2018008725 (P.T.A.B. May. 1, 2020)

Jonathan Ling et al.

Patent Trials and Appeals BoardMay 1, 2020

2018008725 (P.T.A.B. May. 1, 2020)

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. 14/496,440 09/25/2014 Jonathan Ling 4100-816964-US 7338 114592 7590 05/01/2020 Nokia Technologies Oy C/O Davidson Sheehan LLP 6836 Austin Center Blvd. Suite 320 Austin, TX 78731 EXAMINER GREY, CHRISTOPHER P ART UNIT PAPER NUMBER 2411 NOTIFICATION DATE DELIVERY MODE 05/01/2020 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): Nokia.IPR@nokia.com docketing@ds-patent.com nokia@ds-patent.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JONATHAN LING, MOHAMMAD R. KHAWER, and TECK H. HU Appeal 2018-008725 Application 14/496,440 Technology Center 2400 Before ALLEN R. MacDONALD, MICHAEL J. ENGLE, and IFTIKHAR AHMED, Administrative Patent Judges. ENGLE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 3–10, 13–18, and 20.2 We have jurisdiction over the rejected claims under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Alcatel Lucent as the real party in interest. Appeal Br. 1. 2 The Examiner determined that claims 11, 12, and 19, as amended after the Notice of Appeal, are allowable. See Advisory Act. (Dec. 21, 2017). Appeal 2018-008725 Application 14/496,440 2 TECHNOLOGY The application relates to “wireless communication” and providing “occupancy notifications for unlicensed frequency bands.” Spec. ¶ 1, Title. ILLUSTRATIVE CLAIM Claim 1 is illustrative and reproduced below.3 1. A method comprising: at a first node operating according to a first radio access technology (RAT), receiving information identifying at least one first channel of an unlicensed frequency band, the at least one first channel being occupied by a second node operating according to a second RAT; and from the first node, transmitting a signal on a second channel of the unlicensed frequency band, wherein the signal is formed according to the second RAT and comprises information identifying the at least one first channel of the unlicensed frequency band. REFERENCES The Examiner relies upon the following prior art references: Benveniste US 2003/0012167 A1 Jan. 16, 2003 Jung US 2006/0046728 A1 Mar. 2, 2006 Helbig US 2006/0217067 A1 Sept. 28, 2006 Yerramalli US 2016/0057770 A1 Feb. 25, 2016 REJECTIONS ON APPEAL Claims 1, 3, 4, 6–9, 13–18, and 20 stand rejected under 35 U.S.C. § 103 as obvious over the combination of Yerramalli and Helbig. Non-Final Act. 4. Claim 10 stands rejected under 35 U.S.C. § 103 as obvious over the combination of Yerramalli, Helbig, and Jung. Non-Final Act. 10. 3 Appellant submitted a revised claims appendix on June 19, 2018. Appeal 2018-008725 Application 14/496,440 3 Claims 1 and 7 stand rejected under 35 U.S.C. § 103 as obvious over the combination of Yerramalli and Benveniste. Non-Final Act. 10. Claims 1–6 were rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement based upon dependent claim 2 reversing the order of the claimed RATs compared to the Specification. Non-Final Act. 3–4. After the Notice of Appeal, Appellant canceled claim 2 and the Examiner entered the amendment. See Advisory Act. (Dec. 21, 2017); Amendment (Oct. 4, 2017). The Examiner does not directly address the § 112 rejection in the Answer. We therefore treat the § 112 rejection as withdrawn. ANALYSIS We have only considered those arguments that Appellant actually raised in the Appeal Brief. Arguments that Appellant could have made but chose not to have not been considered and are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 1 recites “a first node operating according to a first radio access technology (RAT)” and “a second node operating according to a second RAT.” After receiving information that a channel of an unlicensed frequency band is “being occupied by” the second node, the first node transmits a signal “formed according to the second RAT.” Appellant argues that “Yerramalli only discloses that the Wi-Fi stations . . . operate according to Wi-Fi” (i.e., the first RAT) and “does not disclose that the Wi-Fi stations . . . operate according to LTE/LTE-A” (i.e., the second RAT). Appeal Br. 5. However, we agree with the Examiner that “the Wi-Fi station or AP can communicate over either LTE and/or Wi-Fi” (i.e., the licensed frequency Appeal 2018-008725 Application 14/496,440 4 band and/or the unlicensed frequency band). Ans. 10. For example, Yerramalli discloses that “transmitter component 930 may include at least one RF transmitter operable to transmit over the licensed radio frequency spectrum band and/or the unlicensed radio frequency spectrum band.” Yerramalli ¶ 135. Similarly, “receiver component 910 may include at least one RF receiver operable to receive transmissions over a licensed radio frequency spectrum band ( . . . such as . . . LTE/LTE-A communications) and/or an unlicensed radio frequency spectrum band ( . . . such as Wi-Fi use).” Id. ¶ 134. Thus, “[t]he communication links may be established over the licensed radio frequency spectrum band and/or the unlicensed radio frequency spectrum band.” Id. ¶ 135. The term “and/or” is not limited to just “or.” Yerramalli also discloses that transmitter component 930 and receiver component 910 are aspects of Yerramalli’s Wi-Fi stations, base stations, and UEs. Id. ¶ 132. Thus, Appellant’s argument that Yerramalli’s devices operate in only one RAT is not persuasive. Appellant therefore has not persuaded us of error in the Examiner’s proposed combination. Ans. 9–11 (citing Yerramalli ¶¶ 132, 134, 135, 199, 80, Fig. 9). Appellant further argues that the remaining references (Helbig, Jung, and Benveniste) do not cure the deficiency of Yerramalli. Appeal Br. 6–8. We are not persuaded that Yerramalli is deficient for the reasons above. Accordingly, we sustain the Examiner’s rejection of claim 1, and claims 3, 4, 6–10, 13–18, and 20, which Appellant argues are patentable for similar reasons. See Appeal Br. 6–7; 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2018-008725 Application 14/496,440 5 DECISION The following table summarizes the outcome of each rejection: Claims Rejected 35 U.S.C. § References Affirmed Reversed 1, 3, 4, 6–9, 13–18, 20 103 Yerramalli, Helbig 1, 3, 4, 6–9, 13–18, 20 10 103 Yerramalli, Helbig, Jung 10 1, 7 103 Yerramalli, Benveniste 1, 7 OVERALL 1, 3, 4, 6–10, 13–18, 20 TIME TO RESPOND 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. § 1.36(a)(1)(iv). AFFIRMED