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 .
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.
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Claims 1-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,082,115 in view of Xiong et al. (US Pub. 2020/0351853).
Regarding claims 1-16, claims of U.S. Patent No. 12,082,115 teaches the most of the claim limitations as shown in the table below. Claims of U.S. Patent No. 12,082,115, however, does not teach transmit a first random access preamble after determining that a listen-before-talk (LBT) was successful; increment a preamble transmission counter and increment a preamble power ramping counter based on transmitting the random access preamble after determining that the LBT was successful.
Xiong teaches transmit a first random access preamble after determining that a listen-before-talk (LBT) was successful (see preamble transmitted on channel 2 after successful LBT in Figure 21); increment a preamble transmission counter and increment a preamble power ramping counter based on transmitting the random access preamble after determining that the LBT was successful (“When the UE performs a new random access attempt, the UE increases the preamble transmission counter by 1” in [0458] and “when the UE performs a new random access attempt, … the preamble power ramping counter is increased by 1” in [0501]). It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to modify claims of U.S. Patent No. 12,082,115 to have transmit a first random access preamble after determining that a listen-before-talk (LBT) was successful; increment a preamble transmission counter and increment a preamble power ramping counter based on transmitting the random access preamble after determining that the LBT was successful as taught by Xiong in order to report a random access problem to the higher layer [0580].
Claim 1 of Instant Application
Claim 1 of U.S. Patent No. 12,082,115
A wireless transmit/receive unit (WTRU) comprising a processor configured to:
An apparatus comprising: a processor; and memory coupled with the processor, the memory storing executable instructions that when executed by the processor cause the processor to effectuate operations comprising:
transmit a first random access preamble after determining that a listen-before-talk (LBT) was successful;
increment a preamble transmission counter and increment a preamble power ramping counter based on transmitting the random access preamble after determining that the LBT was successful;
determine that a subsequent LBT failed; start or restart a timer based on the determining that the subsequent LBT failed;
determining that one or more listen-before-talk (LBT) failures have occurred;
determine not to transmit a second random access preamble after determining that the subsequent LBT failed, wherein the preamble transmission counter and the preamble power ramping counter are not incremented when the second random access preamble is not transmitted after the subsequent LBT failure;
attempting to transmit a random access preamble based on determining that the one or more LBT failures have occurred; determining that there was a LBT failure for the random access preamble transmission; determining not to increment a preamble transmission counter and not to increment a preamble power ramping counter based on determining that there was an LBT failure for the random access preamble transmission;
determine that a LBT failure counter has reached a configured number of failure indications; based on determining that the LBT failure counter has reach the configured number of failure indications, switch from a first bandwidth part (BWP) to a second BWP; and transmit a LBT report medium access control (MAC) control element (CE) to a base station, wherein the LBT report MAC CE indicates LBT failure information.
determining that a LBT failure counter has reached a configured number of failure indications within a sliding time window; based on determining that the LBT failure counter has reached the configured number of failure indications within the sliding time window, switching from a first bandwidth part (BWP) to a second BWP; and transmitting a LBT report medium access control (MAC) control element (CE) to a base station, wherein the LBT report MAC CE indicates LBT failure information detected by the apparatus.
Allowable Subject Matter
Claims 1-16 would be allowable if the terminal disclaimer (for US 12,082,115) is timely filed to overcome the rejection based on nonstatutory double patenting, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter: The prior art in the record (in particular, US Pub. 2016/0323915 to Liu et al. (hereinafter “Liu”)) does not disclose, with respect to claim 1, determine that a subsequent LBT failed; start or restart a timer based on the determining that the subsequent LBT failed; determine not to transmit a second random access preamble after determining that the subsequent LBT failed, wherein the preamble transmission counter and the preamble power ramping counter are not incremented when the second random access preamble is not transmitted after the subsequent LBT failure; determine that a LBT failure counter has reached a configured number of failure indications; based on determining that the LBT failure counter has reach the configured number of failure indications, switch from a first bandwidth part (BWP) to a second BWP; and transmit a LBT report medium access control (MAC) control element (CE) to a base station, wherein the LBT report MAC CE indicates LBT failure information as claimed. Rather, Liu teaches determining that one or more listen-before-talk (LBT) failures have occurred [0084], [0124]. The same reasoning applies to claim 9 mutatis mutandis.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CLEMENCE S HAN whose telephone number is (571)272-3158. The examiner can normally be reached Monday-Friday 8AM-5PM EST.
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/CLEMENCE S HAN/Primary Examiner, Art Unit 2414
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