Ex Parte Eskicioglu et al

Patent Trial and Appeal Board

Mar 8, 2017

13633287 (P.T.A.B. Mar. 8, 2017)

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.
13/633,287 10/02/2012 Suat R. Eskicioglu LUTZ 201436US01 ALU
No. 8
4295
48116 7590 03/10/2017
FAY STTARPF/T TTf’F.NT
EXAMINER
1228 Euclid Avenue, 5th Floor
The Halle Building
VU, QUOC THAI NGOC
Cleveland, OH 44115-1843 ART UNIT PAPER NUMBER
2642
NOTIFICATION DATE DELIVERY MODE
03/10/2017 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):
docketing @ faysharpe.com
ipsnarocp @ nokia. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUAT R. ESKICIOGLU, CSABA MARTON, and ALLAN DING
Appeal 2016-005224
Application 13/633,287
Technology Center 2600
Before BRADLEY W. BAUMEISTER, JON M. JURGOVAN,
and DAVID J. CUTITTAII, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—4, 6—9, 11, 12, 14—17, 19, and 20, all pending
claims of the application.1 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Alcatel-Lucent
Canada Inc. Appeal Br. 1.
2 Claims 5, 10, 13, and 18 are canceled. Appeal Br. 19—22.
Appeal 2016-005224
Application 13/633,287
STATEMENT OF THE CASE
According to Appellants, the Application relates to correlating
geographical location information from wireless user equipment with data
relating to a network map to trigger handover and redirection procedures.
Spec. 11.3 Claims 1 and 14 are independent. Claim 1 is illustrative and is
reproduced below with disputed limitations italicized:
1. A method of providing a trigger for handover or
redirection of a call session in a communications network, the
method comprising:
creating a representation of a geographical grid covering
two or more layers in a cellular network, wherein a layer is
defined as a unique combination comprising a cellular
technology paired with a carrier frequency and the geographical
grid is divided into a plurality of grid-zones;
collecting data for the layers within the representation of
the geographical grid from a plurality of user equipments and
storing the data in a network map database,
wherein the data is used for calculating one or more
network key performance indicator (KPI) statistics on a per grid-
zone basis per technology and carrier frequency, wherein the one
or more KPI statistics include one or more of an establishment
success rate (ESR), a session drop rate (SDR), and a call drop
rate (CDR);
obtaining geographical location information from a
particular user equipment, wherein the particular user equipment
is involved in a call session with a given cellular technology and
a given carrier frequency;
3 Throughout this Opinion, we refer to the following documents:
(1) Appellants’ Specification filed October 2, 2012 (Spec.); (2) the Final
Office Action (Final Act.) mailed February 11, 2015; (3) the Appeal Brief
(Appeal Br.) filed September 2, 2015; (4) the Examiner’s Answer (Ans.)
mailed February 23, 2016; and (5) the Reply Brief (“Reply Br.”) filed
April 19, 2016.
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Application 13/633,287
mapping the geographical location information for the
particular user equipment to a particular grid-zone in the
representation of the geographical grid; and
using at least one of the one or more network KPI statistics for
the particular grid-zone to proactively trigger a handover or
redirection of the call session to a target cell.
Appeal Br. 18 (Claims App’x).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Wegner
Patel
Cankaya et al.
(“Cankaya”)
Wafta et al. (“Wafta”)
Axmon et al. (“Axmon”)
US 6,463,287 B1
US 6,850,764 B1
US 7,236,767 B1
US 2010/0297979 Al
WO 2012/154112 Al
Oct. 8, 2002
Feb. 1,2005
June 26, 2007
Nov. 25, 2010
Nov. 15,2012
REJECTIONS
Claims 1—3, 6—9, 14—16, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Axmon and Patel.
Final Act. 3—11.
Claims 4 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Axmon, Patel, Wegner, Cankaya, and
Wafta. Final Act. 11—15.
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Axmon, Patel, and Wafta. Final
Act. 15-17.
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Our review in this appeal is limited only to the above rejections and
issues raised by Appellants. We have not considered other possible issues
that have not been raised by Appellants and which are, therefore, not before
us. See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
1. Does the Examiner err in finding the combination of Axmon and
Patel teaches or suggests “mapping the geographical location information
for the particular user equipment to a particular grid-zone in the
representation of the geographical grid,” as recited in claim 1?
2. Does the Examiner err in finding the combination of Axmon and
Patel teaches or suggests “using at least one of the one or more network KPI
statistics for the particular grid-zone to proactively trigger a handover or
redirection of the call session to a target cell,” as recited in claim 1?
ANALYSIS
We disagree with Appellants’ contentions, and we adopt as our own
(1) the Examiner’s findings and reasoning set forth in the Office Action
from which this appeal is taken (Final Act. 5) and (2) the Examiner’s
reasoning set forth in the Examiner’s Answer (Ans. 2—5). We highlight the
following points for emphasis.
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Issue 1
Appellants argue the Examiner errs in rejecting claim 1 under
35 U.S.C. § 103(a) as unpatentable over the combination of Axmon and
Patel because “[wjhile Axmon . . . mentions mapping radio measurement
values to points of the grid, Axmon does not specifically disclose mapping
values of any type to grid-zones.” Appeal Br. 8 (italics added).
The Examiner finds, and we agree, that Axmon determines a user
equipment (“UE”) location from a coverage map, and the “map contains
several different location points which can be used to map the UE’s
locations.” Ans. 3. The Examiner further finds the location points are laid
out on a grid and “therefore read on the claimed 'grid-zone.’” Ans. 3 (citing
Axmon 8:3—25). As best we can discern, Appellants argue that Axmon’s
location points fail to teach or suggest the claimed “grid-zone.”
We are unpersuaded by Appellants’ argument for lack of sufficient
evidence or reasoning supporting Appellants’ assertion. In particular, by
merely asserting Axmon does not specifically disclose mapping values of
any type to grid-zones (Appeal Br. 8), Appellants fail to demonstrate why
the Examiner’s findings are erroneous. Attorney argument is not evidence.
See, e.g., Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed.
Cir. 2009) (“[Ujnsworn attorney argument... is not evidence and cannot
rebut. . . other admitted evidence . . . .”).
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Issue 2
Appellants argue Axmon “does not disclose the claimed feature of
calculating one or more network key performance indicator (KPI) statistics
(establishment success rate (ESR), a session drop rate (SDR), and call drop
rate (CDR)) on a per grid-zone basis per technology and carrier frequency,”
as recited in claim 1. Appeal Br. 9.
Such a conclusory statement, however, amounting to little more than a
paraphrasing of the claim language and a general denial, is unpersuasive to
rebut the prima facie case produced by the Examiner. Cf. 37 C.F.R.
§ 41.37(c)(iv) (“A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”);
see alsoA? reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that
the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir.
1991) (“It is not the function of this court to examine the claims in greater
detail than argued by an appellant, looking for [patentable] distinctions over
the prior art.”). We, therefore, find this argument unpersuasive.
Appellants argue Axmon does not disclose “using at least one of the
one or more network KPI statistics for the particular grid-zone to proactively
trigger a handover or redirection of the call session to a target cell” because
in Axmon, “the handover or redirection of a UE is not triggered by historical
ESR or SDR or CDR KPI statistics (proactive approach), but rather, it is
triggered by radio condition degradation and network congestion.” Appeal
Br. 9—10. Appellants further argue “Patel fails to specifically disclose the
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claimed KPI statistics or how one might use the current rate of call blocks or
failures to allocate bandwidth.”
We find these arguments unpersuasive because we agree with the
Examiner’s finding that “Axmon teaches that the derived value RSRQ
[Reference Symbol Received Quality] is used to make a decision to
handover” the call session to a target cell. Final Act. 5; Ans. 4 (citing
Axmon 22:23 — 23:7). We also agree with the Examiner’s finding that
Patel’s “bin stores usage and performance data including rate of call
blocks/failures” and the rate of call blocks/failures suggests the claimed “call
drop rate (CDR).” Final Act. 5; Ans. 4 (citing Patel 9:47 — 10:6, Fig. 5).
That is, in finding Axmon and Patel teach or suggest the claim
limitation at issue, the Examiner relies on Axmon’s RSRQ to teach the
claimed KPI statistics, and on Patel’s disclosure of rates of call
blocks/failures to specifically teach a call drop rate in the limitation
“wherein the one or more KPI statistics include one or more of an
establishment success rate (ESR), a session drop rate (SDR), and a call drop
rate (CDR).” Final Act. 5; Ans. 4—5.
“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (citing In re Keller, 642 F.2d413, 425 (CCPA 1981).
Because Appellants’ arguments are directed to each reference
considered individually, and are not directed to the combination of
respective teachings, as applied by the Examiner, on this record, we are not
persuaded the Examiner erred.
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Appellants argue in Axmon, “the handover or redirection of a UE is
not triggered by historical ESR or SDR or CDR KPI statistics (proactive
approach), but rather, it is triggered by radio condition degradation and
network congestion (reactive approach).” Appeal Br. 9—10.
We find this argument unpersuasive because Appellants’ assertion is
not commensurate with the language of claim 1. Appeal Br. 30. Hence,
Appellants argue for patentability on the basis of limitations that are not
recited in the claim. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Furthermore, we agree with the Examiner’s finding that “Axmon teaches the
network proactively command[s] (i.e., triggers]) the UE to hand over” by
issuing a cell handover command if the derived RSRQ value is determined
to be above a threshold value. Ans. 4 (citing Axmon 22:23 — 23:7).
Appellants further urge an interpretation of the claimed KPI that does
not include radio measurements, “because KPI are not radio measurements
like a signal quality measure is.” Reply Br. 10-11 (citing Spec. 45).
We find this argument unpersuasive because Appellants fail to
establish the Examiner’s interpretation of “KPI” is not the broadest
reasonable interpretation consistent with Appellants’ Specification. See In
re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under
a broadest reasonable interpretation, the words of the claim must be given
their plain meaning unless the plain meaning is inconsistent with the
specification. Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371,
1372 (Fed. Cir. 2004). The plain meaning of a term is the ordinary and
customary meaning given to the term by those of ordinary skill in the art at
the time of the invention. In re Suitco Surface, Inc., 603 F.3d 1255, 1259—
60 (Fed. Cir. 2010). The presumption that a term is given its ordinary and
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customary meaning may be rebutted by Appellants clearly setting forth a
different definition of the term in the specification. In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997).
Here, the Examiner interprets “KPI” as a “generic phrase” that
includes “signal quality measures” such as “used [to] decide a handover [in]
an UE as taught by Axmon.” Ans. 6. Appellants’ Specification does not
explicitly define a “KPI,” nor have Appellants provided any evidence or
proposed construction as to how one of ordinary skill in the art would
interpret the term. Moreover, Appellants provide insufficient evidence to
indicate why the Examiner’s interpretation of KPI is inconsistent with
Appellants’ Specification. For example, Appellants argue the Specification
is inconsistent with the Examiner’s interpretation because the Specification
discloses that “collected and calculated data includes historical KPI and
these include ESR, SOR, and COR.” Appeal Br. 11 (citing Spec. 145). We
disagree because the portion of the Specification cited by Appellants does
not limit KPI to any of these measures, but simply provides these measures
as examples.
Moreover, in contrast with Appellants’ argument, the Specification
discloses “Historical KPI statistics may include, for example, one or more of
the establishment success rate (ESR), the session drop rate (SOR), and the
call drop rate (CDR). Of course, it is to be understood that other types of
KPI statistics may be used as well.” (Spec. 139). Accordingly, we do not
agree with Appellants that the Specification defines KPI or is otherwise
inconsistent with the Examiner’s interpretation of the term “KPI.”
Furthermore, the claim itself does not limit KPI, as argued by
Appellants. See Appeal Br. 18. The claim, instead, uses open-ended
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language in reciting that “the one or more KPI statistics include one or more
of an establishment success rate (ESR), a session drop rate (SOR), and a call
drop rate (CDR).”
In view of the Examiner’s reasonable interpretation of the term “KPI”
we agree with the Examiner: Axmon’s discussion of handing over a mobile
device to a target cell if the derived RSRQ value is above a threshold teaches
or suggests claim l’s limitation of “using at least one of the one or more
network KPI statistics for the particular grid-zone to proactively trigger a
handover or redirection of the call session to a target cell.” Final Act. 5;
Ans. 4—5.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 1. We also sustain the Examiner’s § 103(a) rejection of
independent claim 14, which the Examiner finds Appellants argue using
substantially similar reasons. Ans. 6. Dependent claims 2-4, 6—9, 11, 12,
15—17, 19, and 20, are not argued separately, and are therefore properly
rejected with their respective independent claims. Appeal Br. 17.
DECISION
We affirm the Examiner’s decision rejecting claims 1—4, 6—9, 11, 12,
14—17, 19, and 20 under 35 U.S.C. § 103(a).
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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