TELEFONAKTIEBOLAGET L M ERICSSON (PUBL)

Patent Trials and Appeals Board

Sep 24, 2020

2019003066 (P.T.A.B. Sep. 24, 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.
14/437,038 04/20/2015 Bengt Lindoff 1009-1391 / P46395 US1 5038
102721 7590 09/24/2020
Murphy, Bilak & Homiller/Ericsson
1255 Crescent Green
Suite 200
Cary, NC 27518
EXAMINER
DAVENPORT, MON CHERI S
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
09/24/2020 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 BENGT LINDOFF and STEFANO SORRENTINO

Appeal 2019-003066
Application 14/437,038
Technology Center 2400

Before JOHN A. EVANS, JUSTIN BUSCH, and
JOHN P. PINKERTON, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 33–64, which are all the claims
pending. Claims 1–32 have been canceled. Because the claims on appeal
have been twice rejected, we have jurisdiction pursuant to 35 U.S.C. §§ 6
and 134(a). Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994)
(precedential).

We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Telefonaktiebolaget LM Ericsson (publ). Appeal Br. 2.
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STATEMENT OF THE CASE
INTRODUCTION
The claimed subject matter “generally relates to device-to-device
communication in a cellular communication system.” Spec. 1:5–6. More
specifically, the claimed subject matter relates to “a method performed in a
controlling node of a cellular communication network” for “configuring
gaps during which a device-to-device (D2D) enabled device is not expected
to receive [or transmit] any cellular signal, but can use a receiver chain to
detect D2D signals or D2D related control information.” Spec. 1:30–35,
Abstract.
Claims 33 (method), 42 (method), 49 (controlling node comprising a
processing circuit to perform the method), and 58 (D2D-enabled device
comprising a processing circuit to perform the method) are independent.
Claim 42 is reproduced below:
42. A method performed in a D2D-enabled device for
operating in a cellular communication system, comprising:
obtaining configuration of gaps during which the D2D-
enabled device is not expected to receive any
cellular signal but can use a receiver chain to detect
D2D signals or D2D-related control information,
either by:
receiving the configuration of gaps from a
controlling node of the cellular
communication network; or
deducing the timing of the gaps from timing of D2D
subframes configured to carry D2D channels,
whereby explicit signaling from the
controlling node of the position of the gaps
can be avoided; and
detecting, during gaps, D2D signals or D2D-related
control information.
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Appeal Br. 13 (Claims App.).
THE PENDING REJECTIONS
Claims 33–39, 41–46, 48–55, 57–62, and 64 stand rejected under
35 U.S.C. § 103 as obvious in view of Doppler (US 2011/0268004 A1;
Nov. 3, 2011) and Sharma (US 2015/0245394 A1; Aug. 27, 2015).
Non-Final Act. 3–8.
Claims 40, 47, 56, and 63 stand rejected under 35 U.S.C. § 103 as
obvious in view of Doppler, Sharma, and Pelletier (US 2013/0322413 A1;
Dec. 5, 2013). Non-Final Act. 8–9.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellant made.
Arguments Appellant could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues the
rejection of independent claims 42 and 58 as a group. See Appeal Br. 6–9.
Appellant argues the rejection of independent claims 33 and 49 for the same
reasons as independent claims 42 and 58. Appeal Br. 9. Claims 34–41
depend ultimately from independent claim 33; claims 43–48 depend
ultimately from independent claim 42; claims 50–57 depend ultimately from
independent claim 49; and claims 59–64 depend ultimately from
independent claim 58. Appellant argues the rejections of these claims
should be reversed for the same reasons as the independent claims from
which they depend. See Appeal Br. 10–11. We select claim 42 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv).
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The Examiner finds the combination of Doppler and Sharma teaches
or suggests every limitation recited in representative claim 42. Non-Final
Act. 3–4. Of particular relevance to this Appeal, the Examiner finds Sharma
teaches or suggests “obtaining configuration of gaps during which the D2D-
enabled device is not expected to receive any cellular signal but can use a
receiver chain to detect D2D signals or D2D-related control information.”
Non-Final Act. 4 (citing Sharma ¶ 74, Figs. 4–5); Ans. 3–5 (additionally
citing Sharma ¶¶ 61–62). Each of independent claims 33, 49, and 58 recites
a similar limitation, for which the Examiner makes the same findings. See
Appeal Br. 12, 14–15, 16 (Claims App.); Non-Final Act. 4; Ans. 3–5.
Sharma relates to a cellular communication network in which users of
user equipment (UE) may communicate with each other via a device-to-
device (D2D) service in the absence of an LTE cellular network (for
example, where there is no coverage). Sharma ¶¶ 11, 44, 89. As cited by
the Examiner, Figure 5 of Sharma is reproduced below.
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Figure 5 of Sharma is a timing diagram depicting how a base station 5 may
instruct mobile telephones 3-1 (MT-1) and 3-2 (MT-2) to switch between
D2D service and an LTE service. Sharma ¶ 42. As shown in steps s500 and
s501, even if outside the coverage area of the cellular network, MT-1 and
MT-2 may still communicate with each other by using their respective D2D
control modules to initiate and use a D2D communication path. Sharma
¶¶ 73, 91 (explaining that “Steps s500 to s50[5’] are similar to steps s400 to
s405’ of FIG. 4, respectively”). As shown in steps s502 to s503, the D2D
control modules may coordinate transmission gaps (silent periods) in the
D2D communication (i.e., periods during which MT-1 and MT-2 do not
transmit data but use their cellular network monitoring modules to search for
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a cellular network). Sharma ¶¶ 74–75. In steps s504 to s505’, when MT-1
or MT-2 discovers a cellular network, the mobile telephone’s reporting
module may generate and send base station 5 an indication of being involved
in a D2D communication service. Sharma ¶¶ 76, 80. In step s509, the D2D
authorization module of base station 5 may determine that MT-1 and MT-2
should (and can) be switched over to a cellular service instead of authorizing
the already existing D2D service. Sharma ¶¶ 91–92. According to Sharma,
such a switch may be necessary when interference caused by the D2D
service is above a predetermined threshold or when additional functions not
available using the D2D service are needed. Sharma ¶ 91. In step s511, the
D2D authorization module of base station 5 generates and sends MT-1 and
MT-2 message(s) instructing them to switch over to cellular service.
Sharma ¶ 94. In step s515, MT-1 and MT-2 set up an LTE communication
path using their respective communications control modules and start
communicating with each other via the cellular network. And in step s517,
the D2D control modules of MT-1 and MT-2 terminate the D2D service
between the two mobile telephones. See Sharma ¶ 95.
Appellant argues Examiner error because “Sharma’s ‘silent’ periods
are gaps in D2D communications, specifically intended to allow the mobile
telephones to monitor the presence of cellular signals,” which “is precisely
opposite of what the claims explicitly recite, that the gaps specify periods
during which the D2D-enabled device is not expected to receive any cellular
signal.” Appeal Br. 8. Appellant similarly argues that “Doppler’s ‘D2D
transmission gaps’ . . . are essentially opposite of the ‘gaps’ recited in claim
42.” Appeal Br. 8 (citing Doppler ¶¶ 37–38, Fig. 6). Appellant explains that
Doppler’s gaps “are negotiated pauses in D2D transmissions, so that the
D2D device can communicate with the cellular network,” whereas “the
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‘gaps’ recited in claim 42 are explicitly defined as intervals during which the
D2D device is not expected to receive any cellular signals and is thus able to
receive D2D signals.” Appeal Br. 8.
In response to Appellant’s arguments, the Examiner finds, in relevant
part, that “[t]he gaps which are broadly claimed as shown in applicants [sic]
fig. 6, as either D2D commination [sic] gaps or cellular communication gaps
do not overlap.” Ans. 3–4. And, according to the Examiner, “just like
[Appellant’s] invention broadly claims[,] the gaps” in Sharma “are
configured for either cellular communication or D2D communication.” Ans.
4.
In the Reply Brief, Appellant argues that the Examiner misinterprets
the claim language because “[t]he claims at issue do not refer to ‘D2D
communication gaps’ or ‘cellular communication gaps,’” or “whether [they]
‘overlap.’” Reply Br. 4. Rather, according to Appellant, “[t]he language of
the claims is clear - during these periods, the D2D device need not worry
about receiving signals from the cellular communication system, but can
dedicate its receiver to D2D operations, i.e., to listening to signals or control
information from other D2D devices.” Reply Br. 4. Appellant then argues
that, in addition to misinterpreting the claims, the Examiner also
misinterprets the Sharma reference. Reply Br. 5–8. Appellant explains that
“[d]uring Sharma’s transmission gaps, Sharma’s mobile telephones (i.e.,
D2D devices) do not engage in D2D communication with each other,” but
instead listen for and actually find cellular signals. Reply Br. 6. In contrast,
according to Appellant, during “[t]he gaps recited in the pending claims, . . .
the D2D device is not expected to receive cellular signals but can instead use
its receiver to detect D2D signals from other D2D devices.” Reply Br. 6.
For the reasons that follow, we are not persuaded of Examiner error.
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Appellant’s arguments rest largely on the purported inadequacies of
Sharma’s D2D transmission gaps, during which there are no D2D
transmissions, but a cellular network may be searched for and found. But
Appellant fails to consider what Sharma’s D2D transmission gaps suggest
regarding when cellular communication is not expected. While Appellant is
correct that a cellular signal may be expected during these D2D transmission
gaps, Sharma also describes gaps in cellular communication service during
which mobile telephones can establish and use D2D service instead. See,
e.g., Sharma ¶ 57 (“[W]hen they are outside of the cellular network, and still
within communication distance from each other, the mobile telephones 3 can
establish a D2D service without having to rely on the base station 5.”), Fig. 5
(item s501). As the Examiner points out, just like Appellant’s invention,
which describes D2D and cellular communication gaps that do not overlap
(that alternatively, could be described as periods of cellular transmission and
D2D transmission, respectively), Sharma’s “gaps are configured for either
cellular communication or D2D communication.” Ans. 4. Indeed, Sharma
describes switching between D2D service and LTE cellular service, which at
least suggests that when one type of service is being provided, the other type
is not being provided. See, e.g., Sharma ¶¶ 75 (explaining that network
monitoring modules in mobile devise do not operate “while D2D
communication is occurring”), 77 (describing keeping D2D transmission
gaps—i.e., the periods during of cellular communication—as short as
possible “to ensure that they do not have significant impact on the D2D
data/voice communication”), 108 (noting “that the network search, as
indicated at steps s403 and s503, might be performed by the mobile
telephone . . . periodically”).
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Sharma therefore suggests that before and after its D2D transmission
gaps, there are gaps in cellular communication (i.e., cellular communication
between the mobile telephones and the base station is not occurring and,
thus, “is not expected”), during which there is ongoing D2D communication
between the mobile telephones. In other words, Sharma at least suggests
“obtaining configuration of gaps during which the D2D-enabled device is
not expected to receive any cellular signal but can use a receiver chain to
detect D2D signals or D2D-related control information,” as recited in claim
42.
The teachings and suggestions of Sharma are consistent with a plain
reading of the claim language in view of Appellant’s Specification. Akin to
the mobile telephones’ switching between D2D service and LTE cellular
service in Sharma, Appellant’s Specification describes a device that
periodically switches its single receiver chain between two types of
reception—downlink (DL) cellular reception and D2D reception. See, e.g.,
Fig. 4 (showing alternation between DL cellular reception and D2D
measurement gaps), Spec. 4:20–22 (“[T]he receiving device may switch the
single receiver chain between DL reception and D2D reception in D2D
subframes.”), 9:15–17, 10:28–29, 16:14–16. And, as Appellant confirms,
during the recited “gaps” of claim 42, “the D2D device need not worry about
receiving signals from the cellular communication system, but can dedicate
its receiver to D2D operations, i.e., to listening to signals or control
information from other D2D devices.” Reply Br. 4. In other words, both
Appellant’s invention and Sharma similarly describe a plurality of periods
during which only one type of reception (cellular or D2D) is occurring, and
there is a “gap” in the other type of reception.
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Because the Examiner has shown that Sharma suggests the disputed
claim language, we need not address whether Doppler does as well. Even
so, we note that Doppler too suggests the disputed claim language. Figure 6
of Doppler, cited by Appellant in the Appeal Brief, is reproduced below.

Figure 6 depicts a timing diagram according to an exemplary embodiment of
Doppler. Doppler ¶ 52. This figure shows that during radio frames 1 and 3,
only D2D communications occur (indicated by up and down arrows between
transmission (Tx) and reception (Rx) sub-frames), whereas during radio
frame 2—identified as D2D transmission gap 616—only cellular
transmission 618 and reception occur. See, e.g., Doppler ¶¶ 53–58. This
suggests that, during radio frames 1 and 3, there are gaps in cellular
communications such that the D2D-enabled device is “not expected” to
receive any cellular signal but can use D2D signaling. And just as
Appellant’s invention describes a device that switches its single receiver
chain between DL cellular and D2D reception, Doppler too describes
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switching between D2D and cellular communication modes. See, e.g.,
Doppler ¶¶ 26, 40, 57.
We therefore sustain the rejection of claims 33–39, 41–46, 48–55, and
57–62, and 64 as obvious in view of Doppler and Sharma. For the same
reasons, we also sustain the rejection of claims 40, 47, 56, and 63 as obvious
in view of Doppler, Sharma, and Pelletier.
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§ References Affirmed Reversed
33–39, 41–46,
48–55, 57–62, 64 103
Doppler,
Sharma
33–39, 41–46,
48–55, 57–62,
64

40, 47, 56, 63 103
Doppler,
Sharma,
Pelletier
40, 47, 56, 63
Overall
Outcome 33–64
TIME PERIOD FOR 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED