Ex Parte Moisio

Patent Trial and Appeal BoardJan 2, 2013

10171380 (P.T.A.B. Jan. 2, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/171,380 06/14/2002 Martti Moisio 800.0421.U1(US) 7219 10948 7590 01/02/2013 Harrington & Smith, Attorneys At Law, LLC 4 Research Drive, Suite 202 Shelton, CT 06484 EXAMINER PEREZ, ANGELICA ART UNIT PAPER NUMBER 2648 MAIL DATE DELIVERY MODE 01/02/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARTTI MOISIO ____________ Appeal 2010-007981 Application 10/171,380 Technology Center 2600 ____________ Before SCOTT R. BOALICK, BARBARA A. BENOIT, and DAVID C. McKONE, Administrative Patent Judges. McKONE, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-17, 19-36, 38 1 , 39, and 40. See Br. 2. 2 Claims 18 and 37 3 are 1 Although the Final Rejection, at 1, indicates that claim 38 is not rejected, it later indicates, at 11-13, that claim 38 is rejected. See also Ans. 11-13, 16- 17. Therefore, we treat claim 38 as rejected. 2 Throughout this opinion, we refer to the Final Rejection mailed November 25, 2008, the Appeal Brief filed November 6, 2009, and the Examiner’s Answer mailed February 17, 2010. Appeal 2010-007981 Application 10/171,380 2 objected to as being dependent on a rejected claim. See id. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention relates to allocating channels to mobile stations (such as cellular telephones) in cellular radio networks. See Spec. ¶¶ 0002, 0009. Claim 1, which is illustrative of the invention, reads as follows: 1. A method for carrying out dynamic channel allocation in a cellular radio network, comprising: grouping terminals communicating over a radio connection with a base station of the cellular radio network into two or more terminal groups on the basis of the location of the terminals, wherein the terminals that are located substantially within the same area and close to one another are placed into one group; forming a priority list for each terminal group of the radio channels in the cellular radio network from the highest quality channels as regards the terminal group, and allocating one or more radio channels from the channels on the priority list to the terminal if need be. THE REJECTIONS The Examiner relies on the following prior art in rejecting the claims: Nakajima EP 0 430 173 A2 June 5, 1991 Eriksson US 5,448,750 Sept. 5, 1994 Ishikawa EP 0 666 699 A1 Aug. 9, 1995 3 Although the Answer, at 3, states that claim 38 is objected to as dependent upon a rejected base claim, as explained above, the Answer, at 11-13, also treats claim 38 as rejected. Therefore, we treat claim 38 as rejected. Appeal 2010-007981 Application 10/171,380 3 Ayerst US 5,799,012 Aug. 25, 1998 Grubeck US 6,449,484 B1 Sept. 10, 2002 (filed Jan. 14, 1998) Claims 1-3, 20-22, and 39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ishikawa and Grubeck. See Ans. 4-6. Claims 4-9, 23-28, and 40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ishikawa, Grubeck, and Nakajima. See Ans. 6-11. Claims 10-14, 16, 19, 29-33, 35, and 38 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ishikawa, Grubeck, Nakajima, and Eriksson. See Ans. 11-13. Claims 15, 17, 34, and 36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Ishikawa, Grubeck, Nakajima, Eriksson, and Ayerst. See Ans. 13-14. ISSUE Appellant directs the arguments to claims 1, 20, and 39. See Br. 6-11. Appellant only nominally argues claims 2-17, 19, 21-36, 38, and 40 separately. See Br. 12-13. The Examiner finds that Ishikawa teaches each limitation of claims 1, 20, and 39 except for the limitation “wherein the terminals that are located substantially within the same area and close to one another are placed into one group,” recited in each of these claims. See Ans. 4-5. The Examiner finds that this limitation is “implied” in Ishikawa, but not explicitly taught. Ans. 5. However, the Examiner finds that Grubeck explicitly teaches this limitation, and concludes that it would have been obvious to combine Ishikawa’s channel allocation technique with Grubeck’s channel assignment technique “in order to optimize channel allocation by minimizing the total Appeal 2010-007981 Application 10/171,380 4 energy utilized within a coverage area.” Id. The issue is whether Ishikawa and Grubeck teach or suggest “wherein the terminals that are located substantially within the same area and close to one another are placed into one group.” See Br. 8-11. ANALYSIS REJECTION OF CLAIMS 1-3, 20-22, AND 39 UNDER 35 U.S.C. § 103(a) The Examiner finds that Grubeck explicitly teaches “wherein the terminals that are located substantially within the same area and close to one another are placed into one group.” See Ans. 5. Grubeck teaches a technique of grouping mobile stations according to their angular location, or “directional bearing,” with respect to a base station. See Ans. 5 (citing Grubeck, col. 7, l. 48–col. 8, l. 8; col. 8, ll. 50-54; col. 9, ll. 9-13). This is shown in Grubeck’s Figure 3: Figure 3 illustrates a base station BS with an antenna 310, assigning to channel CH1 mobile stations MS1 and MS2, which are shown in angular Appeal 2010-007981 Application 10/171,380 5 “sector” a1 relative to the base station BS, and assigning to channel CH2 mobile stations MS3 and MS4, which are shown in sector a2 relative to the base station BS. See also Grubeck, col. 9, ll. 9-13 (“[T]he first and the second mobile stations MS1 and MS2 should preferably be assigned to the first channel CH1 and the third and fourth mobile stations MS3 and MS4 assigned to the second channel CH2, or vice versa. FIG. 3 illustrates this assignment of the mobile stations MSI-MS4.”). Mobile stations MS2 and MS4 are depicted as farther away from the base station than mobile stations MS1 and MS3, although Grubeck does not quantify the differences. See Grubeck, Fig. 3. Appellant contests the Examiner’s finding as to independent claims 1, 20, and 39. Appellant argues that Grubeck’s “sector-based grouping . . . fails to teach or suggest that mobiles close to one another are grouped into the same group.” Br. 9-10. Appellant then illustrates an example of Grubeck’s technique with a drawing (not from Grubeck’s figures) where a mobile station MS6, although closer to mobile stations MS8 and MS9, is nevertheless grouped with mobile stations MS4 and MS5, because they reside in the same sector a2 as mobile station MS6, while mobile stations MS8 and MS9 reside in sector a3. See Br. 10-11. According to Appellant, if Grubeck were using the invention of claims 1, 20, and 39, MS6 would be grouped with MS8 and MS9 instead of MS4 and MS5. See Br. 10-11. Appellant further argues that under the Examiner’s interpretation, “per Grubeck, mobiles at distances of 100 meters and 15 kilometers will be grouped into the same group if they lie within the same sector.” Br. 10. Appellant does not cite the basis for these numerical assertions. See id. Appeal 2010-007981 Application 10/171,380 6 Appellant’s argument is unpersuasive because it is not commensurate in scope with the claims. Appellant does not cite any basis for construing “close to one another” or “same area” so narrowly as to exclude Grubeck’s groupings, even if Appellant is correct that those groupings could result in a mobile stations 15 kilometers apart being grouped together. See Br. 6-11. We agree with the Examiner that “the specification does not provide a clear definition of what near means; e.g., within meters, tens of meters, hundreds of meters, etc.” Ans. 15. Instead, as the Examiner recognizes, Appellant’s Specification describes “wherein the terminals that are located substantially within the same area and close to one another are placed into one group” very broadly. See Ans. 14 (citing Spec. ¶ 0013 4 ); see also Final Rej. 2 (quoting Spec. ¶ 0013). 5 Specifically, the Paragraph 13 of the Specification explains: Grouping can be carried out more specifically in accordance with the location information, in which case the terminals 4 We note that Appellant also cites Specification ¶ 0013 as providing a description of this limitation. See Br. 3 (citing, inter alia, Spec. p. 5, ll. 1-6). 5 Appellant argues that the Examiner “cites excerpts of Appellant’s own disclosure” and that “[i]t is unclear as to what the Examiner’s contentions are as the Examiner has provided no reasoning as to how the asserted references disclose the claimed features in light of Appellant’s disclosure.” Br. 11. Appellant then concludes that “the Examiner has provided no rationale to support the conclusion that Ishikawa and Grubeck may be combined to disclose the claimed features in light of Appellant’s disclosure.” Id. We are not persuaded by this argument. As we explain, the Examiner cites Appellant’s disclosure to illustrate the breadth of the claim language in dispute, which supports the Examiner’s finding that Grubeck discloses “wherein the terminals that are located substantially within the same area and close to one another are placed into one group.” In any case, Appellant does not meaningfully challenge the Examiner’s conclusion as to the rationale for combining Ishikawa and Grubeck. See Br. 11. Appeal 2010-007981 Application 10/171,380 7 located in the same range are preferably grouped into the same group. The grouping is based on the fact that the interference encountered by the terminals located close to one another on different radio channels are near one another. The terminal groups may vary in size, and the smallest groups comprise only one terminal and the largest groups comprise all the terminals in a particular coverage area. Spec. ¶ 0013 (emphasis added). Specification page 10, lines 8-13, also cited by Appellant as describing this limitation (see Br. 3), describes forming a “terminal group of the terminals within the same area,” but does not provide any limitation (either qualitative or quantitative) on the scope of the term “same area.” Thus, consistent with the Specification, a reasonable, albeit broad, interpretation of a “group” of terminals “located substantially within the same area and close to one another” is a group that encompasses all the terminals in a coverage area. See Spec. ¶ 0013. Under this interpretation, Grubeck’s groups, which are confined to mobile stations residing in angular “sectors,” rather than in the entirety of the coverage area, are groups of mobile stations “located substantially within the same area and close to one another.” As the Examiner finds, “Grubeck’s invention teaches . . . MS[’s] being grouped by considering proximity to each other when they fall within the boundaries of respective directional antennas and where the groups are further limited by the radio of the coverage area in relation to the BS.” Ans. 15 (citing Grubeck, Fig. 3). Appellant has not provided convincing reasons why, under the broadest reasonable interpretation, the Examiner has erred in this finding. Appellant does not separately argue claims 2, 3, 21, and 22. See Br. 12. Appeal 2010-007981 Application 10/171,380 8 Accordingly, we sustain the Examiner’s rejection of (1) claims 1, 20, and 39; (2) claims 2 and 3, which depend on claim 1; and (3) claims 21 and 22, which depend on claim 20. Because we find that Grubeck teaches “wherein the terminals that are located substantially within the same area and close to one another are placed into one group,” we do not reach Appellant’s challenge (see Br. 8-9) to the Examiner’s finding that Ishikawa “implied[ly]” teaches this limitation (Ans. 5). REJECTION OF CLAIMS 4-9, 23-28, AND 40 UNDER 35 U.S.C. § 103(a) Appellant’s arguments regarding claims 4-9, 23-28, and 40 are substantially the same as those presented for claims 1, 20, and 39. See Br. 12. Accordingly, we sustain the Examiner’s rejection of claims 4-9, 23-28, and 40 for the same reasons as given for claims 1, 20, and 39, above. REJECTION OF CLAIMS 10-14, 16, 19, 29-33, 35, AND 38 UNDER 35 U.S.C. § 103(a) Appellant’s arguments regarding claims 10-14, 16, 19, 29-33, 35, and 38 are substantially the same as those presented for claims 1, 20, and 39. See Br. 13. Accordingly, we sustain the Examiner’s rejection of claims 10- 14, 16, 19, 29-33, 35, and 38 for the same reasons as given for claims 1, 20, and 39, above. REJECTION OF CLAIMS 15, 17, 34, AND 36 UNDER 35 U.S.C. § 103(a) Appellant’s arguments regarding claims 15, 17, 34, and 36 are substantially the same as those presented for claims 1, 20, and 39. See Br. Appeal 2010-007981 Application 10/171,380 9 12-13. Accordingly, we sustain the Examiner’s rejection of claims 15, 17, 34, and 36 for the same reasons as given for claims 1, 20, and 39, above. ORDER The decision of the Examiner to reject claims 1-17, 19-36, and 38-40 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 babc