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
Applicant's arguments filed 12/10/2025 have been fully considered but they are not persuasive. With respect to the written description rejection, the rejection explains that the originally filed disclosure does not explain how the functions of determining a sensing frequency range are performed. The rejection explained that that applicant did not describe how the function of performing a determination of performing a sensing frequency range is performed based on frequency selectivity of a radio channel. The rejection explained that the applicant did not describe how the function of allocating frequency domain resources is performed based on the determined. The applicant, in the paragraphs from pages 10-11 states that these functions are performed and cites paragraphs that were analyzed in detail in the rejections but the applicant does not state how these functions are performed. Sections 2161.01(I) of the MPEP requires the applicant to describe how claimed functions are performed in order to meet the written description requirement. The applicant’s arguments regarding the circuitry of claim 13 and its dependents is not persuasive because the applicant did not disclose any specific configuration of a circuit to perform the method/or algorithm. If the applicant wants to claim the invention as a software algorithm, they need to make sure that the stored instructions for the algorithm and the stored instructions are part of the claimed apparatus. As of now, the apparatus only covers “circuitry”.
Regarding the rejections based on clarity, the applicant’s arguments are not persuasive. The applicant has not addressed the 112(b) rejection of claims 2 and 14. The applicant’s amendments do not address the lack of clarity with claims 3 and 15; the rejections have been revised to address the new claim language. The rejections of claims 9 and 21 have been withdrawn in view of the applicant’s amendments. The rejections of claims 3 and 15 based on 112(d) have been withdrawn in view of the applicant’s amendments.
Regarding the prior art, the applicant’s arguments against the Beg reference ignore how Beg is used in the claim. Beg shows the use of a “sensing” frequency range in the context of the teachings of Hasegawa is obvious. This is explained in the rejection. Hesegawa shows the breadth of the two steps claimed to be obvious but Hesegawa does not explicitly mention the use of a “sensing” frequency range. The cited portions of Hesegawa clearly determine a frequency range based on frequency selectivity of a radio channel and allocate frequency domain resources based on the determined frequency range. The Examiner notes that because the applicant did not provide a coherent description of how to actually perform these functions, the rejection is mapped according to the functions as they are best understood. The rejection explains why it would be obvious to perform these functions in the context of “sensing” frequencies.
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 1-9, 11-21, and 23-25 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.
Section 2162 of the MPEP states:
To obtain a valid patent, a patent application must contain a full and clear description of the invention for which a patent is sought in the manner prescribed by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. The requirement for an adequate written description ensures that the public receives something in return for the exclusionary rights that are granted to the inventor by a patent. The grant of a patent helps to foster and enhance the development and disclosure of new ideas and the advancement of scientific knowledge. Upon the grant of a patent in the U.S., information contained in the patent becomes a part of the information available to the public for further research and development, subject only to the patentee’s right to exclude others during the life of the patent.
Section 2163.03(V) of the MPEP states:
V. ORIGINAL CLAIM NOT SUFFICIENTLY DESCRIBED
While there is a presumption that an adequate written description of the claimed invention is present in the specification as filed. In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976), a question as to whether a specification provides an adequate written description may arise in the context of an original claim. An original claim may lack written description support when (1) the claim defines the invention in functional language specifying a desired result but the disclosure fails to sufficiently identify how the function is performed or the result is achieved or (2) a broad genus claim is presented but the disclosure only describes a narrow species with no evidence that the genus is contemplated. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1349-50 (Fed. Cir. 2010) (en banc). The written description requirement is not necessarily met when the claim language appears in ipsis verbis in the specification. "Even if a claim is supported by the specification, the language of the specification, to the extent possible, must describe the claimed invention so that one skilled in the art can recognize what is claimed. The appearance of mere indistinct words in a specification or a claim, even an original claim, does not necessarily satisfy that requirement."Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 968, 63 USPQ2d 1609, 1616 (Fed. Cir. 2002).
The applicant does not describe how to perform the two functions they are claiming in the independent claims. The applicant does not describe how to determine a sensing frequency range for a sensing device based on a frequency selectivity of a radio channel and the applicant does not describe how to allocate frequency domain resources for the sensing device at least in part based on the determined sensing frequency range. The disclosure provides literal support for each limitation but fails to describe how the disclosed functions are actually performed in such a way that meets the requirements of written description as explained in section 2163.03(V) and 2162 of the MPEP. The rejection which follows explains what is disclosed and why that disclosure fails to meet the written description requirement for each limitation.
The applicant defines frequency selectivity at the end of page 10 as describing “how much the radio channel varies over a collection of frequencies of interest”. The applicant states that where there is much variation in a radio channel, frequency selectivity is considered high and when there is little variation, frequency selectivity is considered low. The next paragraph on page 11, line 3, states that channel variations may be expressed in terms of RSSI or received power and variations can be defined in terms of magnitude different over frequencies of interest and can be expressed as a “magnitude variance value”. The next paragraph, beginning in line 8 of page 11, states that frequency selectivity can be parameterized based on one or more of a number of factors but the applicant provides no description of the actually techniques for any parameterization for any one or more than one together of these factors. The applicant provides no description of how this referenced parameterization relates to any other factors. This lack of description of parameterization clearly shows that claims 2 and 14 do not comply with the written description requirement because there is no description of how the claimed function of parameterization is performed or how it relates to any other concept disclosed.
The applicant begins defining the sensing frequency range, on page 11, line 19, as a sensing bandwidth or frequency spread. The paragraph from lines 22-28 of page 11 states that sensing frequency range is based on frequency selectivity by stating that when frequency selectivity is relatively high (much variation), frequency range is large and when frequency selectivity is low (little variation), frequency range is small. There is no description of what defines the variation that would define low or high selectivity is so the relationship between sensing frequency range size and frequency selectivity variation cannot be inferred from what is disclosed in this paragraph or anywhere else in the disclosure. The paragraph goes on to compare two different frequency selectivities (claims 3 and 15) but does not provide any context which explains what the second frequency selectivity in related to, as only one frequency selectivity is described previously in the disclosure.
The first paragraph on page 12 introduces an example which states that “the sensing frequency range may be determined as a portion of the shared frequency spectrum part” but there is description of what this “part” is. The next sentence references a ratio between frequency selectivities for “the sensing devices” and “for all sensing devices of the sensing scenario” but the applicant makes no attempt to explain what “sensing scenario” they are referring to or how the group of “all sensing devices” is different than “the sensing devices”. The example in the first paragraph of page 12 is incoherent because there is no relation between the concepts discussed in these sentences and what has been described previously in the disclosure. There appears to be great deal of missing context regarding whatever “scenario” the applicant is trying to refer to.
The paragraph on page 12, beginning at line 5, introduces the concept of allocating frequency domain resources by stating it is based at least in part on the determined sensing frequency range. As already pointed out the, the applicant has not actually described how to determine a sensing frequency range so the description of the allocation being “based on the determined sensing device” is already faulty. Even if it where assume that the applicant did not provide a description of how the sensing frequency range is determined, the applicant’s description of how the claimed function of “allocating” is performed is deficient.
The applicant on line 7 of page 12 describes “a possible approach for allocation” but this description is incoherent and non-sensical because it references concepts which are not described by the applicant in any manner. Specifically, there is not description of what “the shared frequency spectrum part” the applicant is referring to from which a “fraction” is allocated. The final sentence of this paragraph states that the fraction may depend on this “shared frequency spectrum part” but there is no description of the “part” or how it defines a specific “fraction”. This example is incomprehensible.
At line 11 of page 12, the applicant presents another example of allocation where the number of allocated resources is high when the sensing bandwidth is high but there is no description of the function that relates the number of allocated resources to the size of sensing bandwidth and there is no description of what constitutes either a high number of resources or high sensing bandwidth. This example clearly fails to explain how the claimed function of allocating resources is performed. The applicant fails to define how frequency domain resources are dependent upon a “sensing frequency range” in this example.
At line 18 of page 12, the applicant presents yet another example of what allocating might cover but this example is incoherent. The applicant references comparing a sensing bandwidth to a sensing frequency spread but does not define either concept. There is no description of what is being compared or how the sensing “bandwidth” compares to the sensing “frequency spread”. The applicant states that “non-contiguous” resources can be allocated when there are not enough resources available to accommodate the sensing frequence range using contiguous resources but the applicant does not in any manner define the condition when there are not enough resources available using contiguous resources.
On page 13, lines 13-24, the applicant seems to be stating that the method 200 can be adapted for managing resources for more than one sensing device but the preceding disclosure is specifically related to functions performed for a context with on a single sensing device. There is no description of how the invention would differentiate the determination of a sensing frequency range for each of multiple devices and there is no description of how the invention would allocate resources for each individual device. Consequently, claims 10 and 22 clearly fail to comply with the written description requirement.
The applicant’s lack of any description of how the claimed functions of determining a sensing frequency range for a sensing device and allocating frequency domain resources for a sensing device shows that the applicant failed to comply with 35 USC section 112(a) for lacking an adequate written description of the invention based on the guidance provided in sections 2163.03(V) and 2161.01(I) of the MPEP and the spirit of the law discussed in section 2162 of the MPEP.
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 2, 3, 13-21 and 23-25 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 2 and 14 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: it is not clear how the parameterization of the frequency selectivity relates to the functions of the independent claims; the parameterization would not appear to have any effect on the performance of the method claimed in claim 1 and performed by claim 13. If the applicant is trying to claim that the “determining a sensing frequency range” or any other step of the invention involves a step of parameterization, they need to explicitly claim such a limitation.
Claims 3 and 15 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted steps are: First, the applicant is claiming a condition of “when the frequency selectivity is higher than a first frequency selectivity” but the applicant does not claim a step that evaluates when this condition occurs so it is unclear how the “wherein” clause of claims 3 and 15 related to the actions of claims 1 and 13. Second, the applicant does not define a step of determining a first sensing frequency range for the first frequency selectivity so it is the applicant does not define the “first sensing frequency range” that defines the comparison of the claim.
Claims 13-21 and 22-25 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 elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: Claims 13-21 and 22-25 cover “controlling circuitry” configured to “cause” actions to occur. The applicant did not disclose any “circuitry” for carrying out the applicant’s invention. Instead, the applicant discloses the use of generic hardware that implements instructions for carrying out the invention (see pages 25-29 of the applicant’s disclosure). Therefore, the instructions are essential for carrying out the invention but not claimed in claims 13-21 and 22-25.
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, 2, 4-9, 11-14, 16-21, and 23-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication Number 2019/0393999 by Hasegawa et al. in view of U.S. Patent Number 11,617,100 to Beg et al.
As to claim 1, Hasegawa teaches a method for allocating frequency domain resources of a radio channel associated with a device, the method comprising: determining a frequency range for the device (Figure 28, S2) based on a frequency selectively of the radio channel (Figure 28, S1), the frequency range corresponding to how much radio channel varies over a plurality of frequencies (paragraphs 82 and 117, the determination of the reference signals in the frequency domain is a determination of how much the radio channel varies of a plurality of frequencies); and allocating frequency domain resources for the device at least in part based on the determined frequency (Figure 28, S6); however Hasegawa does not explicitly teach that the device is sensing device and the determined radio frequency is a “sensing” frequency range.
Beg teaches shows how sensing devices can produce frequency ranges that can be determined (col. 10, lines 5-29 and col. 22, lines 3-29).
It would have been obvious to one of ordinary skill in the wireless communication art at the time of the invention to combine the teachings of Hasegawa for managing the frequence domain resources with based on a determined frequency range with the teachings of Beg regarding sensing frequencies because even though Hasegawa does not explicitly mention sensing devices and their frequency use, Beg shows sensing frequencies use the same bands considered by Hasegawa and therefore would need to be considered when allocating frequency domain resources. The examiner notes that on page 15, line 22 of their disclosure, the applicant states that the same techniques can be used to analyze frequency selectivity for non-sensing devices and sensing device without any modification.
As to claims 12 and 13, see Figure 29 of Hasegawa and mapping of claim 1.
As to claims 2 and 14, see paragraphs 58, 87, and 153 of Hasegawa.
As to claims 4 and 16, see col. 10, lines 5-29 of Beg.
As to claims 5 and 17, see step s2 in Hasegawa, the reference signals represent a frequency range used.
As to claims 6 and 18, see paragraph 121 of Hasegawa in view of Beg which shows how “sensing” devices can be integrated.
As to claims 7 and 19, see step s1 in Hasegawa.
As to claims 8 and 20, see paragraph 121 of Hasegawa.
As to claims 9 and 21, see paragraph 52 of Hasegawa.
As to claims 11 and 23, see paragraph 52 of Hasegawa.
As to claims 24 and 25, the device in Figure 29 of Hasegawa can be considered a “scheduler” or a “network node”. Naming the device does not change its functionality and the applicant does not disclose anything meaningful about these names.
Claims Not Rejected with Prior Art
It is not clear how claims 3 and 15 are intended to limit the invention and thus their patentability could not be determined as it is not clear when the condition claimed is supposed to occur with respect to claims 1 and 13. The Examiner has not indicated allowable subject matter because the applicant sees no path forward for these limitations based on their lack of written description support, as described in this action.
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 DOUGLAS B BLAIR whose telephone number is (571)272-3893. The examiner can normally be reached Monday-Friday 9am-5pm.
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/DOUGLAS B BLAIR/Primary Examiner, Art Unit 2454