Ex Parte Amini et al

Patent Trial and Appeal Board

Mar 7, 2016

12854457 (P.T.A.B. Mar. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/854,457 08/11/2010 Peiman Amini
51472 7590 03/09/2016
GARLICK & MARKISON
P.O. BOX 160727
AUSTIN, TX 78716-0727
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.
BP20857Il 7833
EXAMINER
LIU,BENH
ART UNIT PAPER NUMBER
2464
NOTIFICATION DATE DELIVERY MODE
03/09/2016 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):
MMURDOCK@TEXASPATENTS.COM
ghmptocor@texaspatents.com
bpierotti@texaspatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PEIMAN AMINI, MATTHEW JAMES FISCHER,
VINKO ERCEG, JOONSUK KIM, and
JOSEPH PAUL LAUER
Appeal2014-004908
Application 12/854,457 1
Technology Center 2400
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1-29. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Broadcom Corp.,
App. Br. 3.
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Application 12/854,457
STATEMENT OF THE CASE2
The Invention
Appellants' claimed invention relates to "mixed mode operations
within multiple user, multiple access, and/or MIMO wireless
communications." Spec. 1 (Title).
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphases and lettering added to contested limitations):
1. A method for performing mixed mode operation of a
plurality of wireless communication devices, the method
compnsmg:
coordinating operation and medium access of the
plurality of wireless communication devices, including a first
wireless communication device having a first capability and a
second wireless communication device having a second
capability, in accordance with at least one operational mode
selected from a plurality of operational modes;
[L 1] operating in accordance with a first of the plurality
of operational modes including time dividing medium access
between the first wireless communication device and the second
wireless communication device; and
[L2] operating in accordance with a second of the
plurality of operational modes including assigning at least one
primary cluster for use by the first wireless communication
device and assigning at least one non-primary cluster for use by
the second wireless communication device for supporting
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed Oct.
30, 2013 ); Reply Brief ("Reply Br.," filed Feb. 28, 2014 ); Examiner's
Answer ("Ans.," mailed Dec. 31, 2013 ); Final Office Action ("Final Act.,"
mailed May 31, 2013 ); and the original Specification ("Spec.," filed Aug.
11, 2010 ).
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simultaneous operation of the first wireless communication
device and the second wireless communication device,
wherein each of the at least one primary cluster and the at
least one non-primary cluster is a respective mapping of
orthogonal frequency division multiplexing (OFDM) tones
within a corresponding at least one channel among a
corresponding at least one frequency band.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Walton et al. ("Walton") US 2005/0135318 Al June 23, 2005
Cordeiro et al. ("Cordeiro") US 2011/0075642 Al Mar. 31, 2011
Rejections on Appeal
Claims 1-29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Cordeiro and Walton. App. Br. 3.
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 15-24), we decide the
appeal of the Examiner's rejection RI of claims 1-29 on the basis of
representative independent claim 1.
ISSUES
Appellants argue (App. Br. 15-24; Reply Br. 4--15) the Examiner's
rejection of claims 1-29 under 35 U.S.C. § 103(a) as being obvious over the
combination of Cordeiro and Walton is in error. These contentions present
us with the following issues:
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( 1) Did the Examiner err in finding the cited prior art combination
teaches or suggests limitation [LI], i.e., "operating in accordance with a first
of the plurality of operational modes including time dividing medium access
between the first wireless communication device and the second wireless
communication device" as recited in claim 1?
(2) Did the Examiner err in finding the cited prior art combination
teaches or suggests limitation [L2], i.e., "operating in accordance with a
second of the plurality of operational modes including assigning at least one
primary cluster ... and assigning at least one non-primary cluster ... for
supporting simultaneous operation of the first wireless communication
device and the second wireless communication device," as recited in
claim 1?
(3) Did the Examiner err in rejecting claim 1 by relying upon
improper motivation to combine Cordeiro with Walton in the manner
suggested?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments
which Appellants could have made but chose not to make in the Briefs so
that we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 1-29,
and we incorporate herein and adopt as our own: ( 1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellants' arguments. We incorporate such findings, reasons,
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and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments regarding claim 1 for
emphasis as follows.
Issue (1)-Limitation [LI} not Taught or Suggested
Appellants contend a person with skill in the art would "understand
that both the first and second wireless communication devices operate based
on the first operational mode and each is provided a time divided portion of
access to the communication medium, but not at the same time (e.g., using
time divided medium access)." App. Br. 17. Appellants further contend
Cordeiro's "time divided and assigned 'service periods' allow for only one
respective communication device to access the communication medium (i.e.,
the communication device that owns them)." App. Br. 18.
"In the patentability context, claims are to be given their broadest
reasonable interpretations ... limitations are not to be read into the claims
from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993) (citations omitted). Any special meaning assigned to a term "must be
sufficiently clear in the specification that any departure from common usage
would be so understood by a person of experience in the field of the
invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473,
1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip.,
Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own
lexicographer and assign to a term a unique definition that is different from
its ordinary and customary meaning; however, a patentee must clearly
express that intent in the written description."). Absent an express intent to
impart a novel meaning to a claim term, the words take on the ordinary and
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customary meanings attributed to them by those of ordinary skill in the art.
Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed.
Cir. 2003) (citation omitted). We note Appellants have not cited to a
definition of "time dividing medium access" in the Specification that would
preclude the Examiner's broader reading. Ans. 9.
We agree with the Examiner's finding that Cordeiro's disclosure is not
limited to a single configuration allocating both service periods 1 and 2
(SPl, SP2) to the same station (STA). Id. We further agree with the
Examiner that Cordeiro teaches or at least suggests the station may be
assigned service to SP 1, SP2, or both, so that when a first station is assigned
only one of SPl or SP2, then the unassigned service period can be assigned
to a different station. Id. (citing Cordeiro i-f 19).
We agree with the Examiner because Cordeiro's ST A transmitting the
service period, such as SPl 220 and/or SP2 230, while controlling access to
the wireless network 140 during a duration of the service period teaches or
at least suggests limitation [L 1 ], i.e., "operating time dividing medium
access [TDMA mode] between the first wireless communication device and
the second wireless communication device." Cordeiro i-f 19.
Appellants provide no evidence that a person of ordinary skill in the
art would not understand and appreciate the Examiner's findings concerning
the known operation of TDMA. We agree with the Examiner that Cordeiro,
given the knowledge of a person of ordinary skill in the TDMA systems art,
teaches, or at least suggests, that different time slots can be allocated to
different wireless communication devices. Therefore, we conclude it would
have been obvious to a person of ordinary skill in the art, under known
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TDMA principles of operation, to assign a first time period to a first
communication device, and a different time period to another
communication device. Therefore, on this record, we agree with the
Examiner and conclude the Examiner's claim interpretation is not overly
broad, unreasonable or inconsistent with Appellants' Specification.
Issue (2)-Limitation [L2] not Taught or Suggested
With respect to limitation [L2], Appellants assert "[i]n the Examiner-
cited portions of Cordeiro, two devices do not access the communication
medium simultaneously using different assigned clusters in accordance with
the subject matter as claimed by the Appellant." App. Br. 18. Appellants
further contend:
Cordeiro's manner of performing channel scheduling appears to
be based on the fact that all communications are made using the
same communication channel or frequency spectrum . .. [but
in] Cordeiro, two devices do not access the communication
medium simultaneously using different assigned clusters in
accordance with [claim 1].
App. Br. 20-21.
Because the Examiner rejects the claims as obvious over the
combined teachings of Cordeiro and Walton, the test for obviousness is not
what the references show individually but what the combined teachings
would have suggested to one of ordinary skill in the art. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We are not persuaded by Appellants' contentions because Appellants
are arguing the references separately. The Examiner cites Walton, not
Cordeiro, for teaching the entire limitation [L2], including "assigning at least
one primary cluster for use by the first wireless communication device and
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assigning at least one non-primary cluster for use by the second wireless
communication device for supporting simultaneous operation of the first
wireless communication device and the second wireless communication
device." Final Act. 4, Ans. 11.
Accordingly, we find no error in the Examiner's reliance upon the
combined teachings and suggestions of Cordeiro and Walton.
Issue (3)-Improper Motivation to Combine
Appellants contend:
One having skill in the art to which the invention pertains
would appropriately and properly understand that there would
be no need or motivation to combine such contention-based
operation of Cordeiro with the "separate frequency
assignments" that the Examiner characterizes in Walton. The
use of the Examiner-characterized "separate frequency
assignments" in Walton would obviate any need for the
contention-based operation of Cordeiro.
App. Br. 21----22. Appellants further contend:
Considering both Cordeiro and Walton, it would appear that the
combined teaching and disclosure is to ensure that only one
respective communication device accesses the communication
medium at any time in either a "service period" or a "contention
based period" such as in Cordeiro, and preferably all
communications are made based on a single, common, same
channel or bandwidth such as in both Cordeiro and Walton.
App. Br. 23.
In response to Appellants' contentions, the Examiner finds,
it is noted that the combination of the references in the prior art
rejection does not rely on using separate frequency assignments
in a contention-based operation ... [but instead] uses the
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separate frequency assignments as taught by Walton ... instead
of the contention-based operation as taught by Cordeiro.
Ans. 12. The Examiner finds: "[t]he motivation for using separate frequency
assignments instead of the contention-based operation is to improve the
compatibility of the network by allowing simultaneous operation of new,
high-throughput systems and legacy systems." Ans. 12.
The Examiner further disagrees with the Appellants' characterization
of Cordeiro et al. because the reference "does not limit the use of the
plurality of service periods to a single STA ... [and Walton] discloses
specific advantages to using separate frequency assignments rather than
using the same frequency assignments." Ans. 13-14.
We agree with the Examiner's conclusion that Appellants are
mischaracterizing the Examiner's reliance on the teachings of Cordeiro with
respect to a first and second operational mode, and are focusing only on the
contention-based operation of Cordeiro.
Moreover, Appellants have provided no evidence that combining such
teachings of Cordeiro and Walton was "uniquely challenging or difficult for
one of ordinary skill in the art," (Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007)), nor have Appellants presented
evidence that this incorporation yielded more than expected results. Rather,
we find Appellants' invention is simply a combination of known teachings
that realize a predictable result. The Supreme Court has determined the
conclusion of obviousness can be based on the interrelated teachings of
multiple patents, the effects of demands known to the design community or
present in the marketplace, and the background knowledge possessed by a
person having ordinary skill in the art. KSR Int'! Co. v. Teleflex, Inc., 550
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U.S. 398, 418 (2007). The skilled artisan would "be able to fit the teachings
of multiple patents together like pieces of a puzzle" since the skilled artisan
is "a person of ordinary creativity, not an automaton." Id. at 420-21.
In addition, the relevant inquiry here is whether the Examiner has set
forth "some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness." In re Kahn, 441F.3d977, 988
(Fed. Cir. 2006) (cited with approval inKSR, 550 U.S. at 418). We find the
Examiner's findings, referenced above, provide an articulated reasoning and
rational underpinning. We find the Examiner's stated motivation meets the
requirements of KSR.
Accordingly, on this record, Appellants have not provided sufficient
evidence or argument to persuade us of any reversible error in the
Examiner's reading of the contested limitations on the cited prior art, or in
the legal conclusion of obviousness. Therefore, we sustain the Examiner's
obviousness rejection of independent claim 1, and grouped claims 2-29
which fall therewith. See Claim Grouping, supra.
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 4--15) not in response to a shift in the Examiner's position
in the Answer, we note arguments raised in a Reply Brief that were not
raised in the Appeal Brief or are not responsive to arguments raised in the
Examiner's Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellants have not shown.
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CONCLUSION
The Examiner did not err with respect to obviousness Rejection RI of
claims 1-29 under 35 U.S.C. § 103(a) over the cited prior art combination of
record, and we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1-29.
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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