Ex Parte Campos et al

Patent Trial and Appeal Board

Feb 21, 2019

14267273 (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/267,273 05/01/2014
135792 7590 02/25/2019
Cable Television Laboratories, Inc.
858 Coal Creek Circle
Louisville, CO 80027
FIRST NAMED INVENTOR
Luis Alberto Campos
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.
60514-3 7878
EXAMINER
SOLINSKY, PETER G
ART UNIT PAPER NUMBER
2463
NOTIFICATION DATE DELIVERY MODE
02/25/2019 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):
d.smith@cablelabs.com
p.calderwood@cablelabs.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUIS ALBERTO CAMPOS, BERNARD McKIBBEN,
IAN MACMILLAN, JENNIFER ANDREOLI-FANG,
JOEY PAD DEN, and JUSTIN COL WELL
Appeal 2018-003 691
Application 14/267 ,273
Technology Center 2400
Before MARC S. HOFF, ELENI MANTIS MERCADER, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1, 2, 5-10, 13-18, and 22, i.e., all pending claims. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify the real party in interest as Cable Television
Laboratories, Inc. Br. 3.
Appeal2018-003691
Application 14/267 ,273
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns "capacity
sharing between wireless systems via a master scheduling system." Spec.
,r 5. 2 The Specification explains that (1) "a Mobile Central Office (MCO)
for capacity sharing" is "communicatively coupled to a plurality of wireless
base stations" and (2) "[ e Jach of the wireless base stations is operable to
convey capacity information to the master scheduling system through the
MCO, and to acquire capacity from one or more wireless base stations of
another MCO when directed by the master scheduling system." Id. at 34
(Abstract); see id. ,r 5.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows (with formatting added for clarity):
1. A wireless telecommunications system, comprising:
a plurality of wireless base stations, wherein each
wireless base station is operable to handle a session from a
wireless device and to handoff the session to another of the
wireless base stations when the wireless device moves into a
range of the other wireless base station; and
a Mobile Central Office (MCO) communicatively
coupled to each of the wireless base stations,
wherein each of the wireless base stations is
communicatively coupled to a remotely located master
scheduling system through the MCO, and
2 This decision uses the following abbreviations: "Spec." for the
Specification, filed May 1, 2014; "Final Act." for the Final Office Action,
mailed February 3, 2017; "Br." for the Appeal Brief, filed July 31, 2017; and
"Ans." for the Examiner's Answer, mailed November 9, 2017.
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wherein each of the wireless base stations is operable to
convey capacity information to the master scheduling system,
and to acquire capacity from one or more wireless base stations
of another MCO when directed by the master scheduling
system,
wherein a first of the wireless base stations comprises:
a Wireless Access Point (W AP) operable in a WiFi
band operable to communicate frequency spectrum usage
of the first wireless base station to the master scheduling
system to acquire said capacity from the other MCO; and
a Long Term Evolution (L TE) transmitter to
communicate frequency spectrum usage of the first
wireless base station to the master scheduling system
to acquire said capacity from the other MCO,
wherein the L TE transmitter is operable in
the WiFi band.
Br. 15 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence ofunpatentability under 35 U.S.C. § 103, the Examiner
relies on the following prior art:
Koo et al. ("Koo")
Panchal et al. ("Panchal")
Kang et al. ("Kang")
Himayat et al. ("Himayat")
Agarwal et al. ("Agarwal")
US 2013/0083743 Al
US 2013/0090124 Al
US 2013/0322367 Al
US 2014/0050086 Al
US 2014/0092765 Al
The Rejections on Appeal
Apr. 4, 2013
Apr. 11, 2013
Dec. 5, 2013
Feb.20,2014
Apr. 3, 2014
Claims 1, 9, and 16 stand rejected under 35 U.S.C. § 103 as
unpatentable over Panchal and Himayat. Final Act. 2---6.
Claims 2 and 10 stand rejected under 35 U.S.C. § 103 as unpatentable
over Panchal, Himayat, and Kang. Final Act. 7-8.
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Claims 5-7, 13, 14, and 17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Panchal, Himayat, and Agarwal. Final Act. 8-10.
Claims 8, 15, and 18 stand rejected under 35 U.S.C. § 103 as
unpatentable over Panchal, Himayat, Agarwal, and Kang. Final Act. 10-12.
Claim 22 stands rejected under 35 U.S.C. § 103 as unpatentable over
Panchal, Himayat, Koo, and Kang. Final Act. 12-13.
ANALYSIS
We have reviewed the§ 103 rejections in light of Appellants'
arguments that the Examiner erred. For the reasons explained below, we
concur with the Examiner's conclusions concerning unpatentability under
§ 103. We adopt the Examiner's findings and reasoning for the§ 103
rejections in the Final Office Action (Final Act. 2-13) and Answer
(Ans. 2-3). We add the following to address and emphasize specific
findings and arguments.
The§ 103 Rejection of Claims 1, 9, and 16
ALLEGED DEFICIENCIES IN PANCHAL AND RIMA Y AT
Appellants argue that the Examiner erred in rejecting independent
claims 1, 9, and 16 because "[ t ]he Examiner is improperly interpreting and
unreasonably broadening the Appellant's claims to a point beyond what
those skilled in the art would understand with respect to capacity sharing via
differing communication technologies, such as LTE and WiFi." Br. 6.
Further, Appellants assert that (1) "Panchal does not disclose any of the base
stations being operable to communicate via WiFi as well as L TE" and
(2) "Panchal only discloses sharing among LTE communication entities."
Id. at 6-7. In addition, Appellants contend that "Himayat does not disclose
any sort of' Mobile Central Office (MCO). Id. at 7. According to
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Appellants, "Himayat's offloading of traffic from one protocol to another is
directed to a computing device - not to any sort of master scheduling system
that acquires capacity from another MCO." Id.
Appellants' arguments do not persuade us of Examiner error because
they attack the references individually, while the Examiner relies on the
combined disclosures in the references to teach or suggest the claimed
subject matter. See Final Act. 2---6; Ans. 2-3. Where a rejection rests on the
combined disclosures in the references, an appellant cannot establish
nonobviousness by attacking the references individually. See In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
For instance, Appellants' assertion that "Panchal does not disclose any
of the base stations being operable to communicate via WiFi as well as
L TE" does not demonstrate Examiner error because the Examiner relies on
Himayat, not Panchal, for disclosing multimode base stations with L TE and
WiFi capabilities. Final Act. 3, 5---6; Ans. 2-3. Further, Appellants'
contention that "Himayat does not disclose any sort of' MCO does not
demonstrate Examiner error because the Examiner relies on Panchal, not
Himayat, for disclosing an MCO. Final Act. 3-6; Ans. 2.
The Examiner correctly finds that Panchal discloses "scheduling
across multiple networks" and a system that "utilizes a sharing entity to
share capacity between different networks." Final Act. 2; Ans. 2. In
particular, Panchal describes a sharing entity (SE) that "coordinates supplies
and demands between prospective sharing partners," such as "different
networks ... that have excess resources to offer for sharing (supplies), or
that are requesting, on a temporary basis, a grant of resources from other
networks (demands)." Panchal ,r 45; see id. ,r,r 6, 47-52, Abstract, Figs. 3--4.
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Each network includes a mobility management entity (MME) that, among
other things, "manages the assignment of network resources" and
"manage [ s] the access by the mo bile user terminals ( referred to in L TE as
UEs, for 'user equipment')." Id. ,r 26; see id. ,r 49. Each MME analyzes
performance indicators "used as input for making sharing decisions." Id.
,r,r 57-59; see id. ,r 6, Abstract. Based on the performance indicators, an
MME "makes short-term and long-term sharing decisions." Id. ,r,r 57, 59;
see id. ,r,r 6, 48, Abstract. If an MME "decides to participate in resource
sharing, it sends a message to the SE" that "may be a borrowing request" or
"may be an offer of surplus resources that are available for sharing." Id.
,r 59; see id. ,r,r 6, 45, 48, Abstract. The "SE identifies sharing partners" and
"matches supplying partners to demanding partners to create supply-demand
partnerships." Id. ,r 66. As the Examiner correctly finds, Panchal's sharing
entity (SE) is "functionally equivalent to the master scheduling system"
required by the claims. Ans. 2.
Moreover, Panchal's mobility management entity (MME) is
functionally equivalent to the MCO required by the claims. The
Specification explains that "an MCO is any system, apparatus, software, or
combination thereof operable to maintain or otherwise support wireless
communications, including data and voice, with subscribers via user
equipment (e.g., mobile handsets and other wireless devices)." Spec. ,r 19.
An MME maintains or otherwise supports wireless communications by
"manag[ing] the assignment of network resources," "manag[ing] the access
by the mobile user terminals," and "mak[ing] short-term and long-term
sharing decisions." See Panchal ,r 26, 59; see id. ,r,r 6, 49, Abstract.
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Consequently, an MME constitutes an MCO according to the Specification.
See Spec. ,r 19.
Thus, the Examiner correctly reasons that "[ t ]he only shortcoming of
Panchal's teachings is it does not teach base stations which utilize different
access technologies." Ans. 2. But the Examiner correctly finds that
"Himayat fulfills the shortcoming of Panchal." Id.; see Final Act. 2---6.
More specifically, Himayat discloses a mobile communications framework
with WW AN (L TE) and WLAN (WiFi) networks and multimode base
stations with L TE and WiFi capabilities. Himayat ,r,r 4, 6, 15-1 7, 25-2 7, 31,
Abstract, Fig. 1; see Final Act. 2-6; Ans. 2-3. A radio resource control
(RRC) in a base station "collect[ s] measurement reports on the WW AN and
WLAN links" to facilitate offloading data traffic from an L TE link to a WiFi
link. Himayat ,r,r 18-19, 31-32, Abstract; see id. ,r,r 9, 12, 15, 63, Fig. 4;
Ans. 2.
For the reasons discussed above, the combined disclosures in the
references to teach or suggest the claimed subject matter. See Final Act.
2---6; Ans. 2-3; Panchal ,r,r 6, 26, 45, 47-52, 57-59, 66, Figs. 3--4; Himayat
,r,r 4, 6, 15-19, 25-27, 31-32, Abstract, Fig. 1.
Monv A TION TO COMBINE p ANCHAL AND RIMA y AT
Appellants argue that the Examiner erred in rejecting claims 1, 9,
and 16 because "no one skilled in the art would be motivated to combine
Himayat with Panchal." Br. 8. Appellants concede that the "Examiner
states that the proposed combination would be to obtain the predictable
result of minimizing required access points." Id. at 9. But Appellants
contend that "neither Panchal nor Himayat seek[ s] to minimize a number of
wireless access points." Id. Further, Appellants assert that a person of
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ordinary skill would lack a motivation to combine Himayat with Panchal
because "Himayat is not related to capacity sharing between base stations of
differing MCOs." Id. at 8.
Appellants' arguments do not persuade us of Examiner error.
"[T]he law does not require that the references be combined for the reasons
contemplated by the inventor." In re Beattie, 974 F.2d 1309, 1312
(Fed. Cir. 1992); see Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364,
1371 (Fed. Cir. 2017). "[A]ny need or problem known in the field of
endeavor at the time of invention and addressed by the patent can provide
a reason for combining" references. KSR Int 'l Co. v. Teleflex Inc., 550 U.S.
398, 420 (2007).
Here, the Examiner explains that "[t]here exist any number of
motivations to utilize a base station having access to more bandwidth
[Himayat] rather than an older technology [Panchal] which only utilized one
portion of the frequency spectrum." Ans. 3. The Examiner finds that a
"simple substitution of one known element (Himayat's Multi-RAT [Radio
Access Technology] base station) for another (Panchal's single access
technology base station)" produces "predictable results," i.e., "the need for
fewer access points in a network since multiple technologies could utilize
the single base station." Id.; see Final Act. 2. We note that Appellants did
not file a Reply Brief to refute the factual findings in the Answer.
Additionally, Himayat instructs that "radio level integration of WLAN
and WW AN technologies may be employed to improve user Quality of
Service (QoS) and wireless system performance, among other reasons."
Himayat ,r 12. Those benefits constitute reasons that would have prompted a
person of ordinary skill to adapt Panchal's system to operate with WLAN
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(WiFi) as well as WWAN (LTE) networks. See id. ,r,r 5, 12, 19, 29,
Abstract. "[T]he desire to enhance commercial opportunities by improving a
product or process is universal." DyStar Textilfarben GmbH v. CH Patrick
Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006); see In re Peterson, 315 F.3d
1325, 1330 (Fed. Cir. 2003).
Appellants assert that "[s]imply adding Himayat's downstream
offloading of WiFi communications and L TE communications would not
provide any WiFi capacity sharing capability to Panchal because Himayat
does not address sharing of any kind upstream." Br. 9. But "[ c ]ombining
the teachings of references does not involve an ability to combine their
specific structures." In re Nievelt, 482 F.2d 965, 968 (CCP A 1973).
Panchal explains that resource sharing can "improve [network]
performance," "achieve greater overall efficiency," and "increase the
effective network capacity ... without deploying more base stations."
Panchal ,r 3. That explanation applies equally to WiFi communications and
L TE communications. Thus, a person of ordinary skill would have been
motivated to employ resource sharing with WiFi communications as well as
LTE communications when adapting Panchal's system to operate with
WLAN (WiFi) as well as WW AN (L TE) networks.
REASONABLE EXPECTATION OF SUCCESS
Appellants argue that the Examiner erred in rejecting claims 1, 9,
and 16 because the "combination of Himayat and Panchal could produce no
reasonable expectation of success." Br. 8. But Appellants' argument
disregards the Examiner's finding that combining Himayat and Panchal
produces "predictable results." Ans. 3; see Final Act. 2. Those "predictable
results" correspond to a reasonable expectation of success because a
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predictable occurrence corresponds to a reasonably expected occurrence.
Appellants cite no evidence to refute the Examiner's factual finding. See
Br. 8-9. Attorney argument "cannot take the place of evidence." In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Appellants' argument also disregards Himayat' s disclosure that
multimode devices with L TE and WiFi capabilities rest on widely adopted
standards, i.e., 3GPP (LTE) and IEEE 802.11 (WiFi). Himayat ,r,r 3--4, 25,
76. Panchal's networks similarly rest on 3GPP standards. Panchal
,r,r 10-12, 22-25, 34, 77, 82, 84--87, 90, Figs. 1-3. "In cases involving ...
mechanical or electrical elements," "known scientific laws" permit
prediction of performance characteristics. See In re Fisher, 427 F.2d 833,
839 (CCPA 1970). Consistent with that principle, Appellants do not assert
that a person of ordinary skill would have difficulty implementing
technology based on 3GPP standards and IEEE 802.11 standards. See
Br. 8-9.
Nor do Appellants direct us to any alleged incompatibilities between
3GPP standards and IEEE 802.11 standards. See Br. 8-9. To the contrary,
Himayat notes that "various 3GPP standards" contemplate "network based
offloading techniques" for transferring data traffic from a WW AN (L TE)
link to a WLAN (WiFi) link. Himayat ,r 4; see id. ,r,r 17-18. Appellants
concede that "L TE communication companies have been" offloading data
traffic "for years." Br. 7.
Also, Himayat explains that "[t]hose skilled in the art would
understand that the presently described techniques may be used in a variety
of multi-communication UE devices with 3G/4G (including UMTS or GSM)
and WiFi Capabilities, as well as integrated multi-radio base-stations."
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Himayat ,r 75. Thus, a person of ordinary skill would have reasonably
expected multimode devices with L TE and WiFi capabilities to work in
Panchal' s networks. "A person of ordinary skill is also a person of ordinary
creativity, not an automaton," and "in many cases ... will be able to fit the
teachings of multiple patents together like pieces of a puzzle." KSR,
550 U.S. at 420-21.
In addition, Agarwal discloses a network having nodes with L TE and
WiFi capabilities and explains that "some or all of the necessary radio access
technology may incorporate" commercial, off-the-shelf components. See,
e.g., Agarwal ,r,r 11-12, 30-33, 37, 48, 55, Figs. 2-3. Agarwal evidences
the level of ordinary skill in the art and shows that a person of ordinary skill
would have reasonably expected multimode devices with L TE and WiFi
capabilities to work in Panchal' s networks.
SUMMARY FOR CLAIMS 1, 9, AND 16
For the reasons discussed above, Appellants' arguments have not
persuaded us that the Examiner erred in rejecting claims 1, 9, and 16 for
obviousness based on Panchal and Himayat. Hence, we sustain the § 103
rejection of these independent claims.
The§ 103 Rejections of Claims 2, 5---8, 10, 13-15, 17, 18, and 22
Claims 2 and 5-8 depend directly or indirectly from claim 1;
claims 10 and 13-15 depend directly from claim 9; and claims 17, 18,
and 22 depend directly from claim 16. Appellants do not argue patentability
separately for these dependent claims. Br. 6-9. Hence, we sustain the § 103
rejections of these dependent claims for the same reasons as the independent
claims. See 37 C.F.R. § 4I.37(c)(l)(iv).
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DECISION
We affirm the Examiner's decision to reject claims 1, 2, 5-10, 13-18,
and 22.
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). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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