Ex Parte LI

Patent Trial and Appeal Board

Sep 17, 2012

11191747 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD

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Ex parte WEIDONG LI
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Appeal 2010-003953
Application 11/191,747
Technology Center 2600
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Before JOHN A. JEFFERY, ERIC B. CHEN, and
JEREMY J. CURCURI, Administrative Patent Judges.

CURCURI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-003953
Application 11/191,747

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SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-32, all the claims pending in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
Claims 1, 6, 15, 20, 30, and 32 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Eudes (US 7,127,006 B2; issued Oct. 24, 2006;
filed May 31, 2002) in view of Lindoff (US 6,463,107 B1; issued Oct. 8,
2002).
Claims 2 and 16 stand rejected under 35 U.S.C. § 103(a) as obvious
over Eudes in view of Lindoff and Johnson (US 5,839,071; issued Nov. 17,
1998).
Claims 3-5 and 17-19 stand rejected under 35 U.S.C. § 103(a) as
obvious over Eudes in view of Lindoff and Bradley (US 2002/0141487 A1;
published Oct. 3, 2002).
Claims 7-14 and 21-28 stand rejected under 35 U.S.C. § 103(a) as
obvious over Eudes in view of Lindoff and Lin (US 2004/0038701 A1;
published Feb. 26, 2004).
Claims 29 and 31 stand rejected under 35 U.S.C. § 103(a) as obvious
over Eudes in view of Lindoff and Lai (US 2005/0286653 A1; published
Dec. 29, 2005; filed June 24, 2004).
We affirm.

STATEMENT OF CASE
Appellant’s invention relates to “transmitting bursts of different
modulation types within a single GSM frame, where the different
modulation types may comprise a GMSK modulated type and an 8-PSK
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modulated type.” (Abstract). Claim 1 is illustrative and reproduced below
with the key disputed limitation emphasized:
1. A method for transmitting data, the method comprising
transmitting bursts of different modulation types within a single GSM frame,
wherein said different modulation types comprise a GMSK modulated type
and an 8-PSK modulated type and said bursts of different modulation types
within said single GSM frame are communicated to or from a single mobile
device.

CONTENTIONS1
The Examiner finds that Eudes and Lindoff teach all recited
limitations of claims 1 and 15, and specifically finds that Eudes teaches
“said bursts of different modulation types within said single TDM frame are
communicated to or from a single mobile device (see [F]igure 1; base station
10 transmits the TDM frame to radio terminal 11).” (Ans. 3-4, 11-17 (citing
Eudes, Figure 1)).
Appellant argues that “the cited sections in Eudes do not disclose
‘transmitting bursts of different modulation types within a single GSM
frame ... said bursts of different modulation types within said single GSM
frame are communicated to or from a single mobile device,’ (emphasis
added),” that

1 Rather than repeat the Examiner’s positions and Appellant’s arguments in
their entirety, we refer to the following documents for their respective
details: the Appeal Brief (App. Br.) filed June 8, 2009; the Examiner’s
Answer (Ans.) mailed September 14, 2009; and the Reply Brief (Reply Br.)
filed November 12, 2009.
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Eudes only discloses transmission of frames that may comprise ‘a
succession of bursts modulated with at least two different modulation
schemes’ to ‘end-user radio terminals 11, 12, 13’ without expressly or
impliedly teaching, describing, or requiring that any of the end-user
radio terminals are operable to process and receive, in the same frame,
differently modulated bursts that are targeted for that specific end-user
radio terminal,

and that “Eudes merely discloses that each of the end-user radio terminals
11, 12, and 13 may incidentally encounter (or be exposed to) differently
modulated bursts in the same frame while receiving and processing bursts
that are actually directed to each of them.” (App. Br. 8-14, Reply Br. 5-8).
In response, the Examiner further states “Applicant's claim merely
requires that the data is transmitted/communicated to a single mobile device.
Whether or not the single mobile device receives and processes the data is
irrelevant because Applicant does not claim that the transmitted frame is
‘received and processed’ by the single mobile device.” (Ans. 12).

ISSUE
Under 35 U.S.C. § 103(a), has the Examiner erred by finding that
Eudes teaches “said bursts of different modulation types within said single
GSM frame are communicated to or from a single mobile device” (emphases
added), as recited in claims 1 and 15?

ANALYSIS
It is undisputed that the cited prior art teaches transmitting bursts of
different modulation types within a single GSM frame, wherein said
different modulation types comprise a GMSK modulated type and an 8-PSK
modulated type. (App. Br. 12, 14). The issue turns on one question: Does
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Eudes teach said bursts of different modulation types within said single
GSM frame are communicated to or from a single mobile device? The
answer to this question is driven by another question: What is the meaning
of “communicate”?
Appellant’s Specification does not define the term “communicate,”
but does indicate “[a] GSM/GPRS/EDGE system may be used to
communicate voice information and data information. GSM/GPRS/EDGE
systems may transmit vo[i]ce/data information in 200 KHz channels, and
each channel may be time-multiplexed among various mobile terminals.”
(Spec. ¶ [0025] (emphases added)). The term “communicate” is not limited
to requiring receiving and processing as Appellant argues. (App. Br. 8-14,
Reply Br. 5-8). Consistent with the Specification, a broad, but reasonable
construction of “communicate” includes transmitting. The act of
transmitting communicates to any device in the range of the transmission.
This construction comports with the plain meaning of the term
“communicate” which is defined, in pertinent subsense as “2 a : to convey
knowledge of or information about : make known.”2
With this construction, we see no error in the Examiner’s reliance on
Eudes for teaching the argued limitation. As the Examiner explains, “[b]ase
station 10 ‘transmits bursts of different modulation types within a single ...
frame ... and said bursts of different modulation types within said single
frame are communicated to ... a single mobile device,’ where radio terminal
11, or radio terminal 12, or radio terminal 13 is ‘a single mobile device.’”
(Ans. 12). Eudes, in Figure 1, by transmitting bursts to mobile devices 11,
12, and 13, shows bursts being communicated to mobile devices 11, 12, and

2 Merriam Webster’s Collegiate Dictionary (10th ed. 1997).
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13. We are therefore, not persuaded that the Examiner erred in rejecting
claims 1 and 15.
We also agree with the Examiner’s position, with regard to claims 2,
6, 16, 20, 30, and 32, that Eudes, Lindoff, and Johnson teach the claim
limitations. (Ans. 4-5, 17-19). Appellant’s argument (App. Br. 15-16,
Reply Br. 8-9) restates the claim language and argues that the claimed
elements are not disclosed in Eudes, Lindoff, and Johnson. We are not
persuaded of error in the Examiner’s position. An argument that merely
points out what a claim recites is unpersuasive. See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”). We are
therefore not persuaded that the Examiner erred in rejecting claims 2, 6, 16,
20, 30, and 32.
We also agree with the Examiner’s position, with regard to claims 3-5
and 17-19, that Eudes, Lindoff, and Bradley teach the claim limitations.
(Ans. 5-7, 19-22). The Examiner maps Bradley’s training sequence
generator 34 (Figure 1B and ¶ [0030]) to the recited “memory” in claims 3
and 17. Appellant argues that Bradley discloses training sequence generator
34 rather than memory, and that Bradley does not teach storage of data that
is transmitted as recited in claims 3 and 17. (App. Br. 16-19, Reply Br. 9-
12). The Examiner construes “memory” as “the act of retaining,” and “data”
as “items of information.” (Ans. 20). We see no error in this construction.
In paragraph [0030] of Bradley, the burst formatter 33 processes data
(information) produced by A/D 32 and data codes (information) stored or
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retained in training sequence generator 34 to produce the transmitted
information; in this way, Bradley stores data in memory to be transmitted as
claimed.
The Examiner maps Bradley’s training sequence generator 34 to the
recited “initialization portion” in claims 4 and 18, and maps Bradley’s
“normal bursts” in paragraph [0030] to the recited “data portion” in claims 5
and 19. (Ans. 6-7, 21-23). Appellant argues that the training sequence
generator 34 is not utilized to store transmitted data. (App. Br. 19, Reply Br.
9-12). As discussed above, Bradley stores data in memory to be transmitted.
In addition, although technically cumulative to Bradley, we nonetheless note
in passing that Eudes also teaches storing data that is transmitted. Skilled
artisans would recognize that the transmitted data must be stored, at least
temporarily, within the transmit chain shown in Eudes’ Figure 2. We are
therefore, not persuaded that the Examiner erred in rejecting claims 3-5 and
17-19.
We also agree with the Examiner’s position, with regard to claims 7-
14 and 21-28, that Eudes, Lindoff, and Lin teach the claim limitations.
(Ans. 7-10, 22-33). The Examiner maps Lin’s ramping up transmit power in
paragraph [0004] to the recited ramping up transmit power in claims 7 and
21. Appellant argues that Lin does not ramp up transmit power prior to
transmitting a first burst. (App. Br. 20-22, Reply Br. 12-14). We see no
error in the Examiner’s findings. Lin states in paragraph [0004] “the power
allocation gradually ramp[s] the power strength from zero to the needed
level, and then the power strength is held steadily.” (Emphasis added). By
stating that power is ramped from zero to the needed level, Lin teaches
ramping up transmit power is performed prior to transmitting a first burst.
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We also note that the claims do not specify a duration for the “ramping” and
as such any, even minimal, amount of ramping up meets the claim
limitations.
The Examiner maps Lin’s ramping down transmit power in paragraph
[0004] to the recited ramping down transmit power in claims 11 and 25.
Appellant argues that Lin does not ramp down transmit power after
transmitting a last burst. (App. Br. 22-23, Reply Br. 12-14). We see no
error in the Examiner’s findings. Lin states in para. [0004] “Subsequently,
the power allocation gradually ramps the power strength down to 0.”
(Emphasis added). By stating that power is subsequently ramped down to 0,
Lin teaches ramping down transmit power is performed after transmitting a
last burst. We also note that the claims do not specify a duration for the
“ramping” and as such any, even minimal, amount of ramping down meets
the claim limitations.
With regard to claims 8-10, 12-14, 22-24, and 26-28, Appellant’s
argument (App. Br. 22-24) restates the claim language and argues that the
claimed elements are not disclosed in Eudes, Lindoff, and Lin. We are not
persuaded of error in the Examiner’s position. See Lovin, 652 F.3d at 1357.
We are therefore, not persuaded that the Examiner erred in rejecting
claims 7-14 and 21-28.
Finally, we also agree with the Examiner’s position, with regard to
claims 29 and 31, that Eudes, Lindoff, and Lai teach the claim limitations.
(Ans. 10-11, 33). Appellant’s arguments (App. Br. 24-25, Reply Br. 14-15)
restate the claim language and argue that the claimed elements are not
disclosed in Eudes, Lindoff, and Lai, and also repeat arguments made for
claims 1 and 15. We are not persuaded of error in the Examiner’s position.
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We are therefore, not persuaded that the Examiner erred in rejecting claims
29 and 31.

DECISION
The Examiner’s decision rejecting claims 1-32 is affirmed.
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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED

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