Ex Parte Nie

Patent Trial and Appeal Board

Jun 28, 2016

12277632 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/277,632 11125/2008
93968 7590 06/30/2016
MURPHY, BILAK & HOMILLER/LANTIQ
1255 Crescent Green
Suite 200
Cary, NC 27518
FIRST NAMED INVENTOR
Xiaoning Nie
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.
Pl800USOO 6392
EXAMINER
NGUYEN, PHUONGCHAU BA
ART UNIT PAPER NUMBER
2464
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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 XIAONING NIE
Appeal2014-007565
Application 12/277,632
Technology Center 2400
Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and
ADAM J. PYONIN, Administrative Patent Judges.
Per Curiam.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the Final
Rejection of claims 1-33. Appeal Brief 1. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.
STATEMENT OF THE CASE
Introduction
The invention is directed to an "ad hoc communication layer structure
and/or protocol" used to replace "[o]ne or more of the standard structures
Appeal2014-007565
Application 12/277,632
and/or protocols" in a communication between two communication devices.
Abstract.
Representative Claims (Disputed limitations emphasized)
1. A communication method, comprising:
establishing a communication connection between a first
communication device and a second communication device in
accordance with one or more communication layers, each
communication layer being associated with a standard structure
and protocol used to establish the communication connection
between the first and second communication devices;
determining an ad hoc communication layer structure
and/or protocol at the first communication device based on one
or more actual operating conditions associated with the
connection;
communicating the ad hoc communication layer structure
and/or protocol to the second communication device; and
replacing one or more of the standard structures and/or
protocols at the first communication device \~1ith the ad hoc
communication layer structure and/or protocol responsive to the
second communication device acknowledging acceptance of the
ad hoc communication layer structure and/or protocol.
15. A communication method, comprising:
establishing a communication connection between a first
communication device and a second communication device in
accordance with one or more communication layers, each
communication layer being associated with a standard structure
and protocol of a communication standard used to establish the
communication connection between the first and second
communication devices;
evaluating, at the second communication device, an ad hoc
communication layer structure and/or protocol generated by the
first communication device which is non-compliant with the
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Appeal2014-007565
Application 12/277,632
communication standard used to establish the connection
between the first and second communication devices; and
determining whether to replace one or more of the
standard structures and/or protocols at the second
communication device with the ad hoc communication layer
structure and/or protocol.
Rejections on Appeal
Claims 1, 9, 15, and 20 stand provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 6 and 17 of copending Application No. 12/277,562. Final Rejection
3--4.
Claims 1-26 and 30 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Bender (US 7,158,537 B2; January 2, 2007). Final Rejection
4--16.
Claims 27-29 and 31-33 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Bender in view ofOyman (US 2009/0245159 Al;
October 1, 2009). Final Rejection 17-18.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Final Rejection (mailed May 28, 2013), the Appeal Brief
(filed January 6, 2014), and the Examiner's Answer (mailed April 30, 2014).
We have considered in this decision only those arguments Appellant actually
raised in the Briefs.
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Appeal2014-007565
Application 12/277,632
Double Patenting Rejection
Appellant does not argue the provisional rejection of claims 1, 9, 15,
and 20 on the ground of nonstatutory obviousness-type double patenting.
Appeal Brief 1-19. Therefore, we sustain the Examiner's double patenting
rejection because Appellant did not address the merits of the rejection. See
Answer 29.
Anticipation Rejection
Appellant argues the Examiner erred in rejecting independent claim 1,
because Bender fails to "disclose that the ad hoc communication layer
structure and/or protocol are determined based on actual operating
conditions associated with the connection." Appeal Brief 6, emphasis in
original. Appellant contends the determination of block 786 of Figure 7C
"are used to check whether the release of the connection is required to
activate already selected layers or protocols." Appeal Brief 6, citing Bender
16: 15-19.
The Examiner finds that Bender's "access terminal identifies the
acceptable layers and protocols associated with the release of the connection
[and] would allow the access terminal and the radio network to activate and
use the negotiated/accepted layers, wherein the actual operating conditions
associated with the connection is the release of the connection." Answer 20,
citing Bender 14:37-15: 17, 16:4--31. We find Appellant's argument
persuasive because the layers or protocols are selected before the release of
the connection is checked. Accordingly, we reverse the Examiner's
anticipation rejection of independent claim 1, and independent claim 8
commensurate in scope, and claims 2-7 and 9-14 that depend therefrom and
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Appeal2014-007565
Application 12/277,632
not separately argued. See Appeal Brief 7. We also reverse the Examiner's
obviousness rejection of dependent claims 27-29 as the addition of Oyman
does not cure the deficiencies of Bender.
Appellant argues the Examiner erred in rejecting independent claim
15, because "[t]he selected protocols or layers of the Bender reference are
described as being modifications within the standard, which means that they
are in fact compliant with the standard." Appeal Brief 8-9. Appellant
contends that such a modification "will result in the new standard being
compliant with the existing standard." Appeal Brief 9.
We are not persuaded by Appellant's arguments. The Examiner finds
Bender discloses "wherein the negotiation is not agreeable on the
configuration," such as non-compliance with the (existing) CDMA standard,
in which a "new air interface protocol is defined." Answer 24--25, citing
Bender 1:53-2:29, 15:17-18, 6:15-26. The Examiner finds, and we agree,
"Bender does disclose the negotiated layers and protocols (the new standard
of air interface protocol) that are non-compliant with the communication
standard (original standard of air interface protocol) used to establish the
connection." Answer 28. Appellant's argument that a new standard will be
compliant with an existing standard fails to consider that from the viewpoint
of the existing standard, the new standard's new features are non-complaint
with the existing standard. Accordingly, we affirm the Examiner's
anticipation rejection of independent claim 15, and independent claim 20
commensurate in scope, and claims 16-19, 21-26, and 30 that depend
therefrom and not separately argued. See Appeal Brief 9. We also affirm
the Examiner's obviousness rejection of dependent claims 31-33 not
separately argued.
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Appeal2014-007565
Application 12/277,632
DECISION
We affirm the Examiner's provisional rejection of claims 1, 9, 15, and
20 on the ground of nonstatutory obviousness-type double patenting.
30.
We reverse the Examiner's anticipation rejection of claims 1-14.
We reverse the Examiner's obviousness rejection of claims 27-29.
We affirm the Examiner's anticipation rejection of claims 15-26 and
We affirm the Examiner's obviousness rejection of claims 31-33.
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(f).
AFFIRMED-IN-PART
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