Ex Parte Dominique et al

Board of Patent Appeals and Interferences

Jul 11, 2012

10259753 (B.P.A.I. Jul. 11, 2012)

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.
10/259,753 09/30/2002 Francis Dominique 29250-000678/US 6065
7590 07/11/2012
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. Box 8910
Reston, VA 20195
EXAMINER
JOSEPH, JAISON
ART UNIT PAPER NUMBER
2611
MAIL DATE DELIVERY MODE
07/11/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte FRANCIS DOMINIQUE, MARTIN HOWARD MEYERS,
LEONARD PIAZZI, and ALEXANDRO SALVARANI
____________

Appeal 2010-004371
Application 10/259,753
Technology Center 2600
____________

Before JEAN R. HOMERE, THU A. DANG, and GREGORY J.
GONSALVES, Administrative Patent Judges.

GONSALVES, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004371
Application 10/259,753

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-5 and 7-24 (App. Br. 2). Claim 6 was cancelled (Id.). We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The Invention
Exemplary Claim 1 follows:
1. A method of detecting discontinued transmission
(DTX) frames in data frames received over a link or channel,
the method comprising the steps of:

calculating a data rate of a channel over which data
frames are being transmitted;

setting a DTX threshold based on the data rate; and

determining whether a received data frame is a DTX
frame based on the DTX threshold.

The Examiner rejected claims 1-5 and 7-24 under 35 U.S.C. § 103(a)
as being unpatentable over Chheda (U.S. 6,804,530 B2) and Sindhushayana
(U.S. 7,051,268 B1) (Ans. 3-7).

FACTUAL FINDINGS
We adopt the Examiner’s factual findings as set forth in the Answer
(Ans. 3, et seq.).

Appeal 2010-004371
Application 10/259,753

3
ISSUE
Appellants’ responses to the Examiner’s positions present the
following issue:
Did the Examiner err in finding that the combination of Chheda and
Sindhushayana teaches or suggests “setting a DTX threshold based on the
data rate”, as recited in independent claim 1, and as similarly recited in
independent claims 9 and 18?

ANALYSIS
We disagree with Appellants’ assertions regarding the Examiner’s
rejection of the claims set forth in the Appeal Brief and Reply Brief. We
adopt as our own (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken and (2) the reasons set forth by the
Examiner in the Answer (Ans. 3-10) in response to arguments made in
Appellants’ Appeal Brief and Reply Brief. We concur with the conclusion
reached by the Examiner. We highlight and address certain findings and
arguments below.
Appellants contend that the Examiner erred in rejecting independent
claims 1, 9, and 18 as obvious because neither Chheda, nor Sindhushayana,
either singly or in combination with each other, teach or suggest “setting a
DTX threshold based on the data rate . . .” (App. Br. 6 (emphasis omitted)).
In support of their contention, Appellants argue that the threshold SINR
value shown in Fig. 2 and described at lines 10-24 of Sindhushayana “is not
a function of a data rate, or otherwise based on a calculated data rate . . .”
(App. Br. 7-8 (emphasis omitted)).
Appeal 2010-004371
Application 10/259,753

4
As the Examiner finds, however, Sindhushayana teaches determining
a data rate and “‘[d]etermining the quality metric threshold in accordance
with the data rate . . . ’” (Ans. 8, quoting Sindhushayana, col. 9, ll. 38-40).
And as the Examiner further finds, Chheda teaches “determining whether a
received data frame is a DTX frame based on the quality metric threshold . .
.” (Id. at 7, citing Chheda, Abstract). We find no error in the Examiner’s
conclusion that it would have been obvious to one of ordinary skill in the art
to set a DTX threshold as taught by Chheda based on the data rate as taught
by Sindhushayana (See Id. at 8). That is, the skilled artisan would “be able
to fit the teachings of multiple patents together like pieces of a puzzle” since
the skilled artisan is “a person of ordinary creativity, not an automaton.”
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007).
Appellants also contend “that there is no motivation for a person of
ordinary skill in the art to combine Chheda with Sindhushayana” (App. Br.
8). In support of their contention, Appellants argue that “Chheda is a
method of detecting DTX frames, whereas Sindhushayana is a method of
reducing power consumption for a decoder” (Id.(emphasis omitted)). But
the Examiner did not suggest that the algorithm for reducing power
consumption of a decoder in Sindhushayana should be bodily incorporated
into Chheda’s system (See Ans. 4). We find no error in the Examiner’s
conclusion that one would be motivated to use Sindhushayana’s teachings of
a threshold based on data rate to improve the detection of DTX frames in
Chheda’s system (See Ans. 4). That is, the issue here is not whether the
algorithm for reducing power consumption of a decoder in Sindhushayana
could be bodily incorporated into Chheda’s system, but rather whether a
person of ordinary skill, upon reading Sindhushayana, would be discouraged
Appeal 2010-004371
Application 10/259,753

5
from using a threshold based on data rate to Chheda’s detection of DTX
frames.
Accordingly, we find no error in the Examiner’s obviousness
rejections of independent claims 1, 9, and 18 or claims 2-5, 7-8, 10-17, and
19-24 dependent therefrom because Appellants did not set forth any separate
patentability arguments for the dependent claims (See App. Br. 9).

DECISION
We affirm the Examiner’s decision rejecting claims 1-5 and 7-24 as
obvious.
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

tkl