Samsung Electronics Co., Ltd.Download PDFPatent Trials and Appeals BoardApr 26, 20212019006939 (P.T.A.B. Apr. 26, 2021) Copy Citation 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. 15/466,197 03/22/2017 Sunheui RYOO 0202-1224-1 5662 68103 7590 04/26/2021 Jefferson IP Law, LLP 1130 Connecticut Ave., NW, Suite 420 Washington, DC 20036 EXAMINER SEFCHECK, GREGORY B ART UNIT PAPER NUMBER 2477 NOTIFICATION DATE DELIVERY MODE 04/26/2021 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): usdocketing@jeffersonip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SUNHEUI RYOO, JUNGSOO JUNG, JUNG-MIN MOON, SEUNG-HOON PARK, and BYOUNGHOON JUNG Appeal 2019-006939 Application 15/466,197 Technology Center 2400 ____________ Before JOHNNY A. KUMAR, CARL L. SILVERMAN, and JAMES W. DEJMEK, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 21–40, which constitute all pending claims. 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(a) (2018). Appellant identifies the real party in interest as Samsung Electronics Co., Ltd. Appeal Br. 2. Appeal 2019-006939 Application 15/466,197 2 STATEMENT OF THE CASE Appellant’s disclosure is directed to controlling communication of a terminal supporting a multi-radio access technology in a wireless communication system. Abstr., Spec. ¶¶ 2, 9; Figs. 10A, 19. Claim 21 is representative2 of the invention and reads as follows (emphases added): 21. A method for operating a terminal supporting multi- radio access technologies (multi-RAT) in a wireless communication system, the method comprising: receiving, from a base station through a first RAT, a signal indicating a first sequence number of packet data convergence protocol (PDCP) data to be last received from an access node through a second RAT; and transmitting, to the base station through the first RAT, a signal indicating a second sequence number of the PDCP data last received from the access node through the second RAT, wherein a successful transmission of the PDCP data from the access node through the second RAT is ensured when the second sequence number of the PDCP data last received through the second RAT is as same as the first sequence number of the PDCP data to be last received through the second RAT. Appeal Br. 12 (Claims Appendix). REFERENCES AND REJECTION The prior art relied upon by the Examiner is: 2 Based on Appellant’s arguments (Appeal Br. 4–10) and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness rejection of claims 22–40 on the basis of representative claim 21. Appeal 2019-006939 Application 15/466,197 3 Name Reference Date Yi et al. US 8,774,108 B2 July 8, 2014 Koskinen US 2014/0301188 A1 Oct. 9, 2014 Himayat et al. US 2015/0351079 A1 Dec. 3, 2015 Claims 21, 25, 26, 30, 31, 35, 36, and 40 stand rejected under 35 U.S.C. § 103 as unpatentable over Himayat and Koskinen. Final Act. 2– 9. Claims 22–24, 32–34, 27–29, and 37–39 stand rejected under 35 U.S.C. § 103 as unpatentable over Himayat, Koskinen, and Yi. Final Act. 9–10. Claims 21, 24–26, 29–31, 34–36, 39, and 40 are provisionally rejected under the doctrine of non-statutory obviousness-type double patenting (OTDP) over co-pending application U.S. Patent Application Serial No. 15/142,647. 3 Final Act. 11–12. ANALYSIS We have reviewed the Examiner’s rejection in light of Appellant’s contentions in the Appeal Brief and the Reply Brief that the Examiner has erred, as well as the Examiner’s response to Appellant’s arguments in the Appeal Brief. Arguments which Appellant could have made, but did not make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). On the record before us, we are unpersuaded the Examiner has erred. We adopt as 3 We note Appellant filed a Terminal Disclaimer on September 25, 2019. Accordingly, this rejection is moot. Therefore, this rejection of these claims is not discussed further herein. Appeal 2019-006939 Application 15/466,197 4 our own the findings, conclusions, and reasons set forth in the rejections from which the appeal is taken and in the Examiner’s Answer, and provide the following for highlighting and emphasis. In the Final Action, the Examiner finds the combination of the teachings of Himayat and Koskinen teaches the limitations of representative claim 21 and provides reasoning why one of ordinary skill in the art would have been motivated to combine the teachings. Final Act. 2–4 (citing Himayat, Fig. 7, ¶¶ 46, 49, 62–66, 69; Koskinen ¶ 55). The Examiner finds Himayat’s Figure 7 describes supporting multi- radio access technologies (multi-RAT eNB and AP 138) in a wireless communication system. Id. at 3 (citing Himayat Figs. 1, 7). The Examiner finds Himayat describes receiving, from a base station (eNB 136) through a first RAT, a signal indicating packet data convergence protocol (PDCP) data to be received from an access node through a second RAT (emphasis added). Id. (citing Himayat, Fig. 7, 725; PDCP bearer modification instruction). The Examiner finds Himayat describes transmitting, to the base station (eNB 136) through the first RAT, a signal (Fig. 7, 735, PDCP ACK) indicating PDCP data last received from the access node through the second RAT to ensure successful transmission of the PDCP data from the access node through the second RAT (Fig. 7, 730). Id. The Examiner finds Himayat teaches a PDCP layer for maintaining sequence numbers and coordinating the interworking/percentage of traffic on the primary and secondary carriers (corresponding to the first/second RATs) using in-band PDCP signaling of various control information. Id. (citing Himayat ¶¶ 46, 49, 62–66, 69). Regarding the limitation “receiving, from a base station through a first RAT, a signal indicating a first sequence number of packet data convergence Appeal 2019-006939 Application 15/466,197 5 protocol (PDCP) data to be last received from an access node through a second RAT,” the Examiner finds Himayat does not expressly show the second sequence number of PDCP data last received through the second RAT is the same as the first sequence number of PDCP data to be received through the second RAT, and relies on Koskinen for this limitation. Id. at 3– 4 (citing Koskinen ¶ 55). Appellant argues the Examiner errs in finding Himayat teaches “receiving, from a base station through a first RAT, a signal indicating . . . packet data convergence protocol (PDCP) data to be received from an access node through a second RAT.” Appeal Br. 7–8. According to Appellant, Himayat teaches distribution of a data bearer (“bearer distribution split”) between two APs and does not teach any identification of a data to be last received, or even exchanged, through any of the APs therein (using PDCP sequence numbers or otherwise). Id. at 7. According to Appellant: Thus, even assuming, arguendo, that reference Koskinen could be interpreted as describing a transmission of PDCP sequence numbers to a UE, or the use of a “PDCP sequence number of a data to be last received,” which Appellant does not concede, there is simply no reason for such teachings to be added to Himayat, as the “bearer distribution split” of Himayat relies upon, and only provides, a ratio of bearer data to be transmitted through two APs, not a “data to be last received” of the bearer data. In other words, there is simply no reason to include in Himayat’s PDCP bearer modification instruction 725 a “sequence number of PDCP data to be last received from an access node,” because the “bearer distribution split” functionality does not depend on knowing a last PDCP data. The distribution split in Himayat relates to the data that the UE 110 is to transmit to the two APs (i.e. eNB 136 and WLAN AP 138) and it is the UE 110 who determines the last packet to be transmitted to each of the APs based on the ratio. Therefore, there is no reason for the APs to know or provide to the UE a Appeal 2019-006939 Application 15/466,197 6 “sequence number of PDCP data to be last received” by the UE, as recited. Id. at 7–8. Appellant argues Himayat’s bearer modification 735 modified split ratio does not have any identification of a data last received, or even exchanged, through any of the APs therein (using PDCP sequence numbers or otherwise), much less of a particular AP. Id. at 8 (citing Himayat ¶ 85). According to Appellant, there is no reason for this ACK message to have that information, as its only purpose is to acknowledge a previously received PDCP bearer modification instruction. Id. Appellant argues, assuming, arguendo, that Koskinen could be interpreted as describing a transmission of PDCP sequence numbers to a UE, or the use of “a PDCP sequence number of a data last received,” there is no reason for such teachings to be added to Himayat, as there is no reason to include in Himayat’s PDCP bearer modification ACK message a “sequence number of PDCP data last received from an access node,” because the “bearer distribution split” functionality does not depend on knowing a last PDCP data, much less do so in this particular ACK message. Id. at 8–9. In the Answer, the Examiner finds Appellant’s arguments fail to consider the simple case scenario in which the bearer split between Himayat’s eNB 136 and AP 138, in terms of percentages, is modified between 100/0 and 0/100, effectively illustrating a handover of bearer traffic between eNB 136 and AP 138, as would be recognized by one of ordinary skill in the art. Ans. 11. The Examiner also finds Appellant’s characterization of Himayat fails to consider the teachings of paragraph 46 of Himayat, cited in the Final Rejection. Id. at 11–12. The Examiner finds Appeal 2019-006939 Application 15/466,197 7 paragraph 46 of Himayat establishes the need for “maintenance of PDCP sequence numbers . . . and/or other functions related to the PDCP layer,” including the communication of “control information (and/or other types of information) associated with the . . . communications of UE.” Id. at 11–12. In particular, the Examiner finds: Himayat only fails to show the express inclusion of PDCP sequence numbers in the modification instruction 725 and ACK 735 messages of Fig. 7, but as shown above, Himayat at least suggests the maintenance of sequence numbers during the bearer modification/handover processing between eNB 136 and AP 138. Thus, secondary reference to Koskinen is relied upon to explicitly show analogous PDCP sequence number maintenance during handover in which a forwarding status report of expected (i.e. to be last received, as claimed) PDCP sequence numbers to be received before/after handover. Therefore, the rejections based upon the combination of Himayat and Koskinen are proper and should be affirmed by the Board. Id. at 12. In the Reply Brief, Appellant reiterates and argues the Examiner errs in interpreting Himayat’s bearer modification PDCP instruction 725 and PDCP bearer modification ACK 735. Reply Br. 5–9. Appellant argues Himayat relates to distribution of a data bearer between two APs of a network for communication between the network and a terminal. Id. at 3 (citing Himayat ¶¶ 79–85, FIG. 7). Appellant argues Himayat only describes transmitting a ratio of bearer data and the Examiner’s reference to Himayat’s “maintenance of PDCP sequence numbers and/or other functions related to the PDCP layer is layer” is directed to, at best, bearer data communication between the network and the terminal as a whole, and there is no teaching or suggestion in Himayat that the terminal would need to tie or map PDCP sequence numbers of the data bearer to a particular AP. Id. at Appeal 2019-006939 Application 15/466,197 8 4. Appellant additionally argues Himayat does not expressly discuss or suggest having unique bearer modification instructions for different distribution scenarios. Id. As discussed below, we are not persuaded by Appellant’s arguments because the arguments are not based on a reasonable and broad interpretation of the disputed limitations and are based on an unreasonably narrow characterization of the teaching of the cited references. Figure 7 of Himayat describes using PDCP packets for controlling WLAN and WWAN transmission. See also Himayat ¶¶ 46, 79–85. The bearer modification instruction is output (at 725) to UE 110 (received by UE 110) via one or more PDCP packets to enable modification of the bearer split ratio between the WLAN and the WWAN bearer. Himayat ¶ 85. Himayat describes that “UE 110 may further output (at 735) [transmitted] one or more PDCP packets, indicating that UE 110 has modified the bearer split ratio (e.g., an acknowledgment (‘ACK’)).” Id. Himayat teaches the widespread use of PDCP. Himayat ¶ 46. Appellant does not dispute the teachings of Koskinen. We are not persuaded by Appellant’s arguments and agree, instead, with the findings and conclusions of the Examiner. Although Himayat describes ratios, the Examiner additionally finds the teachings are not limited to ratios and would include a handover as recognized by one of ordinary skill in the art. This is not persuasively disputed by Appellant. Moreover, claim 21 does not exclude a ratio environment. Appellant’s arguments regarding the use of PDCP are inconsistent with the broad teachings of Himayat and are not supported by evidence. Himayat ¶ 46. Additionally, the Examiner finds Himayat does not expressly show the Appeal 2019-006939 Application 15/466,197 9 second sequence number of PDCP data last received through the second RAT is the same as the first sequence number of PDCP data to be received through the second RAT, and relies on Koskinen for this limitation. Appellant does not persuasively argue the findings of the Examiner regarding the teaching of Koskinen. Appellant argues an unreasonably narrow teaching of the cited references, particularly Himayat, to attempt to limit the teaching to the express disclosures, and asserts an overly demanding standard of obviousness. However, we note: [t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). As stated by the Supreme Court, the Examiner’s obviousness rejection must be based on: [S]ome articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. . . . [H]owever, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). On the record before us, we are not persuaded by Appellant’s arguments because the Examiner provides sufficient evidence to support the findings and conclusions. Therefore, on the record before us, we conclude Appeal 2019-006939 Application 15/466,197 10 the Examiner does not err in rejecting representative claim 21, as well as independent claims 26, 31, and 36, which recite similar limitations, and dependent claims 22–25, 27–30, 32–35, and 37–40, as these claims are not argued separately. CONCLUSION For the reasons stated above, we sustain the obviousness rejections of representative claim 21 and independent claims 26, 31, and 36 which recite the disputed limitations, and dependent claims 22–25, 27–30, 32–35, and 37–40. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21, 25, 26, 30, 31, 35, 36, 40 103 Himayat, Koskinen 21, 25, 26, 30, 31, 35, 36, 40 22–24, 32– 34, 27–29, 37–39 103 Himayat, Koskinen, Yi 22–24, 32–34, 27–29, 37–39 21, 24–26, 29–31, 34– 36, 39, 40 Provisional Non- statutory OTDP4 Overall Outcome 21–40 4 The Provisional OTDP Rejection is dismissed as moot, supra (footnote 3). Appeal 2019-006939 Application 15/466,197 11 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. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation