Ex Parte Balachandran et al

Patent Trial and Appeal BoardApr 15, 2016

11757650 (P.T.A.B. Apr. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 111757,650 0610412007 Kumar Balachandran 24112 7590 04/18/2016 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 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. 4015-5667/P23223-US 1 3062 EXAMINER TRAN, MONG-THUY THI ART UNIT PAPER NUMBER 2646 MAILDATE DELIVERY MODE 04/18/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KUMAR BALACHANDRAN, RAJARAM RAMESH, and HA VISH KOORAPATY Appeal2014-007871 Application 11/757 ,650 Technology Center 2600 Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and MATTHEW J. McNEILL, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1, 3-9, 11-13, 15-23, and 25-32. Claims 2, 10, 14, and 24 are cancelled. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. Invention The invention on appeal relates to "a method and apparatus for mobile terminal-initiated vocoder source rate control." (Spec. i-f 1 ). Appeal2014-007871 Application 11/757,650 Representative Claim 1. A method of adaptive vocoder source rate control by a mobile terminal in a wireless communication network implementing digital voice telephony, comprising: [LI] detecting, by a mobile terminal, congestion in the wireless communication network by [L2] monitoring bandwidth allocation among a plurality of mobile terminals operative in the wireless communication network and analyzing the bandwidth allocation to detect congestion; and [L3] selecting, by the mobile terminal, a vocoder source rate of a vocoder in the mobile terminal, based on the congestion. (Emphasis added with respect to contested limitations Ll-L3). Re} ections 1 A. Claims 1, 13, and 23 are rejected under 35 U.S.C. Â§ 102(e), as anticipated by Chean (U.S. 2007/0115848; pub. May 24, 2007). B. Claims 3, 9, 20, and 30 are rejected under 35 U.S.C. Â§ 103 as being obvious over the combined teachings and suggestions of Chean and Ilan (U.S. 2006/0245357 Al; pub. November 2, 2006). 1 We note claims 20-22 and 30-32 depend directly or indirectly from cancelled claims 14 and 24, respectively. See pre-AIA 35 U.S.C. Â§ 112, fourth paragraph ("A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers."). Because the scope of these claims is unclear (by virtue of their dependency from a cancelled claim), and in the event of further prosecution, we leave it to the Examiner's to consider a rejection under 35 U.S.C. Â§ 112, second paragraph, for claims 20-22 and 30-32. Although the Board is authorized to reject claims under 37 C.F.R. Â§ 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) Â§1213.02. 2 Appeal2014-007871 Application 11/757,650 C. Claims 4 and 5 are rejected under 35 U.S.C. Â§ 103 as being obvious over the combined teachings and suggestions of Chean, Ilan, and Zuckerman (U.S. 2007/0121745 Al; pub. May 31, 2007). D. Claims 6-8 are rejected under 35 U.S.C. Â§ 103 as being obvious over the combined teachings and suggestions of Chean and Cao (U.S. 2007/0097957 Al; pub. May 3, 2007). E. Claims 11, 12, 21, 22, 31, and 32 are rejected under 35 U.S.C. Â§ 103 as being obvious over the combined teachings and suggestions of Chean and Wadekar (U.S. 2007/0058532 Al; pub. March 15, 2007). F. Claims 15, 16, 25, and 26 are rejected under 35 U.S.C. Â§ 103 as being obvious over the combined teachings and suggestions of Chean and Zuckerman. G. Claims 17-19 and 27-29 are rejected under 35 U.S.C. Â§ 103 as being obvious over the combined teachings and suggestions of Chean, Zuckerman, and Cao. Grouping of Claims Based on Appellants' arguments, we decide the appeal of rejection A of independent claims 1, 13, and 23 on the basis of representative claim 1. Also based upon Appellants' arguments, we decide rejection B of claims 3, 9, 20, and 30 on the basis of representative claim 3. We address the remaining claims rejected under rejections C---G, infra. See 37 C.F.R. Â§ 41.37(c)(l)(iv). ANALYSIS We have considered all of Appellant's arguments and any evidence presented. We disagree with Appellant's arguments, and we adopt as our 3 Appeal2014-007871 Application 11/757,650 own: ( l) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Answer in response to Appellant's arguments. (Ans. 10-20). However, we highlight and address specific findings and arguments for emphasis in our analysis below. Rejection A of Claims 1, 13, and 23 underÂ§ 102 First Issue: Under Â§ 102, did the Examiner err in finding Chean expressly or inherently discloses "[L 1] detecting, by a mobile terminal, congestion ... and [L3] selecting, by the mobile terminal, a vocoder source rate of a vocoder in the mobile terminal, based on the congestion," within the meaning of claim 1? (Emphasis added). At the outset, and to the extent Appellants contest a "mobile terminal" in the principal Brief ( 6), 2 we note Appellants refer to Chean' s paragraph 2 and "admit a mobile terminal is at least inherent in Chean," in the Reply Brief (2). (Emphasis added). Nevertheless, Appellants urge that Chean delegates the "detecting" and "selecting" steps of respective limitations L 1 and L3 to two separate terminals, which would be improper to support a rejection underÂ§ 102: 2 Appellants' assertion with reference to claim 1 that Chean "teaches away from[] a mobile terminal in a wireless network" (App. Br. 6) is misplaced because "[t]eaching away is irrelevant to anticipation." Seachange International, Inc., v. C-Cor, Inc., 413 F.3d 1361, 1380 (Fed. Cir. 2005). "A reference is no less anticipatory if, after disclosing the invention, the reference then disparages it . . . . [T]he question whether a reference 'teaches away' from the invention is inapplicable to an anticipation analysis." Celeritas Techs., Ltd. v. Rockwell Int'! Corp., 150 F.3d 1354, 1361(Fed.Cir.1998). 4 Appeal2014-007871 Application 11/757,650 Chean discloses that network congestion is detected at a destination node 20 .... The destination node 20 transmits this information in a feedback packet to the source node 12, which adjusts its vocoder source rate in response thereto. Thus, Chean fails to disclose that the same mobile terminal both detects network congestion, and adjusts its vocoder rate in response thereto. (App. Br. 10). 3 The Examiner finds Chean's "terminal (12 in Fig. 1, Fig. 2) both detects network congestion and adjusts [(i.e., selects),] its vocoder rate in response to the reported congestion." (Ans. 12, emphasis added). The Examiner supports this finding with a broader reading of the claim term "detecting:" The Datagram Congestion Control Protocol (DCCP) 212d [of terminal 12] receives the feedback packet from the edge router, evaluates the feedback packets wherein the congestion information is extracted from the information packet arrival information, and the Variable rate and/or protection application 12v selects a rate based upon the reported congestion. (Id. (citing Chean iii! 23-24)). Thus, the Examiner finds terminal 12 detects the level of congestion when terminal 20 informs terminal 12 of such congestion via a feedback packet. (See Chean, Fig. 1). We agree, and conclude the Examiner's broad but reasonable construction of the claim term "detecting" (i.e., discovering) does not depart from the plain meaning of the word, as it would have been understood by an artisan at the time of Appellants' invention. 4 3 Appellants refer to 12 and 20 as "nodes," but Chean in fact refers to 12 and 20 as "terminals." (See, e.g., Chean if 23). 4 See e.g., "Detect ... 1. To discover or discern the existence, presence, or fact of." Webster's II New Riverside University Dictionary, 1988, p.368. See also 37 C.F.R. Â§ 41.30. 5 Appeal2014-007871 Application 11/757,650 In the Reply Brief ( 4) Appellants respond by noting "quantifying the reported congestion information in terms amenable to use in adjusting a vocoder rate" is not the same as "detect[ing] the congestion, as claimed." However, Appellants do not provide any rebuttal evidence in the record to support their argument. 5 Furthermore, Appellants have not argued that a definition in the Specification for "detecting" would preclude the Examiner's broader interpretation. Because Appellants have not argued a definition in the Specification, or provided rebuttal evidence in the record, we are not persuaded the Examiner's reading of the claim term "detecting" is overly broad or unreasonable. 6 Therefore, the Examiner's findings regarding limitations L 1 and L3 are supported by a preponderance of the evidence. Accordingly, we are not persuaded the Examiner erred in finding Chean anticipates contested limitations L 1 and L3. Second Issue: Under Â§ 102, did the Examiner err in finding Chean expressly or inherently discloses: "[L2] monitoring bandwidth allocation among a plurality of mobile terminals ... and analyzing the bandwidth allocation to detect congestion," within the meaning of claim 1? The Examiner reads contested claim limitation L2 on paragraph 27 of Chean. (Final Act. 5). Paragraph 27 describes an embodiment in which a terminal's DCCP module "bases the congestion determination on round trip 5 See App. Br. 22: "(IX.) EVIDENCE APPENDIX None." 6 Because "applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). 6 Appeal2014-007871 Application 11/757,650 time," where round trip time describes "the time duration between the time that an information packet is sent and the time at which an acknowledgement returns." Chean further describes that round trip time "directly translates into congestion in the network," because a longer round trip time "comes from lost packets, and the time [packets] spen[ d] waiting in a queue .... When queues are building up, then round trip time will become longer. When there are drop packets then queues will be even longer." (Id.) Appellants contend Chean fails to monitor and analyze "bandwidth allocation" because "Chean discloses that the bandwidth allocated to various calls is a consequence of reduced network bandwidth, not that congestion is detected from the bandwidth allocated to calls." (App. Br. 11 ). We do not find this argument persuasive. As Chean explains (i1i1 26- 27), round trip time is an indicator for the sufficiency of allocated bandwidth relative to demand for the bandwidth. Thus, by monitoring and analyzing round trip times, we find an artisan having an ordinary level of skill would have monitored the sufficiency of allocated bandwidth, relative to demand for the bandwidth, in order to determine a congestion level. Although Chean's arrangement is agnostic as to whether the congestion results from a decrease in bandwidth allocation, or an increase in demand for the allocated bandwidth, we note claim 1 is silent regarding any limitations that specify how the bandwidth allocation is monitored and analyzed for the intended purpose of detecting congestion. See ICON Health and Fitness, 496 F.3d at 1379. Therefore, we find Chean anticipates contested limitation L2. For at least those reasons, on this record, we find a preponderance of the evidence supports the Examiner's finding of anticipation regarding independent claim 1. Because Appellants have not persuaded us the 7 Appeal2014-007871 Application 11/757,650 Examiner erred, we sustain rejection A of representative claim 1. Grouped independent claims 13 and 23, also rejected under rejection A, fall with claim 1. See Grouping of Claims, supra. Rejection B of Claims 3, 9, 20, and 30 underÂ§ 103 Claim 3 recites: "The method of claim 1 wherein monitoring bandwidth allocation in the wireless communication network comprises monitoring a periodic report of bandwidth allocated to each subscriber served by a network access point." Appellants contend Ilan fails to remedy the alleged deficiencies of Chean, because "Ilan does not teach or suggest that the same mobile terminal that adjusts its vocoder rate[] monitors bandwidth to detect network congestion." (App. Br. 12) (emphasis added). However, as discussed above regarding claim 1, we find no deficiencies with Chean, given the Examiner's broad but reasonable claim interpretation of the claim term "detecting." Accordingly, we find Han's teaching (i1i115-17) of periodically comparing required and available bandwidth at least suggests (underÂ§ 103, Rejection B), and thus renders obvious, modifying the terminal 12 in Chean to periodically monitor a bandwidth report. 7 8 (See Final Act. 6). Therefore, on this record, we find a preponderance of the evidence supports the Examiner's underlying factual findings and ultimate legal conclusion of obviousness regarding representative claim 3. Because 7 See e.g., Ilan (i-fl 7): "(iii) repeating steps (i) and (ii) periodically;" 8 "[T]he question under 35 [U.S.C. Â§] 103 is not merely what the references expressly teach but what they would have suggested to one of ordinary skill in the art at the time the invention was made." Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807---08 (Fed. Cir. 1989) (emphasis added) (internal quotations and citation omitted). 8 Appeal2014-007871 Application 11/757,650 Appellants have not persuaded us the Examiner erred, we sustain rejection B of claim 3. Grouped claims 9, 20, and 30, also rejected under rejection B, fall with claim 3. See Grouping of Claims, supra. Rejection C-E of Claims 4-8, 11, 12, 21, 22, 31, and 32 underÂ§ 103 Regarding claims 4--8, 11, 12, 21, 22, 31, and 32, Appellants follow a pattern of: (1) reciting the claim language, (2) restating the Examiner's findings, and (3) merely asserting that the cited references fail to teach or suggest the features of the claims. (See App. Br. 13-15). However, mere attorney argument and conclusory statements do not demonstrate error in the Examiner's rejection. 9 Therefore, on this record, Appellants have not persuaded us the Examiner erred. We find a preponderance of the evidence supports the Examiner's legal conclusion of obviousness regarding the dependent claims rejected under rejections C-E. Therefore, we sustain the Examiner's rejections C-E, under Â§ 103, of dependent claims 4--8, 11, 12, 21, 22, 31, and 32. Rejections F and G of claims 15-19 and 25-29 underÂ§ 103 Pursuant to the provisions of37 C.F.R. Â§ 41.31(c), rejections F and G of pending claims 15-19 and 25-29 under Â§ 103 are also before us on appeal. However, Appellants' principal Brief is silent regarding rejections F and G. Because arguments not made are considered waived, we sustain the 9 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). 9 Appeal2014-007871 Application 11/757,650 Examiner's rejections F and G of claims 15-19 and 25-29 underÂ§ 103. See 37 C.F.R. Â§ 41.37(c)(l)(iv). Reply Brief To the extent Appellants advance new arguments in the Reply Brief not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner's Answer will not be considered except for good cause. See 37 C.F.R. Â§ 41.41(b)(2). Conclusion For at least the aforementioned reasons, on this record, Appellants have not persuaded us the Examiner erred. We find a preponderance of the evidence supports the Examiner's finding of anticipation regarding all claims rejected under rejection A. For at least the reasons discussed above, Appellants have not persuaded us of error regarding the Examiner's underlying factual findings and ultimate legal conclusion of obviousness for all claims rejected underÂ§ 103 under rejections B-G. DECISION We affirm the Examiner's rejection of claims 1, 13, and 23 under Â§ 102(e). We affirm the Examiner's rejections of claims 3-9, 11, 12, 15-22, and 25-32 underÂ§ 103(a). No time for taking any action connected with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 10