Ex Parte Chen et al

Patent Trial and Appeal Board

Jul 25, 2018

12969165 (P.T.A.B. Jul. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/969,165 12/15/2010
23494 7590 07/27/2018
TEXAS INSTRUMENTS IN CORPORA TED
PO BOX 655474, MIS 3999
DALLAS, TX 75265
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
RunhuaChen
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.
TI-68857 3722
EXAMINER
KELLEY, STEVEN SHAUN
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
07/27/2018 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):
uspto@ti.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUNHUA CHEN and EKO N. ONGGOSANUSI
Appeal 2017-011369
Application 12/969, 165
Technology Center 2600
Before JOSEPH L. DIXON, ERIC S. FRAHM, 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 rejections
of claims 1-13 and 22--41, i.e., all pending claims. Because the claims have
been twice rejected, we have jurisdiction under 35 U.S.C. §§ 6(b) and
134(a). SeeExparteLemoine,46USPQ2d 1420, 1423 (BPAI 1994)
(precedential).
We affirm.
1 Appellants identify the real party in interest as Texas Instruments
Incorporated. App. Br. 1.
Appeal 2017-011369
Application 12/969, 165
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns "wireless
telephony." Spec. 1 :7-8.2 The Specification explains that in a "method of
implicit channel state information (CSI) feedback for multiuser multiple
input, multiple output (MU-MIMO) communication between a base station
( eNB) and a plurality of user equipment (UE)": (1) each "user equipment
report[ s] a plurality of single user precoding matrix indicators (PMI)
including a first PMI indicating a recommended optimum precoding matrix
and at least one further PMI indicating information for beamforming at [the]
base station"; and (2) the "base station communicates with each user
equipment based on precoding matrix indicators received from the plurality
of user equipment." Abstract.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows:
1. A method of implicit channel state information (CSI)
feedback for communication between a base station ( eNB) and
a plurality of user equipment (UE), comprising the steps of:
at least one of said plurality of user equipment reporting
a plurality of single user precoding matrix indicators (PMI)
including
2 This decision uses the following abbreviations: "Spec." for the
Specification, filed December 15, 2010; "Non-Final Act." for the Non-Final
Office Action, mailed January 12, 2017; "App. Br." for the Appeal Brief,
filed May 10, 2017; "Ans." for the Examiner's Answer, mailed July 13,
2017; and "Reply Br." for the Reply Brief, filed September 7, 2017.
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a first PMI indicating a recommended optimum
precoding matrix for single user multiple input, multiple
output (SU-MIMO) communication between said base
station ( eNB) and said at least one of said plurality of
user equipment, and
at least one further PMI indicating information for
beamforming between said base station and said at least
one of said plurality of user equipment; and
the base station communicating with each user equipment
based on precoding matrix indicators received from the
plurality of user equipment.
App. Br. Claims App'x 1.
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
Pan et al. US 2009/0046801 Al Feb. 19,2009
("Pan")
Lee et al. US 2009/0207784 Al Aug. 20, 2009
("Lee")
Khojastepour et al. US 2009/0274225 Al Nov. 5, 2009
("Kho j astepour")
Liu et al. US 2009/0325591 Al Dec. 31, 2009
("Liu")
Noh et al. US 2010/0039928 Al Feb. 18,2010
("Noh")
Sivanesan et al. US 2011/0013563 Al Jan. 20, 2011
("Sivanesan") (filed Aug. 27, 2010)
Lim et al. US 2011/0105164 Al May 5, 2011
("Lim") (filed Jan. 10, 2011)
Kim et al. US 2011/0122971 Al May 26, 2011
("Kim") (filed Mar. 16, 2007)
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The Rejections on Appeal
Claims 1, 11, 22, and 32 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Kim. Non-Final Act. 2.
Claims 1, 11, 22, and 32 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim and Pan. Non-Final Act. 3.
Claims 2, 23, and 33 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim and either Liu or Noh or alternatively over Kim, Pan,
and either Liu or Noh. Non-Final Act. 4.
Claims 3, 24, and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim, Pan, either Liu or Noh, and Lee. Non-Final Act. 5.
Claims 4, 25, and 35 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim, Pan, either Liu or Noh, and Khojastepour.
Non-Final Act. 5---6.
Claims 5, 6, 26, 27, 36, and 37 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kim, Pan, and Lee. Non-Final Act. 6-7.
Claims 7, 28, and 38 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim, Pan, Lee, and Khojastepour. Non-Final Act. 7-8.
Claims 8, 9, 29, 30, 39, and 40 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kim, Pan, and Liu. Non-Final Act. 8-9.
Claims 10, 31, and 41 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim, Pan, and Sivanesan. Non-Final Act. 9-10.
Claims 12 and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kim, Pan, and Lim. Non-Final Act. 10-13.
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ANALYSIS
We have reviewed the rejections of claims 1-13 and 22--41 in light of
Appellants' arguments that the Examiner erred. For the reasons explained
below, we disagree with Appellants' assertions regarding Examiner error.
We adopt the Examiner's findings and reasoning in the Non-Final Office
Action (Non-Final Act. 2-13) and Answer (Ans. 3-8). We add the
following to address and emphasize specific findings and arguments.
The§ 102(e) Rejection of Claims 1, 11, 22, and 32
"FIRST PMI" AND "FURTHER PMI"
Appellants argue that the Examiner erred in rejecting independent
claims 1, 22, and 32 because Kim does not disclose the claimed "first PMI
indicating a recommended optimum precoding matrix" for SU-MIMO
communication and the claimed "further PMI indicating information for
beamforming." See App. Br. 9-12; Reply Br. 1-5. Appellants note that the
Examiner relies on Kim paragraph 84 and Figure 7 for the disputed
limitations, i.e., Kim's disclosure of feedback information for the SU-MIMO
mode. App. Br. 10-11; see Non-Final Act. 2. That feedback information
includes (1) a "precoding matrix index" corresponding to the "first PMI
indicating a recommended optimum precoding matrix" and (2) a
"beamforming vector index" corresponding to the "further PMI indicating
information for beamforming." Kim ,r 84; see Non-Final Act. 2.
Appellants argue that "FIG. 7 and the discussion of the steps in FIG. 7
in paragraph [0084] in Kim do not agree with one another or with [the]
Examiner's [anticipation] determination." App. Br. 11; Reply Br. 2. More
specifically, Appellants assert that Figure 7 "shows that when deciding to
support the SU-MIMO mode in step 714, the receiver generates the feedback
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information" according to step 718 for the MU-MIMO mode, and
paragraph 84 "teaches that when deciding to support the MU-MIMO mode,
the receiver generates feedback information" lacking a "beamforming vector
index." App. Br. 11; Reply Br. 2.
Appellants' arguments do not persuade us of Examiner error because
they disregard a clear error in Kim Figure 7. Figure 7 is reproduced below:
NO
NO
GENERATE AND SEND
FEEDBACK INFO MAPPED TO GENERATE AND SEND FEEDBACK GENERATE AND SENO
SU-MIMO 716 INFO MAPPED TO MU-MIMO 718 LONG-TERM FEEDBACK INFO -712
ALLOCATE TRANSMISSION
PARAMETERS
ENO
720
Figure 7 shows a flowchart for a feedback scenario where a receiver
generates feedback information to support various communication modes
and sends the feedback information to a transmitter that uses the feedback
information to communicate with the receiver. Kim ,r,r 25, 75-85, Fig. 7.
In Figure 7's flowchart, step 714 includes the question "SU-MIMO?"
Kim Fig. 7. A "YES" answer denotes the SU-MIMO mode, while a "NO"
answer denotes the MU-MIMO mode. Id. ,r 84. In Figure 7's flowchart,
step 716 concerns the SU-MIMO mode, while step 718 concerns the
MU-MIMO mode. Id. ,r 84, Fig. 7. So step 716 corresponds to a "YES"
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answer to the question "SU-MIMO?", while step 718 corresponds to a "NO"
answer. Figure 7 shows the paths from step 714 to steps 716 and 718 with
the "YES" and "NO" labels incorrectly reversed, as a person of ordinary
skill in the art would readily recognize. See Ans. 3.
Kim explains that a receiver sends feedback information to a
transmitter to permit the transmitter to communicate with the receiver in the
receiver's operating mode. Kim ,r,r 11-17, 37--46, 54--63, 75-85.
Appellants make no attempt to explain why a receiver operating in the
SU-MIMO mode would provide a transmitter with feedback information for
the MU-MIMO mode. App. Br. 10-12; Reply Br. 1-5. For a receiver
operating in the SU-MIMO mode, a transmitter could not use feedback
information for the MU-MIMO mode to support the receiver's SU-MIMO
mode.
Further, Kim paragraph 84 clarifies Figure 7 and reads as follows:
When deciding to support the SU-MIMO mode in step 714,
the receiver generates the feedback information (step 716).
At this time, the generated feedback information is constructed
with a precoding matrix index, a beamforming vector index and
a CQI value(s). The receiver sends the feedback information to
the transmitter. When deciding to support the MU-MIMO
mode, the receiver generates feedback information with a
precoding matrix index and CQI values. Then, the receiver
sends the generated feedback information to the transmitter
(step 718).
Kim i184.
In addition, Kim Figure 4 illustrates a simplified variation of
Figure 7's feedback scenario and shows the "YES" and "NO" paths from the
question "SU-MIMO?" correctly labeled. Figure 4 is reproduced below:
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GENERATE AND SEND
FEEDBACK
·1NFO MAPPED TO MU-MIMO
NO
414
START
GENERATE AND SEND FEEDBACK
INFO MAPPED TO SU-MIMD
ALLOCATE TRANSMISSION
PARAMETERS
END
412
416
Figure 4 shows a flowchart for a feedback scenario where a receiver
generates feedback information to support various communication modes
and sends the feedback information to a transmitter that uses the feedback
information to communicate with the receiver. Kim ,r,r 22, 57--63, Fig. 4.
Just as Kim paragraph 84 describes Figure 7's feedback scenario, Kim
paragraph 62 describes Figure 4's feedback scenario. Paragraph 62 reads as
follows:
If the SU-MEMO [sic] mode is supported, the receiver
generates feedback information (step 412). The generated
feedback information is constructed with [a] precoding matrix
index, a beamforming vector index, a rank selection value, and
CQI values. Otherwise, if the MU-MIMO mode is supported,
the receiver generates feedback information based on a
precoding matrix index and CQI values (step 414). The
receiver transmits to the transmitter the feedback information
generated in step 412 or 414.
Kim ,r 62. Like paragraph 84, paragraph 62 discloses feedback information
for the SU-MIMO mode that includes (1) a "precoding matrix index"
corresponding to the "first PMI indicating a recommended optimum
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precoding matrix" and (2) a "beamforming vector index" corresponding to
the "further PMI indicating information for beamforming." Paragraph 62
confirms that paragraph 84 correctly describes Figure 7's feedback scenario.
Appellants assert that "Examiner provides no evidence to support his
determination that section [0084] is correct." Reply Br. 4. We disagree.
Steps 714, 716, and 718 in Figure 7 contain text, and that text itself supports
the Examiner's determination. Kim Fig. 7. Moreover, Kim's explanation
that a receiver sends feedback information to a transmitter to permit the
transmitter to communicate with the receiver in the receiver's operating
mode supports the Examiner's determination. See, e.g., Kim ,r,r 11-17,
37--46,54---63, 75-85.
Appellants contend that "it would be equally plausible" that the paths
from step 714 to steps 716 and 718 with the "YES" and "NO" labels in
Figure 7 "are properly labeled and in fact it is the description in paragraph
[0084] which is not consistent with Fig. 7." Reply Br. 3. We disagree. As
explained above, the text in steps 714, 716, and 718 indicates an error in the
"YES" and "NO" labels in Figure 7. Step 716 concerning SU-MIMO
feedback corresponds to a "YES" answer to the question "SU-MIMO?'',
while step 718 concerning MU-MIMO feedback corresponds to a "NO"
answer. In addition, Kim's descriptions of Figure 7's feedback scenario,
Figure 4's feedback scenario, and other embodiments demonstrate clear
error in Figure 7. See, e.g., Kim ,r,r 11-17, 37--46, 50-63, 75-85,
Figs. 3--4, 7.
Further, in the Answer, the Examiner finds that "step 716 taken singly
is sufficient for anticipation." Ans. 3; see Kim ,r 84, Fig. 7 (step 716); see
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also id. ,r 62, Fig. 4 (step 412). In the Reply Brief, Appellants do not
address that finding. Reply Br. 1-15.
"PMI INDICATING A RECOMMENDED OPTIMUM PRECODING MATRIX"
Appellants assert that the Examiner erred in rejecting claims 1, 22,
and 32 because Kim does not disclose a "PMI indicating a recommended
optimum precoding matrix" as required by the claims. Reply Br. 5---6.
Appellants quote Kim paragraph 94: "[T]he present invention can provide a
unique feedback protocol for generating optimal feedback information while
taking into consideration an operating mode, a feedback scheme, and the
like, in a multi-antenna system." Id. at 6. Appellants then contend that
paragraph 94: (1) "is a generic statement that says the present invention
'CAN' -NOT 'JS' or 'DOES' provide a feedback protocol for generating
optimal feedback information"; (2) "does not teach that the generated (PMI)
feedback information JS 'optimal"'; and (3) "does not identify the type of
feedback it is referring to," e.g., SU-MIMO information, MU-MIMO
information, or "some other feedback information." Id.
Appellants' arguments do not persuade us of Examiner error. The
"'dispositive question regarding anticipation [i]s whether one skilled in the
art would reasonably understand or infer from the [prior art reference's]
teaching' that every claim element was disclosed in that single reference."
Dayco Prods., Inc. v. Total Containment, Inc., 329 F.3d 1358, 1368-69
(Fed. Cir. 2003) (quoting In re Baxter Travenol Labs., 952 F.2d 388, 390
(Fed. Cir. 1991) (alterations in original).
Based on Kim's disclosure, one skilled in the art would reasonably
understand or infer that paragraph 94 addresses all feedback information,
including SU-MIMO information. See, e.g., Kim ,r,r 11-17, 37--46, 50---63,
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75-85, 94, Figs. 3--4, 7. For instance, Kim broadly instructs that "[t]he
generated feedback information can be constructed with optimal information
in a target feedback protocol scenario." Id. ,r 39; see id. ,r 11. In addition,
one skilled in the art would reasonably understand or infer that the word
"can" in paragraph 94 describes a capability existing in all embodiments,
including Figure 7's feedback scenario.
SUMMARY
For the reasons discussed above, Appellants' arguments have not
persuaded us that the Examiner erred in rejecting claims 1, 22, and 32 as
anticipated by Kim. Hence, we sustain the § 102( e) rejection of claims 1,
22, and 32. In addition, claim 11 depends from claim 1. Appellants do not
argue patentability separately for claim 11. App. Br. 13. Thus, we sustain
the § 102( e) rejection of claim 11 for the same reasons as claim 1. See
37 C.F.R. § 4I.37(c)(l)(iv).
The§ 103(a) Rejection of Claims 1, 11, 22, and 32
For the§ 103(a) rejection of claims 1, 11, 22, and 32, Appellants
repeat the arguments for the § 102( e) rejection. Compare App. Br. 14--18,
with id. at 9-13. Appellants also assert that "Pan is not relied upon as
teaching" the "deficiencies in Kim." Id. at 1 7-18.
For the reasons explained above, however, there are no "deficiencies
in Kim." Further, to the extent that Kim does not describe the disputed
limitations in claims 1, 22, and 32 as required by § 102( e ), Kim still teaches
or suggests those limitations. See Kim ,r,r 84, 94, Fig. 7; see also id. ,r,r 11,
39, 62, Fig. 4. Hence, we sustain the§ 103(a) rejection of claims 1, 11, 22,
and 32.
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The§ 103(a) Rejection of Claims 2, 23, and 33
Claims 2, 23, and 33 depend from claims 1, 22, and 32, respectively,
and specify that the "information in said at least one further PMI indicates a
maximum distance to the first PMI." App. Br. Claims App'x 1, 3, 5.
Appellants assert that the Examiner erred in rejecting claims 2, 23, and 33
because "substantial re-engineering would be required to combine" either
Liu or Noh with Kim and Pan. App. Br. 20-22; see Reply Br. 15.
Appellants' assertions constitute attorney argument. Attorney argument
"cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974). Further, the references all concern MIMO communications,
and Appellants fail to explain why "substantial re-engineering would be
required to combine" them. App. Br. 20-22. For instance, Appellants do
not direct us to any alleged incompatible components or incongruous
circuitry. See id. Hence, Appellants' assertions do not persuade us of
Examiner error.
Appellants contend that Liu's "chordal distance" between "codebook
matrices" does not correspond to a distance between PMis. See App. Br. 20
(emphasis omitted); Reply Br. 11-12. In response, the Examiner explains
that "Liu's teachings of determining a maximum threshold distance of
'precoding matrices' is using a 'maximum distance between PMis', as
recited." Ans. 4; see Non-Final Act. 4; Liu ,r,r 59, 112, 136-139. For
example, Liu discloses that a subscriber station feeds back PMI information,
e.g., a PMI or codebook vector, to a base station. Liu ,r,r 59, 112. The
subscriber station "identifies preferred codebook vectors or matrices," e.g.,
a "codebook vector or matrix that maximizes a receive signal power" or
"maximizes some other performance measures." Id. ,r 115; see id. ,r,r 52,
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118-119, claim 13. The subscriber station may do so by computing a
"chordal distance" to determine a "codebook vector or matrix that
maximizes" a "performance measure." Id. ,r,r 136-139. By disclosing
"chordal distance" determinations to maximize performance measures, Liu
teaches or suggests a "maximum distance to the first PMI" according to
claims 2, 23, and 33.
In addition, Appellants contend that "Noh does NOT teach or suggest,
'transmitting multiple PMis' as determined by the Examiner." App. Br. 21.
That contention attacks the references individually. Where a rejection rests
on a combination of references, an appellant cannot establish
nonobviousness by attacking the references individually. See In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner explains
that "the teaching of 'sending multiple PMis' is shown in both the Kim and
Pan references (as applied to the independent claims)." Ans. 4; see
Non-Final Act. 2-3. And Noh discloses "chordal distance" determinations
and matrix selection based on a "maximum chordal distance." Noh ,r,r 172-
178, 185, 192, Fig. 9; see Non-Final Act. 4.
Appellants allege that "Noh fails to teach or suggest HOW a CSI
report is accomplished at a UE." App. Br. 21. But that alleged deficiency
does not diminish Noh's disclosure of "chordal distance" determinations and
matrix selection based on a "maximum chordal distance." A reference
constitutes prior art under § 103 (a) "for whatever is disclosed therein."
Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1357 (Fed. Cir.
2003). As Appellants admit, a "reference teaches what it teaches." App.
Br. 11; Reply Br. 4.
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Because Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claims 2, 23, and 33 based on Kim, Pan, and
either Liu or Noh, we sustain the§ 103(a) rejection of these dependent
claims.
The§ 103(a) Rejection of Claims 3, 24, and 34
Claims 3, 24, and 34 depend from claims 2, 23, and 33, respectively,
and specify that the "maximum distance is a Euclidean distance." App. Br.
Claims App'x 1, 4, 5. Appellants argue that the Examiner erred in rejecting
claims 3, 24, and 34 because Lee "associates Euclidean distance of the
CQI/PMI codes with a 'minimum distance', and NOT a maximum distance."
App. Br. 22-23; see Reply Br. 13. Appellants also argue that "[t]here is no
teaching or suggestion in Lee that 'maximum distance' could, or should, be
substituted for 'minimum distance'." App. Br. 23; Reply Br. 13.
Appellants' arguments do not persuade us of Examiner error because
the Examiner relies on the combination of disclosures in the references-not
Lee alone-to teach or suggest the subject matter of claims 3, 24, and 34.
Ans. 5; see Non-Final Act. 2-5. "[T]he test for combining references is not
what the individual references themselves suggest but rather what the
combination of disclosures taken as a whole would suggest to one of
ordinary skill in the art." In re McLaughlin, 443 F.2d 1392, 1395 (CCP A
1971 ). Here, the Examiner finds that "Lee teaches using Euclidean distances
between PMis." Non-Final Act. 5 (citing Lee ,r 82). The Examiner explains
that "the teaching of the maximum distance is taught by Liu or Noh and that
one of ordinary skill in the art would realize that Euclidean distances taught
in Lee are applicable to any type of distance." Ans. 5.
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Because Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claims 3, 24, and 34 based on Kim, Pan, either
Liu or Noh, and Lee, we sustain the§ 103(a) rejection of these dependent
claims.
The§ 103(a) Rejection of Claims 4, 25, and 35
Claims 4, 25, and 35 depend from claims 2, 23, and 33, respectively,
and specify that the "maximum distance is a Fubini-norm distance."
App. Br. Claims App'x 1, 4, 5. Appellants assert that the Examiner erred in
rejecting claims 4, 25, and 35 because Khojastepour "associates Fubini-
study metric with a 'minimum distance', NOT a maximum distance." App.
Br. 24; Reply Br. 14. Appellants also assert that "there is no teaching or
suggestion in Khojastepour that 'maximum distance' could, or should, be
substituted for 'minimum distance'." App. Br. 24--25; Reply Br. 14.
Appellants' assertions do not persuade us of Examiner error because
the Examiner relies on the combination of disclosures in the references-not
Khojastepour alone-to teach or suggest the subject matter of claims 4, 25,
and 35. Ans. 5; see Non-Final Act. 2--4, 5---6. In particular, the Examiner
finds that "Khojastepour teaches using Fubini distances between PMis."
Non-Final Act. 6 (citing Khojastepour ,r 31). The Examiner explains that
"the teaching of the maximum distance is taught by Liu or Noh, and that one
of ordinary skill in the art would realize that Fubini-norm distances taught in
Khojastepour are applicable to any type of distance." Ans. 5.
Because Appellants' assertions have not persuaded us that the
Examiner erred in rejecting claims 4, 25, and 35 based on Kim, Pan, either
Liu or Noh, and Khojastepour, we sustain the§ 103(a) rejection of these
dependent claims.
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The§ 103(a) Rejections of Claims 5-7, 26-28, and 36-38
Claims 5-7 depend directly or indirectly from claim 1; claims 26-28
depend directly or indirectly from claim 22; and claims 36-38 depend
directly or indirectly from claim 32. App. Br. Claims App'x 2, 4--5. For
these dependent claims, Appellants do not argue patentability separately and
instead rely on the arguments for the independent claims. App. Br. 25-28.
Because Appellants do not argue the claims separately, we sustain the
§ 103(a) rejections of these dependent claims for the same reasons as the
independent claims. See 37 C.F.R. § 4I.37(c)(l)(iv).
The§ 103(a) Rejection of Claims 8, 9, 29, 30, 39, and 40
Claims 8, 29, and 39 depend from claims 1, 22, and 32, respectively,
and specify that the "information in said at least one further PMI indicates a
highest correlation to the first PMI." App. Br. Claims App'x 2, 4, 6.
Claims 9, 30, and 40 depend from claims 1, 22, and 32, respectively, and
specify that the "information in said at least one further PMI indicates a
lowest correlation to the first PMI." Id. at 2, 4, 6.
Appellants assert that the Examiner erred in rejecting these dependent
claims because "substantial re-engineering would be required to combine"
Liu with Kim and Pan. App. Br. 29, 31; see Reply Br. 15. Appellants'
assertions constitute attorney argument. Attorney argument "cannot take the
place of evidence." Pearson, 494 F.2d at 1405. Further, the references all
concern MIMO communications, and Appellants fail to explain why
"substantial re-engineering would be required to combine" them. App.
Br. 29, 31. Again, Appellants do not direct us to any alleged incompatible
components or incongruous circuitry. See id. Hence, Appellants' assertions
do not persuade us of Examiner error.
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Appellants contend that "Liu does not teach or suggest feeding back
more than one PMI for a same user to a base station." App. Br. 29, 31. That
contention attacks the references individually. As noted above, where a
rejection rests on a combination of references, an appellant cannot establish
nonobviousness by attacking the references individually. See Merck,
800 F .2d at 1097. Here, the Examiner finds that: ( 1) "both Kim and Pan
teach feeding back more than one PMI to the user"; and (2) "one of ordinary
skill would understand that the concept in Liu could be applied to situations
where multiple PMI[ s] are fed back." Ans. 6. Further, the Examiner relies
on the combination of disclosures in the references to teach or suggest the
subject matter of claims 8, 9, 29, 30, 39, and 40. Non-Final Act. 8-9.
For claims 8, 29, and 39, Appellants quote Liu's explanation that a
subscriber station "indirectly feeds back the code book vector that will cause
the highest interference" to the subscriber station's own signal. App.
Br. 29-30 ( quoting Liu ,r 59) ( emphasis omitted). Based on that
explanation, Appellants argue that Liu's disclosure of feeding back a
codebook vector corresponding to the highest interference concerns "the
'lowest correlation to the first PMI-NOT the highest correlation to the first
PMI' ." Id. at 30. But Liu explains that an interfering base station uses the
feedback relating to the highest interference at the subscriber station rather
than the subscriber station's serving base station. See Liu ,r,r 4, 56-59.
"[T]he interfering base station excludes the reported codebook vector from
the codebook" employed for selection. Id. ,r 59. The subscriber station also
feeds back a "codebook vector or matrix that maximizes the signal-to-noise
ratio (SNR)" of the signal received from the subscriber station's serving base
station. Id. ,r 55; see id. ,r,r 4, 52, 115, 118-119, claim 13. Based on
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Appellants' own reasoning, that feedback for the serving base station-
rather than the interfering base station-relates to the "highest correlation to
the first PMI."
For claims 8, 29, and 39, Appellants urge that the language in Liu
claim 14 about selecting a "closest" precoding matrix "may be nothing more
than an attempt to protect the scope of the invention rather than the actual
disclosure of the invention." App. Br. 30. But a reference must be
considered in its entirety for what it fairly teaches or suggests to those
skilled in the art. See In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982);
see also Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir.
1989). Patent publications "are part of the literature of the art, relevant for
all they contain." See In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968).
Also, Appellants argue that "'close' is only defined with respect to a
distance metric, while correlation is mathematically well defined." App.
Br. 30. But Appellants fail to identify any supporting evidence or provide
any definitions. Further, "during examination proceedings, claims are given
their broadest reasonable interpretation consistent with the specification."
In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). Consistent with the
Specification here, the phrase "highest correlation" when broadly but
reasonably interpreted encompasses "closest" as disclosed in Liu. See
Ans. 6-7; Spec. 11 :8-12: 12; Liu claim 14.
For claims 9, 30, and 40, Appellants contend that Liu's disclosure of
feedback regarding "restricted" PMI information "might imply a 'lesser'
correlation" but does not "further teach[] or suggest[] that such 'lesser'
correlation is [the] 'lowest correlation'." App. Br. 31 ( citing Liu ,r,r 134--137
and claims 6, 11, 15, and 23). But that contention conflicts with Appellants'
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concession that Liu teaches a "lowest correlation to the first PMI." Id.
at 29--30 ( quoting Liu ,r 59).
Moreover, an obviousness analysis "can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). A person of
ordinary skill "must be presumed to know something" about the art "apart
from what the references disclose." In re Jacoby, 309 F.2d 513, 516
(CCP A 1962). "A person of ordinary skill is also a person of ordinary
creativity, not an automaton." KSR Int 'l, 550 U.S. at 421. Accordingly, a
person of ordinary skill would appreciate that Liu teaches or suggests a
"lowest correlation to the first PMI" according to claims 9, 30, and 40. See
App. Br. 30 ("the 'lowest correlation to the first PMI-NOT the highest
correlation to the first PMI"').
Because Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claims 8, 9, 29, 30, 39, and 40 based on Kim,
Pan, and Liu, we sustain the§ 103(a) rejection of these dependent claims.
The§ 103(a) Rejection of Claims 10, 31, and 41
Claims 10, 31, and 41 depend from claims 1, 22, and 32, respectively,
and specify that the "further PMI consist[ s] of a sequence" and "each PMI in
the sequence indicat[ es] a next best precoding matrix for single user multiple
input, multiple output (SU-MIMO) communication." App. Br. Claims
App'x 2, 4, 6. Appellants argue that the Examiner erred in rejecting
claims 10, 31, and 41 because they "require reporting a first PMI and a
second PMI on the same band" and, in contrast, "Sivanasen [sic] teaches
feedback PMI on multiple bands." App. Br. 32.
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Appellants' arguments do not persuade us of Examiner error because
claims 10, 31, and 41 do not "require reporting a first PMI and a second PMI
on the same band." App. Br. Claims App'x 2, 4, 6. Moreover, even if the
claims included that requirement, the Examiner finds that "that both Kim
and Pan teach 'reporting on the same band'." Ans. 7; see Non-Final
Act. 9--10.
Because Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claims 10, 31, and 41 based on Kim, Pan, and
Sivanesan, we sustain the§ 103(a) rejection of these dependent claims.
The § 103 (a) Rejection of Claims 12 and 13
Dependent claims 12 and 13 read as follows:
12. The method of claim 1, wherein:
when the recommended optimum precoding matrixes
transmitted by two user equipments differ, the base station
communicates to the two user equipments based on a
corresponding recommended optimum precoding matrix
transmitted by each user equipment.
13. The method of claim 1, wherein:
when the recommended optimum precoding matrix
transmitted by two user equipments are equal, the base station
communicates to
a first user equipment based on a corresponding
recommended optimum precoding matrix transmitted by
the first user equipment, and
a second user equipment based on a precoding
matrix indicated by the at least one further PMI of the
second user equipment.
App. Br. Claims App'x 3.
Appellants assert that the Examiner erred in rejecting claims 12
and 13 because "Lim fails to teach the deficiencies of Kim/Pan as applied to
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Claim 1." App. Br. 33-34. For the reasons explained above, however, there
are no such deficiencies.
Appellants contend that "Kim/Pan does not teach HOW beamforming
to UEs are performed at the eNB." App. Br. 33. But claims 1, 12, and 13
contain no requirements regarding how a base station ( eNB) performs
beamforming. App. Br. Claims App'x 1, 3. Further, in the Answer, the
Examiner finds that "one of ordinary skill in the art knows how optimum
PMI and beamforming are used." Ans. 7-8. In the Reply Brief, Appellants
do not address that finding. Reply Br. 1-15.
In addition, Appellants contend that "Kim/Pan does not teach or
suggest detecting 'optimum PMI' for UE 1 and UE 2." App. Br. 33. As
explained above, however, Kim discloses or suggests a "PMI indicating a
recommended optimum precoding matrix." See, e.g., Kim ,r,r 11-17, 37--46,
50-63, 75-85, 94, Figs. 3--4, 7. Consequently, the combination of
disclosures in Kim, Pan, and Lim teaches or suggests the subject matter of
claims 12 and 13. See, e.g., Non-Final Act. 3, 10-13; Ans. 3, 7-8; Pan ,r,r 7,
20-21, 29-30, Figs. 6-9; Lim ,r 12, Figs. 3--4.
Because Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claims 12 and 13 based on Kim, Pan, and Lim,
we sustain the§ 103(a) rejection of these dependent claims.
DECISION
We affirm the Examiner's decision to reject claims 1-13 and 22--41.
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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. § 41.50(±).
AFFIRMED
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