Ex Parte Kwon et al

Patent Trial and Appeal Board

Aug 30, 2016

11966281 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111966,281 12/28/2007
66547 7590 08/31/2016
THE FARRELL LAW FIRM, P,C
290 Broadhollow Road
Suite 210E
Melville, NY 11747
FIRST NAMED INVENTOR
Hwan-Joon Kwon
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.
678-3416 (Pl5866) 4857
EXAMINER
TANG,KIETG
ART UNIT PAPER NUMBER
2469
MAILDATE DELIVERY MODE
08/31/2016 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 HWAN-JOON KWON, JIN-KYU HAN, JUNG-
SOO JUNG, DONG-HEE KIM, JAE-CHON YU, and
YEON-JULIM
Appeal2015-000140
Application 11/966,281
Technology Center 2400
Before MICHAEL J. STRAUSS, JON M. JURGOV AN, and
MICHAEL M. BARRY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-000140
Application 11/966,281
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 3, 4, 6, 8, 9, 11, 13, and 15-30. Claims 2, 5, 7, 10, 12, and 14 are
canceled. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
THE INVENTION
The claims are directed to assigning resources in a wireless
communication system. Spec. 1, Title. Claim 1, reproduced below, is
representative of the claimed subject matter:
1. An apparatus for assigning resources to perform
communication in a base station of a wireless communication
system, the apparatus comprising:
a controller that assigns, to a terminal, a persistent
resource; and
a transmitter that transmits, to the terminal, a first message
to assign the persistent resource, transmits, to the terminal, a
second message including an indicator indicating that a new
packet for Hybrid Automatic Repeat ReQuest (HARQ)
transmission is transmitted in a specific time slot, and transmits,
to the terminal, the new packet for HARQ transmission at at least
one of the assigned persistent resource and the specific time slot.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Wei et al.
Kim et al.
Soong et al.
Smith et al.
US 2003/0227875 Al
US 2005/0105494 Al
US 2008/0056187 Al
US 2008/0062944 Al
2
Dec. 11, 2003
May 19, 2005
Mar. 6, 2008
Mar. 13, 2008
Appeal2015-000140
Application 11/966,281
REJECTIONS
The Examiner made the following rejections:
Claims 1, 3, 4, 6, 9, 11, 13, 15-23, 25, 27, and 29 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Smith and Kim. Final Act. 2-
11.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Smith, Kim, and Wei. Final Act. 12.
Claims 24, 26, 28, and 30 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Smith, Kim, and Soong. Final Act. 13.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner has erred. We disagree with Appellants'
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
Appellants' Appeal Brief and concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
Appellants initially contend "Kim et al. makes no mention of
transmitting a message [and fails to] teach transmitting a second message
including an indicator, in the manner of Claim 1." App. Br. 6. In response,
the Examiner explains the argued limitation is taught or suggested, not by
Kim alone, but by the combination of Smith and Kim, "Smith disclos[ing]
transmitting [a] second message including an indicator indicating that a new
packet for HARQ transmission" (Ans. 8) and Kim teaching "transmitting, to
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Appeal2015-000140
Application 11/966,281
the terminal, a message indicating that a packet transmission is transmitted
in a specific time slot" (Ans. 11.) In reply, Appellants acknowledge the
Examiner's reliance on Smith for teaching the argued limitation except for
indicating that a packet transmission is transmitted in a specific time slot, for
which the Examiner relies on Kim. Reply Br. 2. 1 In reply to the Examiner's
application of Smith, Appellants argue, because Kim does not indicate
whether the specific packet data is a first or second HARQ transmission, "it
[is] unclear as to how it would have been obvious to combine with the
sending of the additiona[l] symbols of the voice packet to the mobile station
in Smith." Reply Br. 3.
Appellants' contention is unpersuasive of Examiner error. Appellants'
argument that Kim does not indicate which packet data is a first of second
HARQ transmission (Reply 3) ignores the Examiner's finding that Smith
teaches transmitting a second message including an indicator of a new
packet for (HARQ) transmission. Ans. 8. As to the propriety of the
combination of Smith and Kim, in the absence of persuasive rebuttal, the
Examiner has articulated reasoning with rational underpinnings sufficient to
justify the legal conclusion of obviousness. See Final Act. 4, Ans. 3--4; KSR
Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006)). In contrast, Appellants fail to provide
persuasive evidence or explanation showing that the Examiner's asserted
1 "[T]he Examiner is now relying on Kim et al. for teaching a portion of the
'transmits, to the terminal, a second message ... ' recitation in Claim 1, i.e.,
not including the 'second' message and 'including an indicator' aspects of
the recitation at issue, which is different from the Final Office Action in
which the Examiner previously conceded that Smith et al. fails to teach the
entire 'transmits, to the terminal, a second message ... "' Reply Br. 2.
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Appeal2015-000140
Application 11/966,281
combination is anything other than the combination of familiar elements
yielding no more than predictable results. See KSR, 550 U.S. at 416-17.
Such a combination is itself a sufficient reasoning with rational
underpinning to support a finding of obviousness. Appellants' argument that
it is unclear how to combine the teachings of Smith and Kim (Reply Br. 3)
fails to include sufficient evidence or technical reasoning explaining why the
combination would have been "uniquely challenging or difficult for one of
ordinary skill in the art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Such
attorney argument standing alone is insufficient to persuade us the
combination is improper. 2 Instead, we are mindful the skilled artisan would
"be able to fit the teachings of multiple patents together like pieces of a
puzzle" because the skilled artisan is "a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 421.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the rejections of independent claim 1 and, for
the same reasons, independent claims 4, 9, and 11under35 U.S.C. § 103(a)
over Smith and Kim together with the rejections of dependent claims 3, 6,
13, 15-23, 25, 27, and 29 that were not separately argued. We further
sustain the rejection of dependent claim 8 under 35 U.S.C. § 103(a) over
Smith, Kim, and Wei and dependent claims 24, 26, 28, and 30 over Smith,
Kim, and Soong, these dependent claims also not separately argued.
2 Attorney arguments and conclusory statements that are unsupported by
factual evidence are entitled to little probative value. See In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984).
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Appeal2015-000140
Application 11/966,281
DECISION
The Examiner's decision to reject claims 1, 3, 4, 6, 8, 9, 11, 13, and
15-30 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)(l )(iv).
AFFIRMED
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