Ex Parte Marchand et al

Patent Trial and Appeal BoardApr 22, 2016

12734509 (P.T.A.B. Apr. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121734,509 05/06/2010 129113 7590 04/26/2016 Motorola, a Lenovo Company 222 West Merchandise Mart Plaza Chicago, IL 60654 FIRST NAMED INVENTOR Pierre Marchand 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. NEC08636PUS 6036 EXAMINER GHOWRW AL, OMAR J ART UNIT PAPER NUMBER 2463 NOTIFICATION DATE DELIVERY MODE 04/26/2016 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.lenovo@motorola.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PIERRE MARCHAND and CHRISTOPHE ROSIK Appeal2014-003477 Application 12/734,509 Technology Center 2400 Before LINZY T. McCARTNEY, MELISSA A. HAAPALA, and MATTHEW J. McNEILL, Administrative Patent Judges. RAAP ALA, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1, 3---6, and 8-10. 1 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 Claims 2 and 7 are allowed. Pre-App. Br. Rev. 1. The Examiner withdrew the 35 U.S.C. Â§ 103(a) rejection of claims 2 and 7 and the 35 U.S.C. Â§ 112, i-f 2 rejection of claims 6-10. Adv. Act. 1; see also Ans. 2. The Examiner also withdrew the double patenting rejection following the Pre-Appeal Brief Request for Review. Pre-App. Br. Rev. 2. We consider the Examiner's statement that the 35 U.S.C. Â§ 101 rejection of claims 1-10 is withdrawn (Ans. 2) to be a typographical error because the Final Action did not contain a Â§ 101 rejection. Appeal2014-003477 Application 12/734,509 INVENTION Appellants' invention is directed to optimizing the estimation by a base station of the resource to allocate to a user equipment for transmitting uplink data in a wireless telecommunication network. Spec. i-f 1. Claim 1 is representative of the subject matter on appeal: 1. A method for triggering a transmission of Buffer Status Reporting (BSR) information from a User Equipment (UE) to a base station (BS) in a wireless telecommunication network, said UE comprising: a transmission buff er for storing data to be transmitted via a logical channel, said logical channel being provided with a priority level and a specific Prioritized Bit Rate (PBR) parameter indicating a resource level to allocate to the UE for transmitting the stored data, said BSR information representing an amount of data present in the transmission buff er of the UE and allowing said base station to schedule an amount of resource to allocate to the UE, the method comprising: triggering the transmission of Buffer Status Reporting information if new uplink data arrives in the UE transmission buffer and said new uplink data belongs to a logical channel for which a non-null PBR is defined and for which no data already existed in the UE transmission buffer. REJECTION ON APPEAL Claims 1, 3---6, and 8-10 stand rejected under 35 U.S.C. Â§ 103(a) as being obvious over the combination of Buffer Status Report and Scheduling Request Triggers (3GPP TSG RAN WG2 #59bis, NTT DoCoMo, Inc., 2 Appeal2014-003477 Application 12/734,509 NEC; Oct. 2007) ("NEC")2, Park (US 8,059,597 B2; Nov. 15, 2011), and Rosa (US 2009/0104916 Al; Apr. 23, 2009). ISSUE Appellants' contentions present the following issue: Did the Examiner err in finding the combined teachings of NEC, Park, and Rosa teach or suggest triggering the transmission of Buffer Status Reporting Information if new uplink data arrives in the UE transmission buffer and said new uplink data belongs to a logical channel for which a non-null P BR is defined and for which no data already existed in the UE transmission buffer ("triggering" limitation), as recited in independent claim 1? ANALYSIS Appellants contend the combination of NEC, Park, and Rosa does not teach or suggest the "triggering" limitation recited in claim 1. App. Br. 6-8; Reply Br. 1-3. Appellants argue Park and Rosa do not make up for NEC's failure to teach or suggest a PBR. Id. at 6. Appellants state Park merely discloses a PBR can be set per logical channel of the UE and Rosa discloses a situation in which there are sufficient resources to serve the sum of the prioritized bit rates of the RBS. Id. at 6-7. Appellants argue these teachings are different from triggering transmission of Buffer Status Reporting information or a logical channel for which a non-null PBR is defined. Appellants further argue the combination is improper because: 1) the combination of references does not recognize the problems addressed by the claimed invention; 2) one of ordinary skill in the art would not have 2 The Examiner refers to this document as both "NEC" and "NPL document R2-074173." See e.g., Final Act. 14; Ans. 3. Appellants refer to this document as "NPL document R2-07 4173." 3 Appeal2014-003477 Application 12/734,509 combined the disparate references absent impermissible hindsight; 3) there is no motivation or suggestion in the references or elsewhere to combine the references; 4) the Examiner has failed to demonstrate the combination has predictable results; and 5) the Examiner is improperly attempting to "kludge together" the references. App. Br. 7-8; Reply Br. 2-3. We are not persuaded by these arguments. The Examiner finds, and Appellants do not contest, that NEC teaches all of the "triggering" limitation except the non-null PBR. Final Act. 14-- 15;3 Ans. 3--4. The Examiner further finds Park teaches "a logical channel for which a non-null PBR is defined." Ans. 3--4. We agree with the Examiner's findings. The cited section of Park teaches a prioritized-bit rate (PBR) can be set per logical channel of the UE. Park 9:62-10:4. Appellants' argument that Park does not teach triggering transmission of a Buffer status report is not persuasive because one cannot show non- obviousness by attacking references individually where the rejection is based on a combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981 ). Nor are we persuaded by Appellants' arguments that the combination is improper. The relevant inquiry in an obviousness analysis is whether the Examiner has set forth "some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness." In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006) (cited with approval inKSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). Contrary to Appellants' 3 In rejecting claim 1, the Examiner refers to the findings made for the rejection of claim 6. Final Act. 13. 4 Appeal2014-003477 Application 12/734,509 arguments, the Examiner finds the references are from the same field of endeavor (data processing) and the motivation to combine the references is to allocate resources and to allow the packet scheduler at an eN odeB (base station) to better differentiate between radio bearers. Ans. 5 (citing Park 1:20-25; Rosa i-f 22); Final Act. 14--15. We find this to be sufficient reason to support the combination. Appellants do not provide persuasive argument or evidence that the Examiner's articulated reasoning, supported by evidence of record, is not a proper rationale for the combination or that the combination does not yield predictable results. For the reasons stated above, Appellants do not persuade us that the Examiner errs in finding the combination of NEC, Park, and Rosa teaches or suggests the "triggering" limitation recited in claim 1. Accordingly, we sustain the 35 U.S.C. Â§ 103(a) rejection of: (1) claim 1; (2) independent claim 6, for which Appellants rely on the same arguments made for claim 1 (App. Br. 8); and (3) dependent claims 2, 3, 4, 5, and 8-10, which are not separately argued. DECISION We affirm the Examiner's decision to reject claims 1-3, 4--6, and 8- 10. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 5