Ex Parte Giesberts et al

Board of Patent Appeals and Interferences

Sep 14, 2010

10949444 (B.P.A.I. Sep. 14, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PIETER-PAUL SEVERIN GIESBERTS and TIM SCHENK
____________________

Appeal 2009-007700
Application 10/949,4441
Technology Center 2600

____________________

Before KENNETH W. HAIRSTON, MARC S. HOFF,
and BRADLEY W. BAUMEISTER, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge HOFF.

Opinion Concurring-in-part and dissenting-in-part filed by Administrative
Patent Judge BAUMEISTER.

HOFF, Administrative Patent Judge

DECISION ON APPEAL2

1 The real party in interest is AGERE Systems Inc.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or filing a request for rehearing, as
recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper
delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode)
shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-007700
Application 10/949,444

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-25.3 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appellants’ invention relates to a wireless communication device and
method for automatic data rate control that includes a data rate controller
that adapts a transmission rate of transmitted data based on a measure of
channel correlation. The channel correlation measure may be in eigenvalues
or singular values of channel matrix. Signal quality, channel delay spread,
or both may be used by the data controller to determine the data rate.
(Abstract).
Claim 1 is exemplary:
1 A wireless communication device, comprising:
a data rate controller that adapts a transmission rate of transmitted
data based on a measure of channel correlation.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Felix US 6,233,231 B1 May 15, 2001
Kadous US 7,184,713 B2 Feb. 27, 2007
Kobayashi US 7,206,606 B2 Apr. 17, 2007

3 Since the claims recited in the “Status of Claims” section (App. Br. 2), the
“Grounds of Rejection” section (App. Br. 3), the “Arguments” section (App.
Br. 3-6) and the “Conclusion” (App. Br. 6) do not align, ambiguity exists as
to Appellants’ intention regarding which claims are subject to appeal. We
find, however, that there is no “clear statement” that Appellants [[[did not
intend]]] to appeal all of the claims rejected pursuant to 35 USC 102. See Ex
parte Ghuman, 88 USPQ2d 1478 (BPAI 2008).
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Claims 1-6, 10, 13-18, 20, and 23 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Kadous.
Claims 7 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kadous in view of Felix.
Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kadous.
Claims 11-12 and 21-22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kadous in view of Kobayashi.
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Appeal Brief (filed June 9, 2008), the Reply Brief
(filed October 3, 2008), and the Examiner’s Answer (mailed enter date
September 3, 2008) for their respective details.

ISSUE
Appellants contend that Kadous does not disclose nor suggest
adapting a transmission rate based on channel correlation as the claims
require (App. Br. 4). Appellants assert that the term "channel correlation" is
well understood in the art and has supporting disclosure in the Specification
denoting that the channel correlation measure is a matrix containing the
eigenvalues of a channel matrix (FF 1 and 2; Reply Br. 2-3).
Appellants’ contentions present us with the following issue: Does
Kadous disclose a wireless communication device comprising a data rate
controller that adapts a transmission rate of transmitted data based on a
measure of channel correlation?

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FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
The Invention
1. A data rate advisor 610 located within an automatic data rate
controller 600 of the transceiver 200 in accordance with the present
invention selects a data rate based upon the channel correlation between the
stations. The channel correlation measure is a matrix that contains the
eigenvalues (EVs) or singular values of a channel matrix and may be
calculated using a singular value decomposition (SVD). The channel
correlation measure can be estimated from the channel response or the
MIMO channel matrix H (Spec. 2:18-19; 5:9-10; 7:27-8:7; 11:9-13).
2. The measure of channel correlation in a MlMO channel is
modeled as described in A. van Zelst and J.S. Hammerschmidt, "A Single
Coefficient Spatial Correlation Model for Multiple-Input Multiple-Output
(MIMO) Radio Channels," Proc. URSI XXVII General Assembly, 17-24
August 2002, 1-4 (2002) (Spec. 6). A parameter ρ modeling the channel
correlation can range from 0 to 1. When the channel correlation ρ is equal to
0, the corresponding data stream is fully uncorrelated. When the channel
correlation parameter ρ is equal to 1, the corresponding data stream is fully
correlated (Fig. 4; Spec. 8:3-7 and 11:9-13). In a fully uncorrelated MIMO
channel, the EVs will have the same value and will be high. In a correlated
channel, some EVs will be lower. A good measure for the channel
correlation is the maximum value of EVs and the ratio between them (Spec.
8:3-7).
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Kadous
3. Kadous discloses a transmitter system 110a and a receiver
system 150a in multi-channel communication system 100 that adapts the
data rate based upon one or more estimated channel characteristics of the
transmission channel (Fig. 7, col. 24, ll. 47-49; col. 25, ll. 60-63).
Demodulator 762 within receiver 150a may derive estimates of the channel
characteristics (e.g., the channel response and noise variance) and provide
these channel estimates to controller 770 which determines or selects a
particular rate for each independently processed data stream (Fig. 7, col. 25,
ll. 35-45).
4. Kadous discloses a receiver that includes a spatial processor
920 that performs spatial or space-time processing on the received symbol
streams to provide detected symbol streams, which are estimates of the
transmitted symbol streams. Spatial processor 920 may include a channel
correlation matrix inversion (CCMI) equalizer. A channel estimator 940
couples to processor 920 to receive the detected pilot and data symbols and
estimates the channel response and the noise variance. Channel estimator
provides these estimates to controller 770 which determines the maximum
data rate that may be used for each data stream based on the channel
estimates (Fig. 9; col. 28, ll. 24-30, 61-65; col. 28, l. 66-col. 29, l. 3)

PRINCIPLES OF LAW
Anticipation pursuant to 35 U.S.C § 102 is established when a single
prior art reference discloses expressly or under the principles of inherency
each and every limitation of the claimed invention. Atlas Powder Co. v.
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IRECO Inc., 190 F.3d 1342, 1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d
1475, 1478-79 (Fed. Cir. 1994).
Analysis of whether a claim is patentable over the prior art under 35
U.S.C. § 102 begins with a determination of the scope of the claim. We
determine the scope of the claims in patent applications not solely on the
basis of the claim language, but upon giving claims their broadest reasonable
construction in light of the specification as it would be interpreted by one of
ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). The properly interpreted claim must then be
compared with the prior art.
In an appeal from a rejection for anticipation, the Appellant must
explain which limitations are not found in the reference. See Gechter v.
Davidson, 116 F.3d 1454, 1460 (Fed. Cir. 1997) ("[W]e expect that the
Board's anticipation analysis be conducted on a limitation by limitation
basis, with specific fact findings for each contested limitation and
satisfactory explanations for such findings.")(emphasis added). See also In
re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006)

ANALYSIS
Claims 1-6, 10, 13-18, 20, and 23
Independent claim 1 recites “data rate controller that adapts a
transmission rate of transmitted data based on a measure of channel
correlation.” Independent claims 13 and 23 have similar claim limitations.
We agree with Appellants that Kadous is silent as to using the channel
correlation to adapt the transmission rate of the transmitted data (App. Br.
4). Specifically, Kadous discloses a transmitter system 110a and a receiver
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system 150a in multi-channel communication system 100 that adapts the
data rate based upon one or more estimated channel characteristics of the
transmission channel including the channel response and the noise variance
and not channel correlation (FF 3 (emphasis added)).
We further agree with the Appellants that channel correlation is a term
of art (Reply Br. 2) that finds sufficient disclosure in the Specification as
being the measured eigenvalue of each channel within the channel Matrix
(FF 1 and 2).
Although Kadous discloses that the spatial processor 920 may include
a channel correlation matrix inversion (CCMI) equalizer, Kadous is silent as
to the passing of a channel correlation value from the spatial processor 920
to the channel estimator 940 to be used by controller 770 to adapt the data
rate (FF 4).
We decline to adopt the rationale of the concurring-in-part opinion
because we believe it is not appropriate to affirm the anticipation rejection
over Kadous based on portions of the patent (as well as other patent
documents incorporated into Kadous by reference) not relied upon by the
Examiner and, in fact, not even discussed by either Appellants or the
Examiner.
With regard to the substantive teachings relied upon by the
concurring-in-part opinion, we do not believe that it is a fair interpretation of
Kadous, based on the sparse disclosure therein, to find that a channel
correlation matrix inversion equalizer, which by its terms equalizes signals
based on an inversion of a channel correlation matrix, meets claim 1’s
requirement for a device that adapts a transmission rate of transmitted data
“based on a measure of channel correlation.” The functions of equalization
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and matrix inversion suggest that the transmission rate adaption taught by
Kadous is not necessarily based (any longer) on a measure of channel
correlation.
Therefore, we find that Kadous does not teach all of the claim
limitations of independent claims 1, 13, and 23. As a result, we will not
sustain the Examiner’s § 102 rejection of claims 1-6, 10, 13-18, 20, and 23.
Claims 7-9, 11-12, 19, and 21-22
Appellants did not present arguments directed to the Examiner’s
rejection of claims 7-9, 11-12, 19, and 21-22 under 35 U.S.C. § 103.
Accordingly we will sustain this rejection pro forma.

CONCLUSION
Kadous does not disclose a wireless communication device
comprising a data rate controller that adapts a transmission rate of
transmitted data based on a measure of channel correlation.

ORDER
The Examiner’s rejection of claims 7-9, 11-12, 19, and 21-22 is
affirmed. The Examiner’s rejection of claims 1-6, 10, 13-18, 20, and 23 is
reversed.
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).

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BAUMEISTER, Administrative Patent Judge, CONCURRING-IN-PART;
DISSENTING-IN-PART

I would affirm the Examiner’s anticipation rejection of claims 1-6, 10,
13-18, 20, and 23, as well as the Examiner’s obviousness rejection of claims
7-9, 11, 12, 19, 21 and 22.
While Appellants allege that “the term ‘channel correlation’ is well
understood in the art” (Reply Br. 2), Appellants offer no express definition
for what channel correlation is. Nor do they set forth any particular
requirements for how it is to be either calculated or estimated. Rather,
Appellants merely provide an example of how a channel correlation can be
estimated: “The channel correlation, or MIMO correlation, can be estimated
from the MIMO channel matrix H” (Spec. 7:28-29). As such, the
independent claims would be anticipated by any data rate controller that
adapts a transmission rate of transmitted data based on a measure of channel
correlation, regardless of the manner in which the channel correlation is
measured or estimated, and regardless of how this measurement or
estimation is ultimately used to adapt the transmission rate.
Kadous discloses that various types of equalizers, expressly including
a channel correlation matrix inversion (CCMI) equalizer, may be employed
in the spatial processor 920 (col. 28, ll. 27-34). Kadous explains (col. 28, ll.
27-34) that the details of these equalizers are described in the following four
U.S. patent applications, which are commonly assigned to Qualcomm
Incorporated: serial numbers 09/993,087 (now Walton (US 2003/0125040
A1; July 3, 2003)); 09/854,235 (now Walton (US 6,785,341 B2; Aug. 31,
2004); 09/826,481 [sic: 09/816,481] (now Ling 6,771,706 B2; Aug. 3,
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2004); and 09/956,44 [sic: 09/956,449] (now Ling (US 7,006,848 B2; Feb.
28, 2006)). Kadous also expressly incorporates these four patent documents
by reference (e.g., col. 27, l. 47 – col. 28. l. 4).
The CCMI equalizer processes received signals prior to the signals
being demodulated and decoded (Kadous, col. 28, ll. 35-43). The CCMI
equalizer and other equalizers are employed to either null out undesired
signals or to maximize the received signal-to-noise ratio (SNR) of each of
the constituent signals in the presence of noise and interference from the
other signals (Walton (US 2003/0125040) ¶ [0163], (incorporated by
reference into Kadous, col. 28, ll. 24-34)). Appellants do not dispute that
this noise-adjusted signal that is outputted from the spatial processor is then
sent to the channel estimator that estimates metrics (such as SNR), or that
the controller adjusts the rate based upon the measured metrics (see App. Br.
2-5; Reply Br. 2-5).
Based upon the plain language of the term, Kadous’s CCMI equalizer
is a component that equalizes signals based upon the inversion of a channel
correlation matrix. That is, the equalizer adjusts signals based upon a
representation or measurement of the channel correlation. Since this signal
that has been equalized based on the measure of channel correlation is then
fed into the channel estimator and controller for adjusting the data
transmission rate, Kadous discloses that the transmission rate adaption is
based on a measure of channel correlation. Kadous thus anticipates
independent claims 1, 13, and 23.
The majority sustains the obviousness rejection pro forma based upon
the fact that Appellants did not present any arguments directed to claims 7-9,
11, 12, 19, 21, and 22 (Maj. Op. 7). While Appellants do initially state that
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“[c]laims 1, 13, and 23 are being appealed” (App. Br. 2), and they primarily
argue the anticipation rejection (see App. Br. 3-6; Reply Br. 3-6), Appellants
do further state, “[t]he remaining rejected dependent claims are believed
allowable for at least the reasons identified above with respect to the
independent claims” (App. Br. 5-6; Reply Br. 6). I find this latter statement
to be sufficient to indicate that Appellants are appealing all of pending
claims 1 to 25 – not just independent claims 1, 13, and 23.
Regardless, though, Appellants provide no patentability arguments in
relation to either the additionally cited references, Felix and Kobayashi, or to
the additional limitations of claims 7-9, 11, 12, 19, 21, and 22. They instead
base their arguments on the patentability of independent claims 1, 13, and 23
(id.). Accordingly, I would also sustain the obviousness rejections of these
dependent claims for the reasons discussed above.

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AFFIRMED-IN-PART

ELD

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