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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 12 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because the claim limitation of ‘a computer storage medium’ can pe construed as a signal per se.
The specification provides “A carrier medium arrangement may comprise one or more carrier media. Generally, a carrier medium may be accessible and/or readable and/or receivable by processing or control circuitry. Storing data and/or a program product and/or code may be seen as part of carrying data and/or a program product and/or code. A carrier medium generally may comprise a guiding/transporting medium and/or a storage medium. A guiding/transporting medium may be adapted to carry and/or carry and/or store signals, in particular electromagnetic signals and/or electrical signals and/or magnetic signals and/or optical signals. A carrier medium, in particular a guiding/transporting medium, may be adapted to guide such signals to carry them. A carrier medium, in particular a guiding/transporting medium, may comprise the electromagnetic field, e.g. radio waves or microwaves, and/or optically transmissive material, e.g. glass fiber, and/or cable. A storage medium may comprise at least one of a memory, which may be volatile or non-volatile, a buffer, a cache, an optical disc, magnetic memory, flash memory, etc.”
The MPEP states at 2106 (II) “It is essential that the broadest reasonable interpretation (BRI) of the claim be established prior to examining a claim for eligibility. The BRI sets the boundaries of the coverage sought by the claim and will influence whether the claim seeks to cover subject matter that is beyond the four statutory categories or encompasses subject matter that falls within the exceptions. See MyMail, Ltd. v. ooVoo, LLC, 934 F.3d 1373, 1379, 2019 USPQ2d 305789 (Fed. Cir. 2019) ("Determining patent eligibility requires a full understanding of the basic character of the claimed subject matter"), citing Bancorp Servs., LLC v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1273-74, 103 USPQ2d 1425, 1430 (Fed. Cir. 2012); In re Bilski, 545 F.3d 943, 951, 88 USPQ2d 1385, 1388 (Fed. Cir. 2008) (en banc ), aff'd by Bilski v. Kappos, 561 U.S. 593, 95 USPQ2d 1001 (2010) ("claim construction … is an important first step in a § 101 analysis"). Evaluating eligibility based on the BRI also ensures that patent eligibility under 35 U.S.C. 101 does not depend simply on the draftsman’s art. Alice, 573 U.S. 208, 224, 110 USPQ2d at 1984, 1985 (citing Parker v. Flook, 437 U.S. 584, 593, 198 USPQ 193, 198 (1978) and Mayo, 566 U.S. at 72, 101 USPQ2d at 1966). See MPEP § 2111 for more information about determining the BRI.
Claim interpretation affects the evaluation of both criteria for eligibility. For example, in Mentor Graphics v. EVE-USA, Inc., 851 F.3d 1275, 112 USPQ2d 1120 (Fed. Cir. 2017), claim interpretation was crucial to the court’s determination that claims to a "machine-readable medium" were not to a statutory category. In Mentor Graphics, the court interpreted the claims in light of the specification, which expressly defined the medium as encompassing "any data storage device" including random-access memory and carrier waves. Although random-access memory and magnetic tape are statutory media, carrier waves are not because they are signals similar to the transitory, propagating signals held to be non-statutory in Nuijten. 851 F.3d at 1294, 112 USPQ2d at 1133 (citing In re Nuijten, 500 F.3d 1346, 84 USPQ2d 1495 (Fed. Cir. 2007)). Accordingly, because the BRI of the claims covered both subject matter that falls within a statutory category (the random-access memory), as well as subject matter that does not (the carrier waves), the claims as a whole were not to a statutory category and thus failed the first criterion for eligibility.”
The specification only provides ambiguous definitions for the storage medium while failing to provide language that explicitly excludes transitory implementations. The MPEP section supports considerations of a BRI wherein storage includes carriers. As such the claimed limitation can be interpreted as a signal per se and is rejected as such.
Claim Objections
Claims 1-12 and 14-21 are objected to because of the following informalities:
Re claims 1, 2, 5, 11, 12 and 16; please replace all instances of ‘signalling’ with “signaling”.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier.
Such claim limitation(s) is/are: “transmission radio node configured to: transmit data signalling” in claim 2.
However, as this is the only recited element, it creates an issue of a single means or single element claim. Per the MPEP “A single means claim is a claim that recites a means-plus-function limitation as the only limitation of a claim. 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by its terms is limited to "an element in a claim for a combination." Therefore, single means claims that do not recite a combination cannot invoke section 112(f) or pre-AIA section 112, sixth paragraph. As such, they are not limited to the structure, material or act disclosed in the specification that performs the claimed function. Thus, a single means limitation that is properly construed will cover all means of performing the claimed function. The long-recognized problem with a single means claim is that it covers every conceivable means for achieving the stated result, while the specification discloses at most only those means known to the inventor. In re Hyatt, 708 F.2d 712, 218 USPQ 195 (Fed. Cir. 1983). A claim of such breadth reads on subject matter that is not enabled by the specification, and therefore, should be rejected under section 112(a) or pre-AIA section 112, first paragraph. See also MPEP § 2164.08(a).”
As such, Claim 2 as currently claimed fails to properly invoke the disclosed structure from the specification to limit the claims typical to a 112 (f) limitation, as described below, and invokes a 112(a) rejection for the claim (see below).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof [due to the single means issue, this interpretation has failed to be successfully invoked].
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112(a)
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 2 and 14-21 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim 2 (and by dependency claims 2 and 14-21) is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, because the claim purports to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, but fails to recite a combination of elements as required by that statutory provision and thus cannot rely on the specification to provide the structure, material or acts to support the claimed function. As such, the claim recites a function that has no limits and covers every conceivable means for achieving the stated function, while the specification discloses at most only those means known to the inventor. Accordingly, the disclosure is not commensurate with the scope of the claim.
Claim 2 recites a means plus function style claim, while only reciting a single element ‘transmit data signalling’. Extrapolated out, the limitation reads a ‘transmission radio node configured to transmit data signalling’. Every other limitation serves to define the data, but without any active elements or additional structure or ‘machine’ embodiments or modifications to the ‘transmit’ aspect. Per the MPEP “A single means claim is a claim that recites a means-plus-function limitation as the only limitation of a claim. 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, by its terms is limited to "an element in a claim for a combination." Therefore, single means claims that do not recite a combination cannot invoke section 112(f) or pre-AIA section 112, sixth paragraph. As such, they are not limited to the structure, material or act disclosed in the specification that performs the claimed function. Thus, a single means limitation that is properly construed will cover all means of performing the claimed function. The long-recognized problem with a single means claim is that it covers every conceivable means for achieving the stated result, while the specification discloses at most only those means known to the inventor. In re Hyatt, 708 F.2d 712, 218 USPQ 195 (Fed. Cir. 1983). A claim of such breadth reads on subject matter that is not enabled by the specification, and therefore, should be rejected under section 112(a) or pre-AIA section 112, first paragraph. See also MPEP § 2164.08(a).” As such the scope of the single means limitation in claim 2 lacks enablement as the claim enables all forms of the ability of the node to transmit including those not enabled by the specification.
This issue is not corrected by any associated dependent claim.
Claim Rejections - 35 USC § 112(b)
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 1-12 and 14-21 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, 2 and 12 recite the language: “…and one or both of: the transmission power for the first set of data blocks is dependent on the second MCS; and the transmission power for the second set of data blocks is dependent on the first MCS.”
This limitation, in each claimed instance is considered indefinite in scope as it is unclear as to the full scope of the limitations. The claim uses the term ‘and’ to link the two power-based limitations, and in doing so makes it unclear exactly what the intended scope is of the ‘one or both of’ limitation. To simplify the issue, the claim states ‘one or both of: A and B’. This style of limitation has been addressed in the Superguide ruling per MPEP 2111.01. From this, the limitation is read as ‘one of’ is read as ‘one of A and one of B’, while ‘both of’ is ‘both of A and B’ which is then the same limitation. There is no ‘or’ scenario supported by the language, because of the ‘and’ placed between limitations A and B. As such the claim recites redundant ‘and’ statements with no ‘or’ possible, and is indefinite in scope due to this. This claim limitation needs to be clarified with language that clearly states the applicant’s intention for the design and does not create confusion in the scope of the claim. Either there should be no option for an ‘or’ or the ‘or’ option should be properly supported in the claimed language. For prior art considerations, the limitation is being addressed in the most encompassing manner possible, but the scope of the claim requires clarification.
This issue is found throughout the claims, where again an ‘or’ is claimed but structurally not possible as an interpretation because of structure and placement of ‘and’ in the claims.
The additional claims that further specifically include this wording and create an additional instance of the indefinite claims scope issue include claims 3, 4, 7, 8, 9, 14, 15, 18, 19 and 20.
This issue leads to the rejection of all claims 1-12 and 14-21.
Claim 2 (claims 2 and 14-21 via dependency) are interpreted as attempting to recite a means plus function limitation (see above). However, this limitation is presented as a single means within the claim, and has failed to invoke the support of the claimed structure to perform the function, while also invoking a rejection under USC 112 (a) for single means. Of further issue is that the disclosure has failed to adequately provide sufficient disclosure of the structure to perform the function even in the event that 112(f) had been properly invoked.
Claim 2 has been rejected under USC 112(a) for reciting a single means claims. The MPEP states “Therefore, single means claims that do not recite a combination cannot invoke section 112(f) or pre-AIA section 112, sixth paragraph. As such, they are not limited to the structure, material or act disclosed in the specification that performs the claimed function.” As such fails to invoke the structure disclosed in the specification to perform the function, however for sake of clarity and compact prosecution, even if the claim limitation correctly satisfied the requirements to properly invoke 112(f), the provided disclosure is still lacking appropriate disclosure of the structure to perform the function. Therefore in regards to the limitations properly reciting structure, claims 2 and 14-21 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.
Claim limitation “transmitting radio node configured to transmit data signalling” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The claimed limitation recites a generic term ‘node’ without any defined structural implementation to achieve the noted function. The terms that modify the claim limitation also do not carry an inherent structural implementation. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Additional potential 112(b) issues regarding claims 2 and 14-21 for consideration:
The claims are currently interpreted as invoking 112(f), wherein structure is intended through the limitations. However, for clarity of the record and compact prosecution purposes, it should also be noted that if these claims were amended to not invoke 112(f), there is still an issue with the claims in that they lack a transitional phrase such as ‘comprising’. The claim is a ‘machine’ claim, intending to claim a physical embodiment, but then lacks any limitations that recite a physical element. This also would induce a 112(b) interpretation, given that as currently written the ‘machine’ claim only claims a method/steps and no actual part to perform a claimed function. Put another way, this is a machine that is never stated to comprise any composition or parts to perform any function. This rejection under 112(b) was not applied in light of the 112(f) interpretation, but applicant should be mindful of this issue in any corrective amendments made to the claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-8, 11, 14-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Futagi (US Pub 20200045649, see IDS).
Re claims 1 and 2, Futagi discloses a method of operating a transmitting radio node and the associated transmitting radio node for in a wireless communication network, the method comprising:
transmitting data signalling (Fig 3 and 7 section 110; Par 36-42, 61-62 – Fig 3 and 7 have commonly assigned reference numbers detailed only in the discussion of Fig 3, so all relevant paragraphs are cited for clarity henceforth),
the data signalling representing a plurality of data blocks (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68),
a first set of data blocks of the plurality of data blocks being associated to a first Modulation and Coding Scheme (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68), MCS, and a second set of data blocks of the plurality of data blocks being associated to a second MCS (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68), the first MCS being different from the second MCS (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68);
and one or both of:
the transmission power for the first set of data blocks is dependent on the second MCS (Fig 9 Par 65-70 – power decisions made based on a difference present between the SDCH and SCCH MCS at the given CQI); and
the transmission power for the second set of data blocks is dependent on the first MCS (Fig 9 Par 65-70 – power decisions made based on a difference present between the SDCH and SCCH MCS at the given CQI).
Re claims 3 and 14; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2, and further wherein one or both the transmission power (Fig 9 Par 65-70) and a transmission power parameter depending on MCS (Fig 9 Par 65-70) for the first set of data blocks and the second set of data blocks are the same (Fig 9 Par 65-70).
Re claims 4 and 15; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2, and further wherein transmission power for one or both of the first set (Fig 9; Par 65-70) and the second set (Fig 9; Par 65-70) is based on a transmission power parameter dependent on a MCS (Fig 9; Par 65-70).
Re claims 5 and 16; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2, and further wherein the data signalling is transmitted over a plurality of consecutive allocation units (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68).
Re claims 6 and 17; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2, and further wherein the transmission power for the first set and second set (Par 48, 62, 68-70) is based on a maximum allowed transmission power according to the first MCS and the second MCS (Fig. 9; Par 48, 62, 68-70 – limits, ranges control a range and thus a maximum/minimum of power based on differences and PAPR considerations).
Re claims 7 and 18; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2, and further wherein the transmission power for one or both of the first set and the second set (Par 48, 62, 68-70) is based on a minimum allowed transmission power according to the first MCS and the second MCS (Fig. 9; Par 48, 62, 68-70 – limits, ranges control a range and thus a maximum/minimum of power based on differences and PAPR considerations).
Re claims 8 and 19; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2, and further wherein the transmission power for one or both of the first set and the second set (Fig. 1-2, 9; Par 67-70) is based on the first MCS and the second MCS (Fig. 1-2, 9; Par 67-70).
Re claim 11; Futagi discloses the method according to claim 1, and further discloses wherein the data signalling is scheduled with a control information message (Fig 1, 2, 7; Par 4, 7-9, 35-42).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 9-10 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Futagi (US Pub 20200045649, see IDS) as applied to claims 1 and 2 above, and further in view of Furuskar (herein after Fur)(US Patent 6704898).
Re claims 9 and 20; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2; and while it would be clearly anticipated that Futagi provides disclosure to encompass ‘a new transmission’ (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68), the scope of the claims is interpreted to be drawn towards the design capacity to process a new transmission in light of existing retransmission [please see the 112(b) rejection above for additional consideration of this], therefore; Futagi fails however to explicitly disclose wherein one or both: one or more of the data blocks are associated to new transmissions; and one or more of the data blocks are associated to retransmissions.
This design is however disclosed by Fur. Fur discloses wherein one or both: one or more of the data blocks are associated to new transmissions (Fig 4 Col 4 line 59-C5L40, C6L18-65; Fig 6a-b, C7L66-C8L30 – initial transmission vs retransmission); and one or more of the data blocks are associated to retransmissions (Fig 4 Col 4 line 59-C5L40, C6L18-65; Fig 6a-b, C7L66-C8L30 – initial transmission vs retransmission).
Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the disclosure of Futagi in order to incorporate the retransmission processing of Fur based on the rationale of the use of a known technique to improve similar designs in the same way, in this instance the use and consideration of retransmission and retransmission characteristics allows for a dynamic review and adjustment to signal communication failures to improve the overall connectivity and functionality of the communication environment.
Re claims 10 and 21; Futagi discloses the method according to claim 1 and the associated transmitting radio node of claim 2; and while it would be clearly anticipated that Futagi provides disclosure to encompass ‘a new transmission’ (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68), the scope of the claims is interpreted to be drawn towards the design capacity to process a distinction between a new transmission in light of existing retransmission, therefore; Futagi fails however to explicitly disclose wherein the Modulation and Coding Scheme used for transmitting a data block is based on whether the data block is transmitted in a new transmission or retransmission.
This design is however disclosed by Fur. Fur discloses wherein the Modulation and Coding Scheme used for transmitting a data block is based on whether the data block is transmitted in a new transmission or retransmission (Fig 4 Col 4 line 59-C5L40, C6L18-65; Fig 6a-b, C7L66-C8L30 – initial transmission vs retransmission).
Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the disclosure of Futagi in order to incorporate the retransmission processing of Fur based on the rationale of the use of a known technique to improve similar designs in the same way, in this instance the use and consideration of retransmission and retransmission characteristics allows for a dynamic review and adjustment to signal communication failures to improve the overall connectivity and functionality of the communication environment.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Futagi (US Pub 20200045649, see IDS) in view of Hu (US Pub 20130095748).
Re claim 12, Futagi discloses an embodiment of performing a method, the method comprising transmitting data signalling (Fig 3 and 7 section 110; Par 36-42, 61-62 – Fig 3 and 7 have commonly assigned reference numbers detailed only in the discussion of Fig 3, so all relevant paragraphs are cited for clarity henceforth),
the data signalling representing a plurality of data blocks (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68),
a first set of data blocks of the plurality of data blocks being associated to a first Modulation and Coding Scheme (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68), MCS, and a second set of data blocks of the plurality of data blocks being associated to a second MCS (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68), the first MCS being different from the second MCS (Fig 1-2; Par 7, 36-41, 44-45, 47-48, 61-62, 67-68);
and one or both of:
the transmission power for the first set of data blocks is dependent on the second MCS (Fig 9 Par 65-70 – power decisions made based on a difference present between the SDCH and SCCH MCS at the given CQI); and
the transmission power for the second set of data blocks is dependent on the first MCS (Fig 9 Par 65-70 – power decisions made based on a difference present between the SDCH and SCCH MCS at the given CQI); Futagi fails however to explicitly disclose wherein the embodiment comprises a computer storage medium storing a computer program comprising instructions causing processing circuitry to one or both control and perform a method.
This design is however disclosed by Hu. Hu discloses wherein the embodiment comprises a computer storage medium (Par 39, 111-112, 122-123) storing a computer program (Par 39, 111-112, 122-123) comprising instructions causing processing circuitry (Par 39, 111-112, 122-123) to one or both control and perform a method (Par 39, 111-112, 122-123).
Therefore, it would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to modify the disclosure of Futagi in order to incorporate the computer processing based embodiment of Hu based on the rationale of the use of a known technique to improve similar designs in the same way, in this instance by incorporating the design within a processor and medium based embodiment would provide an expected and known functional application within the scope of the design, and allow for the implementation and application of the design within proposed communication environments in line with the expected functional embodiments of the devices participating in communication through the use of known and understood processor and medium based device designs to run the applicable programs to perform the designed functionality.
Conclusion
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/MICHAEL R NEFF/Primary Examiner, Art Unit 2631
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