11553191 (P.T.A.B. Mar. 20, 2013)

Ex Parte Marzetta

Patent Trial and Appeal BoardMar 20, 2013

11553191 (P.T.A.B. Mar. 20, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 11/553,191 10/26/2006 INV001Thomas Louis Marzetta Marzetta 15 3374 46304 7590 03/20/2013 RYAN, MASON & LEWIS, LLP 90 FOREST AVENUE LOCUST VALLEY, NY 11560 EXAMINER SCHWARTZ, JOSHUA L ART UNIT PAPER NUMBER 2642 MAIL DATE DELIVERY MODE 03/20/2013 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 THOMAS LOUIS MARZETTA ____________ Appeal 2010-010215 Application 11/553,191 Technology Center 2600 ____________ Before KRISTEN L. DROESCH, MIRIAM L. QUINN, and BARBARA A. PARVIS, Administrative Patent Judges. PARVIS, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 1-20. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2010-010215 Application 11/553,191 2 STATEMENT OF THE CASE Appellant’s invention relates to multiple-input, multiple output (MIMO) communication systems. Spec. 1, ll. 5-6. CLAIMED SUBJECT MATTER Claims 1, 18, and 20 are the independent claims on appeal. Claim 1 is representative of the subject matter on appeal, and recites: 1. A method of communicating information in a multiple-input, multiple-output communication system in which a base station communicates with multiple terminals, the method comprising the steps of: determining mobilities for respective ones of the terminals; arranging the terminals into groups based on the determined mobilities; and utilizing at least first and second different slot structures for communicating with the terminals of at least respective first and second ones of the groups. REJECTIONS Claims 6, 15, and 16 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. Ans. 3-4. Claims 1-4, 10-11, 13, and 17-20 stand rejected under 35 U.S.C. § 102(b) as being unpatentable over Heath Jr. (US 6,937,592 B1). Ans. 4-8. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath and Strawczynski (US 2005/0226173 A1). Ans. 9- 10. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath, Strawczynski, and Goldsmith (Wireless Communications, pp. 463-464 (2005)). Ans. 10-11. Appeal 2010-010215 Application 11/553,191 3 Claims 7, 8, and 9 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath, Goldsmith, and Chen (US 2004/0162083). Ans. 11-12. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath and Dohler (US 2004/0131025 A1). Ans. 13. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath and Lee (US 7,463,601 B2). Ans. 13-14. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath and Viterbi (CDMA Principles of Spread Spectrum Communication, p. 199 (1995)). Ans. 14. Claim 16 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Heath, Viterbi, and Kim (US 2006/0098754 A1). Ans. 14-15. ISSUES Appellant argues that the Examiner’s rejection of independent claims 1, 18, and 20 under 35 U.S.C. § 102(b) is in error. Br. 7-10. These arguments present us with several issues, the dispositive issue for independent claims 1, 18, and 20 is: 1. Did the Examiner err in finding that Heath teaches utilizing “at least first and second different slot structures for communicating with the terminals of at least respective first and second ones of the groups”? Additionally, Appellant argues that the Examiner’s rejection of dependent claims 6, 15, and 16 under 35 U.S.C. § 112, second paragraph, as being indefinite, is in error. Br. 5-7. The Appellant’s arguments present us with the following additional issue: Appeal 2010-010215 Application 11/553,191 4 2. Did the Examiner err in rejecting claims 6, 15, and 16 as being indefinite? ANALYSIS We have reviewed Appellant’s arguments in the Brief, the Examiner’s rejection and the Examiner’s response to the Appellant’s arguments. We concur with Appellant’s conclusion that the Examiner erred in finding that Heath teaches utilizing “at least first and second different slot structures for communicating with the terminals of at least respective first and second ones of the groups,” as is recited in each of independent claims 1, 18, and 20. Additionally, we agree with Appellant’s conclusion that the Examiner erred in in rejecting claims 15 and 16 as indefinite. However, we agree with the Examiner’s rejection of claim 6 as being indefinite. The rejection of claims 1, 18, and 20 under 35 U.S.C. § 102(b) 1. First Issue The Examiner cites to Heath to show that different access techniques may be used in wireless communication systems. Ans. 18-19. Additionally, the Examiner points to excerpts of Heath that describe a wireless communication system that can be adapted to operate in a spatial multiplexing mode and a non-spatial multiplexing mode. Ans. 5, 19. Appellant contends that Heath does not mention use of different slot structures for different groups of terminals that are grouped based on their respective mobilities. Br. 8-10. Additionally, Appellant raises background art referenced by Heath to support a contention that the same slot structure may be used for both spatial multiplexing and non-spatial multiplexing. Br. 8. In response to Appellant’s arguments, the Examiner states that Heath Appeal 2010-010215 Application 11/553,191 5 teaches that different multiple access techniques “would have” different slot structures. Ans. 19. With respect to the background art, the Examiner states that this background art is “irrelevant” and that Heath “could conceivably” accomplish more. Ans. 18. We recognize that Heath describes that different multiplexing techniques may be used in a wireless communication system. See, e.g., Heath col. 10, ll.1-5. However, the Examiner does not direct us to where Heath describes utilizing “at least first and second different slot structures for communicating with the terminals of at least respective first and second ones of the groups,” as recited in claims 1, 18, and 20. For at least this reason, we do not sustain the Examiner’s rejection of independent claims 1, 18, and 20 under 35 U.S.C. § 102(b) based upon Heath. The rejection of claims 2-4, 10-11, 13, 17, and 19 under 35 U.S.C. § 102(b) As noted supra, we do not sustain the Examiner’s rejection of independent claims 1, 18, and 20 under 35 U.S.C. § 102(b) based upon Heath. Likewise, we do not sustain the Examiner’s rejection of dependent claims 2-4, 10-11, 13, 17, and 19, as each of these claims depends from one of independent claims 1 and 18. The rejection of claims 5-9, 12, and 14-16 under 35 U.S.C. § 103(a) Since, as noted supra, we do not sustain the Examiner’s rejection of independent claims 1, 18, and 20 under 35 U.S.C. § 102(b) based upon Heath, we also do not sustain the Examiner’s rejection of dependent claims 5, 6, 8, 9, 12, and 14-16, as each of these claims depends from claim 1. Appeal 2010-010215 Application 11/553,191 6 The rejection of claims 6, 15, and 16 as indefinite 2. Second Issue Regarding the rejection of claim 6, as correctly explained by the Examiner, the recitation of “some specified fraction of a wavelength at a communication frequency” does not specify a fraction, a range of fractions or a wavelength. Ans. 16-17. Appellant refers to the Specification stating, “[f]or example, the fraction may be one-eighth of a wavelength at the communication frequency, as indicated in the specification at page 8, lines 1-4.” Br. 6. Appellant continues by showing how one of ordinary skill in the art would calculate a distance in accordance with this example. Br. 6. However, rather than clearly defining the phrase, the sections of the Specification cited by Appellant merely provide an example. Using the broadest reasonable interpretation, we would be forced to engage in speculation and conjecture to determine the scope of claim 6, which we decline to do. Accordingly, we are not persuaded of error in the Examiner’s rejection of claim 6 under 35 U.S.C. § 112 and, therefore, we sustain that rejection. With respect to the rejection of claims 15 and 16, the Examiner states that one of ordinary skill in the art could not determine how to build an “optimal” slot structure. Ans. 21. However, as explained by Appellant, the Specification states that an optimal slot structure is determined by maximizing throughput. Br. 7 (citing Spec. 16, ll. 9-15). Thus, one of ordinary skill in the art would understand what is claimed when the claims are read in light of the Specification. Accordingly, the rejection of claims 15 and 16 as indefinite is not sustained. Appeal 2010-010215 Application 11/553,191 7 DECISION We REVERSE the rejection of claims 1-4, 10-11, 13, and 17-20 under 35 U.S.C. § 102(b). We REVERSE the rejection of claims 5-9, 12, and 14-16 under 35 U.S.C. § 103(a). We REVERSE the rejection of claims 15 and 16 under 35 U.S.C. § 112, second paragraph, as indefinite. We AFFIRM the rejection of claim 6 under 35 U.S.C. § 112, second paragraph, as being indefinite. 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). AFFIRMED-IN-PART ELD