Ex Parte Hu et al

Patent Trial and Appeal Board

Jun 14, 2018

13520803 (P.T.A.B. Jun. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/520,803 07/06/2012
102721 7590 06/18/2018
Murphy, Bilak & Homiller/Ericsson
1255 Crescent Green
Suite 200
Cary, NC 27518
FIRST NAMED INVENTOR
Yang Hu
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.
1009-0212 I P30906 US 1 5708
EXAMINER
BEDNASH, JOSEPH A
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
06/18/2018 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):
official@mbhiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YANG HU, DAVID ASTELY, DAVID HAMMAR WALL,
GEORGE JONGREN, XINGHUA SONG, and JIANFENG WANG
Appeal2018-000306
Application 13/520,803 1
Technology Center 2400
Before LARRY J. HUME, CATHERINE SHIANG, and
JOHN D. HAMANN, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 21--40, which are all the claims pending and rejected in
the application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellants, the real party in interest is Telefonaktiebolaget
LM Ericsson (publ). Appeal Br. 2.
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Application 13/520803
STATEMENT OF THE CASE
Introduction
According to the Specification, the present invention relates to
transmitting a demodulation reference signal pattern in a radio
communications network. See generally Spec. 1. Claim 21 is exemplary:
21. A method carried out by a radio base station for transmitting
downlink demodulation reference signal patterns in a resource block to a
user equipment using more than two transmission layers over a plurality of
transmit antennas, wherein the radio base station and user equipment are
comprised in a radio communications network and the method comprises:
mapping a plurality of codewords to the more than two transmission
layers;
mapping each of the more than two transmission layers to a respective
demodulation reference signal port according to a fixed pattern based on a
transmission rank,
wherein for each of the demodulation reference signal ports a
demodulation reference signal pattern is added to a resource block, which
demodulation reference signal ports are associated with two code division
multiplexing groups according to an association pattern, wherein
demodulation reference signals associated with each code division
multiplexing group are code division multiplexed and demodulation
reference signal associated with different code division multiplexing groups
are frequency division multiplexed;
precoding the transmission layers, including the respective
demodulation reference signal patterns; and
transmitting the precoded transmission layers, including the respective
demodulation reference signal patterns, in the resource block to the user
equipment.
References and Rejections
Texas Instruments, Further Discussion on 8Tx Downlink SU-MIO,
3GPP TSG RAN WGI 57, Rl-092193, (2009) ("DI").
Research Motion, UK Limited, Further Discussion on Signaling of
OM-RS Port/or LTE-A MIMD Transmission, 3GPP TSG RAN WGI
Meeting (59), Rl-094457, (2009) ("D2").
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NTT DOCOMO, Downlink OMRS Structure for Rank 5-8 in L TE
Advanced, 3GPP TSG RAN WGI (59), Rl-094910, (2009) ("D3").
CMCC, Discussions on OM-RS Design with Rank Grouping, 3GPP
TSG RAN WGI Meeting (57), Rl-092823, (2009) ("D4").
Claims 31-40 are rejected under pre-AIA 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Claims 31-40 are rejected under pre-AIA 35 U.S.C. § 112, second
paragraph, as being indefinite.
Claims 21-40 are rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over DI, D2, and D3.
Alternatively, claims 21-23, 25-29, 31-33, and 35-39 are rejected
under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over DI, D2, and
D4.
ANALYSIS 2
Written Description
To satisfy the written description requirement, the disclosure must
reasonably convey to skilled artisans that Appellants possessed the claimed
invention as of the filing date. See Ari ad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane). Specifically, the
description must "clearly allow persons of ordinary skill in the art to
recognize that [the inventor] invented what is claimed" and
the test requires an objective inquiry into the four comers of the
specification from the perspective of a person of ordinary skill
in the art. Based on that inquiry, the specification must
2 To the extent Appellants advance new arguments in the Reply Brief
without showing good cause, Appellants have waived such arguments. See
37 C.F.R. § 41.4I(b)(2).
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describe an invention understandable to that skilled artisan and
show that the inventor actually invented the invention claimed.
Id. ( citations omitted).
The Examiner determines claims 31--40 fail to comply with the
written description requirement with respect to the limitation "wherein for
each of the demodulation reference signal ports a demodulation reference
signal pattern is added to a resource bloclc' ( emphasis added). See Final
Act. 3-5; Ans. 2---6. In particular, the Examiner finds with respect to the
italicized limitation, "the disclosure does not provide insight into how OM-
RS signals are added such that they are transmitted in particular
time/frequency locations" and "it is critical to the invention to understand
how to add the demodulation reference signals to the demodulation
reference ports." Ans. 5---6.
We disagree. The limitation "wherein for each of the demodulation
reference signal ports a demodulation reference signal pattern is added to a
resource bloclc' ( emphasis added) is similarly recited in the original
claim 11, which is a part of the Specification. Therefore, we find the
Specification's disclosure reasonably conveys to skilled artisans that
Appellants possessed the claimed invention as of the filing date.
While discussing the written description requirement, the Examiner
appears to assert the enablement requirement is not satisfied. However, the
Examiner has not entered any enablement rejection. In addition, the
Examiner appears to suggest the italicized limitation should be construed as
a means-plus-function limitation. However, we find the Examiner has not
articulated sufficient basis for such an assertion.
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Because the Examiner fails to provide sufficient basis for the
rejection, we reverse the Examiner's written description rejection of claims
31--40 under pre-AIA 35 U.S.C. § 112, first paragraph.
Indefiniteness
Claims must "particularly point[] out and distinctly claim[] the subject
matter which the applicant regards as his invention." Pre-AIA 35 U.S.C.
§ 112, second paragraph. "[A] claim is indefinite when it contains words or
phrases whose meaning is unclear." Ex parte McAWARD, Appeal No. 2015-
006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential)
(citing In re Packard, 751 F.3d 1307, 1314 (Fed. Cir. 2014)).
The Examiner determines claims 31--40 are indefinite with respect to
the limitation "wherein for each of the demodulation reference signal ports a
demodulation reference signal pattern is added to a resource block''
(emphasis added). See Final Act. 5-7; Ans. 6-10. In particular, the
Examiner finds with respect to the italicized limitation, "it is not clear what
structure performs the function of adding a 'demodulation reference signal
pattern ... to a resource block."' Ans. 8.
We disagree. Here, one skilled in the art understands the meaning of
"wherein for each of the demodulation reference signal ports a demodulation
reference signal pattern is added to a resource block'' ( emphasis added). In
fact, the Examiner has not asserted any word or phrase has an unclear
meamng.
The Examiner appears to assert the italicized limitation is a means-
plus-function limitation. However, we find the Examiner has not articulated
sufficient basis or analysis for such an assertion.
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Because the Examiner fails to provide sufficient basis for the
rejection, we reverse the Examiner's indefiniteness rejection of claims 31-
40 under pre-AIA 35 U.S.C. § 112, second paragraph.
Obviousness
We disagree with Appellants' arguments, and agree with and adopt
the Examiner's findings and conclusions in (i) the action from which this
appeal is taken (Final Act. 8-23) and (ii) the Answer (Ans. 10-16) to the
extent they are consistent with our analysis below.
On this record, the Examiner did not err in rejecting claim 21.
The D 1, D2, and D3 Combination
I
Appellants contend none of the three references discloses:
mapping each of the more than two transmission layers to
a respective demodulation reference signal port according to a
fixed pattern based on a transmission rank, wherein for each of
the demodulation reference signal ports a demodulation
reference signal pattern is added to a resource block, which
demodulation reference signal ports are associated with two
code division multiplexing groups according to an association
pattern, wherein demodulation reference signals associated with
each code division multiplexing group are code division
multiplexed and demodulation reference signal associated with
different code division multiplexing groups are frequency
division multiplexed;
as recited in claim 21 ("Mapping Limitation"). Appeal Br. 15; see also
Reply Br. 5.
Appellants also argue D 1, D2, and D3 represent different, disjoint
proposals for how certain aspects of the LTE-Advance system should be
implemented, and they are not complementary or combinable in the manner
suggested by the Examiner. Appeal Br. 14; see also Reply Br. 6. In
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particular, Appellants contend while D 1 describes a single-user mode, D2
describes a multi-user mode, and the proposed combination is "a hindsight
recreation of the invention," and "not according to anything suggested by the
prior art, or by the common sense or background knowledge of the
ordinarily skilled person." Appeal Br. 15; see also Reply Br. 6.
Appellants have not persuaded us of error.
First, because the Examiner relies on the combination of D 1, D2, and
D3 to teach the disputed claim limitations, Appellants cannot establish
nonobviousness by attacking the references individually. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); Final Act. 9--12.
Second, the U.S. Supreme Court has held [t]he combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results. KSR Int 'l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007). Contrary to Appellants' argument, "[i]f the claim
extends to what is obvious, it is invalid under§ 103" and "the analysis need
not seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ." Id. at 418-
19.3
The Examiner has provided articulated reasoning with a rational
underpinning as to why one skilled in the art would have found it obvious to
combine the teachings of DI, D2, and D3. See Final Act. 9-12; Ans. IO-
3 As a result, Appellants' assertion that " [ n] or does D4 provide evidentiary
support for its use in combination with D 1 and D2, in rejecting claims 22
and 32" for the DI, D2, D4 combination (Appeal Br. 18) is unpersuasive.
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13. 4 Appellants do not persuasively show why such reasoning is incorrect.
In fact, Appellants' attorney arguments (Appeal Br. 14, Reply Br. 6) are
unsupported by evidence and unpersuasive. See In re Geisler, 116 F .3d
1465, 1470 (Fed. Cir. 1997) ("attorney argument [is] not the kind of factual
evidence that is required to rebut a prima facie case of obviousness");
Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977) ("Argument of
counsel cannot take the place of evidence lacking in the record.").
Further, Appellants' arguments (Appeal Br. 14--15; Reply Br. 6) are
unpersuasive because they are not directed to the Examiner's proposed
combination, because the Examiner does not "change Dl from a single-user
MIMO solution, to a unified single/multi-user MIMO solution, and to
replace DI 's detailed operations with those seen in D2," as Appellants assert
(Appeal Br. 14--15; see also Reply Br. 6). See In re Keller, 642 F.2d 413,
425 (CCPA 1981) (the test for obviousness is not whether a secondary
reference's features can be bodily incorporated into the structure of the
primary reference). 5
The Examiner's findings and conclusion are reasonable because the
skilled artisan would be able to fit the teachings of multiple patents together
4 Appellants do not dispute the Examiner's finding (Final Act. 9) that the
references are in the same field of endeavor. In fact, Appellants
acknowledge D 1, D2, and D3 all relate to the field of L TE. See Appeal Br.
14 ("D 1, D2, and D3 represent different, disjoint proposals for how certain
aspects of the L TE-Advance system should be implemented").
5 In the Reply Brief, Appellants also argue the proposed combination
changes D 1 's principle of operation. See Reply Br. 6. Even if that argument
is timely presented, it is unpersuasive. Similar to the discussions above,
Appellants' argument is not directed to the Examiner's proposed
combination.
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like pieces of a puzzle since the skilled artisan is a person of ordinary
creativity, not an automaton. KSR, 550 U.S. at 420-21. Appellants do not
present adequate evidence that the resulting arrangements would have been
uniquely challenging or difficult for one of ordinary skill in the art or
represented an unobvious step over the prior art. Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418-19).
Accordingly, we agree with the Examiner that applying D2 's and
D3 's techniques in DI 's method would have predictably used prior art
elements according to their established functions-an obvious improvement.
See KSR, 550 U.S. a 417.
Third, our reviewing courts have not established a bright-line test for
hindsight. The U.S. Supreme Court guides that [a] factfinder should be
aware, of course, of the distortion caused by hindsight bias and must be
cautious of arguments reliant upon ex post reasoning. KSR, 550 U.S. at 421
(citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 36 (1966)).
Rigid preventative rules that deny factfinders recourse to common sense,
however, are neither necessary under our case law nor consistent with it.
KSR, 550 U.S. at 421.
As discussed above, Appellants have not demonstrated the
Examiner's proffered combination of references would have been uniquely
challenging or difficult for one of ordinary skill in the art. Leapfrog Enters.,
485 F.3d at 1162.
Further, after reviewing the respective teachings and suggestions of
D 1, D2, and D2, we find the weight of the evidence shows the proffered
combination is merely a predictable use of prior art elements according to
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their established functions, because the combination uses the Mapping
Limitation according to its well-known functions. Therefore, on this record,
Appellants have not persuaded us the Examiner engaged in impermissible
hindsight.
II
Appellants argue:
the Final Office Action argues that D2 discloses the fixed-
pattern mapping by implicitly disclosing that layers and DM-
RS ports correspond to one another. An argued "implicit"
disclosure of some "association" between DM-RS ports and
layers does not constitute evidence that D2 performs the
claimed fixed-pattern based mapping.
Appeal Br. 15.
In response to Appellants' arguments, the Examiner provides further
findings showing "mapping each of the more than two transmission layers to
a respective demodulation reference signal port according to a fixed pattern"
is taught by or obvious in light of the collective teachings and suggestions of
DI and D2. See Ans. 12-13. In particular, the Examiner further explains
why the disputed limitation is taught by or obvious in light of the teachings
and suggestions of D2's Section 2. See Ans. 12-13. Appellants fail to
respond to such findings. Therefore, Appellants fail to show Examiner
error. See In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991)
("It is not the function of this court [or this Board] to examine the claims in
greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art.").
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner's rejection of independent claim 21, and independent
claim 31 for similar reasons.
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We also sustain the Examiner's rejection of corresponding dependent
claims 23-29 and 33-39, as Appellants do not advance separate substantive
arguments regarding those claims.
Regarding dependent claims 22, Appellants assert "the citations do
not show the specific arrangement set out in the claim as a whole." Appeal
Br. 17. However, Appellants do not explain-let alone show-which
"specific arrangement" is missing in the proposed combination. Appellants
also argue D3 does not teach the entirety of claim 2. See Appeal Br. 17-18.
But that argument is unpersuasive: because the Examiner relies on the
combination ofDl, D2, and D3 to teach claim 2, Appellants cannot establish
nonobviousness by attacking D3 individually. See Merck, 800 F .2d at 1097.
Therefore, and for similar reasons discussed above regarding claim 21, we
sustain the Examiner's rejection of dependent claim 22.
Regarding dependent claim 32, Appellants merely assert it covers
"similar subject matter" as claim 22. Appeal Br. 17. In any event, as
discussed above, Appellants' arguments regarding claim 22 are
unpersuasive. Therefore, and for similar reasons discussed above regarding
claim 21, we sustain the Examiner's rejection of dependent claim 3 2.
Dependent claim 30 recites:
wherein a first code division multiplexed group of the two code
division multiplexing groups is associated with demodulation
reference signal ports numbers 1,2,5 and 6, or 1,2,5, and 7; and
a second code division multiplexed group is associated with
demodulation reference signal ports 3,4, 7 and 8, or 3,4,6 and 8.
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Claim 30. Claim 40 recites a similar limitation.
Appellants assert "[i]t is not seen where in that description [of D3] the
specifically claimed CDM groups and reference signal port number
associations are shown." Appeal Br. 18.
In response to Appellants' arguments, the Examiner explains that, in
D3 's Figure 2, "Alt-I illustrates time in the vertical axis and frequency in the
horizontal axis ... the bottom left comer of the time/frequency grid of Alt- I
shows the" disputed limitation. Ans. 16. Appellants do not dispute that
finding. Therefore, Appellants fail to show Examiner error. See Baxter
Travenol Labs., 952 F.2d at 391.
Therefore, and for similar reasons discussed above regarding claim
21, we sustain the Examiner's rejection of dependent claims 3 0 and 40.
The Alternative D 1, D2, and D4 Combination
Appellants argue:
The rejection does not explain how or whether the particular
arrangement of CDM/FDM uses in D4 relates to the specific
details of claims 21 and 31, nor does the rejection make any
serious attempt to explain the particular modifications that
would be made to D 1 and D2-both exceedingly complex
proposals in their own right-in view of D4.
Appeal Br. 16; see also Appeal Br. 17.
Appellants' arguments are unpersuasive because they are not directed
to the Examiner's proposed combination. The Examiner modifies DI 's
method to incorporate selected features from D2 and D4, and the proposed
combination does not include "the particular arrangement of CDM/FDM
use[d] in D4." See Final Act. 17-20; see also Keller, 642 F.2d at 425.
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Contrary to Appellants' assertion, the Examiner does not modify D2 to
incorporate the teachings of D4. See Final Act. 17-20.
Appellants also advance arguments regarding D 1 and D2 ( discussed
above with respect to the DI, D2, D3 combination). As discussed above,
those arguments are unpersuasive.
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner's rejection of independent claim 21, and independent
claim 31 for similar reasons, for the D 1, D2, D4 combination.
We also sustain the Examiner's rejection of corresponding dependent
claims 22, 23, 25-29, 32, 33, and 35-39, as Appellants do not advance
separate substantive arguments regarding those claims for the D 1, D2, D4
combination.
DECISION
We reverse the Examiner's written description rejection of claims 31-
40 under pre-AIA 35 U.S.C. § 112, first paragraph.
We reverse the Examiner's indefiniteness rejection of claims 31--40
under pre-AIA 35 U.S.C. § 112, second paragraph.
We affirm the Examiner's decision rejecting claims 21--40 under
pre-AIA 35 U.S.C. § 103.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner's decision rejecting claims
21--40. See 37 C.F.R. § 4I.50(a)(l).
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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