Ex Parte Cleveland

Patent Trial and Appeal BoardDec 13, 2012

11585009 (P.T.A.B. Dec. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JOSEPH R. CLEVELAND ____________________ Appeal 2010-006924 Application 11/585,009 Technology Center 2600 ____________________ Before DEBRA K. STEPHENS, HUNG H. BUI, and LYNNE E. PETTIGREW, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006924 Application 11/585,009 2 Appellant appeals under 35 U.S.C. § 134(a) (2002) from the final rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Introduction According to Appellant, the invention relates to a system and method for synchronous spectrum sharing for use in a wireless communication system based on orthogonal frequency division multiplexing (OFDM) or orthogonal frequency division multiple access (OFDMA) signaling. See Appellant’s Spec. ¶005 and Abstract. STATEMENT OF THE CASE Exemplary Claim Claim 1 is an exemplary claim and is reproduced below: 1. A synchronous spectrum sharing system for using in a wireless communication system having a primary user node and a secondary user node, the system comprising: a frame detector configured to detect a frame of a broadcast waveform and extract idle spectrum information for the frame to the secondary user node, wherein the secondary user node transmits data in a first unused symbol slot identified in the idle spectrum information. References Bonta US 2004/0233888 A1 Nov. 25, 2004 Ling US 2005/0063298 A1 Mar. 24, 2005 Appeal 2010-006924 Application 11/585,009 3 Rejections (1) Claims 1, 4-9, and 12-16 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Bonta. Ans. 3-6. (2) Claims 2, 3, 10, 11, and 17-21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bonta and Ling. Ans. 6-10. ISSUE 1 Double Patenting: Claims 1, 9, and 17 Claim 1 is provisionally rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 2 of co- pending Application No. 11/805,113; claim 9 over claim 11 of co-pending Application No. 11/805,113; and claim 17 over claim 20 of co-pending Application No. 11/805,113. Claim 1 is provisionally rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 1 of co-pending Application No. 11/725,749; claim 9 over claim 10 of co-pending Application No. 11/725,749; and claim 17 over claim 20 of co-pending Application No. 11/725,749. Claim 1 is provisionally rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 1 of co-pending Application No. 11/702,397; claim 9 over claim 11 of co-pending Application No. 11/70,2397; and claim 17 over claim 22 of co-pending Application No. 11/702,397. Claim 1 is provisionally rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claim 1 of co-pending Application No. 11/805,114; claim 9 over claim 10 of co-pending Appeal 2010-006924 Application 11/585,009 4 Application No. 11/805,114; and claim 17 over claim 17 of co-pending Application No. 11/805,114. Appellant has not acknowledged or traversed these rejections. We therefore affirm these rejections, pro forma, as no error has been demonstrated by Appellant. ISSUE 2 35 U.S.C. § 102(b): Claims 1, 4-9, and 12-16 Appellant argues his invention is not anticipated by Bonta (App. Br. 14). Specifically, Appellant contends Bonta does not disclose extracting idle spectrum information for the frame and the secondary user node transmits data in a first unused symbol slot identified in the idle spectrum information (App. Br. 16). Appellant argues Bonta measures inactivity of a channel but not idle spectrum information for the frame of a broadcast waveform (Reply Br. 3-4). Appellant further argues that Bonta does not disclose why the secondary node would transmit data in a first unused symbol slot identified in the idle spectrum information (Reply Br. 5-6). Instead, according to Appellant, Bonta teaches the base station provides the channels in a best to worst order determined based on interference (Reply Br. 6). Thus, Appellant contends Bonta does not expressly or inherently teach the recited invention. Issue 2: Has the Examiner erred in finding Bonta discloses “a frame detector configured to…extract idle spectrum information for the frame to the secondary user node, wherein the secondary user node transmits data in a Appeal 2010-006924 Application 11/585,009 5 first unused symbol slot identified in the idle spectrum information” as recited in claim 1 and commensurately recited in claim 9? ANALYSIS We agree with Appellant’s arguments that the Examiner has not shown where Bonta discloses the disputed limitations (Reply Br. 3-7). Specifically, we agree the Examiner has not shown Bonta discloses extracting idle spectrum information for a portion (a frame) of a broadcast waveform. We further agree the Examiner has not shown Bonta anticipates the secondary user node transmitting data in a first unused symbol slot identified in the idle spectrum information. Therefore, we are constrained to find the Examiner erred in finding Bonta discloses the invention as recited in independent claims 1 and 9. Dependent claims 4-8 and 12-16 stand with their respective independent claims. Therefore, the Examiner erred in rejecting claims 1, 4-9, and 12-16 under 35 U.S.C. § 102(b) for anticipation by Bonta. ISSUE 3 35 U.S.C. § 103(a): Claims 2, 3, 10, 11, and 17-21 Claims 2, 3, 10, and 11 Claims 2, 3, 10, and 11 which depend from claims 1 and 9, respectively, are rejected for obviousness over Bonta and Ling. For the reasons set forth above, Bonta does not disclose the invention as recited in claims 1 and 9. The Examiner has not shown Ling cures the deficiencies of Appeal 2010-006924 Application 11/585,009 6 Bonta. Therefore, claims 2, 3, 10, and 11 stand with their respective independent claims. Claims 17-21 Appellant asserts their invention is not obvious over Bonta and Ling because Bonta and Ling do not teach or suggest “a frame detector configured to …extract idle spectrum information of the frame…wherein the secondary user node transmits data in a first unused symbol slot identified in the idle spectrum information” as recited in claim 17 (App. Br. 19). Issue 3: Has the Examiner erred in concluding the combination of Bonta and Ling teaches or suggests “a frame detector configured to…extract idle spectrum information for the frame to the secondary user node, wherein the secondary user node transmits data in a first unused symbol slot identified in the idle spectrum information” as recited in independent claim 17? ANALYSIS For the reasons set forth above in Issue 2, we find Bonta does not teach the disputed limitations. Further, the Examiner has not shown Bonta suggests the disputed limitations or Ling cures the deficiencies of Bonta. Accordingly, the Examiner erred in finding the combination of Bonta and Ling teaches or suggests the invention as recited in independent claim 17. Dependent claims 18-20 thus stand with claim 17. It follows therefore that the Examiner erred in rejecting claims 17-21 under 35 U.S.C. § 103(a) for obviousness over Bonta and Ling. Appeal 2010-006924 Application 11/585,009 7 Accordingly, the Examiner erred in finding the combination of Bonta and Ling teaches or suggests the invention as recited in claims 2, 3, 10, 11, and 17-21. Therefore, the Examiner erred in rejecting claims 2, 3, 10, 11, and 17-21 under 35 U.S.C. § 103(a) for obviousness over Bonta and Ling. DECISION The Examiner’s provisional rejections of claims 1, 9, and 17 on the ground of non-statutory obviousness-type double patenting are affirmed. The Examiner’s rejection of claims 1, 4-9, and 12-16 under 35 U.S.C. § 102(b) as being anticipated by Bonta is reversed. The Examiner’s rejection of claims 2, 3, 10, 11, and 17-21under 35 U.S.C. § 103(a) as being unpatentable over Bonta and Ling is reversed. 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) (2011). AFFIRMED-IN-PART ELD