Ex Parte KUMMETZ et al

Patent Trial and Appeal Board

Nov 30, 2018

14452846 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/452,846 08/06/2014
135878 7590 12/04/2018
Fogg & Powers LLC/Commscope
4600 W 77th St
Suite 305
Minneapolis, MN 55435
FIRST NAMED INVENTOR
THOMAS KUMMETZ
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.
100.1348US02 6464
EXAMINER
WEI,SIREN
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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@fogglaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS KUMMETZ and ARNDT PISCHKE
Appeal 2018-003 731
Application 14/452,846 1
Technology Center 2400
Before MAHSHID D. SAADAT, JOHN A. EVANS, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner's final rejection of Claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE. 2
1 Appellants identify Andrew Wireless Systems GmbH as the real party in
interest. App. Br. 1.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed November 15, 2017, "App. Br."), the Reply
Brief (filed February 23, 2018, "Reply Br."), the Examiner's Answer
(mailed December 26, 2017, "Ans."), the Final Action (mailed May 26,
2017, "Final Act."), and the Specification (filed November 10, 2015,
Appeal 2018-003 731
Application 14/452,846
STATEMENT OF THE CASE
The claims relate to a repeater for transmitting signals between a base
station and a network terminal. See Abstract.
Invention
Claims 1, 9, and 14 are independent. An understanding of the
invention can be derived from a reading of illustrative Claim 1, which is
reproduced below with some formatting added:
1. A telecommunications system, comprising:
a master unit;
remote units;
wherein the remote units are configured to
communicate with mobile radio terminals and to
communicate with the master unit, where at least one of
the remote units including a sensor and a control circuit,
the sensor being configured to detect a parameter about a
coverage environment, the control circuit being
configured to cause the at least one of the remote units to
switch between a passive operating state and an active
operating state based on the parameter; and
wherein the at least one of the remote units
transmits signals wirelessly at a higher power in the
active operating state as compared to the passive
operating state, wherein the control circuit is further
configured to cause the at least one of the remote units to
switch between the passive operating state and the active
operating state at a rate that maintains a transmission of
downlink signals by the at least one of the remote units.
"Spec.") for their respective details.
2
Appeal 2018-003 731
Application 14/452,846
Oberholtzer
Perlman
Logan
Chen
References and Rejections
us 5,465,399
US 2005/0174960 Al
US 2007/0037610 Al
US 2008/0219214 Al
Nov. 7, 1995
Aug. 11, 2005
Feb. 15,2007
Sept. 11, 2008
1. Claims 1--4, 7-10, 12-16, 19, and 20 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Chen, Perlman, and Oberholtzer.
Final Act. 6-19.
2. Claims 5, 6, 11, 17, and 18 stand rejected under35 U.S.C. § 103 as
being unpatentable over Chen, Perlman, Oberholtzer, and Logan.
Final Act. 20-24.
ANALYSIS
We have reviewed the rejections of Claims 1-20 in light of
Appellants' arguments that the Examiner erred. We consider Appellants'
arguments seriatim, as they are presented in the Appeal Brief pages 4--16.
Allowable Subject Matter
The Examiner finds the claims recite allowable subject matter and
would distinguish over the art of Record where the independent claims are
amended to recite the remote unit transmission power in the passive
operating state being 10 to 20 db lower than in the active operating state.
Final Act. 24 ( citing Spec. 7).
3
Appeal 2018-003 731
Application 14/452,846
CLAIMS 1--4, 7-10, 12-16, 19, AND 20:
OBVIOUSNESS OVER CHEN, PERLMAN, AND OBERHOLTZER
Appellants argue this group of claims in view of independent Claim 1.
See App. Br. 7-15.
Perlman teaches away from Chen
The Examiner finds Chen substantially teaches the subject matter of
Claim 1 except that Chen does not explicitly teach: wherein the at least one
of the remote units transmits signals wirelessly at a higher power in the
active operating state as compared to the passive operating state, as claimed.
Final Act. 7. The Examiner finds Perlman, from an analogous art, teaches a
repeater/relay system and a reduction of transmission power of a repeater
from a first level to a reduced level of power. Id. The Examiner finds it
would have been obvious to one of ordinary skill in the art at the time of the
invention to have the repeater (i.e., the relay station of Chen) to set its
passive mode transmission power to a reduced level rather than switching it
completely off; the motivation would have been to allow the repeater to
mitigate interference, but to still be able to relay communications with any
linked repeaters. Id.
Appellants contend Perlman and Chen disclose two, mutually
incompatible transmission modes. App. Br. 9. According to Appellants,
Perlman teaches two transmission modes of an access point: in an
acquisition mode, an access point transmits at maximum power in order to
establish communications with repeaters at a maximum range. Id. Perlman
also teaches an active mode where to reduce interference once
communications with the repeaters has been established, the access point
transmits in a reduced-power, active mode. Id. In contrast, Appellants
4
Appeal 2018-003 731
Application 14/452,846
contend Chen teaches two transmission modes of a relay station. App. Br. 8.
In an active state, the relay station transmits signals to associated mobile
stations. Id. But in an inactive state, the relay station is turned off and no
transmit signals are permitted. Id.
Thus, according to Appellants, Chen discloses a technique for turning
off a relay station in a wide area network (WAN) to reduce inter-channel
interference between other network components, but in contrast Perlman
discloses a technique for reducing power level of an access point of a local
area network (LAN) during its normal operation to reduce multipath
interference between the access point and another network component. App.
Br. 10. Thus Appellants contend, Perlman teaches two active states; Chen,
however, teaches an active and a passive state. Thus, contend Appellants,
Chen and Perlman teach different solutions for different problems of
different types of networks implemented by affecting different components
in different ways. Id.
The Examiner finds Chen was relied on for a device that relays data
between a base station and terminal and which may be switched between an
active and a passive mode wherein the transmitter is silenced in passive
mode. Ans. 4. The Examiner cites Perlman for "a repeater (relay) that may
lower transmit power to a minimum level, but not completely off, in order to
keep a connection to chained relays." Id. (emphasis added).
Appellants contend Chen and Perlman teach away from one another
because the combination of Perlman and Chen would result in the relay
stations of Chen would not be switched off, but would always transmit and
always potentially generating inter-channel interference - which Chen seeks
to avoid. Reply Br. 2.
5
Appeal 2018-003 731
Application 14/452,846
Chen discloses an invention wherein relay stations are inactivated in
order to prevent system interference:
To avoid unnecessary interference, the present invention
proposes to have a Relay Station (RS) remain inactive or silent
( e.g. not sending preamble, pilots or any other overhead but still
listening for useful information) when there is no Mobile
Stations (MS) under the RS.
Chen ,r 12. Chen further discloses:
The present invention provides a relay station with an improved
Media Access Control (MAC) or higher control layer that can
provide lower interference by maintaining transmitter silence
when not serving any mobile stations.
Chen ,r 16. And further:
In accordance with the present invention, a RS is turned off,
inactivated, or kept silent (i.e. no transmit signals are allowed)
to lower interference in the network.
Chen ,r 20.
The combination of Perlman and Chen proposed by the Examiner
would make Chen inoperable for its purpose because, contrary to Chen, the
relay of Perlman constantly transmits, albeit at a lower power during certain
modes. The Examiner cites Perlman for "a repeater (relay) that may lower
transmit power to a minimum level, but not completely off, in order to keep a
connection to chained relays." Ans. 4 ( emphasis added).
"If references taken in combination would produce a 'seemingly
inoperative device,' ... such references teach away from the combination
and thus cannot serve as predicates for a prima facie case of obviousness."
McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001)
(citation omitted); see also In re ICON Health & Fitness, Inc., 496 F.3d
6
Appeal 2018-003 731
Application 14/452,846
1374, 1382 (Fed. Cir. 2007) ("a reference teaches away from a combination
when using it in that combination would produce an inoperative result"); In
re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (finding no reason to modify
a prior-art device where the modification would render the device
"inoperable for its intended purpose"). An obviousness analysis cannot
modify prior art in a way that disrupts the reference's contribution to the art.
"Such a change in a reference's 'principle of operation' is unlikely to
motivate a person of ordinary skill to pursue a combination with that
reference." Plas-Pakindus., Inc. v. Sulzer Mixpac AG, 600 F. App'x 755,
759 (Fed. Cir. 2015).
Independent Claims 9 and 14 recite substantially the same limitations
as Claim 1. In view of the foregoing, we decline to sustain the rejection of
Claims 1--4, 7-10, 12-16, 19, and 20.
DEPENDENT CLAIMS 5, 6, 11, 17, AND 18:
OBVIOUSNESS OVER CHEN, PERLMAN, OBERHOLTZER, AND LOGAN
Oberholtzer is not cited to cure the deficiencies of the Perlman-Chen
combination. See Ans. 7-9. In view of the foregoing, we decline to sustain
the rejection of dependent Claims 5, 6, 11, 1 7, and 18.
Because we do not sustain the Examiner's rejection of Claims 1-20
for the reasons discussed supra, we need not address Appellants' additional
arguments. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.
1984) (Finding an administrative agency is at liberty to reach a decision
based on "a single dispositive issue.").
7
Appeal 2018-003 731
Application 14/452,846
DECISION
The rejection of Claims 1-20 under 35 U.S.C. § 103 is reversed.
REVERSED
8