Teleste Oyj

Patent Trials and Appeals Board

Mar 8, 2022

2021000977 (P.T.A.B. Mar. 8, 2022)

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. 15/580,827 12/08/2017 Jani Vare 0601.000024US01 4061 76385 7590 03/08/2022 Mueting Raasch Group 111 Washington Ave. S., Suite 700 Minneapolis, MN 55401 EXAMINER YANG, JIANXUN ART UNIT PAPER NUMBER 2664 NOTIFICATION DATE DELIVERY MODE 03/08/2022 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): ptodocketing@mrgs.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JANI VARE and KARI VIRTANEN ____________________ Appeal 2021-000977 Application 15/580,827 Technology Center 2600 ____________________ Before ALLEN R. MacDONALD, JASON V. MORGAN, and JAMES B. ARPIN, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, 4, 6, 9, 11, 21, 22, 25-27, and 31. Claims 2, 8, 10, 12-20, 28, and 29 are canceled. Final Act. 2. Claims 5, 7, 23, 24, and 30 are withdrawn from consideration. Appeal Br. 8. We have jurisdiction under 35 U.S.C. § 6(b). We affirm in part. 1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42(a) (2012). Appellant identifies the real party in interest is Teleste Oyj. Appeal Br. 3. Appeal 2021-000977 Application 15/580,827 2 CLAIMED SUBJECT MATTER Independent claims 1 and 27 are illustrative (emphasis, formatting, and bracketed material added): 1. A method for transferring data between a mobile communication unit and a plurality of access points, wherein each of said plurality of access points and said mobile communication unit is provided with a transceiver, said mobile communication unit being arranged to travel a predetermined route, the method comprising: [A.] adjusting transmission power of at least the transceiver of the mobile communication unit substantially to a maximum level; and [B.] attenuating transmission signal of the transceivers of said plurality of access points and said mobile communication unit such that Signal-to-Noise Ratio (SNR) in a transmission from the mobile communication unit to each of the access points is over 25 dB and the SNR in a transmission from the access points to the mobile communication unit is not higher than 10 dB, [C.] wherein the level of attenuation is set constant at least in the mobile communication unit. 27. An access point of a wireless offload system, said access point comprising a transceiver, said access point being arranged in a vicinity of a predetermined route of a mobile communication unit, wherein [A.] the transmission power of the transceivers is at a level where Signal-to-Noise Ratio (SNR) is not higher than 10 dB; and [B.] [the] transmission signal of the transceiver is arranged to be attenuated to minimize interference between a plurality of access points. REFERENCES2 The Examiner relies on the following references: 2 All citations are by reference to the first named inventor only. Appeal 2021-000977 Application 15/580,827 3 Name Reference Date Beale US 5,828,710 Oct. 27, 1998 Boettle US 2005/0259619 A1 Nov. 24, 2005 Chen US 2014/0177602 A1 June 26, 2014 Amizur US 2016/0337985 A1 Nov. 17, 2016 We cite the following additional reference: Name Reference Date Yang US 2003/0171102 A1 Sept. 11, 2003 REJECTION A. The Examiner rejects claims 1, 3, 4, 6, 9, 11, 21, 22, 25, and 26 under 35 U.S.C. § 103 as being unpatentable over the combination of Boettle, Amizur, Beale, and Chen. Final Act. 3-10. Appellant presents arguments for claim1. Appeal Br. 8-11. To the extent that Appellant discusses claims 3, 4, 6, 9, 11, 21, 22, 25, and 26, Appellant merely references the arguments directed to claim 1. Appeal Br. 11. Such a referenced argument (or repeated argument) is not an argument for “separate patentability.” Thus, the rejection of claims 3, 4, 6, 9, 11, 21, 22, 25, and 26 turn on our decision as to claim 1, which is dispositive for the rejection of claims 1, 3, 4, 6, 9, 11, 21, 22, 25, and 26. Except for our ultimate decision, we do not address the merits of the § 103 rejection of claims 3, 4, 6, 9, 11, 21, 22, 25, and 26 further herein. B. The Examiner rejects claims 27 and 31 under 35 U.S.C. § 103 as being unpatentable over the combination of Boettle and Beale. Final Act. 10-11. Appeal 2021-000977 Application 15/580,827 4 Appellant presents an argument for claim 27. Appeal Br. 12. We select claim 27 as representative for this rejection. Except for our ultimate decision, we do not address the merits of the § 103 rejection of claim 31 further herein. OPINION We have reviewed the Examiner’s rejections in light of Appellant’s arguments (Appeal Brief and Reply Brief) that the Examiner has erred. A. Claim 1 A.1. Claim 1 recites (emphasis added): A method for transferring data between a mobile communication unit and a plurality of access points . . . comprising: . . . [B.] . . . Signal-to-Noise Ratio (SNR) in a transmission from the mobile communication unit to each of the access points is over 25 dB and the SNR in a transmission from the access points to the mobile communication unit is not higher than 10 dB, [C.] wherein the level of attenuation is set constant at least in the mobile communication unit. A.2. As to claim 1, sections B and C, the Examiner finds: Amizur . . . implicitly teaches a receive SNR of 27 dB (Fig. 4, [0023]) which addresses one part of the recited limitation)[.] Final Act. 6. Appeal 2021-000977 Application 15/580,827 5 Beale teaches . . . Signal-to-Noise Ratio (SNR) in a transmission from the mobile communication unit to each of the access points is over 25 dB and the SNR in a transmission from the access points to the mobile communication unit is not higher than 10 dB[.] Final Act. 5. [I]t is seen that the receive SNR of a broadcast transmission signal can vary from 3 to 30 dB which may be due to the transmission signal path variation or to the transmit power level adjustment of the DAB transmitter as a well-known fact in the art[.] Final Act. 6. Chen et al teaches: wherein the level of attenuation is set constant at least in the mobile communication unit. (Chen et al, “enabled UE may enable or disable power control functions”, [0119]; when the uplink power control is disabled, the uplink TX power of Amizur et al may be set constant at its maximum (Amizur et al, Fig. 6, s608, e.g., alpha = 0), meaning uplink TX power attenuation = 0; in fact, in Amizur et al, the TX power control setting on the mobile station as well as on the connected AP1’ will remain constant for a period of time until a channel change exceeds a predetermined threshold as well known in the art) [.] Final Act. 7. A.3.a. Appellant raises the following argument in contending that the Examiner errs in rejecting claim 1 under 35 U.S.C. § 103. Nothing in Amizur specifically teaches or suggests transmission from the mobile unit to the access points with SNR over 25 dB. On the contrary, paragraph [0020] of Amizur emphasizes that positioning may take place between any type of stations - also between two access points. Appeal 2021-000977 Application 15/580,827 6 Appeal Br. 9 (emphasis added). We are not persuaded by Appellant’s argument. In Amizur, there are only limited types of stations (e.g., access point, mobile unit). Therefore, contrary to Appellant’s conclusion, Amizur’s emphasis (acknowledged by Appellant) that positioning may take place between any type of stations and Amizur’s teaching of using a 27 dB SNR are suggestive of transmission from the mobile unit to the access points with a SNR over 25 dB. A.3.b. Also, Appellant raises the following argument in contending that the Examiner errs in rejecting claim 1 under 35 U.S.C. § 103. Beale fails to teach a transmission SNR not higher than 10 dB. The SNR values mentioned in Beale relate to oscillator configuration of an AFC network so as to achieve successful frequency synchronization at the receiver. . . . Thus, Beale fails to teach, or suggest, that transmission signals would be attenuated such that the SNR in a transmission from the access points to the mobile communication unit is not higher than 10 dB. Appeal Br. 10. Even if we were to agree with Appellant that Beale fails because the SNR values mentioned in Beale relate to oscillator configuration, we would not be persuaded by Appellant’s argument. The claim limitation of “not higher than 10 dB,” as Examiner points out, is “a well-known fact in the art.” Final Act. 6. The Examiner does not cite to evidence in noting this threshold was well-known. But given that this threshold comes from industry standards, such evidence is readily available, as evidenced by Yang, which we newly cite. See Yang ¶ 7 (“In the mobile radio standard global system for mobile communications (GSM), a relatively low signal/noise Appeal 2021-000977 Application 15/580,827 7 ratio of less than 10 dB is used.”). We further note that Boettle (¶ 4), Amizur (¶ 57), and Chen (¶ 41) each reference the GSM standard. A.3.c. Further, Appellant raises the following argument in contending that the Examiner errs in rejecting claim 1 under 35 U.S.C. § 103. [T]he Examiner relies on Chen’s paragraph [0119] as teaching “enabled UE may enable or disable power control functions.” Disabling power control functions fails to correspond to setting a constant level of attenuation because if the power control functions are disabled, there is no attenuation at all. Moreover, the Examiner contends that in order to enable to set the uplink TX power of Amizur constant at its maximum, the teachings of Chen to disable uplink power control (“uplink TX power attenuation = 0”) is required. In other words, the Examiner contends that setting the level of attenuation to zero in the mobile communication unit is a prerequisite for adjusting the transmission power to a maximum level. However, in the claims, the transmission power is first adjusted to the maximum level, and only then, the level of attenuation is set constant at least in the mobile communication unit. Thus, even if one were to combine the asserted teachings as proposed by the Examiner, the combination would fail to correspond to the claimed features and would be illogical. Appeal Br. 11. We are persuaded by Appellant’s argument. A.4. As articulated by the Federal Circuit, the Examiner’s burden of proving non-patentability is by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the Appeal 2021-000977 Application 15/580,827 8 evidence is the standard that must be met by the PTO in making rejections”). “A rejection based on section 103 clearly must rest on a factual basis[.]” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. A.5. We conclude the Examiner’s analysis fails to meet this standard because the rejection does not adequately explain the Examiner’s findings of fact. Particularly, we agree with Appellant claim 1 requires “the level of attenuation is set constant,” and we agree with Appellant’s argument that in Chen “there is no attenuation at all.” Appeal Br. 11. Thus, we disagree with the Examiner’s reasoning (Final Act. 7) that citing to Chen (in combination with Amizur) without further explanation is sufficient to show the argued claim limitation. We conclude, consistent with Appellant’s arguments that there is insufficient articulated reasoning to support the Examiner’s finding that Chen (in combination with Amizur) discloses, the argued claim limitation. Therefore, we conclude that there is insufficient articulated reasoning to support the Examiner’s final conclusion that claim 1 would have been obvious to one of ordinary skill in the art at the time of Appellant’s invention. Appeal 2021-000977 Application 15/580,827 9 B. Claim 27 B.1. Claim 27 recites, in pertinent part (emphasis added): An access point of a wireless offload system, said access point comprising a transceiver, said access point being arranged in a vicinity of a predetermined route of a mobile communication unit, wherein [A.] the transmission power of the transceivers is at a level where Signal-to-Noise Ratio (SNR) is not higher than 10 dB . . . B.2. As to claim 27, Appellant repeats the argument we address above at Section A.3.b. Beale . . . fails to teach a transmission SNR not higher than 10 dB. The SNR values mentioned in Beale relate to oscillator configuration of an AFC network so as to achieve successful frequency synchronization at the receiver. Beale merely teaches that in an experiment it was found that the frequency synchronization was successful at SNRs of 30, 10, and 3 dB. Appeal Br. 12. B.3. We are not persuaded by Appellant’s argument for the reasons we discuss above at Section A.3.b. Because we quote the newly cited Yang reference to support the Examiner’s reasoning, we designate this affirmance as a new ground of rejection of claims 27 and 31. Appeal 2021-000977 Application 15/580,827 10 For these reasons, we sustain the Examiner’s rejection of claim 27 under 35 U.S.C. § 103 as being unpatentable over the combination of Boettle and Beale. CONCLUSION The Appellant has shown that the Examiner does err in rejecting claims 1, 3, 4, 6, 9, 11, 21, 22, 25, and 26 as being unpatentable under 35 U.S.C. § 103. The Examiner’s rejection of claims 1, 3, 4, 6, 9, 11, 21, 22, 25, and 26 as being unpatentable under 35 U.S.C. § 103 is reversed. The Appellant has not shown the Examiner errs in rejecting claims 27 and 31 as being unpatentable under 35 U.S.C. § 103. The Examiner’s rejections of claims 27 and 31 as being unpatentable under 35 U.S.C. § 103 are affirmed. We designate this affirmance as a new ground of rejection. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 1, 3, 4, 6, 9, 11, 21, 22, 25, 26 103 Boettle, Amizur, Beale, Chen 1, 3, 4, 6, 9, 11, 21, 22, 25, 26 27, 31 103 Boettle, Beale 27, 31 27, 31 Overall Outcome 27, 31 1, 3, 4, 6, 9, 11, 21, 22, 25, 26 27, 31 Appeal 2021-000977 Application 15/580,827 11 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. . . . Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. AFFIRMED IN PART; 37 C.F.R. 41.50(b)