Ex Parte Vayanos et al

Patent Trial and Appeal Board

Sep 27, 2012

11149771 (P.T.A.B. Sep. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte ALKINOOS HECTOR VAYANOS and
ETIENNE F. CHAPONNIERE
________________

Appeal 2010-004787
Application 11/149,771
Technology Center 2600
________________

Before ROBERT E. NAPPI, DAVID M. KOHUT, and
JASON V. MORGAN, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004787
Application 11/149,771

2
STATEMENT OF THE CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 – 34. We have jurisdiction under 35 U.S.C. § 6(b)(1).
We affirm.
Invention
The invention relates to link control in wireless communications. See
Spec. ¶ [0002]. A receiving entity initiates a negative acknowledgement
(NAK) prohibit timer associated with a specific NAK which prevents status
reports to a transmitting entity from including a retransmission of the
specific NAK until the timer expires. See Abstract. The NAK prohibit timer
applies to the particular corrupt or lost protocol data unit (“PDU”) and
consecutive lost PDUs. See Spec. ¶ [0053]. NAKs for other, non-consecutive
corrupted PDUs are not prohibited by the NAK prohibit timer, resulting in
the creation of additional NAK prohibit timers. See Spec. ¶ [0054] and Figs.
5A – B.
Exemplary Claim (Emphasis Added)
1. A method of controlling a communication link comprising:
detecting, at a receiving entity, a corrupted packet from a
transmitting entity;
sending a negative acknowledgement (NAK) to the
transmitting entity; and
starting a NAK prohibit timer distinctly associated with
the corrupted packet and, if present, any consecutively
following corrupted packets, in response to the sending of the
NAK, wherein non-consecutively following corrupted packets
are each distinctly associated with a separate NAK prohibit
timer, and
Appeal 2010-004787
Application 11/149,771

3
further wherein the NAK prohibit timer prevents further
NAKs from being sent for the corrupted packet until the NAK
prohibit timer has expired.
Rejections
The Examiner rejects claims 1 – 4, 6, 7, 13 – 17, 19, 20, 26, 27, and
32 – 34 under 35 U.S.C. § 103(a) as being unpatentable over Seo (US
6,581,176 B1; June 17, 2003) and Chen (US 2002/0174395; Nov. 21, 2002).
Ans. 3 – 8.
The Examiner rejects claims 5, 8, 9, 18, 21, 22, and 28 under 35
U.S.C. § 103(a) as being unpatentable over Seo, Chen, and Meyer (US
2003/0191844 A1; Oct. 9, 2003). Ans. 9, 10, and 12.
The Examiner rejects claims 10 – 12, 23 – 25, and 29 – 31 under 35
U.S.C. § 103(a) as being unpatentable over Seo, Chen, and Petrovic (US
2004/0208160 A1; Oct. 21, 2004; filed Jan. 22, 2004). Ans. 10 – 13.
ISSUE
Did the Examiner err in finding that Seo teaches or suggests “starting
a NAK prohibit timer distinctly associated with the corrupted packet and, if
present, any consecutively following corrupted packets” and “wherein non-
consecutively following corrupted packets are each distinctly associated
with a separate NAK prohibit timer,” as recited in claim 1?
ANALYSIS
Claim 1 recites a method that includes the step of “starting a NAK
prohibit timer distinctly associated with the corrupted packet and, if present,
any consecutively following corrupted packets, in response to the sending of
the NAK, wherein non-consecutively following corrupted packets are each
distinctly associated with a separate NAK prohibit timer” (emphasis added).
Appeal 2010-004787
Application 11/149,771

4
The Examiner finds that Seo, which is directed to a method for transmitting
control frames and user data frames in a mobile radio communication
system, teaches this recitation because Seo teaches or suggests a receiving
station that transmits a NAK control frame, and uses a NAK prohibit timer,
in response to missed user data. See Ans. 3 (citing Seo col. 5, ll. 28 – 40 and
col. 6, ll. 26 – 49). The Examiner finds that Seo describes an isolated case
of responding to corrupt data received, but finds that it would be obvious to
an artisan of ordinary skill to repeat the procedure for additional corrupted
messages. See Ans. 3 – 4.
Appellants contend that the Examiner erred, arguing that Seo teaches
that NAK transmissions are consolidated for both consecutive and non-
consecutive corrupt data frames. See App. Br. 8 (citing Seo col. 6, ll. 34 – 36
and 42 – 49). Appellants are correct that Seo consolidates corrupt data
frames, regardless of whether they are consecutive or non-consecutive,
provided that the corrupt data frames are received before a running NAK
timer expires. See Seo col. 6, ll. 40 – 42. However, in Seo, corrupt data
frames received after the NAK timer expires would not be consolidated. See
id. Moreover, the Examiner correctly finds that starting a NAK prohibit
timer being associated with not just a corrupted packet, but also with
consecutively following corrupted packets, is moot since this extended
association is conditioned on consecutively following corrupted packets
being present. See Ans. 14. Conditional steps employed in a method claim
need not be found in the prior art if, under the broadest scenario, the method
need not invoke the steps. See Ex parte Katz, 2011 WL 514314, *4 (BPAI
2011) (citing In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004)).
Appeal 2010-004787
Application 11/149,771

5
Here, the broadest scenario includes a corrupt packet without any
consecutively following corrupt packets and without any non-consecutively
following corrupt packets before expiration of the NAK timer, followed by a
non-consecutively following corrupt packet after the expiration of the NAK
timer. In this scenario, the non-consecutively following corrupt packet
would be distinctly associated with a separate NAK prohibit timer because
the first timer had already expired. Therefore, Seo teaches or suggests
“starting a NAK prohibit timer distinctly associated with the corrupted
packet and, if present, any consecutively following corrupted packets” and
“wherein non-consecutively following corrupted packets are each distinctly
associated with a separate NAK prohibit timer,” as recited in claim 1.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 1. We also sustain the Examiner’s 35 U.S.C. § 103(a) rejections of
independent claims 14, 26, and 32, and dependent claims 2 – 13, 15 – 25, 27
– 31, 33, and 34, which Appellants do not argue separately. See App. Br 7 –
10; Reply Br. 4 – 7.
DECISION
The Examiner’s decision to reject claims 1 – 34 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)(iv).
In the event of further prosecution, we direct the Examiner’s attention
to potential 35 U.S.C. § 101 issues presented by claims 14 – 25, which are
all directed to “a computer readable media encoded with a computer
program embodying a method of controlling a communication link.” The
broadest reasonable interpretation of such claims typically covers forms of
Appeal 2010-004787
Application 11/149,771

6
transitory propagating signals per se which are non-statutory subject matter.
See 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010); Subject Matter
Eligibility of Computer Readable Media. See also In re Nuijten, 500 F.3d
1346, 1356 – 57 (Fed. Cir. 2007) (transitory embodiments are not directed to
statutory subject matter) and Interim Examination Instructions for
Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009;
p. 2, available at http://www.uspto.gov/web/offices/pac/dapp/opla/2009-08-
25_interim_101_instructions.pdf.

AFFIRMED

msc