Ex Parte WENTINK et al

Patent Trial and Appeal Board

Mar 13, 2017

14184698 (P.T.A.B. Mar. 13, 2017)

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.
14/184,698 02/19/2014 Maarten Menzo WENTINK 131781US02 1919
15055 7590 03/15/2017
Patterson & Sheridan, L.L.P.
Qualcomm
24 Greenway Plaza, Suite 1600
Houston, TX 77046
EXAMINER
GUADALUPE CRUZ, AIXA AMYR
ART UNIT PAPER NUMBER
2466
NOTIFICATION DATE DELIVERY MODE
03/15/2017 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):
qu alcomm @ pattersonsheridan .com
PAIR_eOfficeAction@pattersonsheridan.com
ocpat_uspto@qualcomm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MAARTEN MENZO WENTINK and ALFRED ASTERJADHI
Appeal 2016-0083 801
Application 14/184,698
Technology Center 2400
Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and
GARTH D. BAER, Administrative Patent Judges.
BAER, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify Qualcomm Incorporated as the real party in interest.
App. Br. 3.
Appeal 2016-008380
Application 14/184,698
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner’s final rejection of claims 1—32, which are all the pending claims.
App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
BACKGROUND
A. The Invention
Appellants’ invention is directed to a method and apparatus for
“indicating a type of response for acknowledging a protocol data unit.”
Abstract. Claim 1 is representative and reproduced below, with emphasis
added to the disputed elements:
1. An apparatus for wireless communications, comprising:
a receiver configured to receive a physical layer
convergence protocol (PLCP) protocol data unit (PPDU) which
is not intended for the apparatus; and
a processing system configured to:
determine a deferral time based on at least one bit in a
PLCP header of the PPDU, wherein the at least one bit
indicates a type of response to be sent by an intended recipient
of the PPDU; and
defer transmission of a signal based on the determined
deferral time.
Appeal Br. 13 (Claims App.).
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Application 14/184,698
B. The Rejections on Anneal
The Examiner rejects claims 1, 2, 4—12, 14—22, and 24—32 under
35 U.S.C. § 102 as anticipated by Wang (US 2013/0301569 Al; Nov. 14,
2013). Final Act. 5.
The Examiner rejects claims 3,13, and 23 under 35 U.S.C. § 103 as
unpatentable over Wang, in view of Benveniste (US 7,940,688 Bl; May 10,
2011). Final Act. 15.
ANALYSIS
A. Anticipation Rejection of Claims E 2, 4—12, 14—22, and 24—32
Appellants argue Wang is not prior art under 35 U.S.C. § 102(a)(2).
See App. Br. 8. More specifically, Appellants argue Wang was filed on May
9, 2013, which is after the priority date of Appellants’ patent application
(i.e., February 20, 2013), and thus, any portion of Wang that is not directly
supported by disclosures of the provisional applications to which Wang
claims priority (herein “Wang provisional applications”) cannot be cited as
prior art against Appellants’ patent application. See App. Br. 7—8; see also
Reply Br. 2. According to Appellants, the portions of Wang cited by the
Examiner (i.e., paragraphs 80-81, 87—89, and 94) are not directly supported
by any portion of the Wang provisional applications, including the portions
of the Wang provisional applications also cited by the Examiner (i.e.,
paragraphs 69, 73—74 and 78—79 of provisional Application No. 61/646,040
(“Wang ’040”); paragraphs 78 and 82—85 of provisional Application No.
61/669,390 (“Wang ‘390”); paragraphs 94—95 and 99—102 of provisional
Application No. 61/699,531 (“Wang ’531”); and paragraphs 89-90 and 101—
104 of provisional Application No. 61/724,466 (“Wang ’466”). See App.
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Application 14/184,698
Br. 8-10; see also Reply Br. 3—6. Because the cited portions of Wang are
not supported by the Wang provisional applications, as argued by
Appellants, the rejection over Wang is improper. See App. Br. 7; see also
Reply Br. 2.
We do not find Appellants’ argument persuasive. We agree with (and
Appellants do not actually dispute) the Examiner’s findings that paragraphs
80-81, 87—89, and 94 of Wang teach the aforementioned limitation of claim
1. See Final Act. 5; see also Ans. 14. Thus, the sole disputed issue in this
appeal is whether Wang is prior art under 35 U.S.C. § 102(a)(2). For the
reasons discussed below, we agree with the Examiner’s finding that Wang is
prior art under 35 U.S.C. § 102(a)(2). See Ans. 15—17.
35 U.S.C. § 102 states:
(a) NOVEFTY; PRIOR ART.—A person shall be entitled to a
patent unless—
(2) the claimed invention was described ... in an application
for patent published . . . under section 122(b), in which the . . .
application . . . names another inventor and was effectively filed
before the effective filing date of the claimed invention.
(d) PATENTS AND PUBLISHED APPLICATIONS
EFFECTIVE AS PRIOR ART.—For purposes of determining
whether . . . [an] application for patent is prior art to a claimed
invention under subsection (a)(2), such . . . application shall be
considered to have been effectively filed, with respect to any
subject matter described in the... application—
(2) if the... application for patent is entitled to claim a right
of priority under section 119 . . . based upon 1 or more prior
filed applications for patent, as of the filing date of the earliest
such application that describes the subject matter.
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Appeal 2016-008380
Application 14/184,698
35 U.S.C. § 102 (emphasis added).
A patent application is entitled to claim a right of priority to a
provisional application under 35 U.S.C. § 119(e) only if the provisional
application provided adequate written description under 35 U.S.C. § 112,
11. New Railhead Mfg. v. Vermeer Mfg., 298 F.3d 1290, 1294 (Fed. Cir.
2002). The prior application itself must describe an invention in sufficient
detail to reasonably convey to one skilled in the art “that the inventor had
possession of the claimed subject matter as of the filing date.” Ariad
Pharms., Inc. v. Eli Lilly & Co., 598 F.3d. 1336, 1351 (Fed. Cir. 2010).
Based upon the knowledge of a person skilled in the relevant art, disclosure
of a species can provide sufficient written description support for a later
filed claim directed to a “very similar and understandable genus.” Trading
Techs. Intern., Inc. v. eSpeed, Inc., 595 F.3d 1340, 1361 (Fed. Cir. 2010)
(holding that a patent could claim priority to a previously-filed provisional
application because the provisional application’s disclosure of “a single click
of a computer mouse” provided written description support for the patent’s
claimed “single action of a user input device”).
Wang ’040 discloses a data/acknowledgment (“ACK”) session
between an originator and a recipient, where the originator transmits a data
packet to the recipient and further stores an indication in the data packet that
the expected ACK transmission is a short acknowledgment (“S-ACK”), and
where the recipient transmits an S-ACK frame that is a Physical Layer
Convergence Protocol (“PLCP”) protocol data unit (“PPDU”) if the
transmitted data packet is correctly received and further stores an indication
identifying the S-ACK within a PLCP header of the S-ACK frame. See
Wang ’040 Tflf 63, 68—70. Wang ’040 further discloses that the indication in
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Application 14/184,698
the originator’s data packet is stored within a signal (“SIG”) field of the data
packet, and that the indication in the recipient’s S-ACK is stored within a
short training field (“STF”) of the S-ACK frame. See Wang ’040 ]Hf 78, 79.
As found by the Examiner, Wang ’040 further discloses: (a) an Extended
Inter-frame Space (“EIFS”) is utilized to defer if a frame is detected but not
correctly received, where the EIFS defines an amount of time to defer
transmission of a data frame; and (b) if an unintended recipient fails to
demodulate a received data packet, the unintended recipient can detect an
S-ACK STF field, identify an S-ACK frame, and defer accordingly. See
Ans. 15 (citing Wang ’040 73, 74).2
Thus, Wang ’040 (and the other Wang provisional applications)
disclose the feature of a processing system configured to determine a
deferral time based on at least one bit in a PCLP header of a PPDU, where
the at least one bit indicates a response (i.e., an S-ACK). We agree with the
Examiner (see Ans. 15—17) that this disclosure provides written description
support for the “very similar and understandable” claimed feature of a
processing system configured to determine a deferral time based on at least
one bit in a PLCP header of the PPDU, wherein the at least one bit indicates
a type of response to be sent by an intended recipient of the PPDU, as
recited in claim 1. See Trading Techs., 595 F.3d at 1361. Therefore, we
agree with the Examiner’s finding that Wang is entitled to claim priority
under 35 U.S.C. § 119(e) to the Wang provisional applications, and,
2 Wang ’390, Wang ’531, and Wang ’466 similarly disclose the
aforementioned features. See Wang ‘390 H 71, 77—79, 82—83, 87—88;
Wang ’531 H 87, 9A-96, 99-100, 10^U105; Wang ’466 H 89, 98-100, 103—
104, 108-109.
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Application 14/184,698
accordingly, we also agree with the Examiner’s finding that Wang is prior
art under 35 U.S.C. § 102(a)(2).
Thus, we are not persuaded the Examiner erred in finding that Wang
teaches or suggests all the claim elements of independent claims 1, 11,21,
31, and 32. Accordingly, we sustain the Examiner’s rejection of
independent claims 1, 11, 21, 31, and 32 under 35 U.S.C. § 102(a)(2). We
further sustain the rejection of dependent claims 2, 4—10, 12, 14—20, 22, and
24—30, not argued separately. See App. Br. 10-11.
B. Obviousness Rejection of Claims 3,13, and 23
Appellants reference their argument regarding claims 1,11, and 21,
and further argue Benveniste fails to cure Wang’s deficiency. See App.
Br. 12; see also Reply Br. 7. As discussed above, we conclude that the
Examiner did not err in finding that Wang teaches or suggests all the claim
elements of independent claims 1,11, and 21. Accordingly, we also sustain
the Examiner’s rejection of claims 3, 13, and 23 under 35 U.S.C. § 103.
DECISION
We affirm the Examiner’s rejection of claims 1, 2, 4—12, 14—22, and
24—32 under 35 U.S.C. § 102(a)(2).
We affirm the Examiner’s rejection of claims 3,13, and 23 under
35 U.S.C. § 103.
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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