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
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-12 are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-12 of prior U.S. Patent No. 12,09,255 B2, This is a statutory double patenting rejection.
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.
Instant Application
Patented Application 12/120741
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2. The method of claim 1, wherein the first STA responds with the CTS frame based on
the second STA not being a transmission opportunity (TXOP) responder.
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3. The method of claim 1, wherein the MLD is unable to perform transmission on the first link while reception is performed on the second link.
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7. A first station (STA), comprising: at least one processor; and at least one computer memory operably connectable to the at least one processor and storing instructions that, based on being executed by the at least one processor, perform
operations comprising:
receiving a request to send (RTS) frame, wherein the first STA is affiliated with a multi- link device (MLD) that has at least one non-simultaneous transmit and receive (NSTR) link pair, wherein the first STA is related to a first link that is a member of the MLD's at least one NSTR link pair, wherein the RTS frame is received on the first link, wherein a second STA is affiliated with the MLD and is related to a second link that is a member of the MLD's at least one NSTR link pair; and
based on the first STA being addressed by the RTS frame, determining whether to respond with a clear to send (CTS) frame, wherein the first STA does not respond with the CTS frame based on the second STA being a transmission opportunity (TXOP) responder on the second link.
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8. The first STA of claim 7, wherein the first STA responds with the CTS frame based on
the second STA not being a transmission opportunity (TXOP) responder.
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9. The first STA of claim 7, wherein the MLD is unable to perform transmission on the
first link while reception is performed on the second link.
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Claim 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,120,741 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims are directed to the same RTS/CTS coordination mechanism for a multi-link device operating in a non-simultaneous transmit and receive (NTSR) environment in which a CTS response is whithheld when another STA is a TXOP responder on another link . The instant claim recites determining , by a first STA whether to respond with a CTS frame based on a second STA being a TXOP responder on a second link and not to respond under the recited TXOP condition , whereas the patented claim recites from the receiving MLD/second STA perspective, skipping CTS operation differing only in the participant perspective and manner in which the operation is expressed . Accordingly the claimed differences would have been an obvious variation and do not define a distinct invention . As described in the specification (¶[0314]-¶[0322]) the determination whether to respond with a CTS under the recited TXOP/NTSR conditions results in withholding or skipping CTS transmission. Thus ,the differing claim language recites corresponding aspects of the same RTS/CTS coordination operation. One of ordinary skill in the art would have recognized these limitations as corresponding aspects of the same RTS/CTS coordination operation, differing only in the participant perspective from which the protocol is recited . Accordingly, it would have been obvious to one of ordinary skill in the art at the time of invention to modify the patented claim to recite the protocol from the first STA perspective instead of the receiving MLD /second STA perspective would have been an obvious variation that does not define a patentably distinct invention . Therefore, claim 1 is not distinct from claim 1 of US Patent No 12,120,741 B2.
Claim 2 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,120,741 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because
Claim 2 is the complement of claim 1. Both claims are directed to the same RTS/CTS coordination mechanism for a multi-link device operating in a non-simultaneous transmit and receive (NTSR) environment in which a CTS response is whithheld when another STA is a TXOP responder on another link . The instant claim recites the first STA responds with the CTS frame based on
the second STA not being a transmission opportunity (TXOP) responder , whereas the patented claim recites skipping by the second STA…when the first STA is the TXOP responder. Accordingly the claimed differences would have been a complement of one another do not define a distinct invention . As described in the specification (¶[0314]-¶[0322]) the determination whether to respond with a CTS under the recited TXOP/NTSR conditions results in withholding or skipping CTS transmission. Thus ,the differing claim language recites corresponding aspects of the same RTS/CTS coordination operation. One of ordinary skill in the art would have recognized these limitations as corresponding aspects of the same RTS/CTS coordination operation, differing only in the participant perspective from which the protocol is recited . Accordingly, it would have been obvious to one of ordinary skill in the art at the time of invention to modify the patented claim to recite the protocol from the first STA perspective instead of the receiving MLD /second STA perspective would have been an obvious variation that does not define a patentably distinct invention . Therefore, claim 2 is not distinct from claim 1 of US Patent No 12,120,741 B2.
Claim 3 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12,120,741 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because
Both claims are directed to the inability to transmit on the first link while receiving on the second.
Accordingly the claimed differences would have been a complement of one another do not define a distinct invention . As described in the specification (¶[0314]-¶[0322]) the determination whether to respond with a CTS under the recited TXOP/NTSR conditions results in withholding or skipping CTS transmission. Thus ,the differing claim language recites corresponding aspects of the same RTS/CTS coordination operation. One of ordinary skill in the art would have recognized these limitations as corresponding aspects of the same RTS/CTS coordination operation, differing only in the participant perspective from which the protocol is recited . Accordingly, it would have been obvious to one of ordinary skill in the art at the time of invention to modify the patented claim to recite the protocol from the first STA perspective instead of the receiving MLD /second STA perspective would have been an obvious variation that does not define a patentably distinct invention . Therefore, claim 3 is not distinct from claim 2 of US Patent No 12,120,741 B2.
Claim 7 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 12,120,741 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because both claims are directed to the same RTS/CTS coordination mechanism for a multi-link device operating in a non-simultaneous transmit and receive (NTSR) environment in which a CTS response is whithheld when another STA is a TXOP responder on another link . The instant claim recites determining , by a first STA whether to respond with a CTS frame based on a second STA being a TXOP responder on a second link and not to respond under the recited TXOP condition , whereas the patented claim recites from the receiving MLD/second STA perspective, skipping CTS operation differing only in the participant perspective and manner in which the operation is expressed . Accordingly the claimed differences would have been an obvious variation and do not define a distinct invention . As described in the specification (¶[0314]-¶[0322]) the determination whether to respond with a CTS under the recited TXOP/NTSR conditions results in withholding or skipping CTS transmission. Thus ,the differing claim language recites corresponding aspects of the same RTS/CTS coordination operation. One of ordinary skill in the art would have recognized these limitations as corresponding aspects of the same RTS/CTS coordination operation, differing only in the participant perspective from which the protocol is recited . Accordingly, it would have been obvious to one of ordinary skill in the art at the time of invention to modify the patented claim to recite the protocol from the first STA perspective instead of the receiving MLD /second STA perspective would have been an obvious variation that does not define a patentably distinct invention . Therefore, claim 7 is not distinct from claim 7 of US Patent No 12,120,741 B2.
Claim 8 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 12,120,741 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because
Claim 8 is the complement of claim 7 . Both claims are directed to the same RTS/CTS coordination mechanism for a multi-link device operating in a non-simultaneous transmit and receive (NTSR) environment in which a CTS response is whithheld when another STA is a TXOP responder on another link . The instant claim recites the first STA responds with the CTS frame based on
the second STA not being a transmission opportunity (TXOP) responder , whereas the patented claim recites skipping by the second STA…when the first STA is the TXOP responder. Accordingly the claimed differences would have been a complement of one another do not define a distinct invention . As described in the specification (¶[0314]-¶[0322]) the determination whether to respond with a CTS under the recited TXOP/NTSR conditions results in withholding or skipping CTS transmission. Thus ,the differing claim language recites corresponding aspects of the same RTS/CTS coordination operation. One of ordinary skill in the art would have recognized these limitations as corresponding aspects of the same RTS/CTS coordination operation, differing only in the participant perspective from which the protocol is recited . Accordingly, it would have been obvious to one of ordinary skill in the art at the time of invention to modify the patented claim to recite the protocol from the first STA perspective instead of the receiving MLD /second STA perspective would have been an obvious variation that does not define a patentably distinct invention . Therefore, claim 8 is not distinct from claim 7 of US Patent No 12,120,741 B2.
Claim 9 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of U.S. Patent No. 12,120,741 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because
Both claims are directed to the inability to transmit on the first link while receiving on the second.
Accordingly the claimed differences would have been a complement of one another do not define a distinct invention . As described in the specification (¶[0314]-¶[0322]) the determination whether to respond with a CTS under the recited TXOP/NTSR conditions results in withholding or skipping CTS transmission. Thus ,the differing claim language recites corresponding aspects of the same RTS/CTS coordination operation. One of ordinary skill in the art would have recognized these limitations as corresponding aspects of the same RTS/CTS coordination operation, differing only in the participant perspective from which the protocol is recited . Accordingly, it would have been obvious to one of ordinary skill in the art at the time of invention to modify the patented claim to recite the protocol from the first STA perspective instead of the receiving MLD /second STA perspective would have been an obvious variation that does not define a patentably distinct invention . Therefore, claim 2 is not distinct from claim 1 of US Patent No 12,120,741 B2.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGEL T BROCKMAN whose telephone number is (571)270-5664. The examiner can normally be reached Monday-Thursday 6:00 AM-4:30 PM
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Jiang can be reached at 571-270-7191. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANGEL T BROCKMAN/Examiner, Art Unit 2412
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