Hoyhtya, Marko et al.

Patent Trials and Appeals BoardMar 2, 2021

2019005505 (P.T.A.B. Mar. 2, 2021)

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. 13/703,057 02/01/2013 Marko Hoyhtya PI100044USNAT 6167 136012 7590 03/02/2021 Berggren LLP One Gateway Center Suite 2600 Newark, NJ 07102 EXAMINER AHSAN, UMAIR ART UNIT PAPER NUMBER 2647 NOTIFICATION DATE DELIVERY MODE 03/02/2021 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): email@berggren-usa.com kendall.hughes@berggren-usa.com susanne.somersalo@berggren-usa.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARKO HOYHTYA, HELI SARVANKO, and JOHANNA VARTIAINEN Appeal 2019-005505 Application 13/703,057 Technology Center 2600 Before MELISSA A. HAAPALA, DAVID J. CUTITTA II, and RUSSELL E. CASS, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–18 and 20.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies TEKNOLOGIAN TUTKIMUSKESKUS VTT OY as the real party in interest. Appeal Brief filed October 16, 2018 (“Appeal Br.”) 3. 2 Claim 19 is cancelled. Appeal Br. 23. Appeal 2019-005505 Application 13/703,057 2 CLAIMED SUBJECT MATTER Summary Appellant’s claimed subject matter relates to “cognitive radios (‘CR’) arranged to sense the environment and use the discovered unused portions of the radio frequency spectrum for their own transmission.” Spec. 7:25–27.3 These devices “use history information about occupancies of radio channels for sensing free radio channels that represent unused portions of the radio frequency spectrum.” Id. at 7:27– 8:1. The “history information comprises first information gathered over a first period of time about occupancies of the radio channels and second information gathered over a second period of time about the occupancies of the radio channels” where the “first period of time can be, for example, days or weeks and the second period of time can be, for example, seconds or minutes.” Id. at 8:1–5. Illustrative Claim Claims 1, 9, 17, and 20 are independent. Claim 1, reproduced below with certain dispositive limitations at issue italicized, illustrates the claimed subject matter: 1. A device for selecting one or more resources for use from among a set of resources, the device comprising: a processing circuitry arranged to retrieve, from an external long-term database, first information representing long- term information about occupancies of the resources belonging 3 In addition to the above-noted Appeal Brief, throughout this Decision we refer to: (1) Appellant’s Specification filed December 10, 2012 (“Spec.”); (2) the Non-Final Office Action (“Non-Final Act.”) mailed October 19, 2017; and (3) the Examiner’s Answer (“Ans.”) mailed March 27, 2019. Appeal 2019-005505 Application 13/703,057 3 to the set of resources, the first information being gathered to the external long-term database over a first period of time, wherein; - the processing circuitry is arranged to obtain a first sub-set of resources selected from the set of resources on the basis of the first information, the resources belonging to the first sub-set being ones from among the set of resources which have, according to the first information, highest probabilities of matching requirements related to one or more of an estimated usage time and a needed capacity - the processing circuitry is arranged to retrieve, from an internal short-term database, second information about occupancies of the resources belonging to the first sub-set of resources, the second information being gathered to the internal short-term database over a second period of time having a non-zero temporal duration and being shorter than the first period of time, and - the processing circuitry is arranged to select a second sub-set of resources from among the first sub-set of resources on the basis of the second information, the resources belonging to the second sub-set of resources being the ones from among the first sub-set of resources which, according to the second information, have highest probabilities of matching the requirements related to one or more of the estimated usage time and the needed capacity, and wherein: - the device further comprises a sensing circuitry for sensing whether each resource belonging to the second sub-set is free for use on the moment of sensing, and - the processing circuitry is arranged to select the one or more resources for the use from among the free resources of the second subset. Appeal Br. 16–17 (Claims Appendix). Appeal 2019-005505 Application 13/703,057 4 REFERENCES The Examiner relies on the following prior art references:4 Name Reference Date Saied Abedi (“Saied”) US 2009/0191906 A1 July 30, 2009 Wu US 2010/0309317 A1 Dec. 9, 2010 Mody US 2012/0071189 A1 Mar. 22, 2012 REJECTIONS The Examiner rejects claims 1–7, 9–15, 17, 18, and 20 under 35 U.S.C. § 103(a) as being unpatentable over Mody and Saied. Non-Final Act. 3–13. The Examiner rejects claims 8 and 16 under 35 U.S.C. § 103(a) as being unpatentable over Mody, Saied, and Wu. Id. at 13–14. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The Examiner finds that Mody discloses most of the limitations of independent claim 1, but finds that “Mody does not explicitly disclose the first information representing long-term information” or disclose second information being gathered to the internal short-term database over a “second period of time being shorter than the first period of time,” as recited in claim 1. Non-Final Act. 5; Ans. 6–8. The Examiner finds Saied teaches these limitations and that motivation existed to combine the teachings of the references. Id. at 5–6 (citing Saied ¶¶ 70, 80, 82, 85, Figs. 3, 4). 4 All citations to the references use the first-named inventor only. Appeal 2019-005505 Application 13/703,057 5 Appellant argues that Saied does not teach or suggest “‘the second information being gathered to the internal short-term database over a second period of time having a non-zero temporal duration and being shorter than the first period of time,’” as recited in claim 1. Appeal Br. 14 (emphasis omitted). Specifically, Appellant argues: Saied teaches only that in the LT spectrum assignment negotiations occurs on a regular or semi-regular basis, for example every couple of minutes [0080] and in the ST spectrum assignment step negotiations occurs on a short[-]term regular or semiregular basis, for example every few seconds [0082]. Thus, Saied discloses only the time interval between the negotiations, not the timescales during which the first and second information are gathered from the negotiations. Hence, Saied does not disclose that the negotiations in LT step would be based on information gathered over a long period of time, i.e. first period of time, or that the negotiations in ST step would be based on information gathered over a short period of time, i.e. second period of time. Id. at 13 (citing Saied ¶¶ 80, 82). We find Appellant’s arguments persuasive. The portions of Saied cited by the Examiner discuss long-term (LT) spectrum assignment in which spectrum negotiations occur “on a regular or semi-regular basis, for example every couple of minutes” and short-term (ST) spectrum assignment in which spectrum negotiations occur “on a short-term regular or semi-regular basis, for example every few seconds.” Saied ¶¶ 80, 82. Accordingly, in Saied a LT spectrum assignment reallocates spectrum every few minutes and a ST spectrum assignment reallocates spectrum every few seconds. This suggests that a time interval between the LT spectrum assignment negotiations is longer than the time interval between the ST spectrum assignment negotiations. Appeal 2019-005505 Application 13/703,057 6 The Examiner, however, does not show that Saied teaches or suggests gathering of channel occupancy information during these unequal time intervals between spectrum negotiations. Accordingly, we find persuasive Appellant’s argument that Saied does not teach or suggest that “the negotiations in LT step would be based on information gathered over a long period of time, i.e. first period of time, or that the negotiations in ST step would be based on information gathered over a short period of time i.e. second period of time.” Appeal Br. 13 (emphasis added). In the Answer, the Examiner expands on the rejection, finding that: Saeid not only discloses the time interval between the negotiations, but also the timescales during which the first and second information are gathered from the negotiations. The following sections of Saeid explicitly teaches the time interval of negotiations is also equivalent to the timescale of information from the negotations, See Saeid [0157] ( c)[.] The guard bands in co-existing RANs [radio access networks] can be modified according to the map and history of the most reported troubled channels either by say a Fixed Satellite Service, or by an ISM network if either type of RAN is present, or by the spectrum manager in a WINNER-type system, to provide a better interference profile. Ans. 8 (citing Saied ¶ 157). Again, we find Appellant’s argument persuasive because the Examiner does not show that Saied’s modification of guard bands in co-existing RANs teaches or suggests that Saied’s ST spectrum assignment gathers channel occupancy information over a shorter period of time than the LT spectrum assignment. Appeal Br. 13–14. Accordingly, the Examiner has not demonstrated that the combination of Mody and Saied teaches or suggests “the second information being gathered to the internal short-term database over a second period of time Appeal 2019-005505 Application 13/703,057 7 having a non-zero temporal duration and being shorter than the first period of time,” as recited in claim 1. Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. For the reasons discussed above, and constrained by the record before us, we do not sustain the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103(a). For similar reasons, we do not sustain the Examiner’s rejection of independent claims 9, 17, and 20, which recite limitations similar to those at issue in claim 1. In addition, we do not sustain the Examiner’s rejections of claims 2–8, 10–16, 18, and 20, which depend directly or indirectly from claims 1, 9, 17, and 20. DECISION SUMMARY In summary: REVERSED Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1-7, 9-15, 17, 18, 20 103(a) Mody, Saied 1-7, 9-15, 17, 18, 20 8, 16 103(a) Mody, Saied, Wu 8, 16 Overall Outcome 1-18, 20