Ex Parte Bladsjo et al

Patent Trial and Appeal Board

Jul 17, 2013

10576873 (P.T.A.B. Jul. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID BLADSJO,
and ERIK WESTERBERG
___________

Appeal 2010-012162
Application 10/576,873
Technology Center 2600
____________

Before ST. JOHN COURTENAY III, CAROLYN D. THOMAS, and
JOHNNY A. KUMAR, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 30-33, 35, 36, and 38-71. Claims 1-29, 34, 37, and 72-76 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
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Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (“Br.”) filed March 8, 2010, and the Answer
(“Ans.”) mailed June 7, 2010 for the respective details. We have considered
in this decision only those arguments Appellants actually raised in the Brief.
Any other arguments which Appellants 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).

STATEMENT OF THE CASE
Introduction
Appellants’ invention relates to “to packet-based data
communications systems in general, specifically to polling of user
equipment in such communications system.” Spec. 1:5-7. Claim 30, which
is illustrative of the invention, reads as follows [bracketed matter and some
paragraphing added]:
30. A method of polling in a packet-based data
communications system, said communications system
comprising a base station system polling connected user
equipment, wherein said polling is performed according to:
[1] a first type of polling allowing said user equipment to
choose whether or not to transmit a data packet to the base
station system in response to reception of polling of the first
type, and
[2] a complementary second type of polling requiring the
user equipment to transmit a data packet to the base station
system in response to reception of polling of the second type,
[3] wherein said first type comprises polling with an
uplink state flag and said second type comprises polling with a
control block.

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The Rejection
The Examiner rejected claims 30-33, 35, 36, and 38-71 under 35
U.S.C. § 103(a) as being unpatentable over Rinchiuso (US 2004/0196861
A1, Oct. 7, 2004), Le (US 2007/0097941 A1, May 3, 2007), and Forssell
(US 2003/0142657 A1, Jul. 31, 2003).

ISSUE AND ANALYSIS1
Based on Appellants’ arguments, the principal and dispositive issue of
whether the Examiner erred in rejecting exemplary claim 30 turns on
whether the teachings of the combination of Rinchiuso, Le, and Forssell
would have taught or suggested (a) limitation [1] of claim 30 (“a first type of
polling allowing said user equipment to choose whether or not to transmit a
data packet to the base station system in response to reception of polling of
the first type”) (hereinafter, “choice of whether or not to transmit data packet
limitation”), (b) limitation [2] of claim 30 (“a complementary second type of
polling requiring the user equipment to transmit a data packet to the base
station system in response to reception of polling of the second type”)
(hereinafter, “requiring to transmit data packet limitation”), and (c)
limitation [3] of claim 30 (“wherein said first type comprises polling with an
uplink state flag and said second type comprises polling with a control
block”) (hereinafter, “the uplink state flag/control block limitation”). Br. 14-

1 Independent claims 40, 44, 50, 51, 56, and 67 recite features similar to
claim 30. Br. A3-A12. Therefore, we treat claim 30 as representative for
purposes of this appeal. Separate patentability is not argued for claims 32,
33, 35, 36, 38-40, 42-45, 47-54, and 56-70. Except for our ultimate decision,
claims 32, 33, 35, 36, 38-40, 42-45, 47-54, and 56-70 are not discussed
further herein.
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21. In particular, Appellants contend that the Examiner erred in rejecting the
claims as obvious over Rinchiuso, Le, and Forssell because Le teaches away
from the claimed invention, and the proposed combination is based on
impermissible hindsight. Id. at 19-20.
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and the reasons set
forth by the Examiner in the Examiner’s Answer in response to Appellants’
Appeal Brief.
In response to each of the arguments raised by Appellants, the
Examiner presents detailed findings and responses, which are not rebutted
by Appellants in a Reply Brief.
In rejecting independent claim 30 over the combination of Rinchiuso,
Le, and Forssell, the Examiner finds (Ans. 4-5) that Rinchiuso discloses all
the claimed features, except for limitation [1] of claim 30 (“choice of
whether or not to transmit limitation”), and limitation [3] of claim 30 (“the
uplink state flag/control block limitation”). The Examiner relies on Le for
disclosing or suggesting the choice of whether or not to transmit limitation
missing in Rinchiuso, and Forssell for disclosing or suggesting the uplink
state flag/control block limitation missing in Rinchiuso and Le (Ans. 4,
5).
In particular, the Examiner properly identifies the relevant teachings
in Rinchiuso, Le, and Forssell and states how each claimed element is met
by those teachings (see Ans. 4-13).
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Specifically, Rinchiuso discloses data transmission within a cellular
communication system. (see ¶ [0001]). In Rinchiuso, if the remote unit has
no data then the remote unit sends a dummy control block 1204, otherwise
the remote unit transmits data blocks 1205. (see ¶ [0057] and Fig. 12). In
other words, Rinchiuso discloses requiring transmission of a data packet
(i.e., either a dummy control block or data blocks), and the Examiner’s
reliance on this functionality is therefore persuasive.
Similarly, Le discloses “wireless devices, however, are not required to
upload data responsive to being polled and in many cases do not.” (see ¶
[0008]). Le also discloses that “[w]hether or not a particular device uploads
data responsive to being polled, the amount of data--or lack thereof-that a
wireless device transfers to the access point can be stored and used to
calculate a priority for that device.” (see ¶ [0009]). In other words, the
choice of whether or not to transmit a data packet is disclosed by Le.
Forssell discloses polling that “can be done e.g. by assigning the MS
an uplink sending permission by e.g. including an USF (Uplink State Flag)
allocated for the mobile station in a downlink RLC/MAC block's MAC
header whereupon the MS may transmit in the uplink direction on the next
block period as described earlier and response to the polling…an RLC/MAC
data block instead of e.g. a Packet Uplink Dummy Control Block in which
case the Packet Uplink Dummy Control Block would indicate that the MS
has no data to be transmitted at the moment. ” (see ¶ [0033]). In other
words, Forssell discloses uplink state flag/control block.
In this case, the teaching value of Rinchiuso is in disclosing the
second type of polling limitation, whereas the first type of polling limitation
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is disclosed by Le, and the uplink state flag/control block limitation is
disclosed in Forssell. Additionally, because the proposed rejection is based
on the combination of the references, Appellants’ challenge to the references
individually is not persuasive of error in the Examiner’s position. See In re
Keller, 642 F.2d 413, 426 (CCPA 1981) (stating that “one cannot show non-
obviousness by attacking references individually where . . . the rejections are
based on combinations of references.”).
The Appellants further contend that Le teaches away from the claimed
invention and that there is no motivation to modify Le because Le “wants to
make sure that the slots are always used to transport actual substantive data
as opposed to sending dummy data.” Br. 19. (Emphasis added). The
Examiner responds that Le expressly teaches an embodiment where the
user’s equipment chooses whether or not to transmit a data packet to the
base station system (Ans. 5, citing Le ¶¶ 0008, 0009), and is thus not
teaching away. Id.
We agree with the Examiner. “A reference may be said to teach away
when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.” Ricoh
Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008)
(citations and internal quotation marks omitted). Teaching an alternative or
equivalent method, however, does not teach away from the use of a claimed
method. See In re Dunn, 349 F.2d 433, 438 (CCPA 1965). A reference
does not teach away if it merely expresses a general preference for an
alternative invention from amongst options available to the ordinarily skilled
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artisan, and the reference does not discredit or discourage investigation into
the invention claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Here, we agree with the Examiner that Le discloses that the user’s
equipment chooses whether or not to transmit a data packet to the base
station system. Ans. 4, 5. Additionally, Le explicitly provides the
motivation for a person with ordinary skill in the art to modify Rinchiuso to
better utilize transmission slots available in the base station. Ans. 5, 11
(citing Le ¶ 0005). As such, we do not find the Appellants’ arguments
persuasive.
We also disagree with Appellants’ argument that the proposed
combination of Rinchiuso, Le, and Forssell is motivated by impermissible
hindsight. It has been held that where the claimed subject matter involves
more than the simple substitution of one known element for another or the
mere application of a known technique to a piece of prior art ready for the
improvement, a holding of obviousness must be based on “an apparent
reason to combine the known elements in the fashion claimed.” KSR Int’l.
Co. v. Teleflex Inc., 550 U.S. 398, 417-18 (2007). That is, “there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” Id. at 418 (quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)). Such reasoning can be based on 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. Id. at 417-18.
In the present case, the Examiner found that the proposed combination
of Rinchiuso, Le, and Forssell to provide a choice in whether or not to
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transmit data packet would have resulted in “better utiliz[ation of]
transmission slots available in the base stations” and the uplink state
flag/control block would “provide an alert to the mobile station about a
polling request”. Ans. 11, 12. We find this articulated rationale to be
sufficient to justify this combination because the proposed combination
would merely require the ordinarily skilled artisan to use common sense, see
KSR, 550 U.S. at 421.
Therefore, we agree with the Examiner that the combination of
Rinchiuso, Le, and Forssell would have suggested all the recited limitations
of independent claim 30 to one of ordinary skill in the art.
Regarding dependent claims 31, 41, 46, 55, and 71, while Appellants
raised additional arguments for patentability of the cited claims (Br. 21), we
find that the Examiner has rebutted in the Answer each and every one of
those arguments supported by sufficient evidence and no Reply Brief is of
record to rebut such findings. Ans. 5-6, 13. Therefore, we adopt the
Examiner’s findings and underlying reasoning, which are incorporated
herein by reference. Consequently, we find no error in the Examiner’s
rejection of claims 31, 41, 46, 55, and 71.

CONCLUSIONS
The Examiner did not err in rejecting claims 30-33, 35, 36, and 38-71
as being unpatentable over Rinchiuso, Le, and Forssell.

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DECISION
The decision of the Examiner rejecting claims 30-33, 35, 36, and 38-
71 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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