Ex Parte Giesberts et al

Patent Trial and Appeal Board

Nov 26, 2013

10949443 (P.T.A.B. Nov. 26, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/949,443 09/24/2004 Pieter-Paul Severin Giesberts Giesberts 5-9 3383
47386 7590 11/27/2013
RYAN, MASON & LEWIS, LLP
1300 POST ROAD
SUITE 205
FAIRFIELD, CT 06824
EXAMINER
HSIEH, PING Y
ART UNIT PAPER NUMBER
2648
MAIL DATE DELIVERY MODE
11/27/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PIETER-PAUL SEVERIN GIESBERTS
and
TIM SCHENK
____________

Appeal 2011-002800
Application 10/949,443
Technology Center 2600
____________

Before CAROLYN D. THOMAS, DENISE M. POTHIER, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-3, 5-9, 12-14, 16-18, and 21-23. Claims 4, 10, 11, 15,
19, 20, and 24-29 have been canceled. App. Br. 2. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
Appellants state both that claims 1-3, 5-9, 12-14, 16-18, and 21-23
(App. Br. 1) are being appealed, and that only claims 1, 12, and 21 (App. Br.
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2) are being appealed. For completeness, we consider all pending claims as
being appealed.
Invention
Appellants’ invention relates to data rate control techniques in
wireless communications systems. See Spec. 1:11-13. Claim 1 is
reproduced below with emphasis:
1. A wireless communication device, comprising:
a correlator that obtains a measure of correlation on a channel;
a roaming process that selects an access point based on said
measure of correlation on said channel to one or more surrounding
access points, wherein said roaming process selects an access point
having a lowest correlation value and wherein said channel
correlation is measured using one or more of eigenvalues of a
channel matrix and singular values of a channel matrix.1

The Examiner relies on the following as evidence of unpatentability:
Feder US 2004/0142693 A1 July 22, 2004
Liu US 2004/0203473 A1 Oct. 14, 2004
Jagadeesan US 2005/0059400 A1 Mar. 17, 2005
Moon US 7,088,695 B1 Aug. 8, 2006

A. van Zelst & J.S. Hammerschmidt, A Single Coefficient Spatial
Correlation Model for Multiple-Input Multiple-Output (MIMO) Radio
Channels, Proc. URSI XXVIIth Gen. Assembly 1-42 (2002) (“Zelst”).

The Rejections

1 If prosecution should continue, the Examiner should consider whether this
claim is a hybrid claim, reciting both a device and a roaming process method
step. See Rembrandt Data Techs., LP v. AOL, 641 F.3d 1331 (Fed. Cir.
2011).
2 Four printed pages of this reference were provided, and these page
numbers correspond sequentially to the pages provided.
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Claims 1-3, 5-9, 12-14, 16-18, and 21-23 are provisionally rejected on
the ground of nonstatutory obviousness-type double patenting over U.S.
Patent App. No. 10/949,444. Ans. 3-4.
Claims 1-3, 5-7, and 21-23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Feder and Zelst. Ans. 5-7.
Claims 8 and 9 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Feder, Zelst, and Moon. Ans. 7-8.
Claims 12-14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Feder, Liu, and Zelst. Ans. 8-10.
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Feder, Liu, Zelst, and Jagadeesan. Ans. 10-11.
Claims 17 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Feder, Liu, Zelst, and Moon. Ans. 11-12.

THE PROVISIONAL NON-STATUTORY OBVIOUSNESS-TYPE
DOUBLE PATENTING REJECTION

Claims 1-3, 5-9, 12-14, 16-18, and 21-23 are provisionally rejected on
the ground of nonstatutory obviousness-type double patenting over U.S.
Patent App. No. 10/949,444. Ans. 3-4. On September 28, 2010, Appellants
filed a letter entitled, “Express Abandonment Under 37 CFR 1.138” in U.S.
Application No. 10/949,444. The following day, September 29, 2010, a
Notice of Abandonment was mailed for U.S. Application No. 10/949,444.
Based on these facts, we decline to reach the Examiner’s provisional
rejection of claims 1-3, 5-9, 12-14, 16-18, and 21-23 on the ground of non-
statutory obviousness-type double patenting. See Ex parte Moncla, 95
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USPQ2d 1884 (BPAI 2010) (indicating panels have the flexibility to reach
or not to reach provisional obviousness-type double patenting rejections).

OBVIOUSNESS REJECTION OVER FEDER AND ZELST
Regarding representative independent claim 1, the Examiner finds that
Feder teaches a roaming process that selects an access point based on a
signal to interference ratio. Ans. 5 (citing Feder ¶ 45). The Examiner turns
to Zelst to teach a correlator and an alternative approach for selecting an
access point based on a spatial correlation model that determines channel
correlation using eigenvalues and singular values of a channel matrix as well
as lowest correlation values. Ans. 5-6 (citing Zelst, §§ 3 and 4.2).
Appellants argue that neither Feder nor Zelst alone or in combination
suggest: (a) selecting an access point based on a correlation measure on a
channel to one or more surrounding access points or (b) a roaming process
that selects an access point having a lowest correlation value and that the
channel correlation is measured using one or more of eigenvalues and
singular values of a channel matrix. App. Br. 4-6. Specifically, Appellants
assert Feder’s paragraph 45 is insufficient to teach selecting an access point
based on channel correlation and, even more so, that Feder teaches away
from the claimed invention when discussing selecting an access point based
on a signal energy to interference ratio (EC/IO). App. Br. 5-6.

ISSUES
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Feder and Zelst collectively would have taught or suggested (a) a
correlator that obtains a measure of channel correlation and (b) a roaming
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process that selects an access point based on a measure of channel
correlation to a surrounding access point?

ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of claim 1. Appellants merely point out what claim 1 recites (i.e., a
roaming process that selects an access point based on a measure of
correlation on a channel to one or more surrounding access points, the
channel correlation being measured using one or more of eigenvalues of a
channel matrix and singular values of a channel matrix, and further selects
an access point having a lowest correlation value) and then asserts that Feder
and Zelst fail to teach these limitations. App. Br. 4-5; Reply Br. 2-3. This
assertion alone is not considered a separate argument for patentability. See
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Yet, we further note that
even Appellants discuss Zelst in the context of a MIMO channel correlation
model. Spec. 6:3-11. We, therefore, disagree that Zelst fails to teach
measuring channel correlation to surrounding access points as recited in
claim 1.
Appellants further assert that Feder and Zelst fail to teach the disputed
limitations and there is no suggestion to combine the references to arrive at
the claimed roaming process. App. Br. 5; Reply Br. 3-4. We disagree. The
Examiner admits Feder fails to teach a correlator and a roaming process that
selects an access point based on the measure of channel correlation of
surrounding access points, and instead teaches selecting an access point
based on a signal to interference ratio. Ans. 5-6, 13 (citing Feder ¶¶ 27, 45).
The Examiner turns to Zelst to teach an alternative approach for selecting an
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access point. Ans. 5-6. Thus, Appellants’ arguments, which focus on what
Feder fails to teach (see App. Br. 5-6), overlook Zelst.
As the Examiner explains, Zelst teaches an alternative approach for
selecting an access point in a MIMO system that involves channel
correlation (e.g., spatial correlation model). Ans. 6, 13 (citing Zelst §§ 3 and
4.2). Appellants discuss spatial channel correlation as a correlation between
various channels. Spec. 4:17-18. Zelst specifically discusses a spatial
correlation model where the correlation between different MIMO channels is
modeled by various matrices that include variables rTX and rRX, where rTX =
rRX =0 shows a totally uncorrelated scenario and rTX = rRX =1 shows a fully
correlated scenario. See Zelst § 3. Moreover, Zelst explicitly discusses
performing eigenvalue analysis, describing r=0 as a best-case condition and
r=1 as a worst-case condition. See Zelst § 4.2; see also Ans. 6. These
teachings suggest a roaming process that selects an access point based on a
channel correlation to surrounding access points using eigenvalues and
singular values and selecting the access point with the lowest correlation
value (e.g., r=0) as recited in claim 1.
The Examiner proposes modifying Feder to include Zelst’s roaming
process of selecting an access point. See Ans. 6. Contrary to Appellants’
assertions (App. Br. 5-6), we find the Examiner has provided a reason with a
rational underpinning to combine Zelst with Feder as proposed. See Ans. 6.
The Examiner specifically states that modifying Feder with Zelst’s technique
will improve channel quality. See id. “[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious . . . .” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The
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Examiner additionally explains that Feder concerns a 3G network (see
Feder, ¶¶ 27, 45), which uses MIMO to achieve a high data rate and requires
sub-channels to be orthogonal, requiring minimum correlations (e.g., r=0) to
achieve high data rates. See Ans. 6, 13. These specific findings are not
rebutted by Appellants. Likewise, Zelst teaches a MIMO system that uses
an improved technique to select a better access point (e.g., improved channel
quality) and modifying Feder with Zelst’s MIMO teachings is a mere
substitution of one known process for another yielding no more than the
above-discussed predictable results. See KSR, 550 U.S. at 416.
Lastly, Feder’s use of a signal energy to interference ratio (EC/IO) and
the signal to noise ratio (SNR) to select an access point (Feder ¶¶ 27, 45)
does not teach away from using another technique to improve Feder. See
App. Br. 5-6. In fact, even Appellants’ roaming process considers using
both a SNR and a correlation factor in selecting the access point. See Spec.
8:10-28. We, therefore, fail to see how Feder’s discussion of a signal to
interference ratio teaches away from combining with Zelst.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and claims 2, 3, 5-7, and 21-23 not
separately argued with particularity.

OBVIOUSNESS REJECTION OVER FEDER, LIU, AND ZELST
Concerning representative independent claim 12, Appellants repeat
the arguments of claim 1. See App. Br. 6-8. We are not persuaded for the
reasons discussed above and need not address whether Liu cures any
purported deficiency. Accordingly, Appellants have not persuaded us of
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error in the rejection of independent claim 12 and claims 13 and 14 not
separately argued with particularity.

THE REMAINING REJECTIONS
Dependent claims 8, 9, and 16-18 are separately rejected. Ans. 7-8,
10-12. Appellants present no separate arguments for these rejections. See
generally App. Br. We refer to the above discussion of independent claims
1 and 12. Also, we summarily sustain the rejections of claims 8, 9, and
16-18. See, e.g., Manual of Patent Examining Procedure (MPEP) § 1205.02,
8th ed., Rev. 9, August 2012 (“If a ground of rejection stated by the
examiner is not addressed in the appellant’s brief, that ground of rejection
will be summarily sustained by the Board.”).

CONCLUSION
The Examiner did not err in rejecting claims 1-3, 5-9, 12-14, 16-18,
and 21-23 under § 103.

DECISION
The Examiner’s decision rejecting claims 1-3, 5-9, 12-14, 16-18, and
21-23 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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