Ex Parte Schenk

Patent Trial and Appeal Board

Jun 6, 2016

13098227 (P.T.A.B. Jun. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/098,227 04/29/2011
95324 7590
Slater & Matsil, LLP,
17950 Preston Road
Suite 1000
Dallas, TX 75252
06/08/2016
FIRST NAMED INVENTOR
Heinrich Schenk
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.
LTQ 2007 P 52086 USOl 8232
EXAMINER
SHAH, TANMAY K
ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
06/08/2016 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):
docketing@slater-matsil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HEINRICH SCHENK
Appeal2014-005412
Application 13/098,227
Technology Center 2600
Before KAL YANK. DESHPANDE, DAVID M. KOHUT, and
JUSTIN T. ARBES, Administrative Patent Judges.
DESHPANDE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE1
Appellant seeks review under 35 U.S.C. § 134(a) of the Examiner's
Final Rejection of claims 1-3, 6, 9-11, 14--16, 19, 20, and 23-28.2,3 We
have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision makes reference to Appellant's Reply Brief ("Reply Br.,"
filed March 28, 2014), and Appeal Brief ("App. Br.," filed October 7, 2013),
the Examiner's Answer ("Ans.," mailed January 31, 2014), and Final Office
Action ("Final Act.," mailed February 15, 2013).
2 Claims 29-34 were withdrawn previously.
3 Claims 4, 5, 7, 8, 12, 13, 17, 18, 21, and 22 are indicated as containing
allowable subject matter, but are objected to as being dependent on a
rejected claim. Final Act. 12.
Appeal2014-005412
Application 13/098,227
Appellant's invention is directed to adjusting transmission channel
power spectral densities. Spec. i-f 4.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below:
1. A method of transmission power control, the method
compnsmg:
a) applying an optimization algorithm to adjust a
transmission power spectral density of transmission channels,
each of the transmission channels comprising a plurality of
frequency subchannels;
b) determining a transmission channel in which, after
adjusting the transmission power spectral density, a portion of
the frequency subchannels is unused, and determining a group of
remaining transmission channels, the unused portion of the
frequency subchannels being determined based on the applying
the optimization algorithm;
c) applying the optimization algorithm to adjust the
transmission power spectral density of the transmission channels
of the group of the remaining transmission channels with respect
to frequency subchannels corresponding to the unused portion of
the frequency subchannels; and
d) a controller generating a control signal to cause the
adjusted power spectral density to be applied the transmission
channels.
REFERENCES
The Examiner relies on the following prior art:
Kilkki us 6,081,505 June 27, 20004
Suciu US 2006/0093025 Al May 4, 20065
4 Application filed March 20, 1997.
5 Application filed November 1, 2005.
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Appeal2014-005412
Application 13/098,227
Cleveland US 2008/0112359 Al May 15, 20086
Wei Yu et al., Distributed Multiuser Power Control for Digital
Subscriber Lines, 20 IEEE J. ON SELECTED AREAS IN COMM. 1105-15
(June 2002) ("Ginis").
REJECTIONS
Claims 1-3, 6, 9-11, and 14 stand rejected under 35 U.S.C. § 103(a)
as obvious over Ginis, Cleveland, and Suciu. Final Act. 3-8.
Claims 15, 16, 19, 20, and 23-287 stand rejected under 35 U.S.C. §
103(a) as obvious over Ginis, Kilkki, and Suciu. Final Act. 8-12.
ISSUES
The issue of whether the Examiner erred in rejecting claims 1-3, 6, 9-
11, and 14 under 35 U.S.C. § 103(a) as obvious over Ginis, Cleveland, and
Suciu turns on whether Ginis teaches "the unused portion of the frequency
subchannels being determined based on the applying the optimization
algorithm," as recited in independent claim 1 and similarly recited in
independent claim 10.
The issue of whether the Examiner erred in rejecting claims 15, 16,
19, 20, and 23-28 under 35 U.S.C. § 103(a) as obvious over Ginis, Kilkki,
and Suciu turns on whether Ginis or Kilkki teaches "assigning a relative bit
rate to each of a plurality of transmission channels," as recited in
independent claim 15 and similarly recited in independent claim 19.
6 Application filed February 5, 2007. Provisional Application filed
November 13, 2006.
7 The Final Office Action states that claims 15, 16, 18-20, and 22 are
rejected as being obvious over Ginis, Kilkki, and Suciu, rather than claims
15, 16, 19, 20, and 23-28. Final Act. 8. We understand this to be a
typographical error because the Examiner's analysis applies to claims 15,
16, 19, 20, and 23-28. See id. at 8-12.
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Appeal2014-005412
Application 13/098,227
ANALYSIS
Claims 1-3, 6, 9-11, and 14 rejected under 35 U.S.C. § 103(a) as obvious
over Ginis, Cleveland, and Suciu
Independent claim 1 recites "the unused portion of the frequency
subchannels being determined based on the applying the optimization
algorithm." Independent claim 10 recites a similar limitation.
Ginis teaches the use of a water-filling algorithm to iteratively
optimize data rates and power allocation for multiple users of digital
subscriber line (DSL) channels. Ginis 1110. The Examiner finds Ginis' use
of the water-filling algorithm to optimize DSL power allocation teaches the
disputed limitation because the algorithm "determines the number of users
or sub-channels used to transmit [data] and determines which are used and
which are not used." Final Act. 4 (citing Ginis 1110, Fig. 5) (emphasis
omitted); Ans. 6.
Appellant argues Ginis is silent regarding to unused frequency
subchannels, and, therefore, cannot determine the unused portion of the
frequency subchannels after applying the water-filling algorithm. App. Br.
6; Reply Br. 2. We agree with Appellant. The Examiner has not shown that
Ginis determines that there are unused portions of frequency subchannels
within the digital subscriber lines because the optimization process of Ginis
is silent as to the presence of sub-channels used to transmit data within the
DSL channels. See Ginis 1105, 1109-10. Thus, the Examiner fails to make
a prima facie case of obviousness when relying upon Ginis to teach "the
unused portion of the frequency subchannels being determined based on the
applying the optimization algorithm," as recited in claim 1.
Accordingly, we cannot sustain the Examiner's rejection of
independent claims 1 and 10, or dependent claims 2, 3, 6, 9-11, and 14.
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Appeal2014-005412
Application 13/098,227
This issue is dispositive with respect to the rejection against these claims,
and, therefore, we need not reach the remaining arguments presented by
Appellant. For the same reasons, we also cannot sustain the rejection of
claims 23-26, which depend from claim 1 or claim 10, as obvious over
Ginis, Kilkki, and Suciu.
Claims 15, 16, 19, 20, and 23-28 rejected under 35 U.S.C. § 103(a) as
obvious over Ginis, Kilkki, and Suciu
Independent claim 15 recites "assigning a relative bit rate to each of a
plurality of transmission channels." Independent claim 19 recites a similar
limitation.
The Examiner finds Ginis' optimization technique calculates the data
rates for multiple transmission channels; therefore, the relative rate of each
channel is assigned. Final Act. 8 (citing Ginis 111 O); Ans. 14. The
Examiner additionally finds Kilkki, which also is directed to data
transmission, teaches assigning a relative bit rate to each of multiple data
transmission channels because Kilkki discloses that the actual bit rate of a
data transmission channel may be changed if a user is unsatisfied with the
quality of service for the channel. Final Act. 9 (citing Kilkki 20:39--48).
Appellant argues that neither Ginis nor Kilkki teaches "assigning a
relative bit rate to each of a plurality of transmission channels" because both
references instead disclose bit rates given in absolute numeric terms. App.
Br. 13-14; Reply Br. 7. We agree with Appellant.
Ginis teaches the use of an iterative water-filling algorithm to
optimize absolute bit rates for DSL users. Ginis 1110, Figs. 6, 8, 9, 11,
Table 1. However, the Examiner has not shown that Ginis assigns a relative
bit rate to each of the transmission channels. Specifically, the Examiner has
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Appeal2014-005412
Application 13/098,227
not presented sufficient evidence or rationale to establish that Ginis
determines relative bit rates from the absolute bit rates calculated using the
water-filling algorithm.
Kilkki teaches that if a user receives poor quality data transfer service,
the actual bit rates or nominal bit rates of the service can be changed. Kilkki
20:39--44. However, the Examiner has not shown that Kilkki assigns a
relative bit rate to each of the transmission channels. Specifically, the
Examiner has not presented sufficient evidence or rationale to establish that
Kilkki determines relative bit rates from the "actual bit rate[ s ]" that may be
changed due to poor data transmission quality. See id.
Accordingly, we cannot sustain the Examiner's rejection of
independent claims 15 and 19, or dependent claims 16, 20, and 23-28. This
issue is dispositive with respect to the rejection against these claims, and,
therefore, we need not reach the remaining arguments presented by
Appellant.
CONCLUSION
The Examiner erred in rejecting claims 1-3, 6, 9-11, and 14 under
35 U.S.C. § 103(a) as obvious over Ginis, Cleveland, and Suciu.
The Examiner erred in rejecting claims 15, 16, 19, 20, and 23-28
under 35 U.S.C. § 103(a) as obvious over Ginis, Kilkki, and Suciu.
DECISION
To summarize, our decision is as follows:
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Appeal2014-005412
Application 13/098,227
• the rejection of claims 1-3, 6, 9-11, and 14 under 35 U.S.C.
§ 103(a) as obvious over Ginis, Cleveland, and Suciu is reversed;
and
• the rejection of claims 15, 16, 19, 20, and 23-28 under 35 U.S.C.
§ 103(a) as obvious over Ginis, Kilkki, and Suciu is reversed.
REVERSED
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