Ex Parte 6,614,776 et al

Board of Patent Appeals and Interferences

Nov 17, 2010

90008982 (B.P.A.I. Nov. 17, 2010)

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.
90/008,982 01/15/2008 6,614,776 TAN-2-1407.01.RX 2598
24374 7590 11/18/2010
VOLPE AND KOENIG, P.C.
DEPT. ICC
UNITED PLAZA
30 SOUTH 17TH STREET
PHILADELPHIA, PA 19103
EXAMINER
LAROSE, COLIN M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
11/18/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TANTIVY COMMUNICATIONS, INC.1,
Appellant and Patent Owner
____________

Appeal 2010-009150
Reexamination Control 90/008,982
Patent US 6,614,776 B12
Technology Center 3900
____________

Before JAMESON LEE, KARL D. EASTHOM, and KEVIN F. TURNER,
Administrative Patent Judges.

TURNER, Administrative Patent Judge

DECISION ON APPEAL3
TANTIVY COMMUNICATIONS, INC. appeals under 35 U.S.C. §§
134(b) and 306 from a final rejection of claims 1-3, 7, 15-17, 21-23, and 27-
31. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.

1 TANTIVY COMMUNICATIONS, INC. is the Patent Owner and the real
party in interest (Br. 3).
2 Issued September 2, 2003, to James A. Proctor, Jr.
3 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE4
This proceeding arose from a request for ex parte reexamination filed
by Tantivy Communications, Inc. (“Appellant”) on January 15, 2008, of
United States Patent 6,614,776 B1 (the '776 Patent) issued to James A.
Proctor, Jr. on September 2, 2003, based on U.S. Patent Application
09/301,484 filed April 28, 1999. Of the issued claims, claims 1-7 and 15-31
are subject to reexamination, where claims 8-14 are not subject to
reexamination. Claims 4-6, 18-20, and 24-26 were canceled during the
course of the reexamination, and claims 1-3, 7, 15-17, 21-23, and 27-31
were rejected in the Final Rejection mailed April 8, 2009.
On June 8, 2009, Appellant filed a petition in response to the June 12,
2009 Advisory Action, denying entry of Appellant’s after final amendment.
That petition was dismissed in a Decision mailed March 31, 2010. As such,
the pending claims remain in the same form as they were under the Final
Rejection.
Appellant’s invention is directed to a low latency error correction
mechanism for high data rate transmissions over multiple traffic channels in
a wireless communication system (Spec. Col. 1, ll. 7-10). The mechanism
applies forward error correction codes to data prior to multiplexing the data
across a plurality of parallel fixed bandwidth traffic channels (id. at col. 2, ll.
16-20).

4 Our decision will make reference to the Appellant’s Appeal Brief (“Br.,”
filed October 13, 2009) and the Examiner’s Answer (“Ans.,” mailed March
29, 2010).
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Claim 1, which we deem to be representative, reads as follows:
1. In a CDMA (Code Division Multiple Access)
transmitter, a physical layer processor comprising:
[a source signal including data;]
an FEC (Forward Error Correction) coder to
receive [the] a source signal including data and produce
an enhanced source signal including data coded with
error correction information, wherein the FEC coder
operates according to a turbo code;
a demultiplexer coupled to receive the enhanced
source signal from the FEC coder;
a plurality of modem processors, each of which is
coupled to a unique output of the demultiplexer to
process respective portions of the enhanced source signal
in independent channels, wherein the enhanced source
signal is not modulated prior to receipt by the
demultiplexer;
an adder coupled to receive outputs of the modem
processors to produce an aggregate signal, the aggregate
signal being a summation of the enhanced signal
processed in independent channels; and
a transmitter to transmit the aggregate signal over
a carrier frequency.

The prior art references relied upon by the Examiner in rejecting the
claims are:
Ejzak 6,069,883 May 30, 2000
Herzog (“Herzog”) 6,473,417 B1 Oct. 29, 2002
Herzog (“Herzog PCT”) WO 99/09674 Feb. 25, 1999

The Examiner rejected claims on the following bases:
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i) claims 1, 2, 7, 15, 16, 21, 23, and 27-31 under 35 U.S.C. § 102(e) as
anticipated by Herzog (Ans. 4-5);
ii) claims 1, 2, 7, 15, 16, 21, 23, and 27-31 under 35 U.S.C. § 102(a)
as anticipated by Herzog PCT (Ans. 5);
iii) claims 3, 17, and 22 under 35 U.S.C. § 103(a) as unpatentable over
Herzog and Ejzak (Ans. 5-6); and
iv) claims 3, 17, and 22 under 35 U.S.C. § 103(a) as unpatentable over
Herzog PCT and Ejzak (Ans. 6).

ISSUES
We first note that both Appellant and the Examiner acknowledge that
disclosures of Herzog and Herzog PCT are identical (Br. 16, 18; Ans. 5, 6),
such that any determination of the propriety of the rejections applying
Herzog would also apply to the rejections applying Herzog PCT.
Appellant argues that the interleaver (120) of Herzog is not the same
or equivalent to the demultiplexer of claim 1, and the outputs of the
interleaver are coupled to the modem processors and not “each of which is
coupled to a unique output of the demultiplexer,” as recited in claim 1 (Br.
15-16). Additionally, with respect to the rejection over Herzog and Ejzak,
Appellant argues that Ejzak fails to address the shortcomings of Herzog,
such that the combination fails to teach or suggest all of the elements of
claims 3, 17, and 22 (Br. 17).
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The Examiner finds that the limitation “coupled,” recited in claim 1,
does not mean “directly connected,” such that components can be coupled if
they are indirectly connected (Ans. 9). The Examiner also finds that the
Specification of the '776 Patent does not define “coupled” to conform to
Appellant’s implicit argument and that Herzog still anticipates the subject
matter of independent claims 1, 15, and 21 (id.).
In Appellant’s arguments, they identify elements of claim 1 which are
not taught by Herzog, and traverse the rejections of the other independent
claims based on those argued elements. No separate arguments are made
with respect to the dependent claims. Accordingly, claim 1 is selected to
represent claims 2, 7, 15, 16, 21, 23, and 27-31. See 37 C.F.R.
§ 41.37(c)(1)(vii).
We have considered in this decision only those arguments that
Appellant actually raised in the Briefs. Arguments which Appellant could
have made but chose not to make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(vii).
Thus, the issues arising from the respective positions of Appellant and
the Examiner are:
Does Herzog anticipate the disputed elements of claim 1 under 35
U.S.C. § 102?
Do Herzog and Ejzak teach or suggest the disputed subject matter of
claims 3, 17, and 22 under 35 U.S.C. § 103?

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FINDINGS OF FACT
1. The '776 Patent discloses a CDMA transmitter including an FEC
coder (122), which receives a source signal and produces a coded
signal, a demultiplexer (124), coupled to receive the coded signal,
a plurality of modem processors (126a – 126n), coupled to a
unique output of the demultiplexer to process the signal into
independent channels, an adder (128), coupled to the outputs of the
modem processors to produce an aggregate signal, and a
transmitter (130) to transmit the aggregate signal over a carrier
frequency (Spec. col. 2, ll. 38-54, col. 3, ll. 7-16; Fig. 1).

A portion of the sole figure from Appellant’s Specification illustrating
the transmitter portion of the disclosed invention.
2. Herzog discloses a base station which encodes a signal using a
convolutional encoder (110) and passes the encoded signal to a
channel interleaver (120). Prior to the interleaving, the code bits
are demultiplexed to NT traffic channels to produce NT
interleaved signals to be provided to the modulation units (130).
The modulations units output a plurality of spread signals that are
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combined using the summer (140) to form a composite signal,
which is subsequently transmitted (Herzog col. 2, l. 41 – col. 3, l.
55; Fig. 1).

Figure 1 of Herzog illustrating a block diagram of a remote station
that encodes, processes and transmits a signal.

PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses,
expressly or under the principles of inherency, each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342,
1347 (Fed. Cir. 1999).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
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subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
Claims in a reexamination proceeding should be given their broadest
reasonable interpretation, consistent with the specification, because
applicants had the right to amend, whereas in a district court infringement
action, "claims should be so construed, if possible, as to sustain their
validity." In re Yamamoto, 740 F.2d 1569, 1571 n.*, 1571-72 (Fed. Cir.
1984) (citing ACH Hosp. Systems, Inc. v. Montefiore Hosp., 732 F.2d 1572,
1577 (Fed. Cir. 1984)).

ANALYSIS
(i) Anticipation of claim 1 by Herzog under 35 U.S.C. § 102
Appellant argues that the interleaver (120) of Herzog is not the same
or equivalent to the demultiplexer of claim 1, and that the signal is
demultiplexed prior to receipt by the channel interleaver (Br. 15-16).
Additionally, Appellant argues that the outputs of the interleaver are coupled
to the modem processors and not “each of which is coupled to a unique
output of the demultiplexer,” as recited in claim 1 (Br. 15-16).
The Examiner finds that the interleaver of Herzog performs the
identical function as the demultiplexer disclosed the '776 Patent and claimed
in claim 1 (Ans. 7). The Examiner also addresses two interpretations of
Herzog, whereby 1) the interleaver performs both demultiplexing and
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interleaving, or 2) the multiplexing disclosed in Herzog is implicit, i.e.,
without a “demultiplexer” explicitly recited or illustrated (Ans. 8).
Appellant’s arguments appear to deny the Examiner’s first
interpretation, and argue that there would be no modem processor coupled to
a unique output of the demultiplexer (Br. 15-16).
The Examiner finds that the term “coupled,” recited in claim 1, does
not necessarily mean “directly connected,” and also finds that the
Specification of the '776 Patent does not define “coupled” to conform to
Appellant’s implicit argument (Ans. 9). We agree with the Examiner.
We find no support for Appellant’s arguments that coupling recited in
claim 1 requires a direct connection. While it is clear that Fig. 1 of the '776
Patent discloses a direct connection between the demultiplexer and the
modem processing units (FF 1), we do not find that this disclosure must be
incorporated into the claimed structure of claim 1. The Specification of the
'776 Patent makes clear that Fig. 1 is drawn to a particular embodiment of
the disclosed invention, and we find no support for “coupled” to mean or
imply only “direct coupled.” As such, even assuming an indirect coupling
of a demultiplexer and the modulation units in Herzog, taking the interleaver
as an intervening element, per the Examiner’s second interpretation, we find
that claim 1’s recitation of “a plurality of modem processors, each of which
is coupled to a unique output of the demultiplexer” to be met. As such, we
agree with the Examiner that Herzog anticipates claim 1.

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(i) Obviousness of claims 3, 17, and 22 by Herzog and Ejzak under 35
U.S.C. § 103
With respect to the rejection over Herzog and Ejzak, Appellant argues
that Ejzak fails to address the shortcomings of Herzog, such that the
combination fails to teach or suggest all of the elements of claims 3, 17, and
22 (Br. 17). We agree with the Examiner (Ans. 10), however, that since we
find no shortcoming in the disclosure of Herzog, and since Appellant has not
addressed separate arguments to the rejection of claims 3, 17, and 22, we
find no error in the obviousness rejection of those claims.

CONCLUSIONS
We find that the Examiner did not err in finding that Herzog and
Herzog PCT anticipates claims 1, 2, 7, 15, 16, 21, 23, and 27-31 under 35
U.S.C. § 102 and that Herzog and Ejzak or Herzog PCT and Ejzak renders
claims 3, 17, and 22 unpatentable under 35 U.S.C. § 103.

DECISION
The decision of the Examiner to reject claims 1-3, 7, 15-17, 21-23,
and 27-31 is AFFIRMED.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

Appeal 2010-009150
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AFFIRMED

ack

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VOLPE AND KENIG, P.C.
DEPT. ICC
UNITED PLAZA, SUITE 1600
30 SOUTH 17TH STREET
PHILADELPHIA, PA 19103