DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Claims 16-30 are currently pending.
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 16, 20, 22, 26, 27, and 29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 11, and 17, respectively, of copending Application No. 18/548203 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claimed limitations of the instant application are anticipated by and/or obvious variants of the respective claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102 and 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.
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)(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.
6. 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.
7. 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.
8. 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.
9. Claims 16-30 are rejected under 35 U.S.C. 102(a)(2) as anticipated by U.S. Publication No. 2022/0279385 A1 (hereinafter “Johansson”) or, in the alternative, under 35 U.S.C. 103 as obvious over Johansson, in view of the non-patent literature document titled Discussion On Pause/Resume NR QoE Reporting (hereinafter “R2-2104271”)1.
Regarding claims 16, 22, 27, and 29: Johansson teaches a user Equipment (UE), comprising: a processor; and a memory coupled with the processor, the processor configured to cause the UE to:
receive, from a base station, a first message comprising a configuration that enables resuming Quality of Experience (QoE) measurement reporting (see, e.g., figures 7, 8A, 8B, [0039], [0043], [0130]-[0136], [0146]-[0150]; the UE receives configuration regarding restarting QoE reporting); and
transmit, to the base station, a second message comprising at least one QoE measurement report (see, e.g., figures 7, 8A, 8B, [0039], [0043], [0130]-[0136], [0146]-[0150]; the UE reports QoE measurements).
Johansson does not explicitly state the term “resume,” nor explicitly state wherein the configuration is from a base station. To the extent these features are not inherent to the system of Johansson, they are nevertheless taught in R2-2104271 (see, e.g., section 2, figures 1 and 2; note configuration for pausing and resuming QoE reporting is sent from a base station). It would have been obvious to one having ordinary skill in the art before the effective filing date of the application to incorporate features from the system of R2-2104271, such as the signaling and/or configuration functionality, within the system of Johansson, in order to improve responses to overload.
The rationale set forth above regarding the UE of claim 16 is applicable to the methods and base station of claims 22, 27, and 29, respectively.
Regarding claims 17 and 23: Johansson modified by R2-2104271 further teaches wherein the at least one QoE measurement report is stored in the memory of the UE, and wherein the memory of the UE comprises a buffer (see, e.g., Johansson [0008], [0028], [0149]; and/or R2-210417 section 2). The motivation for modification set forth above regarding claim 16 is applicable to claim 17.
The rationale set forth above regarding the UE of claim 17 is applicable to the method of claim 23.
Regarding claims 18 and 24: Johansson modified by R2-2104271 further teaches wherein the processor is configured to cause the UE to submit the at least one QoE measurement report stored in the memory of the UE to a lower layer of the UE for transmission based on the configuration (see, e.g., Johansson figures 7, 8A, 8B, [0136]; note submission(s) between layers). The motivation for modification set forth above regarding claim 16 is applicable to claim 18.
The rationale set forth above regarding the UE of claim 18 is applicable to the method of claim 24.
Regarding claims 19, 25, 28, and 30: Johansson modified by R2-2104271 further teaches wherein the configuration comprises an indication of a maximum buffering time for the at least one QoE measurement report stored in the memory of the UE (see, e.g., Johansson, [0008]; R2-2104271 section 2; note buffer limitation of duration or size). The motivation for modification set forth above regarding claim 16 is applicable to claim 19.
The rationale set forth above regarding the UE of claim 19 is applicable to the methods and base station of claims 25, 28, and 30, respectively.
Regarding claim 20: Johansson modified by R2-2104271 further teaches wherein the second message comprises one or multiple complete QoE measurement reports (see, e.g., Johansson figures 7, 8A, 8B, [0039], [0043], [0130]-[0136], [0146]-[0150]; the UE reports QoE measurements; see also R2-210417 section 1; note QoE reporting). The motivation for modification set forth above regarding claim 16 is applicable to claim 20.
Regarding claim 21: Johansson modified by R2-2104271 further teaches wherein the second message comprises one or multiple segments of QoE measurement reports (see, e.g., R2-210417 section 1; note segmentation). The motivation for modification set forth above regarding claim 16 is applicable to claim 21.
Regarding claim 26: Johansson modified by R2-2104271 further teaches wherein: the second message comprises one or multiple complete QoE measurement reports; or the second message comprises one or multiple segments of QoE measurement reports (see, e.g., Johansson figures 7, 8A, 8B, [0039], [0043], [0130]-[0136], [0146]-[0150]; the UE reports QoE measurements; see also R2-210417 section 1; note QoE reporting and/or segmentation). The motivation for modification set forth above regarding claim 16 is applicable to claim 26.
Relevant Art
10. The following prior art not relied upon in this Office action is considered pertinent to Applicant's disclosure: See form PTO-892.
Conclusion
11. Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS SLOMS whose telephone number is (571)270-7520. The examiner can normally be reached Monday-Friday 9AM-5PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ayaz Sheikh can be reached at (571)272-3795. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICHOLAS SLOMS/ Primary Examiner, Art Unit 2476
1 R2-2104271 was cited in Applicant’s Information Disclosure Statement submitted March 22, 2024 (Non-Patent Literature Documents, cite no. 3).