Ex Parte Astely et al

Patent Trial and Appeal Board

Apr 20, 2016

12599164 (P.T.A.B. Apr. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/599, 164 11/06/2009
132398 7590 04/22/2016
Clairvolex Inc,
4010 MOORPARK AVE, Ste, 228
San Jose, CA 95117
FIRST NAMED INVENTOR
David Astely
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Ol 10-449/P23216US1 7388
EXAMINER
LU,ZHIYU
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
04/22/2016 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):
elofdocket@clairvolex.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID AS TEL Y, KARL MOLNAR, and
TOMAS SUNDIN
Appeal2014-006030
Application 12/599,164
Technology Center 2600
Before JOHN P. PINKERTON, CARLL. SILVERMAN, and
JOHN D. HAMANN, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 64--93, which constitute all the claims pending in
this application. 1 Claims 94--102 are withdrawn. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify TELEFONAKTIEBOLAGET L M ERICSSON
(PUBL) as the real party in interest. App. Br. 2.
Appeal2014-006030
Application 12/599,164
STATEivIENT OF THE CASE
Introduction
Appellants' invention relates generally to a mobile terminal device, a
base station, and a method that make it possible to use a channel quality
indicator, CQI, reporting format for CQI reporting from the mobile terminal
device to the base station, which CQI reporting format depends on a selected
transmit antenna configuration. Abstract. 2
Claim 64 is representative and reads as follows:
64. A mobile terminal device for use m a wireless
communications system, comprising:
a receiver for receiving a signal from M number of
transmit antennas, which signal includes a number of subcarriers;
a processing unit
for determining a channel quality indicator (CQI)
reporting format for a collection of the subcarriers based on a
selected transmit antenna configuration associated with the
collection of subcarriers, and
for determining a PcQr number of CQI values relating to
the collection of subcarriers in accordance with the determined
CQI reporting format,
wherein the processing unit is arranged to adapt the CQI
reporting format to the selected transmit antenna configuration
such that the granularity of CQI reporting depends on a number
m of transmit antennas of the selected transmit antenna
configuration; and
2 Our Decision refers to the Final Office Action mailed May 17, 2013 ("Final
Act."); Appellants' Appeal Brief filed Nov. 27, 2013 ("App. Br."); the
Examiner's Answer mailed Feb. 24, 2014 ("Ans."); Appellants' Reply Brief
filed Apr. 16, 2014 ("Reply Br."); and the original Specification filed Nov.
6, 2009 ("Spec.").
2
Appeal2014-006030
Application 12/599,164
a transmitter for transm1ttmg the PcQr CQI values to a base
station in a feedback signal.
App. Br. 14 (Claims App.).
References
Das US 2003/0148770 Al Aug. 7, 2003
Huang US 2006/0034244 Al Feb. 16,2006
Grant US 2006/0079221 Al Apr. 13, 2006
Tong US 2007/0105508 Al May 10, 2007
Choi US 2007/0177681 Al Aug.2,2007
Hara US 2007 /0297576 Al Dec. 27, 2007
Rejections on Appeal3
Claims 64, 65, 67, 71, 73, 76, 77, 79, 80, 82, 86, 88, 91, and 92 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Grant and Huang.
Claims 66 and 81 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Grant, Huang, and Choi.
Claims 74, 75, 89, and 90 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Grant, Huang, and Hara.
Claims 68-70, 72, 83-85, and 87 stand rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over the combination of Grant, Huang, and
Tong.
Claims 78 and 93 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Grant, Huang, and Das.
3 The Examiner's rejection of claims 64 and 79 under 35 U.S.C. § l 12(b) has
been withdrawn and, therefore, is not before us. See Ans. 2.
3
Appeal2014-006030
Application 12/599,164
Appellants ' Contentions
Appellants raise the following arguments in the briefs:
1. Grant and Huang fail to render obvious the limitation
"determining a channel quality indicator (CQI) reporting format
for a collection of the subcarriers based on a selected transmit
antenna configuration associated with the collection of
subcarriers," as recited in claims 64 and 79. App. Br. 6-7; Reply
Br. 1--4.
2. The Examiner has failed to set forth a reasonable motivation to
combine the teachings of Grant and Huang, and the alleged
motivation is an "impermissible hindsight reconstruction." App.
Br. 7-8.
3. Grant and Huang fail to render obvious the limitation
"determining a PcQr number of CQI values relating to the
collection of subcarriers in accordance with the determined CQI
reporting format," as recited in claims 64 and 79. App. Br. 9-
10.
4. Grant and Huang fail to render obvious the limitations "the
collection of subcarriers is divided into Q number of non-
overlapping subcarrier groups according to said CQI reporting
format" and the processing unit arranged to "determine one CQI
value per subcarrier group for each transmit antenna of the
selected transmit antenna configuration," as recited in claim 65
and similarly recited in claim 80. App. Br. 10.
4
Appeal2014-006030
Application 12/599,164
5. Grant, Huang, and Choi fail to render obvious the limitation "to
adapt the granularity in frequency of CQI reporting to the number
m of transmit antennas of the selected transmit antenna
configuration," as recited in claim 66 and similarly recited in
claim 81. App. Br. 10-11.
6. Grant, Huang, and Hara fail to render obvious dependent claims
74, 75, 89, and 90. App. Br. 11-12.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments in the Briefs and are not persuaded by Appellants' arguments that
the Examiner has erred. Unless otherwise noted, we agree with, and adopt
as our own, the findings and reasons set forth by the Examiner in the Final
Action from which this appeal is taken (Final Act. 5-13) and in the Answer
in response to Appellants' Appeal Brief (Ans. 11-15), and we concur with
the conclusions reached by the Examiner. For emphasis, we consider and
highlight specific arguments as presented in the Briefs.
Regarding Appellants' contention 1 above, Appellants argue Grant
and Huang do not render obvious the limitation "determining a channel
quality indicator (CQI) reporting format for a collection of the subcarriers
based on a selected transmit antenna configuration associated with the
collection of subcarriers," as recited in claims 64 and 79. App. Br. 6-7;
Reply Br. 1--4. In particular, Appellants argue Grant teaches a mobile
station in a WCDMA communication system in which the "mobile station
provides channel quality feedback for one or more possible transmission
modes, the number of modes for which channel quality feedback is provided
depend[s] on current channel conditions." See App. Br. 6. In regard to
5
Appeal2014-006030
Application 12/599,164
Huang, Appellants argue Hung teaches link adaptation in accordance with
CQis in an OFDM wireless communication system in which the subcarriers
or sub-channels "are divided into a plurality of groups, a channel quality
indicator (CQI) being generated for each group based on channel quality
status in each group." See id. at 6-7. Appellants further argue that Grant
does not teach that the CQI reporting format is for a collection of subcarriers
and that the selected transmit antenna is associated with the collection of
subcarriers. See id. at 7. Appellants further argue that the Examiner
incorrectly finds "that CQI reporting format in Huang depends on the
number of selected transmit antennas" and that "no reference to any
selection of transmit antennas is present in Huang." Id.
We are not persuaded by Appellants' arguments the Examiner erred
because, as the Examiner finds, Appellants attack the references
individually, whereas the Examiner's rejection is based on the combined
teachings of Grant and Huang. See Ans. 13. Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck & Co. Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). The relevant inquiry is whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of the references. See In re Keller,
642 F.2d 413, 425 (CCPA 1981). Here, the Examiner finds, and we agree,
Grant teaches CQI reporting for multi-antenna transmission, but Appellants
attack Grant for failing to teach CQI reporting for a collection of subcarriers.
Ans. 13-14 (see Grant i-fi-125-29). The Examiner also finds, and we agree,
Huang teaches CQI reporting for multiple carriers or sub-channels, but
6
Appeal2014-006030
Application 12/599,164
Appellants attack Huang for failing to teach CQI feedback based on the
number of transmit antennas. Ans. 13 (see Huang i-fi-125-28).
In regard to the combined teachings of the art, the Examiner finds
Grant teaches determining the number of CQI values to be fed back based on
the number of transmit antennas and the selection of the transmit antennas is
controllable at either the mobile station or base station. Ans. 14 (see Grant
i-fi-127 and 28). The Examiner finds Huang teaches the number of CQI
values to be fed back is determined based on the number of subcarrier
groups, and the number of transmit antennas. Ans. 14 (see Huang i-fi-126 and
27). We agree with these findings. Thus, based on the Examiner's findings,
we further agree that the combined teachings of Grant and Huang teach or
suggest "determining a channel quality indicator (CQI) reporting format for
a collection of the subcarriers based on a selected transmit antenna
configuration associated with the collection of subcarriers," as recited in
claims 64 and 79. 4
Regarding Appellants' contention 2 above, Appellants argue the
Examiner has failed to set forth a reasonable motivation to combine the
teachings of Grant and Huang, and the alleged motivation is an
"impermissible hindsight reconstruction." App. Br. 7-8. We are not
persuaded by Appellants' arguments.
4 We agree with Appellants that there is no authority for the Examiner to
provide minimum patentable weight to the limitation "selected transmit
antenna configuration." See Reply Br. 3--4. We do not, however, agree
with Appellants' argument that the Examiner erred "by not giving patentable
weight to all the features recited in the claims" (see Reply Br. at 4) because,
as discussed herein, the Examiner considers all of the disputed limitations of
the claims at issue and finds they are taught or suggested in the cited prior
art references.
7
Appeal2014-006030
Application 12/599,164
Citing KSR Int 'l Co. v. Telej1ex Inc., 550 U.S. 398 (2007), Appellants
argue a motivation to combine the teachings of the applied references is still
required. App. Br. 8. We disagree. In KSR, the Supreme Court rejected the
rigid requirement of demonstrating a teaching, suggestion, or motivation to
combine references to show obviousness. See KSR, 550 U.S. at 419.
Instead, a rejection based on obviousness only needs to be supported by
"some articulated reasoning with some rational underpinning" to combine
known elements in the manner required by the claim. Id. at 418. Here, the
Examiner concludes "it would have been obvious to one of ordinary skill in
the art at the time the invention was made to incorporate teaching of Huang
into the apparatus of Grant, in order to implement an OFDM-MIMO system
for bringing high bandwidth efficiency." Final Act. 7. The Examiner also
concludes "one of ordinary skill in the art would have obviously
incorporated multi-carrier CQI reporting technique of Huang into the CQI
reporting system of Grant, as advancement in implementing CQI reporting
for a multi-carrier communications system." Ans. 13. Although Appellants
argue the Examiner's reason to modify Grant with Huang's teachings-"for
bringing high bandwidth efficiency"-is "bogus," Appellants have not
provided persuasive evidence or reasoning to support that conclusion.
Appellants also state that combining the OFDM and WCDMA approaches to
communication is not readily available, but as the Examiner aptly finds,
"Grant in view of Huang does not mean physically combin[ing] the entire
OFDM system of Huang into the WCDMA system of Grant, but merely the
CQI reporting technique by Huang being incorporated." Ans. 12 (see In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) ("[A] determination of
obviousness based on teachings from multiple references does not require an
8
Appeal2014-006030
Application 12/599,164
actual, physical substitution of elements."). Thus, we find that the Examiner
has provided sufficient articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness. See KSR, 550
U.S. at 418.
In response to Appellants' argument that the Examiner engaged in
impermissible hindsight in modifying Grant with Huang's teachings, it must
be recognized that any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning. However, so long as it takes
into account only knowledge which was within the level of ordinary skill at
the time the claimed invention was made, and does not include knowledge
gleaned only from the Appellants' disclosure, such a reconstruction is
proper. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Here,
we conclude the Examiner did not use impermissible hindsight because the
rejection is based on the references and what they would have taught or
suggested to a person of ordinary skill in the art.
Regarding Appellants' contention 3 above, Appellants argue Grant
and Huang fail to render obvious the limitation "determining a PcQr number
of CQI values relating to the collection of subcarriers in accordance with the
determined CQI reporting format," as recited in claims 64 and 79. App. Br.
9--10. We are not persuaded by Appellants' argument. The Examiner finds,
and we agree, that Huang teaches determining that a total number of CQI
values are generated in CQI report, which number is calculated by
multiplying the number of groups of sub-carriers Qx by the number of
transmit antennas NT. Ans. 14 (citing Huang Figure 5, i-fi-125-29).
Specifically, paragraph 28 of Huang states "[s]ince CQI is generated based
on the sub-channels in a group, total number of QxNT CQis are generated in
9
Appeal2014-006030
Application 12/599,164
a transm1ss10n frame (packet), where NT is the number of transmit
antennas." Thus, based on this teaching of Huang and the combination of
Grant and Huang teaching the CQI reporting format, for the reasons
discussed supra regarding Appellants' contention 1, we agree with the
Examiner that the combined references teach the limitation "determining a
PcQr number of CQI values relating to the collection of subcarriers in
accordance with the determined CQI reporting format," as recited in claims
64 and 79.
Regarding Appellants' contention 4 above, Appellants argue Grant
and Huang fail to render obvious the limitations "the collection of
subcarriers is divided into Q number of non-overlapping subcarrier groups
according to said CQI reporting format" and the processing unit arranged to
"determine one CQI value per subcarrier group for each transmit antenna of
the selected transmit antenna configuration," as recited in claim 65 and
similarly recited in claim 80. App. Br. 10. The Examiner finds, and we
agree, that for the same reasons discussed supra regarding claims 64 and 79,
Grant in view of Huang teaches dividing collections of subcarriers into Q
groups, and the total number of QxNT CQI values "renders one CQI value
per subcarrier group for each transmit antenna." Ans. 15 (citing Huang iii!
27 and 28). Thus, we do not find Appellants' arguments regarding claims 65
and 80 persuasive.
Regarding Appellants' contention 5 above, Appellants argue Grant,
Huang, and Choi fail to render obvious the limitation "to adapt the
granularity in frequency of CQI reporting to the number m of transmit
antennas of the selected transmit antenna configuration," as recited in claim
66 and as similarly recited in claim 81. App. Br. 10-11. In particular,
10
Appeal2014-006030
Application 12/599,164
Appellants argue Choi' s teachings "do not refer to subcarriers but to
combination of transmit-receive antennas" and Choi does not teach the
reporting frequency depends on the number of transmit antennas actually
used, i.e., the selected transmit antenna configuration. Id. at 11. The
Examiner finds the broadest reasonable interpretation of the claim phrase
"granularity in frequency of CQI reporting" includes granularity in CQI
reporting rate and that Choi teaches the "feedback rate (or frequency of
feedback) increases when the number of transmit antennas increases." Ans.
15-16 (citing Choi i-f 6). The Examiner also finds Grant in view of Huang
also teaches that the amount of feedback information, e.g. CQI values,
changes by the number of transmit antennas. Id. at 16 (citing Huang i-fi-127-
28). Thus, the Examiner further finds "it would have been obvious to one of
ordinary skill in the art at the time the invention was made to recognize that
granularity in CQI reporting rate (or frequency of CQI reporting) of Grant
and Huang in view of Choi is adapted to number of transmit antenna." Ans.
16. Appellants did not provide persuasive evidence or argument to rebut
these findings. We agree with the Examiner's findings for the reasons stated
by the Examiner and, therefore, do not find Appellants' arguments regarding
claims 66 and 81 persuasive.
Regarding Appellants' contention 6 above, Appellants argue Grant,
Huang, and Hara fail to render obvious dependent claims 74, 75, 89, and 90.
App. Br. 11-12. Specifically, Appellants argue the applied references fail to
teach "a transmit antenna subset associated with each subcarrier of the
collection of subcarriers," as recited in claims 74 and 89, upon which claims
75 and 90 depend, respectively. Id. at 12. The Examiner finds Grant in
view of Huang teaches dividing the frequency bands into subcarriers and
11
Appeal2014-006030
Application 12/599,164
associatmg the selected transmit antenna mode, the selected antenna subset,
for feedback with each subcarrier of the collection of subcarriers, which
teaches the limitations at issue. The Examiner further finds Hara, similar to
Grant and Huang, teaches determining a number of quality feedback
information over a set of frequency bands based on the number of transmit
antennas, wherein quality feedback information is associated with each
frequency band used in uplink or downlink. Ans. 17 (citing Hara i-fi-174--87,
246, and 309). Thus, the Examiner finds a person of ordinary skill in the art
would have been further strengthened in view of Hara to recognize that the
transmit antenna selection in feedback of Grant and Huang is associated with
each subcarrier of the collection of subcarriers. Ans. 17. Appellants have
not provided persuasive evidence or argument to rebut these findings. We
agree with the Examiner's findings for the reasons stated by the Examiner
and, therefore, do not find Appellants' arguments regarding claims 74, 75,
89, and 90 persuasive.
CONCLUSION
Accordingly, we are not persuaded by Appellants' arguments the
Examiner erred in finding the cited prior art teaches or suggests the disputed
limitations of claims 64--66, 74, 75, 79-81, 89, and 90 or in concluding that
the combination of the teachings of the cited references renders the subject
matter of these claims obvious under 35 U.S.C. § 103(a). Thus, on this
record, we sustain the Examiner's rejection of these claims, as well as
dependent claims 67-73, 76-78, 82-88, and 91-93, which are not argued
separately. See 37 C.F.R. § 41.37(c)(l)(iv).
12
Appeal2014-006030
Application 12/599,164
DECISION
We affirm the Examiner's decision rejecting claims 64--93 under 35
U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
13