9DETAILED 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.
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. 12,136,959. Although the claims at issue are not identical, they are not patentably distinct from each other because the broader application claim is generic to all that is recited in claims 1-20 of the patent. That is, claims 1-20 of the instant application are anticipated by claims 1-20 of the Patent. Please see table below in bold type. Instant application’s dependent claims (only claims 2 and 3 are shown in the table) are also anticipated by claims 1-20 of the patent.
Instant Application
U.S. Patent No. 12,136,959
Claim 1: A method comprising:
for one or more clients of a radio:
sampling a Transmission (TX) signal;
determining an achievable Error Vector Magnitude (EVM) for one or more frames based on the TX signal;
determining a link budget using a TX power and a supported Modulation and Coding Scheme (MCS); and
adjusting a per packet TX power based on the achievable EVM and a TX retry rate.
Claim 2: The method of claim 1, further comprising adjusting a PA linearity of the radio based on the achievable EVM and the link budget.
Claim 3: The method of claim 2, further comprising regrouping the client into a new
MCS based on the link budget.
Claim 10: A system comprising: a memory storage; and a processing unit coupled to the memory storage, wherein the processing unit is operative to:
for one or more clients of a radio:
sample a Transmission (TX) signal;
determine an achievable Error Vector Magnitude (EVM) for one or more frames based on the TX signal;
determine a link budget using a TX power and a supported Modulation and Coding Scheme (MCS); and
adjust a per packet TX power based on the achievable EVM and a TX retry rate.
Claim 17: A non-transitory computer-readable medium that stores a set of instructions which when executed perform a method executed by the set of instructions comprising:
for one or more clients of a radio:
sampling a Transmission (TX) signal;
determining an achievable Error Vector Magnitude (EVM) for one or more frames based on the TX signal;
determining a link budget using a TX power and a supported Modulation and Coding Scheme (MCS); and
adjusting a per packet TX power based on the achievable EVM and a TX retry rate.
Claim 1: A method comprising:
for one or more clients of a radio:
sampling a Transmission (TX) signal;
determining an achievable Error Vector Magnitude (EVM) for one or more frames based on the TX signal;
determining a link budget using a TX power and a supported Modulation and Coding Scheme (MCS); and
adjusting a per packet TX power based on the achievable EVM and a TX retry rate;
adjusting a PA linearity of the radio based on the achievable EVM and the link budget; and
regrouping the client into a new MCS based on the link budget.
Claim 8: A system comprising: a memory storage; and a processing unit coupled to the memory storage, wherein the processing unit is operative to:
for one or more clients of a radio:
sample a Transmission (TX) signal;
determine an achievable Error Vector Magnitude (EVM) for one or more frames based on the TX signal;
determine a link budget using a TX power and a supported Modulation and Coding Scheme (MCS); and
adjust a per packet TX power based on the achievable EVM and a TX retry rate;
adjusting a PA linearity of the radio based on the achievable EVM and the link budget; and
regrouping the client into a new MCS based on the link budget.
Claim 15: A non-transitory computer-readable medium that stores a set of instructions which when executed perform a method executed by the set of instructions comprising:
for one or more clients of a radio:
sampling a Transmission (TX) signal;
determining an achievable Error Vector Magnitude (EVM) for one or more frames based on the TX signal;
determining a link budget using a TX power and a supported Modulation and Coding Scheme (MCS); and
adjusting a per packet TX power based on the achievable EVM and a TX retry rate;
adjusting a PA linearity of the radio based on the achievable EVM and the link budget; and
regrouping the client into a new MCS based on the link budget.
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.
Claim 3 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 1 of prior U.S. Patent No. 12,136,959 (Please see the table above). This is a statutory double patenting rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 9,673,887 Erickson discloses self-calibration for transmit power level control. US 9,288,009 Merlin et al disclose modulation and coding scheme selection for power imbalance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Eva Y Puente whose telephone number is 571-272-3049. The examiner can normally be reached on M-F, 7:30 AM to 5:00 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chieh Fan can be reached on 571-272-3042. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
January 23, 2026
/EVA Y PUENTE/ Primary Examiner, Art Unit 2632