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 .
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Interpretation
“Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability.” In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (footnote omitted). Claim limitations directed to the content of information are not entitled to patentable weight unless that information has a "functional relationship" to its substrate. As a general proposition, the Examiner need not give patentable weight to non-functional descriptive material absent a new and nonobvious functional relationship between the descriptive material and the substrate. See In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); see also King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed. Cir. 2010); and Manual of Patent Examining Procedure (MPEP) § 2111.05 (9th ed. Rev. 08.2017, Jan. 2018). In Ex parte Nehls, 88 USPQ2d 1883, 1888 (BPAI 2008) (precedential), the Board held that the nature of the information being manipulated by the computer should not be given patentable weight absent evidence that the information is functionally related to the process “by changing the efficiency or accuracy or any other characteristic” of the steps. See also Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (non-precedential) (holding “wellness-related” data stored in a database and communicated over a network was non-functional descriptive material as claimed because the data “does not functionally change” the system).
Under the broadest reasonable interpretation standard, the “or” language, the condition would also not occur and the step or function claimed would never be realized, hence the claim does not require to perform the step or function. See Ex parte Katz, 2011 WL 514314, at 4-5 (BPAI Jan. 27, 2011, 2011 WL 1211248 at 2 (BPAI Mar. 25, 2011); see also In re Johnston, 435 f.3d 1381, 1384 (Fed. Cir. 2006)( "optional elements do not narrow the claim because they can always be omitted”). “Or” conditions are not limitations against which prior art must be found. Under the broadest scenario, the steps or functions dependent on the “or” condition would not be invoked, and such, the Examiner is not required to find these limitations in the prior art in order to render the claim anticipated. In re Am. Acad. Of Sci. Tech Ctr., 367 f.3d 1359, 1359 (Fed. Cir. 2004).
The subject matter of a properly construed claim is defined by the terms that limit the scope of the claim when given their broadest reasonable interpretation. It is this subject matter that must be examined. As a general matter, grammar and the plain meaning of terms as understood by one having ordinary skill in the art used in a claim will dictate whether, and to what extent, the language limits the claim scope. See MPEP § 2111.01 for more information on the plain meaning of claim language. Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect:
(A) statements of intended use or field of use, including statements of purpose or intended use in the preamble,
(B) "adapted to" or "adapted for" clauses,
(C) "wherein" or "whereby" clauses,
(D) contingent limitations,
(E) printed matter, or
(F) terms with associated functional language.
This list of examples is not intended to be exhaustive. The determination of whether particular language is a limitation in a claim depends on the specific facts of the case. See, e.g., Griffin v. Bertina, 285 F.3d 1029, 1034, 62 USPQ2d 1431 (Fed. Cir. 2002).
It has been held that to be entitled to weight in method claims, the recited structure limitations, including data structures, therein must affect the method in a manipulative sense, and not to amount to the mere claiming of a use or not the use of a particular structure. Ex parte Pfeiffer, 1962 C.D. 408 (1961).
A statement of intended use, like “supported”, as the name suggests, describes a manner in which a claimed invention may be used, but does not limit the claim and need not be practiced. If the Applicant wishes to limit the claims to an intended use, the claims should positively recite those features and make clear that they are limiting. Claims that use this sort of language do not clearly indicate which meaning is intended. C.R. Bard, Inc. v. M3 Systems, Inc. 157 F.3d 1340, 1348-49 (Fed. Cir. 1998), Ex parte Kearney, 2012 Pat. App. LEXIS 2675 at 1 (BPAI 2012), Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012).
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 1-20 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.
The specification does not originally support and/or inadequately describes for the filing date sought the now claimed the second information comprises m bits, and the m bits have one-to-one correspondence to m different bandwidth combination sets, and m is an integer greater than or equal to 1. “New matter” prohibition of 35 USC §112 plays an important role in establishing the filing data of the application as prima facie date of the invention. Patent laws do not permit the insertion of additional descriptive matter subsequent to the filing date in order to complete the disclosure so as to conform the specification’s description of the invention to statutory standard (Ex parte Maizel, 28 USPQ2d 1662). If new matter is added to the claims, the examiner should reject the claims under 35 U.S.C. 112, first paragraph - written description requirement. In re Rasmussen, 650 F.2d 1212, 211 USPQ 323 (CCPA 1981). A simple statement such as “Applicant has not pointed out where the new (or amended) claim is supported, nor does there appear to be a written description of the claim limitation ‘____’ in the application as filed.” is sufficient where the claim is a new or amended claim, the support for the limitation is not apparent, and applicant has not pointed out where the limitation is supported. See Hyatt v. Dudas, 492 F.3d 1365, 1370, 83 USPQ2d 1373, 1376 (Fed. Cir. 2007) (holding that “[MPEP] § 2163.04 [subsection] (I)(B) as written is a lawful formulation of the prima facie standard for a lack of written description rejection.”).
Claims 11-20 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as based on a disclosure which is not enabling. The disclosure does not enable one of ordinary skill in the art to practice the invention without a sending module (#702, 801) or transmitter, which is/are critical or essential to the practice of the invention but not included in the claim(s). See In re Mayhew, 527 F.2d 1229, 188 USPQ 356 (CCPA 1976). A processor, by definition, processes data. A receiver, receives a radio signal. A processor and a receiver cannot send a radio signal, that is done by the sending module (#702, 801) or transmitter as stated by the specification.
Claim Rejections - 35 USC § 102
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.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(1)as being anticipated by CN 104285388 A.
CN 104285388 A discloses a method claim 1 and 9, comprising receiving user equipment (UE) capability enquiry information (figures 5, 10, ¶189, 242). The UE capability enquiry information queries a capability of a UE (figures 5, 10, ¶189, 242) and sending UE capability information based on the UE capability enquiry information (Abstract, ¶1, 4, 7-9, etc.). The UE capability information indicates that the UE supports one or more first-type band combinations (Abstract, ¶2-4, 12-15, 26).
Regarding, “the UE capability information… wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access–new radio dual connectivity (intra-band ENDC) band combination supported by the UE and a new radio carrier aggregation (NRCA) component supported by the UE, and wherein the UE capability information comprises first information and second information, the first information comprises a first bandwidth combination set of the one or more intra-band ENDC band combinations supported by the UE, and the second information comprises a second bandwidth combination set of the one or more NRCA components supported by the UE, wherein the second information comprises m bits, and the m bits have one-to-one correspondence to m different bandwidth combination sets, and m is an integer greater than or equal to 1”, these limitations are nonfunctional descriptive material and intended use, note paragraphs 3, 5, 6, and 7 above. These limitations add no further functions to the method or are just information or data structures. No patentable weight is given that the information is functionally related to the process “by changing the efficiency or accuracy or any other characteristic” of the steps.
Regarding the dependent claims, these claims are nothing more the data structure, information and data which are also nonfunctional descriptive material and intended use, note paragraphs 3, 5, 6, and 7 above. These limitations add no further functions to the method or apparatus or further structure to the apparatus or are just information or data structures. No patentable weight is given that the information is functionally related to the process “by changing the efficiency or accuracy or any other characteristic” of the steps and data stored in a database and communicated over a network was non-functional descriptive material.
Regarding claim 6, this is a mirrors claim 1 by sending user equipment (UE) capability enquiry information to a UE and receiving the receiving UE capability information (note the citations above) and is rejected for the same reasons as stated above for claim 1. Also note claim 9 of CN 104285388 A.
Regarding claim 11, this is the inherent apparatus version of the method of claim 1 and is rejected for the same reasons stated above since the functions are the same of the method claim, note ¶13, 15, 252-253, etc., figure 12 and claim 5 in CN 104285388 A.
Regarding claim 16, this is the inherent apparatus version of the method of claim 6 and is rejected for the same reasons stated above since the functions are the same of the method claim. Also note claim 13 in CN 104285388 A.
The Examiner has cited particular columns and/or line/paragraphs numbers in the reference(s) applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the teachings of the art and are applied to specific limitations within the individual claim, other passages and figures may apply as well. IN RE JUNG, No. 10-1019 (Fed. Cir. 2011).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 12,133,290. Although the claims at issue are not identical, they are not patentably distinct from each other because it is clear that all the elements of the application claims are to be found in patent claims (as the application claims fully encompasses patent claims). The difference between the application claims and the patent claims lies in the fact that the patent claim includes many more elements and is thus much more specific. Thus, the invention of claims of the patent is in effect a “species” of the “generic” invention of the application claims. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since application claims are anticipated by claims of the patent, it is not patentably distinct from claims of the patent.
Current Application
1.A method, comprising: receiving user equipment (UE) capability enquiry information, wherein the UE capability enquiry information queries a capability of a UE; and sending UE capability information based on the UE capability enquiry information, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access–new radio dual connectivity (intra-band ENDC) band combination supported by the UE and a new radio carrier aggregation (NRCA) component supported by the UE, and wherein the UE capability information comprises first information and second information, the first information comprises a first bandwidth combination set of the one or more intra-band ENDC band combinations supported by the UE, and the second information comprises a second bandwidth combination set of the one or more NRCA components supported by the UE, wherein the second information comprises m bits, and the m bits have one-to-one correspondence to m different bandwidth combination sets, and m is an integer greater than or equal to 1.
6.A method, comprising: sending user equipment (UE) capability enquiry information to a UE, wherein the UE capability enquiry information queries a capability of the UE; and receiving UE capability information, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access–new radio dual connectivity (intra-band ENDC) band combination supported by the UE and a new radio carrier aggregation (NRCA) component supported by the UE; and wherein the UE capability information comprises first information and second information, the first information comprises a first bandwidth combination set of one or more the intra-band ENDC band combinations supported by the UE, and the second information comprises a second bandwidth combination set of the one or more NRCA components supported by the UE, wherein the second information comprises m bits, and the m bits have one-to-one correspondence to m different bandwidth combination sets, and m is an integer greater than or equal to 1.
11.An apparatus, comprising: a receiver; and at least one processor, wherein the at least one processor is configured to execute operations comprising: receiving user equipment (UE) capability enquiry information, wherein the UE capability enquiry information queries a capability of the UE; and sending UE capability information based on the UE capability enquiry information, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access–new radio dual connectivity (intra-band ENDC) band combination supported by the UE and a new radio carrier aggregation (NRCA) component supported by the UE; wherein the UE capability information comprises first information and second information, the first information comprises a first bandwidth combination set of the one or more intra-band ENDC band combinations supported by the UE, and the second information comprises a second bandwidth combination set of the one or more NRCA components supported by the UE, wherein the second information comprises m bits, and the m bits have one-to-one correspondence to m different bandwidth combination sets, and m is an integer greater than or equal to 1.
16. An apparatus, comprising: a receiver; and at least one processor, wherein the at least one processor is configured to execute operations comprising: sending user equipment (UE) capability enquiry information to a UE, wherein the UE capability enquiry information is queries a capability of the UE; and receiving UE capability information from the UE, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access–new radio dual connectivity (intra-band ENDC) band combination supported by the UE and a new radio carrier aggregation (NRCA) component supported by the UE; and wherein the UE capability information comprises first information and second information, the first information comprises a first bandwidth combination set of the one or more intra-band ENDC band combinations supported by the UE, and the second information comprises a second bandwidth combination set of the one or more NRCA components supported by the UE, wherein the second information comprises m bits, and the m bits have one-to-one correspondence to m different bandwidth combination sets, and m is an integer greater than or equal to 1.
U.S. Patent No. 12,133,290
1. A method, comprising: receiving, by user equipment (UE), UE capability enquiry information from a network device, wherein the UE capability enquiry information queries a capability of the UE; and sending, by the UE, UE capability information to the network device based on the UE capability enquiry information, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access-new radio dual connectivity (intra-band ENDC) band combination and a new radio carrier aggregation (NRCA) component; wherein the UE capability information comprises first information and second information, the first information comprises a first intra-band ENDC bandwidth combination set of the one or more first-type band combinations supported by the UE, and the second information comprises a second NRCA component bandwidth combination set of the one or more first-type band combinations supported by the UE, wherein the second information comprises m bits, and the m bits of the second information correspond to m different bandwidth combination sets; and wherein for each integer value of i from 1 to m, an i.sup.th bit in the m bits of the second information indicates whether the UE supports a bandwidth combination set corresponding to the i.sup.th bit of the M bits of the second information, the bandwidth combination set corresponding to the i.sup.th bit of the M bits of the second information is predefined, and m is an integer greater than or equal to 1.
5.A method, comprising: sending, by a network device, user equipment (UE) capability enquiry information to UE, wherein the UE capability enquiry information queries a capability of the UE; and receiving, by the network device, UE capability information from the UE, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access-new radio dual connectivity intra-band (ENDC) band combination and a new radio carrier aggregation (NRCA) component; and wherein the UE capability information comprises first information and second information, the first information comprises a first intra-band ENDC bandwidth combination set of the one or more first-type band combinations supported by the UE, and the second information comprises a second NRCA component bandwidth combination set of the one or more first-type band combinations supported by the UE, wherein the second information comprises m bits, the m bits of the second information correspond to m different bandwidth combination sets; and wherein for each integer value of i from 1 to m, an i.sup.th bit in the m bits of the second information indicates whether the UE supports a bandwidth combination set corresponding to the i.sup.th bit, the bandwidth combination set corresponding to the i.sup.th bit of the m bits of the second information is predefined, and m is an integer greater than or equal to 1.
9. A communication apparatus, comprising: at least one processor; and a non-transitory memory, wherein the non-transitory memory stores program instructions, and when executing the program instructions, the at least one processor executes operations comprising: receiving user equipment (UE) capability enquiry information from a network device, wherein the UE capability enquiry information queries a capability of the UE; and sending UE capability information to the network device based on the UE capability enquiry information, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein each first-type band combination comprises a band combination consisting of an intra-band evolved universal terrestrial radio access-new radio dual connectivity (intra-band ENDC) band combination and a new radio carrier aggregation (NRCA) component; and wherein the UE capability information comprises first information and second information, the first information comprises a first intra-band ENDC bandwidth combination set of the one or more first-type band combinations supported by the UE, and the second information comprises a second NRCA component bandwidth combination set of the one or more first-type band combinations supported by the UE, wherein the second information comprises m bits, the m bits of the second information correspond to m different bandwidth combination sets; and wherein for each integer value of I from 1 to m, an i.sup.th bit in the m bits of the second information indicates whether the UE supports a bandwidth combination set corresponding to the i.sup.th bit in the m bits of the second information, the bandwidth combination set corresponding to the i.sup.th bit in the m bits of the second information is predefined, and m is an integer greater than or equal to 1.
13. A communication apparatus, comprising: at least one processor; and a non-transitory memory, wherein the non-transitory memory stores program instructions, and when executing the program instructions, the at least one processor executes operations comprising: sending user equipment (UE) capability enquiry information to UE, wherein the UE capability enquiry information queries a capability of the UE; and receiving UE capability information from the UE, wherein the UE capability information indicates that the UE supports one or more first-type band combinations, wherein the one or more first-type band combinations comprise a band combination consisting of an intra-band evolved universal terrestrial radio access-new radio dual connectivity intra-band (ENDC) band combination and a new radio carrier aggregation (NRCA) component; and wherein the UE capability information comprises first information and second information, the first information comprises a first intra-band ENDC bandwidth combination set of the one or more first-type band combinations supported by the UE, and the second information comprises a second NRCA component bandwidth combination set of the one or more first-type band combinations supported by the UE, and wherein the second information comprises m bits, the m bits of the second information correspond to m different bandwidth combination sets; and wherein for each integer value of i from 1 to m, an i.sup.th bit in the m bits of the second information indicates whether the UE supports a bandwidth combination set corresponding to the i.sup.th bit of the m bits of the second information, the bandwidth combination set corresponding to the i.sup.th bit of the m bits of the second information is predefined, and m is an integer greater than or equal to 1.
The current application claims a receiver, but obvious and old and well known, and the Examiner takes Official Notice as such in the art in order the apparatus to receive a radio signal. Also note CN 104285388 A as evidence as such.
The current application also claims and the m bits have one-to-one correspondence to m different bandwidth combination sets, These limitations add no further functions to the method and apparatus or are just information or data structures. No patentable weight is given that the information is functionally related to the process “by changing the efficiency or accuracy or any other characteristic” of the steps. Data stored in a database and communicated over a network was non-functional descriptive material. This limitation is nonfunctional descriptive material and intended use, note paragraphs 3, 5, 6, and 7 above.
Regarding the dependent claims, these claims are nothing more the data structure, information and data which are also nonfunctional descriptive material and intended use, note paragraphs 3, 5, 6, and 7 above. These limitations add no further functions to the method or apparatus or further structure to the apparatus or are just information or data structures. No patentable weight is given that the information is functionally related to the process “by changing the efficiency or accuracy or any other characteristic” of the steps and data stored in a database and communicated over a network was non-functional descriptive material.
Applicants MUST either traverse the nonstatutory double patenting rejection or file a terminal disclaimer. The requirement for terminal disclaimer will NOT be held in abeyance.
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Conclusion
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WILLIAM D. CUMMING
Primary Examiner
Art Unit 2645
/WILLIAM D CUMMING/Primary Examiner, Art Unit 2645
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