Ex Parte Johnson et alDownload PDFPatent Trial and Appeal BoardSep 29, 201411693974 (P.T.A.B. Sep. 29, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/693,974 03/30/2007 Phillip Marc Johnson PU06 0689US1 / 2002-463 1197 54472 7590 09/30/2014 COATS & BENNETT/SONY ERICSSON 1400 CRESCENT GREEN SUITE 300 CARY, NC 27518 EXAMINER GEORGEWILL, OPIRIBO ART UNIT PAPER NUMBER 2643 MAIL DATE DELIVERY MODE 09/30/2014 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PHILLIP MARC JOHNSON and WILLIAM O. CAMP JR. ____________ Appeal 2012-006073 Application 11/693,9741 Technology Center 2600 ____________ Before BRADLEY W. BAUMEISTER, DAVID M. KOHUT, and JENNIFER L. McKEOWN, Administrative Patent Judges. McKEOWN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–16. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention generally is directed to power control in a mobile communication system and more specifically to a method and 1 The real party in interest is Sony Ericsson Mobile Communications AB. Appeal 2012-006073 Application 11/693,974 2 apparatus of a closed loop power control for a transmitting station that is capable of operating in a compressed mode. See Spec. ¶1. Claim 1 is illustrative and is reproduced below with disputed limitations italicized: 1. A method of closed loop power control in a communication station, said method comprising; measuring the signal strength of a received signal transmitted from a transmitting station; filtering the signal strength measurements in a power control filter to generate filtered signal strength measurements; generating periodic power control signals based on the filtered signal strength measurements and transmitting said periodic power control signals to the transmitting station to control the transmit power level of the transmitting station; and adapting the power control filter when the transmitting station is operating in a burst mode to compensate for intermittent transmission by the transmitting station in the burst mode by varying a length of the power control filter. THE REJECTIONS The Examiner rejected claims 1, 5–9, and 13–16 under 35 U.S.C. § 103(a) as unpatentable over Oh (US 2004/0166884 Al; Aug. 26, 2004), Khandekar (US 2006/0135080 Al; June 22, 2006), and Malladi (US 2004/161029 Al; Aug. 19, 2004). Ans. 5–9. The Examiner rejected claims 2–4 and 10–12 under 35 U.S.C. § 103(a) as unpatentable over Oh, Khandekar, Malladi, and Betts (US 2007/0080699 Al; Apr. 12, 2007). Ans. 9–11. Appeal 2012-006073 Application 11/693,974 3 THE OBVIOUSNESS REJECTION OVER OH, KHANDEKAR, AND MALLADI The Examiner finds that Oh, Khandekar, and Malladi combined teach the limitations of claim 1. Ans. 5–7. The Examiner summarizes that Oh teaches a closed loop power control system which is combined with the power control filter of Khandekar that Khandekar teaches that different length of the power control filter are used for different purposes including accuracy (compensating) during sporadic transmission (intermittent transmission) and further combined with Malladi's adapting of the power control filter. Ans. 13. On the other hand, Appellants contend that the cited combination of prior art fails to teach adapting the power control filter when the transmitting station is operating in a burst mode to compensate for intermittent transmission by the transmitting station in the burst mode by varying a length of the power control filter. App. Br. 5; Reply Br. 2–3. Specifically, Appellants assert that Khandekar “does not disclose adapting a filter for signal strength measurements when the transmitting station is in a burst mode” and that “Malladi does not concern burst mode or compressed mode . . .” App. Br. 6. Appellants additionally maintain that a skilled artisan would not have combined the cited combination of prior art to arrive at the invention of claim 1. App. Br. 6. ISSUES Did the Examiner err in finding that Oh, Khandekar, and Malladi together disclose “adapting the power control filter when the transmitting station is operating in a burst mode to compensate for intermittent Appeal 2012-006073 Application 11/693,974 4 transmission by the transmitting station in the burst mode by varying a length of the power control filter,” as recited in claim 1? Is the Examiner’s reason to combine the teachings of these references supported by articulated reasoning with some rational underpinning to justify the Examiner’s obviousness conclusion? ANALYSIS Claims 1, 5–9, and 13–16 Based on the record before us, we find that the Examiner did not err in rejecting claim 1 as obvious in view of Oh, Khandekar, and Malladi. Appellants argue that none of the references, alone or in combination, teaches or suggests that in order to compensate for intermittent transmissions by a transmitting station operating in the burst mode, the power control filter for filtering the signal strength measurements should be adapted. Reply Br. 2. We disagree. Namely, the Examiner relies on Khandekar, as modified by Malladi’s teaching for varying the length of the power control filter, to teach this limitation. Specifically, the Examiner finds that Khandekar describes selecting the length of a filter based on power control to achieve timeliness and accuracy. Ans. 12 (citing Khandekar ¶37), 7 (citing Khandekar ¶48); see also Khandekar (“The filter selected can be based on criteria such as purpose (e.g., scheduling, power control and data rate, as described herein . . .)”(Emphasis added)). Id. at ¶37. In other words, a particular filter may be selected based on power control objectives. Appeal 2012-006073 Application 11/693,974 5 Further, as the Examiner identifies, Khandekar also expressly describes that this also takes place during sporadic data transmissions (i.e. burst mode). Ans. 12; see also Khandekar ¶46. While Khandekar does not expressly recite “to compensate for intermittent transmission by the transmitting station in the burst mode,” Khandekar describes that this filter selection, which may be based on power control objectives, also occurs “even when the mobile terminal sporadically transmits data.” Khandekar ¶46. As such, Khandekar at least suggests the claimed limitation to a skilled artisan. See Ans. 6–7. Furthermore, it would be immaterial if the ordinarily skilled artisan failed to recognize that controlling the power during burst mode would provide a degree of compensation. It is sufficient that controlling the power in burst mode, as disclosed by Khandekar, does in fact provide at least some compensation. “It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.” In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (citations omitted). We also find unconvincing Appellants’ argument that Malladi’s equalizer is not a power control filter. Reply Br. 4. Namely, as the Examiner finds, Malladi’s equalizer can be helpful to optimize power. See Ans. 13 (citing Malladi’s ¶13). The Examiner also notes that “equalization is known in the art to be analogous to compensation.”2 Ans. 14. Appellants fail to persuasively respond to these findings. We also find unpersuasive Appellants’ remaining arguments that a particular reference fails to teach a limitation when the Examiner does not 2 We understand the Examiner’s intended position to be that equalization was known in the art to be synonymous to compensation. Appeal 2012-006073 Application 11/693,974 6 rely on that reference for the limitation. For example, Appellants assert Oh fails to teach a power control filter (App. Br. 5) or a compressed mode (Reply Br. 3). The Examiner does not rely on Oh for these features. Ans. 6–7, 12. Similarly, the Examiner does not rely on Malladi for teaching a burst mode. Ans. 13. As such, Appellants’ arguments that Malladi fails to teach this limitation is unavailing. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). We are also unconvinced that the Examiner failed to support the obviousness conclusion by articulated reasoning with some rational underpinning. Appellants contend that a skilled artisan would not combine Malladi because Malladi's filter operates on different data (received signal v. signal strength measurements), performs a different function (compensating for delay spread v. compensating for bursty transmissions), and is used for a different purpose (equalization v. power control), as compared to the power control filter of claim 1. . . . App. Br. 6–7. Further, Appellants argue none of the references are concerned with “the problem of closed loop power control commands from a receiving station interfering with burst mode operation of a transmitting station.” App. Br. 7; see also Reply Br. 2–4. As the Examiner points out though, Malladi teaches that the varying equalizer length can be used to optimize performance of a variety of systems and conditions. Ans. 7 (citing Malladi ¶37). Malladi also expressly states that the equalizer may also help to optimize power. Malladi ¶37. We agree Appeal 2012-006073 Application 11/693,974 7 with the Examiner that it would have been obvious then to a skilled artisan to modify Khandekar’s power filter (even when there is sporadic data transmissions) to vary filter length to optimize performance of a variety of systems and conditions, thereby optimizing power. See Ans. 5–7. Therefore, we agree with the Examiner that Oh, Khandekar, and Malladi together render obvious claim 1, as well as claims 5–9, and 13–16, not argued separately. Accordingly, we sustain the rejection of these claims. THE OBVIOUSNESS REJECTION BASED ON OH, KHANDEKAR, MALLADI, AND BETTS Claims 2–4 and 10–12 Appellants argue that “duty factor” and “a burst frequency of said received signal,” as recited in claims 2 and 4 respectively, are defined in the Specification. More specifically, Appellants contend that they do not refer to the wave characteristics of the pulsed RF signals, which is taught by Betts. App. Br. 8. For example, the Specification defines a “[d]uty factor of a burst mode [as] what percentage of the time slots in a radio frame is allocated as “on” periods and what percentage of the time slots in a radio frame is allocated as “off” periods.” App. Br. 8 (citing Spec. ¶¶17–18). The Examiner, on the other hand, finds that Betts teaches varying power control filter length based on RF pulse signal characteristics. Ans. 10. The Examiner also notes that “[i]t [was] conventionally known that duty factor is a characteristic of a pulsed RF signal.” Ans. 10. And the Examiner explains that because duty factor and burst frequency can be “estimated from the derived signal, and as such are characteristics of the received signal (RF pulse signal). . . ,” Betts teaches the claimed limitations. Ans. 17. Appeal 2012-006073 Application 11/693,974 8 Appellants fail to persuasively explain why allocation of on and off frames, as described in the Specification, is not a characteristic of a pulsed RF signal. As such, we agree with the Examiner that Betts teaches these limitations. Therefore, based on the record before us, we find the Examiner did not err in rejecting claims 2–4 and 10–12 as obvious by the cited prior art and, accordingly, we sustain the rejections. CONCLUSION The Examiner did not err in rejecting claims 1–16. DECISION The Examiner’s decision rejecting claims 1–16 is affirmed. 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 tj Copy with citationCopy as parenthetical citation