Ex Parte Salo et al

Board of Patent Appeals and Interferences

May 14, 2012

09893421 (B.P.A.I. May. 14, 2012)

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.
09/893,421 06/29/2001 Juha Salo 004770.00722 5222
72165 7590 05/15/2012
BANNER & WITCOFF, LTD
ATTORNEYS FOR CLIENT 004770
1100 13TH STREET
SUITE 1200
WASHINGTON, DC 20005-4051
EXAMINER
SALTARELLI, DOMINIC D
ART UNIT PAPER NUMBER
2421
MAIL DATE DELIVERY MODE
05/15/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JUHA SALO, JANNE AALTONEN, and
PEKKA TALMOLA
__________

Appeal 2009-012957
Application 09/893,421
Technology Center 2400
____________

Before LANCE L. BARRY, ST. JOHN COURTENAY III, and
CARL W. WHITEHEAD, JR., Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Patent Examiner rejected claims 45-63, 65-89, and 101. The
Appellants appeal therefrom under 35 U.S.C. § 134(a). We have jurisdiction
under 35 U.S.C. § 6(b).

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INVENTION

The following claims illustrate the invention on appeal.
45. An apparatus comprising:
a classifier connectable to a source of content and
operable to place the content into at least one of a plurality of
hierarchically modulated simultaneously transmitted data
streams which respectively have a different priority assigned to
the contents therein corresponding to a particular class of the
content wherein at least one of the plurality of hierarchically
modulated data streams is configured to have a maximum range
greater than at least one other hierarchically modulated data
stream that provides an adequate C/N ratio for reception by a
terminal.

101. A wireless apparatus comprising:
a receiver configured to receive a plurality of
hierarchically modulated simultaneously transmitted data
streams which respectively have a different priority assigned to
the contents therein corresponding to a particular class of the
content wherein the terminal is configured to simultaneously
receive the contents of any of the data streams having adequate
C/N ratio at the location of the terminal.

REFERENCES AND REJECTION
Claims 45-63, 65-89, and 101 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gotwald (US 5,987,518; issued Nov. 16, 1999),
Banker (US 5,497,187; issued Mar. 5, 1996) and Nicolas (US 5,453,797;
issued Sep. 26, 1995).

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DISCUSSION
Based on the Appellants' arguments, we will decide the appeal of
claims 45-63 and 65-89 on the basis of claim 45. See 37 C.F.R.
§ 41.37(c)(1)(vii). We will decide the appeal of claim 101 individually.
Therefore, the issues before us follow.
Did the Examiner err in finding that Banker would have taught or
suggested "hierarchically modulated . . . data streams," as required by
representative claim 45?
Did the Examiner err in finding that Banker would have taught or
suggested "simultaneously transmitted data streams," as required by
representative claim 45?
Did the Examiner err in finding that Nicolas would have taught or
suggested "wherein at least one of the plurality of hierarchically modulated
data streams is configured to have a maximum range greater than at least one
other hierarchically modulated data stream that provides an adequate C/N
ratio for reception by a terminal," as required by representative claim 45?
Did the Examiner err in finding that Gotwald would have taught or
suggested "transmitted data streams which respectively have a different
priority assigned to the contents therein corresponding to a particular class of
the content", as required by representative claim 45?
Did the Examiner err in finding that Gotwald would have taught or
suggested a "wireless apparatus," as required by representative claim 101?
We address the issues seriatim.
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REPRESENTATIVE CLAIM 45
HIERARCHICALLY MODULATED DATA STREAMS
[A]ll that is required of the office to meet its prima facie burden
of production is to set forth the statutory basis of the rejection
and the reference or references relied upon in a sufficiently
articulate and informative manner as to meet the notice
requirement of [35 U.S.C.] § 132. As the statute itself instructs,
the examiner must "notify the applicant," "stating the reasons
for such rejection," "together with such information and
references as may be useful in judging the propriety of
continuing prosecution of his application." 35 U.S.C. § 132.

In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011).
Here, claim 45 recites in pertinent part "hierarchically modulated . . .
data streams."
The Examiner makes the following findings and conclusions.
Banker discloses placing differently prioritized data into
different streams which are simultaneously transmitted, such
that higher priority data is in a separate data stream and
unaffected by lower priority data which has been transmitted in
a separate data stream (col. 11, lines 1-17).
It would have been obvious at the time to a person of
ordinary skill in the art to modify the system disclosed by
Gotwald to include the data streams are corresponding
hierarchically modulated data streams that are simultaneously
transmitted, as taught by Banker, for the benefit of separating
data streams so that lower priority data will not interfere with
the transmission of higher priority data.

(Ans. 4.)
"Applicants further respectfully disagree that the data streams of
Banker are hierarchically modulated." (App. Br. 20.)
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The Appellants have shown no err in the Examiner's findings and
conclusion because they neither present evidence nor explain why the
Examiner's findings are incorrect. Therefore, we conclude that the Examiner
did not err in finding that Banker would have taught or suggested
"hierarchically modulated . . . data streams," as required by representative
claim 45.

SIMULTANEOUSLY TRANSMITTED DATA STREAMS
The question of obviousness is "based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
inherently . . . ." In re Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001)
(citations omitted).
Here, claim 45 recites in pertinent part "simultaneously transmitted
data streams".
We agree with the Examiner's finding that "Banker discloses placing
differently prioritized data into different streams which are simultaneously
transmitted, such that higher priority data is in a separate data stream and
unaffected by lower priority data which has been transmitted in a separate
data stream (col. 11, lines 1-17)." (Ans. 4.) The Examiner also finds that
"Banker, col. 11, lines 1-17, identifies [the] set of data streams by number 7,
8, and 9". (Ans. 12.)
The Appellants make the following argument.
[T]he Banker references [sic] teaches the serial transmission of
data (as opposed to the simultaneous transmission of data). In
fact, Banker explicitly states that "[d]ifferent groups of data are
transmitted on a serial data channel. . . ." (Col. 10, ll. 37-38;
emphasis added).

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(Reply Br. 4.) They also argue that "streams (7), (8), and (9) (shown in Fig.
5a) are not simultaneously transmitted, but instead are transmitted on recited
[sic] the serial data channel)." (App. Br. 21.)
We are not persuaded by Appellants' arguments. We agree with the
Examiner's following findings.
The identified numerals in fig. 5(a) are simply referring
to individual ones of the standard 21 lines found in the VBI of
an NTSC encoded video signal. There is absolutely no relation
between the streams disclosed in col. 11, lines 1-17 of Banker
with the standard VBI lines identified in fig. 5(a).
Further, the individual streams identified are disclosed as
being addressed to different modulators (Banker, col. 11, lines
46-62), where different modulators are for different channels
(Banker, col. 12, lines 30-54), showing that Banker clearly
teaches modulating different streams onto different frequency
portions of an outgoing transmission.

(Ans. 13.)
Therefore, we conclude that the Examiner did not err in finding that
Banker would have taught or suggested "simultaneously transmitted data
streams," as required by representative claim 45.

MAXIMUM RANGE GREATER THAN
The Examiner finds that Nicolas would have taught or suggested "at
least one of the plurality of hierarchically modulated data streams is
configured to have a maximum range greater than at least one other
hierarchically modulated data stream that provides an adequate C/N ratio for
reception by a terminal", as required by representative claim 45. (Ans. 4.)
The Examiner (Ans. 4.) relies on the following teaching of Nicolas.
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The power spectral density of the lower frequency band or the
"high priority carrier” is higher by 5 dB compared to the higher
frequency band or "standard priority career". This power
difference ensures that the carrier-to-noise threshold of the
high-priority channel is 5 dB lower than the carrier-to-noise
threshold of the standard priority channel. The high priority
data represents one fifth of the total power. This data
transmission scheme can be viewed as a particular case of data
transmission using a modulation scheme with an unequal
constellation.

(Nicolas col. 4, ll. 50-60)
The Appellants make the following argument.
The Examiner alleges that Column 4 of Nicolas teaches
that "the higher priority data has a higher maximum range than
lower priority data." . . . Applicants respectfully submit that the
Examiner is erroneously equating the concepts of "power" and
"power range." . . . First, the statement that one stream may
have higher power than another stream indicates nothing about
the range of the two streams. Specifically, "power" does not
always equate to "power range." Rather, one skilled in the art
first needs to know the amount of data (i.e., the quantity of bits)
being transferred. . . . Nicolas never discusses the number of
bits transmitted in each stream.

(App. Br. 18.)
The Appellants have shown no error in the Examiner's findings and
conclusion because they neither present sufficient evidence nor explain why
the Examiner's findings are incorrect. Their arguments that range is a
function of power and bit rate do not address the Examiners' finding that
Banker's high priority stream, with the lower C/N threshold, has a greater
range than the standard priority stream, where the range is measured by an
adequate C/N ratio. (Ans. 4, 10.)

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Therefore, we conclude that the Examiner did not err in finding that
Nicolas would have taught or suggested "wherein at least one of the plurality
of hierarchically modulated data streams is configured to have a maximum
range greater than at least one other hierarchically modulated data stream
that provides an adequate C/N ratio for reception by a terminal," as required
by representative claim 45.

DIFFERENT PRIORITY ASSIGNED TO THE CONTENTS
Claim 45 recites in the pertinent part "transmitted data streams which
respectively have a different priority assigned to the contents therein
corresponding to a particular class of the content."
The Appellants make the following argument.
[C]ombining the references would not teach, disclose, or
suggest the subject matter of the rejected claims. Each of the
three data types of Gotwald are "prioritized" by three separate
and distinct priority modules[.] (see, e.g., Col. 4, lines 24 - 27,
32 - 37, and 39 - 42)[.] Therefore, the three categories are not
prioritized among each other at the priority modules, but rather
prioritized only within a selected protocol. The queues are then
transmitted through a single broadband channel. (see Col. 3,
lines 2 - 3, 51 - 53, and Fig. 1, item 16).

(App. Br. 22.)
We agree with the Examiner's finding that "[t]he cited section of
Gotwald explicitly teaches '[i]n some systems, it will be desirable to provide
different data types with different priority levels.' (Gotwald, col. 5, lines 7-
8)". (Ans. 14.)
Therefore, we conclude that the Examiner did not err in finding that
Gotwald would have taught or suggested "transmitted data streams which
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respectively have a different priority assigned to the contents therein
corresponding to a particular class of the content," as required by
representative claim 45.

REPRESENTATIVE CLAIM 101
WIRELESS APPARATUS
The Appellants argue "that Nicolas does not teach a ''wireless device"
as recited in claim 101. (App. Br. 19.)
We adopt the Examiner findings that "Gotwald includes a teaching
where the distribution means for a broadband channel includes wireless
means (Gotwald, col. 3, lines 48-50), requiring a wireless device for
reception." (Ans. 12.)
Therefore, we conclude that the Examiner did not err in finding that
Gotwald would have taught or suggested a "wireless apparatus," as required
by representative claim 101.

DECISION
We affirm the rejection of claim 45 and of claims 46-63 and 65-89,
which fall therewith. We also affirm the rejection of claim 101.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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