Lantiq Deutschland GmbH

Patent Trials and Appeals BoardMar 24, 2021

2019006068 (P.T.A.B. Mar. 24, 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. 15/124,203 09/07/2016 Vladimir OKSMAN LP1946US01_INT200502WOUS 1896 148528 7590 03/24/2021 2SPL Patent Attorneys Landaubogen 3 Munich, 81373 GERMANY EXAMINER PATEL, DHARMESH J ART UNIT PAPER NUMBER 2465 NOTIFICATION DATE DELIVERY MODE 03/24/2021 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): Inteldocs_docketing@cpaglobal.com mail@2spl.de PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte VLADIMIR OKSMAN ________________ Appeal 2019-006068 Application 15/124,203 Technology Center 2400 ________________ Before LARRY J. HUME, JASON J. CHUNG, and MICHAEL T. CYGAN, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection of claims 28–38 and 40–47.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, Lantiq Deutschland GmbH is the real party in interest. Appeal Br. 1. 2 Claims 1–27 and 39 are cancelled. Appeal Br. 11, 13 (Claims Appendix). Appeal 2019-006068 Application 15/124,203 2 INVENTION The disclosed and claimed invention relates to communication devices, systems, and methods. Spec. ¶ 1. Claim 28 is illustrative of the invention and is reproduced below: 28. A device to mitigate crosstalk noise on a signal to be transmitted over a transmission line of a network, the device comprising: a transceiver configured to receive a reference noise signal that is an estimation of noise on the transmission line, wherein the transceiver is configured to determine a bit loading value of the signal that mitigates the crosstalk noise based on the reference noise signal, and wherein the transceiver is configured to receive the reference noise signal that represents non-stationary noise arising from power transitions in other transmission lines. Appeal Br. 11 (Claims Appendix) (emphases added). REJECTION The Examiner rejects claims 28–38 and 40–473 under 35 U.S.C. § 103 as being unpatentable over the combination of Oksman (US 2008/0031313 A1; published Feb. 7, 2008) and Toman (US 2009/0299742 A1; published Dec. 3, 2009). Final Act. 2–11. 3 A substantive rejection was discussed for claim 39. Final Act. 8–9. However, claim 39 was cancelled. Appeal Br. 13 (Claims Appendix). We interpret the inclusion of a rejection of claim 39 as a typographical error. We, therefore, do not include claim 39 as a rejected claim. Appeal 2019-006068 Application 15/124,203 3 ANALYSIS I. Claims 28, 35–38, 40, and 42–47 Rejected Under 35 U.S.C. § 103 The Examiner finds Oksman teaches a transceiver 108. Ans. 3–6; Final Act. 3–4 (citing Oksman ¶¶ 29, 31–33, Figs. 1, 4). The Examiner finds Toman teaches subband power estimates include three different noise estimates, one of which is far-field nonstationary noise; a multichannel noise reference supports a dynamic response to nonstationary noise that is overly reactive to changes such as the user’s position, which the Examiner maps to the limitation “reference noise signal representing non-stationary noise arising particularly from power transitions in other transmission lines” recited in claim 28. Ans. 3–6 (citing Toman ¶¶ 167–168, 304–305, 311); Final Act. 4–5 (citing Toman ¶¶ 290, 304–305). Appellant argues Toman merely teaches that the source of its non- stationary noise is due to changes in the user’s position rather than the limitation a “reference noise signal representing non-stationary noise arising particularly from power transitions in other transmission lines” recited in claim 28. Appeal Br. 6–7; Reply Br. 1–3. Appellant argues the Examiner’s citations to Toman’s paragraph 311 merely highlight noise from sources not associated with the claim language; and the description of Toman’s Figure 74 generally teaches changes in environmental noise, but fail to teach the limitation “non-stationary noise due to power fluctuation in other transmission lines.” Reply Br. 2–3.5 We disagree with Appellant. 4 Paragraphs 167 and 168 of Toman correspond to Figure 7 of Toman. 5 Appellant’s arguments pertaining to Toman’s paragraph 311 and Toman’s Figure 7 are timely because the Examiner introduced those citations in claim 28 for the first time in the Answer. Compare Ans. 3–6 (citing Toman Appeal 2019-006068 Application 15/124,203 4 As an initial matter, we note that Appellant refers us to Figure 3 and paragraphs 32 and 43 of the Specification when describing support for the disputed limitation. Appeal Br. 2 (citing Spec. ¶¶ 32, 43, Fig. 3). First, Appellant labels Figure 3 as “prior art.” Moreover, paragraph 32 discusses Figure 1 and the use of a discrete multitoned modulation technique for loading bits; however, that technique is not discussed to be limited to receiving power transmission crosstalk, but instead describes as depending “on crosstalk or other noise types.” Spec. ¶ 32. Paragraph 43 describes transceiver pairs, as shown in Figure 1. Id. ¶ 43. Similar to paragraphs 32 and 43, paragraph 34 of the Specification discusses Figure 1. Id. ¶ 34. Paragraph 34 states: Transmitter 21 and receiver 22, apart from a reference noise addition circuit 23 explained below, may be implemented as any conventional transmitter or receiver and may for example comprise filters, modulators, demodulators, amplifiers, devices for Fourier transformation or inverse Fourier transformation or any other conventional components for transmitters or receivers. Id. (emphases added). In summary, paragraph 34 discusses the transceiver as “conventional” with “any other conventional components” using non-limiting language such as “for example.” Id. Notably, the limitation “wherein the transceiver is configured to receive the reference noise signal that represents non- stationary noise arising from power transitions in other transmission lines” recited in claim 28 does not require that the transceiver also be configured to ¶¶ 167–168, 304–305, 311) with Final Act. 4–5 (citing Toman ¶¶ 290, 304– 305). Appeal 2019-006068 Application 15/124,203 5 add reference noise in the manner discussed in paragraph 34 of the Specification. Id. The Examiner relies on the combination of Oksman and Toman to teach the disputed limitation. Ans. 3–6. In particular, the Examiner relies on Oksman to teach a transceiver 108 and Toman to teach “reference noise signal representing non-stationary noise arising particularly from power transitions in other transmission lines” recited in claim 28. Ans. 3–6; Final Act. 3–5 (citing Oksman ¶¶ 29, 31–33, Figs. 1, 4). We note Appellants’ device claim 28 merely recites a transceiver “configured to receive a reference noise signal.” While features of a device may be recited either structurally or functionally, claims directed to a device must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477–78 (Fed. Cir. 1997) (Claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function.); see also In re Swinehart, 439 F.2d 210, 212– 13 (CCPA 1971); In re Danly, 263 F.2d 844, 847 (CCPA 1959). “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (emphasis in original). Appellant does not show persuasively how the combination of Oksman’s conventional transceiver 108 and Toman fail to teach the limitation “wherein the transceiver is configured to receive the reference noise signal that represents non-stationary noise arising from power transitions in other transmission lines” (emphasis added) because: (1) Appellant’s disclosed transceiver technique is disclosed to be applicable to “crosstalk or other noise types,” (2) to the extent the claimed configured Appeal 2019-006068 Application 15/124,203 6 transceiver takes into account (or receives) a reference virtual noise (RVN) when determining bit loading, the RVN is disclosed as addressing not only power transitions but also “other cases of non-stationary noise,” and (3) neither the Specification nor Appellant’s arguments provide any indication that the structure of a “transceiver configured to receive the reference noise signal that represents non-stationary noise arising from power transitions in other transmission lines” is structurally different from a transceiver configured to receive a reference noise signal that represents other cases of non-stationary noise. Spec. ¶¶ 32–34. Appellant’s sole argument is that no reference teaches a step of receiving non-stationary noise arising from power transitions; however, the claim does not recite such a step, and therefore does not require a teaching of such a step. Because the Examiner’s combination teaches a transceiver configured to receive non-stationary noise and Appellant has not shown persuasively how the transceiver of Examiner’s combination lacks any structural feature of the claimed transceiver, we are not persuaded by Appellant’s argument. Appellant does not argue claims 28, 35–38, 40, and 42–47 separately with particularity. Appeal Br. 3–9. Accordingly, we sustain the Examiner’s rejection of: (1) independent claim 28; and (2) dependent claims 35–38, 40, and 42–47 under 35 U.S.C. § 103. II. Claims 29–34 Rejected Under 35 U.S.C. § 103 The Examiner finds Toman teaches second modem 104 sets bit loading parameters based on a signal to noise ratio of received signal 410 and the obtained virtual noise signal and second modem 104 communicates bit loading parameters to first modem 102. Ans. 7 (citing Oksman ¶¶ 29, Appeal 2019-006068 Application 15/124,203 7 31–33). The Examiner finds first modem 102 and second modem 104 exchange steady state data by utilizing the set bit loading parameters, which the Examiner maps to the limitation “receive an update of the reference noise signal at showtime” recited in claim 29. Ans. 7 (citing Oksman ¶¶ 29, 31–33); Final Act. 6 (referencing claim 28’s rejection, which cites to Oksman ¶¶ 29, 31–33). Appellant argues Oksman merely teaches steps 402, 404, 412, 414, and 418 are performed during initialization (i.e., prior to showtime), but fails to teach an update of the reference noise signal is received at showtime (as opposed to initialization). Reply Br. 3; Appeal Br. 8. We disagree with Appellant. As an initial matter, we note that “as opposed to initialization” is not recited in claim 29. “[A]ppellant’s arguments fail from the outset because. . . they are not based on limitations appearing in the claims.” See In re Self, 671 F.2d at 1348 (CCPA 1982). Furthermore, Toman teaches second modem 104 sets bit loading parameters based on a signal to noise ratio of received signal 410 and the obtained virtual noise signal and second modem 104 communicates bit loading parameters to first modem 102 (i.e., an update of the reference noise signal). Ans. 7 (citing Oksman ¶¶ 29, 31–33). Then at Toman’s step 420, first modem 102 and second modem 104 exchange steady state data (i.e., the exchange of steady state data teaches the claimed “configured to receive an update” at showtime) by utilizing the set bit loading parameters, which teaches the limitation “receive an update of the reference noise signal at showtime” recited in claim 29. Ans. 7 (citing Oksman ¶¶ 29, 31–33); Final Appeal 2019-006068 Application 15/124,203 8 Act. 6 (citing Oksman ¶¶ 29, 31–33). Stated another way, Oksman teaches receiving an update during initialization and at showtime. Appellant does not argue claims 29–34 separately with particularity. Appeal Br. 7–10. Accordingly, we sustain the Examiner’s rejection of: (1) independent claim 29; and (2) dependent claims 30–34 under 35 U.S.C. § 103. III. Claim 41 Rejected Under 35 U.S.C. § 103 The Examiner finds second modem 104 sets bit loading parameters based on a signal to noise ratio of received signal 410 and the obtained virtual noise signal and second modem 104 communicates bit loading parameters to first modem 102, which the Examiner maps to the limitation “determine the bit loading such that any changes of a power spectral density in other transmission lines do not cause an increase in the crosstalk beyond a predefined signal-to-noise-ratio margin” recited in claim 41. Ans. 7–8 (citing Oksman ¶¶ 29–30); Final Act. 9 (citing Oksman ¶¶ 29–30). Appellant argues, while Oksman does state power spectral density, Oksman merely states the power spectral density of the test signal during initialization may be sent at a power spectral density set by a standardized protocol. Appeal Br. 9; Reply Br. 4. Appellant argues while Oksman mentions signal to noise ratio, Oksman merely teaches a bit loading is set based on an actual measured signal to noise ratio of a received signal, not based on an expected change in crosstalk due to determined bit loading not exceeding a specified signal to noise ratio. Appeal Br. 9; Reply Br. 4. We disagree with Appellant. As an initial matter, we note that “expected change” is not recited in claim 41. “[A]ppellant’s arguments fail from the outset because. . . they are Appeal 2019-006068 Application 15/124,203 9 not based on limitations appearing in the claims.” See In re Self, 671 F.2d at 1348 (CCPA 1982). In addition, Toman teaches utilizing a virtual noise signal to improve the performance stability of a DSL system (i.e., do not cause an increase in crosstalk beyond a predefined signal-to-noise ratio) and, in step 402, first modem transmits a signal with a power spectral density on line 105 over a number of channels. Ans. 7–8 (citing Oksman ¶ 29). Toman teaches second modem 104 sets bit loading parameters based on (i.e., determine bit loading) a signal to noise ratio of received signal 410 and the obtained virtual noise signal and second modem 104 communicates bit loading parameters to first modem 102, which at least suggests the limitation “determine the bit loading such that any changes of a power spectral density in other transmission lines do not cause an increase in the crosstalk beyond a predefined signal-to- noise-ratio margin” recited in claim 41. Ans. 7–8 (citing Oksman ¶¶ 29–30); Final Act. 9 (citing Oksman ¶¶ 29–30). Appellant does not argue claim 41 separately with particularity. Appeal Br. 8–9. Accordingly, we sustain the Examiner’s rejection of claim 41 under 35 U.S.C. § 103. We have only considered those arguments Appellant actually raised in the Briefs. Arguments Appellant could have made, but chose not to make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 28–38, 40– 47 103 Oksman, Toman 28–38, 40– 47 Appeal 2019-006068 Application 15/124,203 10 FINALITY AND RESPONSE 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). See 37 C.F.R. § 41.50(f). AFFIRMED