Ex Parte Mobasher et al

Patent Trial and Appeal Board

Jun 5, 2018

14037903 (P.T.A.B. Jun. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/037,903 09/26/2013 Amin MOBASHER
49579 7590 06/07/2018
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
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.
3875.7950000 3175
EXAMINER
CHEN, ZHITONG
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
06/07/2018 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):
e-office@stemekessler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AMIN MOBASHER, SAM ALEX, and LOUA Y JALLOUL
Appeal2016-007735
Application 14/03 7 ,903 1
Technology Center 2600
Before ROBERT E. NAPPI, KARA L. SZPONDOWSKI, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-16 and 18-21, which constitute all of the claims pending in this
application. Claim 17 has been cancelled. App. Br. 22. We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 Appellant identifies itself, Broadcom Corporation, as the real party in
interest. App. Br. 3.
Appeal2016-007735
Application 14/037,903
THE INVENTION
The disclosed and claimed invention is directed "to multiple-input
multiple output (MIMO) antenna systems and more specifically to the
selection of different antennas within a MIMO antenna group to improve
wireless communications performance." Spec. i-f 1.
Claim 1, reproduced below with the disputed limitation italicized, is
illustrative of the claimed subject matter:
1. A communication device, comprising:
a selection matrix module configured to couple a radio
frequency (RF) chain from among a plurality of RF chains to a
first antenna from among a plurality of antennas to enable
communications between the communication device and
another communication device;
a measurement module configured to measure a
communication peiformance metric utilizing a second antenna
from among the plurality of antennas that is not used for
communicating with the other communication device, the
communication peiformance metric corresponding to
communications between the communication device and the
other communication device via the first antenna; and
a decision module configured to control the selection
matrix module to switch the coupling of the RF chain from the
first antenna to the second antenna based on the communication
performance metric.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Zhao
Wang
Clevom
US 2013/0315076 Al Nov. 28, 2013
US 2014/0056381 Al Feb. 27, 2014
US 2014/0140424 Al May 22, 2014
2
Appeal2016-007735
Application 14/037,903
REJECTIONS
Claims 1-5, 8-12, 15, 16, 18, 19, and 21 2 stand rejected under 35
U.S.C. § 103 as being unpatentable over Wang and Clevom. Final Act. 5-
10.
Claims 6, 7, 13, 14, and 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Wang, Clevom, and Zhao. Final Act. 5-10.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are not persuaded by Appellant's arguments regarding claims 8-16 and 18-
20. However, we are persuaded by Appellant's arguments that the Examiner
erred in rejecting claims 1-7 and 21.
Claims 1-7 and 21
Appellant argues the Examiner erred in finding the combination of
Wang and Clevom teaches "a measurement module configured to measure a
communication performance metric utilizing a second antenna ... that is not
used for communicating with the other communication device, the
communication performance metric corresponding to communications
between the communication device and the other communication device via
the first antenna," as recited in claim 1. See App. Br. 11-13; Reply Br. 2---6.
According to Appellant, although "Clevom teaches that the determiner 202
2 Although claim 21 is not listed in the heading of the rejection, the
Examiner finds the prior art teaches the limitations found in dependent claim
21. Compare Final Act. 5 (rejection heading), with id. at 6 (finding Wang
teaches the limitation recited in claim 21 ). Because we reverse the rejection
of claim 21, the typographical error is harmless.
3
Appeal2016-007735
Application 14/037,903
may measure a reception performance of each respective antenna and then
selecting antennas for reception based on measurements of the antenna,"
Clevom "does not teach or suggest that a second antenna - which is not used
for communication - measures the performance of communications made
via a first antenna." App. Br. 12.
The Examiner finds Clevom teaches the disputed limitation. See
Final Act. 6 (citing Clevom Fig. 2, i-fi-154---63, 145-149). More Specifically,
the Examiner finds Clevom teaches "a set of performance criterion are listed
to be measured; and ... an antenna or a subset of antenna are switched
on/off based on SNR, rank, not currently used, etc." Id. (citing Clevom
i-fi-154---63, 145-149) (emphasis omitted). The Examiner further finds
"Appellant admits that Clevom measures SNR and/or Rank for antenna
performance during short measurement periods but alleges that Clevom
discloses that candidate antennas are turned on, i.e., the candidate antennas
are activated such that they are used for communications with another
device. (App. Br. at 11-14.)" Ans. 2.
During prosecution, claims must be given their broadest reasonable
interpretation while reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using "the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
4
Appeal2016-007735
Application 14/037,903
We agree with Appellant that the ordinary meaning of the disputed
limitation requires "utilizing a second antenna" to generate "the
communication performance metric corresponding to communications
between the communication device and the other communication device via
the first antenna." See App. Br. 16 (Claims App.). We further agree with
Appellant that Clevom does not teach or suggest using a second antenna to
generate a communication performance metric of a first antenna. Instead,
Clevom simply teaches using an antenna to generate a communication
performance metric for that antenna. See, e.g., Clevom i-f 57.
Accordingly, we agree with Appellant the Examiner's finding that
Wang in view of Clevom teaches the disputed limitation is in error because
it is not supported by a preponderance of the evidence. See In re Caveney,
761F.2d671, 674 (Fed. Cir. 1985) (Examiner's burden of proving non-
patentability is by a preponderance of the evidence); see also In re Warner,
379 F.2d 1011, 1017 (CCPA 1967) ("The Patent Office has the initial duty
of supplying the factual basis for its rejection. It may not, because it may
doubt that the invention is patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies in its factual
basis.").
Accordingly, we are constrained on this record to reverse the
Examiner's rejection of claim 1, along with the rejection of dependent
claims 2-5 and 21.
Moreover, because the Examiner has not shown that Zhao cures the
foregoing deficiencies regarding the rejection of the independent claims, we
will not sustain the obviousness rejection of dependent claims 6 and 7 (Final
Act. 10-12) for similar reasons.
5
Appeal2016-007735
Application 14/037,903
Claims 8-16 and 18-20
Appellant asserts claims 8 and 11 "recite substantially similar features
as claim 1 and are distinguishable over the combination of Wang and
Clevom for at least the same reasons discussed above" with regard to claim
1. App. Br. 13-14. However, the specific language that Appellant relies on
in claim 1 is not recited in claims 8 and 15. Compare id. at 17 (claim 1 ),
with id. at 19 (claim 8), 21-22 (claim 15). Nor does Appellant direct us to
language that is commensurate in scope. Moreover, having independently
reviewed the scope of claims 8 and 15, we disagree that the broadest
reasonable interpretation of those claims require using a second antenna to
generate a communication performance metric of a first antenna. Because
Appellant's arguments are not commensurate with the scope of the claims,
they are unpersuasive. See In re Self, 671F.2d1344, 1348 (CCPA 1982).
Accordingly, we sustain the Examiner's rejection of claims 8 and 15,
along with the rejections of claims 9-14, 16, 17, and 18-20, which are not
separately argued. See App. Br. 14 (claims 9-12, 16, 18, and 19), 15-16
(claims 13, 14, and 20).
DECISION
For the above reasons, we reverse the Examiner's decisions rejecting
claims 1-7 and 21.
For the above reasons, we affirm the Examiner's decisions rejecting
claims 8-16 and 18-2 0.
6
Appeal2016-007735
Application 14/037,903
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-IN-PART
7