Ex Parte Jain

Patent Trial and Appeal BoardMar 29, 2018

11947960 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111947,960 11130/2007 18052 7590 04/02/2018 Eschweiler & Potashnik, LLC Rosetta Center 629 Euclid Ave., Suite 1000 Cleveland, OH 44114 FIRST NAMED INVENTOR Raj Kumar Jain 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. KRAUP183US 1880 EXAMINER PASIA, REDENTOR M ART UNIT PAPER NUMBER 2479 NOTIFICATION DATE DELIVERY MODE 04/02/2018 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): docketing@eschweilerlaw.com inteldocs _ docketing@cpaglobal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RAJ KUMAR JAIN Appeal2017-009000 Application 11/947,960 1 Technology Center 2400 Before ROBERT E. NAPPI, DAVID M. KOHUT, and LYNNE E. PETTIGREW, Administrative Patent Judges. KOHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1--4, 6, 7, 9--19, and 22-29. 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 According to Appellant, the real party in interest is Lantiq Beteiligungs - GmbH & Co. KG. App. Br. 1. 2 Claims 5, 8, 20, and 21 were previously cancelled. Appeal2017-009000 Application 11/947,960 INVENTION Appellant's invention relates to an access point with one or more channel paths for processing data streams according to a first standard in a first frequency band and a second standard in a second frequency band. Spec. i-fi-1 3, 13. CLAIMED SUBJECT MATTER Claims 1, 11, and 18 are independent. Claim 1 is representative and is reproduced below. 1. An access point, comprising: a media access control layer (MAC) circuitry configured to provide a data stream to a physical layer (PHY) circuitry; and the physical layer (PHY) circuitry configured to split the data stream into a first set of one or more encoding data streams according to a first IEEE 802.11 standard in a first group of one or more channel paths in a first frequency band; and a second set of one or more encoding data streams according to a second IEEE 802.11 standard in a second group of one or more channel paths in a second frequency band, wherein the first frequency band is different than the second frequency band and the first IEEE 802 .11 standard is different from the second IEEE 802.11 standard; and the physical layer (PHY) circuitry further configured to divide the first set of one or more encoding data streams into data streams over a first series of frequency sub-bands; and the second set of one or more encoding data streams into data streams over a second series of frequency sub-bands. 2 Appeal2017-009000 Application 11/947,960 Independent claims 11 and 18 recite similar limitations as claim 1, and Appellant argues they are allowable for the same reasons as argued for claim 1. App. Br. 6-7. REJECTIONS AT ISSUE The Examiner rejected claims 1--4, 6, 7, 9-11, 18, 19, and 26-29 under 35 U.S.C. Â§ 103(a) as unpatentable over Li (U.S. 8,660, 105; issued Feb. 25, 2014) and Shao (U.S. 2005/0058212; published Mar. 17, 2005). The Examiner rejected claims 12-15, 22, and 23 under 35 U.S.C. Â§ 103(a) as unpatentable over Li, Shao, and Proctor (U.S. 2006/0193271; published Aug. 31, 2006). The Examiner rejected claims 16, 17, 24, and 25 under 35 U.S.C. Â§ 103(a) as unpatentable over Li, Shao, Proctor, and May (U.S. 2004/0125787; published July 1, 2004). ISSUES Appellant's arguments present us with the following issues: I. Did the Examiner err in finding the combination of Li and Shao teaches or suggests a. first and second IEEE 802 .11 standards, and b. first and second groups of channel paths in first and second frequency bands, as required by claim 1? II. Did the Examiner err in concluding that it would have been obvious to combine the teachings of Li and Shao? 3 Appeal2017-009000 Application 11/947,960 ANALYSIS Regarding independent claim 1, Appellant argues the combination of Li and Shao fails to teaches or suggest (a) using different IEEE 802 .11 standards and (b) first and second frequency bands. Specifically, Appellant argues Shao does not teach or suggest first and second data streams using first and second IEEE 802.11 standards. App. Br. 4--5; Reply Br. 2-3. Appellant argues that while Shao lists available IEEE 802.11 standards, the data streams use only one of the available standards. App. Br. 6; Reply Br. 3. In addition, Appellant argues Li does not teach or suggest the data streams are split into first and second groups of channel paths in first and second different frequency bands, as required in claim 1. 3 App. Br. 8. Appellant's arguments are not persuasive. Issue I.a. The Examiner cites to Shao, paragraph 40, which states "multicarrier transmitter 100 (FIG. 1) may transmit and multicarrier receiver 400 may receive radiofrequency (RF) communications in accordance with specific communication standards, such as the Institute of Electrical and Electronics Engineers (IEEE) standards that includes IEEE 802.11 (a), 802.11 (b), 802.11 (g/h) and/or 802.11 (n) standards." Shao i-f 40; see Final Act. 5; Ans. 22. Appellant argues Shao simply is listing available standards from which to choose (App. Br. 6; Reply Br. 3) while the Examiner concludes that the "and/or" conjunction means that one of ordinary 3 Claim 2 recites: "The access point of claim 1, wherein the first group of channel paths are configured as a first virtual transmit PHY operating according to the first IEEE 802.11 standard; and wherein the second group of channel paths are configured as a second virtual transmit PHY operating according to the second IEEE 802.11 standard." App. Br. 10, Claims App'x. We note that in section VII.A.ii of the Appeal Brief regarding claim 2, Appellant does not present argument directed to the limitations of claim 2, but presents further arguments to limitations in claim 1. 4 Appeal2017-009000 Application 11/947,960 skill in the art would interpret this as being able to select one or more standards. Final Act. 5; Ans. 22. We note, however, that the Shao reference uses the "and/or" conjunction in a similar manner numerous times throughout the specification, including in paragraph 40. For instance, Shao states, "Multicarrier transmitter[] and/or multicarrier receiver[] may be part of a ... device that may receive and/or transmit information wirelessly." Shao i-f 40. That is, as commonly understood, Shao states that the transmitter may be part of a device that transmits; the receiver may be part of a device that receives; or the transmitter and receiver may be part of a device that transmits and receives. A preponderance of the evidence supports the Examiner's findings that Shao uses the "and/or" conjunction as commonly understood. See Final Act. 5; Ans. 22; Shao i-f 40. Therefore, we agree with the Examiner that Shao's list of available IEEE standards are not mutually exclusive and one, any subset of, or all choices may be selected. Moreover, we note that the IEEE 802 .11 (g/h) standard, included in Shao' s list, comprises two different standards (IEEE 802 .11 (g) and IEEE 802 .11 (h)) which operate on different frequency bands. See Shao i-f 40. Thus, even if Appellant is correct that Shao can only use one of the available standards from the list, Shao teaches data streams using the IEEE 802.11 (g/h) standards, which still includes two different standards in different frequency bands. Issue Lb. Appellant's argument that Li does not teach or suggest channel paths in first and second different frequency bands is unpersuasive, because Appellant does not address the rejection as proposed by the Examiner. See App. Br. 8; Final Act. 3---6; Ans. 26. The Examiner does not rely on Li to teach the disputed limitations, but rather relies on Shao to teach a multicarrier transmitter with divided channels (channel paths) that transmit signals where the spatially-diverse transmit antennas 5 Appeal2017-009000 Application 11/947,960 allow different frequencies (first and second different frequency bands) on the channels. See Final Act. 5---6; Ans. 21-22. The Examiner concludes that it would have been obvious to modify Li to include channel paths in first and second different frequency bands as taught by Shao. See Final Act. 5-6; Ans. 22, 26. Because Appellant has not addressed the rejection as proposed by the Examiner (the combination of Li and Shao), Appellant's argument that Li lacks channel paths in first and second frequency bands is unpersuasive. Issue II. Appellant's argument that one of ordinary skill in the art would not have been motivated to combine the teachings in accordance with the claimed invention is unpersuasive because Appellant has not addressed the Examiner's specific reasoning for combining the references. See App. Br. 6. The Examiner concluded that one of ordinary skill in the art at the time of the invention would have combined Li and Shao in order to increase data rate and throughput in a wireless communication network. See Final Act. 5---6. We find the Examiner's reasoning to be sufficient and, thus, do not find Appellant's argument persuasive. For all of the reasons stated above, we are not persuaded of error and sustain the Examiner's rejection of independent claim 1 and dependent claim 2. Independent claims 11 and 18 recite similar limitations as claim 1, and Appellant presents the same arguments for them. See App. Br. 6-7. Claims 3, 4, 6, 7, 9, 10, and 26 depend from claim 1; claims 12-17, 27, and 28 depend from claim 11; and claims 19, 22-25, and 29 depend from claim 18. App. Br. 10-15, Claims Appendix. Appellant does not present separate arguments for claims 3, 4, 6, 7, 9, 10, 12-17, 19, and 22-29. App. Br. 6-7. Thus, we sustain the Examiner's rejection of claims 3, 4, 6, 7, 9, 10, 12-17, 19, and 22-29 forthe same reasons as set forth above for claim 1. 6 Appeal2017-009000 Application 11/947,960 DECISION The Examiner's rejections of claims 1--4, 6, 7, 9--19, and 22-29 are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. Â§ 1.13 6( a )(1 )(iv). AFFIRMED 7