Joseph Farkas et al.

Patent Trials and Appeals Board

Jul 30, 2020

2018009069 (P.T.A.B. Jul. 30, 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.
14/733,141 06/08/2015 Joseph Farkas 1027/2 UTIL 3252
115007 7590 07/30/2020
NK Patent Law
4917 Waters Edge Dr.
Suite 275
Raleigh, NC 27606
EXAMINER
VARNDELL, ROSS E
ART UNIT PAPER NUMBER
2666
NOTIFICATION DATE DELIVERY MODE
07/30/2020 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):
docket@nkpatentlaw.com
eofficeaction@appcoll.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOSEPH FARKAS, JARAD FRY, and BARRY WEST 1
____________________

Appeal 2018-009069
Application 14/733,141
Technology Center 2600
____________________

Before ROBERT E. NAPPI, JOHN P. PINKERTON, and
STACY B. MARGOLIES, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 39 through 74. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). According to Appellant, Collusion Communications, Inc., is the
real party in interest. Appeal Br. 3.
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INVENTION
Appellant’s invention relates to a method for use in communications
systems to create non-orthogonal dimensionality between signals. See
Abstract. Claim 39 is reproduced below.
39. A method for creating non-orthogonal dimensionality
between signals, the method comprising:
receiving signals from at least one electronic device;
determining an adjustment of a power level of a received
signal of a first device of the at least one electronic device that
would result in an adjusted signal that is not orthogonal but
differentiates the received signal from at least one other signal
of the received signals; and
communicating, to the first device, an instruction to
implement the adjustment of the power level.

EXAMINER’S REJECTIONS2
The Examiner rejected claims 39, 40, 42 through 44, 50, 51, 53
through 56, 58 through 60, 66, 67, 69, 70, 71, and 74 under 35 U.S.C. § 103,
as unpatentable over Hamalainen (US 2007/0019536 A1), Du (US
2010/001130051 A1), and Walton (US 2003/0125040 A1). Final Act. 2–8.
The Examiner rejected claims 41, 52, 57, and 68 under 35 U.S.C.
§ 103, as unpatentable over Hamalainen, Du, Walton, and Yellin (US
2005/0094713 A1). Final Act. 8–9.
The Examiner rejected claims 45, 46, 48, 49, 61, 62, 64, and 65 under
35 U.S.C. § 103, as unpatentable over Hamalainen, Du, Walton, and Seki

2 Throughout this Decision we refer to the Appeal Brief filed April 9, 2018
(“Appeal Br.”); Reply Brief filed September 25, 2018 (“Reply Br.”); Final
Office Action mailed November 7, 2017 (“Final Act.”); and the Examiner’s
Answer mailed July 26, 2018 (“Answer”).
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(US 2002/0097810 A1). Final Act. 9–12.
The Examiner rejected claims 47 and 63 under 35 U.S.C. § 103, as
unpatentable over Hamalainen, Du, Walton, Seki, and Yellin (US
2005/094713 A1). Final Act. 12–13.
The Examiner rejected claim 72 under 35 U.S.C. § 103, as
unpatentable over Hamalainen, Du, and Damnjanovic (US 2012/0045014
A1). Final Act. 13–14.
The Examiner rejected claim 73 under 35 U.S.C. § 103, as
unpatentable over Hamalainen, Du, and Laroia (US 2009/010244 A1). Final
Act. 15–16.

ANALYSIS
We have reviewed Appellant’s arguments in the Briefs, the
Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. Appellant’s arguments have not persuaded us of error in the
Examiner’s rejections of claims 39 through 71 under 35 U.S.C. § 103.
However, Appellant’s arguments have persuaded us of error in the
Examiner’s rejection of claims 72 through 74 under 35 U.S.C. § 103.

Rejection of Independent Claims 39, 55, 71, and
Claims Depending Thereupon
Appellant argues that the Examiner’s rejection of independent claims
39, 55, and 71 is in error as the combination of Hamalainen, Du, and Walton
does not teach a determination of an adjustment of a power level of a
received signal that would result in an adjusted signal that is not orthogonal,
but differentiates the received signal from at least one other signal. Appeal
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Br. 10–11. Appellant argues that the Examiner does not rely on Hamalainen
to teach determining an adjustment to a power level, but relies upon Du and
Walton for that teaching. Appeal Br. 11. Appellant argues that Walton,
which the Examiner relies upon to teach adjustment of power level, is not
concerned with adjustment of a power level so that an adjusted signal is not
orthogonal but differentiates the received signal as claimed. Id. Rather,
according to Appellant, Walton adjusts power level to reduce interference.
Id (citing Walton ¶ 13). Thus, Appellant concludes, given the cited
references, the skilled artisan “would still be faced with the problem of how
to differentiate non-orthogonal signals by adjusting a power signal,” and the
Examiner has not shown it is obvious to adjust the power levels to
differentiate non-orthogonal signals as claimed. Id.
The Examiner finds that Hamalainen teaches a communication system
that is concerned with reducing interference between multiple users and uses
a feedback system to improve a signal to noise ratio when using non-
orthogonal codes. Answer 4 (citing Hamalainen Fig. 1, ¶¶ 5, 8, 16).
Specifically, the Examiner finds that Hamalainen teaches determining an
adjustment of a received signal that would result in an adjusted signal that is
not orthogonal but differentiates the received signal from at least one other
of the received signals by disclosing that feedback is used to determine the
transmission resources in such a way that non-orthogonal codes are used.
Final Act. 3 (citing Hamalainen ¶ 89); see also id. (citing Hamalainen ¶ 121
for the “communicating” limitation). The Examiner finds that Hamalainen
does not specifically teach determining an adjustment of a power level of the
received signal and cites Walton for that teaching. Final Act. 4 (citing
Walton ¶ 105). The Examiner states:
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It would be obvious to one skilled in the art at the time the
invention was made to use Hamalainen’s non-orthogonal
channelization codes for different users with different power
levels for each user as taught by Walton. Final Rej. 3–4.
Walton discloses “transmit power level for each selected
transmission channel may be set or adjusted to achieve a
particular SNR at the receiver.” Walton ¶105. This is
consistent with Hamalainen’s concern for improving the signal
to noise ratio (SNR)[.] Hamalainen ¶¶ 8, 16.
Answer 5–6.
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of independent claims 39, 55, and 71, which recite
similar disputed limitations. Each of the independent claims recites a
limitation directed to determining an adjustment of a power level of a
received signal that would result in an adjusted signal that is not orthogonal,
but differentiates the received signal from at least one other signal. We
concur with the Examiner’s finding that Hamalainen teaches a system which
uses non-orthogonal codes and a feedback system to determine how to adjust
the resources. See Final Act. 3; Hamalainen ¶¶ 8, 119–121. We thus concur
with the Examiner that Hamalainen teaches determining an adjustment of a
received signal such that the adjusted signal is not orthogonal but
differentiates the received signal from another received signal. As discussed
above, the Examiner finds Hamalainen does not specifically disclose
determining an adjustment of the power level of a received signal. Walton
teaches such a determination, as the Examiner found. Walton ¶ 105 (cited in
Final Act. 4; Answer 5–6). Moreover, we note that Hamalainen does
disclose that an adjustment to power level of the non-orthogonal signals is
needed to compensate for non-orthogonality, thus suggesting adjusting
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power level to differentiate between signals using two non-orthogonal codes.
See Hamalainen ¶ 120. As such, Hamalainen supports the Examiner’s
conclusion that an ordinarily skilled artisan would have combined
Hamalainen’s teachings with Walton’s to determine an adjustment of power
level as taught in Walton. See Final Act. 4; Answer 4–6. We also concur
with the Examiner’s analysis on pages 6 to 7 of the Answer that the claims
do not address how the power level is adjusted or how this makes the
adjusted signal not orthogonal. Thus, the claims broadly recite that a
determination is made as to an adjustment to a power level, which results in
a signal that is not orthogonal, but differentiates from another signal. As
such, we find that the combination of the references provides a teaching and
suggestion to adjust the power level to differentiate a non-orthogonal signal
from another signal as claimed, and we sustain the Examiner’s rejection of
independent claims 39, 55, and 71 over the combination of Hamalainen, Du
and Walton. We similarly sustain the Examiner’s rejection of dependent
claims 40 through 54, and 56 through 70, for the same reasons as Appellant
has not presented separate arguments directed to these claims. Appeal Br.
14.
Rejection of Independent Claim 74
Appellant argues that the Examiner’s rejection of independent claim
74 is in error as the combination of Hamalainen, Du, and Walton does not
teach a determination of an adjustment of a coding rate of a received signal
that would result in an adjusted signal that is not orthogonal, but
differentiates the received signal from at least one other signal. Appeal Br.
12. Appellant concludes:
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Nowhere does either [Hamalainen or Walton] teach how the
“adjustment of a coding rate of a received signal of a first
device of the at least one electronic device ... would result in an
adjusted signal that is not orthogonal but differentiates the
received signal from at least one other signal of the received
signals,” and thus it would not have been obvious to one of
ordinary skill to modify Hamalainen to do this based on
Walton’s listing of combinations of coding rate and modulation
schemes that may be used for SNR ranges.
Appeal Br. 12.
The Examiner responds to Appellant’s arguments by stating that the
Final Action had a drafting oversight. Answer 7. The Examiner provides
the following rationale to combine the references:
The motivation for claims 39, 55, and 71 to combine
Hamalainen, Du and Walton of “invoke[ing] a command and
achiev[ing] a particular SNR at the receiver” to support KSR
rational (A) combining prior art elements according to known
methods to yield predictable results was made clear on the
record and is valid for claim 74. Final Rej. 5. This rationale is
further supported by Walton in ¶105 which states a coding rate
is selected and the transmit power level for each transmission
channel would be set to achieve a particular SNR. Final Rej.
5. Walton ¶105. Therefore, it would have been obvious to one
skilled in the art at the time the invention was made to use
Hamalainen’s non-orthogonal channelization codes for different
users with a particular code rate as taught by Walton. Final Rej.
5. Each element was known at the time on the invention, one of
ordinary skill could have combined the elements and each
element merely performs the same function as it does
separately, the result would be predictable . . . .
Answer 7–8.
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection of claim 74. Unlike our discussion above with respect to claims
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39, 55, and 71, we do not find that Hamalainen provides a teaching or
suggestion to determine an adjustment of a coding rate of a received signal
that would result in an adjusted signal that is not orthogonal, but
differentiates the received signal from at least one other signal. Further,
paragraph 105 of Walton—cited by the Examiner—does not teach or
suggest adjusting the coding rate to achieve a desired signal to noise ratio as
asserted by the Examiner. Nor does it teach that the coding rate is adjusted
to result in a signal that is not-orthogonal, but differentiates from another
signal as claimed. Rather, paragraph 105 of Walton merely identifies
selecting a particular code rate and then adjusting power for a channel to
achieve a signal to noise ratio. As such, the Examiner has cited insufficient
evidence to support the determination that claim 74’s limitation directed to a
determination of an adjustment of a coding rate of a received signal that
would result in an adjusted signal that is not orthogonal, but differentiates
the received signal from at least one other signal, is obvious. Accordingly,
we do not sustain the Examiner’s obviousness rejection of claim 74.
Rejection of Independent Claims 72 and 73
Appellant argues that the Examiner’s rejection of independent claim
72 is in error as the combination of Hamalainen, Du, and Damnjanovic does
not teach a determination of an adjustment of a modulation rate of a received
signal that would result in an adjusted signal that is not orthogonal, but
differentiates the received signal from at least one other signal. Appeal Br.
13. Appellant concludes:
One of ordinary skill would not make the extraordinary leap
from the alleged teaching in Damnjanovic’s of changing a
modulation rate to adjusting a modulation rate to differentiate a
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received signal from at least one other signal of the received
signals as in claim 72. One of ordinary skill knowing
Hamalainen’s use of non-orthogonal channelization codes
would simply not find it obvious to differentiate signals based
on modulation rate.
Appeal Br. 13. With respect to independent claim 73, Appellant presents
similar arguments, asserting that the cited paragraph of Laroia does not teach
an adjustment of symbol timing, which would result in an adjusted signal
that is not orthogonal, but differentiates the received signal from at least one
other signal. Appeal Br. 14.
The Examiner responds to Appellant’s arguments by noting that
Damnjanovic was cited to teach changing the modulation rate with respect to
claim 72, and Laroia was cited to teach adjusting a transmit symbol timing
with respect to claim 73. Answer 10. The Examiner concludes:
It would be obvious to one skilled in the art at the time the
invention was made to use Hamalainen’s non-orthogonal
channelization codes for different users with different
modulation rates for each user as taught by Damnjanovic to
achieve a particular SNR at the receiver. Final Rej. 14. As
shown above for Hamalainen and Du, Damnjanovic is also
concerned with lowering interference in a cellular system with
multiple access. Damnjanovic ¶¶4, 29. Damnjanovic is also
concerned with improving SNR. Damnjanovic ¶36. Therefore,
each element was known at the time on the invention, one of
ordinary skill could have combined the elements and each
element merely performs the same function as it does
separately, the result would be predictable . . . .
With respect to claim 73, Laroia is also concerned with
interference management for improving SNR in a cellular
system. Laroia ¶¶2, 94. It would be obvious to one skilled in
the art at the time the invention was made to use Hamalainen's
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non-orthogonal channelization codes for different users with
different modulation rates for each user as taught by Laroia to
achieve a particular SNR at the receiver. Final Rej. 15-16.
Answer 10–11.3
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection of claims 72 and 73. Unlike our discussion above with respect to
claims 39, 55, and 71, we do not find that Hamalainen provides a teaching or
suggestion to determine an adjustment of a modulation rate or transmit
symbol timing of a received signal that would result in an adjusted signal that
is not orthogonal, but differentiates the received signal from at least one
other signal. Further, while the teachings of Damnjanovic cited by the
Examiner, paragraphs 4, 29, and 36 (see Final Act. 14; Answer 10), teach
adjusting a modulation rate, they do not teach the modulation rate is adjusted
to result in a signal that is not orthogonal, but differentiates from another
signal as claimed. Similarly, although the teachings of Laroia cited by the
Examiner, paragraphs 2, 94, and 163 (see Final Act. 16; Answer 11), teach
adjusting a symbol timing, they do not teach the transmit symbol timing is
adjusted to result in a signal that is not orthogonal, but differentiates from
another signal as claimed. Thus, the Examiner has cited insufficient
evidence to show it was known to adjust the modulation rate or symbol rate
to differentiate a signal that is not orthogonal from at least one other signal.
As such, the references do not teach all of the limitations of the claim and

3 We note that the last quoted sentence appears to have an error as claim 73
recites transmit signal timing, not modulation rates as stated. Nevertheless,
we note that in the Final Action, the Examiner cites to paragraph 163 of
Laroia as teaching the claimed adjustment to transmit signal timing. Final
Act 16.
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there is insufficient evidence to support the Examiner’s finding that
determining an adjustment of modulation rate or symbol timing was merely
a predictable result of the combination. Final Act. 14, 16. Accordingly, we
do not sustain the Examiner’s obviousness rejection of claims 72 and 73.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
39, 40, 42–44, 50,
51, 53–56, 58–60,
66, 67, 69, 70, 71,
74
103 Hamalainen, Du,
Walton
39, 40,
42–44, 50,
51, 53–56,
58–60, 66,
67, 69, 70,
71
74
41, 52, 57, 68 103 Hamalainen, Du,
Walton, Yellin
41, 52, 57,
68

45, 46, 48, 49, 61,
62, 64, 65
103 Hamalainen, Du,
Walton, Seki
45, 46, 48,
49, 61, 62,
64, 65

47, 63 103 Hamalainen, Du,
Walton, Seki,
Yellin
47, 63
72 103 Hamalainen, Du,
Damnjanovic
72
73 103 Hamalainen, Du,
Laroia
73
Overall
Outcome
39–71 72, 73, 74

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.
§ 1.136(a)(1)(iv) (2017).
AFFIRMED IN PART