Ex Parte Novlan et al

Patent Trials and Appeals BoardJan 31, 2019

15094975 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 15/094,975 106809 7590 Docket Clerk - SAMS P.O. Drawer 800889 Dallas, TX 75380 04/08/2016 02/04/2019 FIRST NAMED INVENTOR Thomas David Novlan 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. 2015.04.009.SRO 1023 EXAMINER MANOHARAN,MUTHUSWAMYGANAPATHY ART UNIT PAPER NUMBER 2645 NOTIFICATION DATE DELIVERY MODE 02/04/2019 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): patents@munckwilson.com munckwilson@gmail.com patent.srad@samsung.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS DAVID NOVLAN and BOON LOONG NG Appeal2018-004239 Application 15/094,975 Technology Center 2600 Before ROBERT E. NAPPI, JOHN A. JEFFERY, and MATTHEW J. McNEILL, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. STATEMENT OF THE CASE Appellants' invention pertains to user equipment (UE) that includes a transceiver configured to receive a received signal strength indicator (RSSI) measurement timing configuration (RMTC) from an eNodeB ( eNB) over an unlicensed spectrum in a licensed assisted access (LAA). The UE also 1 Appellants identify the real party in interest as Samsung Electronics Co., Ltd. App. Br. 3. Appeal2018-004239 Application 15/094,975 includes a processor that can generate (1) an average RSSI measurement, and (2) a channel occupancy measurement report including a channel occupancy ratio. The transceiver can also transmit an RSSI measurement report including items (1) and (2) to the eNB. See generally Abstract. Claim 1 is illustrative: 1. A user equipment (UE), the UE comprising: a transceiver configured to receive, from an eNodeB (eNB), a received signal strength indicator (RSSI) measurement timing configuration (RMTC) over an unlicensed spectrum in a licensed assisted access (LAA); and at least one processor configured to generate, in accordance with the received RMTC, an average RSSI measurement and a channel occupancy measurement report including a channel occupancy ratio; and the transceiver is further configured to transmit, to the eNB, an RSSI measurement report including the average RSSI measurement and the channel occupancy measurement report. THE REJECTIONS The Examiner rejected claims 1--4, 6, 10-13, 15, and 19 under 35 U.S.C. Â§ I02(a)(2) as anticipated by Vajapeyam (US 2016/0227427 Al; published Aug. 4, 2016; filed Jan. 22, 2016). Final Act. 2-3. 2 The Examiner rejected claims 5 and 14 under 35 U.S.C. Â§ 103 as unpatentable over Vajapeyam and Seo (US 2015/0029885 Al; published Jan. 29, 2015). Final Act. 3--4. 2 Throughout this opinion, we refer to (1) the Final Rejection mailed March 17, 2017 ("Final Act."); (2) the Appeal Brief filed September 12, 2017 ("App. Br."); (3) the Examiner's Answer mailed January 12, 2018 ("Ans."); and (4) the Reply Brief filed March 12, 2018 ("Reply Br."). 2 Appeal2018-004239 Application 15/094,975 The Examiner rejected claims 7, 16, and 20 under 35 U.S.C. Â§ 103 as unpatentable over Vajapeyam and Y erramalli (US 2015/0256305 Al; published Sept. 10, 2015). Final Act. 4. The Examiner rejected claims 8, 9, 17, and 18 under 35 U.S.C. Â§ 103 as unpatentable over Vajapeyam and Yum (US 2016/0065332 Al; published Mar. 3, 2016). Final Act. 5. THE ANTICIPATION REJECTION The Examiner finds that V aj apeyam discloses a UE with every recited element of claim 1 including, among other things, a processor configured to generate an average RS SI measurement and channel occupancy measurement report. Final Act. 2. Appellants argue that the relied-upon portions of Vajapeyam are not prior art to the present application that was filed on April 8, 2016 and claims priority to a provisional application filed in April 10, 2015. App. Br. 10-17; Reply Br. 2-5. Although Appellants acknowledge that Vajapeyam's corresponding provisional application was filed before the filing date of Appellants' provisional application, Appellants nonetheless contend that Vajapeyam's provisional application does not support at least the relied- upon subject matter in the rejection and, therefore, this subject matter is not prior art to the present application. App. Br. 11-15; Reply Br. 2-5. ISSUE Under Â§ 102, has the Examiner erred in rejecting claim 1 by finding that Vajapeyam anticipates all recited limitations? This issue turns on whether V aj apeyam qualifies as prior art to the claimed invention. 3 Appeal2018-004239 Application 15/094,975 ANALYSIS Claims 1, 3, 4, 6, 10---13, 15, and 19 The present application was filed April 8, 2016, and claims priority to six provisional applications, the earliest of which is U.S. Provisional Application 62/146, 107 filed on April 10, 2015 ("' 107 provisional application"). The Vajapeyam reference is a U.S. application that published on August 4, 2016, but was filed on January 22, 2016 that is before the filing date of the present application, but after Appellants' '107 provisional application filing date. Vajapeyam, however, is based on U.S. Provisional Application 62/109,921 ("'921 provisional application"), filed January 30, 2015 that is before the' 107 provisional application's filing date. Notably, if the present application and the' 107 provisional adequately provide (1) a written description of the subject matter of Appellants' claimed invention, and (2) an enabling disclosure to permit ordinarily skilled artisans to make and use the claimed invention, then Appellants would be entitled to the date of the '107 provisional application. In that event, the Examiner would have to show similar support for the relied-upon subject matter in the Vajapeyam reference and its '921 provisional application to prove that the subject matter qualifies as prior art to the claimed invention. See New Railhead Mfg., L.L.C. v. Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir. 2002); see also MANUAL OF PATENT EXAMINING PROCEDURE (MPEP) Â§Â§ 211.05(I)(A), 706.02(VI)(C) (9th ed. Rev. 08.2017, Jan. 2018). But Appellants have not shown such an entitlement to the '107 provisional application's filing date on this record ( or any other provisional 4 Appeal2018-004239 Application 15/094,975 application for that matter), nor will we presume as much, for we have no basis on this record for doing so. See Dynamic Drinkware, LLC v. Nat'! Graphics, Inc., 800 F.3d 1375, 1380 (Fed. Cir. 2015) ("[B]ecause the PTO does not examine priority claims unless necessary, the Board has no basis to presume that a reference patent is necessarily entitled to the filing date of its provisional application."). Accordingly, absent evidence to the contrary, Appellants are entitled to only the filing date of the present application: April 8, 2016. Accord Ans. 3 (finding that Appellants are entitled to only the April 8, 2016 filing date of the present application because Appellants failed to provide the support for the claimed invention in the '107 provisional application). That Appellants failed to respond to this crucial finding by the Examiner is telling in this regard. See Reply Br. 2-7. Therefore, because Vajapeyam's filing date of January 22, 2016 predates that of the present application, Vajapeyam qualifies as prior art to the claimed invention. And because Appellants do not dispute the Examiner's reliance on at least Vajapeyam's paragraph 51 in the rejection (Final Act. 2), apart from its alleged failure to qualify as prior art (see App. Br. 11-17), Appellants do not persuasively rebut the Examiner's reliance on at least that subject matter in the rejection. Because of these unrebutted findings, whether Vajapeyam's '921 provisional application supports the relied-upon subject matter is irrelevant here, for Vajapeyam's filing date predates that of the present application as noted above. Appellants' arguments in this regard are, therefore, inapposite. 5 Appeal2018-004239 Application 15/094,975 Therefore, we are not persuaded that the Examiner erred in rejecting claim 1, and claims 3, 4, 6, 10-13, 15, and 19 not argued separately with particularity. Claim 2 We also sustain the Examiner's rejection of claim 2 reciting, in pertinent part, that the channel occupancy ratio is determined based on an amount of occupied measurement time units (MTU s) exceeding at least one threshold for the average RSSI measurement, where the threshold is configured by a higher layer signal from the eNB. In the rejection, the Examiner cites Vajapeyam's paragraph 51 for anticipating this limitation. Final Act. 3. But because Appellants do not dispute the Examiner's reliance on this paragraph in the rejection apart from its alleged failure to qualify as prior art (see App. Br. 18-19), Appellants do not persuasively rebut the Examiner's reliance on at least that subject matter in the rejection for the reasons noted previously. Therefore, we are not persuaded that the Examiner erred in rejecting claim 2. THE OBVIOUSNESS REJECTIONS We also sustain the Examiner's obviousness rejections of claims 5, 7- 9, 14, 16-18, and 20. Final Act. 3-5. Because these rejections are not argued separately with particularity, we are not persuaded of error in these rejections for the reasons previously discussed. 6 Appeal2018-004239 Application 15/094,975 CONCLUSION The Examiner did not err in rejecting (1) claims 1--4, 6, 10-13, 15, and 19 underÂ§ 102, and (2) claims 5, 7-9, 14, 16-18, and 20 underÂ§ 103. DECISION We affirm the Examiner's decision to reject claims 1-20. 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)(l)(iv). AFFIRMED 7