Steve Barrett

Patent Trials and Appeals Board

Sep 27, 2019

14007191 - (D) (P.T.A.B. Sep. 27, 2019)

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.
14/007,191 09/24/2013 Steve Barrett 330875US 4260
102469 7590 09/27/2019
PARKER JUSTISS, P.C./Nvidia
14241 DALLAS PARKWAY
SUITE 620
DALLAS, TX 75254
EXAMINER
MATTIS, JASON E
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
09/27/2019 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):
docket@pj-iplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STEVE BARRETT1
____________________

Appeal 2017-010510
Application 14/007,191
Technology Center 2400
____________________

Before ST. JOHN COURTENAY III, LARRY J. HUME, and
NORMAN H. BEAMER, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Non-
Final Rejection of claims 1, 3, 4, 6–9, 11–13, 15, 16, and 18–20. Appellant
has canceled claims 2, 10, and 17. The Examiner has indicated that claims 5
and 14 are objected to but would be allowable if rewritten in independent
form. Non-Final Act. 17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellant, the real party in interest is NVIDIA Corporation.
App. Br. 3.
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STATEMENT OF THE CASE2
The Invention
Appellant’s disclosed embodiments and claimed invention relate to a
Multimedia Broadcast Multicast Service (MBMS) transmission cooperative
with relay. See Title. In particular, the invention “relates to mobile
communications networks which are arranged to communicate data to and
from mobile communications devices via a wireless access interface,” and
also “to mobile communications devices which communicate data with
mobile radio networks, relay nodes for mobile communications networks
and methods for communicating data with mobile radio networks.” Spec. 1,
ll. 1–9.
Exemplary Claims
Claims 1, 9, and 15, reproduced below (see Claims App’x), are
representative of the subject matter on appeal (formatting added for
readability; emphases added to contested prior-art limitations):
1. A mobile communications network for
communicating broadcast data to a plurality of mobile
communications devices by transmitting the broadcast data via
a wireless access interface, the mobile communications network
including
a plurality of base stations disposed throughout the
network and arranged in operation to transmit signals to mobile
communications devices attached to the base stations, and

2 Our decision relies upon Appellant’s Appeal Brief (“App. Br.,” filed
Mar. 27, 2017); Reply Brief (“Reply Br.,” filed Aug. 2, 2017); Examiner’s
Answer (“Ans.,” mailed June 2, 2017); Non-Final Office Action (“Non-
Final Act.,” mailed Oct. 26, 2016); and the original Specification (“Spec.,”
filed Sept. 24, 2013).
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a relay node arranged in operation to receive a first signal
representing the broadcast data transmitted by one or more of
the base stations and to retransmit the broadcast data as a
second signal,
the first signal being broadcast for reception by a first
mobile communications device and the relay node and the
second signal being broadcast for reception by a second mobile
communications device,
wherein the first signal is transmitted on a first channel of
the wireless access interface in only a first time slot within a
first frequency band, and the second signal is transmitted in a
second channel of the wireless access interface in a second time
slot being after the first time slot and within a second frequency
band, and
one or more of the base stations is arranged to
communicate data to a third mobile communications device in
the second channel contemporaneously with the transmission of
the broadcast data on the second channel by the relay node.
9. A mobile communications device for receiving
broadcast data from a mobile radio network, the mobile radio
network including a plurality of base stations disposed
throughout the mobile radio network and arranged in operation
to transmit a first signal representing the broadcast data to
mobile communications devices attached to the base stations
via a wireless access interface, and a relay node is arranged to
receive the first signal representing the broadcast data
transmitted by the base station and to retransmit the broadcast
data as a second signal, the mobile communications device
comprising:
a receiver which is arranged in operation:
to receive the broadcast data as the first
signal from one or more of the base stations, and
to receive the broadcast data as the second
signal from the relay node,
wherein the first signal is received from a
first channel in only a first time slot within a first
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frequency band and the second signal is received
from a second channel of the wireless access
interface in a second time slot being after the first
time slot in a second frequency band, and
the receiver is arranged to combine the first
and the second signals to recover the broadcast
data.
15. A method of communicating broadcast data to a
mobile communications device by transmitting the broadcast
data via a wireless access interface of a mobile
communications network, the mobile communications network
including a plurality of base stations disposed throughout the
network and arranged in operation to transmit signals to and
receive signals from mobile communications devices attached
to the base stations via the wireless access interface, and one or
more relay nodes arranged to receive a first signal representing
the broadcast data from by one of the base stations, and to
retransmit the broadcast data as a second signal, the method
comprising:
receiving the broadcast data as the first signal from one
or more of the base stations only in a first time slot within a
first frequency band, and/or
receiving the broadcast data as the second signal from a
relay node in a second time slot after the first time slot within a
second frequency band,
wherein the first signal is received on a first channel
and/or the second signal is received on a second channel of the
wireless access interface,
wherein the first signal is transmitted on the first channel,
and the second signal is transmitted in the second channel.
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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Osseiran et al. (“Osseiran”) US 2006/0280114 A1 Dec. 14, 2006
Cai et al. (“Cai”) US 2010/0150177 A13 June 17, 2010
Bertrand et al. (“Bertrand”) US 2010/0272006 A1 Oct. 28, 2010
Khandekar et al. (“Khandekar”) US 2011/0249611 A1 Oct. 13, 2011
Wei et al. (“Wei”) US 2012/0155361 A1 June 21, 2012
Rejections on Appeal
R1. Claims 1, 3, 6–9, 11, 15, 16, 18, and 19 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Wei,
Khandekar, and Bertrand. Non-Final Act. 4.
R2. Claims 4, 13, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Wei, Khandekar, Bertrand, and
Cai. Non-Final Act. 15.
R3. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Wei, Khandekar, Bertrand, and
Osseiran. Non-Final Act. 16.
CLAIM GROUPING
Based on Appellant’s arguments (App. Br. 8–14) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness

3 We note a typographical error in the explicit statement of the rejection in
which Cai et al. is incorrectly referenced as “US 2010/0150117 A1” instead
of “US 2010/0150177 A1.” See Non-Final Act. 15 (emphasis added). We
view this as harmless error.
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Rejection R1 of claims 1, 3, 6–8, and 19 on the basis of representative
claim 1; we decide the appeal of obviousness Rejection R1 of claims 9
and 11 on the basis of representative claim 9; and we decide the appeal of
obviousness Rejection R1 of claims 15, 16, and 18 on the basis of
representative claim 15.
Remaining claims 4, 12, 13, and 20 in Rejections R2 and R3, not
argued separately, stand or fall with the respective independent claim from
which they depend.4
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We disagree with Appellant’s arguments with respect to claims 1, 3,
4, 6–9, 11–13, 15, 16, and 18–20 and, unless otherwise noted, we
incorporate by reference herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer
in response to Appellant’s arguments. We highlight and address specific

4 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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findings and arguments regarding claims 1, 9, and 15 for emphases as
follows.
PRINCIPLES OF LAW
During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using “the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant’s specification.” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
The test for obviousness is what the combined teachings of the prior
art would have suggested to the hypothetical person of ordinary skill in the
art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
1. § 103(a) Rejection R1 of Claims 1, 3, 6–8, and 19
Issue 1
Appellant argues (App. Br. 8–10; Reply Br. 2–4) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Wei, Khandekar, and Bertrand is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a mobile communications network wherein, inter alia, “one or
more of the base stations is arranged to communicate data to a third mobile
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communications device in the second channel contemporaneously with the
transmission of the broadcast data on the second channel by the relay node,”
as recited in claim 1?
Analysis
The Examiner finds Khandekar teaches or suggests the contested
limitation of claim 1, i.e., “one or more of the base stations is arranged to
communicate data to a third mobile communications device in the second
channel contemporaneously with the transmission of the broadcast data on
the second channel by the relay node.” Non-Final Act. 6–7 (citing
Khandekar ¶¶ 34–35, 72–73, 84; Figs. 2, 9 (subframe 2)).
Appellant argues:
[T]hese portions of Khandekar, relied upon by the Office
Action as noted above, disclose arranging for a base station to
communicate to three relays. However, as noted above, pending
Claims 1 and 8 require that the communication from the base
station is to a “third mobile communications device” not a
relay. Khandekar clearly differentiates its relays 120m from its
UEs 130n. As such, Khandekar does not include the elements
the Office Action purports it does.
App. Br. 9 (emphasis added). Thus, Appellant appears to base their
argument primarily on whether or not Khandekar’s teaching of
communication between a base station and a relay meets the disputed claim
limitation of communication between a base station and a third mobile
communications device.
In response, the Examiner clarifies his finding by stating:
Khandekar discloses a wireless communication network
including multiple eNBs, which are base stations, relays, and
UEs, which are mobile communications devices (See page 2
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paragraph 30 and Figure 1 of Khandekar). Khandekar also
discloses a macro eNB 110 communicating with a relay 120a
via a backhaul uplink and a backhaul downlink, the relay
communicating with a UE 130a via an access uplink and an
access downlink, and the eNB 110 communicating with a
different UE 130g via a WAN uplink and a WAN downlink (See
page 2 paragraphs 34–35 and Figure 2 of Khandekar). Thus, it
is clear that Khandekar does disclose communication between
a base station (i.e. Macro eNB 110) and a “third mobile
communications device” (i.e. UE 130g), as claimed.
Ans. 2–3 (emphasis added). Figures 1 and 2 of Khandekar are provided
below for reference.

“FIG. 1 shows a wireless communication network 100, which may be
an LTE network or some other wireless network. Wireless network 100 may
include a number of evolved Node Bs (eNBs), relays, and other network
entities that can support communication for a number of UEs. An eNB may
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be an entity that communicates with the UEs and may also be referred to as a
base station, a Node B, an access point, etc.” Khandekar ¶ 30.

“FIG. 2 shows communication between macro eNB 110 and UE 130a
via relay 120a. . . . FIG. 2 also shows direct communication between macro
eNB 110 and a UE 130g. eNB 110 may send downlink transmission to UE
130g via a wide area network (WAN) downlink and may receive uplink
transmission from UE 130g via a WAN uplink.” Khandekar ¶¶ 34–35.
Thus, we agree with the Examiner’s finding Khandekar teaches or
suggests “one or more of the base stations is arranged to communicate data
to a third mobile communications device,” as recited in claim 1. Ans. 3.
As for the recited timing of this disclosed communication between the
base station and the third mobile communications device, i.e.,
“contemporaneously with the transmission of the broadcast data on the
second channel by the relay node” (emphasis added), the Examiner finds
that Khandekar, in paragraphs 72, 73, and 84, and Figure 9, teaches or at
least suggests a “reference to[,] during the transmission of MBSFN
subframes by a relay node (i.e. during subframe 2 of Figure 9), also
performing transmissions in the same subframe by an eNB to UEs.” Non-
Final Act. 7 (emphasis omitted). This suggestion of contemporaneous
transmission is further supported by Khandekar which teaches “[e]ach
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reserved subframe may have reduced transmit power (e.g., low or no
transmit power) from the base station in order to reduce interference to the at
least one UE communicating with the first relay.” Khandekar ¶ 84.
We note Appellant did not rebut the Examiner’s finding in this regard
in the Appeal Brief. However, Appellant belatedly argues this point
regarding transmission timing in the Reply Brief:
Appellant does not disagree that the cited portions of
Khandekar teach communicating data to a third mobile
communications device as the Examiner’s Answer asserts.
However, as noted above, pending Claims 1 and 8 are specific
in requiring that the communication from the claimed base
station to the claimed third mobile communications device must
occur at the same time the relay node broadcasts data on the
second channel.
Reply Br. 3 (emphasis added).
Arguments raised in a Reply Brief that were not raised in the Appeal
Brief or are not responsive to a shift in the Examiner’s rejection raised in the
Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellant has not shown.
Even assuming, arguendo, our reviewing court were to find this
argument timely, we are not persuaded because Appellant’s argument is not
commensurate with the scope of the claim. Specifically, we conclude the
broadest reasonable interpretation of “contemporaneously” does not require
simultaneity, i.e., occurring at the same time, as argued by Appellant.5

5 During ex parte prosecution, claims must be interpreted as broadly as their
terms reasonably allow since Applicant has the power during the
administrative process to amend the claims to avoid the prior art. In re Zletz,
893 F.2d 319, 321 (Fed. Cir. 1989).
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Moreover, Appellant fails to cite a more narrow definition of
“contemporaneously” in the Specification that supports its contention.6
For these reasons, on this record, we are not persuaded the Examiner
erred in rejecting claim 1, and grouped claims 3, 6–8, and 19 which fall
therewith. See Claim Grouping, supra.
2. § 103(a) Rejection R1 of Claims 9 and 11
Issue 2
Appellant argues (App. Br. 10–12; Reply Br. 4–6) the Examiner’s
rejection of claim 9 under 35 U.S.C. § 103(a) as being obvious over the
combination of Wei, Khandehar, and Bertrand is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a mobile communications device that includes, inter alia, “a
receiver which is arranged . . . to receive the broadcast data as the first signal
from one or more of the base stations, and to receive the broadcast data as
the second signal from the relay node,” wherein “the first signal is received
from a first channel in only a first time slot within a first frequency band and
the second signal is received from a second channel of the wireless access

6 See generally Spec. Any special meaning assigned to a term “must be
sufficiently clear in the specification that any departure from common usage
would be so understood by a person of experience in the field of the
invention.” Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473,
1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip.,
Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its own
lexicographer and assign to a term a unique definition that is different from
its ordinary and customary meaning; however, a patentee must clearly
express that intent in the written description.”).
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interface in a second time slot being after the first time slot in a second
frequency band,” as recited in claim 9?
Analysis
The Examiner finds “Wei et al. does not specifically disclose the first
and second signals being transmitted in different first and second frequency
bands” (Non-Final Act. 10), but instead finds Bertrand teaches or suggests
“the first signal is received from a first channel in only a first time slot
within a first frequency band and the second signal is received from a second
channel of the wireless access interface in a second time slot,” referring to
Bertrand at paragraph 28 as teaching “an eNB and a RN using different
frequency bands.” Id. (emphasis omitted).
In response, Appellant contends:
Wei’s UE2 and UE3 receive both first (P1) and second (P2)
signals in a same time slot. However, pending Claim 9 recites
that “wherein the first signal is received . . . only in a first time
slot” and “the second signal is received . . . in a second time slot
being after the first time slot. . .” While this embodiment of Wei
may teach that a first signal is received in a first time slot and a
second signal is received in a second time slot, this embodiment
does not teach that the first signal is received “only in a first
time slot” since P1 is received by UE2 and UE3 in both a first
and second time slot as established above. Therefore, the cited
portions of Wei, as applied by the Office Action, do not include
this element of pending Claim 9. Neither the cited portions of
Khandekar nor Bertrand have been cited to teach this element.
App. Br. 11.
In response to Appellant’s argument concerning “only in a first time
slot” quoted above, the Examiner finds “[t]he rejection is based on the
second exemplary embodiment of Wei with signal timing of the second
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embodiment being illustrated in Figure 4B of Wei, not Figure 5B, as argued
by the applicant” (Ans. 5), and further finds:
This second phase of transmission includes the UE3 using link
(3) to receive a broadcast transmission from the relay node.
Both phases of transmission for the second embodiment are
illustrated in Figure 4B of Wei wherein, during the first time
period T1 links (1), (2), and (4) are transmitted, and during the
second time period T2 links (3) and (5) are transmitted. It is
noted that in this embodiment of Wei, UE 3 only receives data
from the base station using link (4) during the first time period
and does not receive data from the base station during the
second time period. Thus, in this second embodiment of Wei,
the first signal is received by UE3 over link (4) only during the
first time slot, as claimed. Therefore, Wei does disclose an
embodiment wherein the claimed first signal being received
from a first channel in “only a first time slot”. Further this
second embodiment of Wei also allows UEs to overhear
transmissions, such that the same data may be heard from the
base station and relay node at different times such that the
overheard data may be combined to recover the broadcast data
(See pages 2-3 paragraphs 39-41 of Wei). Since Wei does
disclose embodiments teaching the claimed signal being
received from a first channel in “only a first time slot”, and
since the Applicant’s arguments are directed towards a different
embodiment, it is believed that these arguments are moot.
Ans. 5–6.
We agree with the Examiner’s finding that the combination of Wei,
Khandekar, and Bertrand teaches or suggests the contested limitation of
claim 9. We agree with the Examiner because Appellant’s arguments are
not responsive to the detailed rejection as articulated by the Examiner.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 9, nor do we
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find error in the Examiner’s resulting legal conclusion of obviousness.
Therefore, we sustain the Examiner’s obviousness rejection of independent
claim 9, and grouped claim 11 which falls therewith. See Claim Grouping,
supra.
3. § 103(a) Rejection R1 of Claims 15, 16, and 18
Issue 3
Appellant argues (App. Br. 12–13; Reply Br. 6–8) the Examiner’s
rejection of claim 15 under 35 U.S.C. § 103(a) as being obvious over the
combination of Wei, Khandekar, and Bertrand is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests “[a] method of communicating broadcast data to a mobile
communications device by transmitting the broadcast data via a wireless
access interface of a mobile communications network” that includes, inter
alia, the steps of “receiving the broadcast data as the first signal,” and
“receiving the broadcast data as the second signal,” “wherein the first signal
is received on a first channel and/or the second signal is received on a
second channel of the wireless access interface,” as recited in claim 15?
Analysis
The Examiner makes similar findings with respect to independent
claim 15 as with independent claim 9 in Issue 2, supra, and Appellant makes
limited arguments concerning independent claim 15. See App. Br. 12–13.
In particular, Appellant argues claim 16 recites a “wireless . . . technology”
as being used in the claimed mobile communications network, and should
thus be interpreted as “a singular wireless access technology.” App. Br. 12.
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In response, the Examiner finds, and we agree, “[t]here is no
limitation in these claims citing any ‘wireless access technology’ as argued.
Although the claims do disclose use of a ‘wireless access interface’, there is
no limitation regarding any specific technology used by the interface nor any
limitation that requires only a single technology to be used by the interface.
Thus, Applicant’s arguments are moot since they are not directed at the
current limitations of these claims.” Ans. 7. We agree with the Examiner
because the claim does not limit the wireless technology to a particular type,
as asserted by Appellant.
The Examiner makes further findings regarding the teachings and
suggestions of Bertrand, which we adopt as our own and incorporate herein
by reference. See Ans. 7–8.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 15, nor do
we find error in the Examiner’s resulting legal conclusion of obviousness.
Therefore, we sustain the Examiner’s obviousness rejection of independent
claim 15, and grouped claims 16 and 18 which fall therewith. See Claim
Grouping, supra.
4. Rejections R2 and R3 of Claims 4, 12, 13, and 20
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2 and R3 of claims 4, 12, 13, and 20 under
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§ 103(a) (see App. Br. 13–14), we sustain the Examiner’s rejection of these
claims. Arguments not made are waived.7
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–8) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
CONCLUSION
The Examiner did not err with respect to obviousness Rejections R1
through R3 of claims 1, 3, 4, 6–9, 11–13, 15, 16, and 18–20 under 35 U.S.C.
§ 103(a) over the cited prior art combinations of record, and we sustain the
rejections.

7 With respect to Rejection R2, Appellant merely argues, “the cited portions
of Wei, Khandekar, and Bertrand in combination with the cited portions of
Cai do not provide a prima facie case of obviousness for pending Claims 1
and 9 and claims that depend thereon. For at least this reason, the § 103(a)
rejection of Claims 4, 13, and 20 should be overturned and the claims set to
issue.” App. Br. 13. Appellant makes similar arguments for Rejection R3 of
claim 12. See Ans. 13–14.
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DECISION
We affirm the Examiner’s decision rejecting claims 1, 3, 4, 6–9, 11–
13, 15, 16, and 18–20.
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