Telefonaktiebolaget L M Ericsson (publ)Download PDFPatent Trials and Appeals BoardMar 18, 20212019006986 (P.T.A.B. Mar. 18, 2021) Copy Citation 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. 14/962,503 12/08/2015 Amitav Mukherjee 3000-330 1063 27820 7590 03/18/2021 WITHROW & TERRANOVA, P.L.L.C. 106 Pinedale Springs Way Cary, NC 27511 EXAMINER YOUNG, STEVE R ART UNIT PAPER NUMBER 2477 NOTIFICATION DATE DELIVERY MODE 03/18/2021 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 AMITAV MUKHERJEE, JUNG-FU CHENG, SOROUR FALAHATI, HAVISH KOORAPATY, DANIEL LARSSON, and YU YANG Appeal 2019-006986 Application 14/962,503 Technology Center 2400 Before ST. JOHN COURTENAY III, LARRY J. HUME, and PHILLIP A. BENNETT, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision rejecting claims 1, 2, 4, 6–27, 29–35, 41, and 42, which are all the claims pending in the application. Appellant has canceled claims 3, 5, 28, and 36–40. See Appeal Br. 13 et seq. (Claims App.). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Telefonaktiebolaget LM Ericsson. Appeal Br. 1. Appeal 2019-006986 Application 14/962,503 2 STATEMENT OF THE CASE2 The claims are directed to a method and system relating to preemptive retransmission of a transport block in successive subframes on, e.g., a Listen-Before-Talk (LBT) cell. See Spec. ¶ 19. Exemplary Claim Claim 1, reproduced below, is illustrative of the subject matter on Appeal (emphasis added to contested prior-art limitations): 1. A method of operation of a radio node of a cellular communications network, the radio node serving a Listen- Before-Talk, LBT, cell, comprising: transmitting a transport block in a first subframe on the LBT cell; and retransmitting the transport block in a second subframe, the second subframe being adjacent, in time, to the first subframe, wherein retransmitting the transport block in the second subframe comprises preemptively retransmitting the transport block in the second subframe according to a Hybrid Automatic Repeat Request, HARQ procedure using frequency resources within the second subframe that are different than frequency resources used for transmission of the transport block within the first subframe without first receiving an indication that retransmission of the transport block transmitted in the first subframe is needed when a channel on which the radio node is transmitting would have otherwise been released. Appeal Br. 13 (Claims App.). 2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed May 6, 2019); Reply Brief (“Reply Br.,” filed Sept. 24, 2019); Examiner’s Answer (“Ans.,” mailed Aug. 2, 2019); Final Office Action (“Final Act.,” mailed Dec. 5, 2018); and the original Specification (“Spec.,” filed Dec. 8, 2015). Appeal 2019-006986 Application 14/962,503 3 REFERENCES The prior art relied upon by the Examiner as evidence is: Name Reference Date Visotsky et al. (“Visotsky”) US 2008/0068979 A1 Mar. 20, 2008 Li et al. (“Li”) US 2013/0336267 A1 Dec. 19, 2013 Luo et al. (“Luo”) US 2015/0071220 A1 Mar. 12, 2015 Tabet et al. (“Tabet”) US 2015/0092645 A1 Apr. 2, 2015 Ro et al. (“Ro”) US 2015/0098490 A1 Apr. 9, 2015 Wei et al. (“Wei”) US 2015/0365830 A1 Dec. 17, 2015 Yang et al. (“Yang”) US 2016/0088642 A1 Mar. 24, 2016 Xiuchao Wu et al., “PMC: An Energy Efficient Event Transport Service For Wireless Sensor Network,” Proceedings of the IEEE ICC, 2006 (hereinafter “Wu”). REJECTIONS A. Claims 1, 2, 4, 6, 7, 12, 22–26, 29, 32–34, 41, and 42 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wu, Ro, and Visotsky. Final Act. 3. B. Claims 8–11 and 13–16 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wu, Ro, Visotsky, and Luo. Final Act. 14. C. Claims 17–20 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wu, Ro, Visotsky, Luo, and Tabet. Final Act. 18. D. Claims 21 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wu, Ro, Visotsky, Luo, and Li. Final Act. 21. Appeal 2019-006986 Application 14/962,503 4 E. Claims 27 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wu, Ro, Visotsky, Luo, and Wei. Final Act. 24. F. Claims 30, 31, and 35 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wu, Ro, Visotsky, and Yang. Final Act. 25. ISSUE Appellant argues (Appeal Br. 8–10; Reply Br. 2–3) the Examiner’s rejection of claim 1 under 35 U.S.C. § 103 as being obvious over the combination of Wu, Ro, and Visotsky is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a method of operation of a radio node of a cellular communications network that comprises, inter alia, the limitation of “retransmitting the transport block in a second subframe,” wherein “retransmitting the transport block in the second subframe comprises preemptively retransmitting the transport block in the second subframe according to a Hybrid Automatic Repeat Request, HARQ” as recited in claim 1, and as commensurately recited in claim 33? PRINCIPLES OF LAW The test for obviousness is what the combined teachings of the prior art would have suggested to the hypothetical person of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appeal 2019-006986 Application 14/962,503 5 During prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using “the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). ANALYSIS Based upon our review of the record, we find a preponderance of the evidence supports particular arguments advanced by Appellant with respect to claims 1, 2, 4, 6–27, 29–35, 41, and 42 for the specific reasons discussed below. We highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. The Examiner finds Wu teaches or suggests “retransmitting the transport block in a second subframe.” Final Act. 3 (citing Wu Section I, ¶ 5, Sec. III. B). The Examiner finds that Wu’s transmitting an event in a subsequent frame teaches or suggests “retransmitting the transport block in a second subframe.” Id. The Examiner concludes the claim term “transport block” does not exclude other data being transmitted along with it as long as the first transmitted data (i.e., Wu’s event) in the transport block is retransmitted. Ans. 29–30. Appeal 2019-006986 Application 14/962,503 6 Appellant contends the Examiner erred in mapping Wu’s event — instead of Wu’s packet containing the event data — to the recited “transport block.” Appeal Br. 8. Appellant argues Wu fails to teach retransmission of a packet and so does not teach or suggest the limitation in claim 1 of “retransmitting the transport block in a second subframe.” Appeal Br. 8. Appellant argues “Wu does teach transmitting different packets (e.g., Packeti, Packeti+l, and Packeti+2) in consecutive subframes. However, this is not the same as performing a retransmission of the same packet (e.g., Packeti) in consecutive subframes.” Id. We are persuaded by Appellant’s arguments,3 and agree that Wu does not retransmit the same data during its retransmission, because the data transmitted in the first subframe and data transmitted in the second subframe in Wu are not the same, i.e., the cited prior art combination does not teach or suggest that “the transport block” is retransmitted.” See Wu, Fig. 1. Although the Examiner maps the disputed claim term “transport block” to Wu’s event, Wu operates differently than the claimed invention by using a Pipelined Multiple Copies (PMC) technique in the context of a wireless sensor network that detects and transmits a sensor-detected event without use of Automated Repeat Request (ARQ) or Hybrid Automated Repeat Request (HARQ) techniques. See generally Wu 355 (Abstract), 357. Therefore, we are not persuaded the Examiner’s proffered mapping is 3 Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an administrative agency is at liberty to reach a decision based on “a single dispositive issue”). Appeal 2019-006986 Application 14/962,503 7 reasonable in light of the Specification and the disclosure of the PMC approach in Wu relied upon by the Examiner. See, e.g., Spec. 43 (Abstract). Because the Examiner has not fully developed the record to establish how and why Wu’s event, and not the data packet containing the sensor event reporting, teaches or suggests the recited “transport block,” we find some degree of speculation would be required to affirm the Examiner on this record. We decline to engage in such speculation. “A rejection . . . must rest on a factual basis . . . .” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. Therefore, we are constrained by the record before us to find the Examiner erred in concluding that the cited combination of Wu, Ro, and Visotsky renders obvious Appellant’s independent claim 1. Accordingly, we reverse Rejection A under § 103 of independent claim 1 and, for the same reasons, we also reverse Rejection A of remaining independent claim 33, which recites the contested limitation using similar language of commensurate scope. Because we have reversed the rejection of all independent claims on appeal, for the same reasons, we reverse the Examiner’s § 103 rejection of all dependent claims 2, 4, 6, 7, 12, 22–26, 29, 32, 34, 41, and 42, also rejected under Rejection A. Regarding the remaining dependent claims 8–11, 13–21, 27, 30, 31, and 35, rejected under § 103 Rejections B through F, the Examiner has cited additional references, but has not shown how any of these additional references overcome the deficiencies of the Wu, Ro, and Visotsky Appeal 2019-006986 Application 14/962,503 8 combination, as discussed above regarding Rejection A of independent claims 1 and 33. Therefore, we are constrained on this record to also reverse § 103 Rejections B through F of remaining dependent claims 8–11, 13–21, 27, 30, 31, and 35. CONCLUSION The Examiner erred with respect to obviousness Rejections A–F of claims 1, 2, 4, 6–27, 29–35, 41, and 42 under 35 U.S.C. § 103 over the cited prior art combinations of record, and we do not sustain the rejections. DECISION SUMMARY Claims Rejected 35 U.S.C § References/Basis Affirmed Reversed 1, 2, 4, 6, 7, 12, 22–26, 29, 32– 34, 41, 42 103 Wu, Ro, Visotsk 1, 2, 4, 6, 7, 12, 22–26, 29, 32– 34, 41, 42 8–11, 13–16 103 Wu, Ro, Visotsky, Luo 8–11, 13–16 17–20 103 Wu, Ro, Visotsky, Luo, Tabet 17–20 21 103 Wu, Ro, Visotsky, Luo, Li 21 27 103 Wu, Ro, Visotsky, Luo, Wei 27 30, 31, 35 103 Wu, Ro, Visotsky, Yang 30, 31, 35 Overall Outcome 1, 2, 4, 6–27, 29–35, 41, 42 REVERSED Copy with citationCopy as parenthetical citation