
elements that integrate the judicial exception into a practical application (see
Manual of Patent Examining Procedure (“MPEP”) § 2106.05(a)–(c), (e)–
(h)).
Only if a claim recites a judicial exception and does not integrate that
exception into a practical application, do we then determine, under Step 2B
of the Alice two-step framework, whether the claim adds a specific
limitation beyond the judicial exception that is not “well-understood,
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routine, conventional” in the field (see MPEP § 2106.05(d)) or simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception.
b. Discussion – Claim 1
i. Examiner’s Findings and Conclusions
In the Final Action, the Examiner determines that claims 1 and 11 are
directed to an abstract idea. Claims 1 and 11 recite the steps of “receiving
an indication that a physical channel is repeated over a set of subframes; and
receiving an indication that the UE can assume that a first subset of the
repetitions of the physical channel and a reference signal will use a first
precoder,” and these limitations are directed to an abstract idea similar to the
concepts that have been identified as abstract by the courts. Final Act. 6–7.
The Examiner further maintains that the similarity here to the level of drug
in the Mayo case is the “level indication” or “indication” in general (i.e., the
indication that a physical channel is repeated over a set of subframes and
indication that the UE can assume that a first subset of the repetitions of the
physical channel and a reference signal will use a first precoder)) and
Electric Power Group (collecting information, analyzing it, and displaying
certain results of the collection and analysis, in this case the indicators sent
by the transmitter are gathered by the UE, but no further action has been
taken).3 Ans. 11.
The Examiner further determines that the claims do not include
additional elements that are sufficient to amount to significantly more than
the judicial exception because the “memory module” and the “processing

3 Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016).
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module” are generally linking the method steps to a generic computer
device. Final Act. 7; Ans. 11.
The Examiner also finds that there is no indication in the claim that
the UE can coherently combine the repetitions, including the reference
signals used by the physical channel, and the claims are only directed to
receiving the indications and there is no indication in the claims about
coherently combining repetitions of the physical channel. Ans. 13.

Appellant’s Arguments and Contentions
In the Appeal Brief, Appellant contends that the Fed. Cir.
in State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149
F.3d 1368 (Fed. Cir. 1998), cert. denied, 525 U.S. 1093 (1999), and AT&T
Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999) found
patent eligibility based upon a “useful, concrete and tangible” test. Appeal
Br. 7. Appellant further contends that the Examiner has not fully articulated
the patent eligibility rejection which constitutes clear error, and the burden
has not shifted to Appellant to rebut. Appeal Br. 11–13. Appellant further
contends that the claims are directed to improvements in computer-related
technology. Appeal Br. 13. Appellant also contends “[t]he ability to
coherently combine repetitions of the physical channel improves both
the estimates of the physical channel as well as channel estimates
derived from the repeated reference signals.” Appeal Br. 14.
In the Reply Brief, Appellant does not address the Revised Guidance.
Reply Br. 3–4. Appellant generally contends that Examiner’s reply in the
Answer failed to address the deficiencies of the rejections highlighted
in the Appeal Brief, and the Office has failed to “consider each claim
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separately based on the particular elements recited therein.” Reply Br.
3. Appellant also contends the Office misapplies the law concerning claims
directed to improvements in computer-related technology. Reply Br. 3.
Appellant generally contends that the claims are directed to improvements in
computer-related technology and the rejection is a misapplication of the law
and is not related to the standard set forth by the court in Enfish.4 Reply Br.
3. Appellant contends that the benefits of the improvements are not required
to be recited in the claim itself and as long as the claims are directed to such
an improvement, and Appellant generally maintains that the improvement to
the way computers operate is already recited in the claims. Reply Br. 3–4.
Appellant argues that the referred to sections of the Specification are merely
cited to aid in the Office’s understanding of such improvements, and
Appellant submits that there is at least one teaching in the Specification
about how the claimed invention improves a computer or other technology.
Reply Br. 3–4.

ii. Analysis
We note the Reply Brief was filed on February 6, 2019, after the
Director’s 2019 Revised Guidance was published in the Federal Register,
Vol. 84, No. 4, on Monday, January 7, 2019. Because of the intervening
change in USPTO policy occurring after the filing of the Appeal Brief on
October 10, 2018, Appellant’s arguments in the Reply Brief traversing the
§101 rejection under the Director’s 2019 Revised Guidance would have
been considered timely, but Appellant did not file arguments under the
Revised Guidance in the Reply Brief.

4 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)).
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Appellant does not set forth separate arguments for patentability of
claims 1, 11, 21, 22, 26, 27, 28, 29, 30, and 32. See Appeal Br. 11; Reply Br.
3. Based on Appellant’s arguments and our discretion under 37 C.F.R.
§ 41.37(c)(1)(iv), we select independent claim 1 as the representative claim
for the group and address Appellant’s arguments thereto. See 37 C.F.R.
§ 41.37(c)(1)(iv). Claims 11, 21, 22, 26, 27, 28, 29, 30, and 32 stand or fall
with representative claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
For Step 1 of the Revised Guidance, claim 1 sets forth a User
Equipment (UE) which is nominally directed to a machine under 35 U.S.C.
§ 101.
For Step 2A, Prong 1, of the Revised Guidance, we agree with the
Examiner and find that the emphasized portions of claim 1, reproduced
above, recite elements that fall within the abstract idea grouping of
mathematical concepts. We agree with the Examiner that independent claim
1 generally recites an abstract idea of processing and precoding and
decoding a data communication. See generally Final Act. 11–12
“(communicating two indications without performing any further process).”
The Revised Guidance requires us to evaluate whether the claim recites a
judicial exception (e.g., an abstract idea). According to the Revised
Guidance, to determine whether a claim recites an abstract idea, we must
identify limitations that fall within one or more of the designated subject
matter groupings of abstract ideas. According to the October 2019 Patent
Eligibility Guidance Update produced by the USPTO, “a claim recites a
judicial exception when the judicial exception is ‘set forth’ or ‘described’ in
the claim.” See October 2019 Patent Eligibility Guidance Update Revised
Patent Subject Matter Eligibility Guidance,
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
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df (“October Update”). The Revised Guidance lists “mathematical
concepts” as one such grouping. 84 Fed. Reg. at 52. We find that
independent claim 1 generally recites an abstract idea of processing and
precoding and decoding a data communication. We find that the
emphasized elements of claim 1 describe these judicial exceptions.
We also find RecogniCorp to be pertinent in our discussion. In this
light, we find that the limitations and concepts recited by Claim 1 are
different from the claims of RecogniCorp.5 Although the claims in
RecogniCorp involved encoding and decoding data, the court concluded that
the claims “reflect[] standard encoding and decoding.” RecogniCorp, 855
F.3d at 1326 (emphasis added). However, we do not understand the court’s
conclusion in RecogniCorp to hold that all claims directed to any type of
encoding and decoding are abstract ideas, such as mathematical concepts.
Furthermore, the court explained, “RecogniCorp has not alleged a
particularized application of encoding and decoding.” RecogniCorp, 855
F.3d at 1328. Here, we find that Claim 1 reflects standard encoding and
decoding. Cf. RecogniCorp, 855 F.3d at 1326. Instead, we find that claim 1
does not incorporate the improvements in the field of data transmission.
Thus, we conclude claim 1 recites the abstract ideas of mathematical
concepts. Therefore, at least on this basis, we find claim 1 and, for similar
reasons, claims 11, 21, 22, 26, 27, 28, 29, 30, and 32 patent ineligible.
These steps relate to “Mathematical concepts— mathematical
relationships, mathematical formulas or equations, mathematical
calculations” used in coding and decoding communications. Thus, we find
that claim 1 recites an abstract idea.

5 RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322 (Fed. Cir. 2017).
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Turning to Prong 2 of the Step 2A of the Revised Guidance, we
recognize that claim 1 includes additional elements such as “User
Equipment,” “circuitry,” “processing module,” “memory module,” and
“physical channel.” Furthermore, our review of Appellant’s Specification
finds that these terms are nominal. Appellant’s Specification indicates that
the ““User Equipment,” “circuitry,” “processing module,” “memory
module,” and “physical channel” are generic hardware elements (see Spec.
¶¶ [58], “electronic devices includes hardware such as a set of one or more
processors coupled to one or more other components, such as one or more
non-transitory machine-readable media (to store code and/or data), user
input/output devices (e.g., a keyboard, a touchscreen, and/or a display), and
network connections (to transmit code and/or data using propagating
signals); [59] “Subscriber end stations (e.g., servers, workstations, laptops,
netbooks, palm tops, mobile phones, smartphones, multimedia phones,
Voice Over Internet Protocol (VOIP) phones, user equipment, terminals,
portable media players, Global Positioning Systems (GPS), gaming systems,
set-top boxes) access content/services provided over the Internet and/or
content/services provided on virtual private networks (VPNs) overlaid on
(e.g., tunneled through) the Internet”; [60] “While Long Term Evolution
(LTE) terminology is generally used herein, the current disclosure is not
limited thereto.”)
Claim 1 does not recite specific types of additional elements or their
specific operations. As a result, these additional elements are not enough to
distinguish the steps of claim 1 from describing mathematical concepts used
in coding and decoding data communications. Thus, claim 1 does not
integrate the recited abstract idea into a practical application.
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In addition, we determine that claim 1 also recites insignificant pre-
solution activity of “receive an indication.” See OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363–64 (Fed. Cir. 2015) (addressing
insignificant pre-solution activity). The recited insignificant extra-solution
activity does not help integrate the recited methods of organizing human
activity into a practical application of the abstract idea.
Appellant does not set forth specific arguments for patent eligibility
based upon a practical application under the Revised Guidance beyond the
general argument that the claims are directed to improvements in computer-
related technology. Reply Br. 3. Appellant proffers that claims are directed
to such an improvement and the improvement to the way computers operate
is already recited in the claims where there is at least one teaching in the
Specification about how the claimed invention improves a computer or other
technology, but Appellant does not specifically identify the improvement or
the disclosure in the Specification. Reply Br. 3–4.
We find that only the above identified elements are “additional
elements” to the recited abstract idea, and the Specification generically
discloses each of these additional elements are disclosed at a high level
with regards to the underlying process of data communication. Appellant
additionally argues that the claim as a whole is directed to improvement in
the way computers operate. Reply Br. 3–4. We note that Appellant’s
argument is not commensurate in scope with the express language of
independent claim 1.
Thus, Appellant’s argument fails because the argument is not
commensurate with the scope of claim 1. See In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because
. . . they are not based on limitations appearing in the claims.”); see also In
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re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts
. . . are not commensurate with the claim scope and are therefore
unpersuasive.”). The broad language of claim 1 does not specify that the
machine or method steps provides a specific improvement over prior
systems, resulting in improved data communication because there is no
claimed communication performed. As a result, the combination of
additional elements as a whole does not integrate the recited abstract idea
into a practical application.
Therefore, based on our analysis under the Revised Guidance, we
agree with the Examiner and find that claim 1 is directed to an abstract idea.
As a result, we focus our attention on Step 2B of the Alice two-step
framework.
Step 2B of the Alice two-step framework requires us to determine
whether any element, or combination of elements, in the claim is sufficient
to ensure that the claim amounts to significantly more than the judicial
exception. Alice, 573 U.S. at 221. As discussed above, claim 1 includes
additional elements such as a terms ““User Equipment,” “circuitry,”
“processing module,” “memory module,” and “physical channel.” We agree
with the Examiner’s findings that the additional elements of claim 1, when
considered individually and in an ordered combination, correspond to
nothing more than generic and well-known components used to implement
the abstract ideas. See generally Ans. 4; Final Act. 7.
In other words, we find that the additional elements, as claimed, are
well-understood, routine, and conventional and “behave exactly as expected
according to their ordinary use.” See In re TLI Commc’ns LLC Patent Litig.,
823 F.3d 607, 615 (Fed. Cir. 2016). Thus, implementing the abstract idea
with these generic and well-known components “fail[s] to transform that
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abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 221.
Therefore, we agree with the Examiner that claim 1 does not provide
significantly more than the abstract idea itself.
Therefore, because claim 1 is directed to the abstract ideas of
mathematical concepts—mathematical relationships, mathematical formulas
or equations, mathematical calculations and does not provide significantly
more than the abstract idea itself, we agree with the Examiner that claim 1 is
ineligible for patenting and affirm the Examiner’s rejection of claim 1 under
35 U.S.C. § 101.

35 U.S.C. § 102
Appellant does not set forth separate arguments for patentability of
claims 1, 2, 7–12, 17–21, and 26–29. See Appeal Br. 14. Based on
Appellant’s arguments and our discretion under 37 C.F.R. § 41.37(c)(1)(iv),
we select independent claim 1 as the representative claim for the group and
address Appellant’s arguments thereto. See 37 C.F.R. § 41.37(c)(1)(iv).
Claims 2, 7–12, 17–21, and 26–29 stand or fall with representative claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985–86 (Fed. Cir.
2006).
With respect to the anticipation rejection of representative
independent claim 1, Appellant contends that the You reference fails to
teach every feature of claim 1. Appeal Br. 14–15. Appellant also contends
that even if that relied upon portions of the You reference teach that a
physical channel is repeated over a set of subframes, You fails to teach the
claimed “receiv[ing] an indication that the UE can assume that a first subset
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of the repetitions of the physical channel and a reference signal will use a
first precoder.” 6 Appellant further contends the You reference teaches that
“[t]he present invention proposes that the same precoding matrix be applied
to signals transmitted in bundled subframes.” Appeal Br. 15 (emphases
omitted; citing You ¶ 152). Appellant argues that the You reference teaches
that every one of the bundled subframes will use the same precoding matrix,
and You does not teach the UE receiving an indication regarding which of
the repetitions, together with a reference signal, will use a first precoder.
Appeal Br. 15 (emphases omitted). Appellant further argues that the You
reference teaches the opposite of “UE “receiv[ing] an indication that the UE
can assume that a first subset of the repetitions of the physical channel and a
reference signal will use a first precoder” because the You reference still
only refers to all the bundled subframes. Appeal Br. 15 (emphasis omitted).
We disagree with Appellant and find that Appellant’s arguments
imply that the step of receiving an indication is from some specific
transmission, but the language of independent claim 1 does not specifically
disclose a transmission and a reception. The claim language broadly recites
“receiving an indication” which the You reference clearly discloses
receiving an indication. The Examiner cites to paragraphs 10, 12, and 147–
175 of the You reference which discloses alternate embodiments with fixed
and variable number of bundled subframes. Ans. 13–15.

6 Appellant identifies that paragraphs 61–63 of the Specification correspond
to the claimed invention without further description of the claimed reference
signal. Appeal Br. 4.

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The Examiner finds that the You reference discloses in paragraphs 10
and 12 that both data and reference signals are received in bundled
subframes. Final Act. 9; Ans. 13.
Appellant merely repeats the language of the claim and does not
persuasively refute the Examiner’s finding concerning the You reference.
Appeal Br. 14–16; Reply Br. 4–5.
We remind Appellant that merely reciting the language of the claim is
insufficient to show error in the Examiner’s rejection. See 37 C.F.R.
§ 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”).
Merely alleging that the references fail to support an obviousness rejection is
insufficient to persuade us of Examiner error. Attorney arguments and
conclusory statements that are unsupported by factual evidence are entitled
to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and Ex
parte Belinne, No. 2009-004693, slip op. at 7-8 (BPAI Aug. 10, 2009)
(informative), available at
http://www.uspto.gov/web/offices/dcom/bpai/its/fd09004693.pdf.
As a result, Appellant’s arguments do not show error in the
Examiner’s factual findings for representative independent claim 1, and we
sustain the rejection of representative independent claim 1. Appellant does
not set forth separate arguments for patentability of claims 2, 7–12, 17–21,
and 26–29. Appeal Br. 16. As a result, we sustain the rejection of claims 2,
7–12, 17–21, and 26–29 based upon anticipation.

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35 U.S.C. § 103
With respect to the obviousness rejection of claims 3, 13, 22, and 30,
Appellant contends that there is no teaching whatsoever that this
configuration is used to convey any information where claim 3 requires that
“determin[ing] that the physical channel was transmitted on a first antenna
port in a first subframe and on a second antenna port in a second subframe”
is “the indication that the UE can assume that the first subset of the
repetitions of the physical channel and the reference signal will use the first
precoder.” Appeal Br. 17.
The Examiner finds that the Kim reference in para. 92 discloses “the
system a first subframe is transmitted through a first antenna and a second
subframe is transmitted through the second antenna (see paragraph 0092).”
Final Act. 12; Ans. 16. The Examiner further provides a response regarding
a “teaching away” argument (Ans. 16), but we find no teaching away
argument in Appellant’s Brief.
Although we agree that the Kim reference discloses transmissions
on first antenna and second antenna, the Examiner has not identified any
teaching or suggestion regarding the claimed “circuitry is configured to
receive the indication . . . configured to: determine that the physical channel
was transmitted on a first antenna port in a first subframe and on a second
antenna port in a second subframe.” Moreover, the Examiner concludes that
“to modify You as suggested by Kim to transmit different subframes using
different antennas in order to reduce the effect of the interference in the
communication system,” but the Examiner does not identify a teaching or
suggestion to “determine that the physical channel was transmitted on a first
antenna port in a first subframe and on a second antenna port in a second
subframe.” As a result, we find the Examiner has not set forth the required
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factual findings are to support the conclusion of obviousness, and we cannot
sustain the obviousness rejection of dependent claims 3, 13, 22, and 30.
With respect to dependent claims 4, 14, 23, and 31, Appellant relies
upon the arguments advanced with respect to the representative independent
claim 1 and does not set forth a separate arguments for patentability. Appeal
Br. 17–18. Because we found no error in the Examiner’s finding of
anticipation of representative independent claim 1, Appellant has not shown
error in the Examiner’s factual findings or conclusion of obviousness of
dependent claims before, 14, 23, and 31.
CONCLUSION
The Examiner’s decision to reject claims 1–32 is AFFIRMED IN
PART.
Appeal 2019-002563
Application 15/223,453
19
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 11, 21,
22, 26, 27,
28, 29, 30,
32
101 Eligibility 1, 11, 21,
22, 26, 27,
28, 29, 30,
32

1, 2, 7–12,
17–21, 26–
29
102(a)(2) You 1, 2, 7–12,
17–21, 26–
29

3, 13, 22, 30 103 You, Kim 3, 13, 22, 30
4, 14, 23, 31 103 You, Wang 4, 14, 23, 31
Overall
Outcome
1, 2, 4, 7–
12, 14, 17–
23, 26–32
3, 13
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 IN PART