Ex Parte Elmdahl et al

Patent Trials and Appeals Board

Feb 28, 2019

14115654 - (D) (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/115,654 11/05/2013
102721 7590 03/04/2019
Murphy, Bilak & Homiller/Ericsson
1255 Crescent Green
Suite 200
Cary, NC 27518
FIRST NAMED INVENTOR
PerElmdahl
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.
1009-0751 I P38741 US2 4409
EXAMINER
FAYED,RASHAK
ART UNIT PAPER NUMBER
2413
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
official@mbhiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PER ELMDAHL, SAMUEL AXELSSON, RASMUS AXEN, and
FREDRIK GUNNARSSON
Appeal2018-001927
Application 14/115,654
Technology Center 2400
Before JEAN R. HOMERE, CAROLYN D. THOMAS, and
MICHAEL M. BARRY, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 17-31 and 33, which constitute all claims pending in this
application. 1 Appeal Br. 2. Claims 1-16 and 32 have been canceled. Id.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as Telefonaktiebolaget LM
Ericsson. Appeal Br. 2.
Appeal2018-001927
Application 14/115,654
Introduction
According to Appellants, the claimed subject matter relates to a
method for evaluating the performance of a radio network supporting radio
communication between wireless devices (104, 202) and a network node
( 400), which employs carrier aggregation with multiple carriers used in
multiple corresponding cells. Spec. ,r,r 1, 11-15, Figs. 1--4. One of the
aggregated cells acts as a primary cell ("Pcell") and the remaining cells act
as secondary cells ("Scells"). Id. ,r,r 27-28, Fig. 2. In particular, upon
retrieving statistical information regarding a Scell usage of radio resources
( 4: 1) within an identified cell, the network node ( 400) reports the retrieved
statistical information to an Operation and Maintenance (O&M) node ( 404),
which evaluates how the Scell usage impacts the measured performance
(4:2, 4:3) of the radio network. Id. ,r,r 48--49, Fig. 4.
O&\l
"-!
102 ;-·············································1
'-l Network \:fanager I
' !
Fig. l
Figure 1 depicts a communication scenario illustrating an architecture for
network management.
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Appeal2018-001927
Application 14/115,654
Pccll I J
' ' r-·,,,
Scell 2 ---' '>, _
Scell 3 _r--,,,~ ~~~ ~~ ---. ---. -· -- ---
CC2
CC3
)
(202
...................... [gJ
Fig. 2
Figure 2 is a schematic view of a network node using carrier aggregation in
radio communication with a wireless device.
Figure 4 is a communication scenario illustrating an example of actions and
signal flows when the solution is employed in a network node and an O&M
node.
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Appeal2018-001927
Application 14/115,654
Representative Claim
Claims 17, 24, 31, and 33 are independent. Independent claim 17 is
representative, and is reproduced below with the limitation at issue
italicized:
1 7. A method performed by a network node of a radio network, for
supporting evaluation of performance of the radio network in radio
communication between wireless devices and the network node,
wherein the network node employs carrier aggregation with multiple
carriers used in corresponding multiple cells, the method comprising:
retrieving statistical information regarding utilization of radio
resources in the radio communication, wherein the statistical
information indicates secondary cell use of radio resources in a
particular cell in the radio communication; and
reporting the statistical information to an Operation and
Maintenance (O&M) node serving the radio network, thereby
enabling the O&M node to use the statistical information for
evaluating how a measured performance of the radio network is
related to secondary cell usage.
Zhang
Kazmi
References Relied Upon
US 2012/0163338 Al
US 2013/0322395 Al
June 28, 2012
Dec. 5, 2013
Rejection on Appeal
Claims 17-31, and 33 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Kazmi and Zhang. Final Act. 2-34.
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Application 14/115,654
ANALYSIS 2
Section 103 (a) forbids issuance of a patent when "the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,406 (2007) ("KSR"). The
question of obviousness is resolved on the basis of underlying factual
determinations including (1) the scope and content of the prior art, (2) any
differences between the claimed subject matter and the prior art, (3) the level
of skill in the art, and ( 4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
Appellants argue that the Examiner erred in rejecting claim 1 over the
combination of Kazmi and Zhang because neither of the cited references
teaches or suggests "retrieving statistical information indicating secondary
cell use of radio resources in a particular cell," as recited in independent
claim 17. Appeal Br. 12-13. In particular, Appellants argue although
Kazmi' s disclosure of measuring "cell load" or "traffic load" can be
reasonably considered as retrieving information regarding radio resource
utilization, as admitted by the Examiner, such statistical information does
not pertain to a Scell. Id. Further, Appellants argue that although Zhang
mentions a secondary serving cell, it is silent about a node retrieving
statistical information, and reporting such information to an O&M node. Id.
2 We refer to Appellants' arguments and the Examiner's findings and
conclusions set forth in the Final Office Action (mailed October 20, 2016)
("Final Act."), the Appeal Brief (filed July 7, 2017) ("Appeal Br."), the
Answer (mailed October 18, 2017) ("Ans."), and the Reply Brief (filed
December 18, 201 7) ("Reply Br.") for the respective details.
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Appeal2018-001927
Application 14/115,654
at 13. Further, Appellants argue that the Examiner's motivation to combine
the teachings of Kazmi and Zhang to provide "higher data transfer speeds
and capacity to associated UMTS networks" does not explain why a person
of ordinary skill would take Zhang's indicator that a Scell is using the same
carrier as a Pcell and forward that information to a UE instead of an O&M
node. Id. at 16.
Appellants' arguments are not persuasive because they are tantamount
to an individual attack against the references. One cannot show non-
obviousness by attacking the references individually where the rejections are
based on combinations of references. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA
1981 )( explaining 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 those references). In this case, the Examiner relies
upon Kazmi for its teaching, undisputed by Appellants, of retrieving a
measure of resources utilized within a cell, and reporting the retrieved
statistical information to an O&M node. Ans. 4---6 (citing Kazmi ,r,r 98, 113,
210,243,244,249). Further, the Examiner relies upon Zhang's disclosure,
undisputed by Appellants, of handing over channels and carriers utilized by
a secondary serving cell. Id. at 7 ( citing Zhang ,r,r 80, 81 ).
We agree with the Examiner that the proposed combination of the
cited references would predictably result in a first node retrieving resources
consumed by a Pcell and Scells for transmission to an O&M node for the
purpose of network planning and node configuring. Id. at 10 ( citing Kazmi
,r 98, Zhang ,r 98). We find the Examiner's proposed combination of the
cited teachings of Kazmi and Zhang is no more than a simple arrangement of
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Appeal2018-001927
Application 14/115,654
old elements, with each performing the same function it had been known to
perform, yielding no more than one would expect from such an arrangement.
KSR, 550 U.S. at 416. The ordinarily skilled artisan, being "a person of
ordinary creativity, not an automaton," would be able to fit the teachings of
the cited references together like pieces of a puzzle to predictably result in a
first node retrieving resources consumed by a Pcell and Scells for
transmission to an O&M node for the stated purpose of network planning
and node configuring. Id. at 420-21. Because Appellants have not
demonstrated that the Examiner's proffered combination would have been
"uniquely challenging or difficult for one of ordinary skill in the art," we
agree with the Examiner that the proposed modification would have been
within the purview of the ordinarily skilled artisan. Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418). Consequently, we are satisfied that, on the record before us,
the Examiner has established by a preponderance of the evidence that the
combination of Kazmi and Zhang renders claim 17 unpatentable.
Accordingly, we are not persuaded of error in the Examiner's obviousness
rejection of claim 17.
Regarding the rejection of claims 18-31, and 33, because Appellants
have either not presented separate patentability arguments or have reiterated
substantially the same arguments as those previously discussed for
patentability of claim 1 above, those claims fall therewith. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
DECISION
For the above reasons, we affirm the Examiner's obviousness
rejection of claims 17-31, and 33.
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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
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