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 .
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.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 9,432,940 in view of Nabetani et al. (US 2011/0038262) and Hasty et al. (US 2008/0080553). Although the claims at issue are not identical, they are not patentably distinct from each other. For dependent claims herein, the motivation to combine is the same as the parent claim unless otherwise noted.
Regarding claims 1-6, 8-13 and 15-20, the parent patent recites features such as communicating RTS frames over first 20 MHz bands and communicating a CTS frame, where the RTS frames include information indicating an entire bandwidth of the first 20 MHz bands. However, the claims additionally recite features such as a network allocation vector. In removing the additional features, the scope of the claims is merely broadened by eliminating elements and their functions. It has been held that omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before. In re Karlson, 136 USPQ 184 (1963); In re Nelson, 95 USPQ 82 (CCPA 1952); and In re Eliot, 25 USPQ 111 (CCPA 1935). Also note Ex parte Rainu, 168 USPQ 365 (Bd. App. 1969) (omission of a reference element whose function is not needed would be obvious to one skilled in the art). Therefore, it would have been obvious to one skilled in the at the time the invention was made to not recite the additional features.
Further, the parent patent fails to recite the request to send (RTS) frames on each of a set of channels including second information; transmitting, to the first station, a clear to send (CTS) frame on each of one or more channels among the set of channels; and receiving, from the first station, a first frame comprising the user data using the one or more channels among the set of channels based on the second information, wherein the first bandwidth information corresponds to a dynamic channel bandwidth allocation bit, and wherein the second information corresponds to a bandwidth information indicating a bandwidth of the set of channels dynamically determined based on the dynamic channel bandwidth allocation bit.
However, Nabetani discloses RTS frames and CTS frames sent on bands as channels (figs. 1-2 and 8; para. 3, third sentence paras. 48-49) and receiving user data on the one or more channels as appropriate (figs. 1 and 8; and para. 51). In addition, Hasty discloses an RTS frame having a first indicator as a dynamic allocation bit and a second indicator as a bandwidth based on the bit (fig. 4; para. 52, especially the last two sentences; note: a second bit value along with the first bit value indicates a bandwidth; alternatively, para. 48, especially the penultimate sentence; note: a first bit as a first value and a second bit as a first or second value indicates a dynamic bandwidth of a default bandwidth or a higher than default bandwidth).
Therefore, it would have been obvious to one skilled in the art at the time the invention was made to recite the request to send (RTS) frames on each of a set of channels including second information; transmitting, to the first station, a clear to send (CTS) frame on each of one or more channels among the set of channels; and receiving, from the first station, a first frame comprising the user data using the one or more channels among the set of channels based on the second information, wherein the first bandwidth information corresponds to a dynamic channel bandwidth allocation bit, and wherein the second information corresponds to a bandwidth information indicating a bandwidth of the set of channels dynamically determined based on the dynamic channel bandwidth allocation bit in the parent patent. The motivation to have the modification and/or well-known benefits of the modification include, but are not limited to, provide an RTS-CTS-DATA exchange on physical band channels as is well known in the art and to provide bandwidth indicators a communication as is known in the art, respectively (Nabetani, figs. 1-2 and 8, and paras. 3, 48-49 and 51; Hasty, fig. 4, and paras. 48 and 52; MPEP 2143(I)(A)(B)(C)(D) - note: e.g., applying known techniques having predictable results).
Regarding claim 7, the parent patent in view of Nabetani and Hasty makes obvious to recite the method of claim 1, wherein the CTS frame comprises bandwidth information which indicates a combined bandwidth of the one or more channels and information indicating capacity to select the one or more channels from the set of channels. (parent patent, claim 3; Hasty, para. 49, penultimate sentence; Nabetani, figs. 1-2, and paras. 48 and 51).
Regarding claim 14, these limitations are rejected on the same ground as claim 7.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-42 of U.S. Patent No. 10,863,480 in view of Hasty et al. (US 2008/0080553). Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claims 1-20, the parent patent recites features such as communicating RTS frames, CTS frames and user data over channels, where the RTS frames include information indicating a combined bandwidth of the channels. However, the claims additionally recite features such as selecting one or more channels. In removing the additional features, the scope of the claims is merely broadened by eliminating elements and their functions. It has been held that omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before. In re Karlson, 136 USPQ 184 (1963); In re Nelson, 95 USPQ 82 (CCPA 1952); and In re Eliot, 25 USPQ 111 (CCPA 1935). Also note Ex parte Rainu, 168 USPQ 365 (Bd. App. 1969) (omission of a reference element whose function is not needed would be obvious to one skilled in the art). Therefore, it would have been obvious to one skilled in the at the time the invention was made to not recite the additional features.
Further, the parent patent fails to recite the request to send (RTS) frames including second information; and receiving, from the first station, a first frame comprising the user data using the one or more channels among the set of channels based on the second information, wherein the first bandwidth information corresponds to a dynamic channel bandwidth allocation bit, and wherein the second information corresponds to a bandwidth information indicating a bandwidth of the set of channels dynamically determined based on the dynamic channel bandwidth allocation bit.
However, Hasty discloses an RTS frame having a first indicator as a dynamic allocation bit and a second indicator as a bandwidth based on the bit (fig. 4; para. 52, especially the last two sentences; note: a second bit value along with the first bit value indicates a bandwidth; alternatively, para. 48, especially the penultimate sentence; note: a first bit as a first value and a second bit as a first or second value indicates a dynamic bandwidth of a default bandwidth or a higher than default bandwidth). Therefore, it would have been obvious to one skilled in the art at the time the invention was made to recite the request to send (RTS) frames including second information; and receiving, from the first station, a first frame comprising the user data using the one or more channels among the set of channels based on the second information, wherein the first bandwidth information corresponds to a dynamic channel bandwidth allocation bit, and wherein the second information corresponds to a bandwidth information indicating a bandwidth of the set of channels dynamically determined based on the dynamic channel bandwidth allocation bit in the parent patent. The motivation to have the modification and/or well-known benefits of the modification include, but are not limited to, provide bandwidth indicators a communication as is known in the art, respectively (Hasty, fig. 4, and paras. 48 and 52; MPEP 2143(I)(A)(B)(C)(D) - note: e.g., applying known techniques having predictable results).
Allowable Subject Matter
Claims 1-20 would be allowable if the above double patenting rejections are overcome.
Examiner believes double patenting rejections with US 8,411,698 and US 11,956,781 would be improper because the parent patents fail to claim an RTS frame communicated over each of a set of channels (or bands) and includes an indication for a bandwidth of the set of channels as claimed, and the prior art of record fails to teach or make obvious this concept.
Conclusion
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/Kevin C. Harper/
Primary Examiner, Art Unit 2462