Alcatel-Lucent USA Inc.

Patent Trials and Appeals Board

Feb 24, 2022

2021000968 (P.T.A.B. Feb. 24, 2022)

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. 15/075,025 03/18/2016 Ajit K Reddy 129250-002410 5080 32498 7590 02/24/2022 CAPITOL PATENT & TRADEMARK LAW FIRM, PLLC P.O. BOX 1995 VIENNA, VA 22183 EXAMINER TRAN, PABLO N ART UNIT PAPER NUMBER 2643 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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): jcurtin@cappat.com knetznik@cappat.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte AJIT K. REDDY ____________________ Appeal 2021-000968 Application 15/075,025 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, JAMES B. ARPIN, and HUNG H. BUI, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision rejecting claims 1-3, 6, 8, 10-12, and 14-20. Appeal Br. 4. The Examiner objects to claims 4, 5, 7-10, and 13 as dependent upon a rejected base claim, but indicates these claims “would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.” Ans. 3. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant identifies the real party in interest is Motorola Solutions, Inc. Appeal Br. 3. Appeal 2021-000968 Application 15/075,025 2 CLAIMED SUBJECT MATTER Claim 1 is representative (emphasis, formatting, and bracketed material added): 1. A system for analyzing the operation of a radio frequency (RF) remote radio head comprising: [A.] a first receiving section operable to receive signals from a tower mounted, remote radio head (RRH), the signals comprising information related to signals from an RF environment at the RRH; [B.] a signal processing section operable [i.] to process the received signals in both a time domain and a frequency domain, and [ii.] to identify one or more anomalies due to internal or external interfering signals from the RF environment at the RRH; and [C.] an interface for displaying a visualization of the one or more anomalies. REFERENCES2 The Examiner relies on the following references: Name Reference Date Heath (hereinafter “Heath I”) US 2017/0237484 A1 Aug. 17, 2017 Heath (hereinafter “Heath II”) US Provisional Application No. 62/279,958 Jan. 18, 2016 We cite the following additional references: Name Reference Date Okanoue US 2002/0142744 A1 Oct. 3, 2002 Cheng US 2014/0016579 A1 Jan. 16, 2014 Safavi US 2016/0050589 A1 Feb. 18, 2016 2 All reference citations are to the first named inventor only. Appeal 2021-000968 Application 15/075,025 3 Heath (hereinafter “Heath III”) US 9,941,959 B2 Apr. 10, 2018 PRINCIPLES OF LAW An application for patent for an invention disclosed in the manner provided by section 112(a) (other than the requirement to disclose the best mode) in an application previously filed in the United States, or as provided by section 363 or 385 which names an inventor or joint inventor in the previously filed application shall have the same effect, as to such invention, as though filed on the date of the prior application, . . . 35 U.S.C. § 120 (Benefit of earlier filing date in the United States) (emphasis added). As [our reviewing court] has repeatedly noted, “the prima facie case is merely a procedural device that enables an appropriate shift of the burden of production.” Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed.Cir.2007) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed.Cir.1992)). See also In re Piasecki, 745 F.2d 1468, 1472 (Fed.Cir.1984). The Patent and Trademark Office (“PTO”) satisfies its initial burden of production by “adequately explain[ing] the shortcomings it perceives so that the applicant is properly notified and able to respond.” Hyatt, 492 F.3d at 1370. In other words, the PTO carries its procedural burden of establishing a prima facie case when its rejection satisfies 35 U.S.C. § 132, in “notify[ing] the applicant . . . [by] stating the reasons for [its] rejection, or objection or requirement, together with such information and references as may be useful in judging of the propriety of continuing the prosecution of [the] application.” 35 U.S.C. § 132. That section “is violated when a rejection is so uninformative that it prevents the applicant from recognizing and seeking to counter the grounds for rejection.” Chester v. Miller, 906 F.2d 1574, 1578 (Fed.Cir.1990). In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). Section 132 merely ensures that an applicant at least be informed of the broad statutory basis for the rejection of his claims, so that he may determine what the issues are on which he can or should Appeal 2021-000968 Application 15/075,025 4 produce evidence.” Chester, 906 F.2d at 1578 (internal citation omitted). As discussed above, all that is required of the office to meet its prima facie burden of production is to set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative manner as to meet the notice requirement of § 132. As the statute itself instructs, the examiner must “notify the applicant,” “stating the reasons for such rejection,” “together with such information and references as may be useful in judging the propriety of continuing prosecution of his application.” 35 U.S.C. § 132. In re Jung, 637 F.3d at 1363 (emphasis added). It is well-established that the Board is free to affirm an examiner’s rejection so long as “appellants have had a fair opportunity to react to the thrust of the rejection.” In re Kronig, 539 F.2d 1300, 1302-03 (CCPA 1976). In re Jung, 637 F.3d at 1365. REJECTIONS The Examiner rejects claims 1-3, 6, 8, 10-12, and 14-20 under 35 U.S.C. § 102(a)(2) as anticipated by Heath I. Final Act. 2-5. As noted above, claim 1 is the representative, and Appellant does not argue separate patentability for claims 2, 3, 6, 8, 10-12, and 14-20. Except for our ultimate decision, we do not address the merits of this anticipation rejection of claims 2, 3, 6, 8, 10-12, and 14-20 further herein. OPINION We have reviewed the Examiner’s rejections in light of Appellant’s Appeal Brief and Reply Brief arguments. Appeal 2021-000968 Application 15/075,025 5 A. Appellant’s Arguments Appellant argues the Examiner errs in rejecting claim 1 under 35 U.S.C. § 102(a)(2) as anticipated by Heath I. (i) Appellant argues, the Examiner “used non-applicable Heath I” and “was required to base the 35 USC § 102(a)(2) rejection on an earlier Heath [II] reference.” Appeal Br. 4. (ii) Although the Examiner points out that: “the provisional Heath application disclosed such analyzer (RANalyzer) to process the received signals in both a time domain and a frequency domain, and to identify one or more anomalies due to internal or external interfering signals from the RF environment (see provisional 62/279,958, at least pg. 11 / 3rd-4th para and pg. 19/Page 6 section L/Spectrum Analysis function, and throughout the reference)” (Final Act. 5-6); and “Heath disclosed such radio equipment are mount on building rooftops/tower (see Provisional application, pg. 36/next to last paragraph - pg. 37/third paragraph) to conduct RF testing signals and to identify/analyze problems and conditions of radio wave transmission environment (see throughout the Provisional application)” Ans. 4; Appellant argues “the subject matter referenced in Heath I does not appear in earlier Heath II.” Appeal Br. 4. Further, Appellant argues “Heath II does not discuss issues regarding signal problems at an RRH (nor is there any mention of a “remote radio head” at all in Heath II).” Appeal Br. 5. (iii) Appellant argues, the Examiner must present a prima facie rejection in a form where all of the citations to Heath II are in what Appellant labels as the “actual rejection,” rather than “the Appeal 2021-000968 Application 15/075,025 6 Final Rejection’s ‘Response to Arguments’ section.” Reply Br. 1. B. Panel’s Analysis We are not persuaded by Appellant’s argument. First, as to Appellant’s argued requirement that the Examiner must base the rejection on the earlier Heath II reference, we determine that no such requirement exists. Rather, 35 U.S.C. § 120 establishes that Heath I receives the benefit of the earlier Heath II filing date for a Heath I invention disclosed in the manner provided by Section 112(a) in Heath II. Second, as to Appellant’s argument that the subject matter referenced in Heath I does not appear in the earlier Heath II, we agree with the Examiner that Heath II’s disclosure is sufficient under Section 112(a) to earn Heath I the benefit of the earlier Heath II filing date. We note that Heath II is directed to “dispersed radio equipment” (page 13) on a “tower” (page 36) and analysis of the “spectrum of what the RRH sees” (page 21) including “external interference” (page 24). We further note that Heath II states that “interference from an external transmitter” (page 8) is a root cause of Radio Access Network problems. Contrary to Appellant’s argument that “Heath II does not discuss issues regarding signal problems at an RRH (nor is there any mention of a ‘remote radio head’ at all in Heath II),” Heath II discusses an RRH at page 21. Even if we were to agree with Appellant that for an anticipation rejection, Heath II must use the same terminology as Appellant’s claims, for example, Heath II does not use the term “domain,” such terminology is known in the art, and an obviousness rejection would be appropriate. For example: Appeal 2021-000968 Application 15/075,025 7 Okanoue (US 2002/0142744 A1) at claim 10 (emphasis added) discloses: The alerting device according to claim 9, wherein the estimator comprises: a time-domain analyzer for analyzing the interference component with respect to time to produce a time-domain analysis result; a frequency-domain analyzer for analyzing the interference component with respect to frequency to produce a frequency-domain analysis result; and an interference analyzer for estimating the interference source based on the time-domain analysis result and the frequency domain analysis result. Cheng (US 2014/0016579 A1) at paragraph 53 (emphasis added) discloses: [A] time-domain and frequency-domain analysis module 802, configured to perform time domain and frequency domain analyses on the interference signal to obtain interference characteristics of the interference signal. Safavi (US 2016/0050589 A1) at paragraph 80 (emphasis added) discloses: The hardware based implementation may help with very accurate classification of unknown or unexpected interference sources through both time domain and frequency domain analysis. Third, contrary to Appellant’s form of the rejection argument, the Examiner is not required to present the rejection in a particular form. Rather: [A]ll that is required of the office to meet its prima facie burden of production is to set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative manner as to meet the notice Appeal 2021-000968 Application 15/075,025 8 requirement of § 132. As the statute itself instructs, the examiner must “notify the applicant,” “stating the reasons for such rejection,” “together with such information and references as may be useful in judging the propriety of continuing prosecution of his application.” 35 U.S.C. § 132. In re Jung, 637 F.3d at 1363. [S]ection [132] “is violated when a rejection is so uninformative that it prevents the applicant from recognizing and seeking to counter the grounds for rejection.” Chester v. Miller, 906 F.2d 1574, 1578 (Fed.Cir.1990). Id. at 1362. We conclude that the Examiner rejects the claims in a sufficiently articulate and informative manner to meet the notice requirement of § 132. CONCLUSION The Examiner has not erred in rejecting claims 1-3, 6, 8, 10-12, 14- 20, as being anticipated by Heath I under 35 U.S.C. § 102(a)(2). DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 6, 8, 10-12, 14- 20 102(a)(2) Heath I 1-3, 6, 8, 10-12, 14- 20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED