Ex Parte Novlan et al

Patent Trial and Appeal Board

Jan 31, 2019

15094975 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/094,975
106809 7590
Docket Clerk - SAMS
P.O. Drawer 800889
Dallas, TX 75380
04/08/2016
02/04/2019
FIRST NAMED INVENTOR
Thomas David Novlan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2015.04.009.SRO 1023
EXAMINER
MANOHARAN,MUTHUSWAMYGANAPATHY
ART UNIT PAPER NUMBER
2645
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
patents@munckwilson.com
munckwilson@gmail.com
patent.srad@samsung.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS DAVID NOVLAN and BOON LOONG NG
Appeal2018-004239
Application 15/094,975
Technology Center 2600
Before ROBERT E. NAPPI, JOHN A. JEFFERY, and
MATTHEW J. McNEILL, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellants' invention pertains to user equipment (UE) that includes a
transceiver configured to receive a received signal strength indicator (RSSI)
measurement timing configuration (RMTC) from an eNodeB ( eNB) over an
unlicensed spectrum in a licensed assisted access (LAA). The UE also
1 Appellants identify the real party in interest as Samsung Electronics Co.,
Ltd. App. Br. 3.
Appeal2018-004239
Application 15/094,975
includes a processor that can generate (1) an average RSSI measurement,
and (2) a channel occupancy measurement report including a channel
occupancy ratio. The transceiver can also transmit an RSSI measurement
report including items (1) and (2) to the eNB. See generally Abstract.
Claim 1 is illustrative:
1. A user equipment (UE), the UE comprising:
a transceiver configured to receive, from an eNodeB (eNB), a
received signal strength indicator (RSSI) measurement timing configuration
(RMTC) over an unlicensed spectrum in a licensed assisted access (LAA);
and
at least one processor configured to generate, in accordance with the
received RMTC, an average RSSI measurement and a channel occupancy
measurement report including a channel occupancy ratio; and
the transceiver is further configured to transmit, to the eNB, an RSSI
measurement report including the average RSSI measurement and the
channel occupancy measurement report.
THE REJECTIONS
The Examiner rejected claims 1--4, 6, 10-13, 15, and 19 under 35
U.S.C. § I02(a)(2) as anticipated by Vajapeyam (US 2016/0227427 Al;
published Aug. 4, 2016; filed Jan. 22, 2016). Final Act. 2-3. 2
The Examiner rejected claims 5 and 14 under 35 U.S.C. § 103 as
unpatentable over Vajapeyam and Seo (US 2015/0029885 Al; published Jan.
29, 2015). Final Act. 3--4.
2 Throughout this opinion, we refer to (1) the Final Rejection mailed March
17, 2017 ("Final Act."); (2) the Appeal Brief filed September 12, 2017
("App. Br."); (3) the Examiner's Answer mailed January 12, 2018 ("Ans.");
and (4) the Reply Brief filed March 12, 2018 ("Reply Br.").
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Application 15/094,975
The Examiner rejected claims 7, 16, and 20 under 35 U.S.C. § 103 as
unpatentable over Vajapeyam and Y erramalli (US 2015/0256305 Al;
published Sept. 10, 2015). Final Act. 4.
The Examiner rejected claims 8, 9, 17, and 18 under 35 U.S.C. § 103
as unpatentable over Vajapeyam and Yum (US 2016/0065332 Al; published
Mar. 3, 2016). Final Act. 5.
THE ANTICIPATION REJECTION
The Examiner finds that V aj apeyam discloses a UE with every recited
element of claim 1 including, among other things, a processor configured to
generate an average RS SI measurement and channel occupancy
measurement report. Final Act. 2.
Appellants argue that the relied-upon portions of Vajapeyam are not
prior art to the present application that was filed on April 8, 2016 and claims
priority to a provisional application filed in April 10, 2015. App. Br. 10-17;
Reply Br. 2-5. Although Appellants acknowledge that Vajapeyam's
corresponding provisional application was filed before the filing date of
Appellants' provisional application, Appellants nonetheless contend that
Vajapeyam's provisional application does not support at least the relied-
upon subject matter in the rejection and, therefore, this subject matter is not
prior art to the present application. App. Br. 11-15; Reply Br. 2-5.
ISSUE
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Vajapeyam anticipates all recited limitations? This issue turns on
whether V aj apeyam qualifies as prior art to the claimed invention.
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Application 15/094,975
ANALYSIS
Claims 1, 3, 4, 6, 10---13, 15, and 19
The present application was filed April 8, 2016, and claims priority to
six provisional applications, the earliest of which is U.S. Provisional
Application 62/146, 107 filed on April 10, 2015 ("' 107 provisional
application").
The Vajapeyam reference is a U.S. application that published on
August 4, 2016, but was filed on January 22, 2016 that is before the filing
date of the present application, but after Appellants' '107 provisional
application filing date. Vajapeyam, however, is based on U.S. Provisional
Application 62/109,921 ("'921 provisional application"), filed January 30,
2015 that is before the' 107 provisional application's filing date.
Notably, if the present application and the' 107 provisional adequately
provide (1) a written description of the subject matter of Appellants' claimed
invention, and (2) an enabling disclosure to permit ordinarily skilled artisans
to make and use the claimed invention, then Appellants would be entitled to
the date of the '107 provisional application. In that event, the Examiner
would have to show similar support for the relied-upon subject matter in the
Vajapeyam reference and its '921 provisional application to prove that the
subject matter qualifies as prior art to the claimed invention. See New
Railhead Mfg., L.L.C. v. Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir.
2002); see also MANUAL OF PATENT EXAMINING PROCEDURE (MPEP) §§
211.05(I)(A), 706.02(VI)(C) (9th ed. Rev. 08.2017, Jan. 2018).
But Appellants have not shown such an entitlement to the '107
provisional application's filing date on this record ( or any other provisional
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Appeal2018-004239
Application 15/094,975
application for that matter), nor will we presume as much, for we have no
basis on this record for doing so. See Dynamic Drinkware, LLC v. Nat'!
Graphics, Inc., 800 F.3d 1375, 1380 (Fed. Cir. 2015) ("[B]ecause the PTO
does not examine priority claims unless necessary, the Board has no basis to
presume that a reference patent is necessarily entitled to the filing date of its
provisional application.").
Accordingly, absent evidence to the contrary, Appellants are entitled
to only the filing date of the present application: April 8, 2016. Accord Ans.
3 (finding that Appellants are entitled to only the April 8, 2016 filing date of
the present application because Appellants failed to provide the support for
the claimed invention in the '107 provisional application). That Appellants
failed to respond to this crucial finding by the Examiner is telling in this
regard. See Reply Br. 2-7.
Therefore, because Vajapeyam's filing date of January 22, 2016
predates that of the present application, Vajapeyam qualifies as prior art to
the claimed invention. And because Appellants do not dispute the
Examiner's reliance on at least Vajapeyam's paragraph 51 in the rejection
(Final Act. 2), apart from its alleged failure to qualify as prior art (see App.
Br. 11-17), Appellants do not persuasively rebut the Examiner's reliance on
at least that subject matter in the rejection.
Because of these unrebutted findings, whether Vajapeyam's '921
provisional application supports the relied-upon subject matter is irrelevant
here, for Vajapeyam's filing date predates that of the present application as
noted above. Appellants' arguments in this regard are, therefore, inapposite.
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Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 3, 4, 6, 10-13, 15, and 19 not argued separately with
particularity.
Claim 2
We also sustain the Examiner's rejection of claim 2 reciting, in
pertinent part, that the channel occupancy ratio is determined based on an
amount of occupied measurement time units (MTU s) exceeding at least one
threshold for the average RSSI measurement, where the threshold is
configured by a higher layer signal from the eNB.
In the rejection, the Examiner cites Vajapeyam's paragraph 51 for
anticipating this limitation. Final Act. 3. But because Appellants do not
dispute the Examiner's reliance on this paragraph in the rejection apart from
its alleged failure to qualify as prior art (see App. Br. 18-19), Appellants do
not persuasively rebut the Examiner's reliance on at least that subject matter
in the rejection for the reasons noted previously.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 2.
THE OBVIOUSNESS REJECTIONS
We also sustain the Examiner's obviousness rejections of claims 5, 7-
9, 14, 16-18, and 20. Final Act. 3-5. Because these rejections are not
argued separately with particularity, we are not persuaded of error in these
rejections for the reasons previously discussed.
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Application 15/094,975
CONCLUSION
The Examiner did not err in rejecting (1) claims 1--4, 6, 10-13, 15,
and 19 under§ 102, and (2) claims 5, 7-9, 14, 16-18, and 20 under§ 103.
DECISION
We affirm the Examiner's decision to reject claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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