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 .
Response to Arguments/Amendments
Applicant's amendments filed 1/22/26 have been fully considered. The rejection based on 112(b) have been withdrawn because the amendments have overcome the rejection.
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. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); 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); 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) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11212793 (hereinafter P11212793). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following.
For claim 21, P11212793 discloses a system (suggested by claim 1, “A network base station, comprising: a communications interface configured to communicate wirelessly with terminals of a network”; note that a network base station with terminals of a network), comprising:
at least one processor; and memory storing instructions that, when executed by the at least one processor (the processor and memory of a terminal associated with a network base station), cause the at least one processor to perform operations, comprising:
receiving, via a wireless communications interface, a unique identifier (suggested by claim 1, “… receiving, using the communications interface and from the terminals, a plurality of channel condition information (CCI) for the terminals …”; note that CCI for a terminal must have a unique identifier for the terminal);
receiving, via the wireless communications interface, a subframe allocation indicating a multimedia broadcast multicast service (MBMS) single frequency network (MBSFN) subframe of a radio frame (claim 1, “… determining a subframe allocation based at least in part on the first DTM and the second DTM …” and claim 2 “the subframe allocation assigns the subframes of the first subset as Multimedia Broadcast Multicast Service (MBMS) Single Frequency Network (MBSFN) subframes associated with Transmission Mode Nine”);
receiving, via the wireless communications interface and in the MBSFN subframe, control information that is encoded (claim 1, “receiving, using the communications interface and from the terminals, a plurality of channel condition information (CCI) for the terminals”; note that a CCI is control information that is encoded);
determining a downlink transmission mode (DTM) based at least in part on the control information (claim 1, “selecting a first downlink transmission mode (DTM) associated with first data of downlink data to be transmitted by the network base station based at least in part on the first CCI, …”; note that selecting suggests determining); and
receiving data using the DTM in the MBSFN subframe (suggested by claim 1, “selecting a first downlink transmission mode (DTM) associated with first data of downlink data to be transmitted by the network base station based at least in part on the first CCI”; note that “downlink data” suggests receiving data),
wherein the operations further comprise at least one of:
determining the control information further based at least in part on the unique identifier (suggested by claim 1, “… receiving, using the communications interface and from the terminals, a plurality of channel condition information (CCI) for the terminals …”; note that CCI for a terminal must have a unique identifier of the terminal in order to receive CCI);
determining the DTM further based at least in part on the unique identifier (claim 1, “… selecting a first downlink transmission mode (DTM) associated with first data of downlink data to be transmitted by the network base station based at least in part on the first CCI”; note that DTM data for a terminal must have a unique identifier of the terminal); or
receiving the data further based at least in part on the unique identifier (claim 1, “… selecting a first downlink transmission mode (DTM) associated with first data of downlink data to be transmitted by the network base station based at least in part on the first CCI”; note that DTM data for a terminal must have a unique identifier of the terminal).
Independent claim 27 is rejected because it is a claim of the server equivalent to the system of claim 1 and has the same subject matter.
Dependent claims are rejected in a similar fashion to the independent claims
Independent claim 29 is rejected because it is a claim of the method performed by the system of claim 1 and has the same subject matter.
Dependent claims are rejected in a similar fashion to the independent claims.
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 1877271 (hereinafter P1877271) in view of Seo (“US 20140369294 A1”).
For claim 21, P1877271 discloses a system (claim 10, “A system …), comprising:
at least one processor; and memory storing instructions that, when executed by the at least one processor, cause the at least one processor to perform operations (claim 10 “… at least one processor; and memory storing instructions that, when executed by the at least one processor, cause the at least one processor to perform operations …”), comprising:
receiving, via a wireless communications interface, a unique identifier (suggested by claim 10, “… receiving, by the first terminal using the first DTM and from the network base station, first data and a first channel selection information reference signal (CSI-RS), based at least in part on the first DTM for the first terminal being assigned by a subframe allocation determined by the network base station, the first CSI-RS being received at a first CSI-RS transmission rate determined by the network base station based at least in part on a first proportion of traffic …”; note that information reference signal CSI-RS for a terminal must have a unique identifier for the terminal);
receiving, via the wireless communications interface, a subframe allocation indicating a multimedia broadcast multicast service (MBMS) single frequency network (MBSFN) subframe of a radio frame (claim 10, “… determining a subframe allocation based at least in part on the first DTM and the second DTM …” and claim 2 “the subframe allocation assigns the subframes of the first subset as Multimedia Broadcast Multicast Service (MBMS) Single Frequency Network (MBSFN) subframes associated with Transmission Mode Nine”);
receiving, via the wireless communications interface and in the MBSFN subframe, control information that is encoded (claim 15, “receiving, from the network base station, the first CSI-RS in a first subset of multimedia broadcast multicast service (MBMS) single frequency network (MBSFN) subframes assigned by the network base station based at least in part on the first CCI”; note that a CCI is control information that is encoded);
determining a downlink transmission mode (DTM) based at least in part on the control information (claim 10, “… first channel condition information (CCI) utilized by the network base station to select a first downlink transmission mode (DTM)” and claim 11, “determining to interpret the first data in a radio frame using the first DTM, based at least in part on a message received …”; note that CCI is a message received and used to determine DTM); and
receiving data using the DTM in the MBSFN subframe (suggested by claim 17, “The system of claim 10, wherein a first subset of multimedia broadcast multicast service (MBMS) single frequency network (MBSFN) subframes is utilized to receive the first data, based at least in part on the subframe allocation assigning the MBSFN subframes for the first DTM …”),
wherein the operations further comprise at least one of:
determining the control information further based at least in part on the unique identifier (suggested by claim 10, “… first channel condition information (CCI) utilized by the network base station to select a first downlink transmission mode (DTM) …”; note that CCI for a terminal must have a unique identifier of the terminal in order to receive CCI);
determining the DTM further based at least in part on the unique identifier (claim 10, “… receiving, by the first terminal using the first DTM and from the network base station, first data and a first channel selection information reference signal (CSI-RS), based at least in part on the first DTM for the first terminal being assigned by a subframe allocation determined by the network base station …”; note that DTM data for a terminal must have a unique identifier of the terminal); or
receiving the data further based at least in part on the unique identifier (claim 10, “… receiving, by the first terminal using the first DTM and from the network base station, first data and a first channel selection information reference signal (CSI-RS), based at least in part on the first DTM for the first terminal being assigned by a subframe allocation determined by the network base station …”; note that DTM data for a terminal must have a unique identifier of the terminal).
Independent claim 27 is rejected because it is a claim of the server equivalent to the system of claim 1 and has the same subject matter.
Dependent claims are rejected in a similar fashion to the independent claims
Independent claim 29 is rejected because it is a claim of the method performed by the system of claim 1 and has the same subject matter.
Dependent claims are rejected in a similar fashion to the independent claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANYE WU whose telephone number is (571)270-1665. The examiner can normally be reached on M-TH 8am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yemane Mesfin can be reached on (571) 272-3927. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JIANYE WU/Primary Examiner, Art Unit 2462