Ex Parte PI et al

Patent Trial and Appeal Board

Jul 30, 2018

12916019 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/916,019
106809 7590
Docket Clerk - SAMS
P.O. Drawer 800889
Dallas, TX 75380
10/29/2010
08/01/2018
FIRST NAMED INVENTOR
Zhouyue PI
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.
2010.01.009.SRO 8767
EXAMINER
BARON,HENRY
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
patents@munckwilson.com
munckwilson@gmail.com
patent.srad@samsung.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZHOUYUE PI, F AROOQ KHAN,
and JIANZHONG ZHANG
Appeal2017-009007
Application 12/916,019 1
Technology Center 2400
Before ROBERT E. NAPPI, DAVID M. KOHUT, andL YNNEE. PETTIGREW,
Administrative Patent Judges.
KOHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1--4, 6-15, 17-22, and24--29. 2 We have jurisdiction
under35 U.S.C. § 6(b).
We affrrm-in-part.
1 According to Appellants, the real party in interest is Samsung Electronics Co.,
Ltd. App. Br. 4.
2 Claims 5, 16, and 23 were cancelled previously. Ans. 2; See Claims App'x 2, 4,
and 6.
Appeal2017-009007
Application 12/916,019
INVENTION
Appellants' invention relates to transmitting digital TV signals over radio
frequency (RF) channels via physical layer pipe (PLP)paths using PLP symbols
with different symbol mapping methods and different power levels. Spec. ,r,r 7-11.
CLAIMED SUBJECT MATTER
Claims 1, 12, 21, 26, and 29 are independent. Claim 1 is representative and
is reproduced below.
1. A Base Station (BS) for use in a mobile communication
system that includes a plurality ofBSs capable of
communicating with a plurality of Mobile Stations (MSs ), the
BS comprising:
a cellular band transceiver configured to communicate in a
cellular band, the cellular band transceiver comprising an
antenna system, a receiver, and a transmitter that operate in the
cellular band;
a millimeter wave ( mm Wave) band transceiver configured to
communicate in the mm Wave band, the mm Wave band
transceiver comprising an antenna array, a receiver, and a
transmitter that operate in the mm Wave band; and
a controller configured to control both the cellular band
transceiver and the mm Wave band transceiver for
communication with an MS,
wherein at least one control channel is communicated in the
cellular band and at least one data packet is communicated in
the mm Wave band,
wherein the mm Wave band transceiver uses beamforming for
the communication of the at least one data packet, and
wherein the at least one control channel includes a packet data
control channel.
2
Appeal2017-009007
Application 12/916,019
Independent claims 12 and 21 recite similar limitations as claim 1, and
Appellants argue they are allowable for the same reasons as argued for claim 1.
App. Br. 17.
REJECTIONS AT ISSUE
1. The Examiner rejected claims 1, 3, 4, 6, 9, 10, 12, 14, 15, 17, 20-
22, 25, and27 under 35 U.S.C. § 103(a) as unpatentable over
Cordeiro (U.S. 2011/0053521 Al, pub., Mar. 3, 2011, hereinafter
Cordeiro) and Cordeiro (U.S. 2011/007 5642 Al, pub., Mar. 31,
2011, hereinafter Cordeiro3).
2. The Examiner rejected claims 2 and 13 under 35 U.S.C. § 103(a)
as unpatentable over Cordeiro, Cordeiro3, and Cordeiro (U.S.
2012/0250672 Al, pub., Oct. 4, 2012, hereinafter Cordeiro2).
3. TheExaminerrejectedclaims 11 and24under35U.S.C. § 103(a)
as unpatentable over Cordeiro, Cordeiro3, and Louberg (U.S.
2006/0111047 Al).
4. The Examiner rejected claims 7, 8, 18, and 19 under35 U.S.C.
§ 103(a) as unpatentable over Cordeiro, Cordeiro3, and Trainin
(U.S. 2011/0141968Al).
5. The Examiner rejected claim 28 under35 U.S.C. § 103(a)as
unpatentable over Cordeiro, Cordeiro3, and Lambert (U.S.
8,090,379).
6. The Examiner rejected claim 26under35 U.S.C. § 103(a)as
unpatentable over Cordeiro, Cordeiro3, and Kim (U.S.
2011/0319092 Al).
3
Appeal2017-009007
Application 12/916,019
7. TheExaminerrejectedclaim29under35U.S.C. § 103(a)as
unpatentable over Cordeiro, Cordeiro3, and Mueckenheim (U.S.
2007/0225015 Al).
ISSUES
Appellants' arguments present us with the following issues:
I. Whether the Examiner erred in finding Cordeiro teaches
or suggests a controller controlling two transceivers, one
for a cellular band and another for a millimeter wave
band, as required in claims 1, 12, and 21?
II. Whether the Examiner erred in finding Cordeiro teaches
or suggests bidirectional communication using one of
Time Division Duplexing (TDD) or (FDD) Frequency
Division Duplexing (FDD), as required in claims 4 and
15?
III. Whether the Examiner erred in fmding that Cordeiro
teaches or suggests a control channel that includes at
least one of: a synchronization channel, a broadcast
control channel, a power control channel, or an
acknowledgement channel, as required in claims 6 and
17?
IV. Whether the Examiner erred in fmding Cordeiro teaches
or suggests transmitting packets over both cellular and
mm Wave bands, as required in claims 9 and 20?
4
Appeal2017-009007
Application 12/916,019
V. Whether the Examiner erred in finding Cordeiro teaches
or suggests the access point is one of a relay station or a
femto base station, as required in claim 25?
VI. Whether the Examiner erred in finding Cordeiro2 teaches
or suggests the mm Wave transceiver at the base station
forms a beam to communicate in the mm Wave band with
the mobile station, as required in claims 2 and 13?
VII. Whether the Examiner erred in finding Louberg teaches
or suggests a PDS/gateway or communication between
base stations with a PDS/gateway, as required in claims
11 and 24?
VIII. Whether the Examiner erred in finding Trainin teaches or
suggests a control channel communicated from the MS to
the BS that includes at least one of: a pilot channel, a
sounding channel, an acknowledgment channel, a
channel state information feedback, or a bandwidth
request, as required in claims 7 and 18?
IX. Whether the Examiner erred in finding Trainin teaches or
suggests a channel state information feedback
communicated in the cellular band that indicates the
channel quality of the mm Wave band, as required in
claims 8 and 19?
X. Whether the Examiner erred in relying on Kim as prior
art in the rejection of claim 26?
XI. Whether the Examiner erred in finding the combination
of Cordeiro, Cordeiro3, andMueckenheim teaches or
5
Appeal2017-009007
Application 12/916,019
suggests a Packet Data Server/Gateway, as required in
claim 29?
ANALYSIS
Issue I
Independent claim 1 recites "a controller configured to control both the
cellular band transceiver and the mm Wave band transceiver for communication
with an MS."
The Examiner fmds Cordeiro teaches or suggests a controller to control
multiband communication. Ans. 22. Specifically, the Examiner fmds Cordeiro's
processor 120 controls two different wireless transceivers, i.e., cellular and
mm Wave band transceivers. Ans. 18, citing to Cordeiro ,r 24, Fig. 1; see also Final
Act. 4, citing to Cordeiro ,r,r 28, 30.
Appellants argue that Cordeiro teaches multiband communication, which is
not the same as one controller controlling two different transceivers. App. Br. 16.
Appellants argue Cordeiro's controller (processor 120) requires a plurality of
controllers, and, as such, does not teach or suggest a single controller to control
two different transceivers. Reply Br. 6, citing to Cordeiro ,r 21. Appellants'
arguments are not persuasive.
Contrary to Appellants' argument, Cordeiro's processor 120 does not require
a plurality of processors or controllers. We note Cordeiro paragraph 21 describes
different elements that may be included in the processor 120, including "any other
suitable multi-purpose or specific processor or controller," but does not require a
plurality of processors or controllers. Cordeiro ,r 21; see Reply Br. 6. For
example, one of ordinary skill in the art would understand Cordeiro' s paragraph 21
as teaching or suggesting a multi-purpose controller configured to control both the
6
Appeal2017-009007
Application 12/916,019
cellular and the mm Wave band transceivers. Thus, Appellants' arguments
regarding Cordeiro' s teaching are not persuasive.
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of independent claim 1. Independent claims 12 and 21
recite similar limitations as claim 1, and Appellants argue they are allowable for
the same reasons as argued for claim 1. App. Br. 17. Claims 3 and 10 depend
from claim 1, claim 14 depends from claim 12, and claim 22 depends from claim
21. Claims App'x. 2--4, 6. Appellants do not present separate arguments for
claims 3, 10, 14, and 22. App. Br. 17, 21. Thus, we sustain the Examiner's
rejection of claims 3, 10, 12, 14, 21, and 22 for the same reasons as set forth above
for claim 1.
Issue II
Claim 4 recites "bidirectional communication is performed using one of
Time Division Duplexing (TDD) or (FDD) Frequency Division Duplexing
(FDD)."
The Examiner fmds Cordeiro teaches or suggests bidirectional
communication, via transceivers, using TDD and FDD. Final Act. 5, citing to
Cordeiro ,r 13 ("Some embodiments may be used in conjunction with one or more
types of wireless communication signals and/or systems, for example ...
Frequency-Division Multiplexing (FDM), Orthogonal FDM (OFDM), Time-
Division Multiplexing (TD M), [etc.]").
Appellants' arguments directed to Childress in the Appeal Brief appear to be
a typographical error. App. Br. 18. Appellants argue that Cordeiro's inclusion of
transceivers in the wireless device does not mean the device communicates
bidirectionally using TDD orFDD, as claimed. App. Br. 18; Reply Br. 11-12.
7
Appeal2017-009007
Application 12/916,019
Appellants' arguments are not persuasive, because they do not address the
Examiner's findings, specifically with respect to the above-mentioned disclosure
ofFDM and TDM in Cordeiro's paragraph 13.
Moreover, Appellants' arguments were presented, in full, for the first time in
the Reply Brief. Appellants have not shown good cause as to why these arguments
could not have been presented earlier. As such, these arguments are waived and
have not been considered. SeeExparteBorden, 93 USPQ2d 1473, 1473-74
(BP AI 2010) (informative) ( absent a showing of good cause, the Board is not
required to address arguments in Reply Brief that could have been presented in the
principal Appeal Brief); 37 C.F.R. § 41.4 l(b )(2).
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of claim 4. Claim 15 recites similar limitations as claim
4, and Appellants argue it is allowable for the same reasons as argued for claim 4.
App. Br. 18; Reply Br. 12. Therefore, we sustain the Examiner's rejection of claim
15 for the same reasons as set forth above for claim 4.
Issue III
Claim 6 recites a control channel including "at least one of: a
synchronization channel, a broadcast control channel, a power control channel, or
an acknowledgement channel."
The Examiner finds the claimed control channels recite basic functionality
consistent with well-known communications protocols, as taught by the prior art.
Ans. 21, citing to Cordeiro ,r 13.
Appellants' argue that Cordeiro' s role field does not teach or suggest a
control channel including a synchronization channel, a broadcast control channel, a
power control channel, or an acknowledgement channel, as claimed. App. Br. 19.
Appellants assert that the Examiner's findings are conclusory and lack support.
8
Appeal2017-009007
Application 12/916,019
Reply Br. 12-13. Appellants' arguments have not persuaded us that the Examiner
erred.
The Examiner fmds that synchronization, broadcast control, power, and
acknowledgment channels are well-known elements in communication protocols
that a person of ordinary skill in the art would have understood to be present in
Cordeiro. See Ans. 21; see also Cordeiro ,r 13. Specifically, Cordeiro paragraph
13, as relied upon by the Examiner, teaches different wireless communication
protocols or systems, including GSM, 2G, 3G, EDGE, for example. Cordeiro ,r 13.
We note that the Specification supports the Examiner's fmdings, stating that
"cellular based systems typically have signals or control channels for at least one
of time and frequency synchronization, cell identification, system acquisition,
resource allocation, and other functions to maintain communication links or to
support data channel communication, such as power control, acknowledgement,
etc." Spec. ,r 42. As such, Appellants do not particularly show error in the
Examiner's fmding.
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of claim 6. Claim 17 recites similar limitations as claim
6, and Appellants argue it is allowable for the same reasons as argued for claim 6.
App. Br. 20; Reply Br. 12-13. Therefore, we sustain the Examiner's rejection of
claim 17 for the same reasons as set forth above for claim 6.
Issue IV
Claim 9 recites, "a frrst data packet is communicated in the cellular band and
a second data packet is communicated in the mm Wave band."
Appellants argue Cordeiro does not teach or suggest transmission of
different data packets, one in a cellular band and the other in a mm Wave band.
App. Br. 20; Reply. Br. 13.
9
Appeal2017-009007
Application 12/916,019
Appellants' arguments are not persuasive, because they do not address the
Examiner's findings. The Examiner fmds Cordeiro teaches that the multiband IE
can include information relating to the operation/functionality of the cellular band
if transmitting over the mm Wave band and information about the
operation/functionality of the mm Wave band if transmitting over the cellular band.
Final Act. 6, citing to Cordeiro ,r 40; Ans. 22, citing to fmdings for claim 1; see
also Cordeiro ,r 37 (using the term "and/or"). As such, transmission can occur over
both bands ( cellular and mm Wave) while providing operation/functionality of
other band. Because Appellants do not address the Examiner's explicit fmdings,
Appellants do not particularly show error in the Examiner's fmdings.
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of claim 9. Claim 20 recites similar limitations as claim
9, and Appellants argue it is allowable for the same reasons as argued for claim 9.
App. Br. 20; Reply Br. 13. Therefore, we sustain the Examiner's rejection of claim
20 for the same reasons as set forth above for claim 9.
Issue V
Claim 25 recites, "wherein the mmAP is one of: a Relay Station (RS) or a
femto BS."
Appellants argue Cordeiro does not teach or suggest a Relay Station (RS) or
a femto BS. App. Br. 21; Reply Br. 14. Appellants' arguments are persuasive.
The Examiner fmds Cordeiro teaches or suggests a relay station or a femto
station, citing to Cordeiro paragraph 15. Final Act. 6. The Examiner fmds that
Cordeiro' s device 106 may function as a relay station or fem to station, but fails to
provide sufficient explanation or evidence to support this fmding. See Ans. 23.
For all of the reasons stated above, we are persuaded of error and do not
sustain the Examiner's rejection of claim 25.
10
Appeal2017-009007
Application 12/916,019
Issue VI
Claim 2 recites, the "controller is configured to control the mm Wave band
transceiver to form a beam through which communication in the mm Wave band is
performed."
Appellants argue Cordeiro2 does not teach or suggest this limitation. App.
Br. 22; Reply Br. 14.
Appellants' arguments are not persuasive, because they attack the references
individually whereas the rejection is based on the combination of Cordeiro,
Cordeiro2, and Cordeiro3. Final Act. 4, 7. Nonobviousness cannot be established
by attacking the references individually when the rejection is based on a
combination of references. See In re Merck& Co. Inc., 800 F.2d 1091, 1097 (Fed.
Cir. l986);InreKeller,642F.2d4l3,425 (CCPA1981). TheExaminerrelies on
Cordeiro to teach a controller to control the mm Wave band transceiver through
which communication in the mm Wave band is performed. FinalAct. 4, 7. The
Examiner relies on Cordeiro2 to teach a beamformer to form a beam. Final Act. 7.
The Examiner fmds that one of ordinary skill in the art would combine the
teachings of Cordeiro' s controller and Cordeiro2 's beamformer so capable devices
can receive direct mm Wave band communications. Final Act. 7; see Ans. 24.
Appellants' arguments addressing only Cordeiro2, rather than the Examiner's
proposed combination of Cordeiro, Cordeiro2, and Cordeiro3, does not
demonstrate Examiner error.
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of claim 2. Claim 13 recites similar limitations as claim
2, and Appellants argue it is allowable for the same reasons as argued for claim 9.
App. Br. 22; Reply Br. 14. Therefore, we sustain the Examiner's rejection of claim
13 for the same reasons as set forth above for claim 2.
11
Appeal2017-009007
Application 12/916,019
Issue VII
Claim 11 recites, "the BS communicates with a Packet Data Server/
Gateway via the communication with the other BS and the communication with the
other BS occurs in an mm Wave band."
Appellants argue neither Cordeiro, Cordeiro3, nor Louberg teaches or
suggests communication with a Packet Data Server/ Gateway via a
communication with another BS. App. Br. 23. Appellants further argue the
Examiner's findings regarding Louberg' s teaching of an internet point of presence
as a PDS / Gateway are in error. Reply. Br. 15. Appellants' arguments are
unpersuasive.
Appellants' arguments are not persuasive, because they do not particularly
show error in the Examiner's fmdings. The Examiner fmds that the combination
of Cordeiro and Cordeiro3, in combination with Louberg' s teaching of a wireless
network communicating from an internet point of presence ( a Packet Data Server/
Gateway) across mm Wave band in communication with another BS, teaches the
limitation at issue. Final Act. 7, citing to Louberg,r 56; Ans. 25. Appellants'
arguments do not address these explicit fmdings by the Examiner, merely asserting
that the Examiner's fmdings as to Louberg's internet point of presence are
conclusory. App. Br. 23; Reply Br. 15. As such, Appellants do not particularly
show error in the Examiner's fmdings.
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of claim 11. Claim 24 recites similar limitations as claim
11, and Appellants argue it is allowable for the same reasons as argued for claim 9.
App. Br. 23; Reply Br. 15. Therefore, we sustain the Examiner's rejection of claim
24 for the same reasons as set forth above for claim 11.
Issues VIII and IX
12
Appeal2017-009007
Application 12/916,019
Claim 7 recites, "the at least one control channel communicated in the
cellular band comprises a control channel communicated from the MS to the BS
that includes at least one of: a pilot channel, a sounding channel, an
acknowledgment channel, a channel state information feedback, or a bandwidth
request." Claim 8 recites, "channel state information feedback is communicated in
the cellular band that indicates the channel quality of the mm Wave band."
The Examiner finds the combination of Cordeiro, Cordeiro3, and Trainin
teaches the limitations at issue, specifically that Trainin teaches a wireless node
specifying traffic flow requirements and requesting a QAP or PCP to create a new
traffic specification between two nodes by sending control signals to the Quality
Access Point (QAP) or PBSS control point (PCP) that can be broadly interpreted as
a sounding channel and channel state information feedback communicated in the
cellular band in combination with the multiband teachings of Cordeiro and
Cordeiro3. Final Act. 8; Ans. 26-27.
Appellants argue that requesting a QAP or PCP interpreted as a sounding
channel is not taught or suggested by Trainin. App. Br. 24; Reply Br. 15-16.
Appellants further argue Trainin does not teach or suggest transmission in the
cellular band about the mm Wave band.
Appellants' arguments do not address the Examiner's explicit fmdings. See
App. Br. 24--25; Reply Br. 15-16. Further, regarding claim 8, Appellants address
the references individually, arguing there is no support in Trainin for transmission
in the mm Wave band, while the Examiner relies on the combination of Cordeiro
and Cordeiro3 to teach the multiband transmission. See In re Merck & Co. Inc.; In
re Keller. As such, Appellants do not particularly show error in the Examiner's
fmdings and fail to address the rejections as proposed by the Examiner.
13
Appeal2017-009007
Application 12/916,019
For all of the reasons stated above, we are not persuaded of error and sustain
the Examiner's rejection of claims 7 and 8. Claim 18 recites similar limitations as
claim 7, and Appellants argue it is allowable for the same reasons as argued for
claim 7. App. Br. 25; see Reply Br. 15-16. Likewise, claim 19 recites similar
limitations as claim 8, and Appellants argue it is allowable for the same reasons as
argued for claim 8. App. Br. 25; see Reply Br. 15. Therefore, we sustain the
Examiner's rejection of claims 18 and 19 for the same reasons as set forth above
for claims 7 and 8.
IssueX
Independent claim 26 recites, in part, "the controller controls the mm Wave
band transceiver to communicate at least one data packet through a frrst
beamforming in the mm Wave band in a frrst time slot with a frrst BS and controls
the mm Wave band transceiver to communicate at least one data packet through a
second beamf orming in the mm Wave band in a second time slot with a second
BS." Claims 27 and 28 are dependent upon claim 26.
Appellants argue Kim is not valid prior art, asserting that the Examiner has
not provided a translation of the provisional application 61/146,622 and has not
shown that the provisional application provides support for Kim to be valid prior
art for the obviousness rejection. App. Br. 29-30; Reply Br. 17-18.
The Examiner fmds that provisional application 61/146,622, Operation of
Invention section, provides support for relied upon paragraph 16 of Kim. Final
Act. 3. We disagree with the Examiner.
Appellants' application was filed October 29, 2010. Kim was filed as a
National Stage Application from a Patent Cooperation Treaty Application on June
20, 2011, which is after the filing date of the Appellants' application. However,
Kim is based on provisional application 61/149,622, filed January 22, 2009.
14
Appeal2017-009007
Application 12/916,019
Contrary to Appellants' argument, a translation of the originally filed non-English
provisional application, was entered on June 8, 2011, and publically available.
Now, here on the record, citing to the provisional application's translation
("provisional"), we determine whether Kim is entitled to the provisional
application's filing date.
"A reference patent is only entitled to claim the benefit of the filing date of
its provisional application if the disclosure of the provisional application provides
support for the claims in the reference patent in compliance with § 112, ,r 1."
Dynamic Drinkware, LLCv. Nat'l Graphics, Inc., 800 F. 3d 1375, 1382 (Fed. Cir.
2015). This also applies to published non-provisional applications, like Kim. See
Amgen Inc. v. Sanofi, 872 F.3d 1367, 1380 (Fed. Cir. 2017). As such, the record
would need to show that at least one of the claims in Kim is supported by the
provisional application. "[T]he specification of the provisional must 'contain a
written description of the invention and the manner and process of making and
using it, in such full, clear, concise, and exact terms,' 35 U.S.C. § 112, ,r 1, to
enable an ordinarily skilled artisan to practice the invention claimed in the non-
provisional application." Dynamic Drinkware, 800 F.3d at 1378 ( quoting New
Railhead Mfg., L.L. C. v. Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir. 2002)).
While the Examiner purports to show that paragraph 16 of Kim is supported by the
disclosure of the provisional application, the Examiner fails to show that the
provisional application supports one of the claims recited in Kim. Therefore, the
Examiner has not properly shown that Kim is entitled to the filing date of the
provisional application. See Dynamic Drinkware, 800 F.3d at 1380 ("[B]ecause
the PTO does not examine priority claims unless necessary, the Board has no basis
to presume that a reference patent [application] is necessarily entitled to the filing
date of its provisional application."). As such, Kim's earliest effective filing date
15
Appeal2017-009007
Application 12/916,019
is June 20, 2011, and, therefore, after the filing date of Appellants' application.
Accordingly, Kim does not qualify as prior art to the claimed invention.
For all of the reasons stated above, we do not sustain the Examiner's
rejection of claim 26 or dependent claims 27 and 28.
Issue XI
Independent claim 29 recites, in part, "when the controller detects network
congestion, the controller controls the mm Wave band transceiver to communicate
at least one data packet through beamf orming in the mm Wave band with another
BS that would result in less congestion between the BS and the Packet Data Server
/ Gateway."
Appellants argue Cordeiro fails to teach or suggest a controller, as indicated
with respect to claim 1. App. Br. 31-33. Further, Appellants argue neither
Cordeiro nor Mueckenheim teaches or suggests detecting network congestion
between the BS and a Packet Data Server/ Gateway. App. Br. 33-34.
Specifically, Appellants argue Mueckenheim does notteach or suggest a Packet
Data Server/ Gateway. Reply Br. 18. Appellants' arguments are persuasive.
Appellants' arguments regarding the controller are not persuasive. See
supra, Issue I.
Regarding Appellants' arguments as to detecting network congestion
between the BS and a Packet Data Server/ Gateway, the Examiner relies on
Mueckenheim to teach congestion control in combination with the multiband
communication between BS, as taught by Cordeiro and Cordeiro3. Final Act. 13;
Ans. 35. The Examiner has not made any findings to a Packet Data Server/
Gateway in either of these references. See Ans. 35. As such, the Examiner has not
made sufficient fmdings or provided evidence as to how the combination of
16
Appeal2017-009007
Application 12/916,019
Cordeiro, Cordeiro3, and Mueckenheim teaches or suggests detecting network
congestion between the BS and a Packet Data Server/ Gateway.
For all of the reasons stated above, we are persuaded of error and do not
sustain the Examiner's rejection of claim 29.
DECISION
The Examiner's rejections of claims 1--4, 6-15, 17-22, and24 are affrrmed.
The Examiner's rejections of claims 25-29 are reversed.
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-IN-PART
17