Ex Parte Marchok et al

Patent Trial and Appeal Board

Apr 30, 2013

11201853 (P.T.A.B. Apr. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DANIEL J. MARCHOK, RICHARD C. YOUNCE,
SAMIR KAPOOR and PETER J.W. MELSA
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Appeal 2010-008076
Application 11/201,853
Technology Center 2400
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Before KRISTEN L. DROESCH, KALYAN K. DESHPANDE and
HUNG H. BUI, Administrative Patent Judges.

DROESCH, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
The Appellants seek review under 35 U.S.C. § 134(a) of a Final
Rejection of claims 1-8 and 33-40.1 We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.
The Appellants disclose a multi-point communications system that
comprises a head end unit disposed at a primary site and a plurality of
receivers disposed at remote sites. The head end unit includes a transmitter
for transmitting OFDM/DMT symbols over a predetermined number of bins
across a transmission medium. The OFDM/DMT symbols are transmitted in
periodically occurring formatted symbol frames. The cyclic prefix includes a
predetermined periodic signal superimposed thereon. The receivers receive
the OFDM/DMT symbols over a subset of the predetermined number of bins
from the transmission medium and use the superimposed signals to attain
symbol alignment. Spec. ¶ 0008; Abs.
Independent claim 1 is illustrative and is reproduced below (disputed
limitations in italics):
1. A multi-point communications system comprising:
a head end unit disposed at a primary site, the head end
unit including a transmitter for transmitting OFDM/DMT
symbols over a predetermined number of bins across a
transmission medium, the OFDM/DMT symbols being
transmitted in periodically occurring symbol frames, a plurality
of the symbol frames each having a predetermined signal
superimposed thereon;
a plurality of remote service units each including a
receiver for receiving the OFDM/DMT symbols over a subset
of the predetermined number of bins from the transmission
medium, the receivers using the superimposed predetermined
signal to identify the bins containing the OFDM/DMT symbols

1 Claims 9-32 have been cancelled.
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and measure a phase difference between the OFDM/DMT
symbols to attain symbol alignment of the received
OFDM/DMT symbols.

Rejections
The Examiner rejected the following claims as unpatentable under 35
U.S.C. § 103(a):
1) claims 1, 2, 4-6, 33, 34 and 36-38 over Harada (U.S.
5,774,450),Grube (U.S. 5,539,777) and Leung (U.S. 5,444,697);
2) claims 3 and 35 over Harada, Grube, Leung and Beale (U.S.
5,828,710);
3) claims 7 and 39 over Harada, Grube, Leung and Bremer (U.S.
5,881,047); and
4) claims 8 and 40 over Harada, Grube, Leung and Lomp (U.S.
5,912,919).
ISSUE
Did the Examiner incorrectly determine that the combined teachings
of Harada, Grube and Leung render obvious the claimed invention?
ANALYSIS
We have reviewed the Examiner’s rejection in light of the Appellants’
arguments in the Appeal Brief and Reply Brief that the Examiner erred. We
disagree with the Appellants’ conclusions as to all of the rejections. We
adopt as our own the findings and reasons set forth by the Examiner in the
action from which this appeal is taken and the reasons set forth in the
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Examiner’s Answer2 in response to the Appeal Brief. We highlight and
address specific findings and arguments for emphasis as follows.
The Appellants provide summaries of certain portions of the Harada
reference (App Br. 6-7), the Grube reference (App. Br. 7-9) and the Leung
reference (App. Br. 9-10) and conclude that each of Harada, Grube and
Leung separately do not “identify the bins containing the OFDM/DMT
symbols and measure a phase difference between the OFDM/DMT symbols
to attain symbol alignment of the received OFDM/DMT symbols,” (App. Br.
7, 8, 9-10) as recited in independent claims 1 and 33.
We are unpersuaded by the Appellants’ arguments addressing each of
the references separately. One cannot show non-obviousness by attacking
references individually where the rejections are based on combinations of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Circ. 1986);
In re Keller, 642 F.2d 413, 426 (CCPA 1981). The Examiner relies on the
combined teachings of Harada, and Leung for teaching the disputed
limitations. In particular, the Examiner relies on Leung for teaching
“identify[ing] the bin containing the OFDM/DMT symbols and measur[ing]
a phase difference between the OFDM/DMT symbols.” Ans. 7-8 (citing
Leung Abs.; col. 3, l. 53 through col. 4, l. 2; col. 4, ll. 25-29; col. 4, l. 59
through col. 5, l. 2; col. 16, l. 65 through col. 17, l. 46). The Examiner relies
upon Harada to teach OFDM/DMT symbols transmitted in periodic symbol
frames, a plurality of the symbol frames each having a predetermined signal
superimposed thereon and using the superimposed predetermined signal to
attain symbol alignment of the received OFDM/DMT symbols. Ans. 5

2 All references to the Answer are to the Supplemental Answer mailed Feb.
16, 2010.
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(citing Harada Abs.; col. 4, ll. 34-40; col. 5, ll. 10-24; col. 7, ll. 51-64; col. 8,
ll. 21-27; col. 9, ll. 60-67; col. 10, ll. 1-17; col.13, ll. 5-14; Figs. 3, 4).
To the extent that the Appellants argue Leung does not teach the
disputed claim limitations because Leung employs one frequency for
encoding data and another separate frequency for encoding synchronization
information (App. Br. 9-10; Reply Br. 3-5), the Appellants’ argument is not
commensurate in scope with the claim limitations. Claim 1 does not
preclude encoding data and synchronization information on more than one
frequency.
We are also not persuaded by the Appellants’ arguments that: 1)
characterize a hypothetical system resulting from the combined teachings of
Harada, Grube and Leung; and 2) conclude that the hypothetical system
“would dedicate an independent channel to synchronizing information and
would have no notion of mix-coupling of synchronization information with
information carrying data,” and therefore “would not having any sense of
employing a ‘superimposed predetermined signal to identify the bins
containing the OFDM/DMT symbols and measure a phase difference
between the OFDM/DMT symbols.’” App. Br. 10; Reply Br. 5. We do not
agree with the Appellants characterization of the hypothetical system based
on the combined teachings of the references. The Appellants’ argument is
premised on their characterization of a portion of Leung’s teachings (i.e.,
using independent and separate frequencies for encoding data and
synchronization information) and the hypothetical modification of Harada’s
teachings with the aforementioned teachings of Leung. App. Br. 9-10; Reply
Br. 5. However, the Examiner did not propose modifying the system of
Harada in such a manner. Instead, the Examiner proposed modifying the
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system of Harada to use the superimposed predetermined signal in the
manner that Leung teaches using the reference signal. Ans. 7-8. We are also
not persuaded by the Appellants’ argument that “[o]ne of ordinary skill in
the art would not be motivated to modify the hypothetical system to arrive at
Appellants’ Claim 1 because such modification would require substantial
modification, effectively altering its principles of operation, and only be
done in hindsight of Appellants' teachings.” App. Br. 10; Reply Br. 5. The
Appellants’ arguments are unsupported by objective evidence.
Claims 6 and 38 depend from claims 1 and 33 respectively and further
recite: “wherein the receivers apply a predetermined incremental phase shift
to received samples, including received samples of the predetermined signal,
corresponding to the received OFDM/DMT symbols to thereby compensate
for phase shifts resulting from the cyclic prefix.” The Appellants provide a
summary of certain portions of the Harada reference and conclude that
Harada employs the frequency converter 10 to increase or decrease the
amount of frequency shift in order to “correct the variation in the frequency
band of the OFDM signal to a suitable intermediate frequency band.” App.
Br. 11-12 (citing Harada col. 14, ll. 18-24; col. 17, ll. 31-46; Fig. 5). On this
basis, the Appellants argue that Harada does not apply “a predetermined
incremental phase shift to received samples, . . . corresponding to the
received OFDM/DMT symbols to thereby compensate for phase shift
resulting from the cyclic prefix.” The Appellants’ arguments are
unpersuasive as they do not particularly point out the error in the Examiner’s
findings. Moreover, to the extent that the Appellants argue that the Harada’s
description of increasing or decreasing the amount of frequency shift does
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not “thereby compensate for phase shift resulting from the cyclic prefix3,”
we note that the claim recitation is a statement of intended purpose for the
application of the phase shift. “An intended use or purpose usually will not
limit the scope of the claim because such statements usually do no more than
define a context in which the invention operates.” Boehringer Ingelheim
Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir.
2003).
For all these reasons, we sustain the Examiner’s rejection of claims 1,
2, 4-6, 33, 34 and 36-38 over Harada, Grube and Leung.
The Appellants do not substantively argue the limitations of
dependent claims 3, 7, 8, 35, 39 and 40, but instead characterize the
teachings of Beale, Bremer and Lomp and conclude that each reference does
not teach the disputed limitations of independent claims 1 and 33. App. Br.
13-15; Reply Br. 6-7. Therefore, for the same reasons as those explained for
claims 1, 2, 4-6, 33, 34 and 36-38, we sustain the Examiner’s rejections of
claims 3 and 35 as obvious over Harada, Grube, Leung and Beale, claims 7
and 39 as obvious over Harada, Grube, Leung and Bremer, and claims 8 and
40 as obvious over Harada, Grube, Leung and Lomp.
DECISION
We AFFIRM the Examiner’s rejection of claims 1-8 and 33-40 under
35 U.S.C. § 103(a).
TIME PERIOD
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).

3 The term “cyclic prefix” lacks antecedent basis.
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AFFIRMED

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