TELEFONAKTIEBOLAGET L M ERICSSON (PUBL)

Patent Trials and Appeals Board

Oct 14, 2020

2019003814 (P.T.A.B. Oct. 14, 2020)

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.
14/911,382 02/10/2016 Joakim Axmon 1009-1705 / P41303 US2 1044
102721 7590 10/14/2020
Murphy, Bilak & Homiller/Ericsson
1255 Crescent Green
Suite 200
Cary, NC 27518
EXAMINER
SCHEIBEL, ROBERT C
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
10/14/2020 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):
official@mbhiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte JOAKIM AXMON, MUHAMMAD KAZMI, and
TORGNY PALENIUS

Appeal 2019-003814
Application 14/911,382
Technology Center 2400

Before JASON J. CHUNG, JAMES W. DEJMEK, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, 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 39–42, 45–50, and 53–59, which are all
of the pending claims in the application. Appeal Br. 1. 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 (2018). The real party in interest is stated to be
Telefonaktiebolaget LM Ericsson (publ). Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claimed invention generally relates to configuring or performing
measurements in a mobile terminal operating in a wireless communication
network. Appeal Br. 3–5. In a Long Term Evolution (“LTE”) network,
interference between communications nodes having different powers may be
mitigated by identifying high-power resource blocks in the frequency or
time domains. Spec. 5:2–20. This identification permits neighboring cells
to schedule cell-edge users in a manner that avoids these high-power blocks,
reducing the impact of inter-cell interference. Id. at 5:20–24.
Each User Equipment (“UE”) is required to perform radio
measurements on signals transmitted by neighboring cells, including
determining the physical cell identity of the cell transmitting the measured
signals. Id. at 8:2–10. To permit each UE to perform inter-frequency and
inter-radio-access technology (“RAT”) measurements, intervals may be
required for the mobile terminal receiver to retune or reconfigure itself for a
different RAT. Id. at 8:28–31. The network must configure measurement
gaps for the UE in order to accommodate these intervals. Id. at 8:28–32.
For LTE, measurement gaps of 6 milliseconds are defined for two periodic
measurement gap patterns, the first having a repetition period of 40
milliseconds, and the second having a repetition period of 80 milliseconds.
Id. at 8:32–34, 9:1–4. The claimed method sets forth a measurement gap
pattern for configuring measurements in a mobile terminal.
Independent claim 39 is illustrative:
39. A method, in a network node of a wireless
communication network, for configuring measurements in a
mobile terminal, the method comprising:
selecting a measurement gap pattern to be used by the mobile
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terminal, the measurement gap pattern having a series of
measurement gap bursts such that the measurement gap
bursts are separated by a repetition period of 1280
milliseconds and each measurement gap burst comprises
two or more measurement gaps separated by a
measurement gap repetition period of 40 or 80
milliseconds; and
signaling the measurement gap pattern to the mobile terminal.
Appeal Br. 30 (Claims App.).
Independent claims 50, 58, and 59 recite, respectively, a method, a
network node apparatus, and mobile terminal having limitations similar to
those in claim 39. Appeal Br. 30–36. Dependent claims 40–49 and 53–57
each incorporate the limitations of their respective independent claims. Id.

REFERENCES
Name Reference Date
Lee et al. (Lee) US 8,451,757 B2 May 28, 2013
Drazynski et al.
(Drazynski)
US 2014/044003 A1 Feb. 13, 2014
Kim et al. (Kim) US 9,167,416 B2 Oct. 20, 2015
Kazmi et al.
(Kazmi)
US 2017/0245239 A1 Aug. 24, 2017
3GPP, “3rd Generation Partnership Project; Technical Specification Group
Radio Access Network; Evolved Universal Terrestrial Radio Access (E-
UTRA); Requirements for support of radio resource management (Release
8),” 3GPP TS 36.133 V8.23.0, Sections 7.6.2.2–8.1.2.1.1, September
2013, 41–42 (hereinafter, “3GPP”).
“Discussion on gap enhancement,” Huawei, HiSilicon, 3GPP TSG-RAN
WG4 Meeting #80, R4-166020, Gothenburg, Sweden, 22-26 August 2016,
1–5 (hereinafter, “Huawei”).

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REJECTIONS
Claims 39–42, 45, 47, 50, 54, and 57–59 are rejected under 35 U.S.C.
§ 103 as being obvious over the combination of Drazynski and Kazmi.
Claims 46 and 53 are rejected under 35 U.S.C. § 103 as being obvious
over the combination of Drazynski, Kazmi, and Lee.
Claims 48, 49, 55, and 56 are rejected under 35 U.S.C. § 103 as being
obvious over the combination of Drazynski, Kazmi, and Kim.

OPINION
We have reviewed the Examiner’s obviousness rejections (Final
Act. 6–16, Ans. 3–9) in light of Appellant’s contentions of error (Appeal
Br. 3–29, Reply Br.). We are not persuaded by Appellant’s contention that
the Examiner erred in rejecting claims 39–42, 45–50, and 53–59 under
35 U.S.C. § 103. We begin with claim 39.
A. Claims 39, 40, 42, 45–50, and 53–59
With respect to claim 39, Appellant argues error in the Examiner’s
rejection because the combination of references does not suggest the claimed
1280 millisecond repetition period. Appeal Br. 7. Appellant argues that the
claimed repetition period is critical, that Drazynski expressly teaches away
from changing the repetition period, and that Kazmi does not lead one
having ordinary skill in the art to optimize Drazynski’s repetition period in
the claimed manner. Id. at 6. We review the Examiner’s rejection, and then
address each of Appellant’s specific contentions in turn.
The Examiner finds Drazynski teaches or suggests all of the
limitations of claim 39 except for a repetition period of 1280 milliseconds.
Final Act. 6–7. The Examiner finds Kazmi teaches or suggests that longer
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or shorter measurement intervals are desirable, to improve battery
performance or terminal response time, respectively. Id. at 7. The Examiner
further finds Kazmi teaches or suggests a measurement period that may be
reduced from 10.28 seconds to 200 milliseconds. Id. at 3 (citing Kazmi
¶ 142). The Examiner states that Kazmi describes modifying the
measurement pattern for a terminal in certain situations to “facilitate
performance of the measurements,” such as when “an emergency situation
exists.” Id. at 2–3 (citing Kazmi, Abstr., ¶ 159). The Examiner further finds
it would have been obvious to “modify Kazmi to at time shorten this
measurement gap burst repetition period to improve the terminal response
time” to teach the claimed invention, and thereby, “balance the need for
improving battery performance and the need to improve response time.” Id.
Appellant characterizes Drazynski as performing inter-frequency
measurements by a UE to determine whether the signal from a nearby small
cell is strong enough to support a handover to that small cell, which is used
to provide extra capacity. Appeal Br. 7. Appellant notes that Drazynski
requires the measurement interval to be short so as to free up network
resources, but not so short as to drain the UE’s battery and interfere with
normal data transmission and reception. Id. at 8. Appellant points to
Drazynski’s description of the repetition period as being “one minute or a
half minute, for example.” Id. at 10.
Appellant first argues that Drazynski teaches away from substantially
shorter repetition periods, as this would drain the UE’s battery. Id.
Appellant argues that Drazynski’s repetition period of “one minute or a half
minute” represents a “carefully considered balance” of the advantages of
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quick detection of nearby small cells and the disadvantages of reduced
battery life and reductions in data throughput. Id. at 11.
Where the prior art “teaches away from combining certain known
elements, discovery of a successful means of combining them is more likely
to be nonobvious.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
A prior art reference may teach away from combining elements where the
reference criticizes, discredits, or otherwise discourages the claimed
invention. In re Fulton, 391 F.3d 1195 (Fed. Cir. 2004). A general
preference for a different range than claimed has been found not to teach
away from that range where the reference also expresses benefits associated
with the claimed range. In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997)
(finding a statement that “‘[i]n general, the thickness of the protective layer
should be not less than about [100 Angstroms]’ falls far short of the kind of
teaching that would discourage one of skill in the art from fabricating a
protective layer of 100 Angstroms or less[,]” where the reference also
recognized benefits to keeping the protective layer as thin as possible.)
Although we agree that Drazynski teaches that some shorter repetition
period would undesirably drain the UE’s battery, Appellant has not shown
Drazynski to discourage the claimed repetition period of 1280 milliseconds.
Drazynski does not describe a repetition period that would be unacceptably
short, and whether such a period would include the claimed period of 1280
milliseconds. On the contrary, Drazynski’s discussion of the length of the
repetition period as a balance of positive and negative effects, providing
only “example” ranges, would encourage one of ordinary skill in the art to
explore repetition periods below that range. See In re Geisler, 116 F.3d at
1471 (finding the reference’s suggestion of benefits to be derived from a
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thinner layer provides motivation to explore thickness levels below that
range). Although Appellant argues that the claimed 1280 milliseconds is
substantially shorter than that provided in Drazynski’s examples, Appellant
has not shown Drazynski to provide any guideposts as to what Drazynski
would teach to be an unacceptably short period. Accordingly, Appellant has
not shown that Drazynski’s description of the benefits and drawbacks
associated with battery drainage amounts to criticizing, discrediting, or
otherwise discouraging the claimed repetition period of 1280 milliseconds.
Thus, Drazynski has not been shown to teach away from the claimed
repetition period.
Nor are we persuaded by Appellant’s argument that Kazmi teaches
away from the claimed invention by teaching shorter repetition periods only
at certain times; i.e., in response to a request for positioning. Reply Br. 7;
see also Appeal Br. 7, 15. At best, this argument shows that Kazmi
recognizes that different periods may be useful for different purposes.
Appellant’s argument does not show that Kazmi criticizes, discredits, or
otherwise discourages the repetition period used in response to a request for
positioning. The Examiner has stated, “Kazmi demonstrates that the
tradeoff between conserving battery consumption and faster response time
can, at times, be reasonably tilted in favor of faster response times and
suggests a range that matches the claimed value for the repetition period.”
Ans. 7. We agree with this representation of the teachings of Kazmi, and are
not persuaded that Kazmi teaches away from the repetition period that it
describes for use in response to a request for positioning.
Appellant next argues that Kazmi describes shorter repetition periods
not in Drazynski’s context of inter-frequency measurements to detect small
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cells, but instead, in the context of performing positioning measurements.
Appeal Br. 11. Appellant argues that these are “very different”
measurements, having “very different” tradeoffs that do not involve
Drazynski’s concerns of reduced battery life or throughput. Id. at 11–12.
Appellant argues that although Kazmi may describe an inter-burst interval of
1280 milliseconds as desirable, that desirability is limited to Kazmi’s
positioning measurements, and not the inter-frequency measurements of
Drazynski. Id. at 15. Appellant characterizes the reason for the shortened
intervals in Kazmi as being in response to an explicit request for positioning
measurements, and argues that this is not relevant to the measurements of
Drazynski. Id. at 17–18.
Appellant’s claim 39 recites “measurements in a mobile terminal.”
The Specification describes “UE measurements” as performing
measurements on neighboring cells to support both handover and positioning
functions. Spec. 7:30–8:6. Appellant has characterized Drazynski as
performing handover-related measurements, and Kazmi as performing
positioning related measurements. Appeal Br. 7, 11. Accordingly, both
Drazynski and Kazmi provide teachings relevant to the claimed
“measurements in a mobile terminal.”
The test for obviousness is “not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference,” but instead “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). Accordingly, the issue is not whether
Kazmi’s shorter repetition period may be incorporated into Drazynski’s
handover measurements. The issue is what the combined teachings of
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Drazynski’s method of configuring measurements in a mobile terminal and
Kazmi’s shorter repetition period would teach or suggest to one of ordinary
skill in the art pertinent to measurements in a mobile terminal. The
Examiner finds, and Appellant agrees, “both references describe
measurements performed by UEs on neighbor cells for use at the network in
a number of different calculations”). Final Act. 3–4; Appeal Br. 21.
Appellant further agrees that “Kazmi’s techniques ‘overlap’ those of
Drazynski’s in that the individual radio signal measurements underlying
their respective processes may be the same, in some cases.” Reply Br. 2
(addressing Ans. 4).
Nor is the obviousness determination limited by the problem sought to
be solved in a single reference. KSR, 550 U.S. at 402 (“the appeals court
erred in assuming that a person of ordinary skill in the art attempting to
solve a problem will be led only to those prior art elements designed to solve
the same problem. . . . a person of ordinary skill often will be able to fit the
teachings of multiple patents together like pieces of a puzzle”). Appellant’s
arguments prominently focus on reasons why one addressing inter-frequency
measurement problems in Drazynski would not look to teachings of
positioning measurements in Kazmi. See, e.g., Reply Br. 5 (“Kazmi, on the
other hand, is concerned with a very different problem”). However, one
having ordinary skill in the art would not be limited by Drazynski’s
particular problems in achieving a balance for inter-frequency measurement,
but instead would look to both references in seeking to improve UE
measurements.
For the above reasons, we are not persuaded that the Examiner erred
in characterizing the teachings of both as relating to “neighbor
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measurements” common to the systems of both Kazmi and Drazynski, and
therefore relevant to determining how one of ordinary skill would perform
such measurements in a mobile terminal as claimed. See Ans. 4.
Appellant’s final argument against claim 39 is that the specific
limitations of the claim provide unexpected results relative to prior art
techniques. Appeal Br. 22. Appellant argues that the evidence of record
demonstrates that the claimed 1280 millisecond repetition period increases
throughput in comparison with a conventional, uninterrupted measurement
gap pattern. Id. Appellant primarily relies upon Huawei, referred to by
Appellant as “R4-I66020,” which is a document for discussion on gap
enhancement attributed to a working group of the 3rd Generation
Partnership Project. Id. at 23–25. Appellant also relies upon 3GPP, which is
a technical specification describing requirements for support of radio
resource management developed by the 3rd Generation Partnership Project
(the project itself also commonly abbreviated as 3GPP).
Appellant characterizes Huawei as comparing simulations in which a
quiet period between measurements (“T2”) is varied from 720 milliseconds
to 9720 milliseconds. Appeal Br. 23–24. Appellant characterizes the
claimed 1280 millisecond repetition period as equating to a T2 time of 1000
milliseconds. Id. at 24. The claimed time is asserted to be in a range of
“optimal throughput” in the Huawei simulations, in which the throughput
tends to decrease as T2 approaches 30 seconds. Id. Appellant asserts,
“[t]here is no evidence in the record to suggest that this improved throughput
was predicted or predictable by the person of ordinary skill in the art,” at
least because the Huawei data was presented three years after the effective
date of the present application. Id. Appellant argues that “the law [on
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obviousness] is clear that a prima facie case of obviousness, with respect to
a particular claimed value, can be rebutted with evidence of unexpected
results flowing from the claimed value.” Id. at 25.
Evidence of unexpected results must be factually supported by an
appropriate affidavit or declaration to be of probative value. See, e.g., In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (“It is well settled
that unexpected results must be established by factual evidence). Here,
Appellant has provided the Huawei “discussion document” containing
simulation data as evidence, unsupported by any affidavit or declaration.
Permitting a publication to substitute for expert testimony would circumvent
the guarantees built into the statute. Ex parte Gray, 10 USPQ2d 1922, 1928
(BPAI 1989). However, separate from Appellant’s discussion in its briefs,
we consider Huawei’s disclosure to be evidence of the facts at issue, and we
consider that evidence below.
“In order to establish unexpected results for a claimed invention,
objective evidence of non-obviousness must be commensurate in scope with
the claims which the evidence is offered to support.” In re Clemens,
622 F.2d 1029, 1036 (CCPA 1980); In re Woodruff, 919 F.2d 1575, 1578
(Fed. Cir. 1990) (“The law is replete with cases in which the difference
between the claimed invention and the prior art is some range or other
variable within the claims. . . . [and] in such a situation, the applicant must
show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range.”
(citations omitted)). That is to say, Appellant’s claimed value of 1280
milliseconds must be shown to achieve unexpected results relative to the
prior art range. Huawei does not mention any repetition period, whether
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1280 milliseconds or some other period. Huawei instead describes a quiet
period between measurements, described as the “T2” time, which Appellant
states to be different from the claimed repetition period. Although Appellant
asserts that the claimed invention is equivalent to a T2 time of 1000
milliseconds, Appellant’s assertion is presented outside of a declaration, and
therefore is not entitled to probative, factual value. Gray, 10 USPQ2d at
1928
Even were Appellant to have factually established that the claimed
repetition period of 1280 milliseconds equates to a T2 time of 1000
milliseconds, Huawei does not establish that at T2 time of 1000 milliseconds
provides an unexpected result compared to other values in the prior art.
Huawei’s Figure 2 is reproduced below:

Notably, Huawei does not present any results of its simulation having
a T2 time of exactly 1000 milliseconds (allegedly equivalent to the claimed
value). Instead, Huawei shows that throughput is slightly below 3.3 at T2=
720 milliseconds, rises to a value between 3.3 and 3.4 at T2=1720
milliseconds, and is slightly above 3.3 at T2=4720 milliseconds. Huawei,
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Fig. 2. Huawei does not provide any explanation of the values between
those three T2 values, such as whether T2 monotonically increases between
those values, or whether T2 peaks at any particular intervening value.
Accordingly, Huawei fails to show results that are commensurate in scope
with the alleged value of T2=1000 milliseconds, which allegedly
corresponds to the claimed 1280 millisecond repetition period. Because the
claim recites the single value of 1280 milliseconds, and Huawei does not
specifically address a T2 value corresponding to that claimed value,
Appellant has not shown a nexus between Huawei and the merits of the
claimed invention.
To the extent that we follow Appellant’s unsupported assertion that
one may interpolate Huawei’s values between T2=720 and T2=1720
(Appeal Br. 24), this does not show that the throughput at the “claimed”
T2=1000 value is unexpectedly greater than either T2=720 (which it would
be slightly above) or T2=1720 (which it would be slightly below). Instead,
the Examiner finds Huawei shows the largest throughput at T2=1720 and the
second largest throughput at 4720. Huawei’s range of largest throughput, of
T2 values between 1720 and 4270, does not encompass Appellant’s asserted
value of T2=1000. Consequently, Huawei does not show that claimed
invention to have a greater throughput, much less an unexpectedly greater
throughput, than other unclaimed values.
We further consider the disclosure of Huawei as to its bearing on the
obviousness determination. Huawei explains Figure 2 as reflecting the
effects when T2 becomes longer, with the positive benefit of “schedul[ing]
the UEs in more subframes” such that throughput increases, and the negative
benefit of the concomitant reduction in the frequency of measuring the
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signals of neighboring cells such that throughput decreases. Huawei 4. The
Examiner has stated that Drazynski and Kazmi describe that a measurement
scheme is designed by weighing different factors affecting the system,
including battery drainage. Final Act. 5, 7. We are not persuaded that the
Examiner errs by following the teachings of Drazynski and Kazmi in finding
those to make obvious the invention of claim 39.
We further note that Appellant’s arguments that the rejection is in
error because neither Drazynski nor Kazmi specifically mentions a 1280
millisecond repetition period as claimed, are confined to its arguments of
whether either reference teaches away, or whether the 1280 millisecond
repetition period provides unexpected results. We have addressed those
disputes, supra, and additionally note that the Federal Circuit has found
obviousness in combining references where, as here, both references
recognize a variable as one that can be varied to have a predictable effect on
the result, where the primary reference does not teach away from the
proposed modification, and where no unexpected results have been shown.
In re Urbanski, 809 F.3d 1237, 1242–1244 (Fed. Cir. 2016).
Accordingly, we affirm the Examiner’s rejection of claim 39.
Appellant does not separately argue claims 40, 42, 45, 47, 50, 54, and 57–
59, which therefore stand or fall with claim 39. 37 C.F.R. § 41.63 (c)(1)(iv).
Consequently, we sustain the Examiner’s rejection of claims 39, 40, 42, 45,
47, 50, 54, 57–59.
Appellant argues against claims 46 and 53, rejected over the base
combination, and further in view of Lee, on the same reasoning as presented
against the rejection of claim 39. Appellant argues against claims 48, 49, 55,
and 56, rejected over the base combination, and further in view of Kim, on
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the same reasoning as presented against the rejection of claim 39. For the
same reasons discussed in sustaining the rejection of claim 39, we sustain
the Examiner’s rejection of claims 46, 48, 49, 53, 55, and 56.
B. Claim 41
In its brief, Appellant separately argues that the Examiner’s rejection
of claim 41 over the combination of Drazynski and Kazmi is in error
because the combination does not teach a “step of selecting a number of
measurement gaps for each measurement gap burst based on a cell capacity
limit for a serving cell for the mobile terminal.” Appeal Br. 27. Appellant
argues that the Examiner’s reliance on Drazynski is in error because
Drazynski teaches only that the mobile terminal (UE) “may turn on the
measurement procedure when it does not get sufficient resources or when
the base station indicates an overload situation.” Id. Appellant argues that
this “falls far short” of teaching a network node that selects a number of
measurements gaps per burst, based on a cell capacity limit. Appeal Br. 27.
In the Answer, the Examiner finds Drazynski teaches that the network
node (eNB) selects a number of measurement gaps based upon the existence
or nonexistence of a cell capacity overload condition. Ans. 9. The
Examiner finds Drazynski sets either a particular number of gaps or zero
gaps based on the cell capacity being overloaded or not. Id. (citing
Drazynski ¶ 49. The Examiner characterized Drazynski’s reliance on a cell
capacity as being “disclosed throughout” Drazynski, including paragraphs
30, 31, and 37. Final Act. 12.
In the Reply Brief, Appellant responds, “the UE transitions from using
the pattern to using no pattern at all, based on this overload indication.”
Reply Br. 13. Appellant further argues that Drazynski’s paragraph 49
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describes a different embodiment than Drazynski’s paragraph 52, which
“describes an embodiment where . . . the UE transitions from using the
pattern to using no pattern at all, based on [an] overload indication” from the
eNB. Id. Appellant further argues that claim 41 requires the network node,
e.g., the eNB, to perform the selection, unlike the embodiment of
Drazynski’s paragraph 52 in which the mobile terminal selects whether the
measurement is performed or not based on the overload condition. Id.
Appellant further argues that there is no reason to combine the embodiment
of Drazynski’s paragraph 49 in which the eNB performs a selection of an
appropriate number of measurement gaps. Id.
We are not persuaded by this argument. Independent claim 39
provides, “in a network node,” a step of “selecting a measurement gap
pattern to be used by the mobile terminal.” Appellant has not argued that the
combination of Drazynski and Kazmi fails to teach or suggest the entity
performing the “selecting” recited in claim 39. Claim 41 merely adds that
the measurement gap “selecting” be based upon the cell capacity limit of the
mobile terminal. Drazynski’s paragraph 52 describes that the eNB (the
network node) may indicate an overload (of cell capacity) that causes the UE
(the mobile terminal) to set a first procedure (of measurements). Drazynski
describes the first procedure as “how often” measurements are performed.
Drazynski ¶ 39. The eNB is described as sending the command to the UE to
perform the measurement according to that first procedure. Id. ¶ 42; see
also ¶ 25 (the eNB “controlling . . . radio signal level measurements
performed by a user terminal, carrying out its own measurements and
performing handover based on the measurements”) We agree with the
Examiner that paragraph 52 of Drazynski, in context, describes the network
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node selecting a procedure specifying how often measurements are
performed, i.e., a measurement pattern, and commanding the mobile
terminal to perform the measurement according to that procedure, based
upon the cell capacity limit (overload) of the terminal. See Final Act. 12. In
view of the foregoing, we are not persuaded that the Examiner errs in
finding that Drazynski’s selection of a particular number of gaps, arranged
in a pattern, based on a non-overload of the cell, teaches or suggests
selecting a number of measurements gaps for each measurement gap burst
based on a cell capacity limit, as recited in claim 41.
CONCLUSION
For the above-described reasons, we affirm the Examiner’s rejection
of claims 39–42, 45–50, and 53–59 as being obvious over the applied
references under 35 U.S.C. § 103, as detailed in the following decision
summary.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § References/Grounds Affirmed Reversed
39–42,
45, 47,
50, 54,
57–59
103 Drazynski, Kazmi 39–42, 45,
47, 50, 54,
57–59

46, 53 103 Drazynski, Kazmi,
Lee
46, 53
48, 49,
55, 56
103 Drazynski, Kazmi,
Kim
48, 49, 55,
56

Overall
Outcome
39–42, 45–
50, 53–59

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED