DETAILED ACTION
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the "right to exclude" granted by a patent and to prevent possible harassment by multiple assignees. See In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and, In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent is shown to be commonly owned with this application. See 37 CFR 1.130(b).
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are provisionally rejected under the judicially created doctrine of obviousness type double patenting as being unpatentable over claims 1-16 of copending Application No. 18/504,788 (hereinafter ‘788). Although the conflicting claims are not identical, they are not patentably distinct from each other because despite slight difference in wording, for example, claim 1 of ‘788 recites essentially all claimed subject matter of claim 1 in the present application.
This instant patent application is not patentably distinct from an earlier application claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness type double patenting where a patent application claim to a genus is anticipated by a 35 patent claim to a species within that genus). “ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
Accordingly, absent a terminal disclaimer, claims 1-20 are properly rejected under the doctrine of obviousness-type double patenting.” (In re Goodman (CA FC) 29 USPQ2d 2010 (12/3/1993).
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 of this title, 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.
Claims 1, 2, 4-7, 10-12, 14-16, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Morrison (US 2013/0196653, “Morrison”) in view of Li et al. (US 2021/0227542, “Li”) and further in view of Ansari et al. (US 2018/0235005, “Ansari”).
Regarding claim 1, Morrison discloses a device comprising: a processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations (204 & 222 Fig.2, a process and a memory) the operations comprising:
- determining whether a first device (116 Fig.1, unlicensed spectrum access point), which is wireless-capable, is communicating under a bandwidth surplus with a fixed network via a first fixed network connection (See ¶.7, unlicensed spectrum connections that use private bandwidth such as Wi-Fi via a private local access point; See 508 Fig.5, estimating the bandwidth remaining over the first wireless connection; See ¶.3, local area and/or Internet fixed network; See ¶.14, a fiber connection communication; Examiner’s Note: Li further explicitly discloses the limitation “determining whether a first device is communication”), wherein the bandwidth surplus results at least in part from use by the first device of one or more link aggregation groups (See 506 Fig.5, a load balancer of a first bandwidth allocation over the first wireless connection and a second bandwidth allocation over the second wireless connection; Examiner’s Note: Li and Ansari further disclose the limitation term “one or more link aggregation groups”),
- wherein the one or more link aggregation groups comprise licensed wireless spectrum, unlicensed wireless spectrum, or a combination thereof (See Fig.1 and ¶.9, FIG. 1 is an overview diagram illustrating the context of simultaneous communications over licensed spectrum and unlicensed spectrum), and wherein the determining with respect to the first device results in a first determination (See 502 Fig.5, to determine, measuring bandwidth for a first wireless connection);
- determining whether a second device is communicating under a bandwidth deficit with the fixed network via a second fixed network connection (See ¶.66, receive a latency measurement from a server from a cellular operator from one of the communications connections; See ¶.76, If the quality of service measurement for the second communications connection is significantly lower than the first communications connection; Examiner’s Note: Li further explicitly discloses the limitation “determining whether a second device is communicating”),
- wherein the determining with respect to the second device results in a second determination; and responsive to the first determination being that the first device is communicating under the bandwidth surplus (See 502-508 Fig.5 for determining steps; See 506 Fig.5, a load balancer of a first bandwidth allocation over the first wireless connection and a second bandwidth allocation over the second wireless connection) and;
- responsive to the second determination being that the second device is communicating under the bandwidth deficit, allocating at least a portion of the bandwidth surplus associated with the first device to the second device (See 506 Fig.5, a load balancer of a first bandwidth allocation over the first wireless connection and a second bandwidth allocation over the second wireless connection; See 508 Fig.5 and ¶.59, estimating the bandwidth remaining over the first wireless connection and the bandwidth remaining over the second wireless connection, based at least on the first bandwidth allocation and the second bandwidth allocation; Examiner’s Note; Ansari discloses the limitation “allocating at least a portion of the bandwidth surplus associated with the first device to the second device under the bandwidth deficit”).
Morrison discloses the method of load balancing between a first bandwidth allocation over the first wireless connection and a second bandwidth allocation over the second wireless connection and estimating the bandwidth remaining over the first wireless connection and the second wireless connection (See 506 & 508 Fig.5), but Morrison does not explicitly disclose the limitations “determining whether a first device and a second device are communication”; “one or more link aggregation groups”, and “allocating at least a portion of the bandwidth surplus associated with the first device to the second device under the bandwidth deficit.”
However, Li and Ansari disclose the method determining whether a first device and a second device are communication (Li, See 402 Fig.4, determine status information of at least one of a first frequency band and a second frequency band; See Fig.2, the method of communicating with licensed spectrum and unlicensed spectrum); “one or more link aggregation groups” (Li, See ¶.46, by aggregation of licensed and unlicensed carriers, a radio device may benefit from the additional transmission capacity provided by the unlicensed band; Ansari, See ¶.44, carrier aggregation of this (licensed spectrum) channel and the channels (in the unlicensed spectrum); See ¶.55, the another channel may be, e.g., another channel of the second group of channels. For example, CA may be performed by aggregating all channels of the second group. Further, CA may be performed by aggregating the combined channel with at least one channel of a licensed frequency spectrum), and “allocating at least a portion of the bandwidth surplus associated with the first device to the second device under the bandwidth deficit” (Ansari, See ¶.102, devices connect in the licensed and use carrier aggregation to benefit from additional transmission capacity in the unlicensed spectrum; See ¶.233, in the licensed assisted operation, additional carrier(s) are selected and aggregated in the unlicensed spectrum. The selection of carriers in the unlicensed spectrum also implies their bandwidth selection).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to apply the method of “determining whether a first device and a second device are communication” as taught by Li and the method of “allocating at least a portion of the bandwidth surplus associated with the first device to the second device” as taught by Ansari into the system of Morrison, so that it provides way of performing an allocation of multiple antennas of the terminal device between the first frequency band and the second frequency band, based at least in part on the status information (Li, See ¶.7) and for the license assisted operation to give more agility and flexibility in selecting the unlicensed carrier(s) as the rendezvous information (Ansari, See ¶.233).
Regarding claim 2, Morrison discloses “wherein the fixed network comprises a fixed optical network (See Fig.1 and ¶.14, a fiber connection communication).”
Regarding claim 4, Morrison discloses “wherein the first device comprises a wireless router or a wireless access point (WAP) (See ¶.4, wireless AP).”
Regarding claim 5, Morrison discloses “wherein the second device is wireless-capable, and wherein the second device comprises a wireless router or a wireless access point (WAP) (See ¶.4, wireless AP; See ¶.5, Wi-Fi connection via a router).”
Regarding claim 6, Morrison and Ansari disclose “wherein the allocating comprises allocating all of the bandwidth surplus associated with the first device to the second device (Morrison, See 508 Fig.5, the bandwidth remaining over the first wireless connection; Ansari, See ¶.102, devices connect in the licensed and use carrier aggregation to benefit from additional transmission capacity in the unlicensed spectrum; See ¶.233, in the licensed assisted operation, additional carrier(s) are selected and aggregated in the unlicensed spectrum. The selection of carriers in the unlicensed spectrum also implies their bandwidth selection.” Therefore, this claim is rejected with the similar reasons and motivation set forth in the rejection of claim 1.
Regarding claim 7, Morrison and Ansari disclose “determining that a third device is communicating under another bandwidth deficit with the fixed network via a third fixed network connection, resulting in another determination; and responsive to the another determination being that the third device is communicating under the another bandwidth deficit with the fixed network via the third fixed network connection, further allocating at least a portion of the bandwidth surplus associated with the first device to the third device (Morrison, See Fig.1, a third connection; See Fig.5, allocating remaining bandwidth to other connection; Ansari, See ¶.233, in the licensed assisted operation, additional carrier(s) are selected and aggregated in the unlicensed spectrum. The selection of carriers in the unlicensed spectrum also implies their bandwidth selection).” Therefore, this claim is rejected with the similar reasons and motivation set forth in the rejection of claim 1.
Regarding claim 10, Morrison discloses “wherein the licensed wireless spectrum is provided by a mobile network, and wherein determination of availability of the licensed wireless spectrum comprises receiving one or more signals from one or more radio access network (RAN) nodes (See Fig.1, BS is considered as RAN).”
Regarding claim 11, Morrison discloses “wherein the unlicensed wireless spectrum is provided by a wireless local area network (WLAN) or a fixed wireless network, and wherein determination of availability of the unlicensed wireless spectrum comprises receiving one or more signals from one or more WAPs (See Fig.1 and ¶.4, have or a data connection using a Wi-Fi communications connection via a local wireless access point; See Fig.5).”
Regarding claim 12, Morrison discloses “wherein the fixed network comprises an Ethernet network a broadband network, or any combination thereof (See ¶.14 and ¶.33, Ethernet connection).”
Regarding claim 14, Morrison discloses “wherein link aggregation is effected based upon one or more performance criteria related to network latency, network speed, noise, interference, signal quality, signal strength, transmit power, usage cost, or a combination thereof (See ¶.36, monitor power; See ¶.50, quality of service measurement; See ¶.66, latency).”
Regarding claim 15, Morrison discloses “the allocating comprises providing allocated bandwidth to the second device via a fixed connection, via a wireless connection, or via any combination thereof (See ¶.38, bandwidth requests 306 and/or 308 may send a message over the network, in addition to allocating bandwidth).”
Regarding claim 16, it is a non-transitory machine readable medium claim corresponding to the device claim 1 and is therefore rejected for the similar reasons set forth in the rejection of the claim.
Regarding claim 18, it is a method claim corresponding to the device claim 1 and is therefore rejected for the similar reasons set forth in the rejection of the claim.
Claims 3, 17, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Morrison in view of Li and further in view of Poustie et al. (US 2020/0382234, “Poustie”).
Regarding claim 3, Morrison, Li, and Ansari do not explicitly disclose what Poustie discloses “wherein: the fixed optical network comprises a passive optical network (PON); the device is a PON controller; and the PON controller is configured for communication with the PON, the PON controller is part of the PON, or any combination thereof (Poustie. See ¶.3, link aggregation in PON network; See ¶.8-9, a controller in a WDM-PON).”
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to apply “the fixed optical network comprises a passive optical network (PON); the device is a PON controller; and the PON controller is configured for communication with the PON, the PON controller is part of the PON, or any combination thereof” as taught by Poustie into the system of Morrison, Li, and Ansari, so that it provides a way for the aggregate data capacity to be divided for each user and reconfigured, potentially controlled by the network controller (Poustie, See ¶.191).
Regarding claim 17, it is a claim corresponding to the claim 3, except the limitation “PON data plane (Poustie, See ¶.117, optical data signals over PON)” and is therefore rejected for the similar reasons set forth in the rejection of the claim.
Regarding claim 19, it is a claim corresponding to the claim 3 and is therefore rejected for the similar reasons set forth in the rejection of the claim.
Regarding claim 20, it is a claim corresponding to the claim 17, except the limitation “virtual function (Poustie, See ¶.4, virtual point-to-point PON networks)” and is therefore rejected for the similar reasons set forth in the rejection of the claim.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Morrison in view of Li and further in view of Pabla (US 2021/0176646, “Pabla”).
Regarding claim 13, Morrison and Li do not explicitly disclose what Pabla “the first device is associated with a global unique identifier; a licensed network system associated with the licensed wireless spectrum utilizes the global unique identifier to assess first charges for usage of the licensed wireless spectrum; and an unlicensed network system associated with the unlicensed wireless spectrum utilizes the global unique identifier to assess second charges for usage of the unlicensed wireless spectrum (Pabla, See ¶.3, have both licensed and unlicensed spectrum; See Table #1, charging data record and GUTI; See ¶.115, air time usage; that it, charging air time usage in both licensed and unlicensed wireless spectrum).”
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to apply “the first device is associated with a global unique identifier; a licensed network system associated with the licensed wireless spectrum utilizes the global unique identifier to assess first charges for usage of the licensed wireless spectrum; and an unlicensed network system associated with the unlicensed wireless spectrum utilizes the global unique identifier to assess second charges for usage of the unlicensed wireless spectrum” as taught by Pabla into the system of Morrison and Li, so that it provides a way of billing air time usage of the activated radios (Pabla, See ¶.115).
Allowable Subject Matter
Claims 8 and 9 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and overcome the rejection(s) under Double Patenting, set forth in this Office action.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jung H Park whose telephone number is 571-272-8565. The examiner can normally be reached M-F: 7:00 AM-3:00 PM.
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/JUNG H PARK/
Primary Examiner, Art Unit 2411