Ex Parte Campos et al

Patent Trial and Appeal BoardFeb 21, 2019

14267273 (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/267,273 05/01/2014 135792 7590 02/25/2019 Cable Television Laboratories, Inc. 858 Coal Creek Circle Louisville, CO 80027 FIRST NAMED INVENTOR Luis Alberto Campos 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. 60514-3 7878 EXAMINER SOLINSKY, PETER G ART UNIT PAPER NUMBER 2463 NOTIFICATION DATE DELIVERY MODE 02/25/2019 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): d.smith@cablelabs.com p.calderwood@cablelabs.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LUIS ALBERTO CAMPOS, BERNARD McKIBBEN, IAN MACMILLAN, JENNIFER ANDREOLI-FANG, JOEY PAD DEN, and JUSTIN COL WELL Appeal 2018-003 691 Application 14/267 ,273 Technology Center 2400 Before MARC S. HOFF, ELENI MANTIS MERCADER, and STEVEN M. AMUNDSON, Administrative Patent Judges. AMUNDSON, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1, 2, 5-10, 13-18, and 22, i.e., all pending claims. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 Appellants identify the real party in interest as Cable Television Laboratories, Inc. Br. 3. Appeal2018-003691 Application 14/267 ,273 STATEMENT OF THE CASE The Invention According to the Specification, the invention concerns "capacity sharing between wireless systems via a master scheduling system." Spec. ,r 5. 2 The Specification explains that (1) "a Mobile Central Office (MCO) for capacity sharing" is "communicatively coupled to a plurality of wireless base stations" and (2) "[ e Jach of the wireless base stations is operable to convey capacity information to the master scheduling system through the MCO, and to acquire capacity from one or more wireless base stations of another MCO when directed by the master scheduling system." Id. at 34 (Abstract); see id. ,r 5. Exemplary Claim Independent claim 1 exemplifies the claims at issue and reads as follows (with formatting added for clarity): 1. A wireless telecommunications system, comprising: a plurality of wireless base stations, wherein each wireless base station is operable to handle a session from a wireless device and to handoff the session to another of the wireless base stations when the wireless device moves into a range of the other wireless base station; and a Mobile Central Office (MCO) communicatively coupled to each of the wireless base stations, wherein each of the wireless base stations is communicatively coupled to a remotely located master scheduling system through the MCO, and 2 This decision uses the following abbreviations: "Spec." for the Specification, filed May 1, 2014; "Final Act." for the Final Office Action, mailed February 3, 2017; "Br." for the Appeal Brief, filed July 31, 2017; and "Ans." for the Examiner's Answer, mailed November 9, 2017. 2 Appeal2018-003691 Application 14/267 ,273 wherein each of the wireless base stations is operable to convey capacity information to the master scheduling system, and to acquire capacity from one or more wireless base stations of another MCO when directed by the master scheduling system, wherein a first of the wireless base stations comprises: a Wireless Access Point (W AP) operable in a WiFi band operable to communicate frequency spectrum usage of the first wireless base station to the master scheduling system to acquire said capacity from the other MCO; and a Long Term Evolution (L TE) transmitter to communicate frequency spectrum usage of the first wireless base station to the master scheduling system to acquire said capacity from the other MCO, wherein the L TE transmitter is operable in the WiFi band. Br. 15 (Claims App.). The Prior Art Supporting the Rejections on Appeal As evidence ofunpatentability under 35 U.S.C. Â§ 103, the Examiner relies on the following prior art: Koo et al. ("Koo") Panchal et al. ("Panchal") Kang et al. ("Kang") Himayat et al. ("Himayat") Agarwal et al. ("Agarwal") US 2013/0083743 Al US 2013/0090124 Al US 2013/0322367 Al US 2014/0050086 Al US 2014/0092765 Al The Rejections on Appeal Apr. 4, 2013 Apr. 11, 2013 Dec. 5, 2013 Feb.20,2014 Apr. 3, 2014 Claims 1, 9, and 16 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over Panchal and Himayat. Final Act. 2---6. Claims 2 and 10 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over Panchal, Himayat, and Kang. Final Act. 7-8. 3 Appeal2018-003691 Application 14/267 ,273 Claims 5-7, 13, 14, and 17 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over Panchal, Himayat, and Agarwal. Final Act. 8-10. Claims 8, 15, and 18 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over Panchal, Himayat, Agarwal, and Kang. Final Act. 10-12. Claim 22 stands rejected under 35 U.S.C. Â§ 103 as unpatentable over Panchal, Himayat, Koo, and Kang. Final Act. 12-13. ANALYSIS We have reviewed theÂ§ 103 rejections in light of Appellants' arguments that the Examiner erred. For the reasons explained below, we concur with the Examiner's conclusions concerning unpatentability under Â§ 103. We adopt the Examiner's findings and reasoning for theÂ§ 103 rejections in the Final Office Action (Final Act. 2-13) and Answer (Ans. 2-3). We add the following to address and emphasize specific findings and arguments. TheÂ§ 103 Rejection of Claims 1, 9, and 16 ALLEGED DEFICIENCIES IN PANCHAL AND RIMA Y AT Appellants argue that the Examiner erred in rejecting independent claims 1, 9, and 16 because "[ t ]he Examiner is improperly interpreting and unreasonably broadening the Appellant's claims to a point beyond what those skilled in the art would understand with respect to capacity sharing via differing communication technologies, such as LTE and WiFi." Br. 6. Further, Appellants assert that (1) "Panchal does not disclose any of the base stations being operable to communicate via WiFi as well as L TE" and (2) "Panchal only discloses sharing among LTE communication entities." Id. at 6-7. In addition, Appellants contend that "Himayat does not disclose any sort of' Mobile Central Office (MCO). Id. at 7. According to 4 Appeal2018-003691 Application 14/267 ,273 Appellants, "Himayat's offloading of traffic from one protocol to another is directed to a computing device - not to any sort of master scheduling system that acquires capacity from another MCO." Id. Appellants' arguments do not persuade us of Examiner error because they attack the references individually, while the Examiner relies on the combined disclosures in the references to teach or suggest the claimed subject matter. See Final Act. 2---6; Ans. 2-3. Where a rejection rests on the combined disclosures in the references, an appellant cannot establish nonobviousness by attacking the references individually. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). For instance, Appellants' assertion that "Panchal does not disclose any of the base stations being operable to communicate via WiFi as well as L TE" does not demonstrate Examiner error because the Examiner relies on Himayat, not Panchal, for disclosing multimode base stations with L TE and WiFi capabilities. Final Act. 3, 5---6; Ans. 2-3. Further, Appellants' contention that "Himayat does not disclose any sort of' MCO does not demonstrate Examiner error because the Examiner relies on Panchal, not Himayat, for disclosing an MCO. Final Act. 3-6; Ans. 2. The Examiner correctly finds that Panchal discloses "scheduling across multiple networks" and a system that "utilizes a sharing entity to share capacity between different networks." Final Act. 2; Ans. 2. In particular, Panchal describes a sharing entity (SE) that "coordinates supplies and demands between prospective sharing partners," such as "different networks ... that have excess resources to offer for sharing (supplies), or that are requesting, on a temporary basis, a grant of resources from other networks (demands)." Panchal ,r 45; see id. ,r,r 6, 47-52, Abstract, Figs. 3--4. 5 Appeal2018-003691 Application 14/267 ,273 Each network includes a mobility management entity (MME) that, among other things, "manages the assignment of network resources" and "manage [ s] the access by the mo bile user terminals ( referred to in L TE as UEs, for 'user equipment')." Id. ,r 26; see id. ,r 49. Each MME analyzes performance indicators "used as input for making sharing decisions." Id. ,r,r 57-59; see id. ,r 6, Abstract. Based on the performance indicators, an MME "makes short-term and long-term sharing decisions." Id. ,r,r 57, 59; see id. ,r,r 6, 48, Abstract. If an MME "decides to participate in resource sharing, it sends a message to the SE" that "may be a borrowing request" or "may be an offer of surplus resources that are available for sharing." Id. ,r 59; see id. ,r,r 6, 45, 48, Abstract. The "SE identifies sharing partners" and "matches supplying partners to demanding partners to create supply-demand partnerships." Id. ,r 66. As the Examiner correctly finds, Panchal's sharing entity (SE) is "functionally equivalent to the master scheduling system" required by the claims. Ans. 2. Moreover, Panchal's mobility management entity (MME) is functionally equivalent to the MCO required by the claims. The Specification explains that "an MCO is any system, apparatus, software, or combination thereof operable to maintain or otherwise support wireless communications, including data and voice, with subscribers via user equipment (e.g., mobile handsets and other wireless devices)." Spec. ,r 19. An MME maintains or otherwise supports wireless communications by "manag[ing] the assignment of network resources," "manag[ing] the access by the mobile user terminals," and "mak[ing] short-term and long-term sharing decisions." See Panchal ,r 26, 59; see id. ,r,r 6, 49, Abstract. 6 Appeal2018-003691 Application 14/267 ,273 Consequently, an MME constitutes an MCO according to the Specification. See Spec. ,r 19. Thus, the Examiner correctly reasons that "[ t ]he only shortcoming of Panchal's teachings is it does not teach base stations which utilize different access technologies." Ans. 2. But the Examiner correctly finds that "Himayat fulfills the shortcoming of Panchal." Id.; see Final Act. 2---6. More specifically, Himayat discloses a mobile communications framework with WW AN (L TE) and WLAN (WiFi) networks and multimode base stations with L TE and WiFi capabilities. Himayat ,r,r 4, 6, 15-1 7, 25-2 7, 31, Abstract, Fig. 1; see Final Act. 2-6; Ans. 2-3. A radio resource control (RRC) in a base station "collect[ s] measurement reports on the WW AN and WLAN links" to facilitate offloading data traffic from an L TE link to a WiFi link. Himayat ,r,r 18-19, 31-32, Abstract; see id. ,r,r 9, 12, 15, 63, Fig. 4; Ans. 2. For the reasons discussed above, the combined disclosures in the references to teach or suggest the claimed subject matter. See Final Act. 2---6; Ans. 2-3; Panchal ,r,r 6, 26, 45, 47-52, 57-59, 66, Figs. 3--4; Himayat ,r,r 4, 6, 15-19, 25-27, 31-32, Abstract, Fig. 1. Monv A TION TO COMBINE p ANCHAL AND RIMA y AT Appellants argue that the Examiner erred in rejecting claims 1, 9, and 16 because "no one skilled in the art would be motivated to combine Himayat with Panchal." Br. 8. Appellants concede that the "Examiner states that the proposed combination would be to obtain the predictable result of minimizing required access points." Id. at 9. But Appellants contend that "neither Panchal nor Himayat seek[ s] to minimize a number of wireless access points." Id. Further, Appellants assert that a person of 7 Appeal2018-003691 Application 14/267 ,273 ordinary skill would lack a motivation to combine Himayat with Panchal because "Himayat is not related to capacity sharing between base stations of differing MCOs." Id. at 8. Appellants' arguments do not persuade us of Examiner error. "[T]he law does not require that the references be combined for the reasons contemplated by the inventor." In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992); see Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364, 1371 (Fed. Cir. 2017). "[A]ny need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining" references. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). Here, the Examiner explains that "[t]here exist any number of motivations to utilize a base station having access to more bandwidth [Himayat] rather than an older technology [Panchal] which only utilized one portion of the frequency spectrum." Ans. 3. The Examiner finds that a "simple substitution of one known element (Himayat's Multi-RAT [Radio Access Technology] base station) for another (Panchal's single access technology base station)" produces "predictable results," i.e., "the need for fewer access points in a network since multiple technologies could utilize the single base station." Id.; see Final Act. 2. We note that Appellants did not file a Reply Brief to refute the factual findings in the Answer. Additionally, Himayat instructs that "radio level integration of WLAN and WW AN technologies may be employed to improve user Quality of Service (QoS) and wireless system performance, among other reasons." Himayat ,r 12. Those benefits constitute reasons that would have prompted a person of ordinary skill to adapt Panchal's system to operate with WLAN 8 Appeal2018-003691 Application 14/267 ,273 (WiFi) as well as WWAN (LTE) networks. See id. ,r,r 5, 12, 19, 29, Abstract. "[T]he desire to enhance commercial opportunities by improving a product or process is universal." DyStar Textilfarben GmbH v. CH Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006); see In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Appellants assert that "[s]imply adding Himayat's downstream offloading of WiFi communications and L TE communications would not provide any WiFi capacity sharing capability to Panchal because Himayat does not address sharing of any kind upstream." Br. 9. But "[ c ]ombining the teachings of references does not involve an ability to combine their specific structures." In re Nievelt, 482 F.2d 965, 968 (CCP A 1973). Panchal explains that resource sharing can "improve [network] performance," "achieve greater overall efficiency," and "increase the effective network capacity ... without deploying more base stations." Panchal ,r 3. That explanation applies equally to WiFi communications and L TE communications. Thus, a person of ordinary skill would have been motivated to employ resource sharing with WiFi communications as well as LTE communications when adapting Panchal's system to operate with WLAN (WiFi) as well as WW AN (L TE) networks. REASONABLE EXPECTATION OF SUCCESS Appellants argue that the Examiner erred in rejecting claims 1, 9, and 16 because the "combination of Himayat and Panchal could produce no reasonable expectation of success." Br. 8. But Appellants' argument disregards the Examiner's finding that combining Himayat and Panchal produces "predictable results." Ans. 3; see Final Act. 2. Those "predictable results" correspond to a reasonable expectation of success because a 9 Appeal2018-003691 Application 14/267 ,273 predictable occurrence corresponds to a reasonably expected occurrence. Appellants cite no evidence to refute the Examiner's factual finding. See Br. 8-9. Attorney argument "cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Appellants' argument also disregards Himayat' s disclosure that multimode devices with L TE and WiFi capabilities rest on widely adopted standards, i.e., 3GPP (LTE) and IEEE 802.11 (WiFi). Himayat ,r,r 3--4, 25, 76. Panchal's networks similarly rest on 3GPP standards. Panchal ,r,r 10-12, 22-25, 34, 77, 82, 84--87, 90, Figs. 1-3. "In cases involving ... mechanical or electrical elements," "known scientific laws" permit prediction of performance characteristics. See In re Fisher, 427 F.2d 833, 839 (CCPA 1970). Consistent with that principle, Appellants do not assert that a person of ordinary skill would have difficulty implementing technology based on 3GPP standards and IEEE 802.11 standards. See Br. 8-9. Nor do Appellants direct us to any alleged incompatibilities between 3GPP standards and IEEE 802.11 standards. See Br. 8-9. To the contrary, Himayat notes that "various 3GPP standards" contemplate "network based offloading techniques" for transferring data traffic from a WW AN (L TE) link to a WLAN (WiFi) link. Himayat ,r 4; see id. ,r,r 17-18. Appellants concede that "L TE communication companies have been" offloading data traffic "for years." Br. 7. Also, Himayat explains that "[t]hose skilled in the art would understand that the presently described techniques may be used in a variety of multi-communication UE devices with 3G/4G (including UMTS or GSM) and WiFi Capabilities, as well as integrated multi-radio base-stations." 10 Appeal2018-003691 Application 14/267 ,273 Himayat ,r 75. Thus, a person of ordinary skill would have reasonably expected multimode devices with L TE and WiFi capabilities to work in Panchal' s networks. "A person of ordinary skill is also a person of ordinary creativity, not an automaton," and "in many cases ... will be able to fit the teachings of multiple patents together like pieces of a puzzle." KSR, 550 U.S. at 420-21. In addition, Agarwal discloses a network having nodes with L TE and WiFi capabilities and explains that "some or all of the necessary radio access technology may incorporate" commercial, off-the-shelf components. See, e.g., Agarwal ,r,r 11-12, 30-33, 37, 48, 55, Figs. 2-3. Agarwal evidences the level of ordinary skill in the art and shows that a person of ordinary skill would have reasonably expected multimode devices with L TE and WiFi capabilities to work in Panchal' s networks. SUMMARY FOR CLAIMS 1, 9, AND 16 For the reasons discussed above, Appellants' arguments have not persuaded us that the Examiner erred in rejecting claims 1, 9, and 16 for obviousness based on Panchal and Himayat. Hence, we sustain the Â§ 103 rejection of these independent claims. TheÂ§ 103 Rejections of Claims 2, 5---8, 10, 13-15, 17, 18, and 22 Claims 2 and 5-8 depend directly or indirectly from claim 1; claims 10 and 13-15 depend directly from claim 9; and claims 17, 18, and 22 depend directly from claim 16. Appellants do not argue patentability separately for these dependent claims. Br. 6-9. Hence, we sustain the Â§ 103 rejections of these dependent claims for the same reasons as the independent claims. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). 11 Appeal2018-003691 Application 14/267 ,273 DECISION We affirm the Examiner's decision to reject claims 1, 2, 5-10, 13-18, and 22. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). See 37 C.F.R. Â§ 4I.50(f). AFFIRMED 12