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 .
This action is in response to applicant’s amendment/arguments filed on 04/01/2026. Claim 1 has been cancelled. Claims 2-20 have been added. Currently, claims 2-20 are pending. This action is made FINAL.
Response to Arguments
Applicant’s arguments/amendments with respect to new claims 2-20 have been considered but are moot in view of the new ground(s) of rejection.
Claim Objections
Claims 3-7 are objected to because of the following informalities:
On line 1 of each of claims 3-7, replace “claim 1” with -- claim 2 --;
On line 5 of claim 2, replace “a plurality of” with -- a first plurality of --;
On line 12 of claim 2, replace “a second cellular wireless channel a second” with -- a second cellular wireless channel within a second”;
Appropriate correction is required.
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 6, 11, 14, 15 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.
Regarding new claim 6, it recites the phrases “LTE” and/or “not LTE”. While originally filed specification reasonably provides supports for cellular standard by describing femtocell base station (see par [0032], [0078] [0093]), the originally filed specification fails to provide any support for the claimed “LTE” or “non-LTE”. Therefore, 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. Same rejection applies to each of new claims 14 and 15.
Consider new claim 11, it recites “wherein the second active probing data comprises sending beacons from the first device and using a beacon counter at the cellular base station”. While originally filed specification provides supports for active probing data (see par [0033]-[0034]), the originally filed specification fails to provide any support for the claimed limitation “sending beacons from the first device and using a beacon counter at the cellular base station” or “beacon”. Therefore, 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.
Response to Amendments
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 2, 5-9 and 13-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Whinnett et al. (US 20120264433 A1) in view of Vaderna et al. (US 201400887716 A1).
Consider claim 2, Whinnett discloses a base station (read as the dual mode femtocell 4 as base station unit that wirelessly communicates with UE 2 and provides logical cells 4a and 4b in a wireless cellular communication network, figure 1, par [0003] and [0024]-[0025]) comprising:
a first interface that couples to a plurality of smartphones in accordance with a first cellular standard, the first interface couples to a first smartphone within the plurality of smartphones and facilitates an estimation of a first channel quality corresponding to a first wireless channel within a plurality of cellular wireless channels, the first plurality of cellular wireless channels being compliant with a first cellular standard, the first channel quality is measured using first passive probing (read as cell 4a with its antenna of dual mode femtocell 4 as the RATA communication path for UE 2, where UE 2 would be a smart phone and multiple UEs would operate in the cells; the RRM entity monitors operating conditions, UE reported measurement events, and periodic UE measurements to ascertain quality of service for UE 2 in cell 4a, figures 1-2, par [0024]-[0025], [0031]-[0032] and [0046]-[0053]);
a second interface that couples to the plurality of smartphones in accordance with a second cellular standard, the second interface couples to the first smartphone within the plurality of smartphones and facilitates an estimation of a second channel quality corresponding to a second cellular wireless channel a second plurality of cellular wireless channels, the second plurality of cellular wireless channels being compliant with a second cellular standard, the second channel quality is measured using second passive probing (read as cell 4b with its antenna of dual mode femtocell 4 as the RATB communication path for UE 2 and multiple UEs, where cell 4b uses a different RAT and a different telecommunication standard such as LTE; the joint RRM entity evaluates cell 4b with the monitored operating conditions and would move UE 2 from RATA to RATB when that path provides the better service result, figures 1-2, par [0025], [0032]-[0035], [0043]-[0044] and [00464]-[0053]);
an optimization center integrated within the base station, the optimization center receives first data associated with the first passive probing and the second data associated with the second passive probing, the optimization center identifies when the first channel quality falls below a threshold and transitions connectivity to the first smartphone using the second cellular wireless channel (read as joint RRM entity inside dual mode femtocell 4 as the resource control function for cells 4a and 4b; the joint RRM entity uses information relating to both cells, receives measurement events and periodic measurement, recognizes low-resource or signal quality trigger conditions for cell 4a such as signal quality from cell 4a has fallen below the broadcast value, and performs handover of UE form RATA to RATB through cell 4b when that movement provides a performance improvements, figures 1-2, par [0017]-[0018], [0028], [0035], [0039], [0041] and [0045]-[0048]).
However, Whinnett discloses the claimed invention above and the use of passive probing as above but does not specifically disclose both active probing passive probing such that measuring the first channel quality using first active probing and second channel quality using second active probing; the optimization center receiving first data associated with the first active probing and second data associated with second active probing; and express active and passive probing for measurement data.
Nonetheless, Vaderna discloses active and passive measurements comprising improved MDT concept 200, where UE 208 receives a measurement configuration, uses measurement component 222 to generate test traffic for active measurement, performs traffic and radio measurements including throughput, delay and jitter, and sends measurement results through transmitting component 224 to RAN 206 nodes and NMS 202; and identifies passive measurements as measurements on live user traffic, figures 2-4, par [0014], [0064]-[0065], [0069]-[0070], [0073], [0075], [0080], [0086], [0089], [0097] and [0104].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Vaderna into the teachings of Whinnett, to configure joint RRM cell monitoring using Vaderna’s active and passive MDT measurements, in order to collect controlled test traffic and live traffic data for making better handover decision (see par [0032]-[0035]).
Consider claim 5, as applied to claim 2 above, Whinnett, as modified by Vaderna, discloses wherein the second handover check is repeated when the second channel quality falls below a threshold based on operating conditions (read as the joint RRM entity monitoring cell 4b with the operating conditions of cells 4a and 4b, repeating a handover check when cell resources drop below a threshold, and investigating movement to cell 4b when signal quality from cell 4a falls below a broadcast value, figures 2, par [0032]-[0035], [0039] and [0045]) but does not specifically disclose wherein the second active probing is initiated when the second channel quality falls below a passive probing threshold based on the second passive probing.
Nonetheless, Vaderna further discloses conditioned active measurement in which NMS 202 configures measurements based on network performance, UE 208 generates test traffic when active measurement configuration is present, and active measurements can be configured in selected cells when congestion or poor radio quality conditions prevail, figures 2, 4, 7 and 10, par [0014], [0032], [0075], [0080], [0094] and [0097].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Vaderna into the teachings of Whinnett, which modified by Vaderna, to configure threshold handover check using Vaderna’s conditioned active measurement, in order to trigger controlled test traffic to make better handover decisions under degraded cell conditions.
Consider claim 6, as applied to claim 2 above, Whinnett, as modified by Vaderna, discloses wherein the first cellular standard is LTE and the second cellular standard is not LTE (read as LTE and UMTs, figure 1, par [0025] and [0060]).
Consider claim 7, as applied to claim 2 above, Whinnett, as modified by Vaderna, discloses wherein the base station is a small cell base station (read as the dual mode femtocell 4 used for cells 4a and 4b, figure 1, par [0004] and [0024]-[0025]).
Consider claim 8, Whinnett discloses a method for maintaining a plurality of wireless channels across a plurality of devices within a multi-cell environment (read as dual mode femtocell 4 that controls communication with UE 2 across cell 4a and 4b, where the cells use different RATs, multiple UEs would operate in the cells, and the joint RRM entity monitors the cells and selects whether UE 2 remains in cell 4a or moves to cell 4b, figures 1-2, par [0009], [0025] and [0031]-[0035]), the method comprising:
receiving first measurement data at a cellular base station from a first device within the plurality of devices, the first measurement data corresponding to a first wireless channel within a first cell operating in accordance with a first cellular standard (read as dual mode femtocell 4 receiving measurement events and periodic UE measurements from UE 2 for serving cell 4a, where cell 4a uses RATA and a first telecommunication standard such as UMTS, and UE 2 is one of the mobile terminals served by the cellular base station, figures 1-2, par [0017], [0024]-[0025], [0031] and [0046]-[0048]);
receiving second measurement data at the cellular base station from the first device, the second measurement data corresponding to a second wireless channel within a second cell operating in accordance with a second cellular standard (read as the same UE 2 being evaluated for cell 4b using RATB, wherein cell 4b uses a second telecommunication standard such as LTE; the joint RRM entity uses information for cell 4a and 4b with UE reported measurement events and periodic UE measurements to decide whether UE 2 should move from RATA to RATB, figures 1-2, par [0017], [0025], [0033], [0035] and [0046]-[0048]);
assessing the first measurement data for a first performance estimation corresponding to the first wireless channel within the first cell, and assessing the second measurement data for a second performance estimation corresponding to the second wireless channel within the second cell (read as the joint RRM entity assessing operating conditions and measured parameters for cell 4a and cell 4b, including Quality of Service, throughput, bandwidth use and cell state information, to compare the service available to UE 2 in RATA with service available through RATB, figure 2, par [0032]-[0033] and [0044]);
selecting the first wireless channel based on a comparison of the first performance estimation and the second performance estimation (read as the joint RRM entity comparing whether RATA and RATB provides the better operating result for UE 2; when movement to cell 4b would not improve performance, UE 2 remains in cell 4a as the optimum cell, and the most efficient combination of the UEs and the RATs is selected, figure 2, par [0033]-[]0034], [0055] and [0060]); and
monitoring at least one performance estimation characteristic of the first wireless channel using passive probing (read as the joint RRM entity repeatedly monitoring cell 4a through operating conditions, including UE reported measurements events, periodic UE measurements, sniffer measurements, noise plus interference measurements and loading changes, which are used to check the service state for UE 2 in the optimum cell, figures 2, par [0032], [0038]-[0039] and [0046]-[0053]).
However, Whinnett discloses the claimed invention above and the use of passive probing as above but does not specifically disclose both active probing passive probing such that receiving first active probing data and second active probing data at the cellular base station from the first device; assessing the first active probing data and second active probing data for the first and second performance estimations; and express labeling of live user traffic monitoring as passive probing.
Nonetheless, Vaderna discloses active and passive measurements comprising improved MDT concept 200, where UE 208 receives a measurement configuration, uses measurement component 222 to generate test traffic for active measurement, performs traffic and radio measurements including throughput, delay and jitter, and sends measurement results through transmitting component 224 to RAN 206 nodes and NMS 202; and identifies passive measurements as measurements on live user traffic, figures 2-4, par [0014], [0064]-[0065], [0069]-[0070], [0073], [0075], [0080], [0086], [0089], [0097] and [0104].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Vaderna into the teachings of Whinnett, to configure joint RATA and RATB selection using Vaderna’s active and passive MDT measurements, in order to collect controlled test traffic and live traffic data for better handover decision (see par [0032]-[0035]).
Consider claim 9, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses a step of improving connectivity to the first device by transitioning to the second wireless channel to communicate with the first device if the at least one performance characteristics of the first wireless channel falls below a performance threshold (read as UE 2 communicating through cell 4a, the joint RRM entity checking whether movement to cell 4b would improve throughput and QoS, repeating that check when resources fall below a threshold, and making a handover from cell 4a to cell 4b when the movement provides the better service result, figure 2, par [0031]-[0035], [0039 and [0045]).
Consider claim 13, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses a step of identifying when passive probing and active probing indicates a channel quality on the first wireless channel falls below a predefined threshold and switches to the second wireless channel (read as joint RRM entity using active and passive type measurements/operation conditions for cell 4a, detecting when resources or signal quality fall below threshold criteria, and moving UE 2 from cell 4a to cell 4b when the movement would provide a performance improvement, figure 2, par [0032], [0035], [0039] and [0045]-[0053]) of Whinnett, and par [0014] of Vaderna).
Consider claim 14, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the first cellular standard is LTE and the second cellular standard is not LTE (read as LTE and UMTs, figure 1, par [0025] and [0060]).
Consider claim 15, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the cellular base station supports LTE and at least one other cellular standard (read as LTE and UMTs, figure 1, par [0025] and [0060]).
Consider claim 16, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein a handover check is repeated for the first wireless channel when operating conditions for the first wireless channel indicates a corresponding channel quality falling below second threshold (read as the joint RRM entity monitoring cell 4b with the operating conditions of cells 4a and 4b, repeating a handover check when cell resources drop below a threshold, and investigating movement to cell 4b when signal quality from cell 4a falls below a broadcast value, figures 2, par [0032]-[0035], [0039] and [0045]) but does not specifically disclose wherein active probing is performed on the first wireless channel when passive probing on the first wireless channel indicates a corresponding channel quality falling below second threshold.
Nonetheless, Vaderna further discloses conditioned active measurement in which NMS 202 configures measurements based on network performance, UE 208 generates test traffic when active measurement configuration is present, and active measurements can be configured in selected cells when congestion or poor radio quality conditions prevail, figures 2, 4, 7 and 10, par [0014], [0032], [0075], [0080], [0094] and [0097].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Vaderna into the teachings of Whinnett, which modified by Vaderna, to configure threshold handover check using Vaderna’s conditioned active measurement, in order to trigger controlled test traffic to make better handover decisions under degraded cell conditions.
Consider claim 17, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses the step of an optimization center integrated within the cellular base station controlling transitions between the first wireless channel and the second wireless channel (read as the joint RRM entity inside dual mode femtocell 4 as the integrated control unction that manages cells 4a and 4b, monitors the cells, selects the efficient combination of UEs and RATs, and controls handover between RATA and RATB when movement between the cells provides the selected service result, figures 1 and 2, par [0028], [0032], [0035], [0041] and [0060]).
Consider claim 18, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the cellular base station is an integrated base station in a single geographical location (read as dual mode femtocell 4 as a single base station unit providing both cells 4a and 4b, where the two logical cells share the same cell center point, represent the same geographical node, and share base station sources, figure 1, par [0052]).
Consider claim 19, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the cellular base station supports the first cellular standard and the second cellular standard at the same time (read as dual mode femtocell 4 as one base station unit operating cells 4a and 4b using different RATs and different telecommunication standards, such as UMTS and LTE, with UEs operating in both cells at any give time, figure 1, par [0025] and [0031]).
Consider claim 20, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the cellular base station is a small cell base station (read as the dual mode femtocell 4 used for cells 4a and 4b, figure 1, par [0004] and [0024]-[0025]).
Claims 3-4 and 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Whinnett et al. (US 20120264433 A1) in view of Vaderna et al. (US 201400887716 A1), and in further view of Feder et al. (US 20050239491 A1).
Consider claim 3, as applied to claim 2 above, Whinnett, as modified by Vaderna, discloses wherein the first and second passive probing comprises receiving measurement events received from the first smartphone (read as dual mode femtocell 4 receiving measurement events and periodic UE measurements from UE 2, where UE 2 would be a smart phone, and those received measurements are part of the operating conditions used by the RRM entity for cells 4a and 4b, figures 1-2, par [0017], [0024], [0031] and [0046]-[0048]) but does not specifically disclose the first and second passive probing comprises counting a number of ACK messages received from the first smartphone.
Nonetheless, Feder further discloses ACK counting in which wireless unit 12 communicates over wireless link 20 with AP 24 of base station 22; expected and actually received ACKs are tracked in an ACK register or array, and the number or percentage of received or lost acknowledgements is used as wireless link information, figures 1 and 2, par [0018]-[0020], [0028], [0031] and [0033].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Feder into the teachings of Whinnett, which modified by Vaderna, to configure the cell measurement monitoring using Feder’s ACK register counting, in order to quantify packet delivery through acknowledgement feedback during passive measurement to improve the handover decisions making.
Consider claim 4, as applied to claim 2 above, Whinnett, as modified by Vaderna, discloses wherein the base station monitors operating conditions of the second cellular wireless channel (read as dual mode femtocell 4 monitoring operation conditions for cell 4b using RATB, wherein the joint RRM entity evaluates information for cells 4a and 4b before moving UE 2 to the cell 4b path, figures 1 and 2, par [0025], [0032]-[0035] and [0043]-[0053]) but does not specifically disclose wherein the base station adjusts a power level of communication within the second cellular wireless channel based on the second passive probing.
Nonetheless, Feder discloses ACK power control in which a power control system uses expected ACKs, received ACKs, missed ACKs, an ACK register and packet loss rate PLR thresholds to increase or decrease transmit power, and that the same power control system would be implemented on base station side to control base station transmit power on the forward link, figures 1 and 2, par [0014], [0021] and [0028]-[0031].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Feder into the teachings of Whinnett, which modified by Vaderna, to configure the cell 4b measurement monitoring using Feder’s ACK power control, in order to adjust transmit power using delivery feedback to reduce power consumption.
Consider claim 10, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the first and second passive probing comprises receiving measurement events received from the first smartphone (read as dual mode femtocell 4 receiving measurement events and periodic UE measurements from UE 2, where UE 2 would be a smart phone, and those received measurements are part of the operating conditions used by the RRM entity for cells 4a and 4b, figures 1-2, par [0017], [0024], [0031] and [0046]-[0048]) but does not specifically disclose the passive probing comprises counting a number of ACK messages received from the first device while communicating on the first wireless channel.
Nonetheless, Feder further discloses ACK counting in which wireless unit 12 communicates over wireless link 20 with AP 24 of base station 22; expected and actually received ACKs are tracked in an ACK register or array, and the number or percentage of received or lost acknowledgements is used as wireless link information, figures 1 and 2, par [0018]-[0020], [0028], [0031] and [0033].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Feder into the teachings of Whinnett, which modified by Vaderna, to configure the cell measurement monitoring using Feder’s ACK register counting, in order to quantify packet delivery through acknowledgement
Consider claim 11, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the second active probing data (read as the active measurement, par [0014] of Vaderna) but does not specifically disclose the second active probing sending beacons (for the purpose of examination, claimed new matter “beacon” is being read as “ACK”) from the first device and using a beacon counter at the cellular base station (see 35 USC 112 rejection above).
Nonetheless, Feder discloses ACK power control in which a power control system uses expected ACKs, received ACKs, missed ACKs, an ACK register and packet loss rate PLR thresholds to increase or decrease transmit power, and that the same power control system would be implemented on base station side to control base station transmit power on the forward link, figures 1 and 2, par [0014], [0021] and [0028]-[0031].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Feder into the teachings of Whinnett, which modified by Vaderna, to configure the cell 4b measurement monitoring using Feder’s ACK power control, in order to adjust transmit power using delivery feedback to reduce power consumption.
Consider claim 12, as applied to claim 8 above, Whinnett, as modified by Vaderna, discloses wherein the base station monitors operating conditions of the second cellular wireless channel (read as dual mode femtocell 4 monitoring operation conditions for cell 4b using RATB, wherein the joint RRM entity evaluates information for cells 4a and 4b before moving UE 2 to the cell 4b path, figures 1 and 2, par [0025], [0032]-[0035] and [0043]-[0053]) but does not specifically discloses a step of adjusting a power level of communication within the first wireless channel based at least partially on the passive probing.
Nonetheless, Feder discloses ACK power control in which a power control system uses expected ACKs, received ACKs, missed ACKs, an ACK register and packet loss rate PLR thresholds to increase or decrease transmit power, and that the same power control system would be implemented on base station side to control base station transmit power on the forward link, figures 1 and 2, par [0014], [0021] and [0028]-[0031].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to further incorporate the teachings of Feder into the teachings of Whinnett, which modified by Vaderna, to configure the cell 4b measurement monitoring using Feder’s ACK power control, in order to adjust transmit power using delivery feedback to reduce power consumption.
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 2-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,943,644 in view of Whinnett et al. (US 20120264433 A1).
Consider claim 2, U.S. Patent No. 11,943,644 discloses a base station comprising: a first interface that couples to a plurality of smartphones in accordance with a first cellular standard, the first interface couples to a first smartphone within the plurality of smartphones and facilitates an estimation of a first channel quality corresponding to a first wireless channel within a plurality of wireless channels, the first plurality of wireless channels being compliant with a first cellular standard, the first channel quality is measured using first active probing and first passive probing; a second interface that couples to the plurality of smartphones in accordance with a second standard, the second interface couples to the first smartphone within the plurality of smartphones and facilitates an estimation of a second channel quality corresponding to a second wireless channel a second plurality of wireless channels, the second plurality of wireless channels being compliant with a second standard, the second channel quality is measured using second active probing and second passive probing; an optimization center integrated within the base station, the optimization center receives first data associated with the first active probing and first passive probing and the second data associated with the second active probing, the optimization center identifies when the first channel quality falls below a threshold and transitions connectivity to the first smartphone using the second wireless channel (see claim 1) but does not specifically disclose the second standard as second cellular standard.
Nonetheless, Whinnett discloses similar communication system comprising femtocell 4, cells 4a and 4b and UE 2, communicating with first standard as UMTS cellular standard and second standard as LTE cellular standard, figure 1, par [0025]-[0060].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Whinnett into the teachings of U.S. Patent No. 11,943,644, to configure the standards using Whinnett’s cellular standards, in order to allow handover to long range cellular standard/network to achieve wide-area coverage instead of WiFi standard/network.
Consider claim 3, as applied to claim 2 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the first and second passive probing comprises counting a number of ACK messages received from the first smartphone (see claim 2).
Consider claim 4, as applied to claim 2 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the base station adjusts a power level of communication within the second cellular wireless channel based on the second passive probing (see claim 3).
Consider claim 5, as applied to claim 2 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the second active probing is initiated when the second channel quality falls below a passive probing threshold based on the second passive probing (see claim 4).
Consider claim 6, as applied to claim 2 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the first cellular standard is LTE and the second cellular standard is not LTE (read as communication system comprising femtocell 4, cells 4a and 4b and UE 2, communicating with first standard as UMTS cellular standard and second standard as LTE cellular standard, figure 1, par [0025]-[0060] of Whinnett).
Consider claim 7, as applied to claim 2 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the base station is a small cell base station (see claim 7).
Consider claim 8, U.S. Patent No. 11,943,644 discloses a method for maintaining a plurality of wireless channels across a plurality of devices within a multi-cell environment, the method comprising: receiving first active probing data at a base station from a first device within the plurality of devices, the first active probing data corresponding to a first wireless channel within a first cell operating in accordance with a first cellular standard; receiving second active probing data at the base station from the first device, the second active probing data corresponding to a second wireless channel within a second cell operating in accordance with a second standard; assessing the first active probing data for a first performance estimation corresponding to the first wireless channel within the first cell, and assessing the second active probing data for a second performance estimation corresponding to the second wireless channel within the second cell; selecting the first wireless channel based on a comparison of the first performance estimation and the second performance estimation; and monitoring at least one performance estimation characteristic of the first wireless channel using passive probing (see claim 8) but does not specifically disclose the second standard as second cellular standard.
Nonetheless, Whinnett discloses similar communication system comprising femtocell 4, cells 4a and 4b and UE 2, communicating with first standard as UMTS cellular standard and second standard as LTE cellular standard, figure 1, par [0025]-[0060].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Whinnett into the teachings of U.S. Patent No. 11,943,644, to configure the standards using Whinnett’s cellular standards, in order to allow handover to long range cellular standard/network to achieve wide-area coverage instead of WiFi standard/network.
Consider claim 9, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses a step of improving connectivity to the first device by transitioning to the second wireless channel to communicate with the first device if the at least one performance characteristics of the first wireless channel falls below a performance threshold (see claim 9).
Consider claim 10, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the passive probing comprises counting a number of ACK messages received from the first device while communicating on the first wireless channel (see claim 10).
Consider claim 11, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the second active probing data comprises sending beacons from the first device and using a beacon counter at the cellular base station (see claim 11).
Consider claim 12, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses a step of adjusting a power level of communication within the first wireless channel based at least partially on the passive probing (see claim 12).
Consider claim 13, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses a step of identifying when passive probing and active probing indicates a channel quality on the first wireless channel falls below a predefined threshold and switches to the second wireless channel (see claim 13).
Consider claim 14, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnetta, discloses wherein the first cellular standard is LTE and the second cellular standard is not LTE (read as communication system comprising femtocell 4, cells 4a and 4b and UE 2, communicating with first standard as UMTS cellular standard and second standard as LTE cellular standard, figure 1, par [0025]-[0060] of Whinnett).
Consider claim 15, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the cellular base station supports LTE and at least one other cellular standard (see claim 15).
Consider claim 16, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein active probing is performed on the first wireless channel when passive probing on the first wireless channel indicates a corresponding channel quality falling below second threshold (see claim 16).
Consider claim 17, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses the step of an optimization center integrated within the cellular base station controlling transitions between the first wireless channel and the second wireless channel (see claim 17).
Consider claim 18, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the cellular base station is an integrated base station in a single geographical location (see claim 18).
Consider claim 19, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the cellular base station supports the first cellular standard and the second cellular standard at the same time (see claim 19).
Consider claim 20, as applied to claim 8 above, U.S. Patent No. 11,943,644, as modified by Whinnett, discloses wherein the cellular base station is a small cell base station (see claim 20).
Claims 2 and 8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,166,181 in view of Whinnett et al. (US 20120264433 A1).
Consider claim 2, U.S. Patent No. 11,166,181 discloses a base station comprising: a first interface that couples to a plurality of smartphones in accordance with a first cellular standard, the first interface couples to a first smartphone within the plurality of smartphones and facilitates an estimation of a first channel quality corresponding to a first wireless channel within a plurality of wireless channels, the first plurality of wireless channels being compliant with a first cellular standard, the first channel quality is measured using first active probing and first passive probing; a second interface that couples to the plurality of smartphones in accordance with a second standard, the second interface couples to the first smartphone within the plurality of smartphones and facilitates an estimation of a second channel quality corresponding to a second wireless channel a second plurality of wireless channels, the second plurality of wireless channels being compliant with a second standard, the second channel quality is measured using second active probing and second passive probing; an optimization center integrated within the base station, the optimization center receives first data associated with the first active probing and first passive probing and the second data associated with the second active probing, the optimization center identifies when the first channel quality falls below a threshold and transitions connectivity to the first smartphone using the second wireless channel (see claim 1) but does not specifically disclose the second standard as second cellular standard.
Nonetheless, Whinnett discloses similar communication system comprising femtocell 4, cells 4a and 4b and UE 2, communicating with first standard as UMTS cellular standard and second standard as LTE cellular standard, figure 1, par [0025]-[0060].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Whinnett into the teachings of U.S. Patent No. 11,943,644, to configure the standards using Whinnett’s cellular standards, in order to allow handover to long range cellular standard/network to achieve wide-area coverage instead of WiFi standard/network.
Consider claim 8, U.S. Patent No. 11,166,181 discloses a method for maintaining a plurality of wireless channels across a plurality of devices within a multi-cell environment, the method comprising: receiving first active probing data at a base station from a first device within the plurality of devices, the first active probing data corresponding to a first wireless channel within a first cell operating in accordance with a first cellular standard; receiving second active probing data at the base station from the first device, the second active probing data corresponding to a second wireless channel within a second cell operating in accordance with a second standard; assessing the first active probing data for a first performance estimation corresponding to the first wireless channel within the first cell, and assessing the second active probing data for a second performance estimation corresponding to the second wireless channel within the second cell; selecting the first wireless channel based on a comparison of the first performance estimation and the second performance estimation; and monitoring at least one performance estimation characteristic of the first wireless channel using passive probing (see claim 1) but does not specifically disclose the second standard as second cellular standard.
Nonetheless, Whinnett discloses similar communication system comprising femtocell 4, cells 4a and 4b and UE 2, communicating with first standard as UMTS cellular standard and second standard as LTE cellular standard, figure 1, par [0025]-[0060].
Therefore, it would have been obvious for a person with ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings of Whinnett into the teachings of U.S. Patent No. 11,943,644, to configure the standards using Whinnett’s cellular standards, in order to allow handover to long range cellular standard/network to achieve wide-area coverage instead of WiFi standard/network.
Claims 2-7 and 9-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,166,181 in view of Whinnett et al. (US 20120264433 A1) and/or U.S. Patent No. 11,943,644 in similar ways as shown above.
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 extension fee 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 date of this final action.
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/Junpeng Chen/
Primary Examiner, Art Unit 2645
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