Ex Parte Wong et al

Patent Trial and Appeal Board

Sep 27, 2017

14493607 (P.T.A.B. Sep. 27, 2017)

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.
14/493,607 09/23/2014 Ian WONG 30134/04823 (P1178USC3) 8059
114746 7590
Apple Inc. — FKM
150 Broadway
Suite 702
New York, NY 10038
09/27/2017 EXAMINER
BAIG, ADNAN
ART UNIT PAPER NUMBER
2461
MAIL DATE DELIVERY MODE
09/27/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte IAN WONG and TAEYOON KIM
Appeal 2017-003256
Application 14/493,6071
Technology Center 2400
Before JASON V. MORGAN, AMBER L. HAGY, and
DAVID J. CUTITTAII, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 21, 23—31, and 33—40. Claims 1—20, 22, and 32 are
canceled. App. Br. 12, 14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Invention
Appellants disclose combining an indicator channel error rate and a
control channel error rate into a performance metric used to determine
whether a radio link problem exists. Abstract.
1 Appellants identify Apple Inc. as the real party in interest. App. Br. 2.
Appeal 2017-003256
Application 14/493,607
Exemplary Claim
Claim 21, reproduced below with key limitations emphasized, is
representative:
21. A method, comprising:
at a subscriber station,
estimating a first error rate for an indicator channel;
estimating a second error rate for a control channel;
generating a performance metric based on both the first error
rate of the indicator channel and the second error rate of the
control channel;
determining a radio link problem based on a comparison
between the performance metric and a first threshold; and
determining a radio link recovery based on a comparison
between the performance metric and a second threshold.
Rejections
The Examiner rejects claims 21, 23—29, 31, and 33—39 under 35
U.S.C. § 101 as being directed to non-statutory subject matter. Final Act. 3
4; Ans. 20 (withdrawing the 35 U.S.C. § 101 rejection of claims 30 and 40)
The Examiner rejects claims 21, 23—29, 31, and 33—39 under 35
U.S.C. § 103(a) as being unpatentable over Lindbom et al. (US 2010/
0311411 Al; published Dec. 9, 2010), Krishnamurthy et al. (US 2010/
0034092 Al; published Feb. 11, 2010), and Anderson (US 2006/0183429
Al; published Aug. 17, 2006). Final Act. 4—14.
The Examiner rejects claims 30 and 40 under 35 U.S.C. § 103(a) as
being unpatentable over Findbom, Krishnamurthy, Anderson, and Cave et
al. (US 2010/0041389 Al; published Feb. 18, 2010). Final Act. 15-16.
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Application 14/493,607
ANALYSIS
We agree with and adopt as our own the Examiner’s findings of facts
and conclusions as set forth in the Answer and in the Action from which this
appeal was taken. We have considered Appellants’ arguments, but do not
find them persuasive of error. We provide the following explanation for
emphasis.
35 U.S.C.§ 101
Patent eligibility is a question of law that is reviewable de novo.
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). To be
statutorily patentable, the subject matter of an invention must be a “new and
useful process, machine, manufacture, or composition of matter, or [a] new
and useful improvement thereof.” 35 U.S.C. § 101. There are implicit
exceptions to the categories of patentable subject matter identified in § 101,
including: (1) laws of nature, (2) natural phenomena, and (3) abstract ideas.
Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014). The
Supreme Court has set forth a framework for distinguishing patents with
claims directed to these implicit exceptions “from those that claim patent-
eligible applications of those concepts.” Id. (citing Mayo Collaborative
Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289 (2012)). The evaluation
follows a two-part analysis: (1) determine whether the claim is directed to a
patent-ineligible concept, e.g., an abstract idea; and (2) if a patent-ineligible
concept is present in the claim, determine whether any element, or
combination of elements, in the claim is sufficient to ensure that the claim
amounts to significantly more than the patent-ineligible concept itself. See
Alice, 134 S. Ct. at 2355.
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Application 14/493,607
In rejecting claim 21 under 35 U.S.C. § 101, the Examiner determines
the claim is merely “directed toward[] an abstract idea of using an algorithm
for estimating the error rate of an indicator channel and control channel, and
further comparing the error rates to respective thresholds for determining a
radio link problem or radio link recovery.” Final Act. 3; see also Ans. 4—5.
The Examiner further determines the recitations of claim 21 do not ensure
the claimed invention amounts to significantly more than the underlying
patent-ineligible concept because the recited subscriber station is merely a
generic computer. Ans. 7.
Appellants contend the Examiner errs because the Examiner merely
states, in conclusory fashion, “that claim 21, as a whole, is directed to a
judicial exception,” without explaining why the purported abstract idea
“corresponds to a concept that the courts have identified as an abstract
idea.” Reply Br. 5 (quoting with emphasis added Robert W. Bahr,
Formulating a Subject Matter Eligibility Rejection and Evaluating the
Applicant’s Response to a Subject Matter Eligibility Rejection, USPTO,
available at https://www.uspto.gov/sites/default/files/documents/ieg-may-
2016-memo.pdf (May 4, 2016)). Appellants further contend “the Examiner
merely summarizes the recitations of claim 1 without providing a reasoned
explanation as to why the recitations of claim 21, individually and taken as a
combination, do not result in the claim as a whole amounting to significantly
more.” Reply Br. 6 (citing Ans. 6). Appellants argue “the claimed invention
provides an unconventional approach to solve the technological issues in
providing a system [that] prevents performance” degradation. Reply Br. 7;
see also id. at 10—11.
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Application 14/493,607
We find Appellants’ arguments unpersuasive. Claim 21 is directed to
the abstract idea of analyzing multiple sources of error data to characterize a
radio link as having a problem or being in a state of recovery. See Final Act.
3. Such analysis merely represents a method of calculating where, “even if
the solution is for a specific purpose, the claimed method is nonstatutory.”
Parker v. Flook, 437 U.S. 584, 595 (1978) (quoting In re Richman, 563 F.2d
1026, 1030 (1977)). Claim 21 fails to even recite steps directed to using the
radio link problem and radio link recovery determinations. Cf. Flook, 437
U.S. 596—97 (Flook’s patent-ineligible claim included the step of
“[ajdjusting said alarm limit to said updated alarm limit value”); Diamond v.
Diehr, 450 U.S. 175, 184 (1981) (Diehr’s patent-eligible claims involved
“the transformation of. . . uncured synthetic rubber . . . into a different state
or thing”).
Further, we agree with the Examiner that the recitations of claim 21,
even when considered in combination, do not make claim 21 significantly
more than the abstract idea underlying claim 21. Appellants do not
persuasively rebut the Examiner’s interpretation that “at a subscriber station”
merely entails performing the recited steps on a generic computer. Ans. 7.
We also agree with the Examiner that the additional recitations describing
the data inputs (i.e., estimated indicator channel and control channel error
rates), thresholds, and outputs (radio link problem and recovery
determinations) are insufficient to transform the underlying abstract idea of
claim 21 into a patent-eligible subject matter. See, e.g., Ans. 4—5.
For these reasons, we agree with the Examiner that claim 21 is
directed to non-statutory subject matter. Accordingly, we sustain the
Examiner’s 35 U.S.C. § 101 rejection of claim 21, and claims 23—29, 31, and
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33—39, which Appellants do not argue separately other than to submit,
without elaboration, that “dependent claims may add statutory subject
matter.” App. Br. 7.
35 U.S.C. § 103(a)
In rejecting claim 21 under 35 U.S.C. § 103(a), the Examiner finds:
(1) Lindbom’s evaluation of bit errors of a physical control format indicator
channel renders obvious estimating a first error rate for an indicator
channel (Final Act. 4 (citing Lindbom 136)); (2) Krishnamurthy’s block
error rate estimation using a signal to interference and noise ratio of a
reference signal renders obvious estimating a second error rate for a control
channel (Final Act. 5 (citing Krishnamurthy H 27, 30)); and (3) Anderson’s
combination through subtraction of a reference signal strength and noise-
plus-interference floor in predicting a signal-to-noise-plus-interference ratio
renders obvious combining two metric (e.g., Findbom’s bit errors and
Krishnamurthy’s block error rate) to generate a performance metric (Final
Act. 7 (citing Anderson Fig. 9, H 73—82)).
Appellants contend the Examiner errs because “neither the signal
strength nor the interference level, as taught in Anderson, are analogous to
the error rates of claim 21.” App. Br. 9; see also Reply Br. 13 (“Anderson
only discloses generating a quality metric based on combining the signal
quality of a first channel and the interference level of a second channel”).
However, the Examiner relies on Findbom and Krishnamurthy, not
Anderson, to render obvious estimating error rates for an indicator channel
and a control channel respectively. See Final Act. 4—5; Ans. 14—15.
Appellants argue that even if Findbom and Krishnamurthy teach or
suggest the claimed estimated error rates, Anderson’s combiner “is neither
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Application 14/493,607
capable of combining error rates nor has the Examiner offered any evidence
to the contrary. . . . The combiner of Anderson simply lacks the capability
while Lindbom and Krishnamurthy fail to cure this deficiency or provide
any teaching which would render such a capability obvious.” Reply Br. 13.
However, obviousness is not based on whether bodily incorporation is
possible; obviousness is based on “what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” See In
re Keller, 642 F.2d 413, 425 (Fed. Cir. 1981).
The Examiner’s findings show that Anderson teaches combining
multiple link quality metrics, from different channels, to generate a
performance metric. See Final Act. 7; Anderson Fig. 9,179. Therefore, we
agree with the Examiner that this teaching, combined with Findbom and
Krishnamurthy’s link quality metrics based on channel error rates, renders
obvious “generating a performance metric based on both the first error rate
of the indicator channel and the second error rate of the control channel,” as
recited in claim 21.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 21, and claims 23—29, 31, and 33—39, which Appellants do not
argue separately. See App. Br. 9. We also sustain the Examiner’s 35 U.S.C.
§ 103(a) rejection of claims 30 and 40, which Appellants do not argue
separately with persuasive specificity. Id. at 10.
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DECISION
We affirm the Examiner’s decision rejecting claims 21, 23—31, and
33—40.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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