DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7/17/2026 has been entered.
Response to Arguments
Applicant's arguments filed 7/17/2026 have been fully considered but they are not persuasive. The Examiner reconsidered the scope of the new claim language carefully and found the amendments were not fully supported by the originally disclosure as the disclosure only references “subscribers” previously affected by packet errors, without detailing this embodiment, while the claim is specifying a data transmission that was previously affected by packet errors. Additionally, the Examiner found the claims to be paradoxical because they claiming that the “another data transmission” is to be transmitted using the released resources, indicating it has not yet been transmitted, but then the claim specifies that the “another data transmission” had been previously affected. The same transmission cannot be both yet to happened and have already happened. After reconsidering the prior art, the Examiner found the combination of Key and Sundararajan to render the claim obvious.
The Examiner also reconsidered the Jheng reference that was subject to the Board Decision on 7/25/2025. The Examiner found that because Zheng is evaluating how transmissions using two different SIM cards would affect each other in order to release wireless resources when conflict is predicted to occur, it did not suggest the concepts covered in the “wherein” clauses which use the released resources for transmissions that were previously affected by transmission errors. In Jheng, the resources are released when there is a need for a paging transmission on the other SIM and this has nothing to do with previous errors. With that said, Jheng could be reapplied to claim 1 when the applicant addresses the 112(a) and 112(b) rejections presented in the office action for the reasons it was sustained on 7/25/2026.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-5, and 7-11 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1, 9, 10, and 11 feature the following limitation:
wherein the temporary suspension (122) includes releasing (122a) communication resources allocated for the future data transmission and using (122b) the released communication resources for another data transmission, wherein the another data transmission has a lower probability of transmission error than the probability (W), and wherein the another data transmission was previously affected by packet errors
The applicant disclosed the following with respect to the actions after suspension:
4. Depending on the decision in the preceding section 3, in other exemplary embodiments the control system 200 either transmits the data to subscriber 200a as originally planned (see also step 124 of Fig. 2B), or suspends this planned transmission for a communication cycle and releases the communication resources. In other exemplary embodiments the communication resources are then used for transmission to another subscriber 200b, which has a different, ideally lower probability of error with regard to data transmissions to it, for example, because it is located in another location. In particular, in other exemplary embodiments, subscribers that were previously affected by packet errors can also be preferred here, thereby reducing the probability of critical multiple errors in other exemplary embodiments.
There a couple of problems with support for the applicant’s amendments. First, the disclosure only states that other transmissions could be sent while the first transmission is suspended and that these transmissions have a “different, ideally lower probability of error” so the disclosure does not specify that the another data transmission has a probability of error than the probability of the packet suspended. The applicant has only disclosed that a lower probability is “ideal” but does not actual disclose any comparison of probabilities. Second, the applicant did not disclose that “the another data transmission was previously affected by packet errors, as the final sentence of the cited paragraph only described that “subscribers” that were previously affected by packet errors are preferred. Subscribers and transmissions are not the same concept.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3-5, and 7-11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 9, 10, and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential structural cooperative relationships of elements, such omission amounting to a gap between the necessary structural connections. See MPEP § 2172.01. The omitted structural cooperative relationships are: In the first “wherein” clause defined by the claim the applicant claims “using the released communication resources for another data transmission”, which implies that the “another data transmission” has not happened yet as the it will be using the newly released resources. However, the final wherein clause implies that “the another data transmission” has already happened, as it “was previously affected by packet errors”. The claims are therefore not coherent because they are referring to “the another data transmission” as both something that has yet to happen but has also already happened, creating an impossible paradox.
If the applicant is trying to claim a scenario where the computing device had previously tried to send specific data that was “affected by packet errors” and is now trying to retransmit such data using the released communication resources, then the claims should coherently claim this scenario. However, as noted in the written description rejection, the applicant does not appear to have support for actually claim such a scenario in the original disclosure.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 3-5, and 7-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Number 7,843,828 by Key et al. in view of U.S. Patent Application Publication Number 2016/0094608 by Sundararajan et al.
As to claim 1, Key teaches a method for transmitting data (D) via a transmission medium (M) utilizing a computing device (col. 9, lines 61-64 define the method of Figure 10 as being performed by a sending device in the form of a personal computer), the method comprising: ascertaining a probability (W) of at least one transmission error during a future data transmission using the computing device (steps 1000, 1002, 1004, and 1006 in Figure 10, col. 9, line 65-col. 10, line 23, the device determines how likely congestion occurs. Network congestion includes packet lo9ss which is a “transmission error”, see col. 10, lines 1-6), determining, based on the probability (W), whether the future data transmission should be at least temporarily suspended (step 1006 then ascertains whether, in view of the estimated network congestion (and, where appropriate, the confidence in the estimate), a packet is likely to encounter congestion), using the computing device, and when the outcome of the determination is that the future data transmission should be at least temporarily suspended, suspending the future data transmission for a specifiable time period (step 1010, col. 10, lines 23-26 “The packet can be delayed for any suitable time period”) using the computing device, and/or when the outcome of the determination is that the future data transmission should not be suspended, executing the future data transmission (step 1008, “if the estimation provided by step 1002 indicates that the packet is not likely to encounter network congestion, then step 1008 sends or transmits the packet” col. 10, lines 21-24), using the computing device, wherein the temporary suspension includes releasing communication resources allocated for the future data transmission (col. 10, lines 23-28, by not transmitting the packets, the transmission resources of the device are “released” for other transmissions. The applicant does not provide any limiting definition of the term “resource” or any specific description of how a resource is “released” so this interpretation is consistent with the broadest reasonable interpretation, as explained in section 2111.01 of the MPEP) however Key does not explicitly teach using the released communication resources for another data transmission, wherein the another data transmission has a lower probability of transmission error than the probability (W), and wherein the another data transmission was previously affected by packet errors.
Sundararajan teaches a computing device which uses resources (Abstract, the network interfaces of the computing device are the resources), released from data transmissions which are temporarily suspended (paragraph 55, retried requests are subject to retry delay period), for another data transmission with a lower probability of transmission error (Figure 3B, ref. nos. 358, 360, and 362b, the device identifies other TCP connections sharing the same network interface that are not experiencing errors and thus have a higher probability of success), wherein the another data transmission was previously affected by packet errors (Figure 3B shows a continuous monitoring process where the flowchart is continually performed as the current state of transmissions is evaluated, the packets identified in step 360 and 362b, could have previously been identified in a previous iteration of the flowchart as being subject to decision 362a).
It would have been obvious to one of ordinary skill in the device to device communication art at the time of the applicant’s filing to combine the teachings of Key regarding delaying transmissions and releasing resources with the teachings of Sundararajan regarding sending other transmissions on released resources that have a lower probability of error and were previously affected by error because Sundararajan shows how the user device of Key could also consider whether an error is specific to a destination to a data stream that would not be affect transmissions to other data streams that could use the transmission resources of Key during the delay period of step 1010 of Key.
As to claims 9-11, they are rejected for the same reasoning as claim 1.
As to claim 3, Key teaches ascertaining the probability of a transmission error in a future data transmission by evaluating contextual information, wherein the contextual information indicates a temporary degradation in the future data transmission (step 1002). Sundararajan teaches ascertaining the probability of a transmission error in a future data transmission by evaluating current knowledge regarding existing communication characteristics associated with data transmission via the transmission medium (Figure 3B, transmission status of each network interface is continuously evaluated).
As to claim 4, see paragraph 55 and Figure 2E of Sundararajan.
As to claim 5, In Figure 10 of Key, the condition in step 1006 is a comparison to a specifiable limit which defines the outcomes 1008 or 1010.
As to claim 7, see col. 8, line 49-col. 9, line 7 of Key.
As to claim 8, see col. 8, lines 15-26 and col. 14, lines 7-10 of Key and paragraph 52 of Sundararajan.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOUGLAS B BLAIR whose telephone number is (571)272-3893. The examiner can normally be reached Monday-Friday 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Glenton Burgess can be reached at 571-272-3949. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOUGLAS B BLAIR/Primary Examiner, Art Unit 2454
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