Ex Parte Yang et al

Patent Trial and Appeal BoardMar 27, 2017

13125291 (P.T.A.B. Mar. 27, 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. 13/125,291 04/20/2011 Hongwei Yang LUTZ 201249US01 3755 48116 7590 03/29/2017 FAY STTARPF/T TTf’F.NT EXAMINER 1228 Euclid Avenue, 5th Floor HAMMONDS, MARCUS C The Halle Building Cleveland, OH 44115-1843 ART UNIT PAPER NUMBER 2645 NOTIFICATION DATE DELIVERY MODE 03/29/2017 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): docketing @ faysharpe.com ipsnarocp @ nokia. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HONGWEI YANG and DONG LI Appeal 2016-006120 Application 13/125,2911 Technology Center 2600 Before ROBERT E. NAPPI, JOHN D. HAMANN, and SCOTT E. BAIN, Administrative Patent Judges. HAMANN, Administrative Patent Judge. DECISION ON APPEAL Appellants file this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—5, 11, 12, 27—29, and 32—34. Claims 6—10, 30, and 31 were objected to as being dependent upon a rejected base claim, but were found to be allowable if rewritten in independent form. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE CLAIMED INVENTION Appellants’ claimed invention relates to wireless communications, including multi-sector cooperative communication technology. Spec. 1,11. 1 According to Appellants, the real party in interest is Alcatel Lucent. App. Br. 1. Appeal 2016-006120 Application 13/125,291 5—7. Claim 1 is illustrative of the subject matter of the appeal and is reproduced below. 1. A method of providing multi-sector cooperative communications in a wireless communication network, the method comprising: identifying one or more cooperating sectors for multi sector cooperative communications to a mobile terminal in a wireless communication network, wherein the one or more cooperating sectors are neighboring sectors to a dominating sector for wireless communications to the mobile terminal, wherein the dominating sector is formed by a dominating base station equipment associated with a base station that forms a cell which includes the dominating sector, wherein the one or more cooperating sectors are formed by a corresponding one or more cooperating base station equipment, wherein the one or more cooperating base station equipment are associated with the same cell as the dominating sector and/or with one or more different cells formed by one or more neighboring base stations; determining a preferred multi-sector cooperative communication type from at least a same-cell multi-sector cooperative communication type and a different-cell multi-sector cooperative communication type for multi-sector cooperative communications to the mobile terminal, wherein the determining is based at least in part on whether the one or more cooperating sectors are in the same cell and/or the one or more different cells, wherein the determining is also based at least in part on predefined rules in conjunction with channel quality information relating to said one or more cooperating base station equipment; cooperating among the dominating base station equipment and said one or more cooperating base station equipment for multi-sector cooperative communications to the mobile terminal using the preferred multi-sector cooperative communication type; and providing multi-sector cooperative communications to the mobile terminal from the dominating base station equipment and the one or more cooperating base station equipment using the preferred multi-sector cooperative communication type. 2 Appeal 2016-006120 Application 13/125,291 REJECTIONS ON APPEAL (1) The Examiner rejected claims 1—3, 11, 27, 28, 32, and 34 under 35 U.S.C. § 102(e) as being anticipated by Sankar et al. (US 2009/0264142 Al; published Oct. 22, 2009) (hereinafter “Sankar”). (2) The Examiner rejected claims 4, 5, 12, 29, and 33 under 35 U.S.C. § 103(a) as being unpatentable over the combination Sankar and Saito et al. (US 2008/0146238 Al; published June 19, 2008) (hereinafter “Saito”). ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ contentions that the Examiner erred. In reaching our decision, we consider all evidence presented and all arguments made by Appellants. We are not persuaded by Appellants’ arguments of Examiner error, and we incorporate herein and adopt as our own the findings, conclusions, and reasons set forth by the Examiner in (1) the May 5, 2015 Final Office Action (“Final Act.” 2—11) and (2) the March 30, 2016 Examiner’s Answer (“Ans.” 2—5). We highlight and address, however, specific findings and arguments below for emphasis. (1) Construction of the determining element Appellants argue the Examiner incorrectly construes the “determining” element of claim 1 (claims 12 and 27 similarly recite this limitation) as requiring only a “same-cell” or a “different-cell” multi-sector cooperative communication type. Reply Br. 2—3. Rather, Appellants 3 Appeal 2016-006120 Application 13/125,291 contend that this element requires both types (i.e., “same-cell” and “different-cell”). Id. The “determining” element is as follows: determining a preferred multi-sector cooperative communication type from at least a same-cell multi-sector cooperative communication type and a different-cell multi sector cooperative communication type for multi-sector cooperative communications to the mobile terminal, wherein the determining is based at least in part on whether the one or more cooperating sectors are in the same cell and/or the one or more different cells, wherein the determining is also based at least in part on predefined rules in conjunction with channel quality information relating to said one or more cooperating base station equipment; App. Br. 15 (Claim App.). Appellants argue “the actual language of the ‘determining’ element uses the ‘and’ term in combination with the ‘at least’ phrase.” Reply Br. 3. Appellants contend “where the ‘at least’ phrase is used in combination with [the] ‘and’ term . . . , the claim requires ‘determining a preferred multi sector cooperative communication type’ from at least two . . . types.” Id. The Examiner finds the relevant “claim language requires that a determination for preferred multi-sector communication type is made based at least in part on whether the cooperating sectors are in the same cell or the one or more different cells.” Ans. 2. The Examiner, thus, finds “[t]he claim does not require that the prior art teach the capability of both same-cell multi-sector cooperative communication type and different-cell multi-sector cooperative communication type.” Id. During prosecution, an application’s claims are given their broadest reasonable interpretation consistent with the specification. See In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We agree 4 Appeal 2016-006120 Application 13/125,291 with the Examiner that the broadest reasonable interpretation of the “determining element” only requires selecting one (i.e., “determining a preferred . . . type”) from at least two alternatives (i.e., “from at least a same cell . . . type and a different-cell. . . type”). App. Br. 15 (Claim App.). This interpretation is buttressed by claim language that follows in the “determining element” (i.e., “the determining is based at least in part on whether the one or more cooperating sectors are in the same cell and/or the one or more different cells” (emphasis added), which uses the disjunctive “or”). Id. Furthermore, we note Appellants argue the claim provides two alternatives. See Reply Br. 3 (“The at least two types being the same-cell multi-sector cooperative communication type and the different-cell multi sector cooperative communication type.”). Such claiming of alternatives is akin to Markush group claiming. See Abbott Labs. v. Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1280 (Fed. Cir. 2003) (“A Markush group is a listing of specified alternatives of a group in a patent claim . . . .”). We agree with the Examiner that the prior art need only teach either the same-cell or the different-cell multi-sector cooperative communication type. Cf. Fresenius USA, Inc. v. Baxter Inti, Inc., 582 F.3d 1288, 1298 (Fed. Cir. 2009) (finding “the entire element is disclosed by the prior art if one alternative in the Markush group is in the prior art”). (2) Different-cell multi-sector cooperative communication type Appellants argue the combination of Sankar and Saito, and Sankar in particular, fails to teach or suggest “a different-cell multi-sector cooperative communication type for multi-sector cooperative communications to the mobile,” as recited in claims 1, 12, and 27. See App. Br. 8—10; Reply Br. 4. 5 Appeal 2016-006120 Application 13/125,291 Appellants argue Sankar instead teaches “mitigating intercell interference in a wireless communication system using the same operating frequency across multiple neighboring coverage areas.” App. Br. 8 (citing Sankar || 102, 119-25; Fig. 6). More specifically, Appellants argue “Sankar uses a coordinated DL zone to mitigate intercell interference [, rather than] . . . providing] signals from multiple sectors to the same mobile terminal.” App. Br. 10. Appellants also argue “Sankar appears to inhibit or refrain from using any type of multi-sector communications in conjunction with the coordinated DL zone.” Id. The Examiner finds, and we agree, the combination, and Sankar in particular, teaches or suggests the disputed limitation. Ans. 2—3. The Examiner finds, and we agree, Sankar teaches or suggests base stations (i.e., different cells) having overlapping coverage areas. Ans. 2 (citing Sankar Fig. 1). We agree with the Examiner that Sankar teaches, or at least suggests, that a subscriber (e.g., mobile terminal) within the overlap area that experiences inter-cell interference can be allocated coordinated downlink resources (e.g., a downlink frequency that is shared between the base stations) by one of the base stations. Ans. 3 (citing Sankar || 34, 36, 41). We find Sankar’s teaches or at least suggests, the broadest reasonable interpretation of the disputed limitation. Sankar || 34, 36, 40-41; Fig. 1. CONCLUSION Based on our findings above, we sustain the Examiner’s rejection of claims 1 and 27, as well as claims 2, 3, 11, 28, 32, and 34, as Appellants do not provide separate arguments for their patentability. We also sustain the Examiner’s rejection of claim 12 based on our findings, as well as claims 4, 6 Appeal 2016-006120 Application 13/125,291 5, 29, and 33, as Appellants provide similar arguments for their patentability. DECISION We affirm the Examiner’s decision rejecting claims 1—5, 11, 12, 27— 29, and 32-34. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 7