Telefonaktiebolaget LM Ericsson (publ)

Patent Trials and Appeals Board

Jul 19, 2021

2020002188 (P.T.A.B. Jul. 19, 2021)

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.
15/567,074 10/16/2017 Peter ALRIKSSON 1200-293 4305
120491 7590 07/19/2021
Leffler Intellectual Property Law, PLLC
8300 Boone Boulevard
5th Floor
Vienna, VA 22182
EXAMINER
KOETH, MICHELLE M
ART UNIT PAPER NUMBER
2656
NOTIFICATION DATE DELIVERY MODE
07/19/2021 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):
info@leffleriplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER ALRIKSSON and JOAKIM AXMON

Appeal 2020-002188
Application 15/567,074
Technology Center 2600
____________

Before JOHNNY A. KUMAR, CATHERINE SHIANG, and
CARL L. SILVERMAN, Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 5, 7, 14, and 28–34, which constitute
all pending claims. 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). Appellant identifies the real party in interest as
Telefonaktiebolaget LM Ericsson. Appeal Br. 2.
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Application 15/567,074

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STATEMENT OF THE CASE
Appellant’s disclosure is directed to automatic gain control of an
amplifier in a cellular communication system. Abstract; Spec. 1:7–26, 7:7–
10:30, Figs. 5, 6.
Claims 1 and 14 are illustrative of the invention and read as follows
(emphasis added):
1 A method of controlling gain of an amplifier in a receiver
operating in a cellular communication system, the method
comprising:
selecting and then performing an automatic gain control
algorithm from among a plurality of automatic gain control
algorithms, wherein the selecting and then performing
comprises:
ascertaining a current carrier frequency to which
the receiver is currently tuned and a target carrier
frequency to which the receiver is requested to tune;
in response to a determination that the current
carrier frequency and the target carrier frequency are
not within a downlink system bandwidth of a same cell of
the cellular communication system, performing a first
automatic gain control algorithm to produce a target
gain setting for the amplifier;
in response to a determination that the current
carrier frequency and the target carrier frequency are
within the downlink system bandwidth of the same cell of
the cellular communication system, performing a second
automatic gain control algorithm to produce the target
gain setting for the amplifier; and
using the target gain setting to initially control gain
of the amplifier when the receiver is tuned to the target
carrier frequency.
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Appeal Br. 20 (Claims Appendix).
14. An apparatus for controlling gain of an amplifier in a
receiver operating in a cellular communication system, the
apparatus comprising:
circuitry configured to select and then perform an
automatic gain control algorithm from among a plurality of
automatic gain control algorithms, wherein the circuitry
configured to select and then perform comprises:
circuitry configured to ascertain a current carrier
frequency to which the receiver is currently tuned and a
target carrier frequency to which the receiver is requested
to tune;
circuitry configured to perform a first automatic
gain control algorithm to produce a target gain setting
for the amplifier in response to a determination that the
current carrier frequency and the target carrier
frequency are not within a downlink system bandwidth of
a same cell of the cellular communication system;
circuitry configured to perform a second automatic
gain control algorithm to produce the target gain setting
for the amplifier in response to a determination that the
current carrier frequency and the target carrier
frequency are within the downlink system bandwidth of
the same cell of the cellular communication system; and
circuitry configured to use the target gain setting to
initially control gain of the amplifier when the receiver is tuned
to the target carrier frequency.
Id. at 21.
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REFERENCES AND REJECTION
The prior art relied upon by the Examiner is:
Name Reference Date
Chung US 4,955,078 Sept. 4, 1990
Jonsson et al. US 2010/0248665 A1 Sept. 30, 2010
Ruelke et al. US 2012/0129480 A1 May 24, 2012
Alriksson et al. US 2013/0003584 A1 Jan. 3, 2013
Wu et al. US 2016/0135056 A1 May 12, 2016
Takeshi EP 1 583 232 A2 Oct. 5, 2005

Claims 1, 5, 14, 28, 29, and 33 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Alriksson and Ruelke. Final Act. 3–11.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Alriksson, Ruelke, and Jonsson. Final Act. 11.
Claims 31 and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Alriksson, Ruelke, and Chung. Final Act. 11–13.
Claim 30 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Alriksson, Ruelke, and Wu. Final Act. 13–14.
Claim 32 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Alriksson, Ruelke, and Takeshi. Final Act. 14.

ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
contentions in the Appeal Brief and the Reply Brief that the Examiner has
erred, as well as the Examiner’s response to Appellant’s arguments in the
Appeal Brief. In our analysis below, we highlight and address specific
findings and arguments for emphasis.
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In the Final Action, the Examiner finds the combination of Alriksson
and Ruelke teaches the limitations of claim 1. Final Act. 3 (citing Alriksson
Abstract, ¶¶ 45, 49, 15, 30, 17, 49, 14, 2). The Examiner finds Alriksson
teaches many of the claim limitations, including “selecting and then
performing an automatic gain control algorithm from among a plurality of
automatic gain control algorithms” and “within a downlink system
bandwidth of a same cell of the cellular communication system.” Id. The
Examiner finds Alriksson does not teach the following claim 1 limitations,
and finds Ruelke teaches these limitations (also referred to as “disputed
limitations”) (id. at 5 (citing Ruelke ¶¶ 55, 56, 44–46; Fig. 2)):
ascertaining a current carrier frequency to which
the receiver is currently tuned and a target carrier
frequency to which the receiver is requested to tune;
in response to a determination that the current
carrier frequency and the target carrier frequency are not
within a downlink system bandwidth of a same cell of the
cellular communication system, performing a first
automatic gain control algorithm to produce a target
gain setting for the amplifier;
in response to a determination that the current
carrier frequency and the target carrier frequency are
within the downlink system bandwidth of the same cell of
the cellular communication system, performing a second
automatic gain control algorithm to produce the target
gain setting for the amplifier.

Id. at 4 (emphasis added).
Appellant argues the Examiner errs in finding the combination of
Alriksson and Ruelke teaches the disputed limitations. Appeal Br. 6–8.
According to Appellant, Ruelke does not disclose:
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1. [A]ny determination regarding whether the current carrier
frequency and the target carrier frequency are, or are not,
within a downlink system bandwidth of a same cell of the
cellular communication system;
2. An Automatic Gain Control (AGC) component that operates
in accordance with more than one possible AGC algorithm;
and
3. Selection of an AGC algorithm based on a “determination”
as stated in #1.

Id. at 8.
Appellant argues Ruelke does not disclose “a plurality of automatic
gain control algorithms” and instead discloses only one algorithm. Id. at 9–
10 (citing Ruelke ¶ 44). Appellant argues Ruelke’s use of different input
parameters does not constitute different AGC algorithms. Id. at 12–13
(citing Ruelke ¶¶ 34, 44).
In the Answer, the Examiner notes that Ruelke is not relied upon for
teaching “a plurality of automatic gain control algorithms” and for those
limitations, primary reference Alriksson is relied upon. Ans. 8. The
Examiner describes the claim interpretation for claim 1. Id. at 6–10.
According to the Examiner,
it is noted that “selecting and then performing . . . a plurality of
automatic gain control algorithms” is an entirely different set of
limitations (in the beginning of the claim where Alriksson is
relied upon to provide teachings), than the above recited “in
response to a determination. . .” limitations for which Ruelke is
relied upon. It is also noted that the “first” and “second
automatic gain control algorithm” are not recited in the claim to
be one of the earlier recited “plurality of automatic gain control
algorithms,” and thus are recited independently on their own.

Id. at 8–9.
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Regarding the “first automatic gain control” and “second automatic
gain control” limitations, the Examiner finds:
The cited portions of Ruelke (see Final Office Action,
pages 5-6) for the “determination” limitations disclose “a first
automatic gain control algorithm” in that for certain conditions,
the AGC will adjust gain, and Ruelke also teaches the “a
second automatic gain control algorithm” in that for other
certain conditions, the AGC settings remain as they are (AGC
will not perform adjustments).
Even if the “first” and “second automatic gain control
algorithm” limitations are given a broadest reasonable
interpretation to include that the algorithms are different (via
“first” and “second” designations), to the extent that Ruelke
does not explicitly teach different algorithms (notwithstanding
that Ruelke does teach different AGC operations under different
conditions), Ruelke at least strongly suggests the use of
different AGC algorithms, and because claim 1 is rejected
under the combination of both Alriksson and Ruelke for what
the combined references as a whole suggest or teach to one of
ordinary skill in the art, a person of ordinary skill in the art in
view of both Alriksson (which does explicitly teach selecting
between two AGC algorithms — this teaching not being
contested by Appellant), and Ruelke would find the claimed “in
response to a determination that the current carrier frequency
and the target carrier frequency are not within a bandwidth,
performing a first automatic gain control algorithm” and the
claimed “in response to a determination that the current carrier
frequency and the target carrier frequency are within the
bandwidth, performing a second automatic gain control
algorithm,” to be obvious.

Id. at 9–10 (emphasis omitted).
In the Reply Brief, Appellant reiterates and argues, inter alia, that the
Examiner errs by applying an unreasonably broad claim interpretation to the
disputed limitations. Reply Br. 8–10. Appellant argues the “first automatic
gain control algorithm” and “second automatic gain control algorithm” are
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members of the earlier cited “plurality of automatic gain control algorithms”
and this plurality is taught by Alriksson, not Ruelke. Id. at 8–9. Appellant
further argues the “first automatic gain control algorithm” and “second
automatic gain control algorithm” are different algorithms. Id. at 9–10.
During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the Specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Although we interpret
claims broadly but reasonably in light of the Specification, we nonetheless
must not import limitations from the Specification into the claims. See In re
Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Our reviewing court
states that “the words of a claim ‘are generally given their ordinary and
customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.
Cir. 2005) (en banc) (citations omitted). However, the broadest reasonable
interpretation differs from the broadest possible interpretation. In re Smith
Int’l, Inc., 871 F.3d 1375, 1383 (Fed. Cir. 2017). The correct inquiry in
giving a claim term its broadest reasonable interpretation in light of the
specification is “an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an interpretation
that is ‘consistent with the specification.’” Id. at 1382–83 (quoting In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)).
We are not persuaded by Appellant’s asserted claim interpretation that
the “first automatic gain control algorithm” and “second automatic gain
control algorithm,” are members of the earlier recited “plurality of automatic
gain control algorithms.” Ordinary reading of the claim does not require
they be members of the earlier recited “plurality” and the claim does not
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recite language that would impose such a restriction. Appellant identifies no
specific portion of the Specification that supports the asserted interpretation
nor any portion that is inconsistent with the Examiner’s interpretation.
Regarding the “first automatic gain control algorithm” and “second
automatic gain control algorithm,” the ordinary reading is there are two
algorithms, and they are different algorithms. The Examiner identifies no
specific portion of the Specification that is consistent with his interpretation,
nor any portion that is inconsistent with Appellant’s interpretation.
Therefore, we are persuaded by Appellant’s asserted claim interpretation.
Claim 1 is a method claim directed to a method of controlling gain of
an amplifier. The claim recites two “in response to a determination”
limitations that are conditioned on whether the current carrier frequency and
the target carrier frequency (1) are not within the downlink system
bandwidth of the same cell and “performing a first automatic gain control
algorithm” and (2) are within the downlink system bandwidth of the same
cell and “performing a second automatic gain control algorithm.” Therefore,
in the event condition (1) or (2) is satisfied, there appears to be no need to
perform the remaining condition (1) or (2).
We note that conditional steps employed in a method claim need not
be found in the prior art if, under the broadest reasonable interpretation, the
method need not invoke those steps. See Ex parte Schulhauser, Appeal No.
2013-007847, 2016 WL 6277792, at *3–4 (PTAB Apr. 28, 2016)
(precedential) (holding that in a method claim, a step reciting a condition
precedent does not need to be performed if the condition precedent is not
met). See also Manual of Patent Examining Procedure (MPEP)
§ 2111.04(II) (9th ed. Rev. 08.2017, Jan. 2018) (citing Schulhauser); In re
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Johnston, 435 F.3d 1381, 1384 (Fed. Cir. 2006) (“[O]ptional elements do
not narrow the claim because they can always be omitted.”); Ex parte Katz,
Appeal No. 2010-006083, 2011 WL 1211248, at *2 (BPAI Mar. 25, 2011)
(citing Am. Acad. of Sci. Tech. Ctr., 367 F.3d at 1364). Accordingly,
Appellant’s arguments directed to claim 1 are not commensurate with the
broadest reasonable interpretation of independent claim 1.
With the above broad and reasonable claim interpretation and case
law applicable to conditional steps in a method claim, Appellant’s arguments
are not persuasive. The Examiner’s findings regarding the combination of
Alriksson and Ruelke teaches claim 1 as broadly and reasonably interpreted.
In particular, Alriksson teaches a method of controlling gain of an amplifier
in a receiver operating in a cellular communication system, including
performing an automatic gain control from a plurality of automatic gain
control algorithms. Alriksson Abstract, ¶¶ 15, 30, 45, 49. Ruelke teaches
the disputed limitations which, as discussed supra, requires only the first
algorithm or the second algorithm, Ruelke ¶¶ 44. Additionally, we note this
is consistent with Appellant’s arguments that Ruelke teaches “only a single
algorithm.” Ruelke ¶ 44; See, e.g., Appeal Br. 12; Reply Br. 8–10.
Therefore, on the record before us, we sustain the rejection of claim 1,
and dependent claims 5, 7, and 31–34 as these claims are not argued
separately,
§ 103 Rejection of Independent claim 14, and dependent claims 28–30
Although similar to claim 1, independent claim 14 is directed to an
apparatus for controlling gain of an amplifier and includes circuitry for the
disputed limitations method steps recited in claim 1, discussed supra.
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Therefore, the conditional method claim analysis discussed regarding claim
1 is not applicable, and all claim 14 limitations must be given weight.
Based on the record before us, we are persuaded by Appellant’s
argument that Ruelke teaches a single algorithm and does not teach a “first
automatic gain control algorithm” and a “second automatic gain control
algorithm.” Ruelke teaches one algorithm that is applied. Ruelke ¶¶ 44.
Although Alriksson teaches a plurality of algorithms, the Examiner relies on
Ruelke for the determinations and the first and second algorithms of the
disputed limitations. The Examiner’s finding that not applying the algorithm
is equivalent is to a second algorithm is contrary to a broad and reasonable
interpretation. On the record before us, the Examiner’s finding that one of
ordinary skill in the art would have combined with Alriksson to result in the
first and second algorithm of the disputed limitations is conclusory and
provides insufficient support for obviousness. As stated by the Supreme
Court, the Examiner’s obviousness rejection must be based on:
[S]ome articulated reasoning with some rational underpinning
to support the legal conclusion of obviousness. . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006)).
In view of the above, we do not sustain the rejection of independent
claim 14 and dependent claims 28–30.

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CONCLUSION
For the reasons stated above, we sustain the obviousness rejection of
claim 1 and dependent claims 5, 7, and 31–34 as these claims are not argued
separately, and we do not sustain the rejection of independent claim 14 and
dependent claims 28–30.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5, 14,
28, 29, 33
103(a) Alriksson, Ruelke 1, 5, 33 14, 28, 29
7 103(a) Alriksson, Ruelke,
Jonsson
7
31, 34 103(a) Alriksson, Ruelke,
Chung
31, 34
30 103(a) Alriksson, Ruelke, Wu 30
32 103(a) Alriksson, Ruelke,
Takeshi
32
Overall
Outcome
1, 5, 7,
31–34
14, 28–30

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
See 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED IN PART