Ex Parte Ribeiro et al

Patent Trial and Appeal BoardMar 16, 2017

13691078 (P.T.A.B. Mar. 16, 2017)

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. 13/691,078 11/30/2012 Cassio B. RIBEIRO 059864.02083 1164 11051 7590 03/20/2017 Squire Patton Boggs (US) LLP Nokia Technologies Oy 8000 Towers Crescent Drive, 14th Floor Vienna, VA 22182 EXAMINER CHOWDHURY, HARUN UR R ART UNIT PAPER NUMBER 2473 NOTIFICATION DATE DELIVERY MODE 03/20/2017 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): sonia. whitney @ squirepb.com ipgeneralty c @ squirepb .com nokia.ipr@nokia.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CASSIO B. RIBEIRO and MICHAL CIERNY Appeal 2016-001431 Application 13/691,078 Technology Center 2400 Before CARL W. WHITEHEAD, JR., JEFFREY S. SMITH, and WILLIAM M. FINK, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-001431 Application 13/691,078 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the rejection of claims 1—22. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Representative Claim 1. A method, comprising: determining a way in which a subframe in a frame structure will be used in the future; and communicating an indication to an affected device in the subframe of a current frame indicating the way the subframe will be used in a following frame, wherein the way comprises a level of usage of the subframe in the following frame. Prior Art Yin US 2013/0083736 A1 Apr. 4,2013 Examiner’s Rejections Claims 1—22 stand rejected under 35 U.S.C. § 102(e) as anticipated by Yin. ANALYSIS We adopt the findings of fact made by the Examiner in the Final Action and Examiner’s Answer as our own. We agree with the decisions reached by the Examiner for the reasons given in the Examiner’s Answer. We address following for emphasis. 2 Appeal 2016-001431 Application 13/691,078 Section 102 rejection of claim 1 Claim 1 recites “indicating ... a level of usage of the subframe in the following frame.” Yin describes adjusting subframe allocation. Abstract. Appellants contend Yin is indicating allocation, not usage. App. Br. 12; Reply Br. 5. According to Appellants, the allocation determines the kind of usage, such as upload or download, but not the level of usage. App. Br. 13. We find the scope of “a level of usage” encompasses any usage greater than zero. The allocation of subframes described by Yin implies, or “indicates,” that the allocated subframes will be used, which is “a level of usage” within the meaning of claim 1. For example, Yin describes allocating subframes based on traffic load, in order to accommodate current or anticipated traffic. Yin 99 (describing “enhancement of dynamic UL- DL allocation to support temporary subframe conversion . . . from a downlink to uplink”), 194 (same), 222 (“Special subframe 2 (S2) 659 may provide more resources for uplink transmission while maintaining all necessary downlink signaling”); Ans. 11—14. Thus, allocating subframes as described by Yin means that the subframes will be used to accommodate traffic changes, which describes “indicating ... a level of usage” within the meaning of claim 1. We further highlight anticipation “is not an ‘ipsissimis verbis’ test.” In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (citing AkzoN.V. v. United States Int’l Trade Comm ’n, 808 F.2d 1471, 1479 & n.l 1 (Fed. Cir. 1986)). “An anticipatory reference . . . need not duplicate word for word what is in the claims.” Standard Havens Prods, v. Gencor Indus., 953 F.2d 1360, 1369 (Fed. Cir. 1991). Although Yin does not use the claim term “indicating ... a level of usage” of the subframes, Appellants have not persuasively 3 Appeal 2016-001431 Application 13/691,078 distinguished the claimed “indicating ... a level of usage” from allocating additional frames to be used for accommodating traffic as described by Yin. We sustain the rejection of claim 1 under 35 U.S.C. § 102. Appellants do not provide arguments for separate patentability of claims 2-4, 9, 10, and 12—20, which fall with claim 1. Section 102 rejection of claim 5 Appellants contend Yin does not describe each subframe comprises an indicator “indicating whether the entirety of the respective subframe comprising the indication will be designated for transmission in a first or a second direction in at least a future frame” as recited in claim 5. App. Br. 15—16; Reply Br. 5—6. The Examiner finds that Table 1 and Figure 9 of Yin, along with other portions of Yin, discloses the limitations in claim 5. Ans. 17—19. In particular, the Examiner finds Figure 9 describes converting a subframe to a special subframe including an indicator (U, D, or S) indicating whether the subframe will be designated for a transmission in a first or second (uplink or downlink) direction. Ans. 18—19. Appellants do not persuasively rebut the Examiner’s findings. To the extent Appellants contend Yin does not describe the claimed “indication” (Reply Br. 5), we highlight that “the indication” of claim 5 finds antecedent basis in claim 1, which recites “an indication . . . comprises a level of usage of the subframe.” The “indication” as recited in claim 5 is described by Yin as discussed in our analysis of claim 1. We sustain the rejection of claim 5 under 35 U.S.C. § 102. 4 Appeal 2016-001431 Application 13/691,078 Section 102 rejection of claim 6 Appellants contend Yin does not describe “wherein the communicating comprises indicating a base station's intentions in a flexible subframe by at least one of a presence/absence of a signal combination of sequences, or explicitly encoding control bits into the signal” as recited in claim 6. App. Br. 16; Reply Br. 7. The Examiner finds the special subframes of Yin describe a flexible subframe within the meaning of claim 6. Ans. 20. Cumulative to the Examiner’s findings, Appellants have not provided persuasive evidence or argument to distinguish “communicating comprises indicating [by] explicitly encoding control bits into the signal” from the encoded bits communicated by the special subframes of Yin. See Yin 1222. We sustain the rejection of claim 6 under 35 U.S.C. § 102. Section 102 rejection of claim 7 Appellants contend Yin does not describe “transmitting a cell’s intentions for a flexible subframe in an over-the-air manner before or during a first downlink transmission in a given subframe.” App. Br. 17; Reply Br. 7. The Examiner finds the special subframe of Yin describes a flexible subframe that indicates the intention for the next frame. Ans. 21. Appellants have not provided persuasive evidence or argument to rebut the Examiner’s findings. We sustain the rejection of claim 7 under 35 U.S.C. § 102. 5 Appeal 2016-001431 Application 13/691,078 Section 102 rejection of claim 8 Appellants contend Yin does not describe “when it is determined that only a part of a flexible subframe bandwidth is to be used, the communicating includes providing a transmission intentions message within the subframe” as recited in claim 8, because Yin does not describe determining that only a part of the bandwidth will be used. App. Br. 17; Reply Br. 8. The Examiner finds Yin describes transmitting intentions within special subframes. Ans. 22. Cumulative to the Examiner’s findings, we highlight Appellants’ contention that Yin does not determine using only part of the bandwidth is inconsistent with Yin’s description of adjusting subframe allocation to accommodate changes in traffic discussed throughout the entire patent issued to Yin. See Abstract; Fig. 9; Table 1; Tflf 29, 99, 194, 222,315-324. We sustain the rejection of claim 8 under 35 U.S.C. § 102. Section 102 rejection of claim 11 Appellants contend Yin does not describe “adapting device-to-device communication,” because the meaning of the term device-to-device excludes devices that communicate through a radio network. App. Br. 18—20; Reply Br. 8. However, Appellants’ Specification does not provide a definition of device-to-device that excludes the interpretation given by the Examiner. See Ans. 23—25. We sustain the rejection of claim 11 under 35 U.S.C. § 102. 6 Appeal 2016-001431 Application 13/691,078 Section 102 rejection of claim 21 Appellants contend Yin does not describe “a subframe of a flexible time division duplex system” as recite in claim 1, because the sections of Yin cited by the Examiner do not mention a flexible TDD system. App. Br. 23. The Examiner finds the scope of this limitation encompasses a configuration flexible to convert a downlink subframe to a special subframe to carry uplink traffic as described by Yin. Ans. 29. Appellants contend the meaning of the claimed “flexible time division duplex system” is limited by Paragraph 27 of Appellants’ Specification. Reply Br. 9. However, Paragraph 27 discloses non-limiting examples of what a flexible time division duplex system can include. We sustain the rejection of claim 11 under 35 U.S.C. § 102. Section 102 rejection of claim 22 Appellants contend Yin does not describe “the indication indicates that there will be more downlink transmissions in the following subframe or the indication indicates that there will be less downlink transmissions in the following subframe” as recited in claim 22. App. Br. 23. The Examiner finds converting subframes to downlink or uplink subframes as described by Yin discloses this limitation. Ans. 29—30. Appellants do not persuasively rebut the Examiner’s findings. We sustain the rejection of claim 22 under 35 U.S.C. § 102. 7 Appeal 2016-001431 Application 13/691,078 DECISION The rejection of claims 1—22 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). See 37 C.F.R. § 41.50(f). AFFIRMED 8