Ex Parte Beming et al

Patent Trial and Appeal Board

Mar 4, 2014

10595312 (P.T.A.B. Mar. 4, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PER BERNING, KAI-ERIK SUNELL,
and NIKLAS JOHANSSON
____________

Appeal 2011-010288
Application 10/595,312
Technology Center 2400
____________

Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM, and
ANDREW J. DILLON, Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appeal 2011-010288
Application 10/595,312

2
Appellants have requested a rehearing under 37 C.F.R. § 41.52 on
October 2, 2013 (“Request”) from our Decision on Appeal mailed August 2,
2013 (“Decision”),1 wherein we affirmed the obviousness rejections of
claims 13-17. See Decision 6-7. Specifically, the original panel affirmed
the following two rejections made by the Examiner (see Decision 4 and 6):
(1) The rejection of claims 13 and 14 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Appellants’ Admitted Prior Art
(see Appellants’ Figs. 1-4; Spec. ¶¶ [0001]-[0005]), Calvignac, and Liu.
(2) The rejection of claims 15-17 under 35 U.S.C. § 103(a) as being
unpatentable over AAPA and Liu.
Appellants have requested a rehearing of the Decision of the original
panel affirming the obviousness rejections of:
(1) claims 13 and 14 over the combination of AAPA, Calvignac, and
Liu (Request 4-5); and
(2) claims 15 and 16 over the combination of AAPA and Liu (Request
5).2 However, Appellants have not requested a rehearing of the decision of
the original panel affirming the obviousness rejection of claim 17 over the

1 A request for rehearing “‘must state with particularity the points believed
to have been misapprehended or overlooked by the Board’” and “must
specifically recite ‘the points of law or fact which appellant feels were
overlooked or misapprehended by the Board.’” Ex Parte Quist, 95 USPQ2d
1140, 1141 (BPAI 2010) (precedential) (quoting MPEP § 1214.03).

2 Although Appellants include claim 17 in the concluding paragraph on page
5 of the Request, no arguments are presented as to the merits of how or why
the Board overlooked or misapprehended any points in affirming the
rejection of claim 17.
Appeal 2011-010288
Application 10/595,312

3
combination of AAPA and Liu because Appellants have not specifically
pointed to any error or misapprehension on the part of the Board with regard
to the subject matter of claim 17 (see generally Request 4-5, only discussing
claims 13-16, and the specific merits of only claim 13).
Accordingly, we only reconsider our Decision with regard to the
specifically contested issues in the Request relating to our affirmance of the
Examiner’s rejection of claims 13-16 under § 103(a). And because
Appellants primarily request reconsideration of our Decision with respect to
discussion of claim 13, and rely upon these arguments as to the request for
reconsideration of claims 14-16 (Request 4-5), we consider claim 13 to be
representative of all of the claims before us for reconsideration (i.e., claims
13-16).
Appellants’ representative claim 13 discloses a data control method
for regulating the flow of data between nodes in a radio transmission
network (claim 13), comprising the steps of computing and distributing “the
total number of credits to be granted in each data flow” (claim 13, limitation
[A]), where the total number of credits is distributed “proportionally to radio
channel qualities indicated by said user entities” (claim 13, limitation [B]).
Independent claim 15 recites similar subject matter as claim 13 (a control
method for regulating the flow of data, including “distributing the number of
credits given”), while remaining independent claim 16 is in apparatus format
and recites a radio network node for regulating the flow of data that includes
“a distribution device adapted to distribute the total number of credits given”
“proportionally to radio channel qualities” (claim 16).

Appeal 2011-010288
Application 10/595,312

4
Exemplary Claim
Exemplary independent claim 13 under appeal reads as follows
(emphasis and bracketed lettering added):
13. A control method for regulating the flow of data
between a first transmitting radio network node and a second
transmitting radio network node in a radio transmission
network, comprising the steps of:
said second transmitting radio network node receiving
data from said first transmitting radio network node to be
forwarded to plural user entities via an air interface; wherein:
the first transmitting radio network node sends a
capacity request to the second transmitting radio network
node requesting the second transmitting radio network
node for permission to send an indicated number of data
units that are pending in the first transmitting radio
network node; and,
the second transmitting radio network node, in
response to the capacity request, sends an allocation
frame to the first transmitting radio network node, said
allocation frame indicating the number of data units the
first transmitting radio network node is given permission
to transmit, this latter number being referred to as credits;
wherein the second transmitting radio network node, if
buffer resources for storing of data units at the second
transmitting radio network node are limited for each data flow
between the first and second transmitting radio network nodes,
performs the steps of:
counting the instantaneous number of requested data
units in each data flow to obtain a total number of requested
data units;
Appeal 2011-010288
Application 10/595,312

5
[A] computing the total number of credits to be granted
in each data flow by subtracting from a target buffer filling
level for the total number of data flows the total number of data
units currently stored in each of the buffers and the total
number of credits previously given but not yet received; and,
[B] distributing the total number of credits
proportionally to radio channel qualities indicated by said user
entities.
Appellants’ Contentions
Appellants only argue in the Request (see generally Request 1-5) that
the Board has “misapprehended or overlooked the Appellants’ arguments
rebutting the Examiner’s contentions as to the substantive teachings of Liu”
in rendering its decision based on “adopt[ion of] the Examiner’s reasons for
rejection as their own” (Request 1) (emphases added).3 Because Appellants’

3 Notably, Appellants purport to raise only one point for reconsideration
(pertaining to the Appellants’ arguments regarding Liu’s teachings) (see
Request 1, “Point for Reconsideration”), and Appellants assert that such sole
point pertains to “the Examiner’s reasons for rejection” (Request 1)
(emphasis added). Because (i) Appellants’ Request only alleges error as to
the Board’s adoption of the Examiner’s rejection (singular), and only as to
Liu, and (ii) Liu was applied by the Examiner in both rejections on appeal
and was adopted by the Board with respect to both rejections, we presume
Appellants intend to request reconsideration of both rejections (leading to
two separate issues).
In other words, we understand Appellants to contest both (i) the
findings of the Examiner with regard to Liu in the rejection of claims 13 and
14 over AAPA, Calvignac, and Liu, and (ii) the findings of the Examiner
with regard to Liu in the rejection of claims 15 and 16 over AAPA and Liu
(as well as the concordant adoption by the Board of the findings of the
Examiner with regard to Liu). As a result, there are actually two issues for
reconsideration (not one), both issues for reconsideration being based on a
Footnote continued on the next page.
Appeal 2011-010288
Application 10/595,312

6
single point of contention regarding the teachings of Liu only addresses Liu,
and not the combination of either (i) AAPA, Calvignac, and Liu, or (ii)
AAPA and Liu, Appellants have failed to show any error in the original
Decision affirming the Examiner’s rejections made using combinations of
references.4 In any event, Appellants present the following two points of
argument with regard to Liu generally and without discussing a specific
claim (presumably Appellants intend to address both the rejection of claims
13 and 14 based on AAPA, Calvignac, and Liu, and the rejection of claims
15 and 16 based on AAPA and Liu with these points of argument):
(1) “Appellants take exception to the PTAB Panel’s assertion that they
have ‘fail[ed] to address or otherwise rebut the citations to . . . paragraphs

single point raised for reconsideration, namely, the Examiner’s and the
Board’s findings with regard to “the substantive teachings of Liu” (Request
1).
Further, our review of Appellants’ Request reveals at least five bases
upon which Appellants allege the Board overlooked or misapprehended with
regard to the substantive teachings of Liu and the single point raised for
reconsideration, as discussed infra.
4 See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (one
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references); In re Keller, 642 F.2d
413, 425 (CCPA 1981). And, notably, Appellants’ Request overlooks the
teachings of Calvignac at paragraph [0067] which disclose the features of a
“credit generation logic,” a “maximum credit register,” and a “decrement
counter signal” that operate to meet the features of claim 13. Thus,
Appellants have still not rebutted the Examiner’s case (see Ans. 3-7) that
AAPA, Calvignac, and Liu combined teach or suggest representative claim
13.
Appeal 2011-010288
Application 10/595,312

7
[0024], [0026], [0034], and [0037] of Liu’” (Request 2, last full sentence at
bottom of page); and
(2) the Board’s adoption of the Examiner’s findings with regard to
Liu’s proportional distribution of power and transmission data rates based on
channel qualities overlooked the limitations claimed which pertain to the
proportional distribution of credits, as opposed to transmission power and
data rates as disclosed by Liu, because control of transmission power and
data rates is not equivalent or analogous to control of data units based on
proportional distribution of credits for different data flows (Request 2-3).
Further, Appellants present the following three additional points of
argument with regard to the application of Liu’s substantive teachings
specifically to claim 13:
(3) based on Appellants’ review of paragraph [0027] and Figure 1 of
Liu, the Board misapprehended or overlooked Liu’s failure to disclose (a)
proportional distribution of data rates as a function of a total value, and (b)
distributing credits for data units of different data flows proportionally to
radio channel qualities indicated by user entities to which the data flows will
be transmitted (Request 4);
(4) the Board misapprehends Appellants’ “credit mechanism” in the
context of claim 13 as a whole (Request 4); and
(5) the Board overlooked the Examiner’s failure to point to any
teaching found in Liu that corresponds to the concluding limitation of claim
13 of “‘distributing the total number of credits proportionally to radio
channel qualities indicated by said user entities’” (Request 5 citing claim 13)
(emphasis added by Appellants in original), because those skilled in the art
Appeal 2011-010288
Application 10/595,312

8
will recognize that if a total number of credits exist that are distributed
proportionally, then granting more credits to one entity will necessarily
reduce the number available to be granted to another entity (Request 5).

Analysis
We have reconsidered our decision of August 2, 2013, in light of
Appellants’ contentions in the Request (see points (1)-(5) supra), and we
find no errors therein. Therefore, we decline to change our prior decision
with respect to the obviousness rejections of (i) claims 13 and 14 over the
combination of AAPA, Calvignac, and Liu, and (ii) claims 15 and 16 over
the combination of AAPA and Liu, for the following reasons, and address
each of Appellants’ Contentions (1)-(5) in turn.5

Contention (1): Appellants’ exception to the PTAB Panel’s assertion that
Appellants have failed to address or otherwise rebut the citations to
paragraphs [0024], [0026], [0034], and [0037] of Liu.

Appellants’ assertions (Request 3) that Liu relates to control of
transmission power and data rates that are not equivalent to the credit-based
system of Appellants’ claims 13-16 are not persuasive, because:

5 Notably, we do not reconsider our decision affirming claim 17 made by the
Examiner in the Answer over the combination of AAPA and Liu because
Appellants have not contended in the Request that the Board made any
misapprehensions or overlooked any facts in reaching its Decision affirming
claim 17.
Appeal 2011-010288
Application 10/595,312

9
(i) the Examiner relies on paragraphs 26 and 38 of Liu (see Ans. 6 and
8-10) as disclosing proportionally distributing a transmit power based on a
budget, similar to doing so based on credits;
(ii) paragraph [0034] of Liu, cited by the Examiner at pages 14-16 of
the Answer, also suggests determining and allocating a transmit power
proportionally;
(iii) the Examiner relied upon AAPA, and not Liu, as teaching or
suggesting the recited credit-based method (see Ans. 11 and 13); and
(iv) these arguments still do not allege that the Board overlooked or
misapprehended the rejections of claims 13-16 based upon the combinations
of references.

Contention (2): Board’s adoption of Examiner’s findings with regard to
Liu’s proportional distribution of power and transmission data rates based
on channel qualities overlooked limitations claimed which pertain to
proportional distribution of credits, as opposed to transmission power and
data rates as disclosed by Liu.

Because AAPA (Fig. 2; Spec. 2:7-24; 4:3-17; and 5:14-16) and
Calvignac (¶ [0067]) disclose dealing in credits as claimed, this contention is
not persuasive.

Appeal 2011-010288
Application 10/595,312

10
Contention (3): With regard to paragraph [0027] and Figure 1 of Liu,
Board misapprehended or overlooked Liu’s failure to disclose (a)
proportional distribution of data rates as a function of a total value, and (b)
distributing credits for data units of different data flows proportionally to
radio channel qualities indicated by user entities to which the data flows will
be transmitted.

With regard to Contention (3)(a), the Examiner addresses Liu’s
paragraphs 26 and 38 at pages 6, 8-9, 10 of the Answer (and not paragraph
[0027] of Liu) as disclosing proportionally distributing a transmit power
based on a budget, similar to doing so based on credits. In addition,
paragraph [0034] of Liu, cited by the Examiner at pages 14-16 of the
Answer, also suggest determining and allocating a transmit power
proportionally. This is done to “optimize the overall downlink transmission
rate and the rate for each scheduled wireless unit” (Liu, ¶ [0037]).
Appellants’ contention here regards only paragraph [0027] of Liu (not relied
on by the Examiner), and still does not address the Examiner’s reliance upon
paragraphs [0024], [0026], [0034], and [0037] of Liu, as well as page 2, lines
8-24 of the Specification (AAPA). Furthermore, the Examiner relied upon
AAPA, and not Liu, as teaching or suggesting the recited credit-based
method (see Ans. 11 and 13).
In view of the foregoing, Appellants’ Contention (3)(a) is not
persuasive.
With regard to Contention (3)(b), Appellants admit that “Liu describes
setting a transmission rate by a base station based on a CQI signal
transmitted by different communication terminals” (Request 4), and assert
that “the transmission rate set for one communication terminal does not limit
the transmission rate that can be set for another communication terminal”
Appeal 2011-010288
Application 10/595,312

11
(Request 4) (emphases in original). Furthermore, the Examiner addresses
Liu’s paragraphs 26 and 38 at pages 6, 8-9, 10 of the Answer (and not
paragraph [0027] of Liu) as disclosing proportionally distributing a transmit
power based on a budget, similar to doing so based on credits.
In any event, Contention (3)(b) is not persuasive (i) because it
concerns credits, (ii) Liu’s disclosure of proportionally allocating transmit
power based on a budget (Liu, ¶ [0026]) suggests doing so based on credits,
(iii) AAPA (Fig. 2; Spec. 2:7-24; 4:3-17; and 5:14-16) and Calvignac
(¶ [0067]) disclose dealing in credits as claimed, and (iv) the rejections are
based on combinations of references and not just Liu.

Contention (4): the Board misapprehends Appellants’ “credit mechanism”
in the context of claim 13 as a whole.

This contention fails for the same reason as Contention 2 discussed
supra, because AAPA (Fig. 2; Spec. 2:7-24; 4:3-17; and 5:14-16) and
Calvignac (¶ [0067]) disclose dealing in credits as claimed.

Contention (5): Board overlooked Examiner’s failure to point to any
teaching found in Liu that corresponds to concluding limitation of claim 13
of “‘distributing the total number of credits proportionally to radio channel
qualities indicated by said user entities.’”

Notably, Appellants admit that “Liu describes setting a transmission
rate by a base station based on a CQI signal transmitted by different
communication terminals” (Request 4), and assert that “the transmission rate
set for one communication terminal does not limit the transmission rate that
can be set for another communication terminal” (Request 4) (emphasis in
original). Furthermore, the Examiner addresses Liu’s paragraphs 26 and 38
Appeal 2011-010288
Application 10/595,312

12
at pages 6, 8-9, 10 of the Answer (and not paragraph [0027] of Liu) as
disclosing proportionally distributing a transmit power based on a budget,
similar to doing so based on credits.
In any event, Contention (5) is not persuasive (i) because it concerns
credits; (ii) AAPA (Fig. 2; Spec. 2:7-24; 4:3-17; and 5:14-16) and Calvignac
(¶ [0067]) disclose dealing in credits as claimed, and (iii) the rejections are
based on combinations of references and not just Liu.
Summary
Appellants’ Request for Rehearing has been granted to the extent that
our decision has been reconsidered, but such request is denied with respect
to making any modifications to the decision.
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).

REQUEST FOR REHEARING
DENIED

msc