Alcatel Lucent

Patent Trials and Appeals BoardMay 6, 2021

2020000637 (P.T.A.B. May. 6, 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. 15/512,904 03/21/2017 Thorsten Wild LUTZ 202212US01 8184 48116 7590 05/06/2021 FAY SHARPE/NOKIA 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115-1843 EXAMINER ABELSON, RONALD B ART UNIT PAPER NUMBER 2476 NOTIFICATION DATE DELIVERY MODE 05/06/2021 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): docketing@faysharpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THORSTEN WILD, DANISH AZIZ, FRANK SCHAICH, PAULO BARACCA, and ANDRE FONSECA DOS SANTOS Appeal 2020-000637 Application 15/512,904 Technology Center 2400 Before JASON V. MORGAN, MICHAEL J. STRAUSS, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, 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 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Alcatel Lucent as the real party in interest. Appeal Brief filed July 11, 2019 (“Appeal Br.”) 1. Appeal 2020-000637 Application 15/512,904 2 CLAIMED SUBJECT MATTER Summary Appellant’s claimed subject matter relates to “using two or more communication channels of different reliability to transmit non-optional core data and optional refinement data.” Spec. 1:6–7.2 In particular, a data communication apparatus and method use first data packets over a first communication channel for core data and second data packets over a second communication channel for refinement data. Id. at 3:18–20. “The first communication channel is more reliable than the second communication channel.” Id. at 3:10. “The reliability of the communication channels may differ in terms of transmission quality of a corresponding radio channel allowing for different error rates, in terms of different access nature, such as circuit switched, packet switched or contention based.” Id. at 10:15–19. Illustrative Claim Claims 1, 7, 13, and 14 are independent. Claim 1, reproduced below with certain dispositive limitation at issue italicized, illustrates the claimed subject matter: 1. An apparatus for a base station transceiver of a mobile communication system, the mobile communication system further comprising a mobile transceiver, the apparatus comprising 2 In addition to the above-noted Appeal Brief, throughout this Decision we refer to: (1) Appellant’s Specification filed March 21, 2017 (“Spec.”); (2) the Final Office Action (“Final Act.”) mailed February 12, 2019; (3) the Examiner’s Answer (“Ans.”) mailed August 30, 2019; and (4) the Reply Brief filed October 28, 2019 (“Reply Br.”). Appeal 2020-000637 Application 15/512,904 3 a transceiver configured to communicate with the mobile transceiver using at least a first communication channel and a second communication channel, wherein the first communication channel is more reliable than the second communication channel; and a controller configured to control the transceiver and to provide a data service to the mobile transceiver, wherein the data service comprises first and second data packets, wherein the first data packets comprise information related to core data of the data service, and wherein the second data packets comprise information related to optional refinement data for the data service, wherein the first data packets use the first communication channel, and wherein the second data packets use the second communication channel, and wherein an access nature of the first communication channel is different from an access nature of the second communication channel. Appeal Br. 18 (Claims Appendix). REFERENCES The Examiner relies on the following prior art references:3 Name Reference Date Zhang US 2004/0016000 A1 Jan. 22, 2004 Huang US 2004/0037286 A1 Feb. 26, 2004 Ober US 2008/0022325 A1 Jan. 24, 2008 Yoshizawa US 2009/0122807 A1 May 14, 2009 Perlman US 2010/0224725 A1 Sept. 9, 2010 Au US 2014/0328183 A1 Nov. 6, 2014 You US 2015/0365332 A1 Dec. 17, 2015 3 All citations to the references use the first-named inventor only. Appeal 2020-000637 Application 15/512,904 4 REJECTIONS The Examiner rejects the claims as follows under 35 U.S.C. § 103: Claims References Final Act. 1, 3, 7, 9, 13–16 Ober, Zhang 2 2, 8 Ober, Zhang, Huang 4 4, 10 Ober, Zhang, Perlman 5 5, 11, 18, 20 Ober, Zhang, Yoshizawa 6 6, 12 Ober, Zhang, Au 8 17, 19 Ober, Zhang, You 8 OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The Examiner finds that Ober discloses most of the limitations of independent claim 1, but finds that “Ober is silent on wherein the first communication channel / ‘basic data’ is more reliable than the second communication channel ‘enhancement data,’” as recited in claim 1. Final Act. 2–3. The Examiner finds “Zhang teaches enhancement / enhanced data being sent via a less reliable method than essential data.” Id. at 3. In particular, the Examiner finds Ober’s disclosure that “portable computer system 10 may connect to one or more base stations 230” of a wireless network teaches or suggests “wherein an access nature of the first communication channel is different from an access nature of the second communication channel,” as recited in claim 1, because “the Examiner corresponds this limitation to be the first and second channels are received from different base stations.” Final Act. 3 (citing Ober ¶ 31). Appeal 2020-000637 Application 15/512,904 5 Appellant argues that Ober does not teach or suggest channels having different access natures because the Examiner’s interpretation of “access nature,” is unreasonably broad in view of Appellant’s Specification, which: explains the claimed “different” access nature as “the reliability of the communication channels may differ in terms of transmission quality of a corresponding radio channel allowing for different error rates in terms of different access nature, such as circuit switched, packet switched or contention based” (emphasis added). In other words, examples of the claimed “different” access nature in the specification are a “circuit switched” access nature, a “packet switched” access nature, and a “contention based” access nature. Appeal Br. 10; Reply Br. 2. The Examiner responds that Appellant “is arguing limitations not found in the claims.” Ans. 11. We agree with Appellant that the Examiner’s interpretation of “access nature” is unreasonably broad in view of the Specification. During prosecution, claims must be given their broadest reasonable interpretation 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). “The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is not whether the specification proscribes or precludes some broad reading of the claim term adopted by the examiner.” In re Smith Int’l, Inc., 871 F.3d 1375, 1382–83 (Fed. Cir. 2017). Instead, a proper claim construction analysis endeavors to assign a meaning to a disputed claim term “that corresponds with . . . how the inventor describes his invention in the specification.” Id. at 1383. Appeal 2020-000637 Application 15/512,904 6 As Appellant points out (Appeal Br. 10), according to the Specification, access nature refers to network data access methods such as circuit switched, packet switched, or contention based access methods (Spec. 10:15–19). But the Examiner does not show that Ober’s channels 240a and 240b teach or suggest accessing data using different network data access techniques. Rather, the rejection relies on the Examiner’s finding that Ober’s “first and second channels are received from different base stations.” Final Act. 3. The Examiner’s interpretation of “access nature” to encompass “first and second channels [that] are received from different base stations,” as disclosed in Ober, does not correspond with how the inventor describes his invention in the Specification and therefore is unreasonably broad. Final Act. 3: Ans. 11. Thus, given the current record, the Examiner has not demonstrated that the combination of Ober and Zhang teaches or suggests “wherein an access nature of the first communication channel is different from an access nature of the second communication channel,” as recited in claim 1. Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. We do not sustain the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103. For similar reasons, we do not sustain the Examiner’s rejection of independent claims 7, 13, and 14, which recite limitations similar to those at issue in claim 1. In addition, we do not sustain the Examiner’s rejections of claims 2–6, 8–12, and 15–20, which depend directly or indirectly from claims 1, 7, 13, and 14. Appeal 2020-000637 Application 15/512,904 7 DECISION SUMMARY In summary: REVERSED Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1, 3, 7, 9, 13–16 103 Ober, Zhang 1, 3, 7, 9, 13–16 2, 8 103 Ober, Zhang, Huang 2, 8 4, 10 103 Ober, Zhang, Perlman 4, 10 5, 11, 18, 20 103 Ober, Zhang, Yoshizawa 5, 11, 18, 20 6, 12 103 Ober, Zhang, Au 6, 12 17, 19 103 Ober, Zhang, You 17, 19 Overall Outcome 1–20